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December 2, 2014

California Supreme Court Rules Administrative Hearing Officers Have Authority to Order Production of Confidential Peace Officer Personnel Records

On December 1, 2014, the California Supreme Court ruled in Riverside County Sheriff’s Department v. Stiglitz (“Stiglitz”) (Case No. S206350) that hearing officers in peace officer disciplinary appeal hearings conducted pursuant to the Public Safety Officer’s Procedural Bill of Rights Act (“POBRA;”Gov. Code §§3300 et seq.) have the legal authority to rule on motions for the disclosure of confidential peace officer personnel records, otherwise known as Pitchess motions.

In Stiglitz, the Riverside County Sheriff’s Department’s (“Department”) terminated Correctional Officer Kristy Drinkwater for falsifying her payroll forms.  Jan Stiglitz served as the hearing officer in the administrative appeal of the disciplinary action.  In her defense, Drinkwater intended to argue that she was subject to disparate treatment as others had committed similar acts of misconduct, but had not been terminated.  In order to obtain evidence of disparate treatment, Drinkwater filed a motion to obtain redacted peace officer personnel records for any Department employees who had been disciplined for similar acts of misconduct.  Peace officer personnel records are deemed confidential under Penal Code §§832.7 and 832.8.  The procedure for obtaining confidential peace officer personnel records is codified in Evidence Code §§1043 and 1045 and is known as a Pitchess motion.
Evidence Code §1043 provides in pertinent part:

In any case in which discovery or disclosure is sought of peace or custodial officer personnel records…, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body. . .(Emphasis added.)

Evidence Code §1045 provides that:

(b) In determining relevance, the court shall examine the information in chambers in conformity with Section 915. . .(Emphasis added.)

In support of her motion, Drinkwater submitted a declaration that 11 named officers had allegedly committed similar misconduct, but received little to no discipline.  Stiglitz concluded that Drinkwater’s motion established “good cause” for an in camera review of the personnel files to determine whether they should be produced.

The Department filed a petition for writ of administrative mandate in Superior Court challenging the decision on various grounds, including that a hearing officer does not have authority to grant Pitchess discovery.  The superior court agreed and ordered Stiglitz to reverse his order.  After a reversal by the Court of Appeal, the Supreme Court of California took the case up for review in January 2013. 

In affirming the Court of Appeal’s reversal, the Supreme Court provided clarity to an apparent contradiction between Evidence Code §§1043 and 1045. Evidence Code §1045 makes repeated reference to “the court” and its ability to examine the confidential records.  Moreover, it refers to Evidence Code §915, which also makes specific mention of “the court” and “the judge” in describing the in camera review process.  The Law Revision Comments for Evidence Code §915 also provide that, “[t]he exception in subdivision (b) applies only when a court is ruling on a claim of privilege.  Thus, in view of subdivision (a), disclosure of the information cannot be required, for example, in an administrative proceeding.”  (Emphasis added.)  Despite the apparent restriction by Evidence Code §§1045 and 915 in limiting the in camera review procedure for Pitchess discovery to the courts, the Supreme Court strictly interpreted the language in Evidence Code §1043 that provided that Pitchess motions can be filed with an administrative body.  Accordingly, it ruled that the Legislature intended for hearing officers to have the authority to rule on such motions without court intervention.
In rejecting the Department’s argument that only a judge could conduct an in camera review of confidential peace officer personnel records, the Supreme Court reasoned that adopting the Department’s argument would require it to read the term “administrative body” out of Section 1043.  Further, it found that such a rule would lead to the nonsensical result that the Pitchess statutory framework would allow for a motion to be filed with a body not authorized to rule on it.  Lastly, the Supreme Court cited the lack of a transfer mechanism from an administrative proceeding to the superior court to hear such a motion.  It noted that “had the Legislature intended that Pitchess motions could only be conducted in the superior court, it could have provided a mechanism to transfer a motion from an administrative proceeding to the superior courts.”
Key Takeaway Points:
• A hearing officer in a peace officer disciplinary hearing can order the disclosure of confidential peace officer personnel records.
• Because hearing officers have the authority to grant Pitchess discovery, it is imperative to select hearing officers well versed in the Pitchess statutory framework to oversee peace officer disciplinary appeals.
• When initially considering the appropriate level of disciplinary action, public safety agencies should take into consideration the fact that Pitchess discovery of other peace officer discipline is more readily accessible in an administrative appeal hearing for purposes of establishing disparate treatment.

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