The implementation of Senate Bill 2 continues to significantly expand the oversight of the law enforcement profession in California. Significantly, SB 2 grants the Commission on Peace Officer Standards and Training (POST) the authority to decertify officers, disqualifying them from employment as a peace officer in California. It also establishes an advisory board within POST with the authority to review law enforcement agencies' internal affairs investigation findings, conduct a further investigation if deemed necessary, and ultimately make a recommendation to the Commission on decertification.

Many of the procedures and mandates in SB 2 took effect as of January 1, 2023, including certain administrative and reporting requirements for agencies. This article outlines POST's role under SB 2 and explains the process for peace officer decertification:

Process and Steps for Peace Officer Decertification

1. Allegations of Serious Misconduct Reported to POST

As of January 1, 2023, agencies are required to submit reports to POST within 10 days any time one of the following occurs:

• The agency employs, appoints, separates – including resignation or retirement – or terminates an officer from employment.
• The agency receives any complaint, charge, or allegation of conduct against an officer employed by that agency that could result in decertification.
• A civilian oversight entity, review board, police commission, police chief, or civilian inspector general makes a finding or recommendation that an officer employed by that agency engaged in conduct that could result in decertification.
• The final disposition of any investigation determines that a peace officer employed by that agency engaged in conduct that could result in decertification, regardless of the discipline imposed.
• A civil judgment, court finding, or settlement of a civil claim against an officer employed by that agency is made based on allegations of officer conduct that could result in decertification.

Cal. Penal Code § 13510.9.

Additionally, POST will accept citizen complaints from members of the public against peace officers regarding allegations of serious misconduct. Cal. Penal Code § 13509.5.

2. The Agency Completes Its Investigation

As of January 1, 2023, SB 2 requires agencies to complete any investigation into allegations of serious misconduct by an officer (i.e., conduct that could result in decertification) – regardless of the officer's employment status. Cal. Penal Code § 13510.8(c)(1). By way of example, even if an officer voluntarily resigns, and therefore the agency cannot impose disciplinary action, the agency is still required to complete any pending investigation of alleged serious misconduct.

3. POST Reviews the Agency's Investigation and Determines Whether to Recommend Decertification

SB 2 established the Peace Officer Standards Accountability Division ("Division") within POST, which is primarily responsible for reviewing agency investigations and, if necessary, conducting its own investigations into conduct that could result in decertification. Once the investigation has been completed, the agency must provide the internal investigation report to the Division for review. If the Division finds that serious misconduct did not occur, it must notify the officer of its findings and close the case with no further action from POST. If, however, the Division finds reasonable grounds to decertify the officer, it must notify the officer involved, in writing, of its intent to decertify, the reasons for the determination, an explanation of the decertification process, and the officer's right to appeal. Cal. Penal Code § 13510.85(a)(1).

Once the officer is notified of the Division's intent to decertify, the officer has 30 days to file a request for a review of the determination. If the officer does not file a timely request for review, POST will suspend or revoke the officer's certification, consistent with the Division's recommendation. Cal. Penal Code § 13510.85(a)(2).

Should the officer file a timely review, the Peace Officer Standards Accountability Board shall schedule the case for hearing.

4. The Board Schedules a Hearing for the Case

As part of the decertification scheme, SB 2 directs the Governor to establish a Peace Officer Standards Accountability Board ("Board") by January 1, 2023. To date, the Board is still pending appointment by the Governor's office.1 The Board's function is to hear the findings and recommendations from the Division and make recommendations on decertification to the POST Commission. The Board will consist of nine members serving three-year terms, all but two of whom are appointed by the Governor:

• One peace officer or former peace officer with substantial command experience.
• One peace officer or former peace officer with substantial management experience in internal investigations or disciplinary proceedings of peace officers.
• Two members of the public – who shall not be former peace officers – with experience in police accountability issues working at nonprofit or academic institutions, one of which is appointed by the Speaker of the Assembly.
• Two members of the public – who shall not be former peace officers – with experience in police accountability issues working in community-based organizations, one of which is appointed by the Senate Rules Committee.
• Two additional members of the public, with “strong consideration” given to individuals who have been subject to wrongful use of force by a peace officer or surviving family members of a person killed by wrongful use of force by a peace officer.
• One attorney with professional experience involving oversight of police officers.
• The six members of the public and the attorney member may not be former peace officers.

Cal. Penal Code § 13509.6

SB 2 directs the Board to review the findings and investigations presented by the Division at a public hearing, then make a recommendation to the POST Commission on whether to decertify the officer involved. Notably, the board may only recommend decertification if the factual basis is established by clear and convincing evidence. Cal. Penal Code § 13510.85(4). After reviewing all recommendations made by the Board, the POST Commission's decision to adopt a recommendation will require a two-thirds vote of the commissioners present. In the event that the POST Commission makes a determination different than the Board's recommendation, the Commission must set forth its analysis and reasons for reaching a different determination in writing. Cal. Penal Code § 13510.85(5).

Provided that the POST commission decides to decertify, the commission will return any determination concerning decertification to the Division, which will initiate proceedings for a formal hearing before an administrative law judge in accordance with the Administrative Procedure Act. Cal. Penal Code § 13510.85(6). Finally, the POST Commission will move to accept or reject the administrative law judge's decision.

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¹ Peace Officers Standards Accountability Board pending appointment by Governor's office as of March 3, 2023. See https://post.ca.gov/Peace-Officer-Standards-Accountability-Advisory-Board.