BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 955|
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THIRD READING
Bill No: AB 955
Author: De Leon (D)
Amended: 6/22/09 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 7/14/09
AYES: Leno, Benoit, Cedillo, Hancock, Huff, Steinberg
NO VOTE RECORDED: Wright
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 77-0, 5/21/09 (Consent) - See last page
for vote
SUBJECT : Peace Officers Procedural Bill of Rights: time
to complete
Investigation of misconduct
SOURCE : California Association of Highway Patrolmen
Peace Officers Research Association of
California
DIGEST : This bill requires that a law enforcement
employing agency notify an 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.
ANALYSIS : Existing law establishes the Public Safety
Officers Procedural Bill of Rights (POBAR). (Government
CONTINUED
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Code Section 3300.)
POBAR provides, among others, the following procedural
protections for peace officers in employment-related
matters:
1. 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 Section
3304(a).)
2. 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 appeal. (Government Code Section
3304(b).)
3. 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
therefore 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 Section
3304(c).)
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4. 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 Section 3304(d)):
A. 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.
B. If the public safety officer waives the one-year
time period in writing, the time period shall be
tolled for the period of time specified in the
written waiver.
C. If the investigation is a multi-jurisdictional
investigation that requires a reasonable extension
for coordination of the involved agencies.
D. If the investigation involves more than one
employee and requires a reasonable extension.
E. If the investigation involves an employee who is
incapacitated or otherwise unavailable.
F. 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.
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G. 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.
H. If the investigation involves an allegation of
workers' compensation fraud on the part of the
public safety officer.
5. 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 Section 3304(e).)
6. 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 Section
3304(f).)
7. 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 Section 3304(g)):
A. Significant new evidence has been discovered
that is likely to affect the outcome of the
investigation.
B. One of the following conditions exist:
(1) The evidence could not reasonably have
been discovered in the normal course of
investigation without resorting to
extraordinary measures by the agency.
(2) The evidence resulted from the public
safety officer's pre-disciplinary response or
procedure.
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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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/18/09)
California Association of Highway Patrolmen (co-source)
Peace Officer's Research Association of California
(co-source)
Association for Los Angeles Deputy Sheriffs
California Correctional Supervisors Organization
California Peace Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
Los Angeles County Probation Officers Union
Orange County Employees' Association
Riverside Sheriffs' Association
State Coalition of Probation Organizations
ARGUMENTS IN SUPPORT : According to the author's office,
AB 1436 (Cardoza), Chapter 148, Statutes of 1997, amended
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
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and provide notice of proposed discipline to one year.
This bill seeks to clarify the intent of the original
legislation, and continue providing officers administrative
guidance in these situations.
The California Association of Highway Patrolmen and the
Peace Officers Research Association of California 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 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 simply clarifies the original intent
and restore the protection of GC 3304 (d) that was in
effect prior to this case.
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
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DeVore, Duvall, Emmerson, Eng, Evans, Feuer, Fletcher,
Fong, Fuller, Furutani, Gaines, Galgiani, Garrick,
Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,
Huber, Huffman, Jeffries, Jones, Knight, Krekorian, Lieu,
Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Monning,
Nestande, Niello, Nielsen, John A. Perez, V. Manuel
Perez, Portantino, Price, Ruskin, Salas, Silva, Skinner,
Smyth, Solorio, Audra Strickland, Swanson, Torlakson,
Torres, Torrico, Tran, Villines, Yamada, Bass
NO VOTE RECORDED: Fuentes, Nava, Saldana
RJG:do 8/19/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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