The 2023-24 Budget

Commission on Peace Officer Standards and Training—
Office of Administrative Hearings Costs

In this post, we assess and make recommendations on the Governor’s budget proposal to provide additional resources to the Commission on Peace Officer Standards and Training (POST) to fund the costs of peace officer decertification hearings before the Office of Administrative Hearings (OAH) within the Department of General Services (DGS).

Background

Peace Officers Require Certification From POST. Existing state law requires peace officers (excluding certain classifications like correctional officers) to receive a basic certificate from POST. This certificate is issued by POST when officers have met all minimum standards and requirements, such as completing required training, passing background checks, and completing a probationary term of employment with their law enforcement agency (typically lasting 18 to 24 months after the date of hire).

Peace Officer Decertification Program Established by Chapter 409 of 2021 (SB 2, Bradford and Atkins). Senate Bill 2 established a process for POST to suspend or revoke a peace officer’s basic certificate for serious misconduct, such as dishonesty related to an investigation or abuse of power by intimidating witnesses. (Prior to the enactment of SB 2, POST lacked the authority to suspend or revoke an officer’s basic certificate.) This decertification temporarily (in cases of suspension) or permanently (in cases of revocation) makes a person ineligible to be a peace officer in California. In addition, SB 2 requires officers who do not have a basic certificate (typically officers completing their probationary terms and certain reserve officers) to obtain a proof of eligibility (pre-certification) from POST. Similar to a basic certificate, SB 2 allows POST to suspend or revoke a peace officer’s proof of eligibility for serious misconduct.

Senate Bill 2 requires POST to review allegations of serious misconduct to determine whether decertification is warranted. Starting January 1, 2023, all agencies employing peace officers must report to POST allegations of serious misconduct when they occur. Similarly, by July 1, 2023, such agencies must report to POST any allegations of serious misconduct that occurred from January 1, 2020 to January 1, 2023. In addition, beginning January 1, 2023, members of the public can report allegations of serious misconduct directly to POST, including misconduct that occurred prior to January 1, 2023. POST can also choose to review an allegation of serious misconduct it becomes aware of in other ways, such as through media coverage.

Senate Bill 2 created a new division within POST—the Peace Officer Standards and Accountability Division—to review all allegations of serious misconduct to determine whether decertification is warranted. For cases in which the division recommends decertification and the officer agrees with the recommendation, the case ends and the officer’s certificate or proof of eligibility is suspended or revoked. If the officer contests a decertification recommendation, the case is referred to a new nine-member board within POST—the Peace Officer Standards Accountability Advisory Board. (Seven members of the new board are appointed by the Governor, one member by the Speaker of the Assembly, and one member by the Senate Rules Committee.) If the board determines decertification is warranted, the case is referred to the full 18-member POST commission, who will then vote whether to decertify the officer. (Fifteen of the POST commissioners are appointed by the Governor and confirmed by the Senate, one commissioner by the Speaker of the Assembly, and one commissioner by the Senate President pro Tempore. The Attorney General is an ex officio member and also serves as a commissioner.) If the POST commission votes for decertification, the case is referred to an administrative law judge at OAH who will render the final decision.

The 2022-23 budget provides $22.6 million from the General Fund (decreasing to $20.6 million in 2023-24 and ongoing) and 127 positions to implement SB 2. As we discuss below, POST is currently in the process of filling many of these positions.

OAH Provides Administrative Hearings for State and Local Entities. OAH, within DGS, provides administrative law judges to hear administrative disputes for over 2,500 state and local agencies, including POST, as described above. These judges conduct adjudicatory hearings, prehearing and settlement conferences, and mediations. Statute requires that all OAH costs be recovered from the agencies it serves. Accordingly, OAH charges fees to state and local agencies for the services it provides. Specifically, OAH charges state and local agencies an hourly rate of $355 in 2022-23, which will increase to $369 in 2023-24. In addition, OAH charges in-person and virtual filing fees, as well as fees for electronic evidence and recording, among others.

Governor’s Proposal

Funding for Peace Officer Decertification Cases Filed With OAH. The Governor’s budget proposes $4.5 million from the General Fund in 2023-24 (decreasing to $3.9 million annually beginning in 2024-25) to fund the costs of peace officer decertification hearings before OAH. OAH is funded from the Service Revolving Fund, and as the office charges POST for its services, the proposed funds for POST will be deposited into the Service Revolving Fund. (We note that the administration has a related proposal to authorize OAH to use Service Revolving Fund resources for both peace officer decertification and cannabis-related workload. We will provide an analysis of this in a forthcoming publication.)

Assessment

Number of Decertification Cases That Will Be Referred to OAH Is Uncertain. POST took several steps to estimate the number of cases that will reach OAH, including reviewing the number of complaints received by the California Department of Justice on peace officer misconduct and surveying law enforcement agencies to estimate the number of investigations that might rise to the level of misconduct. Based on this research, POST estimated that 3,500 serious misconduct cases may rise to the level of decertification annually, with approximately 300 to 350 being contested and a hearing set with OAH. Further, POST estimates that there could be a higher caseload in the first year given that law enforcement agencies are initially required to report allegations of serious misconduct that have occurred since January 1, 2020. By the end of January 2023, POST reported receiving approximately 1,200 cases from law enforcement agencies and 6 public complaints. The Peace Officer Standards and Accountability Division was in the process of reviewing these cases, prioritizing them based on public safety considerations, and processing them for serious misconduct actions.

Several factors make it difficult to predict how many cases will actually reach OAH because there are multiple points in the decertification process where a case may not proceed. For example, the officer may choose to voluntarily surrender their certificate when the Peace Officer Standards Accountability Division finds that their case rises to the level of revocation or suspension. Further, in the event that the officer requests a hearing, either the Peace Officer Standards Accountability Advisory Board or the POST commission could decide to reject the division’s decertification decision after reviewing the facts and circumstances of the case.

In addition, it is difficult to predict what the trends in cases will be over time, especially in the early years. POST’s expectation of an influx of cases in the first year because law enforcement agencies are required to report serious misconduct cases that have occurred since January 1, 2020 is reasonable, but it is difficult to estimate how large this influx will be. Conversely, it is reasonable to expect that POST could observe a reduction in cases over time if suspensions and revocations through the decertification process change behavior in peace officers and thus reduce the number of serious misconduct cases. Again, however, the precise size of the reduction is also difficult to estimate.

OAH Billable Hours Could Vary Widely by Case. It is also difficult to predict the number of billable hours charged for each decertification case. While POST estimates an average of 36 hours per case, the complexity of the cases could vary significantly, leading to a wide range of hours billed to POST.

POST Is Still Building Its Capacity to Process Cases. The 2022-23 Budget Act roughly doubled POST’s staffing to implement SB 2, and POST is still in the process of filling many of the positions responsible for reviewing and investigating misconduct cases. As of January 2023, POST had filled roughly one-third of its 16 positions in the Intake and Disposition bureau, which is responsible for analyzing and evaluating complaints received from the public and serious misconduct allegations received from law enforcement agencies. Further, as of January 2023, POST had filled nearly half of the 51 positions across its four Decertification Unit bureaus that are responsible for conducting the decertification investigations, prosecutions, and administrative proceedings against peace officers. Given this, POST’s limited staffing could initially reduce the number of cases reaching OAH until POST fills more of its positions.

Recommendations

Approve Funding on Limited-Term Basis, Require POST to Report on OAH Hearing Costs. We recommend that the Legislature approve the requested funding on a three-year, limited-term basis (rather than on an ongoing basis as proposed by the Governor). This will give POST more time to build capacity, monitor trends in its caseload, and track costs from its OAH hearings. In addition, we recommend that the Legislature require POST to report data on its annual OAH hearing costs—such as the number of cases scheduled for OAH hearings and the number of billable hours—to the Legislature by January 10, 2026. After this time and with this data, POST’s ongoing funding needs should become clearer. The administration can then submit a request for ongoing resources for legislative consideration as part of the Governor’s 2026-27 budget proposal.

Require Unspent Funds to Revert to General Fund. Because POST is still building its staffing capacity to review cases and the number of cases that will reach OAH is uncertain, it is possible that POST may have overestimated the amount of funding needed for OAH to hear decertification cases. Accordingly, we recommend that the Legislature adopt provisional language limiting the use of the funds to OAH hearing costs and requiring any unspent funds revert back to the General Fund. This will ensure that, if the OAH hearing costs are less than estimated, the unused funds could not be redirected by POST to other priorities, but would instead return to the General Fund.