BILL ANALYSIS
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
1032 (Wright)
Hearing Date: 05/03/2010 Amended: 04/27/2010
Consultant: Jacqueline Wong-HernandezPolicy Vote: Public Safety
7-0
_________________________________________________________________
____
BILL SUMMARY: SB 1032 applies enforcement provisions contained
in subdivisions (a) to (d) of Government Code Section 3309.5,
pertaining to violations of the Public Safety Officers
Procedural Bill of Rights Act (POBR), to the Inspector General.
_________________________________________________________________
____
Fiscal Impact (in thousands)
Major Provisions 2010-11 2011-12 2012-13
Fund
Enforcement provisions *Potentially significant increased
litigation costs* General
_________________________________________________________________
____
STAFF COMMENTS: This bill may meet the criteria for referral to
the Suspense File.
Existing law requires any public safety department to grant a
public safety officer the rights and protections guaranteed to
him or her by the POBR, and provides 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).) In overseeing the Department of Corrections (CDCR)
internal affairs investigations, and in conducting
investigations of public safety officers, inspectors from the
Office of the Inspector General (OIG) must comply with the
requirements of POBR as if it were the employer.
The enforcement provisions, however, which provide remedies for
a violation of POBR are not listed in statute as applicable to
the OIG (as an agency that does not actually impose discipline
on a public safety officer). This bill would provide that four
of the five enforcement subdivisions in statute (Gov. Code
3309.5) would apply to the Inspector General. These provisions
establish jurisdiction for any claimed violation in the Superior
Court and provide injunctive or extraordinary relief if the
court decides in favor of the plaintiff. Recent case law has
determined that without enforcement provisions that apply to an
investigating agency that is not the public safety officer's
employer, the court cannot award injunctive or extraordinary
relief to a plaintiff against the agency. Thus, while the OIG is
statutorily required to follow POBR, there is no remedy against
OIG if the agency violates POBR. CDCR can, however, be sued for
using information obtained in violation of POBR to discipline an
officer.
Whether or not the Legislature intended for the enforcement
statute that applies to the employer to also apply to the OIG is
a valid policy consideration, but does not change the fiscal
impact of the bill. Currently, a plaintiff cannot successfully
seek injunctive relief against the OIG, and this bill
specifically allows a plaintiff that ability. In the absence of
this bill, it is extremely unlikely (thought still possible)
that the OIG would have to defend
Page 2
SB 1032 (Wright)
itself in litigation for violating POBR, because there would be
no incentive for officers under investigation to sue the agency
when no remedy can be ordered.
Allowing plaintiffs to seek injunctive and extraordinary relief
from the OIG could result in additional lawsuits. Defending
itself (and general staff participation) in those court
proceedings (which would be mandated by the application of the
enforcement provisions) may incur significant costs to the OIG.
The exact amount will be determined by the number and scope of
the lawsuits. The lawsuits would be a cost specifically
attributable to the bill, because current case law creates a
disincentive to sue the OIG because the court has ruled that a
remedy cannot be ordered. The cost of even one lawsuit would
likely exceed the Suspense limit of $50,000 (as a General Fund
agency) to the OIG for legal defense.
If this bill resulted in egregiously meritless lawsuits, many of
the costs could likely be recovered. Existing law provides that
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 would not be limited to, reasonable expenses,
including attorney's fees, incurred by a public safety
department as the court deems appropriate. The court deciding in
favor of the OIG does not, however, necessarily mean the court
will find the lawsuit was frivolous or in bad faith.
To the extent that the court finds that the OIG violated POBR,
the state would incur the General Fund costs above, and
additional CDCR investigation costs (since the enjoined
information could not be used).