Sdpoa v. City of San Diego

• Decision Date: 23 May 2002
• Docket Number: No. D037812.,D037812.
• Citation: 98 Cal.App.4th 779,120 Cal.Rptr.2d 609
• Court: California Court of Appeals Court of Appeals
• Parties: SAN DIEGO POLICE OFFICERS ASSOCIATION, Plaintiff and Respondent, v. The CITY OF SAN DIEGO et al., Defendants and Appellants; David Bejarano, Real Party in Interest and Respondent.

120 Cal.Rptr.2d 609

98 Cal.App.4th 779

SAN DIEGO POLICE OFFICERS ASSOCIATION, Plaintiff and Respondent, v. The CITY OF SAN DIEGO et al., Defendants and Appellants David Bejarano, Real Party in Interest and Respondent.

No. D037812.

Court of Appeal, Fourth District, Division 1.

May 23, 2002.

Review Denied September 25, 2002.

Casey Gwinn, City Attorney, Anita M. Noone, Assistant City Attorney, and David Brodie, Deputy City Attorney, for Defendants and Appellants.

Law Offices of Everett L. Bobbitt, Everett L. Bobbitt and Bradley M. Fields for Plaintiff and Respondent.

No appearance for Real Party in Interest and Respondent.

McDonald, J.

The Public Safety Officers Procedural Bill of Rights Act (Gov.Code, § 3300 et seq., hereafter the Act)¹ provides a public safety officer with numerous protections when the officer is under disciplinary investigation and is interrogated in response to a complaint lodged against the officer. Among other protections, section 3303, subdivision (g) provides the officer the right to receive copies of "any reports or complaints made by investigators or other persons, except those [that] are deemed by the investigating agency to be confidential." In this action, respondent San Diego Police Officers Association (SDPOA) sought a writ of mandate to compel appellant The City of San Diego and the San Diego Police Department (together City) to provide the officer under investigation and interrogation with any tape-recorded interviews of witnesses and any rough notes taken by investigators. The court granted SDPOA's requested relief, and this appeal followed.

I FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts are undisputed. When an officer employed by the San Diego Police Department (SDPD) is accused of misconduct, SDPD detectives investigate the accusations and, after completing the investigation provide the accused officer with the final written report prepared by investigators and a copy of the complaint that prompted the investigation. However, SDPD does not provide the accused officer with copies of the investigators' raw notes or copies of any tape-recorded interviews of witnesses conducted by the investigating detectives.

SDPOA filed this action for writ of mandate contending that section 3303, subdivision (g)² compelled City to provide the accused officer with any raw notes and tape recordings of witness interviews taken as part of the investigation.³ City opposed the action, arguing that because section 3303, subdivision (g) lists several specific items of materials to be provided an officer under disciplinary investigation, any items not listed by that subdivision need not be provided. The court construed the terms "reports" and "complaints" in section 3303, subdivision (g) to include the raw notes and tape-recorded interviews of witnesses, and issued the requested writ of mandate.

II ANALYSIS

A. Standard of Review

We are called upon to construe the language of the Act to discern whether the terms "reports" and "complaints," as used in section 3303, subdivision (g), include the raw notes of investigators and tape-recorded interviews of witnesses, and accordingly we review de novo the trial court's ruling. (Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1806, 20 Cal.Rptr.2d 903.) The Act does not define the terms "reports" or "complaints." (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 575, 273 Cal.Rptr. 584, 797 P.2d 608, hereafter Pasadena.) The Pasadena court, which examined the related ambiguity in the Act regarding when an officer becomes entitled to these materials, began its construction of the statutory language by stating that:

"Because subdivision (f) of section 3303 does not specify when an officer's entitlement to the reports and complaints arises, we must determine whether the Legislature intended such disclosure to occur before or after interrogation. To discern legislative intent, we look first to the words of the statute and its provisions, reading them as a whole, keeping in mind the statutory purpose and harmonizing `statutes or statutory sections relating to the same subject ... both internally and with each other, to the extent possible.'" (Pasadena, at p. 575, 273 Cal.Rptr. 584, 797 P.2d 608, quoting Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387, 241 Cal.Rptr. 67, 743 P.2d 1323.)

We similarly must decide whether the Legislature intended that an officer have access only to the final written report of the investigating officer and to written complaints by third persons, or whether it also intended to allow an officer to have access to the underlying data on which the final report is based.

B. The Terms "Reports" and "Complaints" Include Any Notes and Recordings That Contain Reports and Complaints

We look first to the language of the statute. Section 3303, subdivision (g) provides:

"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 [that] are deemed by the investigating agency to be confidential...." (Italics added.)

City argues the term "reports" is clear and unambiguous, and refers only to the final written report of the investigator, and therefore notes and tape recordings that were the precursors of the final written report are beyond the scope of the statutorily mandated disclosable materials. SDPOA argues the terms "reports" and "complaints" are open to interpretation, and should be construed to include all materials that contain reports of or complaints concerning the misconduct that is the subject of the investigation.

The words of the statute, when read as a whole, support SDPOA's interpretation of the statute. The officer is entitled to "any reports or complaints," and those words do not limit the officer's receipt of information to the final written report of the investigator. Additionally, the statute provides the officer with access to "reports or complaints made by .. . other persons." To the extent that an investigator's notes or tape-recorded interviews may contain reports or complaints made by other persons concerning the misconduct under investigation, the statute requires their production.

The Pasadena court admonished that the legislative language should be interpreted "keeping in mind the statutory purpose" (Pasadena, supra, 51 Cal.3d at p. 575, 273 Cal.Rptr. 584, 797 P.2d 608), and recognized at page 577 that "[protection of peace officers from abusive or arbitrary treatment in their employment is the essence of the Act. To accomplish this, the Legislature set out certain rights and procedures." Among the protections afforded officers is the right under section 3304 to an administrative appeal in which the officer may establish a formal record of the reasons for the disciplinary action and "`attempt to convince the employing agency to reverse its decision, either by demonstrating the falsity of charges [that] led to punitive action, or through proof of mitigating circumstances.' [Citation.]" (Binkley v. City of Long Beach, supra, 16 Cal. App.4th at p. 1806, 20 Cal.Rptr .2d 903.) If City is correct that an accused officer is entitled to only the written complaints filed by third persons and the final written report prepared by investigators, but not to the underlying materials that might tend to show the complaints or reports were inaccurate, incomplete, or subject to impeachment for bias, the officer's ability to establish a defense at the administrative hearing could be hampered and the rights protected by the Act undermined.

The Pasadena court also recognized that "[s]ome of the rights that the Act affords peace officers resemble those available in a criminal investigation,"⁴ and concluded that because the Act appeared to borrow from the criminal law procedural rules, the criminal law approach to the timing of discovery (which gives no right to discovery until after the charges have been filed) was a persuasive reason for concluding that an accused officer was not entitled to discovery until after he or she was interrogated. (Pasadena, supra, 51 Cal.3d at pp. 578-579, 273 Cal.Rptr. 584, 797 P.2d 608.) A criminal defendant would be entitled to raw notes or tape-recorded statements of witnesses preserved by the police. (See generally Thompson v. Superior Court (1997) 53 Cal.App.4th 480, 484-487, 61 Cal.Rptr.2d 785 [raw notes can constitute "`reports of the statements' of witnesses" disclosable under Penal Code sections 1054.1, subdivision (f) and 1054.3, subdivision (a) ]; In re Gary G. (1981) 115 Cal.App.3d 629, 639-642, 171 Cal.Rptr. 531 [no duty to preserve notes but investigators' raw notes should be turned over if in existence when discovery order entered].) Because the Act provides an officer with protections similar to those provided criminal defendants by criminal law procedural and discovery rules, we are persuaded that section 3303, subdivision (g)'s reference to reports and complaints provides officers with protections similar to those enjoyed by criminal defendants, including the rights to raw notes and tape-recorded statements of witnesses preserved by City.

City raises two arguments in support of its construction of the statutory language. First, City argues that because section 3303, subdivision (g) clearly and unambiguously lists the items City must provide, and identifies those items to be "reports or complaints," it is not required to provide the officer with anything beyond that list. However, this argument avoids the issue of what is included in the terms "reports" and "complaints," which are not defined in the...