This blog post was authored by Joung Yim
On October 12, 2013, Governor Brown signed Senate Bill 313 into law. Effective January 1, 2014, Government Code section 3305.5 will be added to the Public Safety Officers Procedural Bill of Rights Act (POBR). A law enforcement agency will now be prohibited from taking punitive action, or denying promotion on grounds other than merit, against a peace officer, solely because the officer’s name was placed on a Brady list, or because the officer’s name may otherwise be subject to disclosure pursuant to Brady v. Maryland. However, Section 3305.5 will not prohibit an agency from taking disciplinary action, or some other personnel action, against a peace officer for the underlying acts or omissions for which that officer’s name is placed on a Brady list, or is otherwise subject to disclosure under Brady v. Maryland.
In addition, there will still be circumstances under which evidence that a peace officer has been placed on a Brady list may be introduced at a discipline appeal proceeding. However, the way in which such evidence can be used will be limited. Under Section 3305.5, during a discipline appeal proceeding, if an agency proves, and the hearing officer(s) makes a finding, that a peace officer engaged in the underlying acts or omissions for which that peace officer’s name is placed on a Brady list, or whose name is otherwise subject to disclosure under Brady v. Maryland, then evidence of placement on a Brady list, or evidence that the officer’s name may otherwise be subject to disclosure under Brady v. Maryland, may be introduced for the sole and limited purpose of determining the type or level at which discipline is to be imposed.
There are several implications here for public safety departments. First, there will be an effect on the type of misconduct that a peace officer can be disciplined for. As of January 1, 2014, law enforcement departments will not be able to impose discipline against a peace officer solely because that officer has been placed on a Brady list, or because the officer’s name may otherwise be subject to disclosure pursuant to Brady v. Maryland. However, agencies will still be allowed to discipline an officer for the underlying acts or omissions that will have led to the officer’s name being placed on a Brady list, or otherwise make the officer’s name subject to disclosure under Brady v. Maryland.
Second, evidence of placement on a Brady list, or evidence that the officer’s name may otherwise be subject to disclosure pursuant to Brady v. Maryland, may be introduced at a discipline appeal proceeding, but only after a finding of misconduct is made for those acts or omissions that implicate Brady, and then solely for determining the level and type of discipline to be imposed. In other words, an officer’s placement on a Brady list, or an officer’s name otherwise being subject to disclosure under Brady v. Maryland, cannot serve as the cause for discipline, but can be used to determine the level or type of punitive action that can be taken.
Third, this new law will impact how Notices of Intent to Discipline Peace Officers are drafted. It will be imperative to structure Notices of Intent to meet the restrictions under Section 3305.5, while reserving the right to reference placement on a Brady list as an aggravating factor in determining the type or level of discipline to be imposed. This approach will be similar to how law enforcement agencies currently incorporate a record of prior discipline and performance history into Notices of Intent.
Finally, at discipline appeal proceedings, law enforcement agencies may face requests for bifurcation. That is, a request to split the proceeding so that the first phase involves getting a finding that the underlying acts or omissions for which an officer becomes a Brady issue are proven; and then a second phase to introduce evidence that an officer’s name has been placed on a Brady list, or that the officer’s name may otherwise be subject to disclosure pursuant to Brady v. Maryland, to help determine the type or level of disciplinary action to be imposed. Such requests for bifurcation, if granted, may cause additional expense and delay in completing discipline appeal proceedings where an agency seeks to introduce Brady issue evidence to justify the level of discipline sought to be imposed.