Page 1
Court of Appeal:
Suit Over Disclosing Officer’s Personnel File Not a SLAPP
By a MetNews Staff Writer
An anti-SLAPP motion does not lie where a suit was brought based on conduct in prior litigation, the Court of Appeal for this district held yesterday, saying that the act of revealing the plaintiff’s personnel file without judicial authorization was not protected conduct because it was a misdemeanor.
The opinion by Justice Gail Ruderman Feuer of Div. Seven reverses a decision by Ventura Superior Court Judge Vincent J. O’Neill who granted a special motion to strike brought by the County of Ventura, former Ventura County District Attorney Gregory D. Totten, and others. Feuer’s opinion reinstates causes of action by District Attorney’s Office investigator Tracy Towner under the Public Safety Officers Procedural Bill of Rights Act and for the violation of Penal Code 832.7 which restricts access to peace officers’ personnel records.
Towner had been fired for testifying falsely at a 2017 Civil Service Commission hearing on behalf of an investigator who alleged “fraud, favoritism, and other non-merit based factors in the promotional process” of the District Attorney’s Office. The commission found his testimony to be credible.
When Towner appealed the termination of his employment, the county sought a writ to bar the commission from hearing the appeal based on its prior determination that his testimony was truthful—a determination it was defending in other proceedings. In connection with the writ action, Towner’s personnel file was disclosed.
The writ was denied, the commissioner ordered that Towner be reinstated, and he brought his suit.
Flatley Cited
Feuer pointed out that under the California Supreme Court’s 2006 decision in Flatley v. Mauro, criminal conduct is not subject to the protection of the anti-SLAPP statute, Code of Civil Procedure §425.16. She wrote:
“Towner does not dispute that the filing of written documents in a judicial proceeding generally falls within the protection of the anti-SLAPP statute, but he contends Code of Civil Procedure section 425.16 does not apply to his claims because the County defendants’ public disclosure of his confidential personnel records was illegal as a matter of law under Flatley….Towner is correct.”
She went on to explain:
“Although section 832.7 provides a comprehensive and detailed scheme for the disclosure of confidential law enforcement personnel records, it does not make a violation a crime. However, as Towner contends, the County defendants’ failure to comply with section 832.7 was illegal as a matter of law under Government Code section 1222, which makes a public officer’s ‘willful omission to perform any duty enjoined by law’ a misdemeanor. We agree with Towner that the County defendants’ failure (omission) to treat Towner’s personnel documents as confidential was willful, in that the County defendants acted on purpose with the intent the records be filed publicly in the writ proceeding.”
Exemption Claimed
The defendants argued that they were exempt from compliance with §832.7 based on wording in it that the “section shall not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney’s office, or the Attorney General’s office.” The writ proceeding, they contended, was part of the District Attorney’s Office investigation of Towner’s conduct.
“The County defendants read the statutory exception too broadly,” Feuer responded.
She embraced the reasoning express by the First District Court of Appeal in its 2003 opinion in Fagan v. Superior Court in which it said that although evidence was properly obtained by the District Attorney’s Office from officers’ personnel files in connection with a criminal investigation, §832.7 did not authorize disclosure of what it found absent judicial authorization.
“Thus, Towner has carried his burden to show the alleged conduct of the County defendants underlying his third and fifth causes of action was illegal as a matter of law under Flatley because it constituted a willful omission to perform a public duty enjoined by law…, and was therefore not protected activity under the anti-SLAPP statute.”
The case is Towner v. County of Ventura, 2021 S.O.S. 1734.
Copyright 2021, Metropolitan News Company