BILL ANALYSIS Ó
SB 313
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Date of Hearing: July 2, 2013
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 313 ( Leon) - As Amended: April 24, 2013
FOR VOTE ONLY
SUMMARY : Prohibits any public agency from taking any punitive
action against a public safety officer or denying a promotion on
grounds other than merit of an officer because he or she is
placed on a "Brady list," as specified. Specifically, this
bill :
1)Provides that a punitive action, or denial of promotion on
grounds other than merit, shall not be undertaken by any
public agency against any public safety officer because that
officer's name has been placed on a Brady list, or that the
officer's name may otherwise be subject to disclosure pursuant
to Brady v. Maryland, 373 U.S. 83 (1963).
2)States that this section does not prohibit a public agency
from taking punitive action, denying promotion on grounds
other than merit, or taking other personnel action against a
public safety officer based on the underlying acts or
omissions for which that officer's name was placed on a Brady
list, or may otherwise be subject to disclosure pursuant to
Brady v. Maryland, 373 U.S. 83 (1963), if the actions taken by
the public agency otherwise conform to this chapter and to the
rules and procedures adopted by the local agency.
3)Prohibits the introduction of evidence that a public safety
officer's name has been placed on a Brady list, or may
otherwise be subject to disclosure pursuant to Brady v.
Maryland, 373 U.S. 83 (1963) in any administrative appeal of a
punitive action.
4)Provides that evidence that a public safety officer's name was
placed on a Brady list may only be introduced if, during the
administrative appeal of a punitive action against an officer,
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the underlying act or omission for which the officer's name
was placed on a Brady list is proven and the officer is
subject to some form of punitive action. Evidence that a
public safety officer's name was placed on a Brady list shall
only be used for the sole purpose of determining the type or
level of punitive action to be imposed.
5)Defines a "Brady list" as any system, index, list, or other
record containing the names of peace officers whose personnel
files are likely to contain evidence of dishonesty or bias,
which is maintained by a prosecutorial agency or office in
accordance with the holding in to Brady v. Maryland, 373 U.S.
83 (1963).
EXISTING LAW :
1)Creates the Public Safety Officers Procedural Bill of Rights
(POBOR). (Government Code Section 3300 et. seq.)
2)States that, for purposes of the POBOR, "punitive action"
means any action which may lead to dismissal, demotion,
suspension, reduction in salary, written reprimand, or
transfer for purposes of punishment. (Government Code Section
3303.)
3)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 POBOR, or the exercise of any rights
under any existing administrative grievance procedure.
[Government Code Section 3304(a).]
4)States that 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).]
5)States that 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.
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[Government Code Section 3304(b).]
6)States that 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.
[Government Code Section 3304(c).]
7)States that, except as provided, 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.
[Government Code Section 3304(d).]
8)States that 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).]
9)States that notwithstanding the one-year time period specified
in subdivision (d), an investigation may be reopened against a
public safety officer if significant new evidence has been
discovered that is likely to affect the outcome of the
investigation and either the evidence could not reasonably
have been discovered in the normal course of investigation
without resorting to extraordinary measures by the agency or
the evidence resulted from the public safety officer's
pre-disciplinary response or procedure. [Government Code
Section 3304(g).]
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement : According to the author, "Senate Bill 313
address the disturbing trend under which law enforcement
agencies take punitive actions against their officers based
solely on the officers' inclusion on 'Brady' Lists, without
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regard to the facts in an investigation. Senate Bill 313
would prohibit any public agency from taking action against a
public safety officer, on grounds other than the merit of an
officer, because he or she is placed on a Brady List.
"Numerous officers have been subject to punitive action or
denied promotions based on their placement on the Brady List
for alleged misconduct, even if the misconduct did not
actually occur.
"Without uniform criteria for placement on the Brady List across
counties, public safety officers should be evaluated based on
the underlying reasons they are being investigated.
"SB 313 will not prohibit a public agency from taking action
against an officer based on the underlying acts for which that
officer's name was placed on the Brady List.
"It simply ensures that peace officers are fairly evaluated
based on their actions and are afforded due process in
employment decisions."
2)Brady Lists and Disclosure in Criminal Cases : Unlike civil
court cases, there is generally no discovery permitted in
criminal cases in California, except where required by a
specific statute or required by the United States
Constitution. [Penal Code Section 1054(e).] The landmark
case in the area of criminal disclosures is Brady v. Maryland.
[373 U.S. 83 (1963).] In that case and its progeny, the
United States Supreme Court held that due process requires the
disclosure to the defendant of evidence favorable to an
accused that is material either to guilt or punishment. (Id.
at 87.) This requirement for disclosure does not distinguish
between impeachment evidence that reflects on the credibility
of the witness, and direct exculpatory evidence. [U.S v.
Bagley, 473 U.S. 667, 676 (1985).]
The Brady disclosure requirement obligates the prosecutor to
turn evidence of misconduct by a police officer who may be
called as a witness in a case, if that misconduct could
discredit or impeach the officer's testimony. "Impeachment
evidence is exculpatory evidence within the meaning of Brady.
Brady/Giglio information includes 'material . . . that bears
on the credibility of a significant witness in the case.' "
[United States v. Blanco, 392 F.3d 382, 387-388 (9th Cir.
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2004, citations omitted).]
As a result of this obligation, prosecutors' offices have a duty
to seek that information out from other law enforcement
agencies.
"Because the prosecution is in a unique position to obtain
information known to other agents of the government, it may
not be excused from disclosing what it does not know but could
have learned. A prosecutor's duty under Brady necessarily
requires the cooperation of other government agents who might
possess Brady material. In United States v. Zuno-Arce, 44 F.3d
1420 (9th Cir. 1995) (as amended), we explained why "it is the
government's, not just the prosecutor's, conduct which may
give rise to a Brady violation." Exculpatory evidence cannot
be kept out of the hands of the defense just because the
prosecutor does not have it, where an investigating agency
does. That would undermine Brady by allowing the investigating
agency to prevent production by keeping a report out of the
prosecutor's hands until the agency decided the prosecutor
ought to have it, and by allowing the prosecutor to tell the
investigators not to give him certain materials unless he
asked for them." [United States v. Blanco, 392 F.3d 382,
387-388 (9th Cir. 2004).]
The term "Brady list" refers to a list kept by a prosecutor's
office, of police officers for whom the prosecutor's office
has determined evidence of misconduct exists that would have
to be turned over to the defense pursuant to Brady v.
Maryland.
3)Arguments in Support :
a) The Peace Officer Research Association of California
argues, "The Public Safety Officer Procedural Bill of
Rights (POBOR) provides a set of rights and procedural
protections to specified public safety officers. The Act
fails to address a disturbing trend in law enforcement in
which public agencies take punitive actions against their
public safety officer employees based solely on the
officers' inclusion on 'Brady lists' without regard to the
underlying facts.
"There have been numerous instances where a local public
agency has taken punitive action, including the denial of
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promotions and dismissal, against a public safety officer
employee based on that officer's placement onto a Brady
list for alleged misconduct - whether or not the misconduct
actually occurred. As a result in some cases, the
employment of public safety officers is terminated based on
nothing more than allegations of misconduct, which renders
illusory the Public Safety Officers Procedural Bill of
Rights Act.
"The standard for placing public safety officers on Brady
lists varies from county to county. Some counties
implement and maintain a Brady policy with no discernible
standards for inclusion or mechanisms for appeal, which
results in the arbitrary and perpetual placement of public
safety officers on Brady lists. Because prosecutors enjoy
absolute prosecutorial immunity and immunity under the
Eleventh Amendment, I t is impossible to challenge one's
placement on a Brady list, even if that placement was
malicious or made in error.
"SB 313 seeks to stop the unfair practice of taking punitive
action against peace officers for the mere reason of being
placed on the list. Instead, this bill maintains
management's authority to take actions against officers for
the underlying action that caused the officer to be
investigated. Lacking uniform criteria for being placed on
the Brady List, public safety officers should be evaluated
based on their merits and for the underlying reasons they
are investigated."
b) The Correctional Peace Officer Association states, "SB
313 would eliminate the use of placement on a 'Brady' list
as a justification for disciplining public safety officers.
The measure does not, however, restrict the employer from
using the underlying action in employee discipline cases.
"SB 313 would insure that peace officers are disciplined only
for actual behavior. It is almost impossible to challenge
placement on a 'Brady' list due to constitutional
protections enjoyed by prosecutors. SB 313 would restore
protections that are contained in POBOR and which have been
significantly diminished by the use of 'Brady' lists for
disciplinary reasons."
4)Arguments in Opposition :
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a) The California State Sheriffs' Association believes, "SB
313 would prohibit a public agency from taking punitive
action against a public safety officer, or denying
promotion on grounds other than merit, because that officer
has been placed on a Brady list, or whose name may
otherwise be subject to disclosure pursuant to Brady v.
Maryland (1963) 373 U.S. 83.
"Once a law enforcement officer has engaged in misconduct
that requires law enforcement agencies and/or district
attorneys' officers to make disclosures under the United
States Constitution pursuant to Brady, the ability of that
officer to serve a department is compromised. An officer
may no longer be allowed to testify in court because doing
so could subject a criminal case to reversal or subject a
county to civil liability if a wrongful conviction results.
Unfortunately, if an officer is no longer able to testify
under oath, he or she is no longer able to serve reliably
on patrol, effectuate arrests, or file reports. However,
SB 313 would prohibit the reassignment of that officer to
other departmental functions, because that could be
considered punitive. Ultimately, this may result in
untrustworthy and unreliable officers patrolling the
community, undermining the public trust and credibility of
the rest of the department."
b) The California Public Defenders Association argues,
"This bill would prohibit a public agency from taking
punitive action against a public safety officer, or denying
promotion on grounds other than merit, because that
officer's name is placed on a Brady list. The bill would
provide, however, that the public agency may take punitive
or personnel action against a public safety officer based
on the underlying acts or omissions for which that
officer's name was placed on the Brady list, as specified.
The bill would prohibit the introduction of any evidence
that an officer's name was p laced on a Brady list in any
administrative appeal of a punitive action between the
officer and an office or public agency.
"This bill would undermine law enforcement's goal to protect
and serve the public. The vast majority of police officer
works hard and do their very best every single day under
what are often trying circumstances, taking pride in being
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honest and in policing with integrity.
"There are however, a few officers who commit acts of
misconduct that bring shame and disrespect upon themselves
and tarnish the badge. This misconduct is so serious that
prosecutors have determined that the United States
Constitution (as enunciated by the Supreme Court in Brady
v. Maryland (1963) 373 U.S. 73) mandates that malfeasance
be disclosed because of its impact upon the mandate that a
trial be fair. Accordingly, the misconduct that these few
officers commit is fare from trivial, and instead is
serious and egregious, with repercussions fay beyond the
incident in question. Worse still, the few police officer
who engage in this type of misconduct leave their
supervisors with limited choices about how to use them as
the prosecutors who must bring their cases to court are
unable to effectively use them as witnesses. This is
because cases that are filed are harmed when the
prosecution discloses that the arresting officer has a
Brady problem.
"This bill does nothing to protect hard working and honest
officers but instead enable those few damaged officers to
continue their employment even though their arrests might
not be filed and prosecuted because their word simply
cannot be trusted.
"How many officers have a 'Brady Jacket?' The number is
small, microscopic in relation to the total number of law
enforcement officers in this state. Might an officer (in
his or her mind) be unfairly tarnished? At times, yes,
that is possible. Yet it is also unlikely because neither
supervisors nor prosecutors move ahead with Brady
disclosure without serious investigation and thought.
Trivial misconduct is not Brady material. Only the most
serious misconduct which would likely change the outcome of
a trial is considered Brady misconduct."
5)Prior Legislation : AB 2543 (Alejo), of the 2011-12
Legislative Session, was identical to this bill in that AB
2543 prohibited a public agency from taking any punitive
action against a public safety officer because he or she was
placed on a Brady list. AB 2543 failed passage in the Senate
Committee on Public Safety.
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REGISTERED SUPPORT / OPPOSITION :
Support
Peace Officers Research Association of California (Sponsor)
Association for Los Angeles Deputy Sheriffs
Association of Orange County Deputy Sheriffs
California Association of Highway Patrolmen
California Correctional Peace Officers Association
California Fraternal Order of Police
California Statewide Law Enforcement Association
Glendale City Employees Association
Long Beach Peace officers Association
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Los Angeles Probation Officers Union, AFSCME, Local 685
Organization of SMUD Employees
Riverside Sheriffs Association
Sacramento County Deputy Sheriff's Association
San Bernardino Public Association
San Luis Obispo Employees Association
Santa Ana Police Officers Association
Santa Rosa Employees Association
West Sacramento Police Officers Association
Opposition
American Civil Liberties Union
California Association of Joint Powers Authorities
California Police Chiefs Association
California Probation, Parole and Correctional Association
California Public Defenders Association
California State Association of Counties
California State Sheriffs' Association
Lassen County
League of California Cities
Marin County Council of Mayors and Council Members
San Bernardino County Sheriff's Office
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744
SB 313
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