Legal Issues

Overturning a decision by the First District Court of Appeal, the California Supreme Court has reiterated that prosecutors, like criminal defendants, must file a Pitchess motion to get access to the confidential personnel records of peace officer witnesses. The decision, People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, also rejected arguments the prosecution’s Brady obligation allows prosecutors to have unrestricted access to those records at any time.

In the wake of controversial police shootings across the country, California’s prosecutors have been banned by new legislation from using grand juries to decide whether to charge certain classes of peace officers in officer-involved shootings and excessive force cases resulting in death. Penal Code sections 917 and 919 were amended last month by SB 227 to prohibit grand juries from considering criminal charges in cases where the officer involved is a local police officer, deputy sheriff, California Highway Patrol Officer or peace officer from Nevada, Oregon or Arizona. The law takes effect January 1, 2016.

A new decision from the California Supreme Court limiting employee access to supervisor files under the Firefighters Procedural Bill of Rights Act likely will place the same limits on public safety officers. The case, Poole v. Orange County Fire Authority (2015) 61 Cal.4th 1378, involved a provision of the Bill of Rights Act giving firefighters the right to review and respond to any adverse comment that is entered in the firefighter’s personnel file, “or any other file used for personnel purposes by his or her employer.” (Gov. Code § 3255.) The court ruled firefighters are not permitted under the companion statute to the Public Safety Officers Procedural Bill of Rights Act to see a supervisor’s personal notes, even when those notes are used to prepare a performance evaluation.

Convicted in 2012 of the 1986 murder of her lover's wife, former Los Angeles Police Department detective Stephanie Lazarus asked an appellate court to overturn her conviction on the basis a statement was taken from her in violation of her rights under the Public Safety Officers Procedural Bill of Rights Act (POBRA). (Gov. Code §§ 3300 et seq.) The Second District Court of Appeal rejected Lazarus's argument, ruling that the officer's POBRA rights did not attach because the investigation was concerned solely with criminal activity and had no bearing on her employment.

The Sixth District Court of Appeal ruled last week that minors who successfully complete a term of confinement at the Department of Juvenile Justice (DJJ) are no longer entitled automatically to release from all penalties and disabilities resulting from the crime that caused the commitment. Ruling on former minor's petition be released from the consequences of his offenses, the court said in the case of In re J.S. that the elimination of DJJ parole through realignment means there is no longer arole. The Court left to the Legislature the decision whether to address what is called an "oversight" in the realignment scheme.

Overturning its own precedent, the Public Employment Relations Board (PERB) ruled recently that an employee has the right to union representation in meetings with the employer to determine whether a reasonable accommodation is available under the Americans with Disabilities Act. The right under the Meyers-Milias-Brown Act to representation in all matters affecting the terms and conditions of employment now includes the right to have a union representative present at an ADA interactive process meeting. The decision is important because it redefines the scope of union representation rights to include all matters related to employee-employer relations instead of limiting representation to matters involving discipline.

A recent decision by the Public Employment Relations Board (PERB) upheld disciplinary procedures used by the California Association of Professional Scientists to remove a member alleged to have advocated for the union’s decertification. The PERB decision overturned an earlier ruling by an administrative law judge who found in the member’s favor.

Expanding yet again the scope of access to confidential peace officer personnel records, the California Supreme Court has ruled that arbitrators in administrative appeals from disciplinary action have the authority to review peace officer records in response to a Pitchess motion. The court held on December 1, 2014, in Riverside County Sheriff’s Department v. Stiglitz, et al.(2014) 60 Cal.4th 624, that arbitrators presiding over disciplinary appeals under the Public Safety Officers Procedural Bill of Rights Act may rule on Pitchess motions made by either party without involving the superior court.