LEGAL UPDATE
By Roy Yang

COURT LIMITS POBR ONE-YEAR NOTICE

In a case interpreting the statute of limitations for peace officer discipline, the Third District Court of Appeal ruled the Public Safety Officers Procedural Bill of Rights Act (POBR) does not require a formal notice of adverse action within one year of the discovery of an officer’s misconduct. The court held informal notice satisfies the requirements of due process. (Sulier v. State Personnel Board (2004) 125 Cal.App.4th 2.)

The POBR, which was first enacted in 1976, provides for basic rights and protections to all peace officers by the public entities which employ them. (California Correctional Officers Assn. v. State of California (2000) 82 Cal.App.4th 294, 98 Cal.Rptr. 2d 302.) One of the protections is speedy adjudication of disciplinary actions. (Govt. Code §3304, Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 63.

The POBR requires law enforcement agencies to complete an investigation of alleged misconduct within one year of the discovery of the misconduct by a person authorized to start an investigation. (Sulier at 691.) If the agency determines discipline may be taken, it must give the officer notice of the proposed disciplinary action within the one-year period.

In Sulier, the California Department of Corrections (CDC) notified a correctional sergeant its investigation was completed. In the same letter, the CDC proposed a one-step demotion. Within 30 days of that notice, but over a year after the investigation started, the CDC served Sulier with a formal notice of adverse action notifying him of its decision to impose discipline.

Sulier argued the POBR requirements were not met because he was not served with formal notice within the one-year period. The SPB agreed with him.

However, the Third District Court of Appeal rejected Sulier’s claim on appeal by the CDC. The court reasoned nothing in the statutes requires formal notice of proposed discipline. According to the court, “to propose” does not mean “to carry out.” The notice required under section 3304(d) comes at a time when the decision to discipline is not final. The court said it would make no sense for the agency to serve a formal notice on the officer when the agency has not made a decision as to what discipline to hand down and when to impose the discipline. The court held formal notice would make the subsequent, post-Skelly notice required under subdivision 3304(f) meaningless.

COURT UPHOLDS CANCER PRESUMPTION

The Second District Court of Appeal has rejected a challenge to the workers’ compensation cancer presumption for peace officers based on a defense that no medical studies exist linking kidney cancer to Benzene exposure. (City of Long Beach v. Workers’ Compensation Appeals Board (2005) 126 Cal.App.4th 298.)

A Long Beach police officer who contracted kidney cancer during his employment received workers’ compensation benefits when he showed that he was exposed to Benzene. Benzene is a known human carcinogen and a known contaminant of gasoline. The officer was assigned to patrol duty during his entire tenure and claimed various industrial exposures to carcinogens, such as daily exposure to vehicle exhaust, gasoline, anti-freeze, accidents, second-hand smoke, fires and dope labs.

Under Labor Code section 3212.1, when peace officers and firefighters demonstrate exposure to known carcinogens during the course of their employment, a presumption arises that any cancer they contract during, or within a specified period after employment arose out of and in the course of their employment. The purpose of section 3212.1 is to remove the requirement that a peace officer prove a reasonable link between a carcinogen and the disabling cancer before the cancer is presumed compensable. To rebut the presumption, the employer must prove the absence of a reasonable link between the cancer and the industrial exposure to the carcinogen.

The court held an employer cannot meet its burden merely by showing that no studies exist proving a positive link between the exposure and a particular form of cancer. The absence of medical evidence or studies linking a known carcinogen with a particular form of cancer, the court said, simply proves there is a lack of medical information and is not considered proof that a reasonable link does not exist.

The Legislature was concerned in the cancer presumption with the unfairness to peace officers who, while exposed to carcinogens during the course of their job duties, nonetheless were denied benefits because it was not possible to discern the cause of the cancer. When it is not possible to determine whether exposure to the carcinogen caused the cancer, wrote the court, the employer, not the employee, should bear the burden of the uncertainty.

POST RECORDS HELD EXEMPT FROM PUBLIC RECORDS ACT DISCLOSURE

The Los Angeles Times sued to compel the Commission on Peace Officer Standards and Training (POST) to disclose the names and certain identifying employment information about peace officers throughout the state. A trial court granted the newspaper’s request under the California Public Records Act (CPRA). (California Commission on Peace Officer Standards and Training v. Superior Court (2005) 128 Cal.App.4th 281.)

Adopted in 1968, the CPRA (Government Code § 6254 et seq.) provides a statutory procedure by which members of the public, including newspapers, may obtain non-privileged public information. The CPRA, however, enumerates a host of exemptions, all of which protect individual privacy in records that happen to appear in government files.

In the Los Angeles Times case, the Third District Court of Appeal rejected the newspaper’s request for POST records. The court found that all the information sought by the Times was obtained by POST from peace officer personnel records and therefore exempt from disclosure. Peace officer personnel records are confidential. (Penal Code § 832.5.) Penal Code section 832.5 and the Pitchess procedure provide the exclusive means by which anyone, including a newspaper, can obtain peace officer personnel records.