Bill Text: CA SB449 | 2023-2024 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Peace officers: Peace Officer Standards Accountability Advisory Board.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2023-10-07 - Chaptered by Secretary of State. Chapter 397, Statutes of 2023. [SB449 Detail]

Download: California-2023-SB449-Amended.html

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Amended  IN  Senate  April 10, 2023

Amended  IN  Senate  March 20, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill

No. 449

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Introduced by Senator Bradford

February 13, 2023

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An act to amend Section 13509.6 Sections 13509.6, 13510.1, 13510.8, 13510.85, and 13510.9 of the Penal Code, relating to peace officers.

LEGISLATIVE COUNSEL'S DIGEST

SB 449, as amended, Bradford. Peace officers: Peace Officer Standards Accountability Advisory Board.

Existing law requires the Governor to establish the Peace Officer Standards Accountability Advisory Board for the purpose of making recommendations on the decertification of peace officers to the Commission on Peace Officer Standards and Training. Existing law requires all members of the board to complete a 40-hour decertification training course, as specified.

This bill would remove the requirement that the decertification training course be 40 hours.

Existing law defines “certification” as a valid and unexpired basic certificate or proof of eligibility issued by the commission.

The bill would redefine “certification” to mean any and all valid and unexpired certificates issued by the commission, as specified.

Existing law allows the commission to consider a peace officer’s prior conduct and service record in determining whether revocation is appropriate for serious misconduct.

The bill would allow the commission to also consider suspension as punishment for serious misconduct.

Existing law requires hearings of the board, the review by the commission, administrative adjudications, as specified, and any records introduced during those proceedings to be public.

The bill would authorize the Peace Officer Standards Accountability Division to initially review confidential, sensitive, or private information contained in those records. The bill would authorize the division, at its discretion, to submit this information under seal and require the examination of this information in a closed session by the board or commission. Following this review, the bill would authorize the board or commission, by a majority vote, to make this information available for public review, in part or in whole, or to order the information released under terms and conditions that are deemed just and appropriate.

Existing law requires an agency employing peace officers to report to the commission the employment, appointment, or separation from employment of a peace officer, any complaint, charge, allegation, or investigation into the conduct of a peace officer that could render the officer subject to suspension or revocation, findings by civil oversight entities, and civil judgments that could affect the officer’s certification. Existing law requires the commission to maintain the information reported by an agency in a manner that may be accessed by the subject peace officer, among other entities.

The bill would authorize the commission to withhold from this disclosure information that could jeopardize an ongoing investigation, create a risk of any form of harm or injury to a victim or witness, or otherwise create a risk of any form of harm or injury that outweighs the interest in disclosure until the risk of harm is ended or mitigated so that the interest in disclosure is no longer outweighed by the interest in nondisclosure. This bill would make a conforming change.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

The bill would make legislative findings to that effect.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 13509.6 of the Penal Code is amended to read:

13509.6.

 (a) No later than January 1, 2023, the Governor shall establish the Peace Officer Standards Accountability Advisory Board, hereafter referred to in this chapter as the board.

(b) The purpose of the board shall be to make recommendations on the decertification of peace officers to the commission.

(c) The protection of the public and all constitutional and statutory rights shall be the highest priority for the board as it upholds the standards for peace officers in California.

(d) The board shall consist of nine members, as follows:

(1) One member shall be a peace officer or former peace officer with substantial experience at a command rank, appointed by the Governor.

(2) One member shall be a peace officer or former peace officer with substantial experience at a management rank in internal investigations or disciplinary proceedings of peace officers, appointed by the Governor.

(3) Two members shall be members of the public, who shall not be former peace officers, who have substantial experience working at nonprofit or academic institutions on issues related to police accountability. One of these members shall be appointed by the Governor and one by the Speaker of the Assembly.

(4) Two members shall be members of the public, who shall not be former peace officers, who have substantial experience working at community-based organizations on issues related to police accountability. One of these members shall be appointed by the Governor and one by the Senate Rules Committee.

(5) Two members shall be members of the public, who shall not be former peace officers, with strong consideration given to individuals who have been subject to wrongful use of force likely to cause death or serious bodily injury by a peace officer, or who are surviving family members of a person killed by the wrongful use of deadly force by a peace officer, appointed by the Governor.

(6) One member shall be an attorney, who shall not be a former peace officer, with substantial professional experience involving oversight of peace officers, appointed by the Governor.

(e) Except as otherwise provided in subdivision (f), each member shall be appointed for a term of three years and shall hold office until the appointment of the member’s successor or until one year has elapsed since the expiration of the term for which the member was appointed, whichever occurs first. Vacancies occurring shall be filled by appointment for the unexpired term of a person with the same qualification for appointment as the person being replaced. No person shall serve more than two terms consecutively. The Governor shall remove from the board any peace officer member whose certification as a peace officer has been revoked. The Governor may, after hearing, remove any member of the board for neglect of duty or other just cause.

(f) Of the members initially appointed to the board, three shall be appointed for a term of one year, three for a term of two years, and three for a term of three years. Successor appointments shall be made pursuant to subdivision (e).

(g) The Governor shall designate the chair of the board from among the members of the board. The person designated as the chair shall serve as chair of the board at the pleasure of the Governor. The board shall annually select a vice chair from among its members. A majority of the members of the board shall constitute a quorum.

(h) Each member of the board shall receive a per diem of three hundred fifty dollars ($350) for each day actually spent in the discharge of official duties, including any required training and reasonable time spent in preparation for public hearings, and shall be reimbursed for travel and other expenses necessarily incurred in the performance of official duties. Upon request of a member based on financial necessity, the commission shall arrange and make direct payment for travel or other necessities rather than providing reimbursement.

(i) All members of the board shall complete a decertification training course, as developed by the commission, which shall include, but not be limited to, subjects regarding the decertification process, internal investigations, evidentiary standards, use of force standards and training, and local disciplinary processes.

SEC. 2.

 Section 13510.1 of the Penal Code is amended to read:

13510.1.

 (a) The commission shall establish a certification program for peace officers described in Section 830.1, 830.2 with the exception of those described in subdivision (d) of that section, 830.3, 830.32, or 830.33, or any other peace officer employed by an agency that participates in the Peace Officer Standards and Training (POST) program. A certificate or proof of eligibility issued pursuant to this section shall be considered the property of the commission.

(b) Basic, intermediate, advanced, supervisory, management, and executive certificates shall be established for the purpose of fostering professionalization, education, and experience necessary to adequately accomplish the general police service duties performed by peace officer members of city police departments, county sheriffs’ departments, districts, university and state university and college departments, or by the California Highway Patrol.

(c) (1) Certificates shall be awarded on the basis of a combination of training, education, experience, and other prerequisites, as determined by the commission.

(2) In determining whether an applicant for certification has the requisite education, the commission shall recognize as acceptable college education only the following:

(A) Education provided by a community college, college, or university which that has been accredited by the department of education of the state in which the community college, college, or university is located or by a recognized national or regional accrediting body.

(B) Until January 1, 1998, educational courses or degrees provided by a nonaccredited but state-approved college that offers programs exclusively in criminal justice.

(d) Persons who are determined by the commission to be eligible peace officers may make application for the certificates, provided they are employed by an agency which that participates in the POST program. Any agency appointing an individual who does not already have a basic certificate as described in subdivision (a) and who is not eligible for a certificate shall make application for proof of eligibility within 10 days of appointment.

(e) The commission shall assign each person who applies for or receives certification a unique identifier that shall be used to track certification status from application for certification through that person’s career as a peace officer.

(f) The commission shall have the authority to suspend, revoke, or cancel any certification pursuant to this chapter.

(g) (1) An agency that employs peace officers described in subdivision (a) shall employ as a peace officer only individuals with current, valid certification pursuant to this section, except that an agency may provisionally employ a person for up to 24 months, pending certification by the commission, provided that the person has received certification a proof of eligibility and has not previously been certified or denied certification. certification or had their certification revoked.

(2) In accordance with subdivision (b) of Section 832.4, deputy sheriffs described in subdivision (c) of Section 830.1 shall obtain valid certification pursuant to this section upon reassignment from custodial duties to general law enforcement duties.

(h) (1) Notwithstanding subdivision (d), the commission shall issue a basic certificate or proof of eligibility to any peace officer described in subdivision (a) who, on January 1, 2022, is eligible for a basic certificate or proof of eligibility but has not applied for a certification.

(2) Commencing on January 1, 2023, any peace officer described in subdivision (a) who does not possess a basic certificate and who is not yet or will not be eligible for a basic certificate, shall apply to the commission for proof of eligibility.

(i) As used in this chapter, “certification” means a valid and unexpired basic certificate or proof of eligibility any and all valid and unexpired certificates issued pursuant to subdivision (b), including basic, intermediate, advanced, supervisory, management, and executive certificates or any proof of eligibility issued by the commission pursuant to this section.

SEC. 3.

 Section 13510.8 of the Penal Code is amended to read:

13510.8.

 (a) (1) A certified peace officer shall have their certification revoked if the person is or has become ineligible to hold office as a peace officer pursuant to Section 1029 of the Government Code.

(2) A peace officer may have their certification suspended or revoked if the person has been terminated for cause from employment as a peace officer for, or has, while employed as a peace officer, otherwise engaged in, any serious misconduct as described in subdivision (b).

(b) By January 1, 2023, the commission shall adopt by regulation a definition of “serious misconduct” that shall serve as the criteria to be considered for ineligibility for, or revocation of, certification. This definition shall include all of the following:

(1)  Dishonesty relating to the reporting, investigation, or prosecution of a crime, or relating to the reporting of, or investigation of misconduct by, a peace officer or custodial officer, including, but not limited to, false statements, intentionally filing false reports, tampering with, falsifying, destroying, or concealing evidence, perjury, and tampering with data recorded by a body-worn camera or other recording device for purposes of concealing misconduct.

(2)  Abuse of power, including, but not limited to, intimidating witnesses, knowingly obtaining a false confession, and knowingly making a false arrest.

(3)  Physical abuse, including, but not limited to, the excessive or unreasonable use of force.

(4) Sexual assault, as described in subdivision (b) of Section 832.7.

(5)  Demonstrating bias on the basis of race, national origin, religion, gender identity or expression, housing status, sexual orientation, mental or physical disability, or other protected status in violation of law or department policy or inconsistent with a peace officer’s obligation to carry out their duties in a fair and unbiased manner. This paragraph does not limit an employee’s rights under the First Amendment to the United States Constitution.

(6) Acts that violate the law and are sufficiently egregious or repeated as to be inconsistent with a peace officer’s obligation to uphold the law or respect the rights of members of the public, as determined by the commission.

(7) Participation in a law enforcement gang. For the purpose of this paragraph, a “law enforcement gang” means a group of peace officers within a law enforcement agency who may identify themselves by a name and may be associated with an identifying symbol, including, but not limited to, matching tattoos, and who engage in a pattern of on-duty behavior that intentionally violates the law or fundamental principles of professional policing, including, but not limited to, excluding, harassing, or discriminating against any individual based on a protected category under federal or state antidiscrimination laws, engaging in or promoting conduct that violates the rights of other employees or members of the public, violating agency policy, the persistent practice of unlawful detention or use of excessive force in circumstances where it is known to be unjustified, falsifying police reports, fabricating or destroying evidence, targeting persons for enforcement based solely on protected characteristics of those persons, theft, unauthorized use of alcohol or drugs on duty, unlawful or unauthorized protection of other members from disciplinary actions, and retaliation against other officers who threaten or interfere with the activities of the group.

(8) Failure to cooperate with an investigation into potential police misconduct, including an investigation conducted pursuant to this chapter. For purposes of this paragraph, the lawful exercise of rights granted under the United States Constitution, the California Constitution, or any other law shall not be considered a failure to cooperate.

(9) Failure to intercede when present and observing another officer using force that is clearly beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances, taking into account the possibility that other officers may have additional information regarding the threat posed by a subject.

(c) (1) Beginning no later than January 1, 2023, each law enforcement agency shall be responsible for the completion of investigations of allegations of serious misconduct by a peace officer, regardless of their employment status.

(2) The division shall promptly review any grounds for decertification described in subdivision (a) received from an agency. The division shall have the authority to review any agency or other investigative authority file, as well as to conduct additional investigation, if necessary. The division shall only have authority to review and investigate allegations for purposes of decertification.

(3) (A) The board, in their discretion, may request that the division review an investigative file or recommend that the commission direct the division to investigate any potential grounds for decertification of a peace officer. Those requests and recommendations from the board to the division or commission must be based upon a decision by a majority vote.

(B) The commission, in its discretion, may direct the division to review an investigative file. The commission, either upon its own motion or in response to a recommendation from the board, may direct the division to investigate any potential grounds for decertification of a peace officer.

(C) The division, in its discretion, may investigate without the request of the commission or board any potential grounds for revocation of certification of a peace officer.

(4) The division, in carrying out any investigation initiated pursuant to this section or any other duty shall have all of the powers of investigation granted pursuant to Article 2 (commencing with Section 11180) of Chapter 2 of Part 1 of Division 3 of Title 2 of the Government Code.

(5) Notwithstanding any other law, the investigation shall be completed within three years after the receipt of the completed report of the disciplinary or internal affairs investigation from the employing agency pursuant to Section 13510.9, however, no time limit shall apply if a report of the conduct was not made to the commission. An investigation shall be considered completed upon a notice of intent to deny, suspend, or revoke certification issued pursuant to subdivision (e). (f) of Section 13510.9. The time limit shall be tolled during the appeal of a termination or other disciplinary action through an administrative or judicial proceeding or during any criminal prosecution of the peace officer. The commission shall consider the peace officer’s prior conduct and service record, and any instances of misconduct, including any incidents occurring beyond the time limitation for investigation in evaluating whether to revoke certification for the incident under investigation.

(6) An action by an agency or decision resulting from an appeal of an agency’s action does not preclude action by the commission to investigate, suspend, or revoke a peace officer’s certification pursuant to this section. Whether a particular factual or legal determination in a prior appeal proceeding shall have preclusive effect in proceedings under this chapter shall be governed by the existing law of collateral estoppel.

(d) Upon arrest or indictment of a peace officer for any crime described in Section 1029 of the Government Code, or discharge from any law enforcement agency for grounds set forth in subdivision (a), or separation from employment of a peace officer during a pending investigation into allegations of serious misconduct, the executive director shall order the immediate temporary suspension of any certificate held by that peace officer upon the determination by the executive director that the temporary suspension is in the best interest of the health, safety, or welfare of the public. The order of temporary suspension shall be made in writing and shall specify the basis for the executive director’s determination. Following the issuance of a temporary suspension order, proceedings of the commission in the exercise of its authority to discipline any peace officer shall be promptly scheduled as provided for in this section. The temporary suspension shall continue in effect until issuance of the final decision on revocation pursuant to this section or until the order is withdrawn by the executive director.

(e) Records of an investigation of any person by the commission shall be retained for 30 years following the date that the investigation is deemed concluded by the commission. The commission may destroy records prior to the expiration of the 30-year retention period if the subject is deceased and no action upon the complaint was taken by the commission beyond the commission’s initial intake of such the complaint.

(f) Any peace officer may voluntarily surrender their certification permanently. Voluntary permanent surrender of certification pursuant to this subdivision shall have the same effect as revocation. Voluntary permanent surrender is not the same as placement of a valid certification into inactive status during a period in which a person is not actively employed as a peace officer. A permanently surrendered certification cannot be reactivated.

(g) (1) The commission may initiate proceedings to revoke or suspend a peace officer’s certification for conduct which that occurred before January 1, 2022, only for either of the following:

(A) Serious misconduct pursuant to paragraphs (1) or (4) of subdivision (b), or pursuant to paragraph (3) of subdivision (b) for the use of deadly force that results in death or serious bodily injury.

(B) If the employing agency makes a final determination regarding its investigation of the misconduct after January 1, 2022.

(2) Nothing in this subdivision prevents the commission from considering the peace officer’s prior conduct and service record in determining whether suspension or revocation is appropriate for serious misconduct.

SEC. 4.

 Section 13510.85 of the Penal Code is amended to read:

13510.85.

 (a) (1) When, upon the completion of an a serious misconduct investigation conducted pursuant to subdivision (c) of Section 13510.8, the division finds reasonable grounds for revocation or suspension of a peace officer’s certification, it shall take the appropriate steps to promptly notify the peace officer involved, in writing, of its determination and reasons therefore, and shall provide the peace officer with a detailed explanation of the decertification procedure and the peace officer’s rights to contest and appeal.

(2) Upon notification, the peace officer may, within 30 days, file a request for a review of the determination by the board and commission. If the peace officer does not file a request for review within 30 days, the peace officer’s certification shall be suspended or revoked, consistent with the division’s determination, without further proceedings. If the peace officer files a timely review, the board shall schedule the case for hearing.

(3) The board shall meet as required to conduct public hearings, but no fewer than four times per year.

(4) At each public hearing, the board shall review the findings of investigations presented by the division pursuant to paragraph (1) and shall make a recommendation on what action should be taken on the certification of the peace officer involved. The board shall only recommend revocation if the factual basis for revocation is established by clear and convincing evidence. If the board determines that the facts and circumstances revealed by the investigation warrant a sanction other than revocation, it may recommend that a peace officer’s certification be suspended for a period of time. The board shall issue a written decision explaining its reasons for decertification or suspension.

(5) The commission shall review all recommendations made by the board. The commission’s decision to adopt a recommendation by the board to seek revocation shall require a two-thirds vote of commissioners present and shall be based on whether the record, in its entirety, supports the board’s conclusion that serious misconduct has been established by clear and convincing evidence. In any case in which the commission reaches a different determination than the board’s recommendation, it shall set forth its analysis and reasons for reaching a different determination in writing.

(6) The commission shall return any determination requiring action to be taken against an individual’s certification to the division, which shall initiate proceedings for a formal hearing before an administrative law judge in accordance with the Administrative Procedure Act (Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code), which shall be subject to judicial review as set forth in that Act.

(b) Notwithstanding Section 832.7, the hearings of the board and the review by the commission under this section, administrative adjudications held pursuant to paragraph (6) of subdivision (a), and any records introduced during those proceedings, shall be public. If, after initial review, the division determines that the interest in public disclosure of certain confidential, sensitive, or private information in materials presented to the board or commission is outweighed by legitimate interests in confidentiality, the division, in its discretion, may submit portions of materials containing that information under seal, and the relevant portions of those materials shall be examined by the board and commission only in closed session. Following review of that material, the board or commission may, by majority vote, choose to make that information available for public review, in part or in whole, or may order it to be released under terms and conditions that are deemed just and appropriate.

(c) The commission shall publish the names of any peace officer whose certification is suspended or revoked and the basis for the suspension or revocation and shall notify the National Decertification Index of the International Association of Directors of Law Enforcement Standards and Training of the suspension or revocation.

SEC. 5.

 Section 13510.9 of the Penal Code is amended to read:

13510.9.

 (a) Beginning January 1, 2023, any agency employing peace officers shall report to the commission within 10 days, in a form specified by the commission, any of the following events:

(1) The employment, appointment, or termination or separation from employment or appointment, by that agency, of any peace officer. Separation from employment or appointment includes any involuntary termination, resignation, or retirement.

(2) Any complaint, charge, or allegation of conduct against a peace officer employed by that agency that could render a peace officer subject to suspension or revocation of certification by the commission pursuant to Section 13510.8.

(3) Any finding or recommendation by a civilian oversight entity, including a civilian review board, civilian police commission, police chief, or civilian inspector general, that a peace officer employed by that agency engaged in conduct that could render a peace officer subject to suspension or revocation of certification by the commission pursuant to Section 13510.8.

(4) The final disposition of any investigation that determines a peace officer engaged in conduct that could render a peace officer subject to suspension or revocation of certification by the commission pursuant to Section 13510.8, regardless of the discipline imposed.

(5) Any civil judgment or court finding against a peace officer based on conduct, or settlement of a civil claim against a peace officer or an agency based on allegations of officer conduct that could render a peace officer subject to suspension or revocation of certification by the commission pursuant to Section 13510.8.

(b) By July 1, 2023, any agency employing peace officers shall report to the commission any events described in subdivision (a) that occurred between January 1, 2020, and January 1, 2023.

(c) An agency employing peace officers shall make available for inspection or duplication by the commission any investigation into any matter reported pursuant to paragraph (2) of subdivision (a), including any physical or documentary evidence, witness statements, analysis, and conclusions, for up to two years after reporting of the disposition of the investigation pursuant to paragraph (3) of subdivision (a).

(d) (1) In a case of separation from employment or appointment, the employing agency shall execute and maintain an affidavit-of-separation form adopted by the commission describing the reason for separation and shall include whether the separation is part of the resolution or settlement of any criminal, civil, or administrative charge or investigation. The affidavit shall be signed under penalty of perjury and submitted to the commission.

(2) A peace officer who has separated from employment or appointment shall be permitted to respond to the affidavit-of-separation, in writing, to the commission, setting forth their understanding of the facts and reasons for the separation, if different from those provided by the agency.

(3) Before employing or appointing any peace officer who has previously been employed or appointed as a peace officer by another agency, the agency shall contact the commission to inquire as to the facts and reasons a peace officer became separated from any previous employing agency. The commission shall, upon request and without prejudice, provide to the subsequent employing agency any information regarding the separation in its possession.

(4) Civil liability shall not be imposed on either a law enforcement agency or the commission, or any of the agency’s or commission’s agents, for providing information pursuant to this section in a good faith belief that the information is accurate.

(e) The commission shall maintain the information reported pursuant to this section, in a form determined by the commission, and in a manner that may be accessed by the subject peace officer, any employing law enforcement agency of that peace officer, any law enforcement agency that is performing a preemployment background investigation of that peace officer, or the commission when necessary for the purposes of decertification. If the commission determines that disclosure pursuant to this section may jeopardize an ongoing investigation, put a victim or witness at risk of any form of harm or injury, or may otherwise create a risk of any form of harm or injury that outweighs the interest in disclosure, the commission may withhold that information until the risk of harm is ended or mitigated so that the interest in disclosure is no longer outweighed by the interest in nondisclosure.

(f) (1) The commission shall notify the head of the agency that employs the peace officer of all of the following:

(A) The initiation of any investigation of that peace officer by the division, unless such that notification would interfere with the investigation.

(B) A finding by the division, following an investigation or review of the investigation, of grounds to take action against the peace officer’s certification or application.

(C) A final determination by the commission as to whether action should be taken against a peace officer’s certification or application.

(D) An adjudication, after hearing, resulting in action against an officer’s certification or application.

(2) If the certificate of a peace officer is temporarily suspended pursuant to subdivision (d) of Section 13510.8, or revoked, the commission shall also notify the district attorney of the county in which the peace officer is or was employed of this fact.

(3) Each notification required by this subdivision shall include the name of the peace officer and a summary of the basis for the action requiring notification.

SEC. 6.

 The Legislature finds and declares that Sections 4 and 5 of this act, which amend Sections 13510.85 and 13510.9 of the Penal Code, impose a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following finding to demonstrate the interest protected by this limitation and the need for protecting that interest:

The limitation on the public’s right of access set forth in Sections 4 and 5 furthers the need to protect sensitive, private, and confidential information, an ongoing investigation, and individuals from harm while balancing the public right to access.