Metropolitan News-Enterprise


Thursday, April 9, 2009


Page 1


Court: Police Officer Cannot Access Complaint Materials


By STEVEN M. ELLIS, Staff Writer


An exonerated Los Angeles Police Department officer allowed to review numerous citizens’ complaints against him cannot compel disclosure of additional materials such as interview tapes and transcripts, this district’s Court of Appeal ruled yesterday.

Div. Five held that speculation the materials might contain additional adverse comments did not support a disclosure obligation under the Public Safety Officers Procedural Bill of Rights Act where the department could not use the materials to make personnel decisions.

Officer Walter McMahon was assigned to the LAPD’s Southeast Area Gang Impact Team investigating gang activity around the Imperial Courts housing project when area residents filed approximately 20 citizens’ complaints alleging criminal and administrative misconduct over a seven-month period beginning in July 2004.

The department’s internal affairs division later determined the complaints were all meritless, having been filed in bad faith by residents who were upset with McMahon’s successful anti-gang efforts in and around the housing project.

However, before the complaints were resolved, McMahon’s captain transferred him to the department’s Harbor Division on a “loan” basis given the volume and vehemence of the complaints and concerns for McMahon’s safety. There, McMahon continued to work as an investigator on the division’s gang impact team at the same pay grade.

The department provided McMahon with the opportunity to review each of the complaints and various related documents and findings, but he demanded access to additional materials from the underlying investigations, such as interview tapes and transcripts, pursuant to Government Code Sec. 3306.5.

The section grants covered officers the right “to inspect personnel files that are used or have been used to determine that officer’s qualifications for employment, promotion, additional compensation, or termination or other disciplinary action.”

When the Department refused the request, McMahon sought writ of mandate to compel disclosure, but Los Angeles Superior Court Judge Dzintra Janavs, since retired, denied the petition.

Janavs found McMahon failed to show the materials had been used for POBRA’s enumerated personnel purposes or were likely to be used for such purposes in the future. She also found he failed to justify his contention that the materials that were disclosed gave him an in adequate basis to respond to the complaints.

McMahon appealed, but Justice Sandy R. Kriegler wrote that the department complied with its POBRA obligations in withholding the requested materials.

He explained:

“Under [McMahon’s] proffered reading, the statute’s plain meaning entails a disclosure obligation so broad as to encompass any materials that might contain comments adverse to the officer, regardless of whether their use for enumerated personnel purposes is proscribed by statute or departmental regulation.”

Noting that the purpose of Sec. 3306.5 and other provisions of POBRA is to facilitate officers’ ability to respond to adverse comments potentially affecting their employment status, and that Penal Code Sec. 832.5(c) provides that unfounded citizens complaints may not be maintained in officers’ general personnel files, Kriegler commented that McMahon’s interpretation would result in “absurd consequences” the Legislature did not intend.

Justices Orville A. Armstrong and Richard M. Mosk joined Kriegler in his opinion.

The case is McMahon v. City of Los Angeles, B206254.


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