By David E. Mastagni and Taylor Davies-Mahaffey
On July 11, David E. Mastagni testified before the Assembly Public Safety Committee to oppose SB 519 on behalf of PORAC. Mastagni focused the opposition on the powers this bill would grant a newly created “local detention monitor” to impair labor contracts and interrogate local peace officers regarding in-custody deaths without regard to their rights against self-incrimination.
As introduced by Senate President Pro Tempore Toni G. Atkins, SB 519 would have provided that a board of supervisors may establish a department of corrections and rehabilitation to be headed by an executive officer appointed by the board and thus facilitate boards of supervisors cutting corners to reduce labor costs by supplanting sworn jail personnel and replacing them with lesser-trained civilians. SB 519 also provides that notwithstanding the general confidentiality of peace officer records or any other law, records relating to an investigation conducted by the local detention facility involving a death incident and any local detention facility personnel records shall not be confidential and shall be a public record.
PORAC opposed the sections of the bill facilitating civilianization of local jails. PORAC did not oppose the disclosure of records relating to an investigation conducted by the local detention facility involving a death incident, but did raise concerns with the language of this section.
The bill was amended on July 5. These amendments addressed PORAC’s disclosure concerns and eliminated the provisions for civilianizing local jails. However, the amendments replaced these sections of the bill with new language establishing a statewide “local detention monitor” with expansive powers, including the ability to compel local employees to submit to interrogations without provision of their constitutional rights. The bill states, “[t]he Local Detention Monitor may require any employee or contractor of the local detention facility to be interviewed … Any employee or contractor requested to be interviewed shall comply….”
Thus, the bill purports to force employees to waive their Fifth Amendment rights by mandating cooperation with no option to exercise the right to remain silent. By comparison, the peace officer licensing statute (SB 2) states, “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” (Penal Code Section 13510.8[b]).
At the Public Safety Committee hearing, Mastagni explained that PORAC does not oppose the establishment of a local detention oversight entity with the authority to review in-custody death investigations and to issue reports and recommendations for improvements. But PORAC does object to the authority granted the oversight entity because those powers impair its members’ labor and constitutional rights. Mastagni articulated PORAC’s concerns.
First, the bill expressly provides for the impairment of existing labor contracts.
Second, the bill purports to grant the monitor the power to compel union members to submit to interrogations without proper legal authority that is derived from the employment relationship or licensing authority. The compulsion to cooperate in such investigations is based on the threat of discipline or loss of license. The monitor has no employment relationship nor licensing authority, and thus no power to compel cooperation or testimony.
Third, the bill violates employees’ right against self-incrimination under the Fifth Amendment because in-custody death investigations often involve potentially incriminating questions. In Lybarger v. City of Los Angeles, 40 Cal. 3d 822 (1985) our Supreme Court carefully balanced public employers’ need to investigate against public employees’ Fifth Amendment rights by holding that an employer can compel potentially incriminating questions so long as the employee is granted immunity. Spielbauer v. County of Santa Clara(2009) 45 Cal. 4th 704, 725 clarified that public entities cannot require “as a condition of remaining on the job” that public employees “surrender his or her right against criminal use of [such] statements.”
Chief Legislative Advocate Randy Perry, David E. Mastagni and Timothy K. Talbot intend to continue discussions with the author to address the concerns raised at the hearing. The entire hearing can be viewed here: