By David Mastagni
Editor’s note: This article originally appeared in the April issue of PORAC Law Enforcement News.
As most California officers already know, SB 2 requires the Peace Officer Standards and Training (POST) Commission to implement its decertification process on January 1, 2023. Given the short amount of time the Legislature afforded POST to enact regulations on the process, hire investigators and begin applying such a monumental change in law, many are asking how POST’s implementation is progressing. We have some answers.
In addition to amending the Tom Bane Civil Rights Act, the primary purpose of this bill was to establish a POST licensing regime for peace officers and a decertification process that requires employee agencies to notify POST of any allegations of serious misconduct by certified officers and the outcome of the agency internal affairs investigation. POST must conduct its own investigation or review of the agency investigation to determine if the officer’s license should be suspended or revoked. If action is taken, POST must afford the officer multiple layers of due process.
To administer the decertification process, SB 2 mandates the establishment of the Peace Officer Standards Accountability Division within POST. The Division must review investigations conducted by employing agencies into serious misconduct and perform additional investigations as needed to evaluate whether there are potential grounds for suspension or revocation of a peace officer’s certification. The Division also reviews grounds for decertification and makes findings as to whether grounds for action against an officer’s certification exist. Affected officers are then notified of their findings and afforded the right to request review before the Peace Officer Standards Accountability Advisory Board, composed of nine members. The Board holds public meetings and makes recommendations to the POST Commission regarding any action against an officer’s certification.
Ultimately, the Commission reviews the recommendations, the entire investigatory record and any response from the officer before making a final determination whether serious misconduct has been established by clear and convincing evidence and, if so, what action to take. Any suspension or decertification must be adopted by a two-thirds vote of the Commission. If action is to be taken against an officer’s certification, the officer may commence a formal evidentiary appeal, which is governed by the Administrative Procedure Act.
Within 10 days of receipt, agencies employing peace officers must report the allegations of serious misconduct to POST. The notification duty may be triggered by a misconduct complaint, a finding from a civilian oversight body, a sustained disposition of an IA investigation or a civil judgment/settlement based on alleged serious misconduct. Of concern, many of the “serious misconduct” definitions, which are set forth in Penal Code section 13510.8(b)(1)–(9), are vague and overbroad. As a result, we expect that POST will be deluged with notices of complaints and that agencies will construe the definitions of serious misconduct disparately.
To date, POST has received approximately 3,500 case notifications. Of those, about 68% were retroactive cases. By July 1, 2023, agencies must report the above qualifying events that occurred between January 1, 2020, and January 1, 2023. POST’s ability to suspend or revoke retroactively based on serious misconduct that occurred prior to January 1, 2022, is limited to dishonesty, sexual assault, use of deadly force resulting in death or serious bodily injury, or circumstances where the employing agency makes a final determination regarding its investigation after January 1, 2022.
Although the POST investigation will still proceed, SB 2 permits officers to voluntarily surrender their certificate. So far, POST has issued one voluntary surrender, two former officers have been placed on an ineligible status due to felony convictions and 12 immediate temporary suspensions (ITSs) have been issued. ITSs have been issued for serious misconduct cases where there is a need to protect the public welfare by placing the peace officer’s certification on a temporary hold while the full adjudication process unfolds. All permanent decertifications are required to be made available to the public and can be found on the POST website at post.ca.gov/Decertification-List.
SB 2 has given POST the authority to review investigations completed by law enforcement agencies and, as necessary, conduct additional investigations into serious misconduct that may provide grounds for action against a peace officer’s certification. For now, POST will rely on the employing agency to conduct the investigations. The employing agencies are responsible for conducting and completing their internal investigations, as well as any complaints that POST receives (POST will forward those complaints to the employing agencies). Once the investigations are completed and findings issued, the information is forwarded to POST. If additional investigation is warranted, such investigation will be conducted after the conclusion of the agency investigation.
By statute, POBR only applies to the employing agency, and so is not required to be afforded during the POST decertification investigation. While a legal concern, as a practical matter the exclusion of POBR should not have a significant practical impact. The most applicable section of POBR is Government Code section 3303, which sets forth the procedural rights during an investigation. These rights are afforded during agency investigations, and POST appears inclined not to conduct its own investigations for now. Moreover, POST has stated it will provide similar rights should it decide to interrogate an officer. The appeal rights in POBR are unnecessary, as SB 2 provides for a fairly comparable appeal process.
POST Legislative Liaison Meagan Poulos has advised that currently, “POST is reviewing and analyzing Internal Affairs cases and felony arrests, indictments and convictions received for serious misconduct.” In order to satisfy SB 2’s mandated workload, POST is currently hiring law enforcement consultants who will be analyzing cases submitted to POST to determine the extent of actionable serious misconduct cases. The state has approved POST to hire 32 such consultants to staff its Peace Officer Standards Accountability Division, and so far 14 of those positions have been filled. Ms. Poulos has indicated that POST is working diligently to fill the remaining positions as quickly as possible but has experienced significant challenges in hiring, as have agencies throughout the state. She further stated, “As an interim solution, POST is hiring Retired Annuitants who meet the Law Enforcement Consultant qualifications to help address the workload.”
Presumably, if an agency investigation clears an officer, POST should not take any action on the officer’s license. The evidentiary standard applied by the employing agency is preponderance of the evidence, whereas the evidentiary standard for decertification is clear and convincing, which is higher. Thus, it would seem legally impossible for POST to reach a contrary conclusion under a higher standard if the agency investigation was properly conducted.
Another open question is how POST will treat allegations that were sustained by the agency and then overturned in an administrative appeal. Although the statute does not directly address this issue, PORAC sponsored amendments to provide a tolling of time limitations for POST to take action during the pendency of any administrative appeal. The intent of the amendment, coupled with an amendment requiring consideration of the entire record and not just the Board recommendation, was that POST consider the outcome of any administrative appeal. The same consideration of the evidentiary standards applies to administrative appeals as well.
Peace Officer Standards Accountability Advisory Board
The Board’s nine members are appointed by the governor and legislative leaders. The Board is composed of one current or former police officer with command experience, one current or former peace officer with management rank, two members of the public with experience working at a nonprofit or academic institution, two members of the public with experience working with community-based organizations related to police accountability, two members of the public with strong consideration given to individuals who have been subjected 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, and one attorney.
To date, there has been one appointment to the nine-member Advisory Board that will recommend license revocations to the POST Commission for consideration. The appointed Board member is Lizzie Buchen. While serving as director of criminal justice for ACLU Northern California, she passionately strived to enact legislation on use of force, as originally introduced in AB 931 and 392. During my advocacy on behalf of PORAC and its membership, I routinely met with Ms. Buchen and California Senate President pro Tempore Toni G. Atkins to discuss our competing views on the force legislation. She was appointed to the position as a person with experience working on police accountability with community-based organizations.
As the remaining eight positions are unfilled, anyone wishing to apply for an appointment can do so at gov.ca.gov/appointments.
“Serious Misconduct” Definitions
SB 2 delegates authority to POST to further define “serious misconduct” through administrative regulations. Several stakeholders, including PORAC, the California Police Chiefs Association, the ACLU and public defender organizations, have submitted competing comments recommending narrowing and expanding the definitions set forth in the statute. To date, the section 1205 regulations largely mirror the statute and POST has declined most of the recommendations it received (11 CCR § 1205).
POST has added some important clarifications and criteria to evaluate the appropriate response to sustained serious misconduct. For dishonesty, POST will consider whether the dishonesty related to a material issue and whether the officer acted willfully, with the intent to deceive. While these clarifications are implicit in a dishonesty finding, some commentators had urged POST to extend dishonesty to unintentional mistakes. Similarly, for “abuse of power,” POST will consider the extent to which the abuse of power was a knowing abuse of the power and authority of a public office. POST clarified that the bias definition does not limit First Amendment rights.
Regulation section 1213, titled “Suspension and Revocation of Peace Officer Certification,” sets forth extensive criteria — mostly advocated by PORAC and other law enforcement advocates — that the Commission will consider in deciding “whether to take action against a peace officer’s certification, and in considering whether a revocation or suspension is appropriate in light of the facts of the particular case.” Significantly, the Commission will consider mitigating or aggravating factors and/or evidence of rehabilitation, disparate treatment, the severity of the conduct, the intent of the officer and whether the misconduct was committed under color of authority, among many other factors. This regulation is of particular importance given the overbreadth of several of the definitions, such as “abuse of power” and “physical abuse.”
POST also set the outer limit of a suspension at three years.
The implementation of SB 2 and the administrative regulations is still a work in progress. Many of the regulatory proposals regarding the serious misconduct proceedings before the Board and Commission have been amended and were considered by the Commission at its meeting on March 22. The agenda and materials are on the POST website at post.ca.gov/Commission-Meeting-Materials.
We do know several important aspects of the implementation, though. First, the investigations into misconduct are going to largely, if not completely, be conducted by the employing agency. POST’s hiring difficulties probably preclude parallel investigations at this time anyway. Regarding the misconduct definitions, POST has taken a cautious and balanced approach by closely following the statutory definitions but also providing needed criteria for evaluating the degree of action to be taken. Lastly, we know little regarding how smoothly the appeal process will work, as no appeals are pending and the Advisory Board has not been fully appointed. Stay tuned for updates as the process is rolled out.