COURT GRANTS INJUNCTION
AGAINST CITY OF MODESTO
POLICE DEPARTMENT FOR VIOLATION OF PEACE
OFFICERS’ BILL OF RIGHTS
Legal Defense Fund
lawyers have successfully obtained an injunction against the City of
Modesto and the Modesto Police Department for the department’s
violation of a police officer’s rights under the Peace Officers’
Bill of Rights. Robert Finley retired from his police officer position
in June 1994. Prior to retiring, in January 1994, he was interviewed in
an Internal Affairs investigation. Wanting to put in for a special
assignment, and having not heard anything for quite some time after the
interview, Finley inquired of his representative, Paul Konsdorf, as to
the status of the investigation. Konsdorf contacted department
administration, who told him that no action would be forthcoming as a
result of the interview. This information was related by Konsdorf to
Finley. Finley went on with his employment as a police officer until his
retirement for medical reasons in June 1994.
In early 1998, Finley
began to seek positions with Stanislaus County. Two of these positions
were as a coroner and as a group supervisor. The two positions included
a testing process and a background investigation. He successfully
completed the testing process and went through the background
investigation. To his surprise, Finley did not pass either of the
background investigations.
At a loss to explain why,
he conducted his own investigations. This investigation lead him to his
personnel file in March 1999. On March 17, 1999, he reviewed his
personnel file and found for the first time, a copy of an Internal
Affairs investigation, related to the interview in which he participated
in January 1994. Along with the investigation was a cover letter written
by the deputy chief sustaining the allegations against him. The
allegations were fairly serious, involving charges of use of his
position to influence a district attorney on a plea bargain for an
acquaintance.
Upon discovering the
investigation in this file, he contacted Konsdorf, who conducted
interviews of several of the county employees involved in the coroner
and group supervisor positions. It was learned by Konsdorf that Finley
did not receive the positions, and failed the background investigation
to a large extent because of the existence of the documentation in his
file. Konsdorf concluded his investigation, and the case was turned over
to PORAC Legal Defense Fund attorney, Stuart D. Adams, with Goyette
& Adams.
With Legal Defense Fund
backing, Adams filed a Petition for Mandatory Injunction
requesting that the documentation be removed from the file, that the
department be ordered to comply with the Peace Officers’ Bill of
Rights in all future proceedings dealing with Modesto police officers
and, further, seeking damages in the form of compensatory damages for
the loss of income, emotional distress and punitive damages. The basis
for the injunction was that the city had violated the provisions of
Government Code §3305 and §3306. Section 3305 states in essence that
no comment adverse to the peace officer’s interest may be placed in
the officer’s personnel file without the officer being given an
opportunity to review and sign the documentation. Section 3306 allows an
officer to write, or to provide a written response, to any adverse
comments within 30 days of them being placed within his file. The
injunction was filed under §3309.5, which gives the Superior Court
immediate jurisdiction over cases involving violations of the Peace
Officers’ Bill of Rights.
The lawsuit was unique in
three areas. First, Finley was a retired peace officer seeking to
enforce his rights under the Peace Officers’ Bill of Rights. The suit
sought to afford officers the ability to seek to enforce their rights
under the Peace Officers’ Bill of Rights even after separation from
service. Second, the lawsuit sought an order removing documentation from
the file. The Peace Officers’ Bill of Rights does not specifically
provide that removal of the documentation is a remedy. It was argued
that allowing Finley to review the documentation, sign it, and write a
response to it at this late date, would be futile, and that only by
removing the documentation would the court begin to make Finley whole.
Third, the lawsuit sought the award by a judge of compensatory, general
and punitive damages. There is only one precedential case in California
wherein a peace officer has sought damages for violations of the Peace
Officers’ Bill of Rights (see Gales v. Superior Court (1996) 47
Cal.App.4th 1596, 55 Cal.Rptr.2d 460).
The judge agreed, and in
fact the city did not contest, that the city and the department had
violated the provisions of Government Code §3305 and §3306. The judge
granted Finley’s request for the permanent removal of the
documentation from his personnel file. The judge further ordered the
police department to comply with the provisions of the Peace Officers’
Bill of Rights in the future. The court also ordered that the city
reimburse Finley for his attorneys fees, and costs for his having to
seek legal assistance, in addressing the violation. The court rejected
the request for compensatory, general and punitive damages. The basis
for this rejection was §3309.5 does not specifically state that these
types of damages are recoverable and, further, the court in the Gales
case cited above found that such damages are not available in a civil
action brought under §3309.5.
Even without the award of
the compensatory, general and punitive damages, the case was a
significant victory. According to attorney Adams, "The case was
beneficial to peace officers in general, in that it demonstrates that an
officer can successfully have this type of damaging information
permanently removed from his or her personnel file if they can show that
the department in some way violated the Peace Officers’ Bill of
Rights. It is also a significant benefit to the City of Modesto police
officers in general in that now, not only do they have the ability to
file an injunction under §3309.5 of the Government Code, but they can
also seek to have the city held in contempt for violating the Finely
order."
If the department
violates the provisions of the Government Code in the future, the
officers can rely on the Finley decision to go back to court and ask
that the court hold the department in contempt. If the court feels that
in fact the department has violated the Peace Officers’ Bill of Rights
in the future, and issues a contempt order, the city can be fined and
individuals could even be incarcerated until such time as the contempt
is rectified. "This should provide some serious incentive for the
police administration to obey the requirements of the Peace Officers’
Bill of Rights," Adams said. "If in the future, the city
violates the agreement, it is conceivable that even the chief of police
could be thrown in jail until he agrees to comply with the Peace
Officers’ Bill of Rights."
Finley himself was
extremely pleased with the results, stating that he felt a tremendous
sense of satisfaction knowing that Modesto police officers in the future
could rely on the decision in his case, and that his case will provide a
benefit to them. "This was a nightmare. I was sitting there in
shock looking at sustained allegations I had no idea were there.
Allegations I believe were not true, but I got a chance to contest. I
just hope this prevents this type of thing happening to the other
officers of the Modesto Police Department." Finley said his fight
is not over, however, as he has also filed a complaint for damages to
try to recover the compensatory, general and punitive damages the court
did not award in the injunction. The injunction will have a great
benefit with respect to his case seeking damages. The city will be
precluded from arguing that it did not violate the Peace Officers’
Bill of Rights, as that issue has already been determined by a judge.
The Legal Defense Fund is currently contemplating appealing the judge’s
decision rejecting the compensatory, general and punitive damages in the
injunction.
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