Does the entry of a citizen review board report into a police officer's personnel file constitute punitive action?

Two recent decisions, have made it clear that "punitive action," sufficient to trigger an officer's administrative appellate rights, may exist when action is taken which may lead to the adverse consequences specified in section 3303 at some future time. In Hopson v. City of Los Angeles (1983) 139 Cal.App.3d 347, two police officers shot and killed a citizen in an on-duty incident which the department's shooting review board found to be "in policy." Although this finding was approved by the chief of police, the board of police commissioners independently investigated and reached a contrary conclusion. Its report found that the officers' action had violated department policy and that the officers had made "serious errors in judgment." When the officers were denied an administrative appeal to challenge this report they sought judicial relief. The court held that the entry of the board's report into the officers' personnel files constituted punitive action. Emphasizing the "potential impact" on the two officers' future career opportunities, the court concluded that the insertion of the board's report into their files would be punitive in nature even though it would not lead directly to any disciplinary action and, indeed, did not even constitute "discipline" under the city's charter. (Id. at pp. 352-354.)

In Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209, a citizens review board issued findings of serious misconduct against certain deputy sheriffs. The board was separate and independent from the sheriffs department and there was no evidence that its report would be placed in the deputies' personnel files. Nonetheless, the court found that the issuance of the report (which the court assumed would be sent to both the sheriff and the board of supervisors) constituted punitive action. It was enough, the court said, that the report would "be considered in future personnel decisions affecting [the] deputies and may lead to punitive action." (Id. at p. 1222; italics added.) The statute does not require a showing that an adverse employment consequence has occurred or is likely to occur. It is sufficient if the report's issuance and delivery to officials "may lead" to such consequences in the future. (Id. at p. 1223.)