This article by David E. Mastagni was originally published in the Legal Defense Fund update section of “PORAC Law Enforcement News”, April 2023, pg. 37. (To read the article in the magazine click this link.)
As most PORAC members already know, S.B. 2 requires the
Peace Officer Standards and Training (POST) Commission to implement its
decertification process on January 1, 2023.
Given the short amount of time the Legislature afforded POST to enact
regulations on the process, hire investigators and begin applying such a
monumental change in law, many are asking how POST’s implementation is
progressing. We have some answers.
In addition to amending the Tom Bane Civil Rights Act, the
primary purpose of this Bill was to establish a POST licensing regime for peace
officers and decertification process that requires employee agencies to notify
POST of any allegations of serious misconduct by certified officers and the
outcome of the agency internal affairs investigation. POST must conduct its own investigation or
review of the agency investigation to determine if the officer’s license should
be suspended or revoked. If action is taken,
POST must afford the officer multiple layers of due process.
To administer the decertification process, SB 2 mandates the
establishment of the Peace Officer Standards Accountability Division within POST. The Division must review investigations conducted
by employing agencies into serious misconduct and conduct additional
investigations as needed to evaluate whether potential grounds for suspension
or revocation of a peace officer’s certification. The Division also reviews grounds for
decertification and makes findings as to whether grounds for action against an
officer’s certification exist. Affected officers are then notified their
findings and afforded the right to request review before the Peace Officer
Standards Accountability Advisory Board, comprised of 9 members. The Board holds public meetings and makes
recommendations to the POST Commission regarding any action against an
officer’s certification.
Ultimately, the Commission reviews the recommendations, the
entire investigatory record and any response from the officer before making a
final determination whether serious misconduct has been established by clear
and convincing evidence, and if so what action to take. Any
suspension or decertification must be adopted by a 2/3rds vote of the Commission.
If action is to be taken against an officer’s certification, the officer may
commence a formal evidentiary appeal which is governed by the Administrative
Procedure Act.
Within 10 days of receipt, agencies employing peace officers
must to report the allegations of serious misconduct to POST. The notification duty may be triggered by a
misconduct complaint, finding from a civilian oversight body, sustained
disposition of an IA investigation, or civil judgment/settlement based on
alleged serious misconduct. Of concern,
many of the serious misconduct definitions, which are set forth in Penal Code
section 13510.8(b)(1)-(9), are vague and overbroad. As a result, we expect that POST will be
deluged with notices of complaints and that agencies will construe the definitions
of serious misconduct disparately.
To date, POST has received approximately 3,500 case
notifications. Of those cases, about 68%
were retroactive cases. By July 1, 2023, agencies must report the above
qualifying events that occurred between January 1, 2020, and January 1, 2023. POST’s ability to suspend or revoke
retroactively based on serious misconduct that occurred prior to January 1,
2022 is limited to dishonesty, sexual assault, use of deadly force resulting in
death or serious bodily injury, or circumstances where the employing agency
makes a final determination regarding its investigation after January 1, 2022.
Although the POST investigation will still proceed, the Bill
permits officers to voluntary surrender their certificate. So far, POST has issued 1 Voluntary Surrender. Two (2) former officers have been placed on
an ineligible status due to felony convictions, and twelve (12) Immediate
Temporary Suspensions (ITS) have been issued. ITS’s have been issued for
serious misconduct cases where there is a need to protect the public welfare by
placing the peace officer’s certification on a temporary hold while the full
adjudication process unfolds. All
permanent decertification’s are required to be made available to the public and
can be found on the POST website at: https://post.ca.gov/Decertification-List.
Investigations
SB2 has given POST the authority to review investigations
completed by law enforcement agencies and, as necessary, conduct additional
investigation into serious misconduct that may provide grounds for action
against a peace officer’s certification. For now, POST will rely on the employing
agency to conduct the investigations.
The employing agencies are responsible for conducting and completing
their internal investigations, as well as any complaints which POST receives
(POST will forward those complaints to the employing agencies). Once the investigations are completed and
findings issued, the information is forwarded to POST. If additional investigation is warranted,
such investigation will be conducted after the conclusion of the agency
investigation.
By statute, POBR only applies to the employing agency, and
so is not required to be afforded during the POST decertification
investigation. While a legal concern, as
a practical matter the exclusion of POBR should not have a significant
practical impact. The most applicable
section of POBR is Government Code section 3303, which sets forth the
procedural rights during an investigation.
These rights are afforded during agency investigations and POST appears
inclined not to conduct its own investigations for now. Moreover, POST has stated it will provide
similar rights should it decide to interrogate an officer. The appeal rights in POBR are unnecessary, as
S.B. 2 provides for fairly comparable appeal process.
POST’s Legislative Liaison Meagan Poulos has advised that
currently, “POST is reviewing and analyzing Internal Affairs cases and felony
arrests, indictments and convictions received for serious misconduct.” In order to satisfy S.B. 2’s mandated
workload, POST is currently hiring law enforcement consultants who will be
analyzing cases submitted to POST to determine the extent of actionable serious
misconduct cases. The State has approved
POST to hire 32 such consultants to staff its Peace Officer Standards
Accountability Division, as so far 14 of those positions have been filled. Ms. Poulos has indicated that POST is working
diligently to fill those positions as quickly as possible, but has experienced
significant challenges in hiring, as have agencies throughout the state. She further stated, “As an interim solution,
POST is hiring Retired Annuitants who meet the Law Enforcement Consultant
qualifications to help address the workload.”
Presumably, if an agency investigation clears an officer,
POST should not take any action on the officer’s license. The evidentiary standard applied by the
employing agency is preponderance of the evidence, whereas the evidentiary
standard for decertification is clear and convincing, which is higher. Thus, it would seem legally impossible for
POST to reach a contrary conclusion under a higher standard if the agency
investigation was properly conducted.
Another open question is how POST will treat allegations
that were sustained by the agency and then overturned in an administrative
appeal. Although the statute does not
directly address this issue, PORAC sponsored amendments to provide a tolling of
time limitation for POST to take action during the pendency of any
administrative appeal. The intent of the
amendment, coupled with an amendment requiring consideration of the entire
record not just the Board recommendation, was that POST consider the outcome of
any appeal. The same consideration of
the evidentiary standards applies to administrative appeals as well.
Advisory Board
The Board’s nine members are appointed by the Governor and
legislative leaders. The Board is comprised of: one current or former police
officer with command experience; one current or former peace officer with
management rank; two members of the public with experience working at a
nonprofit or academic institution; two members of the public with experience
working with community-based organizations related to police accountability;
two members of the public with strong consideration given to individuals who
have been subjected to wrongful use of force likely to cause death or serious
bodily injury by a peace officer or who are surviving family members of a
person killed by the wrongful use of deadly force by a peace officer; and one
attorney.
To date, there has been one appointment to the 9-member
Advisory Board that will recommend license revocations to the POST Commission
for consideration. The appointed Board
member is Lizzie Buchen. While serving as Director of Criminal Justice for ACLU
Northern California, she passionately strived to enact legislation on use of
force, as originally introduced in A.B. 931 and 392. During my advocacy on behalf of PORAC and its
membership I routinely met with Ms. Buchen and President pro Tempore of the
California Senate Toni G. Atkins to discuss our competing views on the force
legislation. She was appointed to the position
for a person with experience working on police accountability with
community-based organizations.
As the remaining eight positions are unfilled, anyone wishing
to apply for an appoint can follow this link.
Serious Misconduct Definitions
The Bill delegates authority to POST to further define
serious misconduct through administrative regulations. Several stakeholders, including PORAC, CAL
Chiefs, the ACLU and public defender organizations, have submitted competing
comments recommending narrowing and expanding the definitions set forth in the
statute. To date, the section 1205
regulations largely mirror the statute and POST has declined most of the
recommendations it received. (11 CCR § 1205)
POST has added some important clarifications and criteria to
evaluate the appropriate response to sustained serious misconduct. For dishonesty, POST will consider whether
the dishonesty related to material issue and whether the officer acted
willfully, with the intent to deceive.
While these clarifications are implicit in a dishonest finding some
commentators had urged POST to extend dishonest to unintentional mistakes. Similarly for abuse of power, POST will
consider the extent to which the abuse of power was a knowing abuse of the
power and authority of a public office.
POST clarified that the bias definition does not limit First Amendment
rights.
Regulation section 1213, titled, “Suspension and Revocation
of Peace Officer Certification” sets forth extensive criteria mostly advocated
by PORAC and other law enforcement advocates the Commission will consider in
deciding “whether to take action against a peace officer’s certification, and
in considering whether a revocation or suspension is appropriate in light of
the facts of the particular case.”
Significantly the Commission will consider mitigating or aggravating
factors and/or evidence of rehabilitation, disparate treatment, the severity of
the conduct, the intent of the officer, and whether the misconduct was
committed under color of authority, among many other factors. This regulation is of particular importance
given the overbreadth of several of the definitions, such as abuse of power and
physical abuse.
Post also set the outer limit of a suspension at 3 years.
Conclusion
The implementation of S.B. 2 and the administrative
regulations is still a work in progress.
Many of the regulatory proposals regarding the serious misconduct
proceedings before the Board and Commission have been amended and were considered by the Commission at its meeting on March 22, 2023.
We do know several important aspects of the implementation
though. First, the investigations into
misconduct are going to largely, if not completely, be conducted by the
employing agency. POST’s hiring
difficulties probably preclude parallel investigations at this time anyway. Regarding
the misconduct definitions, POST has taken a caution and balanced approach by
closely following the statutory definitions but also providing needed criteria
for evaluating degree of action to be taken.
Lastly, we know little regarding how smoothly the appeal process will
work, as no appeals are pending and the Advisory Board has not been fully
appointed. Stay tuned for updates as the
process is rolled out.
