Public Safety Officers Procedural Bill of Rights Section 3303(G) does not Require Automatic Disclosure of Reports and Complaints Prior to any Further Interrogation of an Officer Under Investigation

In Oakland Police Officers’ Ass’n v. City of Oakland,[1] the California First District Court of Appeal concluded that the Public Safety Officers Procedural Bill of Rights, Government Code Section 3303(g) does not require automatic disclosure of reports and complaints prior to any further interrogation of an officer under investigation.  Instead, the investigating agency’s disclosure obligations should be guided by whether otherwise disclosable materials are designated as confidential.

Background

In December 2017, a citizen filed a complaint against officers from the Oakland Police Department (the “Department”) conducting a mental health welfare check.  The citizen alleged, among other things, unlawful search and seizure and excessive use of force.  After an internal investigation, the Department cleared the officers of misconduct.  As part of the Department’s investigation, internal affairs took the citizen’s statement and reviewed existing body worn camera footage and relevant documents.  The Department separately interrogated the officers and cleared the officers of misconduct in June 2018.

The Oakland Community Police Review Agency (the “Agency”) is a civilian oversight agency with independent authority to investigate claims of police misconduct.  Conducting its own investigation, the Agency notified each of the officers that they would be re-interviewed concerning the same December 2017 incident.

Before the Agency’s formal interrogation of the officers, counsel for the officers sought discovery of all “reports and complaints” prepared or compiled by investigators pursuant to Section 3303, subdivision (g), of the Public Safety Officers Procedural Bill of Rights Act (Government Code section 3300 et seq., “POBRA”).  Although the Agency agreed to provide recordings and transcribed notes from the Department’s prior interrogations, the Agency refused to disclose any other materials.  Based on its investigation, the Agency determined that officers knowingly violated the complainant’s civil rights and recommended discipline.  The Agency also found that the officers gave misleading statements to investigators, omitted material details, and worked together in an attempt to conceal their misconduct.

Oakland Police Officers’ Association and the officers filed a petition for writ of mandate alleging that the City of Oakland (the “City”) violated their procedural rights by refusing to disclose all relevant “reports and complaints” prior to subsequent interrogations by the Agency.  The Fourth District Court of Appeal had previously considered the same issue in Santa Ana Police Officers’ Association v. City of Santa Ana (4th Dist. 2017) 13 Cal.App.5th 317, 328 (“City of Santa Ana”), holding that POBRA requires the disclosure of such materials after an initial interrogation and “‘prior to any further interrogation.’”  Feeling constrained by City of Santa Ana, the trial court granted the petition, notwithstanding the conflict between City of Santa Ana’s holding and the Supreme Court’s reasoning in Pasadena Police Officers’ Association v. City of Pasadena (“City of Pasadena”) (1990) 51 Cal.3d 564 that “granting discovery before interrogation could frustrate the effectiveness of any investigation, whether criminal or administrative” (Id. at p. 578) and would be “contrary to sound investigative practices” (Id. at p. 579).  The trial court ordered the City to disregard the interrogation testimony in any current or future disciplinary proceedings against the officers.  The City appealed.  After briefing was completed, the First District Court of Appeal granted a request by the League of California Cities and the Los Angeles County Police Chiefs’ Association to file an amicus brief supporting the City’s position.

Discussion

The California First District Court of Appeal initially observed that POBRA “sets forth a list of basic rights and protections which must be afforded all peace officers [citation] by the public entities which employ them.  It is a catalogue of the minimum rights [citation] the Legislature deems necessary to secure stable employer-employee relations.”  (Baggett v. Gates (1982) 32 Cal.3d 128, 135.)  POBRA “is concerned primarily with affording individual police officers’ certain procedural rights during the course of proceedings which might lead to the imposition of penalties against them.”  (White v. County of Sacramento (1982) 31 Cal.3d 676, 681.)  POBRA’s Section 3303 “prescribes protections that apply when a peace officer is interrogated in the course of an administrative investigation that might subject the officer to punitive action, such as ‘dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.’”  (City of Pasadena, supra, 51 Cal.3d at p. 574, quoting Section 3303.)

The Court of Appeal noted that the issue here was the interpretation of disclosure requirements described in Section 3303, subdivision (g), and in particular whether investigative reports or complaints must be disclosed to a peace officer under investigation for misconduct prior to any further interrogation of that officer.

Subdivision (g) prescribes rules for the discovery of materials related to an interrogation of a peace officer for alleged misconduct.  It provides as follows:  “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.”  (Italics added.)

California Supreme Court’s Reasoning in City of Pasadena

In City of Pasadena, the Supreme Court considered the “narrow issue” of whether subdivision (g) (then subdivision (f)) grants “preinterrogation discovery rights to a peace officer who is the subject of an internal affairs investigation.”  (City of Pasadena, supra, 51 Cal.3d at pp. 568–569.)  The Supreme Court concluded that “in allowing an officer under administrative investigation access to reports and complaints, the Legislature intended the right to such access to arise after, rather than before, the officer’s interrogation.”  (City of Pasadena, supra, 51 Cal.3d at p. 569.)  Considering the statutory language, the Court acknowledged that subdivision (f) (now subdivision (g) of Section 3303) does not specify when an officer’s entitlement to “reports and complaints” arises.  However, the Court noted that the provision also grants an officer access to any recording of the officer’s interrogation, and to transcribed stenographer’s notes memorializing the interrogation, both of which logically could only be provided after an interrogation.  Moreover, since “the Legislature placed the provision regarding disclosure of reports and complaints and the provision specifying entitlement to transcribed notes in the same sentence in subdivision [(g)],” the Court determined “that the Legislature must have intended the discovery rights in each instance to be coextensive, entitling the officer to copies of reports and complaints and transcribed stenographer’s notes after the interrogation.”  (Id. at p. 576.)

The Supreme Court further reasoned that when the Legislature has required that certain acts described in Section 3303 be performed before the interrogation, it used the words “‘prior to.’” [2]  (City of Pasadena, supra, 51 Cal.3d at p. 576.)  In contrast, “the words ‘prior to’ do not appear in that part of subdivision [(g)] requiring disclosure of reports and complaints.”  (Ibid.)  “When the Legislature ‘has employed a term or phrase in one place and excluded it in another, it should not be implied where excluded.’”  (Ibid.)  Thus, the omission of the phrase “prior to” in the sentence mandating disclosure of reports and complaints indicated that the Legislature intended for such disclosures to occur after an interrogation.  (Ibid.)

The Supreme Court found support for its textual analysis in considering the legislative purpose underlying POBRA, specifically the Legislature’s intent to strike a balance between safeguarding a peace officer’s procedural rights and maintaining “public confidence in the trustworthiness and integrity of its police force” through prompt, thorough, and fair investigations of officer misconduct.  (City of Pasadena, supra, 51 Cal.3d at pp. 572, 577.)  The Court stated that POBRA revealed “a recognition by the Legislature that a law enforcement agency should retain greater latitude when it investigates suspected officer misconduct than would be constitutionally permissible in a criminal investigation.”  (Id. at p. 577.)  However, even in a criminal investigation, the right to discovery “does not arise until charges have been filed and the suspect becomes an accused.”  (Id. at p. 578.)  The Court accordingly concluded that disclosure of investigative reports and other materials before an interrogation was “not essential to the fundamental fairness of an internal affairs investigation” and, indeed, was “without precedent.”  (Ibid.)  Moreover, granting discovery before interrogation “could frustrate the effectiveness of any investigation,” “might color the recollection of the person to be questioned or lead that person to conform his or her version of an event to that given by witnesses already questioned,” and “would be contrary to sound investigative practices.”  (Id. at pp. 578, 579.)

The Supreme Court therefore found that “entitlement to preinterrogation discovery is neither apparent from the language of subdivision [(g)] nor fundamental to the fairness of an internal affairs investigation,” and that mandating such discovery “might jeopardize public confidence in the efficiency and integrity of its police force.”  (City of Pasadena, 51 Cal.3d at p. 579.)  The Supreme Court thus held that “the Legislature intended subdivision [(g)] to require law enforcement agencies to disclose reports and complaints to an officer under an internal affairs investigation only after the officer’s interrogation.”  (Ibid.)

First District’s Analysis of Section 3303(g)’s Disclosure Requirements Before A Subsequent Interrogation

Considering the statutory text, the First District Court of Appeal in the instant case noted only one express timing directive in the statutory language of Section 3303(g) – namely, a police officer whose interrogation has been recorded must be granted access to that recording “if any further proceedings are contemplated or prior to any further interrogation at a subsequent time.”  (Section 3033, subd. (g), italics added.)  In contrast, stated the Court, the plain language of the statute “does not specify when an officer’s entitlement to the reports and complaints arises” (City of Pasadena, supra, 51 Cal.3d at p. 575); the discovery obligation for the other three types of material—stenographer’s notes, reports, and complaints—is contained in the next sentence of subdivision (g), and does not provide a time frame for disclosure.

Citing City of Pasadena, the First District recalled the statutory canon that “[w]hen the Legislature ‘has employed a term or phrase in one place and excluded it in another, it should not be implied where excluded.’”  (City of Pasadena, supra, 51 Cal.3d at p. 576.)  Considering this canon, the First District, like the Supreme Court in City of Pasadena, found the absence of the phrase “prior to” in the sentence referencing “reports and complaints” telling, particularly given that, when the Legislature wanted certain acts described in Section 3303 to take place before an interrogation, it had used the words “‘prior to.’”  The First District accordingly found that the Legislature did not intend to establish a post-interrogation deadline for the disclosure of “reports or complaints” as it had in the preceding sentence for tape recordings “prior to any further interrogation.”  (Section 3303, subd. (g).)

The First District disagreed with the Fourth District’s decision addressing the same issue in Santa Ana Police Officers’ Association v. City of Santa Ana, supra, 13 Cal.App.5th 317, in which the Fourth District had concluded that, “[b]ecause discovery rights to reports and complaints are coextensive with discovery rights to tape recordings of interrogations, and tapes recordings must be produced ‘prior to any further interrogation,’ then it follows that reports and complaints also must be produced ‘prior to any further interrogation.’”  (Id. at p. 328.)  The First District maintained that a plain reading of the statute did not support the Fourth District’s interpretation, and that the Fourth District’s view ignored the Supreme Court’s own analysis of the omitted phrase ‘prior to’ in that part of subdivision (g) discussing the disclosure of “reports and complaints.”

The First District concluded that the plain language of subdivision (g) thus establishes only that a police officer is entitled to nonconfidential stenographer’s notes, reports, and complaints “[w]hen [the officer] is under investigation and subjected to interrogation … that could lead to punitive action.”[3] – i.e., at some point during the investigation.[4]  Yet unresolved was the question of when should such materials be discoverable.  In its appellate briefing, the City contended that “the commencement of [a] formal disciplinary hearing[]” is a reasonable deadline to disclose “reports and complaints” against an officer, i.e., at the end of the agency’s investigation.  Amici curae joined in this contention.  The Court, however, came to a different conclusion based on the materials’ confidentiality status.

Confidentiality as the Basis for Disclosure of Section 3303(g) Discovery Materials

The First District noted that Section 3303(g) states that an agency’s disclosure obligations extend only to nonconfidential stenographer’s notes, reports, and complaints:  “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,” (Section 3303, subd. (g); italics added.)

Subdivision (g) “empowers the investigating agency to deem reports confidential and excepts items so designated from the agency’s disclosure obligation” Gilbert v. City of Sunnyvale (6th Dist. 2005) 130 Cal.App.4th 1264, 1290.  The First District stated that the statute places no express restrictions on an investigating agency’s power to designate stenographer’s notes, reports, and complaints as confidential.  Nor does the statute prohibit an agency from de-designating a record previously deemed confidential when the basis for confidentiality no longer exists (such as the end of the investigation, for example).

Thus, under this construction of subdivision (g), which the First District found consistent with City of Pasadena, no materials identified in subdivision (g) may be disclosed prior to an initial interrogation of a peace officer.  Thereafter, any tape recording made of the interrogation must be disclosed “if any further proceedings are contemplated or prior to any further interrogation at a subsequent time.”  (Section 3033, subd. (g).)  Finally, stenographer’s notes, reports, and complaints should also be disclosed upon request unless the investigating agency designates any such material as confidential to protect the integrity of an ongoing investigation.

The First District explained that with this view, it was thus possible that an investigating agency might deem it necessary to withhold the recordings and stenographer’s notes of other officer interrogations or witness interviews from an officer under investigation during an active investigation to preserve the confidentiality of those discussions.  Reports and complaints might also be withheld if disclosure would reveal confidential sources or other sensitive information.  If, however, punitive action is contemplated at the conclusion of an investigation, the agency must decide whether to de-designate and disclose any confidential materials to the officer or decline to bring misconduct charges on the basis of those materials.

The First District noted that subdivision (g) also provides in part:  “No notes or reports that are deemed to be confidential may be entered in the officer’s personnel file.”  The Court explained that this provision indicates that “the employing department may not make adverse personnel decisions concerning the officer based on reports, or the portions thereof, deemed confidential and not made available to the officer.”  (Gilbert, supra, 130 Cal.App.4th at p. 1290.)  After a review of Section 3303’s legislative history, the First District found the history supported this construction based on the confidentiality status of materials.

Finally, the Court declared that a construction of Section 3303(g) which automatically requires disclosure of reports and complaints “prior to any further interrogation at a subsequent time” would undermine a core objective under POBRA of fostering public confidence in the state’s law enforcement agencies.  The First District stated that mandating the disclosure of reports and complaints during an active investigation of officer misconduct prior to the subsequent interrogation of an officer could severely hamper the agency’s investigation, and therefore undermine the public’s confidence in the integrity of the law enforcement agency.  Granting premature discovery during an investigation could “frustrate the effectiveness” of the investigation, thereby impairing “the reliability of such a determination and the effectiveness of the agency’s efforts to police itself.”  (City of Pasadena, supra, 51 Cal.3d at p. 578.)

However, the Court found that a reading of subdivision (g) which requires disclosure of nonconfidential materials upon request while permitting an investigating agency to withhold confidential materials during an investigation would strike the proper balance between “fundamental fairness for police officers” and “the necessity for internal affairs investigations to maintain the efficiency and integrity of the police force serving the community.”  (City of Pasadena, supra, 51 Cal.3d at p.572.)  The First District stated that the Supreme Court’s observations in City of Pasadena applied with equal force under the circumstances here involving the civilian Agency, which has independent oversight authority to investigate claims of police misconduct in the City of Oakland.  The Court of Appeal agreed with the City that “the Agency’s very existence is consonant with POBRA’s purpose to improve the public’s confidence in Oakland’s police force.”  The First District explained that to require an independent investigative agency to disclose notes, reports or complaints in its possession before it could interrogate police officers itself would hamstring investigators by allowing officers to alter their testimony in light of the disclosures, casting doubt on the integrity and seriousness of the investigation.

Accordingly, the First District reversed the trial court’s judgment and remanded with instructions to the trial court to determine whether the City had a basis for withholding otherwise discoverable reports and complaints due to their confidential nature as discussed here.

HOW THIS AFFECTS YOUR AGENCY

Agencies will note the First District’s careful analysis and support of the Supreme Court’s City of Pasadena decision in reaching its conclusion.  The First District firmly rejected the Fourth District’s construction of Section 3303(g) in City of Santa Ana, which required disclosure of internal affairs file materials prior to any second interrogation of a peace officer.  Following the Court’s decision, in City of Santa Ana, this issue was somewhat unclear in consideration of the City of Pasadena decision.  The Court, here, has resolved that apparent conflict between the statutory construction placed on Section 3303(g) by the Fourth District and the City of Pasadena decision.

With conflicting District Court of Appeal decisions concerning the disclosure requirements of Section 3303(g), trial courts are free to select the decision that they determine contains the better reasoned interpretation of the law.  However, as a practical matter, a superior court ordinarily will follow an appellate opinion emanating from its own district.  Superior courts in other appellate districts may pick and choose between conflicting lines of authority.  With this split in the district courts of appeal, there is a good chance that the California Supreme Court may take this issue up for final determination.  In the meantime, agencies should consult with their legal counsel concerning this issue should it arise in the course of an internal affairs investigation.

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 jrt@jones-mayer.com

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] 2021 Cal. App. LEXIS 348 (1st Dist. Apr. 26, 2021).

[2] See, e.g., Section 3303, subd. (c): “[t]he public safety officer … shall be informed of the nature of the interrogation prior to any interrogation.”

[3] See City of Pasadena, 51 Cal.3d at p. 586, discussing introductory paragraph to Section 3303.

[4] See City of Pasadena, 51 Cal.3d at p. 575, noting that subdivision (g) “defines only disclosure requirements incident to an investigation; it does not address an officer’s entitlement to discovery in the event he or she is administratively charged with misconduct.”