The Sixth District Court of Appeal has published a decision in favor of the City of Sunnyvale Public Safety Department.
The decision is particularly interesting for its discussion of two issues:
(1) the right of a public employee to receive the materials upon which a disciplinary actions is based prior to a pre-disciplinary (Skelly) appeal meeting, and
(2) the right of a peace officer under Government Code section 3303(g) to receive "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."
Overview
In the case, Randall Gilbert, a police officer, became the subject of an internal affairs investigation when it was discovered during the course of a wide-ranging criminal investigation into an alleged prostitution business, that Gilbert had illegally accessed CLETS and released confidential DMV information. The FBI was involved in the criminal investigation. Its agents were conducting an undercover surveillance of one of the suspects in the investigation when they were spotted by the suspect who started writing down the license plate numbers of the FBI vehicles. A review of computer records revealed that, a few days later, the subject police officer had run searches for the license plate numbers matching the FBI vehicles and then released the information by phone to an unknown individual.
On February 6, 2003, Gilbert was served with a notice of intent to discharge. The notice set forth the grounds for dismissal and the supporting facts. The focus of the disciplinary action was Gilbert's conduct in accessing DMV computer files, obtaining confidential information, and releasing confidential DMV information over the phone to an unidentified female without a legitimate law enforcement purpose. The notice also indicated that, while on duty, Gilbert had accepted a meal without charge from the owner of a bar, the "Crystal Palace," which was the focus of the prostitution investigation.
The notice stated that the disciplinary action was based upon the information outlined in the notice and the internal affairs report. Gilbert was not provided with copies of all of the documents which were referenced in the report. Rather, the notice informed Gilbert that copies of taped witness interviews and any photographs taken during the investigation would be made available to him upon request. In fact, Gilbert requested, and received tapes of the witness interviews as well as tapes of the telephone calls during which he released the confidential DMV information.
On February 20, 2003, a pre-disciplinary meeting was conducted, after which the City Manager terminated Gilbert effective February 28, 2003. Gilbert appealed his termination to the City's Personnel Board.
Several months later, in June 2003, Gilbert's attorney requested and received additional materials, including several crime reports, interview statements, a Department of Justice letter regarding CLETS misuse, and a redacted FBI undercover report. Gilbert and his attorney were informed that additional materials in the possession of the FBI were not being disclosed.
Gilbert filed a petition for writ of mandate alleging, among other things, that:
(1) his rights under Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 were violated because he was not provided all of the documents identified in the internal affairs report prior to his pre-disciplinary meeting on February 20, 2003; and,
(2) his rights under Government Code section 3303(g) were violated because he was not provided all of the reports, complaints, and underlying data concerning the misconduct that was the subject of the internal affairs investigation, "including all of the reports and documents referred to and discussed in that report which were in turn considered and relied upon by the Department in taking action against [him]."
The trial court ruled against Gilbert, and he appealed. However, the Court of Appeal also ruled against Gilbert and affirmed the decision of the trial court.
The Alleged SKELLY Violation
In Skelly, the California Supreme Court determined that procedural due process mandates that before a disciplinary action becomes effective, an employee must be provided "notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline." (Supra, 15 Cal.3d at p. 215).
In support of his claim that his Skelly rights were violated, Gilbert alleged that he was denied, among other documents: (1) the Department's criminal investigation report; (2) a grand jury subpoena for telephone numbers listing all contact telephone numbers for individuals identified as a result of the FBI's investigation; (3) the FBI general activity report for surveillance between June 26, 2000 and March 7, 2002; and (4) a lieutenant's case notes documenting communications between the varying federal agencies involved in the prostitution investigation. These items were all identified in the internal affairs report.
However, the Court of Appeal recited the long line of cases which have "repeatedly recognized that due process is a flexible concept." In particular, the Court of Appeal cited language contained in decisions by the United States Supreme Court and the California Supreme Court to the effect that before an employee is discharged, the employee only has a right to be informed of the nature of the charges against him as well as the substance of the evidence supporting those charges.
Based upon those decision, the Court of Appeal rejected Gilbert's contention that "the word ‘materials' as used in Skelly means each and every document identified in the [internal affairs report] was required to be produced prior to [Gilbert's] pretermination hearing in order to satisfy due process." In doing so, the Court of Appeal stated that "Constitutional principles of due process do not create general rights of discovery."
Thus, in light of the fact that the internal affairs report contained a detailed description of the evidence against Gilbert, and because Gilbert was afforded a full evidentiary appeal hearing following his discharge, the Court of Appeal held that his Skelly rights were not violated.
The Alleged Violation of Section 3303(g) of the Public Safety Officers Procedural Bill of Rights Act
California Government Code section 3303(g) states:
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. [Emphasis added.]
Gilbert alleged that, under Section 3303(g), he was entitled to receive "all the reports, complaints, and underlying data concerning the misconduct that was the subject of that investigation, including all of the reports and documents referred to and discussed in that report which were in turn considered and relied upon by the Department in taking action against [him]."
Gilbert relied primarily upon a decision by the Fourth District Court of Appeal in San Diego Police Officers Assn. v. City of San Diego (2002) 98 Cal.App.4th 779. In that case, the Fourth District equated the right to receive materials under Section 3303(g) with the right to discovery afforded to defendants in criminal proceedings, and held that an officer was entitled to "protections similar to those enjoyed by criminal defendants, including the rights to raw notes [of investigators] and tape-recorded statements of witnesses preserved by City." (Id. at p. 785.) The Fourth District even suggested that the officer was entitled to receive preliminary drafts of an internal affairs report.
In Gilbert, the Sixth District Court of Appeal expressly disagreed with the conclusions reached by the Fourth District Court of Appeals in the San Diego case. The Sixth District stated:
The main purpose of section 3303 is to govern the conduct of an interrogation of an officer who is under investigation, thereby preventing abusive tactics. The only "notes" to which such officer is expressly entitled under section 3303, subdivision (g), are the "notes made by a stenographer," who was implicitly present at the officer's interrogation. Fair treatment of such officer does not require that all the material amassed in the course of the investigation, such as raw notes, written communications, records obtained, and interviews conducted, be provided to the officer following the officer's interrogation. Nothing in the Act's language or legislative history reveals a Legislative intent to provide an officer who is the subject of an administrative internal affairs investigation with broad statutory discovery rights similar to those held by criminal defendants. [Emphasis added.]
The Sixth District Court of Appeal explained:
In the context of an investigation, a "report" would be generally defined as a detailed account or statement (Merriam-Websters Collegiate Dictionary (10th ed.2001) p. 990) and a "complaint" would be generally defined as "a formal allegation against a party" (id. at p. 234). Both "report" and "complaint" suggest a more formal presentation than the raw or original source materials from which a report may be drawn. This construction is consistent with the objectives of the Bill of Rights Act. [Emphasis added.]
Thus, the Sixth District Court of Appeal concluded that Gilbert had not established that his employer had violated his rights under Section 3303(g).
The Practical Impact of the Decision for Your Agency
Some degree of caution must be exercised in relying upon this case. To start, while the case has been published and may be cited, it is not yet final and may be reviewed by the California Supreme Court. Indeed, the fact that the Sixth District Court of Appeal expressly disagreed with the Fourth District Court of Appeal increases the possibility that review will be granted if Gilbert petitions the California Supreme Court. Moreover, if your agency is located within the Fourth District (Counties of Inyo, San Bernardino, Riverside, Orange, San Diego, and Imperial), then you continue to be bound by the Fourth District Court of Appeal's decision in San Diego Police Officers Assn. v. City of San Diego (2002) 98 Cal.App.4th 779.
We also recommend that this decision be looked upon as a "shield" rather than a "sword." Particularly with regard to the disclosure of materials in connection with Skelly notices, we continue to believe that, as a general rule, it is better practice to provide an officer with all of the materials upon which a disciplinary decision is based. However, we are aware that documents are sometimes overlooked in preparing a disciplinary package and/or are not discovered until after a Skelly hearing has been conducted. This decision offers a strong defense against claims that an officer's due process rights have been violated in such circumstances.
We are also aware that it has become common practice for employee attorneys to serve agencies with extensive discovery demands in reliance upon Government Code section 3303(g) and San Diego Police Officers Assn. v. City of San Diego. This decision by the Sixth District Court of Appeal serves as an excellent rebuttal to such claims. The decision indicates that upon request by an officer, and within a reasonable time following his interrogation, an officer should be provided with a copy of the complaint which resulted in the investigation, the investigation report, and any stenographer notes from the officer's interrogation. However, the Gilbert case indicates that the officer is not entitled to preliminary drafts of the report or investigator notes, and is not entitled to documents that the investigating agency has deemed to be "confidential," i.e., documents that are not being placed into a file used for personnel purposes.