APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. (Super.Ct.No. RIC10004998) (Super.Ct.No. RIC10004998)
The opinion of the court was delivered by: Mckinster Acting P. J.
CERTIFIED FOR PUBLICATION
Following the decision in Pitchess v. Superior Court (1974) 11
Cal.3d 531 (Pitchess), the Legislature enacted Penal Code section
832.7. (See Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1538.)
That statute provides that, subject to some exceptions not pertinent
here, "Peace officer or custodial officer personnel records and
records maintained by any state or local agency . . . or information
obtained from these records, are confidential and shall not be
disclosed in any criminal or civil proceeding except by discovery
pursuant to Sections 1043 and 1046 of the Evidence Code."*fn1
(Pen. Code, § 832.7, subd. (a).)
This case presents the question whether the hearing officer in an administrative appeal of the dismissal of a correctional officer who was a nonprobationary employee of the Riverside County Sheriff's Department (Department) has the authority to grant a Pitchess motion. We conclude that the hearing officer in this case has the authority to do so, and we reverse the judgment.
PROCEDURAL AND FACTUAL BACKGROUND
Kristy Drinkwater was terminated from her position as a correctional deputy employed by the Department, for falsifying her time records in order to obtain compensation to which she was not entitled. She appealed her termination pursuant to the terms of the memorandum of understanding (MOU) then in effect between the County of Riverside (County) and the Riverside Sheriffs' Association (RSA), the employee organization which represents employees in the law enforcement unit for purposes of collective bargaining. The law enforcement unit consists of County employees in several classifications, including correctional deputies.
The MOU in effect at the time of Drinkwater's termination provided for a procedure by which correctional deputies could appeal the termination of their employment, as provided for in Government Code section 3304, subdivision (b).*fn2 The appeal procedure provides for a hearing before a mutually agreeable hearing officer selected from a list of hearing officers and the right to call and examine witnesses, to introduce exhibits, to cross-examine opposing witnesses, to impeach witnesses, and to rebut derogatory evidence. The MOU provides that it is the "duty of any County Officer or employee to attend a hearing and testify upon the written request of either party, or the Hearing Officer, provided reasonable notice is given [to] the department employing the officer or employee. The Employee Relations Division Manager, or designee, shall arrange for the production of any relevant County record. The Hearing Officer is authorized to issue subpoenas." The hearing officer may "sustain, modify, or rescind an appealed disciplinary action," and his or her decision is final, subject to the right of the parties to seek judicial review pursuant to Code of Civil Procedure section 1094.5.*fn3 The hearing is a "private proceeding among the County, the employee and the employee organization." The attendance of any other person is at the hearing officer's discretion.
Drinkwater asserted that the penalty of termination was disproportionate to her misconduct because other Department employees who had falsified time records had received lesser punishment. She submitted a motion to hearing officer Jan Stiglitz for discovery of disciplinary records of other Department personnel who had been investigated or disciplined for similar misconduct. Stiglitz found that Drinkwater had stated a "'plausible scenario'" showing good cause for the production of the records, but denied the motion without prejudice because Drinkwater had not identified the employees whose records she sought. Stiglitz held that although Drinkwater was entitled to discovery of the records on a proper showing, the Department was not required to search its records to provide her with the information requested.
In a subsequent renewed motion, Drinkwater identified the employees by name and stated the nature of the misconduct she understood they had committed and the resulting penalties, or absence thereof. However, she sought production only of records which had been redacted to conceal the identities of the employees involved.
The Department opposed the motion on its merits. It acknowledged that Stiglitz had jurisdiction to rule on the motion. On March 15, 2010, Stiglitz found good cause and ordered the Department to produce the requested records for his in camera review. On March 19, 2010, the Department filed its petition for a writ of administrative mandate, seeking to compel Stiglitz to vacate his decision that good cause existed. The petition did not challenge Stiglitz's authority to rule on the motion.
Brown v. Valverde, supra, 183 Cal.App.4th 1531 was decided shortly before the superior court was to rule on the petition. The Department brought the ruling to the trial court's attention and argued, for the first time, that only a judicial officer can rule on a Pitchess motion. Following supplemental briefing and further argument, the trial court found, based on Brown v. Valverde, that "there is no statutory authorization nor is there authorization pursuant to the [MOU] between [the Department] and [RSA] that would permit [a hearing officer] in a disciplinary hearing to consider Pitchess discovery motions." Accordingly, it granted the petition.
RSA, which had not been notified of the writ proceedings, brought motions for a new trial, to set aside and vacate the court's order, and for leave to intervene. The motions were granted, and RSA filed its opposition to the petition. The court again granted the writ and ordered Stiglitz to deny the motion.
RSA and Drinkwater each filed a timely notice of appeal. The two appeals were consolidated.
1. THE TRIAL COURT HAD JURISDICTION TO GRANT ADMINISTRATIVE MANDAMUS
A. The Finality Rule Does Not Bar Administrative Mandamus.
Code of Civil Procedure section 1094.5 provides that administrative mandamus is available to permit a court to review a "final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer." (Code Civ. Proc., § 1094.5, subd. (a), italics added; see Temescal Water Co. v. Dept. Public Works (1955) 44 Cal.2d 90, 101; Keeler v. Superior Court (1956) 46 Cal.2d 596, 599.) Here, we requested supplemental briefing to address the question whether the order granting the first phase of the Pitchess motion is a final order within the meaning of Code of Civil ...