PASADENA POLICE OFFICERS ASSOCIATION v. CITY OF PASADENA (1988)

Is a public safety officer who is the subject of an internal affairs investigation regarding his conduct entitled to copies of nonconfidential reports or complaints made by investigators or other persons prior to being interrogated?   After reviewing the language of the Public Safety Officers Bill of Rights Act (Govt. Code, § 3300 et seq., hereafter “the Act”) and its purpose as well as considering the serious consequences an internal affairs investigation can have upon the career of a public safety officer, we answer this question in the affirmative.¹

BACKGROUND

In 1986, negotiations between the City of Pasadena (“City”) and the Pasadena Police Officers Association (“PPOA”) reached an impasse.   PPOA decided to send letters discussing the impasse to various City residents, including the block captains of the Neighborhood Watch Program.   With this in mind, Officer Robert Ford, vice-president of PPOA, contacted Commander Richard Emerson and requested a list of the block captains.   In denying this request, Emerson informed Ford, both orally and in writing, that the list of block captains was intended solely for purposes of “crime prevention.”

PPOA nonetheless obtained the list of block captains and contacted them.   After learning PPOA had done so, Emerson initiated an internal affairs investigation regarding possible insubordination by Officer Dennis Diaz, president of PPOA.   Lieutenant Donnie Burwell was placed in charge of the investigation.

On May 26, 1986, Burwell questioned Ford regarding the allegation that Diaz was in possession of the list of block captains.   Burwell scheduled an interrogation of Diaz for June 5, 1986.   Prior to the interrogation, Burwell presented Diaz with a copy of the allegations against him.   However, Burwell denied Diaz's request for a copy of Burwell's notes from the Ford interview, indicating that, unless deemed confidential, such notes would be made available to Diaz at the conclusion of the internal affairs investigation.²  Burwell did agree to postpone the interrogation until the issue of whether Diaz was entitled to the notes prior to his interrogation could be judicially resolved.

On June 9, 1986, PPOA and Diaz filed a complaint against City, the Pasadena Police Department (“Department”), Police Chief James Robenson, Burwell, and several Does seeking, inter alia, preliminary and permanent injunctions.³

On October 17, 1986, the trial court issued a preliminary injunction enjoining defendants, in part, “[f]rom ordering Plaintiff Diaz or any member of [PPOA] similarly situated to participate in an Internal Affairs investigation until such time as Plaintiff Diaz or a member of [PPOA] has been provided with a transcribed copy of any notes made by a stenographer or to [sic ] any reports or complaints made by investigators or other persons, except those documents which are specifically withheld on the basis of articulable reasons for confidentiality.  [¶ ] The foregoing documentation shall be provided to the officer under investigation at a reasonable time prior to the commencement of the officer's interrogation.”   Defendants appeal from the order granting a preliminary injunction.

STANDARD OF REVIEW

“ ‘The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy.   It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the right claimed by him.’  [Citations.]  The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action.  [Citations.]  Thus, the court examines all of the material before it in order to consider ‘whether a greater injury will result to the defendant from granting the injunction than to the plaintiff from refusing it;  ․’ [Citations.]  In making that determination the court will consider the probability of the plaintiff's ultimately prevailing in the case and, it has been said, will deny a preliminary injunction unless there is a reasonable probability that plaintiff will be successful in the assertion of his rights.  [Citations.]  ․ ‘In the last analysis the trial court must determine which party is the more likely to be injured by the exercise of its discretion [citation] and it must then be exercised in favor of that party [citation].’ ” (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528, 67 Cal.Rptr. 761, 439 P.2d 889.)

“ ‘The authorities are numerous and uniform to the effect that the granting or denial of a preliminary injunction on a verified complaint, together with oral testimony or affidavits, even though the evidence with respect to the absolute right therefore may be conflicting, rests in the sound discretion of the trial court, and that the order may not be interfered with on appeal, except for an abuse of discretion.’  [Citation.]  Discretion is abused in the legal sense ‘whenever it may be fairly said that in its exercise the court in a given case exceeded the bounds of reason or contravened the uncontradicted evidence.’  [Citations.]”  (Id. at p. 527, 67 Cal.Rptr. 761, 439 P.2d 889, fn. omitted.)

CONTENTIONS

Relying on both the “plain meaning rule” of statutory construction and the legislative history of the Act, defendants contend that the language of section 3303, subdivision (f), does not mandate preinterrogation disclosure of an investigator's notes and that the Legislature would have specifically included such a requirement if that were its intent.   Defendants further assert that articulable reasons for confidentiality exist in the case at bench which justify nondisclosure of the investigator's notes.

DISCUSSION

I. Statutory InterpretationA. The Act

“As its title suggests, the [A]ct 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 [A]ct (1) secures to officers the right to engage in political activity, if they so desire, when off-duty and out of uniform, ‘[e]xcept as otherwise provided by law’ (§ 3302);  (2) prescribes certain protections that must be afforded officers during interrogations which could lead to punitive action against them (§ 3303);  (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 [A]ct (ibid.).”  (Baggett v. Gates (1982) 32 Cal.3d 128, 135, 185 Cal.Rptr. 232, 649 P.2d 874, fn. omitted.)

Regarding the interrogation of a suspected public safety officer, section 3303 provides, in pertinent part:  “When any public safety officer is under investigation and subjected to interrogation by his commanding officer, or any other member of the employing public safety department, which could lead to punitive action, such interrogation shall be conducted under the following conditions․

“(a) The interrogation shall be conducted at a reasonable hour, preferably at a time when the public safety officer is on duty, or during the normal waking hours for the public safety officer, unless the seriousness of the investigation requires otherwise․

“(b) The public safety officer under investigation shall be informed prior to such interrogation of the rank, name and command of the officer in charge of the interrogation, the interrogating officers, and all other persons to be present during the interrogation.   All questions directed to the public safety officer under interrogation shall be asked by and through no more than two interrogators at one time.

“(c) The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation.

“(d) The interrogating session shall be for a reasonable period taking into consideration gravity and complexity of the issue being investigated.   The person under interrogation shall be allowed to attend to his own personal physical necessities.

“(e) The public safety officer under interrogation shall not be subjected to offensive language or threatened with punitive action, except that an officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action.   No promise of reward shall be made as an inducement to answering any question․

“(f) 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.   The public safety officer being interrogated shall have the right to bring his own recording device and record any and all aspects of the interrogation.

“(g) If prior to or during the interrogation of a public safety officer it is deemed that he may be charged with a criminal offense, he shall be immediately informed of his constitutional rights.

“(h) Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters which are likely to result in punitive action against any public safety officer, that officer, at his request, shall have the right to be represented by a representative of his choice who may be present at all times during such interrogation.”

B. Principles of Statutory Construction

The following principles of statutory construction are relevant to the resolution of the issues presented in the case at bench:

“ ‘The rules relating to the construction of statutes are applicable only where statutory language is uncertain and ambiguous.   Where the meaning of a statute is plain, its language clear and unambiguous, and there is no uncertainty or doubt of the legislative intent, there is no need for construction and the courts should not indulge in it.   They must follow the language used and give to it its plain meaning, whatever may be thought of the wisdom, expediency, or policy of the act, even if it appears probable that a different object was in the mind of the legislature.’  [Citations.]”  (Wallace v. Department of Motor Vehicles (1970) 12 Cal.App.3d 356, 360, 90 Cal.Rptr. 657;  see also Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 218–219, 188 Cal.Rptr. 115, 655 P.2d 317.)

“[A] court is to construe a statute ‘ “so as to effectuate the purpose of the law.” ’  [Citation.]”  (White v. County of Sacramento (1982) 31 Cal.3d 676, 681, 183 Cal.Rptr. 520, 646 P.2d 191.)  “Where a statute is theoretically capable of more than one construction [a court must] 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.)

Moreover, “when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.  [Citations.]”  (Ford Motor Co. v. County of Tulare (1983) 145 Cal.App.3d 688, 691–692, 193 Cal.Rptr. 511.)

However, all rules of statutory construction “shall always ‘ “be subordinated to the primary rule that the intent shall prevail over the letter.” ’   [Citations.]”  (Estate of Banerjee (1978) 21 Cal.3d 527, 539–540, 147 Cal.Rptr. 157, 580 P.2d 657.)

C. Application

 Defendants contend the plain language of section 3303, subdivision (f), and its legislative history support their view that they need not provide a public safety officer with the nonconfidential notes of an investigation until after his interrogation is completed.   However, since subdivision (f) does not directly address the timing issue presented by this case, the “plain meaning rule” is inapplicable.   Moreover, the legislative history of the Act does not shed any light on the issue before us.

Defendants next contend that, had the Legislature intended to require preinterrogation disclosure, it would have included specific language to that effect.   In support of this argument, defendants refer to portions of subdivisions (b), (c), and (f) of section 3303 wherein the Legislature specifically included the word “prior” when describing the activity which is mandated or prohibited.

While at first blush defendants' argument seems persuasive, a closer examination of section 3303 reveals its fallacy.   For example, section 3303, subdivision (e), provides, inter alia, that “an officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action.”  (Cf. Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 827–828, 221 Cal.Rptr. 529, 710 P.2d 329.)   It would be ludicrous to suggest that the omission of the words “prior to the termination of the interrogation” in the foregoing subdivision suggests that the Legislature intended such an admonition to occur after the interrogation has concluded, a time when it is of no benefit to a suspected officer.   Likewise, we conclude that the Legislature's silence regarding the timing of the disclosure at issue in the case at bench is not indicative of an intent to have the disclosure follow the interrogation.

 We must therefore determine whether the purpose and spirit of the Act requires the disclosure of an investigator's notes to occur prior to the interrogation of a public safety officer.

Section 3301 provides:  “The Legislature hereby finds and declares that the rights and protections provided to peace officers under this chapter constitute a matter of statewide concern.   The Legislature further finds and declares that effective law enforcement depends upon the maintenance of stable employer-employee relations, between public safety employees and their employers.”

The Legislature clearly intended to provide extra procedural protections to public safety officers suspected of misconduct.  (See White v. County of Sacramento, supra, 31 Cal.3d at p. 681, 183 Cal.Rptr. 520, 646 P.2d 191.)   Such procedural protections are certainly related to the legislative goal of stabilizing employer-employee relations.

Defendants suggest that compelled disclosure of nonconfidential investigator notes prior to an interrogation would impede the effectiveness of their fact-finding mission.   In their brief, defendants argue that an interpretation of section 3303, subdivision (f), which requires preinterrogation disclosure “would interfere with a fresh and spontaneous interview of the police officer in an effort by the Department to determine the truth.”   Defendants further contend that “the only way to obtain a spontaneous, unfettered version of the facts by Diaz is for the interrogation to proceed without his access to the notes of the interview of Ford.  [¶ ] Assuming that Diaz intends to tell the truth, ․ there is no advantage or disadvantage to him in not having Ford's statement.”

We disagree with defendant's assessment of the advantage a suspected public safety officer would derive from having copies of reports or complaints made by investigators or other persons prior to his interrogation.   Contrary to defendants' suggestion that a public safety officer would use the information obtained solely to evade the truth, we conclude that there are many legitimate reasons why an officer would want to be informed of other witnesses' statements.   For example, given the numerous daily contacts the average officer has with the public, it is not difficult to envision an officer having trouble remembering the events surrounding the alleged misconduct.   Access to this information may properly refresh an officer's recollection regardless of whether the information is favorable to his position.   Rather than impeding defendants' search for the truth, informing a suspected officer of the information provided by others will permit him to meet the charges head-on.   Forcing a public safety officer to be interrogated while depriving him of relevant information is clearly contrary to the special protections envisioned by the Act.

Defendants further assert that “[t]here is no significant prejudice to the police officer in not having the opportunity to review ․ notes, reports or complaints at ․ a preliminary stage of an investigation․  [¶ ] Moreover, if the investigation results in a disciplinary action being instituted against the police officer ․, the police officer is entitled to an administrative appeal of such punitive action.   Also, state law ․ entitles the officer to notice of the charges and an opportunity to review all documents and materials on which the charges are based prior to the imposition of disciplinary action.   Finally, the officer is entitled to a full and complete evidentiary hearing to appeal any disciplinary action.”

However, it must be remembered that a public safety officer does not have the option of refusing to participate in an internal affairs investigation.⁴  Since the future of a public safety officer's career is wholly dependent upon an unblemished record and a reputation for good conduct, he has a special interest in nipping any allegations of misconduct in the bud before those charges blossom into a full-fledged disciplinary hearing.   Unlike other professionals, a public safety officer is under a perpetual microscope whether on or off duty.   When a public safety officer has been terminated for misconduct, his prospects of further employment are severely restricted.   It would be of little or no benefit to a suspected public safety officer to be provided with the statements made by other witnesses only after he has been interrogated.

We therefore conclude the trial court properly determined that a public safety officer who is the subject of an internal affairs investigation is entitled to copies of nonconfidential reports or complaints made by investigators or other persons prior to being interrogated.

II. Confidentiality

We also reject defendants' contention that articulable reasons for confidentiality exist which justify nondisclosure of the investigator's notes.⁵

The reason for confidentiality proffered by defendants is merely that “[t]he preliminary investigation reveals that there are no other witnesses to this incident such that the outcome will be determined based on the credibility of the versions of the facts stated by Diaz and Ford․  [¶ ] ․ The Department may choose to believe Ford or Diaz, but without confidentiality of the interrogator's notes, the Diaz interview may not result in a balanced analysis of the respective statements.”

Assuming, as defendants certainly are, that Diaz's statements will be contrary to those made by Ford, we fail to see how an issue of credibility can be used to eliminate substantial procedural protections conferred by the Legislature.   Indeed, were we to accept defendants' argument, a public safety officer would never be entitled to preinterrogation disclosure of the investigator's notes since every interrogation presents the possibility that the result of the investigation will hinge on the credibility of the witnesses.   Such an emasculation of section 3303, subdivision (f), cannot be permitted.   This is especially true in a case such as this where the identity of the witness whose statement is being sought is known to all parties.

DISPOSITION

The order granting a preliminary injunction is affirmed.

FOOTNOTES

1.   Unless otherwise stated, statutory references are to the Government Code.Except when referring to a specific individual, the masculine pronoun includes the feminine.  (See, e.g., Evid.Code, § 9, Code Civ.Proc., § 17.)

2.   According to Diaz and PPOA, Burwell indicated that the requested documentation would be deemed confidential only during the pendency of the investigation and would be released to Diaz at the conclusion of the investigation.

3.   A first amended complaint was filed naming City Manager Donald McIntyre as an additional defendant.   All named defendants will hereafter collectively be referred to as “defendants.”

4.   An officer who refuses to participate in an internal affairs investigation is subject to discipline for insubordination.  (§ 3303, subd. (e);  Lybarger v. City of Los Angeles, supra, 40 Cal.3d at pp. 827–828, 221 Cal.Rptr. 529, 710 P.2d 329.)

5.   The preliminary injunction under review permits defendants to withhold “those documents which are specifically withheld on the basis of articulable reasons for confidentiality.”

DEVICH, Associate Justice.

L. THAXTON HANSON, Acting P.J., and ORTEGA, J., concur.