Failure To Provide Reports Violates Bill Of Rights But Not Due Process

James Davis was a juvenile correctional officer supervisor for Fresno County, California. On July 26, 2013, the County gave Davis a notice of intended order for disciplinary action. The notice included an unsigned copy of a 12-page proposed order and stated Davis could make an oral or written reply within five days.

The proposed order stated the Department had received numerous complaints of inappropriate conduct by Davis and several coworkers and an investigation determined Davis had (1) engaged in discourteous treatment of a subordinate employee; (2) violated directives regarding confidentiality of personnel investigations; (3) failed to review and submit reports as directed; (4) improperly engaged in supervision of his wife; and (5) failed to properly account for his working hours on his timesheets. As to the last of these allegations, the proposed order described four timesheets on which Davis falsely reported his time of arrival or departure from work.

Also on July 26, 2013, the County provided Davis with a packet of information containing an internal affairs report and a memorandum. Though both documents had attachments, the attachments were withheld by the County. The rationale the County subsequently offered for excluding the attachments was that “the attachments were not included in the packet provided to either of the disciplinary decisionmakers and were not considered by them in making the decision to discipline Mr. Davis.”

When the County fired him, Davis challenged the termination through the Court system. Davis contended that the failure to provide him with the attachments violated both his due process rights (known in California as his Skelly rights) as well as his rights under California’s Peace Officer Bill of Rights.

The California Court of Appeals began its consideration of Davis’ appeal with a description of the due process rights guaranteed under Skelly: “In Skelly, the California Supreme Court held that permanent civil service employees have a property interest in their continued employment that is protected by the due process clause.” The Court concluded that “as a minimum, these pre-removal safeguards must include notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline. This directive as to procedural minimums gave rise to an administrative procedure known as a Skelly hearing, in which an employee is given an opportunity to respond to the charges before removal.

“Davis could attempt to carry his burden of proof by demonstrating how his response at the Skelly hearing was hindered by the absence of the attachments to the memorandum. Davis has not made such a demonstration or otherwise shown he was unable to adequately respond at the Skelly hearing. Therefore, we conclude Davis has not shown that the 31-page internal affairs report and 20-page memorandum, which described the incident reports and quoted at length from witness interviews, failed to provide him with notice and an adequate explanation of the evidence relied upon by the County.”

The Court found that Davis’ Bill of Rights claims fell on a different footing. Davis relied on Section 3303(g) of the Bill of Rights, which provides “the complete interrogation of a public safety officer may be recorded. If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential.”

The Court found that the attachments to the internal affairs report and the memorandum were “part of a report” and therefore had to be disclosed to Davis. The Court reasoned that “one way to analyze what documents are included in a “report” is to ask which system of disclosure would generate the most public confidence – a system where attachments are withheld from officers or a system where attachments are provided to officers. The answer is obvious. Withholding information would diminish public confidence, while providing the attachments would promote confidence. Therefore, we conclude the attachments were part of a report that the County was required to provide under Section 3303(g).”

The Court remanded the case to the trial court to determine an appropriate remedy.

Davis v. County of Fresno, 2018 WL 2057238 (Cal. App. 5th Dist. 2018).