Stiglitz

Concurring and Dissenting.- — I agree with the majority that Pitchess* 1 discovery can be sought in administrative proceedings. I disagree, however, with the further conclusion that every nonjudicial presiding officer may review privileged and confidential materials in the context of such a motion.

As of the 1970s, when the Pitchess discovery scheme was enacted, the Legislature had never entrusted administrative hearing officers with reviewing allegedly privileged and confidential documents to determine their discover-ability. Only judicial officers were permitted to examine such documents. The disparity in authority was neither a relic of an older time nor an inadvertent oversight; as recently as 1968, the Legislature had taken the extraordinary step of creating a special statutory transfer mechanism to allow privilege disputes arising in administrative matters to be resolved by the only body authorized to conduct in camera review, a court.

The Pitchess discovery scheme continues this regime. At every turn, Evidence Code section 1045, 2 the statute governing in camera review of *649 confidential peace officer records, spells out what a “court” should do, eschewing the broader…

Here we hold that when hearing an administrative appeal from discipline imposed on a correctional officer, an arbitrator may rule upon a discovery motion for officer personnel records, commonly referred to as a Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 [ 113 Cal.Rptr. 897 , 522 P.2d 305 ] (Pitchess); Evid. Code, §§ 1043, 1045.) Evidence Code section 1043 expressly provides that Pitchess motions may be filed with an appropriate “administrative body.” The language reflects a legislative intent that administrative hearing officers be allowed to rule on these motions. This holding harmonizes the statutory scheme with other Evidence Code provisions and furthers the goals of the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.).

*629 I. BACKGROUND

The Riverside County Sheriff’s Department (the department) fired Deputy Kristy Drihkwater for falsifying her payroll forms. A memorandum of understanding (MOU) between the Riverside Sheriffs’ Association (Sheriffs’ Association) and the county provided for an administrative appeal. The parties chose arbitrator Jan Stiglitz as the hearing officer.

Drinkwater intended to urge a…

I. BACKGROUND

The Riverside County Sheriff‘s Department (the department) fired Deputy Kristy Drinkwater for falsifying her payroll forms. A memorandum of understanding (MOU) between the Riverside Sheriffs‘ Association (Sheriffs‘ Association) and the county provided for an administrative appeal. The parties chose arbitrator Jan Stiglitz as the hearing officer. Drinkwater intended to urge a disparate treatment defense, claiming that others had committed similar misconduct but were not fired. Accordingly, she sought discovery of redacted records ―from personnel investigations of any Department employees who have been disciplined for similar acts of misconduct.‖ (See Pegues v. Civil Service Com. (1998) 67 Cal.App.4th 95, 105-106; Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 229-231.) Limiting her request to events during the previous five years, she sought incident summaries, the rank of

2 the officer, and the discipline imposed. The department objected, arguing in part that Drinkwater could not satisfy the requirements for a Pitchess motion under Evidence Code sections 1043 and 1045, and could not establish the good cause required for discovery. Stiglitz denied the motion…