Who Is Watching the Watchdog?

 Not the Courts. On the night of April 9, 2007, a Lieutenant received a phone call at home from his employer, the California Department of Corrections and Rehabilitation (“CDCR”), informing him that he would be interrogated the very next morning by the Office of the Inspector General (OIG), an agency who serves as the ‘watchdog’ over the California state prison system. On the morning of April 10th, a Sergeant, also employed by CDCR at the same facility, was notified that he also would be interrogated by OIG. The employees each arrived at their interrogations not having been advised whether they were the subject of an investigation, or merely a witness, nor did they even know the substance of the investigation. OIG told them they ‘did not have to play by CDCR’s rules’ in informing them of this most basic information. The Sergeant and Lieutenant each contacted their union, the California Correctional Supervisors Organization (“CCSO”) to obtain union representation right away, and tried to get an extension of time from OIG, so they could obtain legal representation. The OIG allowed no time to obtain counsel, such that an attorney could not be sent on a moment’s notice to the prison. OIG threatened obstruction of justice, and the Lieutenant allowed himself to be interrogated, out of fear for losing his job. The Sergeant’s interrogation was unilaterally rescheduled to the next morning, since he was adamant that his rights were being violated. Still without an attorney, he showed up the next morning, and OIG was not present to interrogate him. A series of discipline then ensued for the Sergeant’s ‘refusal’ to be interrogated.

Isn’t this ‘refusal’ justified when you have been given less than 24 hours notice of an interrogation, when you have no idea what triggered the interrogation, and when you have no legal counsel? How can OIG get away with this? Because the law let them. Until now.

The Office of the Inspector General was created in 1994, but greatly expanded in 1999 for the purpose of having a ‘watchdog’ over California’s prison system. Over time, OIG turned from a ‘watchdog,’ to an active participant in CDCR’s internal affairs system. The agency does everything from selecting and hiring the Wardens at each Prison, to actually conducting interrogations with the prison’s internal affairs department when there is suspected wrongdoing by a correctional employee. This has been the domain of CDCR’s internal affairs department, and still is. Not surprisingly, there is great tension between OIG as the ‘watchdog’ and the prisons which are being watched, since CDCR/each prison is supposed to be tasked with conducting their own investigations. Once OIG ceased watching over, and started actually conducting the interrogations, problems began. Who was watching OIG to ensure they did not violate the employee’s rights? Well, as it turns out, no one.

The two correctional employees in this story, along with their union, CCSO, filed a lawsuit against the OIG for violating their peace officer rights. Correctional prison employees are peace officers. As peace officers, they are protected under a law called the Peace Officer Procedural Bill of Rights Act, or “POBR.” One of the protections that POBR provides is the prevention of a correctional employee from being interrogated by internal affairs on a moment’s notice. The employee must have notice of the subject of the interrogation (i.e. Prisoner Smith claims you used excessive force to extract him from his cell), and whether he or she is the focus of the investigation or merely a witness. The employee must also be permitted reasonable time to obtain legal representation for the interrogation. After all, arrestees must be read their Miranda rights and are allowed to obtain counsel before or during the interrogation; shouldn’t peace officers be provided the same civil rights?

After almost two years of litigating this action in Court, OIG asked the Judge to have Plaintiffs’ lawsuit dismissed because there was no jurisdiction to sue them in the Superior Court. The Court held that Penal Code Section 6126.5, which created OIG, lists which POBR protections apply to this unique, ‘independent’ state agency. The Court then noted that POBR’s penalties and jurisdictional statute, however, is “not on the list” (Government Code Section 3309.5), leading to the conclusion that OIG could not be sued for POBR violations.

What makes no sense with the Court ruling, however, is that the POBR Act itself, is on the Penal Code Section 6126.5 list, such that OIG must provide these protections to officers they are interrogating (Government Code Section 3303). Section 3309.5, which penalizes public safety departments for violating POBR rights had been in effect for quite some time before OIG was created; therefore, the Legislature would (or should) have presumably known that Section 3309.5 existed, but failed to make OIG abide by it, either by oversight or design.

What does this mean for the Sergeant and Lieutenant? It means that an agency like OIG had power to interrogate them and violate their peace officer rights, yet could not be sued in court by the employees, for a violation of those rights. Only the employer could be sued, but the employer wasn’t the one who interrogated them! The Superior Court had a choice to read all statues together such that they made sense, but they chose not to. It is the policy of California law that the statutes are to be read together so as to ‘effectuate’ the Legislature’s intent. Surely the Legislature intended that the POBR applied to OIG – it says so in the statute. But, if they violate the employees’ POBR rights, they cannot be sued for penalties for this violation? That’s like saying you have Miranda rights when you are arrested, but if they are violated then you cannot challenge the arrest; a ridiculous principle. The Court unfortunately took this nonsensical approach and dismissed OIG from the case. The lawsuit is now dead. Although the Court could have read all the statutes together so as to allow them to make sense, it chose to state that the legislature went terribly wrong in allowing POBR to apply to the employees, yet denying them the right to sue OIG for said violations.

So what did we do? We fixed the statute. This case was the proverbial ‘poster child’ for a lobby and legislative fix. CCSO assigned lobbyist Paul Curry to lobby for and create Legislation that would close this loophole and make OIG accountable for their actions. Legislation was co-written by Paul Curry, Sen. Wright and the trial counsel on the case for the Sergeant and Lieutenant, Joy C. Rosenquist, of Goyette and Associates. The new law amends the Penal Code to include the jurisdictional statute within POBR on the ‘list’ of sections applicable to OIG, such that any employee can now sue OIG if OIG fails to provide any of the POBR protections afforded to peace officers to employees being interrogated by OIG. On September 29, 2010, the Bill was signed by the Governor. OIG is now accountable in a Court of law. Watch out OIG; if you’re going to play in the mud, you risk getting dirty.

Article written by Joy C. Rosenquist, of Goyette and Associates.

 Joy manages and oversees the civil litigation at Goyette and Associates, on behalf of both public and private employees, and on behalf of law enforcement associations. CCSO and Paul Curry were instrumental in obtaining and passing this critical legislation of interest to law enforcement employees.