On September 30, 2021, Senate Bill 2 (SB 2) was signed into law, and California joined the 46 other states with a mechanism for decertifying police officers. While the bill was created primarily to develop a process to certify and decertify police officers, it also expanded the list of records available through Public Records Act requests. It removed specific immunity provisions related to lawsuits brought under the Tom Bane Civil Rights Act.
The legislature leaned heavily on the California Commission on Police Officer Standards and Training (CA POST) to implement the changes mandated by the legislation. A new division was created within CA POST to take the lead in developing and implementing a certification/decertification process for peace officers. The new division, the Peace Officer Standards Accountability Division (POSAD), started by defining “Serious Misconduct” to identify the cases they would review for possible decertification. The California Code of Regulations (11 CCR § 1205) identifies the following conduct as “Serious Misconduct” and potentially grounds for decertification:
- dishonesty (job-related),
- abuse of power, physical abuse (excessive or unreasonable force),
- sexual assault (propositioning or committing any sexual act while on duty)
- demonstration of bias
- egregious or repeated violations of the law
- participation in a law enforcement gang (Penal code § 13510.8)
- failure to cooperate with an investigation into potential police misconduct
- failure to intercede when present and observing another officer using unreasonable force
By July 1, 2023, agencies must report current qualifying events within ten days and any qualifying event that occurred between
January 1, 2020, and January 1, 2023. CA POST’s ability to suspend or revoke retroactively based on serious misconduct occurring before January 1, 2022, is limited to dishonesty, sexual assault, and the use of deadly force resulting in death or serious bodily injury. According to CA POST training materials, these categories are without a statute of limitations and can be considered no matter when they occur.
Notification requirements under SB 2 extend to findings by civilian oversight boards, civil judgments, court findings, or settlement of a civil claim against a peace officer or an agency based on allegations of officer conduct that could render a peace officer subject to suspension or revocation of certification.
POSAD will accept complaints directly from the public and is authorized to conduct independent investigations in qualifying cases. However, it has stated that it will first rely on the employing agency to complete its investigation. Agencies must notify POSAD when there is a final disposition and provide the entire investigation, regardless of the disposition, in qualifying cases. This will permit POSAD to review the thoroughness of the agency’s investigation and determine if there is clear and convincing evidence to support decertification.
If POSAD believes there is clear and convincing evidence to support a recommendation for decertification, it will notify the involved officer of the pending decertification proceedings. The officer will have 30 days to complete a written request for appeal. POSAD will present its recommendations to a nine-member Peace Officer Standards Accountability Advisory Board at a public hearing. The officer or his representative may make a written or oral presentation to the Board. The Board will then recommend to the Commission on Peace Officer Standards and Training (Commission). If the Commission recommends decertification, the case is moved to an Administrative Law Judge for review before returning to the Commission for final determination.
SB 2 has made it clear that agencies owe it to their employees and the public to conduct thorough, objective, and timely investigations into misconduct allegations. SB 2 has granted CA POST the authority to review agency investigations to ensure they meet legal and industry standards, and all reviewed cases will be considered public records, and findings will be included in an annual report.
This summary of SB 2 is not meant to be comprehensive. It does not touch on the areas of new officer certification, records retention, PRA records, or qualified immunity that are part of SB 2. Agencies are encouraged to seek additional training from CA POST or legal advice when deciding how to comply with the mandates created by SB 2.
JL Group is a workplace consulting firm that specializes in workplace investigations, police auditing, and organizational assessments. JL Group is not a law firm and the content provided above is not intended as legal advice. Agencies and individuals should always check with their legal advisor before taking any employment action.
About the Author: Erik Herzog is an Investigator with the JL Group. Prior to joining the team, he served in the Long Beach Police Department for 31 years and retired as a Deputy Chief with 25 years of experience in the Investigative Bureau.