             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      :


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          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
