WHAT IT IS:

Senate Bill 2 (“SB2”) is the new law effective January 1, 2023, which establishes a requirement that all California Peace Officers be certified by the Commission on Peace Officer Standards and Training (“POST”). Additionally, this new law creates a mechanism for POST to revoke or suspend a peace officer’s certification due to a vast grey area identified as “SERIOUS MISCONDUCT.” The *definition of Serious Misconduct has yet to be officially adopted, but this new law states that such allegations must include one or more of the following: 1. Dishonesty 2. Abuse of power 3. Physical abuse 4. Sexual assault 5. Demonstrating bias 6. Acts that violate the law 7. Participation in a law enforcement gang 8. Failure to cooperate with an investigation into potential police misconduct, and 9. Failure to intercede *Note: The specific definition of each category above is listed in PC 13510.8.

THE PROCESS:

REPORTING

Allegations of Serious Misconduct may be reported via public complaints and/or Agency notifications. A citizen complaint can be made directly to POST, which may result in a POST-initiated investigation. Citizen complaints and agency allegations may also be reported directly to the peace officer’s agency of employment. Following receipt of such a complaint, the agency then has 10 days to report the allegation to POST. The agency then must conduct its own internal investigation and report their independent findings. According to SB2 the agency’s investigation and findings must then be forwarded to the new Peace Officer Standard Accountability Division (“POSAD”).

POSAD

The objective of POSAD is to review the agency’s investigation, conduct further investigations (if deemed necessary), and ultimately determine if Serious Misconduct has occurred. The standard of proof required to make this determination is the “clear and convincing” standard. This means there must be evidence that there is a high probability that the charges are true. This standard of proof exceeds the preponderance of the evidence standard required in administrative investigations. Therefore, it is possible that allegations may be sustained at the agency administrative level, but may not meet the clear and convincing standard required to revoke a peace officer’s POST certification under the rules of SB2.

RETROACTIVE REPORTING

SB2 will now require agencies to retroactively report past allegations of serious misconduct. This mandate requires agencies to report all allegations of serious misconduct, going back to January 1, 2020. However, for investigations completed before January 1, 2020, allegations involving Dishonesty, Sexual Assault, or Deadly force which resulted in substantial bodily injury or death, must also be reported for POST to review and consider for decertification. Moving forward, all allegations and investigations of serious misconduct completed after January 1, 2022 will have the potential for consideration in this new decertification process.

DECERTIFICATION PROCESS:

POSAD Determination

If POSAD determines that there is clear and convincing evidence that serious misconduct has occurred, POST must notify the peace officer of its intent to decertify. Upon notification the peace officer then has 30 days to request a review of the recommendation before the newly created Peace Officer Standards Accountability Advisory Board. If a request for review is not received within 30 days, the recommendation to decertify stands.

Peace Officer Standard Accountability Advisory Board

Once the Peace Officer Standards Accountability Advisory Board has received a peace officer’s request for review, the board will schedule and conduct a public hearing to review the overall investigation, as well as the recommendation to decertify. It is at this hearing wherein the peace officer may address the board. This may be done by the member or through the member’s chosen legal representation. However, it is important to note that due to the public nature of this hearing, that both sides have a chance to be heard, including the alleged victims of serious misconduct. Based on their review and their findings from the public hearing, the Board makes a written recommendation to the Commission on what action should be taken. This board includes nine (9) members and is comprised of one (1) command level officer, one (1) management level officer with internal affairs experience, one (1) attorney with oversight experience, two (2) members that have been or have family that have been subjected to a wrongful use of force, and four (4) members of non-profit or academics focused on police accountability.

Commission I

The Commission reviews the recommendation of the Board and decides by a two-thirds vote whether to accept or reject the recommendation. The decision of the Commission is returned to POST. If the Commission accepts a recommendation for revocation, a member may request a formal hearing before an Administrative Law Judge.

Administrative Law Judge

The administrative law judge reviews the findings and recommendations, hears evidence presented by the member or their legal representative, and hears witnesses. The judge then makes a recommendation to the Commission.

Commission II

The Commission reconvenes and reviews the recommendation of the Administrative Law Judge. The Commission can accept the recommendation with a two-thirds vote of present members or reject. If revocation is accepted, notice is given to the member and the decision is published on both the POST website and the National Decertification Index (NDI).

CONCLUSION

SB2 creates an entirely new system of investigation and review that will directly impact a peace officer’s ability to work in law enforcement. With the retroactive reporting requirement, many peace officers may face a reevaluation of allegations once thought to be put in their past. In summary, it is imperative for California peace officers to understand SB2 and the process and what it means for the law enforcement community going forward. As peace officers, facing any sort of disciplinary matter, it is imperative that you contact your Association and the Ferrone Law Group when confronted with matters such as this.

About the Author: Robert Bauman is a Partner with the Ferrone Law Group and is an expert in representing Public Safety members in administrative and disciplinary matters as well as criminal defense. He has been instrumental in maintaining certification for Peace Officers since the inception of SB 2.