Opinion
E032746.
11-17-2003
TIMOTHY WADE et al., Plaintiffs and Respondents, v. CITY OF BLYTHE, Defendant and Appellant.
Jones & Mayer and Gregory P. Palmer for Defendant and Appellant. Law Offices of Castle, Petersen & Krause, Dabney B. Finch and Robert W. Krause for Plaintiffs and Respondents.
Defendant City of Blythe (City) appeals from an order granting plaintiffs petition for a writ of mandate and injunctive relief under Government Code section 3309.5 and Code of Civil Procedure section 1085, wherein they sought to have certain reports removed from their personnel records. City claims that the trial courts order was erroneous as a matter of law. We disagree and affirm.
FACTS AND PROCEDURAL HISTORY
Plaintiffs Timothy Wade, Jeffrey Wade, Steve Huffman, Debbie Gray and Robert Dubie (collectively Plaintiffs) were all employed by City as police officers. City informed each of the Plaintiffs, in the years 2000 or 2001, that they were the subject of complaints being investigated by the internal affairs department. Over one year after the notifications, the Plaintiffs were notified that the closed investigation reports would be placed in their personnel files.
Plaintiffs filed a petition for a writ of mandate claiming that Citys placement of the internal investigation reports in their personnel files constituted punitive action, which was barred by the applicable statute of limitations, Government Code section 3304, subdivision (d). They concurrently filed a request for injunctive relief. After a hearing on August 16, 2002, the trial court entered a judgment finding that placement of the reports in the Plaintiffs personnel files was punitive and therefore violated Government Code section 3304, subdivision (d), enjoining City from placing the reports in the personnel files, and ordering City to remove any such reports from the Plaintiffs personnel files. It also awarded Plaintiffs attorney fees and costs. This appeal followed.
DISCUSSION
Government Code section 3304, subdivision (d) provides that "no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agencys discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct. . . . In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed disciplinary action within that year . . . ." Plaintiffs claimed, and the trial court found, that placement of the completed internal investigation reports in their personnel files was punitive and occurred beyond the one-year limit.
City claims that the trial courts order was erroneous because (1) it was required by law to maintain the records in the Plaintiffs personnel files, and (2) placement of the reports in the personnel files did not constitute punitive action. We will examine each of these contentions in turn.
City cites Penal Code sections 832.8 and 832.5, Government Code section 34090, Aguilar v. Johnson (1988) 202 Cal.App.3d 241 (Aguilar), Miller v. Chico Unified School Dist. (1979) 24 Cal.3d 703 (Miller), and Pitchess v. Superior Court (1974) 11 Cal.3d 531, for the proposition that it was required by law to place the investigation reports in Plaintiffs personnel files. None of these authorities bears such a mandate.
Penal Code section 832.8 simply defines the documents that are considered personnel records for purposes of maintaining confidentiality. It does not require that investigation reports must be maintained in an officers personnel file. Rather, it merely states that when such reports are maintained, regardless of the label on the file, they are considered confidential under Penal Code section 832.7, the statute that codifies the procedures involved in Pitchess motions. Citys argument to the contrary is without merit.
Penal Code section 832.5 pertains to the maintenance of citizen complaints regarding department or agency personnel. City points to the requirement in subdivision (b) that citizen "[c]omplaints and any reports or findings relating to these complaints shall be retained for a period of at least five years" as mandating that such reports be kept in an officers personnel file. However, that subdivision also states that all such retained complaints "may be maintained either in the peace or custodial officers general personnel file or in a separate file designated by the department or agency as provided by department or agency policy, in accordance with all applicable requirements of law. However, prior to any official determination regarding promotion, transfer, or disciplinary action by an officers employing department or agency, the complaints described by subdivision (c) shall be removed from the officers general personnel file and placed in [a] separate file designated by the department or agency, in accordance with all applicable requirements of law." An officers general personnel file is the one "maintained by the agency containing the primary records specific to each peace or custodial officers employment, including evaluations, assignments, status changes, and imposed discipline." (Pen. Code, § 832.5, subd. (d)(1).) These general personnel files are apparently the ones at issue in the instant case. Thus, rather than mandating that complaints be kept in the officers personnel file, Penal Code section 832.5 specifically authorizes them to be maintained elsewhere, and even mandates that they be kept elsewhere for purposes of determining promotion, transfer, or disciplinary action. It further requires that complaints found to be frivolous, unfounded or exonerated "shall not" be kept in the general personnel files. (Pen. Code, § 832.5, subd. (c).) Further, simply because the records are "deemed" personnel records for purposes of the California Public Records Act (Gov. Code, § 6250 et seq.) and Evidence Code section 1043 (involving Pitchess motions), it does not follow that they must be maintained in the officers general personnel file. Deeming them such for certain limited purposes does not require that they be so considered for all purposes. Nor are we persuaded by Citys argument that requiring a custodian of records to maintain separate files is overly burdensome or is likely to result in errors, especially in light of the mandates of Penal Code section 832.5.
Similarly, Government Code section 34090 requires that city records be maintained for at least two years and allows the destruction of city records, with legislative approval and written permission of the city attorney only after that time has passed. Again, assuming that the subject documents are city records under this code section, though they are required to be maintained, Government Code section 34090 does not require that they be kept in the officers personnel file.
In Aguilar, supra, 202 Cal.App.3d 241, the officer simply did not argue that the citizen complaint should not be placed in his personnel file. Rather, he objected to the departments failure to notify him of the complaint and to allow him an opportunity to file a response. (Id. at pp. 249-250.) Thus, the case in no way can be said to require that complaints be maintained in an officers general personnel file. Further, although Aguilar, supra, 202 Cal.App.3d at page 251, and Miller, supra, 24 Cal.3d at pages 712-713, stand for the proposition that the employee must be informed of the complaint and be allowed to comment on it, that still does not mean that the complaint must be kept in the general personnel file. The cases simply require that the employee be notified and allowed to comment, regardless of where the complaints are maintained.
In summary, none of the authorities cited by City imposes a legal mandate that the reports at issue be maintained in the Plaintiffs general personnel files. This argument does not support a reversal of the trial court. We next turn our attention to Citys assertion that placing these reports in the Plaintiffs personnel files does not constitute punitive action, but is merely an adverse comment.
Punitive action is defined as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment." (Gov. Code, § 3303.) Punitive action has been found when a board of police commissioners threatened to place its report about an officer-involved-shooting investigation, which included severe citizen and/or commission criticisms of the officers actions, in officers personnel files, even though those officers were not disciplined as a result of the investigation. (Hopson v. City of Los Angeles (1983) 139 Cal.App.3d 347, 349-350, 352-353; see also Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209, 1212.) Punitive action has also been found when a deputy received a letter, which was placed in his personnel file, from the sheriff restricting his police powers pursuant to a finding that he had demonstrated poor judgment and decisionmaking ability. (Gordon v. Horsley (2001) 86 Cal.App.4th 336, 342, 347-350 (Gordon).) A memorandum documenting a meeting between an officer and his supervisor, and containing critical comments, was also considered punitive when placed in the officers personnel file. (Otto v. Los Angeles Unified School Dist. (2001) 89 Cal.App.4th 985, 987, 991, 998.) All of these cases recognized that the placement of the comments in the officers general personnel files may, at some point in the future, lead to the adverse personnel actions listed in Government Code section 3303.
City claims that each of these cases can be distinguished from the instant circumstance on the ground that they all involved documents that criticized the officers for misconduct. In this case, for the most part, though with clear exceptions, the investigations exonerated the officers and therefore would not result in any future detriment to them. We disagree that this is a ground for distinction. The court in Aguilar, supra, 202 Cal.App.3d at pages 249-250, recognized that the placement of a mere complaint of misconduct in an officers personnel file "could potentially lead to not only adverse personnel decisions but could also result in a more severe penalty being imposed in a subsequent disciplinary proceeding." Admittedly the Aguilar court was discussing whether the complaint constituted an adverse comment and did not consider whether it would also be a punitive action. Still, in deciding that placing the complaint in the officers personnel file was clearly an adverse comment, the court did not preclude a finding that it also rose to the level of punitive action. We believe the above quote is very telling on what the Aguilar courts decision would have been had it been confronted with the issue. Further, Plaintiffs produced evidence, by way of an expert declaration, that any information in their personnel files would necessarily be reviewed and hence considered in some form regarding internal decisions about future employment as well as by outside agencies should the officers ever seek lateral transfers to another agency.
City also points to its promise that the reports would not be used in the future for promotion or discipline. That promise clearly was not made in the case of Debbie Gray. In addition, such promises by the City do not apply to any other agencies with which the Plaintiffs may seek employment. And, such promises have been held to be little more than self-serving and specious in light of plain logic. (Aguilar, supra, 202 Cal.App.3d at pp. 249-250.)
Turturici v. City of Redwood City (1987) 190 Cal.App.3d 1447, cited by City in support of its claim that the instant reports are merely adverse comments, is of no assistance. The case involved negative comments in a regular performance evaluation, not as the result of an investigation into a complaint of misconduct. (Id. at pp. 1449-1450.) It has been previously distinguished on this ground. (Gordon, supra, 86 Cal.App.4th at pp. 349-350.)
City also cites Sacramento Police Officers Assn. v. Venegas (2002) 101 Cal.App.4th 916 in support of its argument that these reports are merely adverse comments. However, like Aguilar, this case involved an officers protest that he had the right to be notified of complaints against him and to respond to them even though they were noted on an index card not kept in his general personnel file. (Sacramento Police Officers Assn. v. Venegas, supra, at p. 919.) The appellate court concluded that the department could not preclude the officers right to notification merely by not placing evidence of the complaint in something titled "personnel file." (Id. at pp. 926-930.) The officer did not allege that keeping an internal investigations card listing all complaints against him was a punitive action. It is therefore not surprising that the court concluded that keeping the card was an adverse comment. That is the issue that was placed before it. (Id. at pp. 924-926.) We cannot say that had the card been placed in the officers general personnel file that the Venegas court would not have concluded that it was a punitive action.
With respect to Debbie Gray, City claims that because she was disciplined by the placement of a written reprimand in her personnel file, she had the administrative remedy of appealing that discipline, and failed to exhaust it. City asserts that her failure to exhaust her administrative remedy barred her from seeking relief in the trial court. That is not so. The trial court maintains original jurisdiction over actions wherein a violation of the Public Safety Officers Procedural Bill of Rights Act is alleged, and an officer is not required to exhaust administrative remedies prior to seeking judicial relief for such violations. (Aguilar, supra, 202 Cal.App.3d at pp. 252-253; Gov. Code § 3309.5, subd. (b).) Debbie Gray alleged that she was disciplined in contravention of the one-year statute of limitations provided in Government Code section 3304, subdivision (d). If the allegation was well founded, the trial court had the ability to grant relief. Failure to exhaust administrative remedies is not a ground for reversal of the trial courts order.
Plaintiffs claim that they are entitled to an award of attorney fees on appeal. We have routinely held that the question of the right to attorney fees is more appropriately left to the trial court, upon proper application. (Security Pacific National Bank v. Adamo (1983) 142 Cal.App.3d 492, 498.)
DISPOSITION
The order is affirmed. Plaintiffs to recover their costs on appeal.
We concur: RICHLI, J., and WARD, J.