ASSOCIATION FOR LOS ANGELES DEPUTY SHERIFFS v. COUNTY OF LOS ANGELES

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Court of Appeal, Second District, Division 3, California.

ASSOCIATION FOR LOS ANGELES DEPUTY SHERIFFS;  Ely Bryant, Plaintiffs, Respondents, and Cross-Appellants, v. COUNTY OF LOS ANGELES;  Los Angeles County Sheriff's Department;  Sheriff Sherman Block;  Captain Lanier, Defendants, Appellants and Cross-Respondents.

Civ. B014834.

Decided: April 29, 1987

DeWitt W. Clinton, County Counsel, Lester J. Tolnai, Senior Deputy County Counsel, Los Angeles, for defendants, appellants and cross-respondents. Green & Shinee, Inc., and Richard A. Shinee, Encino, for plaintiffs, respondents and cross-appellants. Loew & Marr, Robert J. Loew, Cecil W. Marr and Diane Marchant, Los Angeles, as amicus curiae on behalf of Los Angeles Police Protective League.

Defendants, appellants and cross-respondents The County of Los Angeles, Los Angeles County Sheriff's Department (Department), Sheriff Sherman Block, and Captain Lanier (collectively, County) appeal an order granting a preliminary injunction in favor of plaintiffs, respondents and cross-appellants Association for Los Angeles Deputy Sheriffs (Association) and Ely Bryant (Bryant).

Bryant and the Association cross-appeal the trial court's order denying part of the preliminary injunction sought.

Because Government Code section 3303, subdivision (f) 1 allows for pre-interrogation discovery, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Bryant was employed as a Los Angeles County Deputy Sheriff, and as such was a member of the Association.   In mid–1984, Bryant became the subject of a narcotics investigation by the Department.   On June 27, 1984, his home was searched pursuant to a warrant.   No narcotics were found, but $20,000 in cash and various documents were seized.   Those papers disclosed, in part, that Bryant had over $30,000 deposited in two savings accounts, and together with his brother, had invested $50,000 in two limited partnerships since December 1983.

In August 1984, the district attorney made a determination not to file charges against Bryant due to insufficient evidence.   The Sheriff's Internal Investigation Bureau (Bureau) then commenced an investigation.   Pursuant thereto, an administrative interview with Bryant was held on October 29, 1984.   At the outset, Bryant's attorney requested notes of the information developed in the course of the Bureau's investigation.   The request was denied on the ground the information was deemed confidential while the investigation was ongoing.

Bryant was advised statements made by him could not be used in any subsequent court proceedings, and that his refusal to answer any questions could subject him to administrative discipline.

Bryant answered a number of questions, but on the advice of his attorney, declined to identify the source of the $20,000 seized at his residence.   Bryant also refused to respond to whether he was a party to any investments with his brother.

On January 24, 1985, the Bureau contacted Bryant and advised him he would be required to undergo a second interview, which would focus on Bryant's personal finances, sources of income, and business dealings with family members.

On January 28, 1985, Bryant filed a first amended complaint for a temporary restraining order, preliminary injunction, permanent injunction and declaratory relief.   He sought, inter alia, to compel the County to disclose all investigative information, and enjoin the County from further inquiry into his personal financial matters.

The trial court granted the preliminary injunction in part, and ordered the County enjoined “[f]rom refusing to provide employees of the Los Angeles County Sheriff's Department holding the rank of Deputy Sheriff, who are currently under administrative investigation, copies of transcribed notes made by a stenographer, or any and all reports or complaints made by investigators or other persons, except those documents which are specifically withheld on the basis of articulable reasons of confidentiality.  [¶] The foregoing documentation shall be provided to the deputy sheriff under investigation at a reasonable time prior to the commencement of the deputy's interrogation.”

The appeal and cross-appeal followed.2

CONTENTIONS

The County contends the trial court erred in requiring discovery of information in the investigative file prior to questioning, because:  (1) section 3303, subdivision (f), does not provide for pre-interrogation discovery;  and (2) the statute provides the investigating agency with discretion to determine which materials are deemed confidential.

Bryant counters that the trial court properly granted the preliminary injunction as to discovery, and cross-appeals the trial court's failure to enjoin the County from inquiring into his personal finances.

DISCUSSION

1. Appellate principles.

An order granting or denying a preliminary injunction is appealable, as being within the meaning of the provision for appeals in cases involving injunctions.  (Code Civ.Proc., § 904.1, subd. (f));  Socialist Workers etc. Committee v. Brown (1975) 53 Cal.App.3d 879, 885, fns. 5, 6, 125 Cal.Rptr. 915.)

“ ‘Whether a preliminary injunction shall be granted rests largely in the discretion of the trial court and will not be reversed on appeal unless there is a manifest abuse of discretion.’ ”  (Ingrassia v. Bailey (1959) 172 Cal.App.2d 117, 125, 341 P.2d 370.)   However, the interpretation of a statute is a question of law, and we are not bound by the trial court's determination.  (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856;  Shoban v. Board of Trustees (1969) 276 Cal.App.2d 534, 541, 81 Cal.Rptr. 112.)

Utilizing these principles, we look anew at the statute with due consideration being given to the trial court's interpretation.

2. Section 3303, subdivision (f), provides for pre-interrogation discovery.

Section 3303, subdivision (f), provides in relevant part:  “The complete interrogation of a public safety officer may be recorded.   If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time.   The public safety officer shall be 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 which are deemed by the investigating agency to be confidential.   No notes or reports which are deemed to be confidential may be entered in the officer's personnel file.”  (Italics added.)

The issue then is whether the foregoing italicized language gives an officer the right before interrogation to examine reports, complaints, and other information obtained in the course of an investigation.

a. Relevant principles of statutory construction.

“Where a statute is theoretically capable of more than one construction we choose that which most comports with the intent of the Legislature.   [Citations.]  Words must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible.   [Citations.]  Interpretive constructions which render some words surplusage, defy common sense, or lead to mischief or absurdity, are to be avoided.   [Citations.]”  (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844, 157 Cal.Rptr. 676, 598 P.2d 836;  accord White v. County of Sacramento (1982) 31 Cal.3d 676, 681, 183 Cal.Rptr. 520, 646 P.2d 191.)

(i) Legislative intent.

 The Public Safety Officers Procedural Bill of Rights Act (the Act) (§ 3300, et seq.) was enacted by the Legislature in 1976 to cover matters previously governed by local regulations and ordinances.3

“As its title suggests, the act sets forth a list of basic rights and protections which must be afforded all peace officers (see § 3301) by the public entities which employ them.   It is a catalogue of the minimum rights (§ 3310) the Legislature deems necessary to secure stable employer-employee relations (§ 3301).  [¶] In brief, the act ․;  (2) prescribes certain protections that must be afforded officers during interrogations which could lead to punitive action against them (§ 3303);  [fn. omitted.] (3) gives officers the right to review and respond in writing to adverse comments entered in their personnel files (§§ 3305, 3306);  (4) allows officers to refuse to submit to a lie-detector test (§ 3307);  (5) prohibits searches of officers' personal storage spaces or lockers except when they are present, or have been notified, or give their consent, or a valid warrant is obtained (§ 3309);  (6) limits the circumstances in which officers may be compelled to disclose their personal financial status (§ 3308);  (7) gives officers the right to an administrative appeal when any punitive action is taken against them, or they are denied promotion on grounds other than merit (§ 3304);  and (8) protects officers from retaliation for the exercise of their rights under the act (ibid ).”  (Baggett v. Gates (1982) 32 Cal.3d 128, 135, 185 Cal.Rptr. 232, italics added.)

b. Application here.

As set forth above, the relevant portion of the statute states:  “The public safety officer shall be 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 which are deemed by the investigating agency to be confidential.”  (§ 3303, subd. (f).)

The sentence begins with the officer's right to receive a transcribed copy of the stenographer's notes.   It is self-evident such notes are made during the interrogation, and transcribed and reproduced afterwards.   It is only after those tasks are completed that a transcribed copy is available to the officer.

The sentence goes on to provide the officer with a right “to any [nonconfidential] reports or complaints made by investigators or other [s]․”  (§ 3303, subd. (f), italics added.) 4  With the recognition that the officer obtains a transcript of the interview after the event, the County argues it would be inherently inconsistent to infer the officer has the right to receive the other items before the interrogation, particularly where the rights to the transcript and to the other materials appear in the same sentence.

The County's construction of the statute is an arguable one.   However, an alternative interpretation is equally persuasive.

 As indicated, section 3303, subdivision (f), gives the public safety officer the right to a transcript of the stenographer's notes and reports and complaints made by investigators and others.   While a transcript of course does not exist until after an interrogation, it can reasonably be inferred that the statute gives the officer the right to examine investigative materials as they become available.   Under this analysis, prior to the commencement of an interrogation, an officer would have the right to review all investigative materials then in existence, except those deemed confidential.

While the statute is thus susceptible to more than one construction, the latter interpretation comports with the Legislature's intent to “[afford] individual police officers certain procedural rights during the course of proceedings which might lead to the imposition of penalties against them․”  (White v. County of Sacramento, supra, 31 Cal.3d at p. 681, 183 Cal.Rptr. 520, 646 P.2d 191.)

Further, a contrary interpretation holding there is no access to pre-interrogation discovery would render the right to “reports or complaints made by investigators or other[s]” (§ 3303, subd. (f)), mere surplusage in light of section 3305.   That section provides:  “No public safety officer shall have any comment adverse to his interest entered in his personnel file, or any other file used for any personnel purposes by his employer, without the public safety officer having first read and signed the instrument containing the adverse comment indicating he is aware of such comment, ․” (§ 3305, italics added.)

Unless section 3303, subdivision (f), extends the right of inspection to a time before the interrogation, it would be redundant in light of section 3305.   Surplusage and redundancy are to be avoided in the construction of a statute.   (California Mfrs. Assn. v. Public Utilities Com., supra, 24 Cal.3d at p. 844, 157 Cal.Rptr. 676, 598 P.2d 836.)

3. No blanket privilege for ongoing investigation.

 The County argues that even assuming an officer has a right to review investigative material prior to an interrogation, section 3303, subdivision (f), excludes documents “deemed by the investigating agency to be confidential.”   While recognizing it must exercise its discretion re confidentiality in a reasonable manner, the County nonetheless maintains that information received while an investigation is ongoing must remain confidential.   The County's contention must fail.

A departmental policy which would allow information developed during an ongoing investigation to be deemed per se confidential would “swallow the rule” (Hoover v. Agriform Chemical Co. (1969) 268 Cal.App.2d 818, 823, 74 Cal.Rptr. 325), and render meaningless the disclosure provision of section 3303, subdivision (f).   Pursuant to its argument, the County could thwart any pre-interrogation discovery merely by characterizing the investigation as “continuing.”   Its interpretation is not reasonable.

a. “Articulable reasons” standard.

The trial court's order granting the preliminary injunction provides documents could be “withheld on the basis of articulable reasons of confidentiality.”  (Italics added.)   In ruling on the matter, the trial court seized upon the Evidence Code to control the meaning of that phrase.   It specifically stated the County would have to defend by proper declarations if it invoked the privilege of Evidence Code section 1040 (section 1040).5

The County contends the trial court erred in “rewriting” section 3303, subdivision (f), by subjecting it to the confidentiality standards of section 1040.   The County's position is well taken.

Section 1040 does not apply in the context of administrative interviews.   Except as otherwise provided by statute, the privilege rules of the Evidence Code “apply in all proceedings.”  (Evid.Code, § 910.)  “ ‘Proceeding’ means any action, hearing, investigation, inquest, or inquiry ․ in which, pursuant to law, testimony can be compelled to be given.”  (Evid.Code, § 901.)   People v. Belton (1979) 23 Cal.3d 516, 524, 153 Cal.Rptr. 195, 591 P.2d 485, in turn defines “ ‘[t]estimony’ ․ as oral statements made by a person under oath in a ․ proceeding.”  (Italics added.)   Further, the Evidence Code itself, at section 710, requires that “testimony” be made under oath.

 Based on this record, the interrogation of an officer as part of an internal investigation is not preceded by an oath.6  For that reason alone, an interrogation is not a “proceeding” and the statutory privilege rules do not apply.   Nonetheless, section 1040 may be helpful in enumerating various factors to be considered in ruling on an assertion of confidentiality.

 We find no blanket privilege exists to cover an ongoing investigation and that an assertion of confidentiality by the investigating agency must be supported by articulable reasons.7

4. Bryant's cross-appeal without merit.

 On cross-appeal, Bryant contends the trial court erred in failing to enjoin the County from inquiring into his personal finances, in violation of section 3308.

Section 3308 provides:  “No public safety officer shall be required or requested for purposes of job assignment or other personnel action to disclose any item of his property, income, assets, source of income, debts or personal or domestic expenditures (including those of any member of his family or household) unless such information is obtained or required under state law or proper legal procedure, tends to indicate a conflict of interest with respect to the performance of his official duties, or is necessary for the employing agency to ascertain the desirability of assigning the public safety officer to a specialized unit in which there is a strong possibility that bribes or other improper inducements may be offered.”

Bryant argues the exception re possible conflict of interest “is on its face inapplicable in that there is no rational nexus between [his] business activities and the Department's inquiries.”   Bryant's attempted resort to constitutional principles is facile, and ignores the Bureau's duty reasonably to maintain the integrity of the Department.

Section 3308 certainly allows for investigation of public safety officers in this regard.   On this record, the Bureau would be derelict if it did not look into Bryant's personal finances because the information so far known “tends to indicate a conflict of interest with respect to the performance of his official duties” (§ 3308), or at least puts the Bureau on inquiry as to whether Bryant should be assigned to a sensitive specialized unit, like narcotics, “in which there is a strong possibility that bribes or other improper inducements may be offered.”  (§ 3308.)

We readily reject his contention of an unwarranted scrutiny of his personal life regarding a matter not strictly related to the performance of his duties.   Bryant's narrow construction of section 3308 is strained, and ignores the full mandate of the statute.

CONCLUSION

Section 3303, subdivision (f), provides a right to discovery prior to the interrogation of the officer under investigation.   A contrary interpretation would not only contravene the Legislature's intent, but would also render the relevant provision mere surplusage in light of section 3305.   There is no blanket privilege for an ongoing investigation of the officer, and an assertion of confidentiality by the investigating agency must be supported by articulable reasons.

DISPOSITION

The order is affirmed.   Each party to bear respective costs on appeal.

FOOTNOTES

1.   All statutory references are to the Government Code, unless otherwise indicated.

2.   Although the order is couched in terms of prohibition, it compels the County to take affirmative action by providing certain documents.  (Agricultural Labor Relations Bd. v. Superior Court (1983) 149 Cal.App.3d 709, 713, 196 Cal.Rptr. 920.)   As a mandatory injunction, it was automatically stayed pending appeal.  (Code Civ.Proc., § 916;  Agricultural Labor Relations Bd. v. Superior Court, supra, at p. 713, 196 Cal.Rptr. 920.)   However, at oral argument it was stipulated that the County has been complying with the order for two years, without undue incident.

3.   Pursuant to Evidence Code sections 452, subdivision (c), and 459, this court has judicially noticed certain official acts of the Legislature in its quest for legislative intent.

4.   Although ordinarily “or” connotes the disjunctive, to be consistent with our interpretation carrying out the legislative intent (see Houge v. Ford (1955) 44 Cal.2d 706, 712, 285 P.2d 257), the use of the “ors” in this sentence, must be construed to mean “and.”

5.   Section 1040 provides in relevant part:  “(a) As used in this section, ‘official information’ means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.  [¶]  (b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and:  [¶] (1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state;  or [¶] (2) Disclosure ․ is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice;  ․”

6.   The advisement card which is read to interview subjects prior to questioning makes no mention of any oath.

7.   Due to the absence of a specific invocation of confidentiality and subsequent lack of briefing on the issue, we do not prescribe those standards further here.   Further clarification in this regard may be an area for legislative action.

KLEIN, Presiding Justice.

LUI and DANIELSON, JJ., concur.