State Assemblymember Mark Leno (D-San Francisco) is planning to introduce legislation, which, if passed, could reopen police complaint hearings around the state.
The California Supreme Court decision Copley Press v. San Diego resulted in cities with police complaint boards either suspending their public police complaint hearings, as Berkeley did, or closing them to the public, as Oakland has done.
The Supreme Court case involved San Diego Union-Tribune publisher Copley Press which filed suit after the San Diego County Civil Service Commission, which has the power to discipline police officers, blocked the newspaper’s access to a complaint hearing on allegations against a sheriff’s deputy.
The lower court ruled in Copley’s favor, but police unions appealed. In a 6-1 decision in August, the California Supreme Court said the public doesn’t have the right to access discipline records of officers who come before panels that consider police misconduct, because such records are private personnel records, maintained by the officer’s “employing agency” and exempt from public disclosure.
In November, Berkeley contested a lawsuit brought by the Berkeley Police Association, similarly contending that police officer hearings and records of the hearings must remain closed to protect the privacy of police officers. The city lost to BPA last week in Superior Court.
The definition of an “employing agency” was germane to both this week’s Berkeley v. BPA decision as well as to the Copley Press case; it is central to the legislation Leno plans to introduce.
In a phone interview Wednesday with the Planet, Leno said the current law “prevents public access [to records] held by the employing agency.” He said the key to reopening the hearings and the records of them is redefining the notion of “employing agency.”
In his legislation, a department or agency that does not directly employ the officer would not be considered an “employing agency.”
The legislation “would overturn that specific component of Copley,” he said. It would allow commissions that conducted open hearings before Copley to resume doing so, he said.
In San Diego, the Civil Service Commission was deemed the employing agency; in Berkeley, Judge Winifred Smith ruled, contrary to the Berkeley City Attorney’s argument, that the PRC is the employing agency. “PRC records are protected under Penal Code section 832.7 because they are maintained by the peace officers’ employing agency, the city of Berkeley,” Smith wrote.
Among the problems closed complaint hearings present, Leno said, is that the public is excluded from important information regarding police conduct: Is the disciplining body exhibiting a pattern of leniency toward a particular officer? Has an officer engaged in repeated misconduct? Has a department hired an officer who had disciplinary problems in a previous department?
Leno’s legislation would allow the public access to the name of the subject officer, the complaint against the officer, a summary of findings and the resultant discipline.
Leno underscored that the legislation would protect the officer by revealing information only on charges that were sustained, and keep confidential those that were not. Frivolous complaints would not be made public.
“We want to be respectful of the important work police officers do,” Leno said.
Leno is working in tandem with State Senate Majority Leader Gloria Romero (D-Los Angeles). The legislation introduced in the two state houses will be identical.