------------------------------

----------------------------------------------------------------

TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

OPINION :
 

:


 of :
 

:
 

JOHN K. VAN DE KAMP : No. 87-904


 Attorney General :
 

: January 5, 1988


 JACK R. WINKLER :


 Assistant Attorney General :
 

THE HONORABLE PETER R. CHACON, MEMBER OF THE CALIFORNIA
 

ASSEMBLY, has requested an opinion on the following question:
 

Does a city manager, an assistant city manager, or a
 

citizens' review board have a right to inspect citizens' complaints
 

against city police officers on file in the internal affairs
 

division of the police department?
 

CONCLUSION
 

A city manager, an assistant city manager, and a
 

citizens' review board have a right to inspect and review citizens'
 

complaints against city police officers on file in the internal
 

affairs division of the police department when they are authorized
 

by charter provision, ordinance or regulation of the city to
 

investigate such complaints or to advise, impose or review
 

discipline of police officers for misconduct alleged in such
 

complaints but not if they are not so authorized.
 

ANALYSIS
 

Section 832.5 of the Penal Code provides:
 

"(a) Each department or agency in this state which
 

employs peace officers shall establish a procedure to
 

investigate citizens' complaints against the personnel of
 

such departments or agencies, and shall make a written
 

description of the procedure available to the public.
 

"(b) Complaints and any reports or findings
 

relating thereto shall be retained for a period of at
 

least five years."
 
 

 

 

Section 832.71 provides:
 

"Peace officer personnel records and records
 

maintained pursuant to Section 832.5, or information
 

obtained from these records, are confidential and shall
 

not be disclosed in any criminal or civil proceeding
 

except by discovery pursuant to Sections 1043 and 1046 of
 

the Evidence Code. This section shall not apply to
 

investigations or proceedings concerning the conduct of
 

police officers or a police agency conducted by a grand
 

jury or a district attorney's office."2
 

The question presented is whether citizens' complaints
 

against a city's police officers on file in the internal affairs
 

division of the police department are subject to inspection and
 

review by the city manager, an assistant city manager, and a
 

citizens' review board even though state law specifies that the
 

complaints are "confidential." We will conclude that their access
 

to such complaints depends upon an authority or duty to perform
 

some task requiring inspection of such complaints which in turn
 

depends upon provisions in the charter, ordinances or regulations
 

of the city.
 

By enacting section 832.5 the Legislature mandated law
 

enforcement agencies in the state to establish a procedure to
 

investigate citizens' complaints against their officers. (Pena v.
 

Municipal Court (1979) 96 Cal.App.3d 77, 82.) The policy
 

underlying the statute is to encourage communication between
 

citizens and public authorities whose responsibility is to
 

investigate and remedy wrongdoing. ( Id.) Thus section 832.5
 

contemplates that citizens' complaints against police officers be
 

received and investigated and that if misconduct is discovered
 

appropriate discipline will be imposed. 


Section 832.5 leaves to each police department the form
 

the required procedure will take, including who will receive the
 

citizens' complaints and who will investigate them. As the
 

question suggests the procedure often calls for the citizens'
 

complaints to be delivered to and investigated by an internal
 

affairs unit in the police department. However, nothing in section
 

1

All references hereafter to the Penal Code are by section
 

number only.
 

2

"Peace officer personnel records" are defined to include
 

citizens' complaints filed against an officer (section 832.8) and
 

"records maintained pursuant to Section 832.5" also include
 

citizens' complaints filed against an officer. Evidence Code
 

sections 1043 and 1046 allow for the discovery of citizens'
 

complaints upon written motion showing good cause for disclosure.
 

(See People v. Memro (1985) 38 Cal.3d 658, 676-685.)
 

2. 87-904
 
 

832.5 restricts the required procedure to the personnel of the
 

police department. We see no reason why the required procedure
 

could not involve the city manager, an assistant city manager or a
 

citizens' review board. 


Section 832.7 imposes a requirement of confidentiality on
 

the citizens' complaints against police officers received and
 

retained pursuant to section 832.5. Section 832.7 contains two
 

express exceptions to the confidentiality requirement. The first
 

provides that parties in criminal and civil proceedings may gain
 

access to such citizens' complaints by discovery procedures set
 

forth in the Evidence Code. The second exception is an
 

investigation of the conduct in question by the district attorney
 

or a grand jury. The question is concerned with inspection of the
 

citizens' complaints without recourse to the procedures involved in
 

either of these express exceptions.
 

Where a statute confers powers or duties in general
 

terms, all powers and duties incidental and necessary to make such
 

legislation effective are included by implication. (Clay v. City
 

of Los Angeles (1971) 21 Cal.App.3d 577, 585.) The requirement in
 

section 832.5 that citizens' complaints be investigated necessarily
 

requires that those designated to do the investigating will have
 

access to the complaints. On this basis we interpret section 832.7
 

to include a third exception to the requirement of confidentiality
 

by necessary implication giving access to the citizens' complaints
 

to those designated in the departmental procedure established
 

pursuant to section 832.5 to investigate such complaints. 


The legislative purpose of section 832.5 is not merely to
 

investigate citizens' complaints against police officers to find
 

out what happened out of curiosity. The Legislature contemplated
 

that when police misconduct was discovered in such investigations,
 

appropriate disciplinary action would be taken against the errant
 

officer. The purpose of the statute is to "investigate and remedy
 

wrongdoing". (See Pena v. Municipal Court, supra, at p. 82.) To
 

accomplish the purpose of remedying wrongdoing those having the
 

authority to discipline police officers for their misconduct must
 

have access to the citizens' complaints and the information
 

produced by their investigation, all of which is made confidential
 

by section 832.7. Not only is this information essential to those
 

who actually impose such discipline, it is also essential to those
 

who have the duty or authority to advise or review such discipline.
 

We therefore interpret section 832.7 to include a fourth exception
 

to the requirement of confidentiality by necessary implication
 

giving access to the citizens' complaints to those who have the
 

duty or authority to advise, impose or review discipline upon a
 

police officer for misconduct revealed by the investigation of the
 

citizen's complaint. 


Whether, in a particular city, the city manager,
 

assistant city manager or a citizens' review board has the
 

3. 87-904
 
authority to investigate citizens' complaints against police
 

officers or to advise, impose or review disciplinary measures
 

against police officers depends upon local legislation and
 

regulation as well as state law. The California Constitution and
 

state statutes authorize great flexibility and local determination
 

regarding the allocation of municipal powers and duties among city
 

officers.
 

The government of a general law city is vested in a city
 

council of five members, a city clerk, a city treasurer, a chief of
 

police, a fire chief and other officers and employees as provided
 

by law. (Gov. Code, § 36501.) The city council shall appoint the
 

chief of police. (Gov. Code, § 36505.) The police department of a
 

city is under the control of the chief of police (Gov. Code,
 

§ 38630) and the chief of police may appoint one or more police
 

officers subject to the approval of the city council. (Gov. Code,
 

§ 38631.) Many variations from this standard form of general law
 

city government are authorized. Government Code section 34004
 

provides that where any duty is imposed upon a municipal officer by
 

any law of this State the governing body of a city may, by
 

ordinance, impose such duty or a portion thereof upon such other
 

officer of such city as is charged by city charter or applicable
 

general law with the performance of duties of the same character in
 

that city. The city council or the electorate may enact an
 

ordinance adopting a city manager form of government for the city
 

(Gov. Code, § 34851) in which a city manager appointed by the city
 

council has the authority to appoint and dismiss the chief of
 

police and other subordinate appointive officers and employees
 

except the city attorney. (Gov. Code, § 34856.)
 

Article XI, section 5 authorizes a city charter to
 

provide for ordinances and regulations governing "municipal
 

affairs" which supersede state law and more specifically provides
 

that a city charter may provide for "the constitution, regulation,
 

and government of the city police force" and for "the manner in
 

which . . . the several municipal officers and employees . . .
 

shall be elected or appointed, and for their removal . . ."
 

The constitutional provisions and statutes cited above
 

would appear to provide ample authority for the electorate or
 

legislative body of a California city to provide in the city
 

charter or by city ordinance that the city manager, an assistant
 

city manager or a citizens' review board has authority to
 

investigate citizens' complaints against police officers or that
 

they have authority to advise, impose or review discipline imposed
 

on police officers for misconduct alleged in such complaints.
 

Furthermore, Penal Code section 832.5 requiring each city police
 

department to establish a procedure to investigate citizens'
 

complaints against police officers itself authorizes such procedure
 

to include investigation of such complaints by the city manager, an
 

assistant city manager or a citizens' review board.
 

4. 87-904
 
 

We do not undertake any analysis or interpretation of
 

local charters, opinions or regulations in this opinion. The long
 

standing practice of this office has been to decline requests for
 

opinions when the questions are at issue in pending litigation,
 

call for interpretation of proposed legislation or call for the
 

interpretation of local charters, ordinances or regulations. (See
 

the foreword to 64 Ops.Cal.Atty.Gen.) Instead we interpret and
 

apply state law as to both those cities which do and those which do
 

not have local laws which authorize the city manager, or assistant
 

city manager or a citizens' review board to investigate citizens'
 

complaints against police officers or which authorize them to
 

advise, impose, or review disciplinary action against police
 

officers for misconduct alleged in such complaints.3
 

In answer to the question presented we conclude that a
 

city manager, an assistant city manager and a citizens' review
 

board has a right to inspect citizens' complaints against police
 

officers on file in the internal affairs division of the police
 

department if they are authorized by charter provision, ordinance
 

or regulation of the city to investigate such complaints or to
 

advise, impose or review discipline imposed upon police officers
 

for misconduct alleged in such complaints but not if they do not
 

have such authority. 


We think it is important to add a note of caution. 


Where the city manager, assistant city manager or citizens' review
 

board have authority to inspect citizens' complaints against peace
 

officers they are required by Penal Code section 832.7 to maintain
 

the confidentiality of such complaints and are precluded from
 

disclosing the contents thereof to members of the public. (Cf.
 

Parrott v. Rogers (1980) 103 Cal.App.3d 377, 383.)
 

* * * * *
 

3

We leave to local determination which category a particular
 

city falls under since this will involve an interpretation of local
 

law. The background materials submitted with this opinion request
 

indicate that it was the City of San Diego which prompted the
 

request. We note that the San Diego City Attorney has rendered an
 

opinion that the current city charter does not authorize access to
 

citizens' complaints against police officers by the city manager or
 

by a citizens' review board. Members of the San Diego bar have 

rendered a contrary opinion. We do not attempt to resolve that 

conflict in this opinion. 

5. 87-904