LDF AIDS CCPOA IN VICTORY
OVER
CDC, DOJ ABUSES
By William Hadden
Imagine for a moment that
you somehow make it to the million dollar question, and Regis Philbin
asks you:
"Who, without
warning, took over an entire prison, commandeered the warden to its
bidding, and held correctional officers incommunicado while
threatening them with arrest and incarceration if they refused to
answer questions?"
He tells you the possible
answers are:
(a) Storm Troopers in
the 1930s
(b) Attica Inmates in the 1960s
(c) French Revolutionaries in the 1780s
(d) Deputies of the California State Attorney General's Office in 1998
You use your last
lifeline to eliminate (b) and (c). Now, what's your final answer?
Wouldn't you be willing to bet a million bucks that your Attorney
General's Office would never have orchestrated such tyrannical,
fascist-like activities? Well, if you did, Regis would have broken your
heart and ripped up your seven figure check because indeed, the answer
is (d) --- as in "despicable." No lesser word can be used to
describe the conduct of the Attorney General's Office, which conspired
with the equally despicable California Department of Corrections (CDC)
to storm Corcoran State Prison in 1998 under the guise of conducting a
legitimate law enforcement investigation, while trampling on the
well-established rights of the officers.
Mercifully, this
disgraceful conduct did not go unchecked. On July 18, 2000, in a case
certified for publication, the California Court of Appeal, First
Appellate District, Division 2, approved and expanded upon injunctive
relief previously granted by a Superior Court judge to prevent what it
found as numerous violations of the Public Safety Officers' Procedural
Bill of Rights Act, Government Code Section 3300, et seq. (California
Correctional Peace Officers' Association, et al. v. State
of California, et al., Case A085064). The issues essential to the
court's determination were strenuously argued in an amicus curiae
brief prepared by Steve Silver, Bill Hadden and Elizabeth Silver
Tourgeman, of Silver, Hadden & Silver in Santa Monica, an effort
that was enthusiastically sponsored by the PORAC Legal Defense Fund.
The underlying facts were
not in dispute. The Attorney General's Office, annoyed that it was not
receiving voluntary cooperation from correctional officers on various
criminal investigations, sought the assistance of the warden at Corcoran
to bully correctional officers into providing information. On August 20,
1998, the warden called a meeting in his office to inform California
Correctional Peace Officers' Association (CCPOA) officers that
Department of Justice (DOJ) would be conducting an extensive criminal
investigation. He told them that correctional officers who were to be
interviewed would not be allowed legal representation during questioning
or the opportunity to consult with counsel ahead of time. The warden
advised CCPOA that its members would be ordered to cooperate in the
investigation pursuant to Government Code Section 3304(a), which
provides in pertinent part that "nothing in this section shall
preclude a head of an agency from ordering a public safety officer to
cooperate with other agencies involved in criminal investigations. If an
officer fails to comply with such an order, the agency may officially
charge him or her with insubordination." The warden told them that
if DOJ investigators identified an officer as a "witness" and
the officer thereafter refused to answer questions, the officer would be
disciplined immediately and walked off the grounds. On the other hand,
an officer deemed to be a "target" who thereafter refused to
be interviewed would be handcuffed and arrested.
On that same date, more
than 20 correctional officers were interviewed, all of whom were told
that they were not free to leave the prison grounds until they met with
investigators. The officers were isolated by California Department of
Corrections special service agents until individual interrogations
began. Officers were not informed whether they were
"witnesses" or "targets" until interviews were
already underway, nor were they provided any advance notice of the
nature of the investigation. Furthermore, they were not permitted to
consult with an association attorney or representative prior to the
interviews. They were threatened with disciplinary action if they did
not answer investigators' questions, and were told that any tape
recordings that they might seek to make would be seized as criminal
evidence at the end of the interviews.
CCPOA, through its
counsel Ron Yank, of Carroll, Burdick & McDonough in San Francisco,
filed a complaint alleging numerous constitutional, statutory and
contractual causes of action. PORAC LDF was asked to submit an amicus
brief in support of CCPOA's contentions that its members' statutory
rights under the Public Safety Officers' Procedural Bill of Rights Act
were violated. Recognizing that CCPOA's battle was a worthy and
necessary one for all law enforcement officers to wage, LDF authorized
the amicus brief by the office of Silver, Hadden & Silver
that focused on those alleged violations.
The court summarily
disposed of the meager arguments of the defendants to justify their
unlawful excesses. The defendants claimed that since Government Code
Section 3303(i) states that the Bill of Rights Act provisions were not
applicable to an investigation "concerned solely and directly with
alleged criminal activities", and as Section 3304(a) authorizes an
employer to order a public safety officer to cooperate in the criminal
investigations of other agencies under penalty of insubordination, none
of the provisions of the Act were applicable. The court found the
defendants’ arguments to be devoid of merit. First, the court
emphatically rejected the defendants' claim that the involvement of the
Department of Justice obliterated the obligations of CDC to adhere to
the provisions of the Act in its conduct with its own employees.
We agree that, in this
situation, the DOJ's involvement does not serve to immunize the CDC
from the provisions of Section 3303. CDC and DOJ must be considered to
have been acting together in this investigation: The CDC did not
merely order the correctional officers to cooperate with the DOJ
investigation, but delivered interviewees to DOJ investigators, and
threatened them with arrest and/or discipline if they asserted their
rights during interrogation by DOJ agents. Until they had given
statements, correctional officers were prevented from leaving prison
grounds by their employer. Hallway exits and interrogation rooms were
guarded by the CDC. The interviews took place during work hours or
immediately thereafter on work premises. Upon being told by DOJ
interrogators that an officer was not providing satisfactory responses
during the interrogation, CDC employees threatened the officers with
criminal and disciplinary sanctions. Under these circumstances, the
CDC and the DOJ must be considered to have been acting in concert.
Next, the court held that
defendants interpretation of the pertinent provisions would
substantially defeat the entire purpose of the Bill of Rights Act:
Almost every
administrative investigation of alleged misconduct could be recast as
a criminal investigation to avoid the requirements of the Act. Thus,
we agree that the criminal investigations referred to in subdivision (i)
of Section 3303 and subdivision (a) of Section 3304 must be ones
conducted primarily by outside agencies without significant active
involvement or assistance by the employer.
The court concluded the
CDC had violated the Act by failing to identify the interrogators,
failing to give notice of the nature of the investigation, refusing to
allow the officers to tape record their interrogations, refusing to
allow officers to consult with counsel or bring counsel to the
interrogations, and failing to advise officers of their constitutional
rights, all of which violated various subdivisions of Government Code
Section 3303.
The case is a major
victory upholding officers' rights under the Act, and preventing
unscrupulous employers and law enforcement agencies from attempting to
circumvent the Act by claiming that they are conducting an exclusively
criminal investigation. In finding that any substantial involvement by
the employer in the conduct of the investigation brings the matter
within the ambit of the Act, the court refused to be persuaded by
specious arguments designed to subvert the purposes for which the Act
was created in the first place.
LDF is proud to be a part
of the never ending battle to curb the seemingly insatiable appetite for
power by unscrupulous and unaccountable public officials, and LDF will
continue to assist its sister organizations to maintain the collective
rights of all officers. The abusive tactics of the defendants in this
case should serve as a poignant reminder that a law enforcement
officer's most vital lifeline may well be to his Legal Defense Fund and
panel attorney.
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