THE COUNTY OF RIVERSIDE, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; XAVIER MARTIN MADRIGAL, Real Party in Interest.
No. S094675
Supreme Court of California
Mar. 28, 2002.
27 Cal. 4th 793
Lewis, D‘Amato, Brisbois & Bisgaard, Christopher D. Lockwood and Jordan N. Gray for Petitioner.
No appearance for Respondent.
Michael P. Stone Lawyers, Michael P. Stone, Lan Wang, Muna Busailah, B. Eric Nelson and Catherine M. Kelly for Real Party in Interest.
Green & Shinee and Helen L. Schwab for Association for Los Angeles Deputy Sheriffs as Amicus Curiae on behalf of Real Party in Interest.
Rains, Lucia & Wilkinson and Alison Berry Wilkinson for Peace Officers Research Association of California‘s Legal Defense Fund as Amicus Curiae on behalf of Real Party in Interest.
Diane Marchant for Los Angeles Police Protective League as Amicus Curiae on behalf of Real Party in Interest.
OPINION
BROWN, J.--In this case, we consider whether and under what circumstances a law enforcement agency must disclose to a probationary employee who is a peace officer confidential documents obtained or prepared in the course of a routine background investigation of that officer, conducted pursuant to
FACTUAL AND PROCEDURAL BACKGROUND
The City of Perris (the City) employed Xavier Martin Madrigal as a police officer until April 1996. During this time, the City received a citizen complaint to the effect that Madrigal had engaged in significant illegal conduct while on duty. Under the Court of Appeal holding in Aguilar v. Johnson (1988) 202 Cal.App.3d 241 [247 Cal.Rptr. 909] (Aguilar), this
The City may have prematurely terminated its processing of this matter, because, effective April 11, 1996, it disbanded its police department, discharged all its officers (including Madrigal), and contracted instead with Riverside County (the County) for law enforcement services. At the same time, the County Sheriff‘s Department took over responsibility for law enforcement within the City‘s boundaries by establishing a unit dedicated to that end. The County also became the custodian of the City‘s employment records, including the citizen complaint against Madrigal. In order to staff its new unit, the County hired, on a probationary basis, all or most of the former officers of the City‘s police department as deputy sheriffs. The record makes clear, however, that these officers were discharged from the City without any promises or assurances of permanent employment with the County, and they were subject to the usual background investigation applicable to other new applicants for the position of deputy sheriff, including, at the discretion of the County, a polygraph examination.
In connection with this change in employment, Madrigal signed a number of documents. On March 20, 1996, he received a document entitled “Advisement to Peace Officers Seeking Lateral Placement.” It stated: “You will undergo a rigorous, in-depth background investigation as a result of your application for this position.” Madrigal signed a certification at the bottom of this document, stating, “I have read this advisement, understand its implications, and have received a copy of it.” A second document, also signed by Madrigal, stated: “I understand that this background investigation . . . is to assess qualifications for this specific employment . . . [¶] I understand that I will be given No FEEDBACK or results other than being notified of ‘Passing’ or ‘Not Passing.‘” A third document entitled “RELEASE AND WAIVER” generally authorized representatives of the County Sheriff‘s Department to obtain confidential information about Madrigal, including employment, financial, educational, and medical records. The release expired after one year. In signing this document, Madrigal affirmed: ”I further understand that I waive any right or opportunity to read or review any background investigation report prepared by the Riverside County Sheriff‘s Department.” (Italics added.)
On April 10, 1996, Madrigal signed an additional document entitled “WAIVER OF BACKGROUND INVESTIGATION PRIOR TO HIRE.” In it, he declared: “I understand that my employment with the Riverside County Sheriff‘s Department is contingent upon satisfactory completion of the background investigation which I have authorized and which has not yet been completed. [¶] I further understand that if information received from this confidential investigation indicates that my continued employment would not be consistent with the best interest of the Riverside County Sheriff‘s Department, I will be released without recourse.”
On or about May 7, 1996, shortly after hiring Madrigal, the County asked him to submit to a polygraph examination regarding his alleged misconduct during his tenure as an officer for the City. Madrigal claims this was his first knowledge of the allegations against him. On May 9, 1996, he signed a document entitled “Polygraph Examination Consent Form,” in which he voluntarily submitted to the polygraph examination, expressly affirming he was aware of his right to refuse. Madrigal learned from the officers who asked him to take the polygraph examination (and from the questions asked during the examination) that the allegations against him concerned sexual relations with a prostitute, extortion of a pornographic videotape, and the use of illegal drugs.
The County dismissed Madrigal on or about November 8, 1996, while he was still on probation. Consistent with his probationary status, the County did not give Madrigal any reason for the dismissal. Madrigal proceeded to seek employment with several other law enforcement agencies, without success. Madrigal suspected that these agencies obtained unfavorable information about him from the County, so he brought the underlying action against the County, seeking, among other things, disclosure of the County‘s background investigation file. Madrigal alleges violations of the Public
Shortly after filing his complaint, Madrigal subpoenaed, among other things, copies of the documents in the County‘s background investigation file, including the polygraph examination report. The County provided some records, but objected to the portion of the subpoena that sought the County‘s and the City‘s background investigation files. Madrigal moved to enforce the subpoena, and the trial court ordered the County to produce the disputed records for a confidential in camera inspection. After several hearings, the court ordered the County to provide Madrigal with redacted copies of two documents: (1) the report, dated May 10, 1996, of the expert who conducted and evaluated the polygraph examination of Madrigal; and (2) the memorandum, dated November 25, 1996, of the investigator who conducted the County‘s background investigation of Madrigal, summarizing the investigator‘s findings.
The County petitioned the Court of Appeal for a writ of mandate challenging the superior court‘s decision. The Court of Appeal denied the writ petition summarily, and the County petitioned for review. We granted review and transferred the matter back to the Court of Appeal with directions to issue an order to show cause to the superior court. The Court of Appeal issued the show cause order and, after a hearing, again upheld the trial court, declining to issue a writ of mandate. The County petitioned for review a second time, and we again granted review.
DISCUSSION
The dispute in this case turns largely on somewhat unusual facts: the closing of a city‘s police department and the transfer to the county of law enforcement responsibility within the geographic boundaries of the city. More generally, however, this case pits two statutory schemes—reflecting two somewhat divergent public policy considerations—against one another.
Section 1031, subdivision (d) provides that “peace officers” shall “[b]e of good moral character, as determined by a thorough background investigation.” This statute reflects the public‘s interest in high quality law enforcement personnel. The law contemplates that new applicants be subject to the background investigation before they are hired, and to encourage candor from informants, employers (including the County) routinely ask applicants to waive any right they might have to review background investigation
To facilitate this background investigation,
Sections 1031 and 1031.1 are in tension with the Public Safety Officers Procedural Bill of Rights Act (hereafter the Bill of Rights Act or the Act). The Bill of Rights Act declares “that effective law enforcement depends upon the maintenance of stable employer-employee relations, between public safety employees and their employers.” (
The parties agree that, if the County had completed its background investigation before hiring Madrigal, and if that background investigation had caused the County not to hire Madrigal, Madrigal would now have no right to view documents in the investigation file. In that case, there is no employment relationship, no personnel file, and hence no question of the investigation file being subject to disclosure under the Bill of Rights Act. In this respect, Madrigal asserts—though the record is silent on the point—that the usual method when one law enforcement department merges into another is for the new employer to finish all its background investigations before the merger takes place. The new employer then extends offers of employment only to those officers from the former employer who meet its standards.
The County urges that disclosure of its confidential background investigation file in this case will make it impossible, in the future, for law enforcement agencies to conduct adequate background investigations, because they will not be able to promise confidentiality to their informants. The County‘s concern is overstated in light of the unusual factual circumstances of this case, including the County‘s decision to hire Madrigal prior to completion of its background investigation. On the other hand, Madrigal argues that nondisclosure will threaten the stability of employer-employee relations in law enforcement agencies by, among other things, undermining the rights of peace officers to defend themselves against unfounded accusations. Madrigal‘s concerns are equally overstated, again in light of the facts of this case, including Madrigal‘s express waiver of the rights he now seeks to enforce. Madrigal asks us to find the waiver unenforceable, but it was this same waiver that enabled him to enjoy the benefits of temporary employment with the County. Having benefited from his agreement with the County, Madrigal arguably should not be able to avoid the clear conditions placed on that agreement.
Thus, the essence of the dispute comes down to: (1) whether the Bill of Rights Act applies to the County‘s background investigation file, including whether it takes precedence over statutory and common law privileges that might otherwise preclude disclosure; and (2) whether Madrigal‘s waiver of any right to see the background investigation file is enforceable.
I. Scope of Bill of Rights Act
The County attempts to draw a distinction for purposes of the Bill of Rights Act between matters originating in conduct prior to the commencement of employment and matters originating in conduct during employment.
Under the County‘s reasoning, the Bill of Rights Act regulated the way in which the City handled the complaints against Madrigal, and Madrigal had (and perhaps still has) a right under that Act to view and respond to those complaints, as well as any other adverse comments entered into his City personnel file. But when Madrigal was discharged from the City (albeit for reasons unrelated to the complaints) and began employment with the County, the City records became, in the County‘s view, not personnel files but background investigation material, at least for purposes of Madrigal‘s employment with the County. On that basis, the County argues Madrigal has no right under the Bill of Rights Act to review documents the County prepared in investigating these matters. At the same time, the County readily acknowledges its obligation to handle personnel matters relating to Madrigal‘s conduct while employed by the County in accordance with the Bill of Rights Act.
The plain language of the Bill of Rights Act is inconsistent with the County‘s effort to distinguish its background investigation file in this way.
Furthermore, our conclusion with respect to the applicability of the Bill of Rights Act remains valid even where the background investigation concerns a matter that occurred prior to the commencement of employment. The County‘s argument in this regard is premised on the fiction that it acts as Madrigal‘s prospective employer when investigating matters that arose prior to his employment with the County but his actual employer when investigating matters that arose during County employment. The problem with this argument is that the County cannot continue to distinguish these two roles when it comes to applying
The County, however, argues that one of the two documents at issue here (the memorandum dated November 25, 1996, from the County‘s background investigator) was created after Madrigal was discharged from County employment, and therefore that document could not have been “‘a basis for affecting the status of [his] employment.‘” (Aguilar, supra, 202 Cal.App.3d at p. 251.) On its face, however, this document summarizes the findings of a background investigation that was ongoing during Madrigal‘s employment with the County, and this background investigation unquestionably constituted a personnel matter. We think it would elevate form over substance and also permit an inappropriate end run around the Bill of Rights Act were we to hold that a law enforcement agency could avoid the Act simply by first terminating the employee and then placing its adverse comments in the employee‘s personnel file. Where, as here, the adverse comments arise out of an investigation, the very purpose of which was to assess the employee‘s qualifications for continued employment, we think the Bill of Rights Act applies, whether or not the comments are prepared and filed prior to termination.
The County also contends that various statutory and common law privileges apply to preclude disclosure of the background investigation file here. First, the County relies on
Finally, the County relies on three privileges: the deliberative process privilege (see, e.g., Times Mirror Co. v. Superior Court (1991) 53 Cal.3d
Assuming these privileges otherwise apply, which is not at all clear, we think the specific provisions of the Bill of Rights Act, giving peace officers a right to view adverse comments in their personnel files, take precedence over the more general statutory and common law privileges on which the County relies. (
II. Waiver of the Bill of Rights Act
The question then arises whether a law enforcement employer can require an applicant to waive his or her rights under the Bill of Rights Act with respect to a background investigation, while otherwise retaining those rights. In other words, can a law enforcement agency collapse together its hiring process by conducting its background investigation after hiring the employee and then scrupulously segregating its background investigation files from other personnel files? Once again, the County essentially wants to wear two hats simultaneously; it wants to be the prospective employer vis-à-vis the background investigation, but the actual employer vis-à-vis all other personnel matters. We do not believe the law permits a law enforcement agency to proceed in this dual fashion. We think the risk is too great that the employer would somehow conflate its two roles, designating all personnel matters that arose in the early months of employment as part of its background investigation and then secreting those records from the employee despite the protections of the Bill of Rights Act. Newly appointed peace officers would then, as a practical matter, have no rights under the Bill of Rights Act during the standard probationary period that initiates their employment—that is, for as long as the background investigation continued. That circumstance would significantly undermine the Act‘s purpose of promoting stable employer-employee relations in law enforcement agencies.
But a waiver of this kind raises a different issue.
In sum, we conclude that a limited waiver of the Bill of Rights Act by an existing peace officer is enforceable. This conclusion does not, however, completely resolve the issue before us. “The waiver of an important right must be a voluntary and knowing act done with sufficient awareness of the relevant circumstances and likely consequences.” (Roberts v. Superior Court (1973) 9 Cal.3d 330, 343 [107 Cal.Rptr. 309, 508 P.2d 309], italics added.) As noted,
CONCLUSION
This case arises in the unusual factual context of a transition from city to county law enforcement in the City of Perris. Though the County may have proceeded in a good faith attempt to ease the impact on former City police officers by hiring those officers provisionally, it cannot, as a practical matter, maintain the fiction that it was merely like any other prospective employer with respect to its background investigation and therefore these files are not subject to the Bill of Rights Act. Accordingly, we conclude that, by proceeding as it did, the County subjected its background investigation of Madrigal to the disclosure requirements of the Bill of Rights Act. We further conclude, however, that Madrigal‘s express waiver of his right to view the background investigation file is enforceable because he knew or should have known the full consequences of that waiver. We express no opinion about Madrigal‘s entitlement to the other relief he seeks by way of his complaint in the underlying action.
We reverse the judgment of the Court of Appeal with instructions to issue the writ of mandate in accordance with our opinion.
George, C. J., Baxter, J., and Chin, J., concurred.
WERDEGAR, J., Concurring and Dissenting.--I concur in the majority‘s conclusion that, on the unusual facts of this case, real party in interest Xavier Martin Madrigal, though employed by petitioner County of Riverside (County) as only a probationary deputy sheriff, was nevertheless protected
I further agree with the majority‘s conclusion that the protections of the Act are not waivable generally because those protections were established for the protection of the public. (Maj. opn., ante, at pp. 804-805.) As the majority notes,
The protections of the Act unquestionably are “established for a public reason” and thus by virtue of
We recognized the public benefit underlying the Act in Burden v. Snowden (1992) 2 Cal.4th 556 [7 Cal.Rptr.2d 531, 828 P.2d 672]: “‘[I]t can hardly be
I thus find that
That the majority sees fit to recognize a one-year limit to the exception it creates is an indication that it has surpassed the limits of judicial authority. No such limitation appears in the Act itself. Yet, the Legislature knows how both to include a one-year time limit for rights under the Act (see
Nor is the majority persuasive in reasoning that recognition of an officer‘s right to waive statutory protections under the Act would serve the Act‘s purpose of fostering stable employee-employer relations between peace officers and their employers by “facilitating an earlier hiring date for new peace officers who are transferring from other agencies.” (Maj. opn., ante, at p. 806.) The determination of how best to serve the Act‘s purpose is for the Legislature, not this court. Moreover, if the County wished to achieve the benefit of an earlier hiring date while still maintaining the confidentiality of its sources, it was not without lawful means to do so: it could either have commenced its background investigations at an earlier date or postponed the merger to a later one, in either case concluding its investigations before extending offers of employment. As the Court of Appeal opined below: “Instead, probably to effect a seamless transfer of authority and uninterrupted service, the County simply accepted the Perris officers as probationary, but fully active, law enforcement personnel. By doing so, the County avoided the necessity of recruiting and training new deputies and was able promptly to assume its contractual duties. Having chosen to proceed in this manner, the County must accept the burden with the benefit and recognize Madrigal‘s . . . rights [under the Act].” (Fn. omitted.)
Although I concur to the extent the majority finds Madrigal protected by the Act, I dissent from its further holding that Madrigal effectively waived his rights under the Act. Accordingly, I would affirm the judgment of the Court of Appeal.
Kennard, J., and Moreno, J., concurred.