|Budget Issue:||Recast Peace Officers Procedural Bill of Rights Mandate as Best Practices|
|Finding or Recommendation:||Eliminate future state costs for the POBOR II mandate by recasting its requirements as best practices. If the Legislature wishes to maintain POBOR II’s requirements, we recommend the Legislature allocate funding to reimburse local government costs related to this mandate.|
Legislature Enacted Peace Officer Procedural Bill of Rights. Seeking to ensure stable employer-employee relations and effective law enforcement services, the Legislature enacted the Peace Officer Procedural Bill of Rights (POBOR), Chapter 465, Statutes of 1976 (AB 301, Keysor). This measure provides a series of rights and procedural protections to peace officers who are subject to interrogation or discipline by their employer. In 1999, the Commission on State Mandates (CSM) found to be a reimbursable mandate certain procedural requirements of POBOR that exceed the rights provided to all public employees under the due process clauses of the United States and California Constitutions.
Recent Amendments to POBOR Found to Be Reimbursable State Mandates. In December 2011, the Commission on State Mandates (CSM) determined that several recent amendments to POBOR also are reimbursable state mandates. These amendments (known as the POBOR II mandate) generally require local agencies to:
Notify a peace officer who will be subject to an investigation or disciplinary actions or whose employer-assigned locker or storage space will be searched.
Facilitate a peace officer’s access to his/her personnel files.
Allow a peace officer to request changes to his/her personnel files and either make the requested changes or notify the peace officer of the reasons the changes will not be made.
CSM Adopts a Statewide Cost Estimate. In September 2014, the CSM approved a statewide cost estimate of prior year state reimbursement costs related to POBOR II totaling $3.4 million. Ongoing local agency costs likely are in the range of several hundred thousand dollars to a few million dollars annually.
Statewide Cost Estimate Typically Triggers Requirements to Fund, Suspend, or Repeal a Mandate...For most state mandates, the presentation of the CSM’s statewide cost estimate to the Legislature triggers the Legislature’s constitutional obligation to fund, suspend, or repeal the mandate. If the Legislature decides to fund the mandate, it must appropriate funds in the budget bill to pay the full amount reflected in the statewide cost estimate. Conversely, if the Legislature repeals or suspends the mandate, the state, while still liable for local government costs in years prior to the repeal or suspension, may defer reimbursement for prior-year local government costs to a later date. Local governments are not required to comply with mandates that are suspended.
…However, Requirements Differ for Public Employee Relations Mandates. The constitutional requirement discussed above does not apply to public employee relations mandates, such as POBOR II. While the California Constitution does require the state to reimburse local agencies for public employee relations mandate costs, there is no requirement that these mandates be suspended or repealed if reimbursement is not timely. In recent years, the Legislature has deferred reimbursements for two public employee relations mandates—POBOR I and the Local Government Employee Relations mandate—without suspending or repealing them.
The Governor’s budget does not appropriate funding to pay POBOR II reimbursement claims for prior years, nor does it appropriate funding to reimburse local agencies for ongoing costs. The Governor’s budget also does not propose to suspend the POBOR II mandate, meaning its requirements would remain operative in 2015-16.
Procedural protections like those provided by the POBOR II mandate are terms of employment that are common subjects of collective bargaining between local governments and their employees. We therefore suggest that the Legislature consider recasting the POBOR II mandate as best practices for local governments, allowing local governments to negotiate these protections with local peace officers. Doing so would eliminate ongoing state costs for the mandate. We recognize, however, that the Legislature has long considered statewide uniformity of POBOR protections to be important. If the Legislature wishes to maintain POBOR II’s requirements, we recommend the Legislature allocate funding to reimburse local government costs related to this mandate. Requiring local governments to follow POBOR II’s requirements without developing a plan to reimburse their costs would be contrary to the intent of mandate law and also could be detrimental to state-local relations.