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Some complaints will disappear from California cops’ personnel files

Frivolous complaints against California law enforcement officers will no longer be retained in their personnel files under a new law signed by Gov. Pete Wilson.

At the same time, Wilson rejected a Senate bill that would have barred disciplinary action against public safety officers for misconduct allegations unless the complaints are investigated within a year of the alleged incident.

Assembly Bill 3434, sponsored by Republican Assemblyman George House, a 30-year veteran of the California Highway Patrol, provides that civilian complaints deemed frivolous will not stay in officers’ personnel files. Instead, reports and other documents pertaining to such complaints will be kept in outer-office files, where they would be available under state discovery statutes.

The Senate bill, which Wilson rejected Sept. 30, the same day he signed the Assembly bill, would also have prohibited unfounded complaints from being maintained in an officer’s personnel file, but the Governor said he approved the Assembly version because it “takes a responsive but less speculative approach” to the issue.

Opponents of the measures, which included the American Civil Liberties Union of California, the police departments in San Francisco, Los Angeles and San Jose, and the Los Angeles Police Commission, said removing the complaints might hinder the efforts of police supervisors to track problem officers.

Wilson touched on those concerns in a letter to the Senate explaining his rejection of its Bill 282. “Disputes over interpretation of the term ‘unfounded’ would likely result in inconsistent application and litigation, while the term ‘frivolous’ provides greater potential for uniform implementation,” the Governor wrote. “Senior law enforcement officials are concerned that complaints, unproven but not frivolous, will be removed from files before they might disclose a pattern of confrontations and a possible need for additional training or discipline.”

Assemblyman House, who began his law enforcement career as a police officer in Modesto, said the new law will ensure that the records of law enforcement officers will no longer be tainted by frivolous complaints, which he said are often filed by people who have been ticketed or arrested in an effort to impugn the officer’s record.

“These complaints with no basis in fact do affect assignments, promotions and salary increases,” he told Law Enforcement News. “They’re a nuisance to the officer.”

House said his law enforcement career gave him a unique perspective on the issue. “I have been there. I have been the officer complained about, I have been the sergeant that investigated complaints, I have been the lieutenant that reviewed them and sent them to the commander. I have been the commander who approved them and sent them on up [the chain of command]. I know what they are,” he asserted.

The Assemblyman agreed to switch the term ‘unfounded’ to ‘frivolous,’ which made the measure more palatable to opponents. He noted that during the legislative debate on his proposal, the Senate approved a bill that levies a $10 charge on state prison inmates who initiate “unfounded” medical appointments to get out of their cells or work details.

Los Angeles police spokesman Cmdr. Tim McBride said officials there were concerned about the broad definition that could be applied to the term “unfounded complaint.”

“The definition is different with different departments around the state,” McBride said. “So what unfounded means to one means something else somewhere else. It’s too broadly defined.”

The Los Angeles Police Commission, which has been adopting reforms promulgated since the 1991 Rodney King beating incident, had opposed the bill in its original form, believing it would pre-empt its ability to track problem officers.

“They want to be able to look at the full employee and all of his activities or allegations, whether they’re unfounded or not,” McBride observed. “Most police officers would agree that if it’s unfounded, it didn’t occur, so it has no place in their [personnel] package.”

The change apparently appeased some opponents, including the California affiliate of the American Civil Liberties Union, whose chief concern was that efforts to track officers with misconduct allegations against them would be undermined, according to Francisco Lobaco, the group’s legislative director in California.

While opposed to both measures, Lobaco said, the civil liberties group focused its opposition on the Senate version, which he said was too broad. “We’re very concerned, especially with officers who have three or four of these non-sustained complaints, that intervention services, whether it would be additional training, supervision or some sort of counseling, would no longer be available,” he told LEN.

Lobaco said the state ACLU still has concerns that the law might result in “an expansion of cases found to be frivolous since [the determinations] are not being made by an independent agency, which is why we did not remove our opposition.”

Meanwhile, Ann Bradley, a spokeswoman for the American Civil Liberties Union of Southern California, said her organization was “really pleased” with the Governor’s action. “We think it was a very, very good choice. I can’t remember when we’ve ever lauded the Governor, so I think there’s something kind of meritorious in that in and of itself.”

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Published in Law Enforcement News
Nov. 15, 1996.
© 1996, LEN Inc.