• Peace Officer Did Not Have The Right To Review Records After He Was Terminated
  • April 5, 2012 | Authors: Laura Izon Powell; Bruce A. Scheidt; David W. Tyra
  • Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office
  • In a case of first impression, a court of appeal recently held that a former peace officer did not have a right under the Public Safety Officers Procedural Bill of Rights (“POBAR”) to review his personnel and internal affairs records after he made a broad records request six months after his employment was terminated.  (Barber v. California Department of Corrections and Rehabilitation, (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., February 15, 2012).

    Patrick Barber (“Barber”) started working for the California Department of Corrections and Rehabilitation (“CDCR”) in 1998.  On January 11, 2008, the date which CDCR placed Barber on administrative leave, he was employed as a parole agent I with the Division of Juvenile Justice (“DJJ”).  After CDCR terminated Barber’s employment on April 10, 2009, he filed an appeal of his termination with the state personnel board.  In June 2009, the Office of the Attorney General filed a Pitchess motion seeking production of Barber’s personnel records for the case of Ruelas v. Shelby.  Although he did not receive notice of the Pitchess motion, Barber discovered it on his own and sent a letter to the director of DJJ alleging that CDCR had violated the Evidence Code when it failed to notify him of the motion.  Barber requested and received independent counsel to represent him in regard to the Pitchess motion.  The court’s grant of the Pitchess motion resulted in CDCR producing Barber’s records for 1999 through 2004.  

    Six months after CDCR terminated Barber, he sent DJJ’s director a letter requesting a copy of his personnel and internal affairs records from 2005 through 2009 and specifically records from four investigations by the Office of Internal Affairs during that time period. When Barber talked to CDCR’s attorney, the attorney told him that his request was denied.

    Barber filed a petition for writ of mandamus and complaint for declaratory injunctive relief in the superior court against CDCR, DJJ, and its director (collectively, “CDCR”).  Barber claimed he was entitled to the documents under POBAR, specifically Government Code section 3306.5, and a Memorandum of Understanding (“MOU”).  CDCR asserted that because Barber had been dismissed from his employment, he had no right to review his records under either POBAR or the MOU between the California Correctional Peace Officers Association and the State of California.  The trial court concluded that Barber was not entitled to the rights or protections of POBAR after he was terminated from his employment.

    The court of appeal affirmed the decision of the trial court finding that Barber had no right under POBAR section 3306.5 to review his records after CDCR terminated his employment.  POBAR identifies “basic rights and protections afforded all peace officers by the public entities that employ them.”  Section 3306.5 provides that every employer must “at reasonable times and at reasonable intervals, upon the request of a public safety officer, during usual business hours, with no loss of compensation to the officer, permit that officer to inspect personnel files that are used or have been used to determine that officer’s qualifications for employment, promotion, additional compensation, or termination or other disciplinary action.”  It further requires the employer to keep an officer’s personnel file, or a copy of the file, and make it available in response to a request by an officer within a reasonable amount of time.

    Barber asserted he had a right to review his records under section 3306.5 and also under paragraph 9.03 of CDCR’s MOU.  The court first found that Barber was not entitled to review his records pursuant to paragraph 9.03 of the MOU because that provision is limited to records that are requested by “employees.”

    The court reached a similar conclusion regarding section 3306.5.  The court noted that the issue presented in this case, “whether a former officer has a right under POBAR section 3306.5 to review his or her records after termination of employment,” was an issue of first impression.  The court concluded  that based on section 3306.5’s language, as construed within POBAR’s statutory scheme, Barber was not entitled to review the requested records pursuant to the broad records request he made after he was terminated from employment.

    The Legislature’s intent in enacting section 3306.5 “was to allow police officers to review their personnel records and correct any misstatements discovered in their records in the event erroneous, derogatory information might result in adverse impact on the officer’s employment.”  The statute’s legislative history does not indicate that officers are entitled to review their records after their employment has been terminated.  Furthermore, section 3306.5 refers to “employer” and “officer” not

    to “former employer” or “former officer” and requires that inspection of the records should not result in a “loss of compensation to the officer.”   These factors indicate the Legislature intended that section 3306.5 should only apply to currently employed peace officers.  The court concluded that after an employee is terminated, section 3306.5 no longer applies.  “Once there is no longer an employer-employee relationship, POBAR no longer applies.”

    The court further found that even if section 3306.5 did in fact apply, CDCR did not violate POBAR when it rejected the records request because prior to his termination, CDCR provided Barber with notice of his termination and copies of all the records CDCR relied upon when it terminated him.  If Barber sought additional investigative materials that were undisclosed, he was required to show that the documents he sought were used or relied on by CDCR to make a personnel decision.  CDCR gave Barber the documents it relied on when it dismissed him and informed him that the remaining files he requested did not exist.  The court concluded Barber failed to establish CDCR withheld any documents that could undermine his chances for future employment.