In McMahon v. City of Los Angeles, (— Cal.Rptr.3d —, Cal.App. 2 Dist., April 8, 2009), a California Court of Appeal considered whether a police department was required to disclose additional materials from an investigation into citizen complaints against an officer where the department disclosed all adverse comments, gave the officer an opportunity to respond to the comments, and the requested additional materials could not be used in making personnel decisions. The Court of Appeal held that the police department was not required to disclose the materials under the Public Safety Officers Procedural Bill of Rights Act (“POBRA”).
Officer Walter McMahon (“McMahon”) is employed by the Los Angeles Police Department. In 2004, the Department assigned McMahon to the Southeast Area Gang Impact Team. McMahon was very effective in his role with the team. In an effort to discredit and undermine his effectiveness, area residents began to file formal personnel complaints against McMahon. Approximately 20 complaints were referred for investigation. Department personnel began to become concerned about McMahon’s safety so Department transferred McMahon to another division on a “loan” basis. The transfer, which Department did not mean to be punitive, later became permanent.
All of the citizen complaints were either determined to be “unfounded” or “exonerated.” Department served McMahon with each complaint and various other documents including (1) the complaint fact sheet, (2) complaint adjudication form, (3) employee interview form, and (4) commanding officer’s letter of transmittal. Department gave McMahon the opportunity to respond and have that response lodged with each complaint, but McMahon did not file any responses. A sergeant with internal affairs conducted a comprehensive investigation into the complaints and prepared an eight-page single-spaced document in which she “concluded the complaints were spurious, having been undertaken to drive [McMahon] out of the assignment where he had been so effective.”
McMahon filed a petition for peremptory writ of mandate to compel Department to make available to him all the materials and documents that had been compiled during the investigation but had not been disclosed to him. He asked for interview transcripts, surveillance and case notes, chronological files, and presentations prepared by the Department. McMahon alleged that without access to the requested materials, he was unable to ascertain whether his personnel records contained information that could potentially impair his career advancement or future employment opportunities. The trial court denied McMahon’s petition.
To obtain a writ of relief under Code of Civil Procedure section 1085, McMahon is required to “show there is no other plain, speedy, and adequate remedy,” Department “has a clear, present, and ministerial duty to act in a particular way,” and McMahon “has a clear, present and beneficial right to performance of that duty.” The question before the Court of Appeal was whether Government Code section 3306.5, which is part of POBRA, required Department to disclose the investigative and other materials it withheld from McMahon. Under section 3306.5, subdivision (a), the determination as to whether Department was required to disclose the materials depends on whether the materials requested by McMahon qualify as “personnel files that are used or have been used to determine [McMahon’s] qualifications for employment, promotion, additional compensation, or termination or other disciplinary action.”
McMahon argued that the trial court read section 3306.5 too narrowly and that the plain meaning of the statute “entails a disclosure obligation so broad as to encompass any materials that might contain comments adverse to the officer, regardless of whether their use for enumerated personnel purposes is proscribed by statute or departmental regulation.” The Court of Appeal disagreed with the interpretation of section 3306.5 advanced by McMahon.
The court found that the purpose of section 3306.5, along with sections 3305 and 3306, is to facilitate an officer’s ability to respond to comments that may affect his or her employment status. Section 3306.5’s purpose is also related to Penal Code section 832.5 which provides that citizen complaints that are found to be frivolous, unfounded, or exonerated by an officer’s employing agency shall not be maintained in the officer’s general personnel filed, but instead must be maintained in a separate file. Meritless complaints, therefore, must be “excised from the personnel file used by the officer’s employer for making personnel decisions.”
The information sought by McMahon was not kept in his personnel file, but was instead maintained in Department’s internal affairs files. There is no indication that Department used the materials to make an adverse personnel decision. Although Department transferred McMahon, he failed to bring forth “substantial evidence that the Department’s action was punitive or disciplinary for purposes of POBRA.”
The Court of Appeal affirmed the trial court’s finding that Department complied with its obligations under POBRA when it withheld the materials requested by McMahon. The court found that “it appears that Department disclosed all adverse comments made against the officer and gave him the opportunity to respond to them as mandated by POBRA.” McMahon’s mere speculation that Department’s underlying investigative materials might contain additional adverse comments not previously disclosed to McMahon does not support an obligation under POBRA to disclose those underlying materials “at least where, as here, nothing in the record suggests the existence of such comments and the undisclosed materials are maintained in such a way that the Department is not authorized to use them in making personnel decisions.”
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.