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Blue v. California Office of Inspector General

California Court of Appeals, Third District, Sacramento

May 10, 2018

BRYAN BLUE et al., Plaintiffs and Respondents,

          APPEAL from a judgment of the Superior Court of Sacramento County, No. 34201500187126CUCRGDS Raymond M. Cadei, Judge. Reversed in part.

          KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD and David W. Tyra for California Office of the Inspector General and Robert A. Barton; Office of the Inspector General, James C. Spurling and Shaun R. Spillane for Defendants and Appellants.

          California Correctional Peace Officers Association, Daniel M. Lindsay, Phillip Murray and Justin C. Delacruz for Plaintiffs and Respondents.

          HOCH, J.

         This appeal challenges the trial court's partial denial of a special motion to strike pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute, [1] directed at causes of action arising out of the manner in which defendants, the Office of the Inspector General (OIG) and Robert A. Barton, in his capacity as Inspector General, conducted interviews with five correctional officers who previously worked at High Desert State Prison. The interviews were conducted as part of an investigation into that institution's “practices... with respect to (1) excessive use of force against inmates, (2) internal reviews of incidents involving the excessive use of force against inmates, and (3) protection of inmates from assault and harm by others.” As relevant to this appeal, these individual correctional officers and the California Correctional Peace Officers Association (CCPOA) alleged in their first and second causes of action that defendants violated Penal Code section 6126.5 and Government Code section 3300 et seq. (the Public Safety Officers Procedural Bill of Rights or the Act) by refusing the officers' requests to be represented during the interviews. The trial court denied the anti-SLAPP motion as to these causes of action, concluding (1) defendants carried their threshold burden of demonstrating the gravamen of these causes of action arose from protected activity, but (2) plaintiffs established a probability of prevailing on the merits of these claims.[2]

         We agree defendants carried their burden on the threshold issue, but conclude plaintiffs failed to establish a probability of prevailing on the merits of these causes of action. We therefore reverse the portion of the trial court's order denying the anti-SLAPP motion with respect to the first and second causes of action and remand the matter to the trial court with directions to enter a new order granting the motion in its entirety and dismissing the complaint.


         Oversight Authority of the OIG

         The Legislature created the OIG to oversee the Department of Corrections and Rehabilitation (CDCR). (Pen. Code, § 6125 et seq.) Penal Code section 6126 provides in relevant part:

         “(a) The Inspector General shall be responsible for contemporaneous oversight of internal affairs investigations and the disciplinary process of the [CDCR], pursuant to Section 6133 under policies to be developed by the Inspector General.

         “(b) When requested by the Governor, the Senate Committee on Rules, or the Speaker of the Assembly, the Inspector General shall review policies, practices, and procedures of the department. The Inspector General, under policies developed by the Inspector General, may recommend that the Governor, the Senate Committee on Rules, or the Speaker of the Assembly request a review of a specific departmental policy, practice, or procedure that raises a significant correctional issue relevant to the effectiveness of the department. When exigent circumstances of unsafe or life threatening situations arise involving inmates, wards, parolees, or staff, the Inspector General may, by whatever means is most expeditious, notify the Governor, Senate Committee on Rules, or the Speaker of the Assembly.

         “(c)(1) Upon completion of a review, the Inspector General shall prepare a complete written report, which shall be held as confidential and disclosed in confidence, along with all underlying materials the Inspector General deems appropriate, to the requesting entity in subdivision (b) and the appropriate law enforcement agency.

         “(2) The Inspector General shall also prepare a public report. When necessary, the public report shall differ from the complete written report in the respect that the Inspector General shall have the discretion to redact or otherwise protect the names of individuals, specific locations, or other facts that, if not redacted, might hinder prosecution related to the review, or where disclosure of the information is otherwise prohibited by law, and to decline to produce any of the underlying materials. Copies of public reports shall be posted on the [OIG]'s Internet Web site.” (Pen. Code, § 6126, subds. (a)-(c).)

         As explained by Inspector General Barton in his declaration in support of the anti-SLAPP motion, the OIG initially possessed the authority to conduct “criminal and administrative investigations into allegations of CDCR employee misconduct.” The Legislature removed this authority effective June 30, 2011 (compare Stats. 2009, ch. 35, § 14 with Stats. 2011, ch. 36, § 36), except in two circumstances: (1) “Upon receiving a complaint of retaliation from an employee against a member of management at the [CDCR], the Inspector General shall commence an inquiry into the complaint and conduct a formal investigation where a legally cognizable cause of action is presented” (Pen. Code, § 6129, subd. (b)(1)); and (2) “The [OIG] shall investigate reports of the mishandling of incidents of sexual abuse, while maintaining the confidentiality of the victims of sexual abuse, if requested by the victim” (Pen. Code, § 2641, subd. (e)). Outside these specific contexts, not applicable in this case, the OIG “has no authority to open investigations into CDCR employees.” That authority belongs to CDCR's Office of Internal Affairs (OIA), with the OIG providing public oversight pursuant to Penal Code section 6133.[3] (Pen. Code, § 6126, subd. (a).)

         Review of High Desert State Prison

         On June 25, 2015, in accordance with Penal Code section 6126, subdivision (b), set forth above, the Senate Rules Committee issued a letter to the inspector general authorizing the OIG “to review the practices at High Desert State Prison... with respect to (1) excessive use of force against inmates, (2) internal reviews of incidents involving the excessive use of force against inmates, and (3) protection of inmates from assault and harm by others.” The letter requested the inspector general to provide the Committee with “a written report detailing the results of [the] review” and also requested the inspector general “consult with, and recommend appropriate actions to, [OIA] regarding [the] review.” As the letter explained, the Committee authorized the review because of various allegations “rais[ing] concern about whether some members of [High Desert State Prison] staff are engaged in a pattern or practice of using inappropriate and excessive force against inmates and whether there is adequate protection of inmates from harm at the prison.” After providing a description of four such allegations, including one alleging “a mobility-impaired inmate” was “assaulted by staff, and consequently required outside medical treatment, for refusing to remove and relinquish footwear worn to assist with his medical condition, ” the letter continued: “In addition to the specific incidents noted above, there have been general allegations asserted that some members of custodial staff refer to inmates as ‘sodomites' or sex offenders in the presence of other inmates and disclosed inmates' commitment offenses to others[, ] actions which would place inmates at risk of harm from other inmates.”

         Upon receiving this letter, Inspector General Barton met with Chief Deputy Inspector General Roy Wesley and other subordinates to plan the review to be undertaken by the OIG. As both Barton and Wesley explained in their declarations, neither considered the Senate's request to call for investigation of specific allegations of employee misconduct, nor would the OIG have statutory authority to conduct such an investigation had that been requested. Both considered the request to call for a broader inquiry into policies and practices in place at High Desert State Prison and “overall staff culture and attitudes” at the prison. Because the latter “could not be gleaned from a review of CDCR's records, ” they decided to interview former High Desert State Prison staff. As Wesley explained: “We believed current [High Desert State Prison] employees would be reluctant to speak openly with OIG staff out of fear that they would be subjected to retaliation for cooperating with the review. We were also aware that the [OIA] was conducting investigations at [High Desert State Prison] and did not want to interview employees who could be interviewed as potential witnesses in those investigations.” Wesley directed a subordinate to identify former employees at the prison, particularly those who worked in the prison's “ ‘B' Facility, as this is where the majority of the sex offenders and inmates with disabilities were housed.”

         Thereafter, between June 2015 and December 2015, OIG's Special Assistant Inspectors General (SAIG) “monitored approximately 19 investigations of [High Desert State Prison] staff that were being conducted by the [OIA]” while the office's Deputy Inspectors General “performed all other work in connection with the review of [the prison], which included reviewing CDCR policies, [High Desert State Prison] policies, use-of-force incident reports, inmate complaints, inmate appeals, court documents, and various other CDCR records.” The Deputy Inspectors General (DIG) also conducted interviews with former inmates at the prison and former staff members who had transferred to another CDCR prison or were no longer state employees. As Chief Deputy Inspector General Wesley explained: “Because the SAIGs were familiar with the allegations involved in the active OIA investigations they were monitoring and because OIG's review was not intended to uncover staff misconduct, I did not want the SAIGs to conduct any employee or inmate interviews. On the other hand, because the DIGs would not have any knowledge pertaining to these active investigations, I assigned them the task of performing these interviews.” Inspector General Barton also spoke to the secretary of CDCR and informed him the former High Desert State Prison employees to be interviewed were not considered “subjects of an investigation” and “would not be asked questions about ongoing investigations.”

         Both Inspector General Barton and Chief Deputy Inspector General Wesley considered the former staff member interviews to be confidential. (See Pen. Code, § 6126.5, subd. (d) [“Inspector General may require any employee of the [CDCR] to be interviewed on a confidential basis”]; id., § 6126.4 [“misdemeanor for the Inspector General or any employee or former employee of the Inspector General to divulge or make known in any manner not expressly permitted by law to any person not employed by the Inspector General any particulars of any record, document, or information the disclosure of which is restricted by law from release to the public”].) Indeed, the OIG denied a request from an OIA senior special agent for copies of the former staff member interviews.

         At the conclusion of the review, on December 16, 2015, the OIG issued a report summarizing its review of High Desert State Prison and making policy recommendations. As Inspector General Barton explained: “The information the OIG obtained during its interviews of staff and inmates served as the basis for the OIG to make the policy recommendations on page 55 of its report that CDCR provide staff with sensitivity training, mindfulness and wellness programs, and programs to recognize and address implicit bias; diversify the workforce at [High Desert State Prison]; increase inmate programming at [the prison]; and take steps to prevent staff from serving in high stress assignments for extended periods of time. [Citation.] The report does not contain a single statement indicating any of the plaintiffs had engaged in or were suspected of engaging in misconduct. The report does not include any of the plaintiffs' names or identify a single person interviewed during the course of the review.” Our review of the report confirms these statements to be accurate.

         Plaintiffs' Lawsuit

         This lawsuit arises from the manner in which five former High Desert State Prison employees were interviewed in connection with the OIG review described above. More specifically, these employees (Bryan Blue, Jason Hastey, Steven Oschner, Arthur Tovar, and James McCloughan), who still worked for CDCR but at other correctional facilities, and the CCPOA alleged in two causes of action that the OIG and Inspector General Barton violated Penal Code section 6126.5 and the Public Safety Officers Procedural Bill of Rights by refusing each employee's request to be represented during the interviews. We decline to set forth the circumstances of the interviews in any detail. For our purposes, it will suffice to note that each employee requested representation during the interview and ...

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