On July 11, 2023, David E. Mastagni testified before the
Assembly Public Safety Committee to oppose SB 519 on behalf of PORAC. David focused the opposition on the powers
this Bill would grant a newly created “Local Detention Monitor” to impair labor
contracts and interrogate local peace officers regarding in-custody deaths
without regard to their rights against self-incrimination.
As introduced by Senate President pro Tempore Toni G. Atkins,
SB 519 would have provided that a board of supervisors may establish a
department of corrections and rehabilitation to be headed by an executive
officer appointed by the board and thus facilitate boards of supervisors
cutting corners to reduce labor costs by supplanting sworn jail personnel and
replacing them with lesser trained civilians.
SB 519 also provides that notwithstanding the general confidentiality of
peace officer records or any other law, records relating to an investigation
conducted by the local detention facility involving a death incident and any
local detention facility personnel records shall not be confidential and shall
be a public record.
PORAC opposed the sections of the Bill facilitating
civilianization of local jails. PORAC did
not oppose the disclosure of records relating to an investigation conducted by
the local detention facility involving a death incident, but did raise concerns
with the language of this section.
The Bill was amended on July 5, 2023. These amendments addressed PORAC’s disclosure
concerns and eliminated the provisions for civilianizing local jails. However, the amendments replaced these
sections of the Bill with new language establishing a statewide Local Detention
Monitor with expansive powers including the ability to compel local employees
to submit to interrogations without provision of their Constitutional
rights. The bill states, “[t]he Local
Detention Monitor may require any employee or contractor of the local detention
facility to be interviewed … Any employee or contractor requested to be
interviewed shall comply….”
Thus, the Bill purports to force employees to waive their 5th
Amendment Rights by mandating cooperation with no option to exercise the right
to remain silent. By comparison, the
peace officer licensing statute (SB 2) states, “the lawful exercise of rights
granted under the United States Constitution, the California Constitution, or
any other law shall not be considered a failure to cooperate.” (Penal Code
Section 13510.8(b)(8).)
At the Public Safety Committee hearing, David explained that
PORAC does not oppose the establishment of a local detention oversight entity
with the authority to review in-custody death investigations, and to issue
reports and recommendations for improvements.
But PORAC does object to the authority granted the oversight entity because
those powers impair its members’ labor and Constitutional rights. David articulated PORAC’s concerns.
First, the Bill expressly provides for the
impairment of existing labor contracts.
Second, the Bill purports to grant the monitor
the power to compel union members to submit to interrogations without proper
legal authority which is derived from the employment relationship or licensing
authority. The compulsion to cooperate
in such investigations is based on the threat of discipline or loss of
license. The Monitor has no employment
relationship nor licensing authority, and thus no power to compel cooperation
or testimony.
Third, the Bill violates employees’ right
against self-incrimination under the 5th Amendment because in-custody death
investigations often involve potentially incriminating questions. In Lybarger
v. City of Los Angeles, 40 Cal. 3d 822 (1985) our Supreme Court carefully
balanced public employers’ need to investigate against public employees’ 5th
Amendment rights by holding an employer can compel potentially
incriminating questions so long as the employee is granted immunity. Spielbauer v. County of Santa Clara (2009)
45 Cal. 4th 704, 725 clarified that public entities cannot require “as a
condition of remaining on the job” that public employees “surrender his or her
right against criminal use of [such] statements.”
Chief Legislative Advocate Randy Perry, David E. Mastagni
and Timothy K. Talbot intend to continue discussions with the author to address
the concerns raised at the hearing. The
Public Safety Labor Blog will provide updates on this important legislation.
You can view the entire hearing here:
Assembly Public Safety Committee, Tuesday, July 11, 2023 – YouTube
