BILL ANALYSIS
AB 1586
Page 1
Date of Hearing: January 12, 2010
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1586 (Swanson) - As Introduced: September 2, 2009
SUMMARY : Authorizes the San Francisco Bay Area Rapid Transit
(BART) Board of Directors to establish an office of police
auditor. Specifically, this bill :
1)Allows the BART Board to establish an office of the
"independent police auditor", reporting directly to the Board,
to investigate complaints filed by members of the public
against district police officers.
2)Specifies that the "independent police auditor" shall have the
following powers and duties:
a) Allows the auditor to investigate those complaints or
allegations of on-duty misconduct by district police
officers received from members of the public, within the
independent police auditor's purview as it is set by the
BART Board.
b) Gives the auditor the right to reach independent
findings as to the validity of each complaint.
c) Allows the auditor to recommend appropriate disciplinary
action against district police officers for those citizen
complaints determined to be sustained.
3)States that the BART Board shall organize, reorganize, and
manage the office of the auditor. Notwithstanding the
authority granted the general manager in this part, the BART
Board may, by resolution, authorize a citizen review board to
participate in recommending appropriate disciplinary action,
if any, within the auditor's authority.
4)Mandates that the auditor shall prepare, in accordance with
the rules of the office, reports of his or her activities as
permitted by law.
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EXISTING LAW :
1)Establishes the Public Safety Officers Procedural Bill of
Rights. (California Government Code Section 3300.)
2)States that the Legislature hereby finds and declares that the
rights and protections provided to peace officers under this
the Peace Officer Procedural Bill of Rights constitute a
matter of statewide concern. The Legislature further finds
and declares that effective law enforcement depends upon the
maintenance of stable employer-employee relations, between
public safety employees and their employers. In order to
assure that stable relations are continued throughout the
state and to further assure that effective services are
provided to all people of the state, it is necessary that this
chapter be applicable to all public safety officers, as
defined in this section, wherever situated within the State of
California. (California Government Code Section 3301.)
3)States that when any public safety officer is under
investigation and subjected to interrogation by his or her
commanding officer, or any other member of the employing
public safety department, that could lead to punitive action,
the interrogation shall be conducted under the following
conditions. For the purpose of this chapter, punitive action
means any action that may lead to dismissal, demotion,
suspension, reduction in salary, written reprimand, or
transfer for purposes of punishment (California Government
Code Section 3303):
a) Specifies that the interrogation shall be conducted at a
reasonable hour, preferably at a time when the public
safety officer is on duty, or during the normal waking
hours for the public safety officer, unless the seriousness
of the investigation requires otherwise. If the
interrogation does occur during off-duty time of the public
safety officer being interrogated, the public safety
officer shall be compensated for any off-duty time in
accordance with regular department procedures, and the
public safety officer shall not be released from employment
for any work missed. [California Government Code Section
3303(a).]
b) States that the public safety officer under
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investigation shall be informed prior to the interrogation
of the rank, name, and command of the officer in charge of
the interrogation, the interrogating officers, and all
other persons to be present during the interrogation. All
questions directed to the public safety officer under
interrogation shall be asked by and through no more than
two interrogators at one time. [California Government Code
Section 3303(b).]
c) Provides that the public safety officer under
investigation shall be informed of the nature of the
investigation prior to any interrogation. [California
Government Code Section 3303(c).]
d) States that the interrogating session shall be for a
reasonable period taking into consideration gravity and
complexity of the issue being investigated. The person
under interrogation shall be allowed to attend to his or
her own personal physical necessities. [California
Government Code Section 3303(d).]
e) Provides that the public safety officer under
interrogation shall not be subjected to offensive language
or threatened with punitive action, except that an officer
refusing to respond to questions or submit to
interrogations shall be informed that failure to answer
questions directly related to the investigation or
interrogation may result in punitive action. No promise of
reward shall be made as an inducement to answering any
question. The employer shall not cause the public safety
officer under interrogation to be subjected to visits by
the press or news media without his or her express consent
nor shall his or her home address or photograph be given to
the press or news media without his or her express consent.
[California Government Code Section 3303(e).]
f) Specifies that no statement made during interrogation by
a public safety officer under duress, coercion, or threat
of punitive action shall be admissible in any subsequent
civil proceeding. This subdivision is subject to the
following qualifications [California Government Code
Section 3303(f)]:
i) This subdivision shall not limit the use of
statements made by a public safety officer when the
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employing public safety department is seeking civil
sanctions against any public safety officer, including
specified disciplinary actions. [California Government
Code Section 3303(f)(1).]
ii) This subdivision shall not prevent the admissibility
of statements made by the public safety officer under
interrogation in any civil action, including
administrative actions, brought by that public safety
officer, or that officer's exclusive representative,
arising out of a disciplinary action. [California
Government Code Section 3303(f)(2).]
iii) This subdivision shall not prevent statements made
by a public safety officer under interrogation from being
used to impeach the testimony of that officer after an in
camera review to determine whether the statements serve
to impeach the testimony of the officer. [California
Government Code Section 3303(f)(3).]
iv) This subdivision shall not otherwise prevent the
admissibility of statements made by a public safety
officer under interrogation if that officer subsequently
is deceased. [California Government Code Section
3303(f)(4).]
g) States that the complete interrogation of a public
safety officer may be recorded. If a tape recording is
made of the interrogation, the public safety officer shall
have access to the tape if any further proceedings are
contemplated or prior to any further interrogation at a
subsequent time. The public safety officer shall be
entitled to a transcribed copy of any notes made by a
stenographer or to any reports or complaints made by
investigators or other persons, except those which are
deemed by the investigating agency to be confidential. No
notes or reports that are deemed to be confidential may be
entered in the officer's personnel file. The public safety
officer being interrogated shall have the right to bring
his or her own recording device and record any and all
aspects of the interrogation. [California Government Code
Section 3303(g).]
h) Provides that if prior to or during the interrogation of
a public safety officer it is deemed that he or she may be
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charged with a criminal offense, he or she shall be
immediately informed of his or her constitutional rights.
[California Government Code Section 3303(h).]
i) States that upon the filing of a formal written
statement of charges, or whenever an interrogation focuses
on matters that are likely to result in punitive action
against any public safety officer, that officer, at his or
her request, shall have the right to be represented by a
representative of his or her choice who may be present at
all times during the interrogation. The representative
shall not be a person subject to the same investigation.
The representative shall not be required to disclose, nor
be subject to any punitive action for refusing to disclose,
any information received from the officer under
investigation for non-criminal matters. Specifies that
this section shall not apply to any interrogation of a
public safety officer in the normal course of duty,
counseling, instruction, or informal verbal admonishment
by, or other routine or unplanned contact with, a
supervisor or any other public safety officer, nor shall
this section apply to an investigation concerned solely and
directly with alleged criminal activities. [California
Government Code Section 3303(i).]
j) Provides that no public safety officer shall be loaned
or temporarily reassigned to a location or duty assignment
if a sworn member of his or her department would not
normally be sent to that location or would not normally be
given that duty assignment under similar circumstances.
[California Government Code Section 3303(j).]
4)States that 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. [California
Government Code Section 3304(a).]
5)Provides no punitive action nor denial of promotion on grounds
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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.
[California Government Code Section 3304(b).]
6)States 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.
[California Government Code Section 3304(c).]
7)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
[California 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
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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.
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.
8)Provides where a predisciplinary response or grievance
procedure is required or utilized, the time for this response
or procedure shall not be governed or limited by this chapter.
[California Government Code Section 3304(e).]
9)States 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. [California Government Code
Section 3304(f).]
10)Specifies, notwithstanding the one-year time period
specified, an investigation may be reopened against a public
safety officer if both of the following circumstances exist
[California Government Code Section 3304(g)]:
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a) Significant new evidence has been discovered that is
likely to affect the outcome of the investigation.
b) One of the following conditions exist:
i) The evidence could not reasonably have been
discovered in the normal course of investigation without
resorting to extraordinary measures by the agency.
ii) The evidence resulted from the public safety
officer's predisciplinary response or procedure.
11)States that the Legislature hereby finds and declares that
the rights and protections provided to peace officers under
this the Peace Officer Procedural Bill of Rights constitute a
matter of statewide concern. The Legislature further finds
and declares that effective law enforcement depends upon the
maintenance of stable employer-employee relations, between
public safety employees and their employers. In order to
assure that stable relations are continued throughout the
state and to further assure that effective services are
provided to all people of the state, it is necessary that this
chapter be applicable to all public safety officers, as
defined in this section, wherever situated within the State of
California. (California Government Code Section 3301.)
12)Provides for the creation of the San Francisco BART District,
comprising the territory lying within the boundaries of the
Counties of Alameda, Contra Costa, Marin, San Francisco, and
San Mateo. (California Public Utilities Code Section 28600.)
13)States that the government of the BART District shall be
vested in the board of directors. (California Public
Utilities Code Section 28730.)
14)Provides that each member of the BART Board shall be selected
in accordance with the articles of the Public Utilities Code
and shall be a resident and registered voter of the county
from which appointed. (California Public Utilities Code
Section 28731.) Additionally, members of boards of
supervisors, mayors, or members of city council may also serve
contemporaneously as members of the BART Board. (California
Public Utilities Code Section 28731.5.)
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15)Establishes the BART Police as employees of the BART District
as a "suitable security force." (California Public Utilities
Code Section 28767.5.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 11586 will
establish an Office of Independent Police Auditor, reporting
directly to the Board, to investigate complaints filed by
members of the public against BART Police officers. The
Auditor will have the authority to investigate complaints or
allegations of on-duty misconduct by BART District Police
officers. The Auditor will also have the authority to reach
independent findings as to the validity of each complaint, and
to recommend appropriate disciplinary action against police
officers for confirmed citizen complaints."
2)Background : According to the background provided by the
author, "On January 1, 2009, Oscar Grant, III, an unarmed man,
was shot and killed by a BART police Officer under
questionable circumstances. As a result of the Oscar Grant
shooting, the BART Police Department Review Committee was
established to investigate the incident. The BART Board
commissioned the Meyers Nave law firm to conduct an
independent internal affairs investigation into the actions of
the BART police officers involv3d in the New Year's Day
shooting. The report issued by the Meyer Nave firm revealed
the need for citizen oversight of the BART police Department."
3)BART's Citizen Oversight Model : BART created and the Board
voted on a "BART Citizen Oversight Model" plan. While the
basic concepts of the plan are included in this bill, much of
the plan is not reflected in this bill. In particular, this
bill leaves the final arbitration of a complaint within the
hands of the BART General Manager rather than an outside body.
Likewise, this bill relegates the "citizen review board" to
an advisory role, and makes the creation of the citizen review
board discretionary. This, despite the fact that the BART
Board voted on and unanimously adopted the following provision
in its own plan:
"If the Citizen Board disagrees with the General Manager with a
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super (2/3) majority, they may appeal to the BART Board of
Directors. All reports will be submitted to the BART Board of
Directors, who will render a decision in a closed personnel
session. All of the BART Board of Directors' decisions will
require a super (2/3) majority of the BART Board of Directors
for approval. In a confidential personnel session, the BART
Board will notify the Citizen Board, Auditor, General Manager,
and Chief of Police. The Chief of Police will implement the
decision of the Board of Directors, which will be final."
[BART Citizen Oversight Model, (Exhibit A), Chapter
2-06(B)(v).]
This crucial provision of the BART Plan is noticeably absent
from this bill.
4)No Change in the Authority to Discipline : This bill creates
an office of an independent police auditor for the purpose of
investigating complaints by members of the public against BART
district police officers. The powers of the auditor are:
a) To investigate complaints against district police
officers for alleged on-duty misconduct, within limits to
be set by the BART Board.
b) To reach independent findings as to the validity of
complaints.
c) Permits the auditor to recommend disciplinary action
against district police officers for those complaints which
have been sustained.
Nothing in this bill permits the auditor, or any body outside
of the BART Police Department, to actually impose discipline.
The authority to discipline members of the BART Police
Department will be left to the BART Police Department and the
BART General Manager. Effectively, this bill will continue
the current policy of permitting the BART Police Department to
regulate and discipline itself with no independent oversight
body.
5)Independence : This bill requires the creation of an
"independent police auditor" but fails to create guidelines
that ensure that the auditor is, in fact, independent. This
bill does not require that the office of the auditor is in any
way separate from the BART Police Department. Under this
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bill, the auditor himself or herself could be a member, or
former member, of the BART Police Department. Likewise, the
BART Board could create the office of the "independent" police
auditor as a branch of the BART Police Department itself.
Other than the use of the word "independent" in the
description, nothing in this bill ensures that the auditor is,
in fact, independent of the BART Police Department.
6)Discretionary "Citizen Review Board" : This bill permits the
BART Board of Directors to, by resolution, create a "citizen
review board" to participate in recommending disciplinary
action, if any, within the auditor's authority. The creation
of this "citizen review board" is completely discretionary and
not required by this bill. Furthermore, the citizen review
board is only empowered with the ability to make
recommendations to an auditor who has no authority to impose
disciplinary action. Effectively, the "citizen review board"
(if ever created) may make recommendations to the auditor, who
makes recommendations to the BART Police Department about how
they should discipline themselves in a particular case.
7)Officer Confidentiality is Maintained by this Legislation :
Nothing in this bill effects the California Supreme Court
decision in Copley Press, Inc. v. Superior Court. In Copley,
a newspaper in San Diego sought records through a public
records request from a public commission. The records were
related to the facts and circumstances and what discipline was
ordered of an officer for the failure to arrest a suspect in a
domestic violence incident despite having probable cause to do
so, the failure to prepare a written report documenting the
incident, and dishonesty in falsely indicating in the patrol
log that the victim bore no signs of injury and that the
suspect was "gone on arrival."
The Copley Court was considering whether or not the California
Public Records Act (CPRA) requires disclosure of records of a
county civil service commission relating to a peace officer's
disciplinary matter. The Supreme Court concluded that the
Penal Code, as written, exempts peace officer personnel
records from disclosure requirements under the CPRA. The
Court also stated that the commission's files were
confidential files of the employing agency within the meaning
of Penal Code. The Court also ruled that the press has no
constitutional right of access to peace officer personnel
records because the California Constitution specifically
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exempts such records and there is no First Amendment right to
particular government information.
Previous legislation by this Committee in the previous
legislative session, SB 1019 (Romero) and AB 1648 (Leno),
sought to abrogate this decision. Those bills sought to give
the public access to the disciplinary hearings as was afforded
previous to the decision in Copley. AB 1648 was held in this
Committee; SB 1019 failed passage in this Committee, was
granted reconsideration, and was returned to the Chief Clerk
of the Assembly.
Unlike the previous efforts to abrogate Copley, this bill
would abide by the parameters set forth by the California
Supreme Court. All hearings would be confidential, and
officer privacy would not be at issue.
8)Argument in Support : According to the Peace Officers Research
Association of California , "[Our] organization supports this
legislation, which will allow the BART Board of Directors to
create a third party review system, a model similar to the
Citizen Review Programs that have been working successfully in
various cities, such as Berkeley and Oakland. In these
systems, the Civilian Review Bard or Commission independently
investigates complaints against officers and makes
recommendations to the City Administrator. This bill will
give BART the authority to create a system wherein an Auditor
and/or Commission would have investigatory powers over
complaints against officers and would report those findings
and recommendations to the General Manager of the BART Board.
Under this type of system, the General Manager would have the
full and final authority regarding those recommendations and
the imposition of employee discipline. It is important to
note that the General Manager works at the will of the Board,
ensuring that the Board would still have its continued input
into employer-employee relations.
9)Related Legislation: AB 312 (Ammiano) creates an Office of
Citizen Complaints for the BART Police Department. AB 312 is
set for hearing by this Committee today.
REGISTERED SUPPORT / OPPOSITION :
Support
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Peace Officers Research Association of
California
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744