Opinion
I. INTRODUCTION
Aрpellants Michael Seligsohn and Ray Castillo, both police officers employed by City College of San Francisco (College), a community college, appeal from a judgment of the San Francisco Superior Court denying their petition for a writ of mandate and complaint for declaratory relief seeking disclosure of complaints filed against each of them with the College’s Office of Affirmative Action. We reverse.
II. FACTUAL AND PROCEDURAL BACKGROUND
In September 2001, appellant Castillo was assigned to investigate matters pertaining to a faculty member at the College. In November 2001, Castillo *521 and another officer involved in that investigation learned that a complaint accusing them of discrimination and harassment based on the complainant’s “national origin and religion” and involving the September 2001 investigation might be filed, and retained counsel. On December 6, 2001, such a complaint was in fact filed; Castillo was formally notified of it by a letter dated January 29, 2002, from respondent Linda Jackson, Associate Dean of the College and Coordinator of its “Office of Affirmative Action” (OAA). The letter stated that a faculty member with a Middle Eastern name had “filed a complaint of discrimination and harassment against you based on his national origin and religion concerning incidents which began September 12, 2001.” Copies of this letter were sent to Castillo’s superior (who is now retired), Chief Gerald DeGirolamo, and the College’s Vice Chancellor of Finance and Administration, respondent Peter Goldstein. At some unspecified point of time, the complaining faculty member “made aspects of his claims against . . . Castillo public by' conducting an interview with the campus newspaper . . . .”
On February 22, 2002, Castillo and his attorney met with Jackson and a private investigator employed by and reporting to her, respondent David Reuben. At that meeting, Castillo was allegedly interrogated by both Jackson and Reuben about various aspects of his September 2001 investigation of the faculty member. “Before, during and after” that interrogation, Castillo’s attorney requested a copy of the complaint concerning whiсh Castillo was being interrogated; Jackson refused to provide a copy.
On or about April 5, 2002, Jackson wrote Castillo informing him that “the formal complaint of discrimination filed December 6, 2001” had been withdrawn and that her office “has ceased the investigatory process regarding this complaint.” Castillo’s attorney nevertheless protested, over a considerable period of time, to both Jackson and the College’s General Counsel that Castillo was legally entitled to a copy of the written complaint filed against him, but to no avail. Copies of all of Castillo’s counsel’s letters to the College’s General Counsel were sent to respondents Goldstein and Jackson.
On Novembеr 20, 2002, appellant Seligsohn, a sergeant in the College’s police force, received a letter from Jackson advising him that a student at the College had filed “informal charges of discrimination and harassment against [him] based on race and color” and relating to an incident allegedly occurring on October 2, 2002, at the College’s “Phelan/Ocean campus.” As was the case with Castillo, copies of the letter went to both Seligsohn’s superior, former Chief DeGirolamo, and Vice-Chancellor Goldstein.
In December 2002, Seligsohn retained the same attorney who represented Castillo and, on January 6, 2003, they both attended a meeting with Jackson and Reuben. At that meeting, Seligsohn was interrоgated by those two *522 regarding the events of October 2, 2002; during the questioning, Jackson and Reuben apparently consulted “notes or reports.” Again, Seligsohn’s counsel requested a copy of the complaint made against his client. Again, Jackson declined, explaining that the complaint “had not been made in writing.” Seligsohn’s counsel then wrote Jackson requesting not only a copy of any complaint, but also copies of any “transcribed notes of the complaint, reports, investigator notes, and other records related to the complaint” that she might have. Copies of that request went also to respondent Goldstein. No such documents were ever provided to Seligsohn or his counsel.
Sometime after the January 6, 2003, 1 interview of Seligsohn, the OAA determined that it had “no evidence to support a finding of probable cause that racial discrimination/harassment occurred” and closed its files relating to the informal complaint against Seligsohn. The record does not reflect if, as, or when Seligsohn or his attorney were ever so notified.
On January 29, appellants filed a verified petition under Code of Civil Procedure section 1085 and a verified complaint for declaratory relief under section 1060 of the same code seeking either a writ of mandate or a declaratory judgment that, under various statutory provisions to be discussed below, they were entitled to production of any written complaints or similar documents. The petition and complaint named as respondents and defendants the College and its Chancellor, Philip Day, Vice Chancellor Goldstein, Jackson, and Reuben. It stated, however, that the various individual respondents and defendants were being sued solely in their representative capacities.
The petition and complaint were heard on May 5 by the superior court which, by order dated July 8, denied both. A judgment to this effect was entered on July 22 and appellants filed a timely notice of appeal thereafter.
in. DISCUSSION
The parties apparently agree that our standard of review in a case such as this is de novo. This is plainly corrеct because, regarding a trial court’s ruling on a petition for a writ of mandate, an appellate court can and should make its own determination when the case involves the “resolution of questions of law where the facts are undisputed.”
(Evans v. Unemployment Ins. Appeals Bd.
(1985)
The parties also appear to agree, as do we, that appellants Seligsohn and Castillo are both “public safety officers” and “peace officers” under California law. (See, respectively, § 3301 and Pen. Code, § 830.32.)
Appellants present three principal arguments as to why the trial court erred in denying their petition for a writ of mandate and complaint for declaratory relief, namely that the complaints against Castillo and Seligsohn and related documents should have been produced to them pursuant to (1) section 3303, subdivision (g) (section 3303(g)), of the Bill of Rights Act, (2) sections 3305 and 3306 of that act, and (3) sections 6250, 6254, and 6255 of the CPRA. We shall discuss the first two contentions in the order just mentiоned but, for the reasons noted below, conclude we need not reach the third, CPRA, issue.
First of all, a few words are in order regarding the background of the 1976 Bill of Rights Act of which sections 3303(g), 3305 and 3306 are a part. Our Supreme Court recently summarized the purposes of the act as follows: “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.’ (§ 3301.) Among other things, the Act guarantees public safety officers the right to view any adverse comment placed in their personnel files (§ 3305) and to file, within 30 days, a written response, which will be attached to the adverse comment. (§ 3306.) These provisions reflect the public’s interest in good relations between peace officers and their employers, including protecting peace officers from unfair attacks on their character. Peace officers, in particular, must confront the public in a way that may lead to unfair or wholly fabricated allegations of misconduct from disgruntled citizens. Law enforcement agencies must take these citizen complaints seriously but at the same time ensure fairness to their peace officer employees. The Bill of Rights Act therefore gives officers a chance to respond to allegations of wrongdoing.”
(County of Riverside
v.
Superior Court
(2002)
Going to the specific sections of the act relied upon by appellants, section 3303 provides, in pertinent part: “When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions. ...[][] (g) 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. No notes or reports that are deemed to be confidential may be entered in the officer’s personnel file. The public safety officer being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation.” (§ 3303(g).)
Section 3305 then goes on to provide: “No public safety officer shall have any comment adverse to his interest entered in his personnel file, or any other file used for any personnel purposes by his employer, without the public safety officer having first read and signed the instrument containing the adverse comment indicating he is aware of such comment, except that such entry may be made if after reading such instrument the public safety officer refuses to sign it. Should a public safety officer refuse to sign, that fact shall be noted on that document, and signed or initialed by such officer.” (§ 3305, italics added.)
Section 3306 follows on from this and provides: “A public safety officer shall have 30 days within which to file a written response to any adverse comment entered in his personnel file. Such written response shall be attached to, and shall accompany, the adverse comment.” (§ 3306.)
As the first sentence of section 3303 makes clear, its protections apply when, but only when, the investigation and interrogation is being undertaken by the “commanding officer, or any other member of the employing public safety department” of the peace officer in question. (§ 3303.) Such was not the case here, and hence section 3303(g) does not require the production of “any notes made by a stenographer оr . . . any reports or complaints made by investigators or other persons . . . .” (§ 3303(g).) In
People v. Velez
(1983)
*525
Both the applicable law and the result is, however, quite different regarding section 3305. In
Aguilar
v.
Johnson
(1988)
*526
Aguilar was still dissatisfied with this resolution and filed a petition for a writ of mandate against his chief who, throughout the dispute and the litigation “steadfastly maintain[ed] that a citizens’ complaint is not an adverse comment within the meaning of’ sections 3305 and 3306. The Fifth Appellate District disagreed: “[T]he Chief’s compliance with Government Code sections 3305 and 3306 is not excused simply because the complaint is placed in a file separate from the personnel file.”
(Aguilar, supra,
Over a decade later, the Supreme Court relied on the holding of Aguilar in its decision in Riverside, supra, 27 Cal.4th at pages 801-802. In that case, the City of Perris, in Riverside County, had received “a citizen complaint to the effect that [an officer named Madrigal] had engaged in significant illegal conduct while on duty.” (Id. at p. 795.) The city never informed Madrigаl of the complaint nor allowed him to see it until after the litigation commenced, however. (Id. at p. 796.) That litigation was triggered by the disbandment of the Perris police department and that city’s subsequent decision to contract out its law enforcement services to the County of Riverside. All of Perris’s former police officers were formally discharged by it but then taken aboard the county payroll on a probationary basis and thus “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.” (Ibid.)
Thereafter, in connection with his attempt to transfer to the Rivеrside County Sheriff’s Department permanent payroll, Madrigal was asked to and did sign numerous “advisement” and waiver forms, including one specifically acknowledging that the sheriff’s department could and would conduct a “background investigation” of him.
(Riverside, supra,
The Supreme Court granted review and unanimously sustained the trial and appellate courts regarding the applicability of sections 3305 and 3306 to the documents ordered produced to Madrigal.
4
In the course of its opinion, the court addressed Riverside County’s argument that the Bill of Rights Act did not apply to documents pertaining to “conduct
prior to
the commencement of employment.”
(Riverside, supra,
Finally and most recently, in
Sacramento Police Officers Assn. v. Venegas
(2002)
The court then went on to reject the Sacramento police department’s argument that its internal affairs files were not covered by section 3305: “The purposes of sections 3305 and 3306 readily apply to an adverse comment on Kime’s internal affairs index card. The Department conceded at oral argument that if, in the future, a complaint is made against Kime and the internal affairs investigator reads Kime’s index card, an unexplained and unrebutted charge of neglect of duty could color the investigator’s view of Kime and affect the investigation of the new complaint. This is the type of comment adverse to his interest that the Bill of Rights Act gives Kime the opportunity to review and explain or rebut if he can.” (Sacramento Police Officers, supra, 101 Cal.App.4th at pp. 928-929.)
Respondents contend that the holdings of these three decisions are not pertinent here. In particular, they urge that the files of the OAA are separate and distinct from the personnel files of College employees. They argue: “[T]he OAA’s files are confidential and are not created, maintained, or used for personnel purposes. The OAA is not part of the Department of Public Safety, nor is it a part of the . . . College’s Human Resources Department.” 5 Respondents further observe that the OAA does not provide copies of complaints of discrimination to either department. Respondents then note several factual distinctions between this case and the three cases just discussed and, in the process, contend that “no discipline or disciplinary recommendation ever emanates from the OAA.” They conclude their argument regarding the coverage of section 3305 by contending that “the OAA’s files are not maintained for any personnel management reason, but, instead, because Title 5 [i.e., § 59300 et seq. of title 5 of the California Code of Regulations] requires . . . College to create an OAA to address discrimination concerns in the college community.” 6
*529 Respondents’ arguments do not withstand scrutiny. In the first place, their contention that the OAA’s discrimination complaint files are separate and distinct from anything relating to appellants’ employment by the College’s Department of Public Safety is substantially undercut by the fact that copies of the letters to each appellant advising him of the filing of a discrimination complaint against him, and briefly relating the essence of that complaint, were sent to both their superior, the former chief of campus police, and the College’s Vice Chancellor of Finance and Administration. Respondents argue that the copying-in of the chief was of no great moment because, per a declaration signed by him and filed in the lower court, “the Chief did not retain this correspondence permanently, nor did he draw an inference of wrongdoing against [either appellant] from the fact that OAA was conducting an investigation.” There are several obvious answers to this: perhaps the former Chief did not permanently retain his copies of those letters nor draw any adverse inference from them, but (1) he certainly could have done both, (2) the incumbent Chief may act and feel differently as and when he or she gets copies of similar discrimination complaints,* ***** 7 and (3) we are left tо speculate as to what an individual well up this particular chain of command, Vice Chancellor Goldstein, thought about and did with his copies of the two letters. 8
But an even more fundamental reason why respondents’ “these aren’t HR records” argument fails derives from the following pregnant sentence in their brief to us: “The Human Resources Department does not receive or incorporate any part of the content of OAA files into an individual employee personnel file unless and until disciplinary action is taken against the employee as a result of an independent investigation conducted by the *530 Human Resources Department in conjunction with the employee’s manager.” (Italics in original.) In support of this statеment, respondents cite to a declaration in the record from the College’s HR manager, who basically says the same thing, i.e., that her department “does not receive any documents from the OAA’s discrimination investigation files or place those documents in an employee’s personnel files unless the employee has first gone through the City College’s employee discipline process.” (Italics added.)
This being the case, respondents’ argument becomes flatly inconsistent with the holding of
Sacramento Police Officers
that what is important is the
“potential
unfairness” in denying access to the document or documents in question.
(Sacramento Police Officers, supra,
Put another way, respondents’ argument ignores the express holding of
Riverside
that “[t]he label placed on the investigation file is irrelevant.” The determinative factor is the potential relevance of the materials in those files to possible future action “ ‘affecting the status of the employee’s employment.’ ”
(Riverside, supra,
Respondents’ argument that the filing of the complaints had no adverse effect on appellants also overlooks the requirements of the California Code of Regulations provisions they rely upon as the basis for the very existence of the College’s OAA, namely, sections 59300 et seq. of title 5 of that code. These provisions spell out in considerable detail what a community college must do when a complaint of a prohibited form of discriminatiоn is presented to it. Each district must first appoint “a single person as the district officer responsible for receiving complaints” of discrimination (Cal. Code Regs., tit. 5, § 59324) and, when “charges of unlawful discrimination” are brought to his or her attention, attempt to resolve them “informally.” (Cal. Code Regs., *531 tit. 5, § 59327, subd. (a)(1).) If that cannot be done, however, and a “written complaint” is filed with either that officer or the Chancellor of the California Community Colleges, a formal investigation must be conducted by the assigned district officer. (Cal. Code Regs., tit. 5, §§ 59328, 59334.) If the written complaint is filed with the responsible officer, he or she must immediately forward a copy of it to the Chancellor, who must also be advised that the required investigation has сommenced. (Cal. Code Regs., tit. 5, §§ 59330, 59334.) The investigation must be concluded via a written investigative report within 90 days and a copy forwarded to the Chancellor and the complainant; the latter may appeal any findings or conclusions to, first, the local governing board of the college and then the Chancellor. (Cal. Code Regs., tit. 5, §§ 59336, 59338, 59339.) Unless an extension is granted, the entire process must be completed within 150 days, after which the Chancellor’s office is permitted to take over the investigative and enforcement process. (Cal. Code Regs., tit. 5, §§ 59340-59362.) The penultimate section in this series then provides: “Upon a determination that a district has violated the provisions of this subchapter, the Chancellor shall notify the district of the action he or she will take to effect compliance,” which is then defined to include court action, cutting off “all or part” of state funding, etc. (Cal. Code Regs., tit. 5, § 59360.)
Interestingly, although these detailed provisions make repeated reference to copies of the required documents and reports being supplied to both the complainant and the Chancellor, nothing is said regarding copies being furnished to any college employee or employees who are named in the informal charge or formal written complaint. Thus, nothing in the regulations even purports to provide a substitute for the requirement of section 3305 as and when a complaint of discrimination implicates a campus peace officer. Whether that is a defect in the regulations is not properly our concern. What is our concern is the obvious fact that the regulations mandate both a prompt and thorough investigation of any and all complaints alleging any form of discrimination and give oversight of such investigations to the Chancellor’s office. This combination of facts compels the conclusion that complaints of discrimination which name specific College employees as the perpetrators of that discrimination could well result in significant employment consequences for those so named.
For all of these rеasons, and particularly in light of the holdings of Aguilar, Riverside and Sacramento Police Officers, we have no difficulty concluding that section 3305 applies to the documents requested by appellants. 9
*532
Which leaves only the question of whether the CPRA also required the production to appellants of copies of the two complaints in question. The scope and coverage of that statute is, of course, considerably broader than that of section 3305. The CPRA starts out with a declaration that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of
every person in this state.”
(§ 6250, italics added.) The statute is, as is well known, often a vehicle for attempts (many successful) by the media and other persons not directly involved in a particular issue to gain access to the files of public entities potentially pertaining to that issue. (See, e.g.,
Williams
v.
Superior Court
(1993)
IV. DISPOSITION
The judgment appealed from is reversed and the matter remanded to the trial court for action not inconsistent with the foregoing opinion. Costs on appeal are awarded to appellants.
Lambden, J., and Ruvolo, J., concurred.
A petition for a rehearing was denied August 31, 2004, and the opinion was modified to read as printed above. Respondents’ petition for review by the Supreme Court was denied November 10, 2004.
Notes
All further dates noted are in 2003.
All further statutory references are to the Government Code unless otherwise noted.
In so holding, the court distinguished a case relied upon by appellants here, namely our decision in
California Correctional Peace Officers Assn. v. State of California, supra,
Similarly, our holding regarding the nonapplicability of section 3303 to the present factual circumstances makes it unnecessary to discuss a case relied upon by respondents,
Pasadena Police Officers Assn.
v.
City of Pasadena
(1990)
By a 4-3 vote, however, and in a part of its decision not pertinent here, the court held thаt Madrigal had waived his rights under the Bill of Rights Act by the various documents he signed when entering his probationary employment period with the county. (Riverside, supra, 27 Cal.4th at pp. 804-810.)
Hereafter, we will sometimes refer to this department by the abbreviation “HR.”
Both in the quoted sentence and elsewhere in their brief, respondents assert as a central premise that the College’s OAA is a “statutory creation” established “pursuant to its obligation under Title 5 of the California Code of Regulations, Section 59300, et seq. . . .” This seems a *529 bit of a stretch. The referenced sections of the California Code of Regulations simply establish a procedure for the filing and processing of complaints of discrimination “on the basis of ethnic group identification, national origin, religion, age, sex, race, color, ancestry, sexual orientation, or physical or mental disability” and cite as the basis for that establishment a series of state and federal antidiscrimination statutes. (Cal. Code Regs., tit. 5, § 59300.) Nowhere in the 30 plus sections of these regulations is there any reference to “affirmative action” much less a mandate for an “Office of Affirmative Action.” More importantly, the regulations make no mention of either the existence of, maintenance of, or access to the records and files of the person or persons in the College responsible for investigating complaints of prohibited discrimination.
This would seem to be particularly so becаuse, as noted, both officers were “peace officers” within the meaning of the applicable Penal Code provisions, one of which requires an agency employing such officers to “establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies . . . .” (Pen. Code, § 832.5, subd. (a)(1).)
Common sense suggests, especially currently, that anyone overseeing college administration might be rather interested in a letter advising that a complaint had been filed by a faculty member with a Middle Eastern name charging a campus police officer with discrimination and harassment based on the faculty member’s “national origin and religion concerning incidents which began September 12, 2001.”
Respondents contend that they are excused from complying with the mandate of section 3305 due to the requirements of both state and federal law restricting the disclosure of a “pupil record” or “education records.” (See the federal Family Educational Rights and Privacy Act, 20
*532
U.S.C. § 1232g (a)(4)(A) & (b)(2) and Ed. Code, §§ 49060, 49061, subd. (b).) This argument has no merit for at least two reasons. In the first place, the complaint against Officer Castillo was made by a faculty member and contained no mention of the names of any students. Although the complaint against Officer Seligsohn did name the student complainant, there is nothing in the Bill of Rights Act, the cited federal statute, or the relevant Education Code provisions that would preclude compliance with section 3305 regarding that complaint. (Cf.
Poway Unified. School Dist. v. Superior Court (1998)