LEGAL UPDATE By Nechelle L. Snapp Court Holds POBR Entitles Community College Police To Disclosure of Discrimination Complaints In a decision upholding the right of public safety officers to copies of citizen complaints, the First District Court of Appeal has held two City College of San Francisco police officers were entitled to see race discrimination complaints filed against them with the college’s affirmative action office. (Seligsohn v. Day (2004) 16 Cal.Rptr.3d 909.) Peace officers have the right under the Public Safety Officers Procedural Bill of Rights Act (POBR) to review and respond to “adverse comments” kept by the employer in any file used for personnel purposes. (Govt. Code §§ 3305, 3306.) California courts have been expanding gradually the definition of “adverse comments” to include any document with the potential to adversely affect an officer’s career. The City College of San Francisco argued in the Seligsohn case that it could withhold the race discrimination complaints because the complaints were not sustained and were kept separate from the officers’ personnel files. Both complaints, however, had been sent to college administrators and the campus police chief as part of a college policy requiring discrimination complaints to be investigated. The court relied on Aguilar v. Johnson (1988) 202 Cal.App.3d. 241, which held a chief of police could not escape the disclosure requirements of the POBR by maintaining a citizen complaint in a file separate from a personnel file. In Seligsohn, the court was concerned with “the obvious fact that the regulations mandate both a prompt and thorough investigation of any and all complaints alleging any form of discrimination and give oversight of such investigations to the Chancellor’s office.” Seligsohn, at 919. This process, along with the holding in previous cases such as Aguilar, led the court to conclude section 3305 applied to the documents requested by the officers, mandating their release. Court Forces Disclosure of Police Officer’s Name in Public Records Act Request Newspapers and the public will have broader access to the names of peace officers involved in discipline cases under a recent decision from the Fourth District Court of Appeal. In Copley Press, Inc. v. Superior Court (2004) 122 Cal.App.4th 489, the court held the redaction of the officer’s name from records released to the media violated the California Public Records Act (CPRA). When the Copley Press, owners of the San Diego Union-Tribune newspaper, requested documents relating to a police discipline appeal from the San Diego Civil Service Commission last March, the Commission denied the request based on an earlier court decision in San Diego Police Officers Assn. v. City of San Diego Civil Service Commission (2002) 104 Cal.App.4th 275. In the San Diego POA case, the same court had held Penal Code sections 832.7 and 832.8, relating to confidential peace officer personnel records, prohibited the employer from introducing discipline records at a civil service proceeding open to the public. The Copley court, however, decided those records, including the name of the involved officer, had to be released in response to a CPRA request because the records were not privileged. The Commission, the court said, is not an “employer” under the confidentiality statutes. The records therefore were not privileged against disclosure. The court also determined the public interest in those records outweighed any privacy interest for the deputy sheriff. Release of the records was required, the court said, to maintain public confidence in the peace officer discipline process. LEGISLATIVE UPDATE Law Enforcement Officers Safety Act of 2004 Allows Current and Retired Police Officers to Carry Concealed Weapons Nationwide Without a Permit On July 22, 2004, President George Bush signed H.R. 218, the Law Enforcement Officers Safety Act of 2004, into law. The act amends Title 18 of the United States Code to allow qualified current and former law enforcement officers to carry concealed handguns anywhere in the U.S. The new law contains some important limitations regarding current law enforcement officers. First, the law expressly states it does not limit state laws that permit private persons or entities (such as bars) to restrict the possession of concealed firearms on their property. State laws may still prohibit or restrict the possession of firearms on any “State or local government property, installation, building, base or park.” Second, the law applies only to qualified law enforcement officers, not to all law enforcement officers. A qualified law enforcement officer is one who is currently authorized to engage in the prevention and detection of persons for violations of the law; is authorized by the agency to carry a firearm; is not the subject of disciplinary action; meets agency standards in qualifying with a firearm; is not under the influence of alcohol or drugs; and is not prohibited by federal law from receiving a firearm. The new law likewise contains some important limitations regarding retired law enforcement officers. A qualified retired law enforcement officer is one who is retired in good standing from service with a public agency as a law enforcement officer, other than for reasons of mental instability; before such retirement was authorized to engaged in the prevention and detection of persons for violations of the law; before such retirement was regularly employed as a law enforcement officer for an aggregate of 15 years or more or retired from service after a probationary period due to a service-connected disability; has a non-forfeited right to agency retirement benefits; during the most recent 12 month period, has met, at individual expense, the State’s standards for training and qualification for active law enforcement officers to carry firearms; is not under the influence of alcohol or drugs and is not prohibited by federal law from receiving a firearm. Both current and retired officers must carry proper identification while carrying a concealed weapon. Proper identification must include photo identification from the agency. For retired officers, there must be proof the officer successfully qualified with the weapon within the last 12 months. Nechelle L. Snapp joined MH&A’s Labor Department after serving for ten years as an active duty Air Force Judge Advocate.