Provided by Gregory P. Palmer
The First District Court of Appeal in Collondrez v. City of Rio Vista, (2021) 61 Cal. App. 5th 1039, issued a decision in which a settlement agreement following a disciplinary action involving a peace officer promised confidentiality in the internal investigative documentation which led to the discipline. The Court of Appeal determined that SB 1421 changed the confidentiality status of the settlement agreement and was thus disclosable under the California Public Records Act (“CPRA”). In so doing, the Court also clarified what the phrase “Final Determination of Sustained Finding” meant in SB 1421.
On August 17, 2017 then police officer John Collondrez handled a hit and run accident report. A subsequent internal affairs investigation concluded he falsified his report of the incident, arrested a suspect without a warrant or probable cause, used excessive force on the arrestee, failed to request medical assistance for the suspect and failed to report his use of a carotid control hold.
The Rio Vista Police Chief issued a Notice of Intent to Terminate Collondrez for violating the city’s personnel rules, including dishonesty, and making false statements. The City Manager conducted the Skelly conference and after hearing the response of Collondrez and his lawyer, upheld the findings and the proposed disciplinary action. Collondrez was then terminated. Collondrez appealed pursuant to the personnel rules and a neutral arbitrator was selected.
Prior to commencing the hearing, the parties settled the case when the City agreed to pay Collondrez $35,000.00 and Collondrez agreed to resign and release all claims arising prior to the settlement.
As is typical in such settlements, the City agreed to maintain all disciplinary notices and reports relating to the events that lead to his termination of employment in Collondrez’s personnel file and to only release them as required by law or upon legal process issued by a court of competent jurisdiction. The City also agreed to notify Collondrez in writing if a request to unseal and release his disciplinary records was received and to provide him with the opportunity to object to the release.
A few months later, on January 1, 2019, SB 1421 became effective. That law amended Penal Code section 832.7 to require disclosure of peace officers’ personnel records pertaining to, among other things, sustained findings of dishonesty or making false reports.
In response to numerous Public Records Act requests, the City produced the records related to Collondrez’s disciplinary action. The City gave Collondrez notice of some, but not all, of the disclosures. Various media outlets then reported the events involving Collondrez and his disciplinary event. At the time of those disclosures Collondrez was employed by Uber. Uber subsequently fired Collondrez based on the media reports of his disciplinary action.
Collondrez sued the City for breach of contract, invasion of privacy, interference with prospective advantage and intentional infliction of emotional distress. The City demurred to the complaint and claimed it was required by law to release the records under Penal Code section 832.7 (SB 1421) and the CPRA.
The trial court found that the disclosures made by the City did not fall within the new statutory exceptions set forth in SB 1421.
The Court of Appeal held that the failure of the City to give Collondrez pre-disclosure notice in each of the instances in which it did make disclosures to the media did not directly lead to Collondrez’s damages. The Court also determined that Collondrez’s assertion that, had the City given him pre-disclosure notice, as promised in the agreement, he could have successfully opposed the media requests and avoided the consequences of the disclosure was speculative. The disclosures here were made pursuant to applicable law, not because the City failed to provide pre-disclosure notice.
Final Determination Under SB 1421
The trial court found that the City’s disclosure was not required by the recent enactment of SB 1421. The trial court reasoned that, although Collondrez did request a Skelly hearing, no sustained finding followed his opportunity for an administrative appeal because Collondrez and the City settled the dispute before a final administrative determination was made. The Court of Appeal disagreed with this interpretation
“Sustained Finding,” as the phrase is used in SB 1421, is defined as “a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal pursuant to sections 3304 and 3304.5 of the Government Code.” As reasonably interpreted, the legislature in enacting SB 1421 specified that an officer must be provided an opportunity for an administrative appeal before records are subject to release under SB 1421, not a completed administrative appeal. The law did not say that the “final determination” had to be based on a completed appeal hearing. The Court of Appeal reasoned that, if the legislature wanted to limit the disclosure to only final determinations made after a completed appeal hearing, it could have easily said so.
The word “opportunity” for an administrative appeal was placed in the law for a reason. Here the opportunity for an administrative appeal was provided to Collondrez but was foregone by virtue of the settlement agreement. This action rendered the “final determination” as the decision of the City Manager following the Skelly hearing upholding the charges of misconduct. The nature of the charges here rendered SB 1421 applicable and required disclosure under the CPRA.
The Court of Appeal also found support for this decision in the overall legislative intent of SB 1421, which was the public’s right to know about serious police misconduct. It held that to adopt Collondrez’s view and the trial court’s view that serious police misconduct by officers would not become known by settling or abandoning such an appeal at any point before its conclusion was an interpretation not contemplated by the new law.
In sum, Collondrez administratively challenged his termination through a Skelly hearing and thereafter availed himself of the opportunity for an administrative appeal. He withdrew that appeal when he settled. The Court determined that action rendered the decision following his Skelly hearing a “final determination” within the meaning of SB 1421. Accordingly, the City properly disclosed the records pursuant to the CPRA and SB 1421.
So What Do We Do Now
It has been the advice of this office since SB 1421 was enacted that the final determination of misconduct and whether such would fall into the disclosure requirements of SB 1421 depended on when the appeal proceedings are concluded. If an officer resigns before an internal affairs investigation is concluded with a sustained finding of serious SB 1421 type misconduct, the records are not subject to release. If an officer, on the other hand, resigns following the conclusion of an internal affairs investigation, which made a sustained finding of serious SB1421 type misconduct, the finding of the internal affairs investigation is the “final determination,” and the records are subject to disclosure under SB 1421.
By the same token, if the officer and the City settle the matter at any point prior to the Skelly hearing, after the Skelly, prior to the administrative appeal hearing, during the hearing or after the hearing but before the hearing officer or arbitrator issues a ruling, it is the last “final determination” of misconduct that controls the disclosures required in SB 1421, unless the City and the officer agree to modify the findings and withdraw the serious SB 1421 type charges as part of the settlement. In that case, SB 1421 disclosure may be avoided. If the charges which are sustained constitute serious SB 1421 type charges and the matter is concluded by resignation or settlement at any point in the process, the status of the charges at the point before resignation or settlement the control the SB 1421 disclosure requirement.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400, or via email, at firstname.lastname@example.org.
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