Madrigal v. County of Riverside

Filed 10/11/06 Madrigal v. County of Riverside CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. E. Michael Kaiser, Judge. Affirmed.

Kinkle, Rodiger & Spriggs, Bruce E. Disenhouse; Arias & Lockwood and Christopher D. Lockwood for Defendants and Appellants.

Stone Busailah, Michael P. Stone and Marc J. Berger for Plaintiff and Respondent.

1. Introduction

Plaintiff Xavier Martin Madrigal was a probationary deputy sheriff with the County of Riverside Sheriff’s Department. Plaintiff’s personnel file contained an incomplete background investigation into allegations that he solicited prostitutes and was involved in drug activity. During the probationary period, plaintiff was terminated for unrelated reasons. Plaintiff sought a hearing to respond to the allegations and to contest his termination. The trial court granted plaintiff only a hearing to respond to the allegations of misconduct and clear his name. Plaintiff appealed the trial court’s decision and, in an unpublished opinion, this court affirmed the trial court’s decision, holding that plaintiff was entitled to only an administrative appeal to respond to the allegations as required under the Public Safety Officer’s Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.) (hereafter Bill of Rights Act).

On remand, the County of Riverside afforded plaintiff an opportunity to respond to the allegations. Although the County admitted that there was insufficient evidence to continue an investigation into the allegations, the hearing officer made no factual findings and the County kept the information as part of plaintiff’s background investigation file. Plaintiff filed a petition for writ of mandate in the trial court seeking a new hearing consistent with due process and any other appropriate relief. The trial court granted the petition and ordered the County to remove the allegations and any related references from plaintiff’s personnel file.

The County appeals from the trial court’s decision granting plaintiff’s writ of mandate. On appeal, the County argues that the court erred in both requiring the removal of information contained in plaintiff’s background file and prohibiting the County from disclosing the information to other law enforcement agencies.

For the reasons discussed below, we conclude that the trial court properly interpreted the Bill of Rights Act and other relevant provisions to find that the County improperly retained the allegations of misconduct in plaintiff’s file without providing him with an adequate administrative appeal. We also conclude that the trial court’s order to remove the allegations and all references to them from plaintiff’s file constituted appropriate relief under Government Code section 3309.5.

2. Factual and Procedural History^[1]

Plaintiff worked as a law enforcement officer for about 10 years, including seven years in the Los Angeles area and three years in the City of Perris. He worked as a police officer in Perris from 1993 to 1996.

In April of 1996, Perris disbanded its police department and entered a contract with Riverside County for law enforcement services. The Riverside County Sheriff’s Department hired most of the officers who had worked for the Perris police department. Plaintiff was sworn in as a sheriff’s deputy on April 11, 1996. As with the other officers, plaintiff’s employment was contingent upon certain requirements, including successful completion of a background investigation. Plaintiff signed a waiver relinquishing his right to review the results of the background investigation.

The County became the custodian of the Perris officers’ personnel records. Plaintiff’s personnel records included an incomplete internal affairs investigation file. Lieutenant Larry Grotefend discovered several allegations in plaintiff’s file, including that plaintiff had contacts with prostitutes and used drugs. Lieutenant Grotefield considered the internal affairs investigation file in conducting plaintiff’s background investigation.

Sergeant Glenn Worby and Lieutenant Grotefend asked plaintiff to submit to a polygraph test to clear up the allegations. Plaintiff, who was unaware of the allegations, denied them. Investigator Davis conducted the polygraph test and wrote a report on the results. The test indicated some deception.

In November of 1996, Riverside County terminated plaintiff’s employment without providing any explanation. Plaintiff was denied a hearing to contest his termination. Plaintiff reviewed his personnel records after his termination, but found nothing negative in them.

After applying to different law enforcement agencies, plaintiff suspected that his personnel records included separate files that were concealed from him but disclosed to these prospective employers. Plaintiff purchased a copy of his personnel records, but again found nothing negative in them.

In May of 1997, Sergeant Worby contacted plaintiff to give him the documents in his personnel records, including the internal affairs investigation file from Perris. When plaintiff, upon the advice of his police association representative, refused to meet with Sergeant Worby, Sergeant Worby sent plaintiff a letter with the missing file.

On June 23, 1998, plaintiff filed his initial complaint that included various causes of action. In the operative third amended complaint, plaintiff included a cause of action for injunctive relief under the Bill of Rights Act and a cause of action for damages based on a violation of his due process right. In his claim under state law, plaintiff alleged, among other things, that defendants violated his right to review the accusations in his personnel file and denied him an opportunity to clear his name. In his federal constitutional claim, plaintiff alleged that defendants deprived him of his liberty interest without due process by terminating him without a hearing and publishing the contents of his personnel file to prospective employers. The named defendants included the County of Riverside, Sheriff Larry Smith, and Chief Deputy Rick Sayre.

Defendants answered the complaint by denying the allegations and raising numerous affirmative defenses, including that plaintiff’s claims were barred under the applicable statute of limitations.

Early in the proceedings, plaintiff subpoenaed copies of the County’s background investigation file. After the court ordered the County to produce the documents, the County petitioned the Court of Appeal and ultimately the California Supreme Court. In a published opinion, the California Supreme Court held that, although plaintiff had a right to view the adverse comments in the background investigation file under Government Code section 3305, his waiver of this right was valid and enforceable. (County of Riverside v. Superior Court (2002) 27 Cal.4th 793.)

The case was remanded to the trial court to resolve the remaining issues. As to plaintiff’s first cause of action, the trial court concluded that plaintiff was entitled to a hearing under Government Code section 3304 concerning the adverse comments in his personnel file from Perris. The court found that the County’s act of obtaining the incomplete file from Perris and allowing future prospective employers to view the file constituted a punitive action within the meaning of Government Code section 3304, subdivision (b). The trial court concluded that plaintiff’s second cause of action was barred under the one-year statute of limitations. The court found that plaintiff knew of the stigmatizing accusations in his personnel file in May of 1996 and again in May of 1997, over a year before plaintiff filed his complaint.

The court ordered the County to provide plaintiff with a hearing under section 3304, subdivision (b), to allow plaintiff to respond to the allegations in his personnel file. The court denied all other relief and the plaintiff’s request for attorneys’ fees.

The plaintiff appealed from the trial court’s judgment and this court affirmed the trial court’s decision. We concluded that plaintiff was entitled to only a hearing to respond to the allegations and not to challenge the County’s decision to terminate his employment as a probationary deputy sheriff. (Madrigal v. County of Riverside, unpub. disp., E037113, filed Oct. 19, 2005.)

As ordered by the trial court and affirmed by this court, the County provided plaintiff with an opportunity to respond to the allegations in the Perris file. Plaintiff, however, objected to the procedures proposed by the County for the administrative hearing.

On May 17, 2005, plaintiff filed a petition for writ of mandate seeking a hearing that would comport with Government Code section 3304. Plaintiff specifically requested the following procedural safeguards: testimony under oath; an opportunity to cross-examine adverse witnesses; a transcript of the hearing; an impartial hearing officer (not a County employee); and a written statement of the hearing officer’s factual findings.

In its opposition, the County maintained that it complied with Government Code section 3304. The County emphasized that the administrative hearing was not an opportunity to review the decision to terminate plaintiff’s employment. The County explained: “The only issue covered by the hearing was the County’s decision not to discard the City of Perris files it obtained during its background investigation of plaintiff. The County has never contended that plaintiff is in fact the officer mentioned in the City of Perris files or that plaintiff did in fact do the things mentioned in the City’s records.”

During the hearing on plaintiff’s petition, the trial court asked, if the County was not contending that plaintiff was the officer mentioned in the Perris file, then why was the Perris file in plaintiff’s personnel records. The court repeatedly expressed concern that, while the County did not contend that the Perris file applied to plaintiff, it furnished the file to prospective employers. The court asked the parties to submit additional briefing to address the court’s question.

The County provided evidence that, after receiving the incomplete criminal investigation from Perris, the County decided to discontinue the investigation because the whereabouts of the witnesses was unknown or the witnesses were deceased or otherwise unavailable. Captain Jeff Turley explained that he “was told that there was insufficient information to continue the criminal investigation and no further criminal action would be taken.”

After considering the additional evidence and argument, the trial court found that the County violated the Bill of Rights Act, specifically Government Code section 3304, subdivision (b), by taking punitive action against plaintiff without providing him with an adequate administrative appeal. Specifically, the trial court found that the County, after having received the open background investigation from Perris, determined that there was insufficient evidence to continue the criminal investigation. The court found that, while the County never contended that plaintiff was the officer mentioned in the Perris file, it continued to maintain the Perris file and other related documents in plaintiff’s personnel records. The court concluded that the Perris file constituted a frivolous, unfounded, or exonerated complaint within the meaning of Penal Code section 832.5. The court also concluded that the county should not have taken the punitive action of keeping the Perris file in plaintiff’s personnel records and making it available for prospective employers. Based on its authority to render any relief appropriate to remedy the violation under Government Code section 3309.5, the court ordered the County to remove from plaintiff’s personnel records the Perris file and any related documents generated from the County’s own investigation, including any reports and the results of the polygraph test.

3. Standard of Review

In reviewing a trial court’s decision on a petition for writ of mandate, we uphold the trial court’s factual findings if supported by substantial evidence. (Stryker v. Antelope Valley Community College Dist. (2002) 100 Cal.App.4th 324, 329.) We, however, independently review the court’s decisions on questions of law, including the trial court’s interpretation of statutory language. (Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center (2001) 93 Cal.App.4th 607, 619.)

4. Administrative Appeal Under Government Code Section 3304

The County argues that the trial court erred in concluding that it had violated Government Code section 3304 by failing to provide plaintiff with an adequate administrative appeal. The County contends that it complied with the statute because it required only that the County afford plaintiff an opportunity to add a written response to the allegations in the Perris file. The County acknowledges that this court, in our prior opinion, held that the County’s action of retaining the Perris file in plaintiff’s personnel records constituted a punitive action for which plaintiff was entitled to an administrative appeal. The County, however, argues that an administrative appeal consists of an opportunity for the officer to respond to the allegations.

Government Code section 3304, subdivision (b), provides: “No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency . . . without providing the public safety officer with an opportunity for administrative appeal.” Government Code section 3303 defines “punitive action” as “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” In this case, the issues are whether the County’s action qualifies as a punitive action and whether the hearing provided by the County adequately afforded plaintiff an opportunity for administrative appeal.

Although we addressed the punitive nature of the County’s action briefly in our earlier opinion, it would be helpful to discuss it again here. Based on the evidence, which the court found persuasive, the County terminated plaintiff for reasons other than the Perris file. The termination, therefore, was not the punitive act. Rather, the County can be held responsible only for receiving the open investigation from Perris, placing the file in plaintiff’s personnel records (particularly, in his background investigation file), and making plaintiff’s personnel records available to prospective employers. The act of receiving the file, however, had little or no effect on plaintiff. Also, as stated in our earlier opinion, making personnel records available to prospective employers is mandated under Government Code section 1031.1. We are concerned, therefore, with County’s specific act or decision to place and maintain the Perris file containing allegations of misconduct in plaintiff’s personnel records.

Courts have held that such actions, based on their potential effect on the officer’s future employment opportunities, are punitive actions within the meaning of Government Code section 3304. (See Otto v. Los Angeles Unified School Dist. (2001) 89 Cal.App.4th 985, 996 [a sergeant placed a summary of a conference concerning an officer’s suspicious breaks in the officer’s personnel file]; Gordon v. Horsley (2001) 86 Cal.App.4th 336, 350 [the sheriff issued a written reprimand criticizing a deputy sheriff for inappropriately displaying a firearm]; Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209, 1222 [a citizens review board issued a report that may have been considered in future personnel decisions]; Hopson v. City of Los Angeles (1983) 139 Cal.App.3d 347, 353 [the police department placed a report concerning an on-duty shooting which included the comment that the officers made “serious errors in judgment” in the officers’ personnel files].) As the cited cases demonstrate, the term “punitive action” is defined broadly. (See also Otto v. Los Angeles Unified School Dist. (2001) 89 Cal.App.4th 985, 998.) Unlike certain affirmative acts by the agency, such as dismissals or terminations, the qualifying action need not have an immediate impact on the officer’s employment. It is sufficient that the action may lead to adverse consequences at some future point in time. (See Hopson, supra, at pp. 352-354; Otto, supra, at p. 996.)

In this case, the County describes its conduct as simply receiving the Perris file and, as ordered by the trial court, allowing plaintiff to respond to the allegations in the file without doing anything further with the file. The County’s hands-off approach, however, is unavailing. The Perris file included allegations from various members of the public implicating plaintiff in soliciting prostitutes and using drugs. For instance, the file included a statement from a prostitute claiming that plaintiff was a regular customer who paid for oral sex. After the Perris police department disbanded and the County hired most of the Perris officers on a probationary basis, including plaintiff, the County assumed responsibility for the open investigation concerning these allegations. Although the County was unable to complete the investigation, because of its inability to confirm or disaffirm the allegations, its action of placing and maintaining the Perris file in plaintiff’s personnel records was likely to lead to adverse consequences on plaintiff’s future employment opportunities. For this reason, the County’s action was punitive within the meaning of Government Code section 3304, subdivision (b).

Although plaintiff had no right to contest his termination under that provision, he was entitled to an administrative appeal to clear his name. (See County of Riverside v. Superior Court, supra, 27 Cal.4th at p. 801.) Again, as mentioned above, the County contends that it complied with the statute because it afforded plaintiff an opportunity to respond to the allegations. However, the law suggests that an administrative appeal involves something more than merely a right to notice and an opportunity to respond. (Compare Gov. Code, § 3305, subd. (b) with Gov. Code, § 3306; see also Otto v. Los Angeles Unified School Dist., supra, 89 Cal.App.4th at p. 996 (distinguishing between the right to notice and to respond for negative employee evaluations and an administrative appeal for punitive actions).

Where the agency does not have rules governing such administrative appeals, the adequacy of the procedure afforded under Government Code section 3304 must be measured by constitutional due process principles. (Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1807.) While due process does not require that an at-will employee be afforded a full panoply of procedural rights, it does require that the employee be given an opportunity to establish a formal record and attempt to show that the allegations are false. (See id. at p. 1806; Riveros v. City of Los Angeles (1996) 41 Cal.App.4th 1342, 1359.) An administrative appeal involves an “independent re-examination” of the agency’s action. (Doyle v. City of Chino (1981) 117 Cal.App.3d 673.) The procedure, therefore, cannot be reduced to a mere formality. An administrative appeal should provide a meaningful review of the agency’s action so that the agency “can decide whether to reverse its decision.” (Riveros, supra, at p. 1360, fn. 18.)

Contrary to the County’s argument, the statutory requirement for an administrative appeal is not satisfied by allowing the officer to present his side of the story for the record. An appeal involves a review or examination of an earlier decision or proceeding and results in a final administrative decision. None of the cases cited by the County involving an administrative appeal of an agency’s punitive action support the argument that the officer is not entitled to some sort of adjudicative proceeding before an impartial decision maker, who would reach some conclusion, even if only to affirm the original action. If an administrative appeal involved only an opportunity for a written response, no formal proceeding would be required. If the appeal required only a record of plaintiff’s oral testimony or evidence, then a court reporter or other recording method would suffice. But the participation by an impartial decision maker, as due process requires, assumes that the procedure involves some factfinding or decision making.

The County’s opposition to plaintiff’s writ petition included the following statements: “. . . the County has never made any contentions concerning the City of Perris files and has never taken any steps based on them. In particular, the County did not terminate plaintiff’s employment because of the City of Perris files, never contended plaintiff is the officer identified in those files, and never contended plaintiff did the things stated in those files. . . . There was nothing on which any findings could or should be made.”

On the contrary, the County placed and maintained the Perris file in plaintiff’s personnel records. As stated earlier, while this act is different from other more decisive employment actions such as a dismissal, it nonetheless constitutes a punitive action which then should have been reviewed through an administrative appeal. The County all but admits that it failed to do this. According to the County, it “never made any decision” and, therefore, “there is nothing it could possibly reverse.” The County, however, could have determined whether the Perris file should have been removed from plaintiff’s personnel records and whether plaintiff was entitled to have his name cleared.

We conclude that the County failed to provide plaintiff with a meaningful review of its punitive action. We, therefore, conclude that the trial court properly found that the County did not afford plaintiff an administrative appeal as required under Government Code section 3304, subdivision (b).

5. Judicial Review

The County appears to argue that the trial court erred in granting the writ of mandate.

A writ of administrative mandate under Code of Civil Procedure section 1085 requires review under the deferential abuse of discretion standard. Granting a writ of mandate is justified only if the agency failed to follow the correct procedure or arrived at a decision that was arbitrary, capricious, or entirely lacking in evidentiary support. (See Redevelopment Agency of City of Chula Vista v. Rados Bros. (2001) 95 Cal.App.4th 309, 316.)

In addition to not applying the correct procedure, the County’s continued action of maintaining the Perris file in plaintiff’s records was without any basis or evidentiary support. The County cannot escape review by simply asserting that it did nothing. Sometimes doing nothing (an act of omission) is equally harmful, particularly when some duty is owed. The County should have afforded plaintiff an administrative appeal--i.e., a meaningful review of its decision to keep the Perris file in plaintiff’s personnel records.

In evaluating the County’s administrative appeal, the trial court found that the hearing should have resulted in at least a minimal finding as to whether the Perris file referred to plaintiff in the first instance. Based on County’s own admissions, the court concluded that the proper remedy would have been to remove the file and discontinue making it available to prospective employers.

While the County may have had a good faith belief that the Perris file referred to plaintiff based on the file itself and on the circumstances surrounding its initial receipt, there was no legitimate basis for keeping the file in plaintiff’s records because the County admitted that it never contended that the allegations in the file were true. In his declaration, Captain Jeff Turley stated: “I . . . contacted my supervisor, then Chief Deputy Rick Sayre, to discuss the internal criminal investigation case and where any investigation follow-up would be done. I understood that subsequent investigation would be done at the Moreno Valley station. At some subsequent point, I was told there was insufficient information to continue the criminal investigation and no further criminal action would be taken.” William DiYorio, the Chief of Police for the City of Moreno Valley, explained that he was asked to determine whether to continue plaintiff’s criminal investigation and another officer was asked to review the case file. DiYorio recalled that, “. . . the Perris Police Department investigation was incomplete, and a lot of the witnesses involved were no longer available, whether deceased, or at unknown locations. It was our collective opinion that we should not continue the investigation, and that opinion was forwarded to Captain Coz, and a decision was made not to pursue the criminal investigation any further.” While the evidence showed that the County could not determine whether the allegations were true, it continued to keep the file containing serious allegations involving moral turpitude in plaintiff’s personnel records, which then was accessible to prospective employers.

Government Code section 1031.1 requires that an employer disclose employment information relating to an employee to other law enforcement agencies. (See also County of Riverside v. Superior Court, supra, 27 Cal.4th at p. 799.) As argued by plaintiff’s counsel during the proceedings below, however, the common-sense assumption is that the employment information that is being provided to other agencies is true or, at least, that the employer has some reasonable basis for believing that it is true. The statute certainly does not require the disclosure of false information or bald accusations concerning an officer’s moral character that have not been verified. Based on the County’s admissions, the Perris file in essence contained nothing more than a series of unverified accusations.

Under these circumstances, the trial court reasonably found that the County abused its discretion in failing to remove the Perris file from plaintiff’s personnel records. The court, therefore, properly found that plaintiff was entitled to some relief and granted the writ of mandate.

5. Citizen’s Complaint

The trial court also cited Penal Code section 832.5 as a basis for its decision. Although the County initially relied on Penal Code section 832.5 to support its retention of the Perris file in plaintiff’s personnel records, it now argues that the statute applies only to citizen complaints and not to background investigation files.

While the statute does not use the term “background investigation files” specifically, the court’s reliance on the statute was reasonable for two reasons. First, the investigation file began with and was largely comprised of citizen complaints implicating plaintiff in prostitution and drug activity. Second, the County in essence agreed to the statute’s application by relying on it to defend its own actions. The County’s argument, therefore, lacks merit.

Penal Code section 832.5 provides, in part: “(a)(1) Each department or agency in this state that employs peace officers shall establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, and shall make a written description of the procedure available to the public.

“(2) Each department or agency that employs custodial officers, as defined in Section 831.5, may establish a procedure to investigate complaints by members of the public against those custodial officers employed by these departments or agencies, provided however, that any procedure so established shall comply with the provisions of this section and with the provisions of Section 832.7.

“(b) Complaints and any reports or findings relating to these complaints shall be retained for a period of at least five years. All complaints retained pursuant to this subdivision may be maintained either in the peace or custodial officer’s general personnel file or in a separate file designated by the department or agency as provided by department or agency policy, in accordance with all applicable requirements of law. However, prior to any official determination regarding promotion, transfer, or disciplinary action by an officer’s employing department or agency, the complaints described by subdivision (c) shall be removed from the officer’s general personnel file and placed in [a] separate file designated by the department or agency, in accordance with all applicable requirements of law.

“(c) Complaints by members of the public that are determined by the peace or custodial officer’s employing agency to be frivolous, as defined in Section 128.5 of the Code of Civil Procedure, or unfounded or exonerated, or any portion of a complaint that is determined to be frivolous, unfounded, or exonerated, shall not be maintained in that officer’s general personnel file. However, these complaints shall be retained in other, separate files that shall be deemed personnel records for purposes of the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and Section 1043 of the Evidence Code.”

In its supplemental brief in opposition to plaintiff’s petition for writ of mandate, the County argued: “Penal Code § 832.5 requires every law enforcement agency to keep all complaints and records concerning investigations of complaints concerning its officers for ‘at least’ five years. Although this statute directly addresses complaints made by private citizens, it also applies to complaints made by other law enforcement officers and agencies as long as the agency handles them the same. [Citation.] The County does in fact handle them the same.”

As suggested by the County’s argument, the Perris file consisted of an investigation of complaints initiated by the Perris internal affairs department. The file contains notes of interviews with members of the police department and the public, who were questioned concerning plaintiff’s alleged illegal activities. For example, in an interview with Clorinda Lima, who was a known prostitute, Lima stated that plaintiff paid her on a number of occasions to perform oral sex. According to other Perris officers, plaintiff may have had similar relationships with other prostitutes. The file also includes an allegation that plaintiff approached a minor a couple of times and asked her for a date. While the Perris file technically is an internal affairs investigation report in progress, the file consists of several complaints directly from members of the public or indirectly from officers after learning of these illegal activities. For our purposes here, it makes no difference whether the file contained a complaint or an investigation into a complaint. The file would qualify as a “citizen complaint” under Penal Code section 832.5. (See People v. Craig (1993) 21 Cal.App.4th Supp. 1, 6.)

Although not addressing this particular statute, the California Supreme Court, in its published opinion involving the same factual circumstances, also described the contents of the Perris file as a citizen complaint. The court specifically noted that the City of Perris received a citizen complaint concerning plaintiff’s illegal activities. (County of Riverside v. Superior Court (2002) 27 Cal.4th 793, 795.) The court described the Perris file as containing documents concerning this complaint. (Id. at p. 796.)

Furthermore, as mentioned above, the County likewise assumed that, regardless of whether the Perris file consisted of a citizen complaint or an investigation concerning a complaint, Penal Code section 832.5, subdivision (b), applied and authorized the County to retain the file for at least five years. The County relied on the statute to show that it was mandated to keep the file in plaintiff’s personnel records.

The trial court rejected the County’s argument and, instead, found that, under Penal Code section 832.5, subdivision (c), the Perris file was a complaint that was “frivolous, unfounded, or exonerated” within the meaning of the statute. As such, the complaint should have been retained in a separate file that should not have been accessible to prospective employers without a court order. (Pen. Code, § 832.5, subd. (c); Evid. Code, § 1043.)

We agree with the trial court’s reasoning. Government Code section 1031.1 requires only that the employer disclose “employment information.” “Employment information” is defined as “written information in connection with job applications, performance evaluations, attendance records, disciplinary actions, eligibility for rehire, and other information relevant to peace officer performance, except information prohibited from disclosure by any other state or federal law or regulation.” (Gov. Code, § 1031.1.) As noted by the trial court, a complaint which is determined to be “frivolous, unfounded, or exonerated” within the meaning of Penal Code section 832.5, subdivision (c), is not “employment information” that is relevant to an employer in making any employment decisions. Although law enforcement agencies have an important interest in the qualifications and moral character of its officers, they do not have the same interest in obtaining information of complaints that have been found to be “frivolous, unfounded, or exonerated.”

While the complaints involved in this case may not qualify technically as “frivolous, unfounded, or exonerated,” we find that, for all practical purposes, the County’s admission concerning the lack of information to proceed with a criminal investigation supports the court’s application of Penal Code section 832.5, subdivision (c). The statute defines two of the three terms. “‘Unfounded’ means that the investigation clearly established that the allegation is not true.” (Pen. Code, § 832.5, subd. (d)(2).) “‘Exonerated’ means that the investigation clearly established that the actions of the peace or custodial officer that formed the basis for the complaint are not violations of law or department policy.” (Pen. Code, § 832.5, subd. (d)(3).) While not defined in the statute, the term “frivolous” can mean “one that is ‘totally and completely without merit’ or is taken ‘for the sole purpose of harassing [the peace officer.]’ [Citation.]” (Sacramento Police Officers Assn. v. Venegas (2002) 101 Cal.App.4th 916, 927, fn. 4, citing Code Civ. Proc., § 128.5.)

Under the unusual facts in this case, the Perris police department disbanded before completing its investigation. After assuming responsibility for the file, the Riverside County sheriff’s office decided that it did not have sufficient information to proceed with a criminal investigation. According to the County, it never contended that plaintiff was in fact the officer mentioned in the file. In light of these facts, while the allegations were not determined to be unfounded and plaintiff was not affirmatively exonerated, we conclude that the file nevertheless should not have been maintained in plaintiff’s personnel file. Otherwise, the County would be allowed to maintain in plaintiff’s records information concerning serious allegations of misconduct that may not even involve him.

The County argues that, even if Penal Code section 832.5 applies, it provides only that the complaints be removed from the officer’s general personnel file and placed in a separate file so that the complaints do not affect decisions concerning promotions, transfers, or disciplinary action. The County suggests that the “separate file” is still part of the officers “overall personnel file.” We disagree for two reasons. First, the plain meaning of the word “separate” suggests that this confidential file should be kept independently of the officer’s general personnel file. Even if the agency’s practice is to retain information concerning the officer’s identity with the unfounded complaint, Penal Code section 832.7, subdivision (c), appears to provide an appropriate procedure for any required disclosures. That provision allows for the dissemination of information regarding unsubstantiated and unfounded complaints, so long as the agency does not identify the individuals involved. (Pen. Code, § 832.7, subd. (c).) Secondly, if the complaints are to be placed in the separate file so that they do not affect the agency’s employment decisions, it would defy logic to continue to make them available to other law enforcement agencies to use in making their employment decisions.

Because the contents of the Perris file constituted a “citizen complaint” within the meaning of Penal Code section 832.5, the trial court properly applied this statute and other related provisions in rendering its decision.

6. Relief Under Government Code Section 3309.5

The County claims the trial court exceeded its authority under Government Code section 3309.5 by ordering the removal of the Perris file and the fruits of the investigation from plaintiff’s background file.

Government Code section 3309.5, subdivision (d)(1), provides: “In any case where the superior court finds that a public safety department has violated any of the provisions of this chapter, the court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including, but not limited to, the granting of a temporary restraining order, preliminary injunction, or permanent injunction prohibiting the public safety department from taking any punitive action against the public safety officer.” Under this provision, the trial court enjoys broad discretion to fashion an appropriate remedy. An appellate court may intervene only upon a showing of an abuse of discretion. (Upland Police Officers Ass’n v. City of Upland (2003) 111 Cal.App.4th 1294, 1300; City of Los Angeles v. Superior Court (Labio) (1997) 57 Cal.App.4th 1506, 1516.)

We see no abuse of discretion here. After finding that the County violated the Bill of Rights Act by keeping the Perris file in plaintiff’s personnel records without affording him an adequate administrative appeal, the trial court was authorized to formulate an appropriate remedy. Based on the County’s evidence, a new hearing was unnecessary because it was undisputed that the County had no legitimate basis for keeping the Perris file in plaintiff’s personnel records. In exercising its discretion, the court reasonably ordered the County to remove the Perris file from plaintiff’s records. Government Code section 3309.5, subdivision (c), authorizes the court to render appropriate injunctive relief, including an order prohibiting the agency from taking any further punitive action against the officer. As discussed above, the County’s retention of the Perris file in plaintiff’s personnel records constituted a punitive action within the meaning of Government Code section 3304. An order requiring the removal of the Perris file, therefore, fell well within the court’s authority under Government Code section 3309.5. Although plaintiff did not request this specific remedy in his petition for writ of mandate, plaintiff’s overall purpose for appealing the administrative action and seeking judicial review was to clear his name.

The court’s discretion under Government Code section 3309.5, subdivision (c), is broad and, therefore, would support not only an order to remove the complaints in the Perris file, but also an order to remove all references to the complaints from plaintiff’s records, which would include the County’s own investigation into the complaints and the results of the polygraph examination. Without this additional order, the remedy would be ineffectual or only partial. The County would remove the Perris file, but any prospective employer easily could discover the complaints of misconduct through the documents associated with the County’s own investigation. Such partial relief would neither remedy the violation in this case nor prevent other violations in the future. We conclude that the court reasonably included an order to remove all references to the Perris file from plaintiff’s personnel records.

The court’s order also is consistent with Penal Code section 832.5. Under that provision, when a citizen’s complaint is unfounded or exonerated, all references to the complaint must be deleted from the officer’s personnel file. (Pen. Code, § 832.5, subd. (c)(3).) While the County gains no advantage in retaining an unfounded complaint, the officer’s employment may be affected if his records still contain references to misconduct. (See generally Sacramento Police Officers Assn. v. Venegas, supra, 101 Cal.App.4th at p. 926.)

Contrary to the County’s argument, the court’s order does not require the County to hide critical information concerning plaintiff’s job performance or moral character. The court only required the County to remove from plaintiff’s personnel records the complaints in the Perris file and all references to these allegations of misconduct. The court’s order was based on the County’s own admission that there was insufficient evidence to support these complaints and the County did not contend that plaintiff was the person referred to in the file. Even if the allegations were true, the court reasonably considered this evidence in formulating an appropriate remedy. The trial court in essence prohibited the County from retaining and making available these unfounded accusations concerning plaintiff’s moral character. The trial court’s order was a reasonable exercise of its discretion under Government Code section 3309.5.

7. Disposition

We affirm the judgment. Plaintiff shall recover his costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Ramirez

P. J.

s/Hollenhorst

J.

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^[1] Because the facts are identical, the first part of this factual summary is taken from this court’s unpublished opinion in Madrigal v. County of Riverside, E037113, filed on October 19, 2005.