questions on obtaining investigation report

[legalwoes]

My jurisdiction is: California, USA

We are wondering how to go about subpoenaing a criminal investigation report that didn't turn up anything- and will not be released in the personnel file. He is a city employee and has had to deal with bogus charges against him concerning misapproiation of funds for a teen center.

A city council member is running a smear campaign and is drawing blanks. We have formed a citizen group to fight "City Hall" and are now being advised we will have to subpoena the report.

They will continue to find no wrongdoing, but now they will not publish and admit the findings, only to say there will be no charges. We want him exonerated, and they won't produce the report- and are playing hardball.

We have read the codes for California and see the right to read your file does not include an investigation report if the investigation was hoping to find a criminal charge; a criminal investigation report.

In what context do we file the subpoena? Can we just hire an attorney to file one subpoena for the report, or does it have to be in the context of a lawsuit? or, where do we find strategies to fix this?
thanks!!

 

[Green_Hornet]

If this went to court the case should be available to the public at the courthouse, unless a judge ordered them sealed. So you should not need a lawyer or a subpoena.

 

[legalwoes]

Thank you, but this did not go to court. it went absolutely no where, so now what?
He submitted over four thousand documents of accounting - spanning 28 months, for them to look at, and they couldn't find anything, because nothing was wrong.
The city has informally said he will need to subpoena the record- of which we're not sure that is true. Where would I find the codes or statutes to support that?

no charges were filed so it never went to court- or anywhere else. they probed and probed and found nothing - but community members and city manager and 3 council members keep referring to the criminal allegations and the investigation to constantly keep the bogus allegations out in public. and we want it to stop, so we need the findings... pls help. thank you.

 

[sfitz]

I think you should start by finding substantial harms done. Then possibly you could file a libel suit and your attorney could request the file if it is to be used in the proceedings. Otherwise, I'm not sure why you are worried about a report that is not being publicized.

 

[legalwoes]

I think you should start by finding substantial harms done. Then possibly you could file a libel suit and your attorney could request the file if it is to be used in the proceedings. Otherwise, I'm not sure why you are worried about a report that is not being publicized.

"...but community members and city manager and 3 council members keep referring to the criminal allegations and the investigation to constantly keep the bogus allegations out in public. and we want it to stop, so we need the findings... pls help. thank you."

we are looking at the prospect/costs of a lawsuit, for sure, but in the meantime, we would like to know the context of subpoenaing the report.
that is the main question here. actually, the only real lingering question at this time... so if anyone is an employment/labor lawyer/paralegal, pls help us to know the exact statutes to obtain a criminal investigation report that never produced any fraud or intent of anything, and no charges were filed but the record is not available in his personnel file, and the city doesn't seem mandated by law to show it to him... is this true?

where are the codes/rules/laws/or statutes that address the specifics of how to gain access to this report- in California?
I have read the codes for access to someone's personnel file, but it specifically states "not for a criminal investigation report" ...how can that be if no charges were filed? And how do we get it? Can it be obtained without a lawsuit, or must the subpoena be in the context of a lawsuit?
THANK YOU!!

 

[legalwoes]

Labor Code Section 1198.5

leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=01001-02000&file=1171-1205

here it explains our dilemma- 2nd paragraph. "possible criminal offense."

so anyone can initiate a "possible criminal investigation" on someone and leak it to the public and the "victim" has no recourse of vindication?
hard to believe.
how would one vindicate themselves?
how can one use the investigation results for exoneration?

too much power - something is missing.
thanks

 

[Green_Hornet]

I think your talking apple and oranges here 1198.5 deals with employees right to inspect their personnel records where they work.

1198.5. (a) Every employee has the right to inspect the personnel
records that the employer maintains relating to the employee's
performance or to any grievance concerning the employee.
(b) The employer shall make the contents of those personnel
records available to the employee at reasonable intervals and at
reasonable times. Except as provided in paragraph (3) of subdivision
(c), the employer shall not be required to make those personnel
records available at a time when the employee is actually required to
render service to the employer.
(c) The employer shall do one of the following:
(1) Keep a copy of each employee's personnel records at the place
where the employee reports to work.
(2) Make the employee's personnel records available at the place
where the employee reports to work within a reasonable period of time
following an employee's request.
(3) Permit the employee to inspect the personnel records at the
location where the employer stores the personnel records, with no
loss of compensation to the employee.
(d) The requirements of this section shall not apply to:
(1) Records relating to the investigation of a possible criminal
offense.
(2) Letters of reference.
(3) Ratings, reports, or records that were:
(A) Obtained prior to the employee's employment.
(B) Prepared by identifiable examination committee members.
(C) Obtained in connection with a promotional examination.
(4) Employees who are subject to the Public Safety Officers
Procedural Bill of Rights, Chapter 9.7 (commencing with Section 3300)
of Division 4 of Title 1 of the Government Code.
(5) Employees of agencies subject to the Information Practices Act
of 1977 (Title 1.8 (commencing with Section 1798) of Part 4 of
Division 3 of the Civil Code).
(e) The Labor Commissioner may adopt regulations that determine
the reasonable times and reasonable intervals for the inspection of
records maintained by an employer that is not a public agency.
(f) If a public agency has established an independent employee
relations board or commission, an employee shall first seek relief
regarding any matter or dispute relating to this section from that
board or commission before pursuing any available judicial remedy.
(g) In enacting this section, it is the intent of the Legislature
to establish minimum standards for the inspection of personnel
records by employees. Nothing in this section shall be construed to
prevent the establishment of additional rules for the inspection of
personnel records that are established as the result of agreements
between an employer and a recognized employee organization.

This relates to the records the employer has in possession relating to your job, the criminal investigation exclusion (I am assuming) is there so a police ongoing criminal investigation is not tiped off. Once the investigation is no longer ongoing the the records should be released. If this is a criminal matter the defense lawyer should have all the transcripts.

If the transcripts to an ongoing investigation are being leaked you should contact an attorney, there should be no need for a subpoena if the investigation is complete, if there are slanderous allegations an attorney should be able to flesh this out as well.

In my view if their is an on going criminal investigation you need a defense lawyer, if there is a leak that is slanderous you need a trial lawyer that handles tort law.

 

[legalwoes]

thank you, but I'm not sure what I'm not making clear.
it's apples to big apples.
we are looking in his personnel file and the report is not in there,and the investigation was done at work, and through the city, as it was a city employee.
there will be no charges, they have gone as far as they can with this. the DA can't find anything and the police chief cannot. nobody can or will.

be that as it may, the city has said we will need to file a subpoena to retrive the report from the 3 hour interview and the 4,000 financial documents that were submitted.

be that as it may, does anyone have a code reference or statute pointing us in the direction of how to proceed in response to labor code 1189.5 - when it addresses that a report on an investigation concerning a possible criminal offense- will not be available in your file.??
the case is closed.

we are not trying to engage in multiple lawsuits, we just want to begin with viewing the report of the alleged allegations. the answer cannot be a subjective answer, can it?
aren't there rules/codes/statutes/laws- something- to adhere to.??

Green Hornet, what type of law are you most familiar with? I am looking for hard cold facts of labor/employment law. thank you.

btw, the criminal defense attorney who sat in on the questioning, has advised him to seek a civil attorney to sue for slandor etc. That will be nice, but expensive. We are wanting to put our hands on the report to publicly exonerate him and then will go from there.

maybe this isn't the best place to get the answer we need. was hoping for something to look up on jurisearch.com maybe, but haven't been able to find it yet.
was hoping for a road map here... so forget it. unless someone has the facts, I'm outta here.
thanks.

 

[Green_Hornet]

Green Hornet, what type of law are you most familiar with? I am looking for hard cold facts of labor/employment law. thank you.

Labor law, and I understand your problem. Your solution is not in the labor code. Which is why I said apples and oranges. It is more than likely in the rules of civil procedure. If you have a case whether it employment litigation or any civil litigation the rule of discovery and evidence are the same. A lawyer can get these documents more than likely without filing a subpoena (see link below).

Since the criminal attorney has recommended a civil litigator then you should start looking for one. As far as cost -has any attorney done an interview, and given you a fee set up?

http://law.justia.com/california/codes/ccp/2017.010-2017.020.html

2017.010. Unless otherwise limited by order of the court in
accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.
Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.

These are the federal rules which Ca mirrors:
http://www.law.cornell.edu/rules/frcp/Rule26.htm

maybe this isn't the best place to get the answer we need. was hoping for something to look up on jurisearch.com maybe, but haven't been able to find it yet.
was hoping for a road map here... so forget it. unless someone has the facts, I'm outta here.
thanks.

Sorry your getting frustrated. What your trying to do is put the cart before the horse. 1.You have to have a case. 2. a lawyer excepts your case. 3. the lawyer files a complaint. 4. The defenses responds. 5. the judge sets a trial date. 6. discovery comes in to play. What you want to do is skip steps 1 through 5 and subpoena documents prior to even filing a complaint. Now there is a way to do that under the Federal rules 27(a) (see link below). It is not commonly used though unless the evidence is in some way in danger of being destroyed. Judges typically want to see a complaint that show cause to litigate.
http://www.law.cornell.edu/rules/frcp/Rule27.htm

A subpoena would only come into play if the defense refused to hand over discoverable documents. So forget the word subpoena for right now. Who ever told you, you need a subpoena was speaking in general terms.

Now I gave you three links and briefly explained discovery, which is huge topic so there is your map. Get an attorney and file a complaint in state or federal court.

 

[legalwoes]

Federal Rule 27

Thank you, thank you!!
this is more of where I've been trying to go, will look into the aspects of Federal Rule 27. - but am not trying to "have a case" -hence, dilemma of skipping 1-5

I am a legal assistant or was, for a civil rights attorney for several years, and he has in fact discussed the case with him and it was decided, temporarily, that it would not be cost effective to fight this battle. Myself and another paralegal will need to donate our time to make it affordable, but before moving forward in the direction of litigation, we just wanted to explore the avenues of getting our hands on this report. The city told other members in a meeting that they would not give it up and we could subpoena it. And that is what I was trying to find out. Did we in fact have to subpoena it, or could we get it without getting an attorney to open a case.

the Federal Rules 27 seems to be the avenue I'm looking for, so I thank you for that. Maybe this is as close as we'll be able to get without steps 1-5... which is exactly what I'm looking to avoid for now.

Bottom line, it just seems wrong that he cannot have access to this report unless he sues someone. If they are not moving forward, and there was nothing found, and there will be no charges, my rhetorical question still stands, why can't he just see it?

if Fed Rule 27 is the end of the road,(w/o litigation) then I thank you for that.
well, I thank you anyway!!