New Law Provides that Public Agencies may not Take Punitive Action Based Solely on the Fact that a Public Safety Officer’s Name is on a “Brady List”

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The Governor recently approved Senate Bill 313 (“SB 313”), which adds section 3305.5 to the Government Code.  Currently, the Public Safety Officers Procedural Bill of Rights Act provides that no punitive action may be taken against a public safety officer, including a denial of promotion on grounds other than merit, unless a public agency first provides the officer with procedural protections.  SB 313 adds protection where a public safety officer’s name has been placed on a Brady list.

SB 313 provides that a public agency cannot take punitive action against a public safety officer or deny the officer a promotion on grounds other than merit solely because the officer’s name is on a Brady list or is otherwise subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83.  The “Brady list” is defined by SB 313 as “any system, index, list, or other record containing the names of peace officers whose personnel files are likely to contain evidence of dishonesty or bias, which is maintained by a prosecutorial agency or office in accordance with the holding in [Brady v. Maryland].”  SB 313 does not prohibit a public agency from taking punitive or personnel action against a public safety officer based on the underlying acts or omissions that resulted in the officer’s name being placed on the Brady list or becoming subject to disclosure under Brady v. Maryland, as long as the public agency’s action conforms to other procedural requirements.

During an administrative appeal, a public agency may only introduce evidence that an officer’s name was placed on a Brady list if the underlying act or omission that resulted in the officer’s name being placed on the list is proven and the officer is subject to punitive action.  If a hearing officer or other administrative appeal tribunal determines that an officer committed an act or omission that will result in a punitive action or an adverse personnel action and evidence exists the officer’s name is on a Brady list or subject to disclosure by Brady v. Maryland, “then the evidence shall be introduced for the sole purpose of determining the type or level of punitive action to be imposed.”