Tuesday, December 13, 2016
Page 1
Court of Appeal Declares:
Retired LAPD Officer May See Others’ Personnel Files
Perluss Says Files of Those Who Got Promotions Unsuccessfully Sought by Plaintiff Are Material to Claim That Lesser Qualified Persons Were Chosen
By a MetNews Staff Writer
The Court of Appeal for this district declared yesterday that a retired Los Angeles police officer who claims he was not promoted in retaliation for his whistleblowing is entitled to see the personnel records of those who did receive promotions.
Los Angeles Superior Court Judge Mark Mooney had denied access to the records, telling the attorney for former officer Robert Riske:
“You want records of all these officers who have got nothing to do with this case other than, you know, they were considered for these positions at the same time as your client was. But they did nothing wrong. They’re not a witness to anything. They committed no alleged misconduct. So that’s why I still don’t think [you] get discovery of their otherwise privileged personnel files.”
In an opinion announcing the granting of a writ of mandate Presiding Justice Dennis Perluss of Div. Seven said:
“The statutory scheme governing the discovery of peace officer personnel records is not limited to cases involving officers who either witnessed or committed misconduct. If a plaintiff can demonstrate the officer’s personnel records are material to the subject matter of the litigation, the records must be produced by the custodian of records and reviewed by the court at an in camera hearing in accordance with the statutory procedures to assess the discoverability of the information contained in them. The court must then order production of those records that are relevant and not otherwise protected from disclosure.”
Retaliation for ‘Whistleblowing’
The plaintiff contended that each of his 14 bids for promotion failed because, in 2008, he reported two officers for filing false reports. They were fired, following an administrative hearing at which he gave testimony.
Since then, he was regarded as a “snitch” and was ostracized by fellow officers, the complaint averred.
Riske retired in 2014, after 24 years on the force.
His theory, in seeking access to personnel records, was that he could show that those receiving the promotion that were denied to him could be shown to be less qualified than he.
In particular, he sought production of the Training Evaluation and Manage System (“TEAMS”) reports—summaries of qualifications of candidates for promotion—of the last two performance evaluations for those who received promotions.
City’s Contention
The city pointed to five cases in which it was held that good cause had not been shown for a look at police personnel records because the officers had been guilty of no misconduct. Perluss responded:
“Contrary to the City’s suggestion, the dispositive factor in these cases was not the presence or absence of the officer during the episode of misconduct at issue; it was the materiality of the officer’s records to the issue before the court….When the officer’s conduct was material to the claim, good cause was found….When the officer whose records were sought was not present when the police misconduct was alleged to have taken place, that officer’s past misconduct was not material to the defendant’s allegations; and the motion was denied….To be sure, as the cases cited by the City demonstrate, materiality will typically be found when the officer was involved, and not found when the officer was not involved in the alleged wrongdoing. But that is not invariably the case….”
Material to Claim
Perluss went on to say that the discovery sought by Riske was, in fact, material, explaining:
“The City’s defense, at least in part, was that the successful candidates were more qualified. Information in the TEAMS report and performance evaluations of the successful candidates could very well be material to Riske’s claim the City’s stated business reason was a pretext for unlawful retaliation.”
The case is Riske v. Superior Court, B270043.
Gregory W. Smith and Diana WangWells of the Law Offices of Gregory W. Smith, along Douglas G. Benedon, Gerald M. Serlin and Judith E. Posner of Benedon & Serlin, represented Riske. Deputy City Attorney Lisa S. Berger was lawyer for the city.
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