BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 955 (De Leon)
As Amended June 22, 2009
Hearing date: July 2, 2009
Government Code
SM:mc
PEACE OFFICERS PROCEDURAL BILL OF RIGHTS: TIME TO COMPLETE
INVESTIGATION OF MISCONDUCT
HISTORY
Source: Peace Officer's Research Association of California;
California Association of Highway Patrolmen
Prior Legislation: AB 1436 (Cardoza) - Chapter 148, Stats. of
1997
Support: Association for Los Angeles Deputy Sheriffs; California
Correctional Supervisors Organization; California Peace
Officers' Association; California Police Chiefs
Association; Los Angeles County Probation Officers
Union; Orange County Employees' Association; Riverside
Sheriffs' Association; State Coalition of Probation
Organizations; California State Sheriffs' Association
Opposition:None known
Assembly Floor Vote: Ayes 69 - Noes 0
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KEY ISSUE
SHOULD LAW ENFORCEMENT AGENCIES BE REQUIRED TO NOTIFY AN
EMPLOYEE WITHIN ONE YEAR OF AN ALLEGATION OF MISCONDUCT BEING
MADE WHETHER THAT AGENCY INTENDS TO PURSUE THE ALLEGATION, AND
SPECIFY THE PUNISHMENT THAT THE AGENCY INTENDS TO IMPOSE?
PURPOSE
The purpose of this bill is to require that the employing agency
notify the employee within one year of an allegation of
misconduct being made whether the agency intends to pursue the
allegation, and to specify the punishment that the agency
intends to impose.
Existing law establishes the Public Safety Officers Procedural
Bill of Rights (POBAR). (Government Code 3300.)
POBAR provides, among others, the following procedural
protections for peace officers in employment-related matters:
No public safety officer shall be subjected to punitive
action, or denied promotion, or be threatened with any such
treatment, because of the lawful exercise of the rights
granted under this chapter, or the exercise of any rights
under any existing administrative grievance procedure.
Nothing in this section shall preclude a head of an agency
from ordering a public safety officer to cooperate with
other agencies involved in criminal investigations. If an
officer fails to comply with such an order, the agency may
officially charge him or her with insubordination.
(Government Code 3304(a).)
No punitive action nor denial of promotion on grounds
other than merit shall be undertaken by any public agency
against any public safety officer who has successfully
completed the probationary period that may be required by
his or her employing agency without providing the public
safety officer with an opportunity for administrative
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appeal. (Government Code 3304(b).)
No chief of police may be removed by a public agency, or
appointing authority, without providing the chief of police
with written notice and the reason or reasons therefor and
an opportunity for administrative appeal. For purposes of
this subdivision, the removal of a chief of police by a
public agency or appointing authority, for the purpose of
implementing the goals or policies, or both, of the public
agency or appointing authority, for reasons including, but
not limited to, incompatibility of management styles or as
a result of a change in administration, shall be sufficient
to constitute "reason or reasons." Nothing in this
subdivision shall be construed to create a property
interest, where one does not exist by rule or law, in the
job of Chief of Police. (Government Code 3304(c).)
Except as specified, no punitive action, nor denial of
promotion on grounds other than merit, shall be undertaken
for any act, omission, or other allegation of misconduct if
the investigation of the allegation is not completed within
one year of the public agency's discovery by a person
authorized to initiate an investigation of the allegation
of an act, omission, or other misconduct. This one-year
limitation period shall apply only if the act, omission, or
other misconduct occurred on or after January 1, 1998. In
the event that the public agency determines that discipline
may be taken, it shall complete its investigation and
notify the public safety officer of its proposed
disciplinary action within that year, except in any of the
following circumstances (Government Code 3304(d)):
o If the act, omission, or other allegation of
misconduct is also the subject of a criminal
investigation or criminal prosecution, the time during
which the criminal investigation or criminal
prosecution is pending shall toll the one-year time
period.
o If the public safety officer waives the
one-year time period in writing, the time period shall
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be tolled for the period of time specified in the
written waiver.
o If the investigation is a multi-jurisdictional
investigation that requires a reasonable extension for
coordination of the involved agencies.
o If the investigation involves more than one
employee and requires a reasonable extension.
o If the investigation involves an employee who
is incapacitated or otherwise unavailable.
o If the investigation involves a matter in
civil litigation where the public safety officer is
named as a party defendant, the one-year time period
shall be tolled while that civil action is pending.
o If the investigation involves a matter in
criminal litigation where the complainant is a
criminal defendant, the one-year time period shall be
tolled during the period of that defendant's criminal
investigation and prosecution.
o If the investigation involves an allegation of
workers' compensation fraud on the part of the public
safety officer.
Where a pre-disciplinary response or grievance procedure
is required or utilized, the time for this response or
procedure shall not be governed or limited by this chapter.
(Government Code 3304(e).)
If, after investigation and any pre-disciplinary
response or procedure, the public agency decides to impose
discipline, the public agency shall notify the public
safety officer in writing of its decision to impose
discipline, including the date that the discipline will be
imposed, within 30 days of its decision, except if the
public safety officer is unavailable for discipline.
(Government Code 3304(f).)
Notwithstanding the one-year time period specified, an
investigation may be reopened against a public safety
officer if both of the following circumstances exist
(Government Code 3304(g)):
o Significant new evidence has been discovered
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that is likely to affect the outcome of the
investigation.
o One of the following conditions exist:
The evidence could not reasonably
have been discovered in the normal course of
investigation without resorting to extraordinary
measures by the agency.
The evidence resulted from the
public safety officer's pre-disciplinary response
or procedure.
This bill amends section 3304 to provide, except as specified in
existing law, no disciplinary action may be undertaken for any
act of misconduct if the investigation of the allegation is not
completed within one year of the agency's discovery by a person
authorized to initiate an investigation of the allegation of an
act, omission, or other misconduct. In the event that the
agency determines that discipline may be taken, it shall
complete its investigation and notify the public safety officer
of its proposed discipline by a Letter of Intent or Notice of
Adverse Action articulating the discipline that year, except as
specified in existing law. The public agency shall not be
required to impose the discipline within that one-year period.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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1. Need for This Bill
According to the author:
Years ago (1997), AB 1436 was passed into law to amend
the Peace Officers Procedural Bill of Rights. The law
ensured that officers were provided appropriate
information regarding the details and decisions of any
investigations conducted on them in a timely manner.
Last Spring, the California Supreme Court
misinterpreted the intent of existing law to limit
investigation periods and provide notice of proposed
discipline to one year.
AB 955 seeks to clarify the intent of the original
legislation, and continue providing officers
administrative guidance in these situations.
2. Abrogating Mays v. City of Los Angeles
The purpose of this bill is to abrogate the unanimous holding of
the California Supreme Court in Mays v. City of Los Angeles, 43
Cal.4th 313 (2008). The Court in Mays stated the issue as
follows:
At issue in this appeal is the meaning of the language
in section 3304(d) requiring a public agency to
"notify the public safety officer of its proposed
disciplinary action." Defendants contend that the
quoted language requires only that notice of the
misconduct charges be provided. Plaintiff and the
Court of Appeal, however, view section 3304(d) as
mandating notice of the specific punishment or
discipline that is contemplated for the charged
misconduct. As we shall explain, we believe the Court
of Appeal's interpretation is not consistent with the
language or purpose of the statute. (Mays v. City of
Los Angeles, 43 Cal. 4th 313, 321 (2008), (emphasis
added).)
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The Court found that the purpose of section 3304(d) is to act as
a statute of limitations requiring the employing agency to
investigate any allegations of misconduct within one year and,
within that time period, decide whether or not to commence
disciplinary proceedings:
Viewing the terms of section 3304(d) as a whole, it
appears clear that the fundamental purpose of this
provision is to place a one-year limitation on
investigations of officer misconduct. The one-year
period runs from the time the misconduct is
discovered. Once the public agency decides that
discipline may be warranted ("that discipline may be
taken" (ibid.)), it must so inform the public safety
officer (must "notify the public safety officer of its
proposed disciplinary action" (ibid.)). In this
context, it seems most reasonable to interpret the
language "proposed disciplinary action" as referring
to the agency's determination that "discipline may be
taken." (Ibid.) Not only completion of the
investigation, but also the requisite notification to
the officer, must be accomplished within a year of
discovery of the misconduct. This interpretation is
consistent with the apparent purpose of the
subdivision, which is to ensure that an officer will
not be faced with the uncertainty of a lingering
investigation, but will know within one year of the
agency's discovery of the officer's act or omission
that it may be necessary for the officer to respond in
the event he or she wishes to defend against possible
discipline.
A contrary conclusion-that section 3304(d) requires
notification of the specific discipline contemplated
by the public agency-prematurely would impose a
requirement that is unreasonable in view of the timing
of the notice. Section 3304(d) refers to an agency
decision that "discipline may be taken." (Italics
added.) The use of the conditional word "may"
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demonstrates the preliminary nature of the proceedings
at the time the notice is required under subdivision
(d). It would be anomalous to require the public
agency to reach a conclusion regarding potential
discipline prior to any predisciplinary proceedings or
response on the part of the officer. (See Sulier v.
State Personnel Bd. (2004) 125 Cal.App.4th 21, 29 [22
Cal. Rptr. 3d 615] (Sulier) ["the notice contemplated
by section 3304(d) is given at a time when the
disciplinary authority has not necessarily committed
itself to disciplining the employee ?"].) Such a
requirement also could have the practical effect of
always leading the public agency to propose the
maximum punishment in order to ensure it retained the
full range of options in the subsequent disciplinary
proceedings.
Another subdivision of section 3304-subdivision
(f)-strongly supports the foregoing interpretation of
section 3304(d). Subdivision (f) provides: "If, after
investigation and any predisciplinary response or
procedure, the public agency decides to impose
discipline, the public agency shall notify the public
safety officer in writing of its decision to impose
discipline, including the date that the discipline
will be imposed, within 30 days of its decision,
except if the public safety officer is unavailable for
discipline." ( 3304, subd. (f).) Thus, it appears
that, ordinarily, a predisciplinary response and/or
hearing will occur subsequent to the investigation but
prior to the agency's conclusion regarding the
specific discipline to be imposed. Once the agency
follows its relevant procedural mechanism and decides
the level of specific discipline it intends to impose,
it then has 30 days to so notify the officer. (See
Sulier, supra, 125 Cal.App.4th at pp. 29-30 [a formal
notice of adverse action containing a statement of the
nature of such action is required when the public
agency decides to impose discipline and serves a
formal notice pursuant to 3304, subd. (f)].) When
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the two subdivisions are read together, it is evident
that section 3304(d) limits the duration of the
investigation and provides, through its notice
requirement that discipline may be imposed, a starting
point for predisciplinary responses or procedures,
whereas subdivision (f) is directed at providing the
officer with written notice of the discipline that the
agency-after considering the officer's predisciplinary
response-has decided to impose. (Mays, supra, at
321-323 (emphasis in original).)
Thus, the Court found that the Legislature's intent in
enacting the statute was to provide a one-year limit on
investigations of misconduct claims, prior to any
disciplinary hearing, and that reading section 3304(d) to
require notification of the specific discipline
contemplated by the public agency, as proposed by this
bill, "prematurely would impose a requirement that is
unreasonable in view of the timing of the notice."
DOES THE ONE-YEAR NOTICE INDICATE THAT DISCIPLINARY ACTION
WILL BE TAKEN OR MAY BE TAKEN?
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DOES THE STATUTORY SCHEME CONTEMPLATE THAT, FOLLOWING THE
ONE-YEAR NOTICE, SOME PREDISCIPLINARY RESPONSE OR PROCEDURE
WILL TAKE PLACE?
WOULD IT BE PREMATURE TO REQUIRE AN EMPLOYING AGENCY TO
SPECIFY THE DISCIPLINARY MEASURES IT INTENDS TO IMPOSE
PRIOR TO ANY ACTUAL HEARING AND OPPORTUNITY FOR THE ACCUSED
OFFICER TO RESPOND TO THE ALLEGATIONS?
WOULD REQUIRING AN AGENCY TO SPECIFY THE PENALTY BEFORE A
HEARING ON THE ALLEGATIONS RESULT IN THE AGENCY ALWAYS
PROPOSING THE MAXIMUM PUNISHMENT?
The Court looked at the legislative history of section
3304(d) and found that to be consistent with its reading of
the statute:
Nor is there any indication in section 3304(d)'s
legislative history that the Legislature intended to
require that public agencies propose a specific
punishment at the stage when an investigation has been
completed but disciplinary proceedings have yet to
commence. Indeed, that history reveals no discussion
or debate concerning the meaning of section 3304(d)'s
phrase "notify the public safety officer of its
proposed disciplinary action." Rather, the history
confirms that section 3304(d) was intended to function
primarily as a limitation upon investigations of
misconduct. The express purpose of the bill that
encompasses what is now section 3304(d) was "to enact
specific time limits and exceptions for investigating
alleged acts or omissions which may lead to punitive
actions, as specified." (Sen. Rules Com., Off. of
Sen. Floor Analyses, 3d reading analysis of Assem.
Bill No. 1436 (1997-1998 Reg. Sess.) as amended June
17, 1997, pp. 3-4, italics added.) Relevant committee
reports express concern about the length of
disciplinary investigations and focus upon the need to
conclude those investigations in a timely fashion.
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(See, e.g., Sen. Com. on Public Safety, Rep. on Assem.
Bill No. 1436 (1997-1998 Reg. Sess.) June 10, 1997,
p. 5 [" 'it is unfair to our peace officer[s] not to
investigate and bring charges or dismiss the action
within a reasonable time,' " and " '[o]ne year is the
agreed-upon time by both labor and management' "].)
There is no documented discussion of the specific
content of the notice to be provided to the officer
once the investigation is completed and discipline is
being contemplated. Accordingly, in enacting section
3304(d), it is clear that the Legislature was focused
upon preventing a perceived lack of fairness caused by
a drawn-out investigatory process-and not with
requiring that officers receive notice of specific
intended discipline at that early stage of the
process. (Mays v. City of Los Angeles, 43 Cal. 4th
313, 323-324 (2008).)
WAS IT THE ORIGINAL INTENT OF THE LEGISLATURE THAT THE AGENCY BE
REQUIRED TO NOTIFY THE EMPLOYEE OF THE DISCIPLINARY ACTION IT
INTENDS TO TAKE BEFORE IT HOLDS A DISCIPLINARY HEARING?
3. Argument in Support
The California Association of Highway Patrolmen (CAHP) and the
Peace Officers Research Association of California (PORAC) state:
Government Code Section 3304 (d) was placed into the
statute to protect officers from the management
practice of capriciously opening an investigation on
an officer, often times putting that officer on
administrative leave, and then dragging that
investigation out over a long period of time. These
investigations would sometimes take years to complete.
It is extremely difficult when employees are put on
administrative leave for long periods of time. Many
times, management has used this investigative tool as
discipline or punishment for an employee they did not
personally care for, knowing full well that eventually
when the case goes to court, the officer would likely
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be reinstated with full pay. At that point, the
damage has been done.
On April 17, 2008, the California Supreme Court ruled
in Mays v. City of Los Angeles (43 Cal. 4th 313) that
the Court of Appeals erred in interpreting section
3304 (d), requiring notice of specific proposed
punishment, and that "although the agency is not
precluded from proposing specific discipline at that
time, it is not required by Section 3304 (d) to do
so." This means that the original intent of GC 3304
(d), to limit the investigation and notice of proposed
discipline to one year, has been completely
misconstrued and, in effect, overturned. The language
in this bill would simply clarify the original intent
and restore the protection of GC 3304 (d) that was in
effect prior to this case.
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