The national problem of “gypsy cops” is not a new one. Toxic officers engage in misconduct in one agency after another over the course of a career and, in the meantime, cost thousands of dollars in lawsuits and inflict damage to agency reputation and officer morale along the way. These officers leave one agency where they are widely known to be a serious problem only to find a new home with another agency where the behavior continues until it is time to move again.
Departments across California and across the nation are struggling to recruit qualified applicants to serve as law enforcement officers. This presents an opportunity for unqualified men and women to gain employment because agencies need “warm bodies”. This is particularly true when the applicant happens to already be a certified officer.
One of the most significant factors aiding gypsy cops in finding employment in a new agency is the unwillingness of past agency representatives to divulge facts that would disqualify the officer in the eyes of any reasonable background investigator or law enforcement leader. Serious problems—in the form of frequent citizen complaints, disciplinary write-ups and suspensions—are often documented but not shared with new agencies considering hiring these officers.
So, why are agencies failing to cooperate with other departments engaged in background investigations on these officers? One of the most common refrains is that sworn personnel refuse to cooperate based on the advice of Human Resources or attorneys. There is an overwhelming, though often vague, fear that any cooperation whatsoever will result in costly lawsuits filed by the toxic officer in question.
However, in the state of California, there are statutes in place that protect agencies from being held liable for communicating past performance issues to a potential employer so long as those statements are truthful and made in good faith in response to another agency’s inquiry.
The simple purpose of this legal article is to bring to the attention of agency leaders—and those who advise them—that these employer immunity protections are currently in place in the state of California. This article will briefly explain what the California statutes mean for law enforcement leaders throughout the state who would like to speak up in an effort to prevent gypsy cops from finding new law enforcement positions but are hampered by misplaced concerns regarding legal liability.
A Right to “Speak Up” Under California Law
In California, one particular statute is likely to cause concern among agency leaders who want to speak up as part of a background investigation. Cal. Lab. Code § 1050 states that:
Any person, or agent or officer thereof, who, after having discharged an employee from the service of such person or after an employee has voluntarily left such service, by any misrepresentation prevents or attempts to prevent the former employee from obtaining employment, is guilty of a misdemeanor.
However, it would be a crucial mistake to read this statute alone without digging deeper and finding the statutes that clarify that this liability does not apply to employers who cooperate with employment background investigations in good faith.
In fact, Cal. Lab. Code § 1053 states:
Nothing in this chapter shall prevent an employer or an agent, employee, superintendent or manager thereof from furnishing, upon special request therefor, a truthful statement concerning the reason for the discharge of an employee or why an employee voluntarily left the service of the employer. If such statement furnishes any mark, sign, or other means conveying information different from that expressed by words therein, such fact, or the fact that such statement or other means of furnishing information was given without a special request therefore is prima facie evidence of a violation of sections 1050 to 1053.
The key take-aways from the above statute are that employers are protected when (1) they are responding to a specific request for information from a potential employer, (2) are communicating honestly and (3) do not veer into areas that are irrelevant to the inquiry, such as rumors and innuendo or gossip concerning an individual’s personal life.
Furthermore, under California law, former employers’ disclosures regarding an individual’s work performance and manner of separation are considered “privileged communications”. Under Cal. Civ. Code § 47, employers are protected from claims of defamation and similar civil claims. That law states:
(c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision applies to and includes a complaint of sexual harassment by an employee, without malice, to an employer based upon credible evidence and communications between the employer and interested persons, without malice, regarding a complaint of sexual harassment. This subdivision authorizes a current or former employer, or the employer’s agent, to answer, without malice, whether or not the employer would rehire a current or former employee and whether the decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment. This subdivision shall not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.
The other section of the statute referenced above relates to unlawful anti-union employment practices—far outside the scope of communicating instances of officer misconduct and failures in the performance of their duties. Therefore, the protections granted to law enforcement agencies allowing access to requested information pertaining to officer misconduct is not fundamentally affected by these caveats.
Knowing California Law and Addressing the Problem of Gypsy Cops
Cal. Lab. Code § 1053 and Cal. Civ. Code § 47 are statutes that agency leaders, city and county attorneys, HR professionals and background investigators should become familiar with as they look to hire officers from outside agencies. Background investigators should consider informing representatives from other agencies about these statutes when inquiries regarding past employment only result in “he worked here from 2015 until 2019, and that’s all I can tell you”. Furthermore, agency leaders should keep these statutes in mind when making crucial decisions as to whether or not to divulge to another agency facts illustrating that the officer they are considering hiring is not fit to serve.
Law enforcement is a high liability profession. Managing liability should be the goal rather than eliminating all liability, in light of the fact that liability can never be eliminated—especially if law enforcement professionals are actively engaged in activities which simultaneously serve to improve the safety of the community while increasing the risks that lawsuits (founded or unfounded) may result.
As agency leaders in California consider their options and their ethical obligations when contacted by other departments that are considering hiring toxic officers, they should take time to consider what California state law actually says when it comes to honest, fact-based disclosures of past misconduct and poor performance.
Refusing to cooperate in these background investigations may mean less work and, in some instances, less risk of a baseless lawsuit filed by a toxic officer that once worked for the department. But it may also mean that a bad apple who has no business serving as a law enforcement officer finds a new home, a new badge and a new opportunity to disgrace the profession.
About the Author
Matt Dolan is a licensed attorney who specializes in training and advising public safety agencies in matters of legal liability. His training focuses on helping agency leaders create sound policies and procedures as a proactive means of minimizing their exposure to costly liability. A member of a law enforcement family dating back three generations, he serves as both Director and Public Safety Instructor with Dolan Consulting Group.
His training courses include Recruiting and Hiring for Law Enforcement, Confronting the Toxic Officer, Performance Evaluations for Public Safety, Making Discipline Stick®, and Supervisor Liability for Public Safety.
