On October 7, 2008, the First Appellate District, Division One, ofthe California Court of Appeal published its Opinion in Berkeley Police Association v. City ofBerkeley (Case No. AI18537, Alameda County Super. Ct. No. 2002 057569) in favor of the Police Association on issues involving the extension of confidentiality protections set forth in California Penal Code Sections 832.5, 832.7 and 832.8, as well as the rights afforded to public safety officers under the Public Safety Officers' Procedural Bill of Rights' Act to proceedings done by a Police Review Commission.' This Opinion enforces the rights of peace officers who may be subject to review by a Police Commission in their own jurisdiction. Furthermore, the principles articulated in the Opinion may serve as grounds to extend those rights to officers subject to an interview by an independent investigator or agents of a local agency who have the ability to generate findings that may result in punitive action.

In Berkeley, the City established a Police Review Commission (PRC) comprised of nine volunteer members who are each appointed to a two-year term by a member of City Council. The PRC acts as an investigatory body of citizen complaints separate from and parallel to the investigation done by the Internal Affairs Division (lAD) of the Berkeley Police Department. Although the PRC provides the lAD with a copy of the citizen complaint, the lAD conducts its own investigation, does not share its investigating material with the PRC, and is responsible for the ultimate discipline of the officer by the Chief of Police or City Manager, depending upon the proposed level of discipline. The lAD is undisputedly the City's investigatory body established to satisfy the City's obligation to investigate citizen complaints under California Penal Code Section 832.5.

The PRC, however, upon the initiation of a citizen complaint, also investigates the complaint in a parallel process. The investigation by PRC begins with an interview by the PRC investigator and the officer is required to submit to the interview by the Chief of Police or City Manager under threat of discipline for a failure to do so. Following the interview of the officer, the PRC prepares a written memorandum including (1) copies of all relevant Department policies or laws allegedly violated by the officer, (2) copies of the interviews conducted by the PRC investigator, and (3) a copy of the police report or other documents which may be related to the incident. The PRC then convenes a "board of inquiry hearing" which consists of an evidentiary hearing before three Commissioners of the PRC in which the complainant presents his or her case, as does the officer who is the subject of the complaint. The board of inquiry hearing is open to the public unless the board decides unanimously to exercise its discretion to close it, which is rarely done. Following deliberations, the board of inquiry issues verbal findings at the hearing as to each allegation being "exonerated", "unfounded", "not sustained" or "sustained". Written findings are issued by the PRC shortly thereafter. The written findings are then provided to the City Manager and the Chief of Police.

With the above fact pattern before it, the Court of Appeal in Berkeley first ruled on the issue of whether the PRC was required to maintain confidentiality of peace officer personnel information. In doing so, the Court held that the records and findings of the PRC are protected from disclosure under California Penal Code Sections 832.7 as a record maintained by a local agency pursuant to Penal Code Section 832.5 which pertains to the investigation of citizen complaints by a sheriff's department or city police department. This was despite the fact that the City had also designated the lAD as the investigatory body for citizen complaints nnder Penal Code Section 832.5. The Court further held that the records and findings of the PRC are "personnel records" within the meaning of Penal Code Section 832.8, as records issued in the course of an officer's regular duties.

The Berkeley Court rejected the City's position that the confidentiality provisions set forth in Penal Code Section 832.7 do not apply to the PRC because those proceedings are open to the public, and thus not confidential. The Court also rejected the City's argument that confidentiality should not apply because the proceedings carmot lead to discipline within the meaning of Penal Code Section 832.7 as the PRC has no authority to directly discipline an officer. In the City of Berkeley, only the City Manager and the Chief of Police may discipline an officer. While there is no prohibition on the City Manager or Chief from using a report generated by the PRC to initiate discipline, there had not been any examples in which the Chief or City Manager did so. Nevertheless, the Court stated that the confidentiality protections of Section 832.7 were not intended by the Legislature to be limited to appeals from disciplinary actions resulting from investigations conducted by Internal Affairs. On the contrary, the Court ruled that the Legislature intended to protect the confidentiality of all aspects of disciplinary matters, regardless of whether the public entity delegated some, all, or even parallel authority to an outside commission.

The Court explained that Section 832.7 of the Penal Code is not limited to formal disciplinary proceedings, or even to disciplinary proceedings, as long as the public safety officer is the subject of a citizen complaint. It further held that Penal Code Section 832.8 applies even if a complaint against an officer is not part of a disciplinary process. In this case, however, because the findings of the PRC were transmitted to the Chief of Police and the City Manager, it is irrelevant whether it is part of the disciplinary process for this purpose because it can clearly be used as a basis for discipline. Finally, the Court held that the confidentiality protections of Penal Code 832.7 supersede any local rules or ordinances which allow for public hearings.

The Court further admonished the City that the mere fact that a local agency chose to create two separate procedures for investigating citizen complaints does not allow it to escape from the confidentiality provisions ofthe Penal Code. The Court relied upon the California Supreme Court decisions in Copley Press and Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278 (hereinafter, "CPOST") and held that "the Legislature did not intend to allow local jurisdictions to circumvent that protection either deliberately or inadvertently by the manner in which they assigned responsibility for the investigation of such complaints. (Citations) Thus, the reason the PRC (Commission) was originally established, the independence it has from the police department, and the fact that it does not impose or recommend disciplinary actions do not exempt its records from the coverage of those statutes." (p.23)

The second main portion of the holding in the Berkeley case is its affirmance that the rights afforded to peace officers in the Public Safety Officers' Procedural Bill of Rights' Act, California Government Code Section 3300, et seq. (the "Act") should apply to interrogations or hearings conducted by the PRC. In doing so, the Berkeley court rejected the City's arguments that the Commission should be excused from affording officers their rights under the Act simply because the PRC cannot directly initiate discipline against an officer. The Court again noted that because the findings of the PRC have the potential to lead to punitive action, the fact that the PRC alone does not take punitive action is not dispositive. Furthermore, the Court reasoned that, although the PRC lacks the direct authority to order an officer to participate in an interrogation, it does obtain that authority indirectly by requesting an order from the Chief of Police that the officer must participate in the interrogation or be subject to discipline for insubordination for failing to do so. Thus, the Court concluded that an interrogation conducted by the Commission falls within the definition of an interrogation under Section 3303 of the Act. The Court affirmed that the City of Berkeley had a "mandatory duty" to apply the Act to the PRC proceedings and that officers employed by the Berkeley Police Department had "a clear and beneficial right to the performance of that duty."(at p. 29)

Based upon the strong language of the Court as applied to the Act, it is safe to assume that all provisions of the Act that apply to the Police Department would also be applicable to a PRC or other agency designated to be "independent" by a local agency. This may even include independent investigators hired by a public agency to conduct investigations and interview officers related to internal complaints of sexual harassment or discrimination, or other matters which may lead to punitive action within the meaning of the Act, if the agency directs its officers to submit to interviews that may lead to disciplinary action against them where refusal to submit to the interview could place the officer's job in jeopardy.

The importance of this case is that a Department or local public agency may not escape providing your rights under the Act simply by designating a civilian or "independent" agency to assist in the investigation "when a city uses its disciplinary powers over officers to compel them to cooperate in an administrative investigation by another arm of the city government," (page 29) and where the investigation could "lead to punitive action" based upon the results of the investigation. Similarly, the confidentiality of peace officer records provided by the Penal Code should apply to such "independent" investigations as well.