Principles for Public Safety Employment

entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those portions that are otherwise required by law to be kept confidential. Notes or reports that are deemed to be confidential shall not be entered in the [employee’s] personnel file…” There is a split of authority regarding the proper interpretation of the provision in the POBR. In San Diego Police Officers Association v. City of San Diego , 157 the department’s practice was to provide an officer who is the subject of an internal affairs investigation with only the investigator’s final written report and a copy of the complaint that initiated the particular investigation, and only at the conclusion of the investigation. The union representing the city’s officers filed a petition for writ of mandate asserting that Section 3303(g) required the department, at the conclusion of an internal affairs investigation, to provide not only the final report and complaint, but also the investigator’s raw notes and any tape-recorded interviews of witnesses. Both the trial court and the Fourth District Court of Appeal, Division One, agreed with the union’s interpretation of Section 3033(g). Three years after the San Diego Police Officers Association decision, a different Court of Appeal reached a markedly different conclusion. In Gilbert v. City of Sunnyvale , 158 an officer who had been terminated filed a petition for writ of mandate alleging his former employer violated Section 3303(g) when it did not provide him with all the documents and videotapes referenced in the investigator’s report. Those materials were withheld by the department because they were not relied upon in reaching the decision to terminate and because their release would compromise an on-going criminal investigation being conducted by an outside agency. The Sixth District Court of Appeal expressly disagreed with the San Diego Police Officers Association Court and held its expansive interpretation of the phrase “reports or complaints” in Section 3303(g) was not consistent with the Legislative intent of the statute. Thus, there are conflicting opinions concerning the extent of materials that must be provided to officers under Section 3303(g) and, in turn, the scope of materials that must be provided to firefighters under Section 3253(g). Until there is further clarification from the courts, we recommend that agencies follow the more recent Gilbert decision (unless a particular agency is within the geographic area covered by the Fourth District Court of Appeal, Division One) and take a limited view of Section 3253(g). G. S PECIAL C ONSIDERATIONS W HEN C RIMINAL C HARGES ARE P OSSIBLE When the allegations of misconduct into which an administrative investigation is being conducted also involve potential criminal misconduct, there are a some special considerations agencies must take into account. With respect to firefighters, the FBOR sets forth additional procedural requirements when a subject firefighter is investigated for criminal misconduct. 1. R ESPONDING TO THE A RREST OF A P UBLIC S AFETY E MPLOYEE Labor Code section 432.7(a) prohibits an employer from disciplining an employee based on an arrest that has not resulted in a conviction. Therefore, an agency may not take adverse action against most employees, including placing them on paid administrative leave, based solely on the

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