Untitled California Attorney General Opinion ( 1988 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
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OPINION :
:
of :
:
JOHN K. VAN DE KAMP : No. 87-904
Attorney General :
: January 5, 1988
JACK R. WINKLER :
Assistant Attorney General :
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THE HONORABLE PETER R. CHACON, MEMBER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion on the following question:
Does a city manager, an assistant city manager, or a
citizens' review board have a right to inspect citizens' complaints
against city police officers on file in the internal affairs
division of the police department?
CONCLUSION
A city manager, an assistant city manager, and a
citizens' review board have a right to inspect and review citizens'
complaints against city police officers on file in the internal
affairs division of the police department when they are authorized
by charter provision, ordinance or regulation of the city to
investigate such complaints or to advise, impose or review
discipline of police officers for misconduct alleged in such
complaints but not if they are not so authorized.
ANALYSIS
Section 832.5 of the Penal Code provides:
"(a) Each department or agency in this state which
employs peace officers shall establish a procedure to
investigate citizens' complaints against the personnel of
such departments or agencies, and shall make a written
description of the procedure available to the public.
"(b) Complaints and any reports or findings
relating thereto shall be retained for a period of at
least five years."
Section 832.71 provides:
"Peace officer personnel records and records
maintained pursuant to Section 832.5, or information
obtained from these records, are confidential and shall
not be disclosed in any criminal or civil proceeding
except by discovery pursuant to Sections 1043 and 1046 of
the Evidence Code. This section shall not apply to
investigations or proceedings concerning the conduct of
police officers or a police agency conducted by a grand
jury or a district attorney's office."2
The question presented is whether citizens' complaints
against a city's police officers on file in the internal affairs
division of the police department are subject to inspection and
review by the city manager, an assistant city manager, and a
citizens' review board even though state law specifies that the
complaints are "confidential." We will conclude that their access
to such complaints depends upon an authority or duty to perform
some task requiring inspection of such complaints which in turn
depends upon provisions in the charter, ordinances or regulations
of the city.
By enacting section 832.5 the Legislature mandated law
enforcement agencies in the state to establish a procedure to
investigate citizens' complaints against their officers. (Pena v.
Municipal Court (1979) 96 Cal. App. 3d 77, 82.) The policy
underlying the statute is to encourage communication between
citizens and public authorities whose responsibility is to
investigate and remedy wrongdoing. ( Id.) Thus section 832.5
contemplates that citizens' complaints against police officers be
received and investigated and that if misconduct is discovered
appropriate discipline will be imposed.
Section 832.5 leaves to each police department the form
the required procedure will take, including who will receive the
citizens' complaints and who will investigate them. As the
question suggests the procedure often calls for the citizens'
complaints to be delivered to and investigated by an internal
affairs unit in the police department. However, nothing in section
1
All references hereafter to the Penal Code are by section
number only.
2
"Peace officer personnel records" are defined to include
citizens' complaints filed against an officer (section 832.8) and
"records maintained pursuant to Section 832.5" also include
citizens' complaints filed against an officer. Evidence Code
sections 1043 and 1046 allow for the discovery of citizens'
complaints upon written motion showing good cause for disclosure.
(See People v. Memro (1985) 38 Cal. 3d 658, 676-685.)
2. 87-904
832.5 restricts the required procedure to the personnel of the
police department. We see no reason why the required procedure
could not involve the city manager, an assistant city manager or a
citizens' review board.
Section 832.7 imposes a requirement of confidentiality on
the citizens' complaints against police officers received and
retained pursuant to section 832.5. Section 832.7 contains two
express exceptions to the confidentiality requirement. The first
provides that parties in criminal and civil proceedings may gain
access to such citizens' complaints by discovery procedures set
forth in the Evidence Code. The second exception is an
investigation of the conduct in question by the district attorney
or a grand jury. The question is concerned with inspection of the
citizens' complaints without recourse to the procedures involved in
either of these express exceptions.
Where a statute confers powers or duties in general
terms, all powers and duties incidental and necessary to make such
legislation effective are included by implication. (Clay v. City
of Los Angeles (1971) 21 Cal. App. 3d 577, 585.) The requirement in
section 832.5 that citizens' complaints be investigated necessarily
requires that those designated to do the investigating will have
access to the complaints. On this basis we interpret section 832.7
to include a third exception to the requirement of confidentiality
by necessary implication giving access to the citizens' complaints
to those designated in the departmental procedure established
pursuant to section 832.5 to investigate such complaints.
The legislative purpose of section 832.5 is not merely to
investigate citizens' complaints against police officers to find
out what happened out of curiosity. The Legislature contemplated
that when police misconduct was discovered in such investigations,
appropriate disciplinary action would be taken against the errant
officer. The purpose of the statute is to "investigate and remedy
wrongdoing". (See Pena v. Municipal Court, supra, at p. 82.) To
accomplish the purpose of remedying wrongdoing those having the
authority to discipline police officers for their misconduct must
have access to the citizens' complaints and the information
produced by their investigation, all of which is made confidential
by section 832.7. Not only is this information essential to those
who actually impose such discipline, it is also essential to those
who have the duty or authority to advise or review such discipline.
We therefore interpret section 832.7 to include a fourth exception
to the requirement of confidentiality by necessary implication
giving access to the citizens' complaints to those who have the
duty or authority to advise, impose or review discipline upon a
police officer for misconduct revealed by the investigation of the
citizen's complaint.
Whether, in a particular city, the city manager,
assistant city manager or a citizens' review board has the
3. 87-904
authority to investigate citizens' complaints against police
officers or to advise, impose or review disciplinary measures
against police officers depends upon local legislation and
regulation as well as state law. The California Constitution and
state statutes authorize great flexibility and local determination
regarding the allocation of municipal powers and duties among city
officers.
The government of a general law city is vested in a city
council of five members, a city clerk, a city treasurer, a chief of
police, a fire chief and other officers and employees as provided
by law. (Gov. Code, § 36501.) The city council shall appoint the
chief of police. (Gov. Code, § 36505.) The police department of a
city is under the control of the chief of police (Gov. Code,
§ 38630) and the chief of police may appoint one or more police
officers subject to the approval of the city council. (Gov. Code,
§ 38631.) Many variations from this standard form of general law
city government are authorized. Government Code section 34004
provides that where any duty is imposed upon a municipal officer by
any law of this State the governing body of a city may, by
ordinance, impose such duty or a portion thereof upon such other
officer of such city as is charged by city charter or applicable
general law with the performance of duties of the same character in
that city. The city council or the electorate may enact an
ordinance adopting a city manager form of government for the city
(Gov. Code, § 34851) in which a city manager appointed by the city
council has the authority to appoint and dismiss the chief of
police and other subordinate appointive officers and employees
except the city attorney. (Gov. Code, § 34856.)
Article XI, section 5 authorizes a city charter to
provide for ordinances and regulations governing "municipal
affairs" which supersede state law and more specifically provides
that a city charter may provide for "the constitution, regulation,
and government of the city police force" and for "the manner in
which . . . the several municipal officers and employees . . .
shall be elected or appointed, and for their removal . . ."
The constitutional provisions and statutes cited above
would appear to provide ample authority for the electorate or
legislative body of a California city to provide in the city
charter or by city ordinance that the city manager, an assistant
city manager or a citizens' review board has authority to
investigate citizens' complaints against police officers or that
they have authority to advise, impose or review discipline imposed
on police officers for misconduct alleged in such complaints.
Furthermore, Penal Code section 832.5 requiring each city police
department to establish a procedure to investigate citizens'
complaints against police officers itself authorizes such procedure
to include investigation of such complaints by the city manager, an
assistant city manager or a citizens' review board.
4. 87-904
We do not undertake any analysis or interpretation of
local charters, opinions or regulations in this opinion. The long
standing practice of this office has been to decline requests for
opinions when the questions are at issue in pending litigation,
call for interpretation of proposed legislation or call for the
interpretation of local charters, ordinances or regulations. (See
the foreword to 64 Ops.Cal.Atty.Gen.) Instead we interpret and
apply state law as to both those cities which do and those which do
not have local laws which authorize the city manager, or assistant
city manager or a citizens' review board to investigate citizens'
complaints against police officers or which authorize them to
advise, impose, or review disciplinary action against police
officers for misconduct alleged in such complaints.3
In answer to the question presented we conclude that a
city manager, an assistant city manager and a citizens' review
board has a right to inspect citizens' complaints against police
officers on file in the internal affairs division of the police
department if they are authorized by charter provision, ordinance
or regulation of the city to investigate such complaints or to
advise, impose or review discipline imposed upon police officers
for misconduct alleged in such complaints but not if they do not
have such authority.
We think it is important to add a note of caution.
Where the city manager, assistant city manager or citizens' review
board have authority to inspect citizens' complaints against peace
officers they are required by Penal Code section 832.7 to maintain
the confidentiality of such complaints and are precluded from
disclosing the contents thereof to members of the public. (Cf.
Parrott v. Rogers (1980) 103 Cal. App. 3d 377, 383.)
* * * * *
3
We leave to local determination which category a particular
city falls under since this will involve an interpretation of local
law. The background materials submitted with this opinion request
indicate that it was the City of San Diego which prompted the
request. We note that the San Diego City Attorney has rendered an
opinion that the current city charter does not authorize access to
citizens' complaints against police officers by the city manager or
by a citizens' review board. Members of the San Diego bar have
rendered a contrary opinion. We do not attempt to resolve that
conflict in this opinion.
5. 87-904