Government Liability Update

POBRA Deadline to Complete Administrative Investigation Tolled until Final Determination Made in Criminal Investigation

In Bacilio v. City of Los Angeles, published October 25, 2018, the Second District Court of Appeal, Division 2 affirmed a trial court decision on an administrative mandamus petition.  In  August 2011, a witness accused two police officers of misconduct that could give rise to both criminal and administrative liability.  Internal Affairs investigated the matter, and in June 2013 the investigator presented his findings to the District Attorney's office.  In August 2013, a deputy DA interviewed the complaining witness, and afterward commented that she was not going to file against the officers and that it was okay to administratively interview the officers.  In October 2013, the DA's office sent Internal Affairs a charge worksheet officially declining to file charges against the officers.  In September 2014, the LAPD notified the petitioner officer that Internal Affairs was seeking an official reprimand against him, and in November 2014 it brought administrative charges against him.  One of the charges against him was sustained, upheld in an administrative hearing, and upheld by the trial court.  The officer contended that the charge was time-barred because the department did not notify him of the potential discipline within the one-year limitations period of Government Code section 3304, subdivision (d)(2)(A), part of the Peace Officer's Bill of Rights.

The appellate court ruled that the notice was timely.  Section 3304 tolls the one-year period during the time that a criminal investigation or prosecution is pending against any officer involved in the matter.  The court interpreted this tolling period to run until there is a final determination whether to prosecute.  The court affirmed, as supported by substantial evidence, the trial court's determination that there was no final determination until the DA provided the worksheet, despite the DDA's earlier statement that charges would not be filed.

University Denied Student a Fair Hearing by Depriving Him of Investigation Report Crucial to Its Decision Against Him

In Doe v. Regents of University of California, published October 9, 2018, the Second District Court of Appeal, Division 6 reversed a trial court decision denying a university student a petition for writ of administrative mandate.  A female student accused the male student of sexually assaulting her while the two were on a bed, the woman under the covers and the man on top of the covers.  Others were in the room and did not see the alleged assault.  A Santa Barbara County Sexual Assault Team investigated the alleged assault, and compiled a report.  At the administrative hearing contesting the male student's suspension, the committee hearing the matter saw only two pages from the SART report.  The man was not provided with a full copy of the report.  The committee allowed an investigating officer to testify to a portion of the SART report that appeared to corroborate that the woman had been sexually assaulted.  But the officer could not answer whether the information was based on a physical exam or on the woman's allegations.  Shortly before the administrative hearing, the student learned the name of an antidepressant the woman was taking.  He tried to submit his mother's testimony about the effects of the drug with alcohol, but the committee ruled she could not render an expert opinion.  The committee determined the allegations of assault were corroborated, and suspended the student for two years.

The appellate court ruled that the male student had been denied due process.  The committee denied the student a fair trial by accepting the investigator's testimony about a portion of the SART report, but not seeing the report themselves and denying the student a copy.  Fairness demands the accused person be given the evidence against him.  The Rule of Completeness also required that once a portion of the SART report was introduced into evidence, the student was entitled to get and submit evidence about the rest.  Since the report was crucial to the outcome, the errors were prejudicial.  Other errors that deprived the student of due process included that the antidepressant evidence was revealed to the student too late for him to obtain an expert opinion, yet the committee barred non-expert evidence; the committee did not permit the student to be represented by counsel at the hearing, yet the University had counsel present who made evidentiary objections; and the committee applied the rules of evidence inconsistently, to the student's detriment.

Agency May Recover Cost of Redacting Electronic Records Produced in Response to CPRA Request

In National Lawyers' Guild v. City of Hayward, published September 28, 2018, the First District Court of Appeal, Division 3 reversed a trial court's issuance of a writ of administrative mandate directing the respondent city to refund to the petitioner payments the petitioner made for copies of police body cam video footage the city produced in response to a California Public Records request.  The city charged the petitioner for the cost of city employees reviewing the videos and using Windows Movie Maker to redact material exempt from the CPRA on privacy or security grounds.  The city sought the cost under a portion of the CPRA, Government Code section 6253.9, subdivision (b)(2).  The statute requires the requester to bear the cost of producing a copy of an electronic record if the request would require "extraction" to produce the record.  The trial court concluded that the phrase "extraction" does not apply to redaction of an electronic record, but only to extraction necessary to produce the record.

The appellate court disagreed.  Concluding that the statute's language is ambiguous, the court reviewed the legislative history.  It noted a concern that the cost of producing only portions of electronic records would exceed the cost of redacting paper documents.  The court concluded that "extraction" as used in the statute includes the cost of redacting exempt portions of electronic documents before producing them under the CPRA.