BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
1
0
3
SB 1032 (Wright) 2
As Introduced February 12, 2010
Hearing date: April 13, 2010
Penal Code
SM:dl
THE OFFICE OF THE INSPECTOR GENERAL AND THE PUBLIC SAFETY
OFFICER'S PROCEDURAL BILL OF RIGHTS
HISTORY
Source: California Correctional Supervisors Organization
Prior Legislation:SB 174 (Strickland) - Chap. 35, Statutes of
2009
SB 1352 (Romero) - Chap. 734, Statutes of 2004
SB 868 (Wright) - Chap. 918, Statutes of 1999
SB 1462 (Maddy) - Chap. 766, Statutes of 1994
SB 328 (Maddy) - 1994, Vetoed
ABx1 39 (Polonco) - 1994, died in the Senate
Support: California Narcotics Officers' Association; California
Peace Officers' Association; California Police Chiefs'
Association
Opposition:None known
KEY ISSUE
(More)
SB 1032 (Wright)
PageB
SHOULD THE ENFORCEMENT PROVISIONS CONTAINED IN GOVERNMENT CODE
SECTION 3309.5, PERTAINING TO VIOLATIONS OF THE PUBLIC SAFETY
OFFICERS PROCEDURAL BILL OF RIGHTS ACT, APPLY TO THE INSPECTOR
GENERAL?
PURPOSE
The purpose of this bill is to provide that the enforcement
provisions contained in Government Code section 3309.5,
pertaining to violations of the Public Safety Officers
Procedural Bill of Rights Act, would apply to the Inspector
General.
Existing law establishes the independent Office of the Inspector
General which shall not be a subdivision of any other
governmental entity. The Governor shall appoint, subject to
confirmation by the Senate, the Inspector General to a six-year
term. The Inspector General may not be removed from office
during that term, except for good cause. (Penal Code 6125.)
Existing law provides that the Inspector General during regular
business hours or at any other time determined necessary by the
Inspector General, shall have access to and authority to examine
and reproduce any and all records, and to examine the bank
accounts, money, or other property of the Department of
Corrections and Rehabilitation for any audit, investigation,
inspection, or contemporaneous oversight. Any officer or
employee of any agency or entity having these records or
property in his or her possession or under his or her control
shall permit access to, and examination and reproduction thereof
consistent with the provisions of this section, upon the request
of the Inspector General or his or her authorized
representative. (Penal Code 6126.5(a).)
Existing law provides that for the purpose of conducting any
audit, investigation, inspection, or contemporaneous oversight,
(More)
SB 1032 (Wright)
PageC
the Inspector General or his or her authorized representative
shall have access to the records and property of any public or
private entity or person subject to review or regulation by the
public agency or public entity being audited, investigated, or
overseen to the same extent that employees or officers of that
agency or public entity have access. No provision of law or any
memorandum of understanding or any other agreement entered into
between the employing entity and the employee or the employee's
representative providing for the confidentiality or privilege of
any records or property shall prevent disclosure, as specified.
Access, examination, and reproduction consistent with the
provisions of this section shall not result in the waiver of any
confidentiality or privilege regarding any records or property.
(Penal Code 6126.5(b).) Any officer or person who fails or
refuses to permit access, examination, or reproduction, as
required by this section, is guilty of a misdemeanor. (Penal
Code 6126.5(c).)
Existing law provides that the Inspector General may require any
employee of the Department of Corrections and Rehabilitation to
be interviewed on a confidential basis. Any employee requested
to be interviewed shall comply and shall have time afforded by
the appointing authority for the purpose of an interview with
the Inspector General or his or her designee. The Inspector
General shall have the discretion to redact the name or other
identifying information of any person interviewed from any
public report issued by the Inspector General, where required by
law or where the failure to redact the information may hinder
prosecution or an action in a criminal, civil, or administrative
proceeding, or where the Inspector General determines that
disclosure of the information is not in the interests of
justice. It is not the purpose of these communications to
address disciplinary action or grievance procedures that may
routinely occur. If it appears that the facts of the case could
lead to punitive action, the Inspector General shall be subject
to Sections 3303, 3307, 3307.5, 3308, and 3309 of the Government
Code as if the Inspector General were the employer, except that
the Inspector General shall not be subject to the provisions of
any memorandum of understanding or other agreement entered into
between the employing entity and the employee or the employee's
(More)
SB 1032 (Wright)
PageD
representative that is in conflict with, or adds to the
requirements of, Sections 3303, 3307, 3307.5, 3308, and 3309 of
the Government Code . (Penal Code 6126.5(d), emphasis added.)
Existing law establishes the Public Safety Officers Procedural
Bill of Rights (POBR). POBR provides procedural protections for
peace officers in employment-related matters. (Gov. Code
3300, et seq.)
Existing law provides that it is unlawful for any public safety
department to deny or refuse to any public safety officer the
rights and protections guaranteed to him or her by the POBR and
that the superior court shall have initial jurisdiction over any
proceeding brought by any public safety officer against any
public safety department for alleged violations of the POBR.
(Gov. Code 3309.5(a) and (c).)
Existing law provides that in any case where the superior court
finds that a public safety department has violated any of the
provisions of this chapter, the court shall render appropriate
injunctive or other extraordinary relief to remedy the violation
and to prevent future violations of a like or similar nature,
including, but not limited to, the granting of a temporary
restraining order, preliminary injunction, or permanent
injunction prohibiting the public safety department from taking
any punitive action against the public safety officer.
Additionally,
If the court finds that a bad faith or frivolous action
or a filing for an improper purpose has been brought
pursuant to this chapter, the court may order sanctions
against the party filing the action, the party's attorney,
or both, pursuant to Sections 128.6 and 128.7 of the Code
of Civil Procedure. Those sanctions may include, but not be
limited to, reasonable expenses, including attorney's fees,
incurred by a public safety department as the court deems
appropriate. Nothing in this paragraph is intended to
subject actions or filings under this section to rules or
standards that are different from those applicable to other
civil actions or filings subject to Section 128.6 or 128.7
(More)
SB 1032 (Wright)
PageE
of the Code of Civil Procedure.
In addition to the extraordinary relief afforded by this
chapter, upon a finding by a superior court that a public
safety department, its employees, agents, or assigns, with
respect to acts taken within the scope of employment,
maliciously violated any provision of this chapter with the
intent to injure the public safety officer, the public
safety department shall, for each and every violation, be
liable for a civil penalty not to exceed twenty-five
thousand dollars ($25,000) to be awarded to the public
safety officer whose right or protection was denied and for
reasonable attorney's fees as may be determined by the
court. If the court so finds, and there is sufficient
evidence to establish actual damages suffered by the
officer whose right or protection was denied, the public
safety department shall also be liable for the amount of
the actual damages. Notwithstanding these provisions, a
public safety department may not be required to indemnify a
contractor for the contractor's liability pursuant to this
subdivision if there is, within the contract between the
public safety department and the contractor, a "hold
harmless" or similar provision that protects the public
safety department from liability for the actions of the
contractor. An individual shall not be liable for any act
for which a public safety department is liable under this
section. (Gov Code 3309.5(d) and (e).)
This bill would provide that the enforcement provisions
contained in Government Code section 3309.5, pertaining to
violations of the Public Safety Officers Procedural Bill of
Rights Act, would apply to the Inspector General. These
provisions establish jurisdiction for any claimed violation in
the Superior Court and provide a variety of civil remedies that
a court may grant to address any violation.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
(More)
SB 1032 (Wright)
PageF
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
(More)
SB 1032 (Wright)
PageG
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The
state of emergency declared by Governor Schwarzenegger
almost three years ago continues to this day,
California's prisons remain severely overcrowded, and
inmates in the California prison system continue to
languish without constitutionally adequate medical and
mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
---------------------------
<1> Three Judge Court Opinion and Order, 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 (August 4, 2009).
(More)
SB 1032 (Wright)
PageH
According to the author:
This bill will correct a flaw in the original
legislation creating the Office of Inspector General
(OIG). In the original legislation the Peace Officers
Bill of Rights (POBR) was referenced requiring the OIG
to follow the provisions of POBR; however the original
drafters left off the enforcement section of POBR
rendering the requirement of the OIG to comply with
POBR, with no penalty for not following it. In a
recent court case the Judge noted that while the OIG
violated the provisions of POBR, because the penalty
section was omitted there was no legal remedy for this
violation. The court further indicated that the OIG
should have followed POBR.
2. The Public Safety Officer's Procedural Bill of Rights Act
The Public Safety Officer's Procedural Bill of Rights Act or
POBR is primarily a labor relations statute. It provides a
catalog of basic rights and protections that must be afforded
all peace officers by the public entities which employ them.
(Runyan v. Ellis (1995) 40 Cal.App.4th 961, 964; Binkley v. City
of Long Beach (1993) 16 Cal.App.4th 1795, 1805.) Penal Code
section 6126.5 states that, in the course of investigating a
case, the Inspector General may require employees of CDCR to
submit to an interview however, if it appears that the facts of
the case could lead to punitive action, the Inspector General is
bound by the provisions of POBR "as if the Inspector General
were the employer." (Penal Code 6126.5(d).)
(More)
In CCPOA v. State of California, the Court of Appeal stated:
Section 3303 . . . describes in considerable detail
the conditions that must be followed "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 . . .
." ( 3303.) In essence, the statute requires that,
prior to interrogation, an officer must be informed of
the identity of the interrogators and the nature of
the investigation. The interrogation must be
conducted at a reasonable hour, for a reasonable
period of time, may not include offensive language,
and may be tape-recorded by the officer. The right to
representation arises when the interrogation focuses
on matters likely to result in punitive action.
The Act was not designed to provide public safety
officers any greater right than other persons in
connection with investigations by law enforcement
agencies in which they are not employed. By its own
terms, the protections of section 3303 apply only to
investigations "by [the public safety officer's]
commanding officer, or any other member of the
employing public safety department, that could lead to
punitive action . . . ." As used in the statute,
"punitive action means any action that may lead to
dismissal, demotion, suspension, reduction in salary,
written reprimand, or transfer for purposes of
punishment." (Ibid.) This language was held in
People v. Velez (1983) 144 Cal. App. 3d 558 [192 Cal.
Rptr. 686] to render section 3303 inapplicable to
interrogations of public safety officers by
representatives of a law enforcement agency that does
not employ the interrogated officer. (CCPOA v.
California (2000), 82 Cal. App. 4th 294, 306.)
3. Remedies for Violations of the POBR
(More)
SB 1032 (Wright)
PageJ
In CCPOA v. State of California, supra, the plaintiffs, several
prison guards, were being investigated for alleged criminal
conduct at a state prison. The superior court issued a
preliminary injunction against both the justice department (DOJ)
and CDCR. The preliminary injunction was issued to protect
plaintiffs against asserted violations of the Public Safety
Officers Procedural Bill of Rights Act. The appellate court
reversed and modified that ruling, concluding the investigation
violated provisions of the Act and injunctive relief was
therefore appropriate under Gov. Code 3309.5 against CDCR but
not against DOJ. Plaintiffs were not told who would interrogate
them, or given prior notice of the nature of the investigation.
The Court found that the guards were not allowed to consult with
counsel, and were not advised of their constitutional rights.
The Court found that enjoining CDCR from violating the Act's
provisions was sufficient to provide effective relief, since it
was the CDCR's actions that were covered under the Act. The
Court reversed the trial court to the extent the trial court's
injunction included DOJ, finding that it was unauthorized by
3309.5, because DOJ was not the guards' employer.
(More)
Section 3309.5 authorizes injunctive relief only as to
the employing public safety department, which is the
CDC. Nowhere does the statute authorize enjoining the
investigative activities of outside law enforcement
agencies such as the DOJ. Moreover, meaningful relief
does not require inclusion of the DOJ in the
injunction. Enjoining the CDC from violating the
provisions of the act is sufficient to provide
effective relief, since it was the CDC's actions that
rendered the act applicable. (CCPOA v. California,
supra, 82 Cal. App. 4th 294, 312.)
This case illustrates the significance of the fact that the
Inspector General is bound by the provisions of the POBR "as if
the Inspector General were the employer" and also that
injunctive relief is often an appropriate remedy to address a
violation of the POBR. The enforcement provisions of the POBR
are contained in Government Code section 3309.5. For some
reason, the statute which specifically requires the OIG to be
subject to the provisions of the POBR, omitted reference to its
enforcement provisions, that is, those provisions of the POBR
that provide for judicial review of any alleged violations and
authorize the court to impose a variety of remedies. This bill
would add that reference to section 3309.5.
When contacted by the Committee, OIG stated that it does conduct
its investigations of peace officers in conformity with POBR.
However, OIG believes that, because the main purpose of section
3309.5 is to protect the officer from being disciplined based on
an investigation where his or her rights were violated, to
remedy a violation an injunction would necessarily have to be
issued against the public safety employer, not the OIG who has
no authority to discipline.
However, section 3309.5 not only seeks to protect an officer
from being disciplined based on an investigation where his or
her rights under the POBR were violated, it also authorizes the
court to apply appropriate remedies "to prevent future
violations of a like or similar nature." Although OIG is not
(More)
SB 1032 (Wright)
PageL
authorized to discipline a peace officer, if it were to conduct
its investigations in violation of the POBR, that alone is a
violation of the law and a court might well find it appropriate
and necessary to enjoin OIG "to prevent future violations of a
like or similar nature." Because the OIG is bound by statute to
conduct its investigations in accordance with the provisions of
the POBR, it seems anomalous for the same statute to omit the
provisions that are designed to address any violation of those
procedural protections.
BECAUSE THE OFFICE OF THE INSPECTOR GENERAL IS BOUND TO COMPLY
WITH THE PUBLIC SAFETY OFFICER'S PROCEDURAL BILL OF RIGHTS ACT,
SHOULD THE PROVISIONS DESIGNED TO REMEDY ANY VIOLATION OF THE
ACT ALSO APPLY TO THE OIG?
***************