Senate Bill No. 2 — Frequently Asked Questions

Public Records (Related to Certification and Decertification)

1. 1.Does this new provision exempt POST from all Public Records Act requests? No. The Commission on Peace Officer Standards and Training (POST) continues to comply with the California Public Records Act (CPRA) when a request for public records is made. However, the recent passage of the public safety budget trailer bill (Assembly Bill (AB) 134 - Chapter 47, Statutes of 2023) added a new section (section 7323.601) to the CPRA. That section exempts POST from disclosing certain records pursuant to CPRA, including peace officer personnel files, background files, misconduct records, and related investigative files POST receives from law enforcement agencies for the purposes of peace officer employment and certification and POST investigations.
2. 2.How does the new law impact POST’s response to CPRAs? The law instructs that when POST receives a CPRA request, POST will forward the request to the agency that initially transmitted the record and will then notify the requestor of where the CPRA was forwarded. That agency will then be responsible for complying with the PRA request. If the agency no longer has the record, the agency must request the records from POST, and POST will provide a copy to the agency so it can comply with the CPRA request. This obligation will remain in effect until January 1, 2027.
3. 3.How will POST ensure transparency? POST will continue to ensure public access to police misconduct records in a way that improves efficiencies and reduces duplicative efforts. The new law does not prevent public access to local law enforcement agency misconduct records that have been sent to POST by those agencies. Government Code section 7923.601 instead directs CPRA requests back to the local agency that conducted the investigation, and compiled the material, and requires those agencies to respond to the CPRA request. Agencies already have an independent obligation under existing law to respond to CPRA requests for those records and AB 134 eliminates a costly duplication of effort that would otherwise be required. The bill also permits POST to continue to focus on its core work of investigating misconduct and decertifying individuals who should not be peace officers in California.

Hiring and Selection

1. 1.When did these requirements go into effect? Legislative changes went into effect on January 1, 2022.
2. 2.Do these changes apply to non-POST participating agencies? The certification program under Senate Bill (SB) 2 is for peace officers described in sections 830.1, 830.2 (with the exception of those described in subdivision (d)), 830.3, 830.32, or 830.33, or any other peace officer employed by an agency that participates in the Peace Officer Standards and Training (POST) program.
3. 3.What if we have a peace officer candidate who is currently in the academy or who is not currently 21 years old? Government Code section 1031.4 does not apply to any person who, as of December 31, 2021, is currently enrolled in a basic academy or is employed as a peace officer by a public entity in California. Further, Government Code section 1031.4 requires that the individual be 21 on or before the date of appointment as a peace officer, not the date of employment.
4. 4.What qualifies as serious misconduct for the purposes of Penal Code section 13510.8(b)? The Commission adopted a regulatory definition that can be accessed by referring to Commission Regulation 1205. 
5. 5.What should we do if we believe a candidate may be disqualified to be a peace officer under Government Code section 1029? Any determination on the suitability of a candidate, including compliance with the relevant Government Code sections, is the responsibility of the hiring department or agency. If there is a question as to whether or not a candidate is statutorily disqualified from holding a peace officer position, the department or agency should seek the advice of competent legal counsel.
6. 6.What is the National Decertification Index? The National Decertification Index (NDI) is a national registry of certificate or license revocation actions relating to peace officer misconduct.
7. 7.How does a department or agency get access to NDI? The NDI database is considered confidential by the International Association of Directors of Law Enforcement Standards and Training (IADLEST). Access to NDI will only be granted to department or agency personnel who are part of the peace officer background process, and who meet the following criteria:
   • MUST have a POST ID
   • MUST be listed on the agency roster
   • MUST request access from a governmental email account (Gmail, Yahoo, Hotmail, etc. are not acceptable)
   • MUST provide supervisor and contact information
   If these criteria are not met, access will be denied. Access is not authorized for private or independent background investigators.
   • Request NDI Access 
8. 8.Do all states report to NDI? No. At the time of this publication, NDI contained over 31,000 actions reported by 46 certifying agencies.
9. 9.Is my agency required to enter decertified officers into NDI? No, entry into NDI is limited to, and the responsibility of California POST.
10. 10.What should we do if an applicant is listed in NDI as being decertified? The records contained in NDI are provided by participating state government agencies and should be verified with the contributing authority. Government Code section 1029 prohibits appointing any person as a peace officer who was previously employed in law enforcement in any state or United States territory or by the federal government, whose name is listed in the National Decertification Index of the International Association of Directors of Law Enforcement Standards and Training or any other database designated by the federal government whose certification as a law enforcement officer in that jurisdiction was revoked for misconduct.
11. 11.How does POST want proof or documentation that an applicant was checked in NDI in the background investigation file? POST agencies are required to complete POST Form 2-355 Verification of Qualification for Peace Officer Appointment. This form will include an area for agencies to indicate when an NDI check has been completed and who completed the check. Agencies may wish to make an indication in the background narrative as well. 
12. 12.Will this eliminate the ability of a contractor to conduct backgrounds? Will the contractor background investigator need to add a notation that NDI had been checked in the investigation or will there be a form the agency will receive that indicates that a check of the list has been completed? NDI access is limited to members of the hiring agency. Background contractors should coordinate with the contracted agency to ensure that the required checks are being completed prior to an appointment.
13. 13.What happens when the employing agency will not allow access to the file? Penal Code section 832.12 states, “Each department or agency in this state that employs peace officers shall make a record of any investigations of misconduct involving a peace officer in the officer’s general personnel file or a separate file designated by the department or agency. A peace officer seeking employment with a department or agency in this state that employs peace officers shall give written permission for the hiring department or agency to view the officer’s general personnel file and any separate file designated by a department or agency.” And “Prior to employing any peace officer, each department or agency in this state that employs peace officers shall request, and the hiring department or agency shall review, any records made available pursuant to subdivision (a).” Government Code section 1031.1 requires employers to “…disclose employment information relating to a current or former employee, upon request of a law enforcement agency…” for "...applicants not currently employed as a peace officer" if certain conditions have been met.  Further, Government Code section 1031 specifies what steps an agency may take if the previous employing agency refuses to provide information. “An employer’s refusal to disclose information to a law enforcement agency in accordance with this section shall constitute grounds for a civil action for injunctive relief requiring disclosure on the part of an employer.” Agencies conducting a background investigation where a previous employing agency has refused to provide employment information should discuss remedies with their legal counsel.
14. 14.Will the POST profile show if a lateral applicant has an entry in NDI? Yes.
15. 15.To review prior employment personnel, background, etc. files, must the background investigator review ALL prior law enforcement agencies or just the most recent? Agencies should ensure that they comply with Penal Code section 832.12.
16. 16.Will background investigators, regardless if currently with an agency as a peace officer or retired with an independent company, be required to go to a POST-approved background investigator course? Yes.

Certificates and Proofs of Eligibility

1. 1.What is a Proof of Eligibility (POE)? A POE is a certification that confirms an individual is eligible to be a peace officer in the state of California.
2. 2.Who will be required to obtain a POE? All peace officers who do not currently possess, or are not eligible for a Basic Certificate, are required to obtain a POE within 10 days of appointment via the Electronic Data Interchange (EDI), regardless if employed by a POST participating agency. Penal Code section 13510.1(a) requires that POST shall establish a certification program for peace officers described in sections 830.1, 830.2 ( with the exception for those described in subdivision (d)), 830.3, 830.32, and 830.33, or any other peace officer employed by an agency that participates in the POST program. This includes all levels of reserve officers employed by POST participating agencies. Note: CDCR, probation officers, and reserve peace officers employed by a non-POST participating agency are not subject to SB 2.
3. 3.When will the POE requirement take place? January 1, 2023.
4. 4.Can a POE or Basic Certificate be suspended or revoked? Yes. POST is statutorily authorized to suspend or revoke any or all Certificates for serious misconduct identified in Penal Code section 13510.8, or when a person becomes ineligible to hold office as a peace officer pursuant to Government Code section 1029.
5. 5.Level II and Level III reserve officers are not eligible for a Basic Certificate. How will this be handled? All levels of reserve officers employed by POST participating agencies are required to have a POE throughout their career unless they are already in possession of a valid Basic Certificate.
6. 6.Is a POE needed for lateral peace officer hires or only with newly appointed officers? At the time of appointment, POST will make a determination if the appointment requires a POE or if the appointed peace officer already has a Basic Certificate. If the lateral peace officer already has a Basic Certificate, no POE will be issued.
7. 7.At what point is the Affidavit of Separation notice required? For example, if a person is still fighting the termination through arbitration? The notice is required within 10 days of the official separation of the agency. If the separation is changed pursuant to arbitration, the appointment status will need to be reported to POST within 10 days.
8. 8.If a peace officer retires, does the Basic Certificate automatically get revoked, or does it remain valid for a specific time in the event they seek new employment? The Basic Certificate will remain valid but is subject to the rehire/requalification requirements that are currently in place by POST.
9. 9.If a lateral peace officer transfers from one agency to another agency with a POST Basic Certificate, is a POE still needed? No. The new POE requirement is only required for individuals who do not already possess a Basic Certificate.
10. 10.What is required for a pre-service candidate? The POE/Basic Certificate requirement only applies when an individual is appointed as a peace officer/deputy/reserve/jail deputy (under Penal Code section 830.1(c)). If the individual is pre-service and appointed as a trainee, there is not a requirement for a POE.
11. 11.If a probationary employee is released from employment, will the reason for separation need to be reported? Yes. The Affidavit of Separation notice is required within 10 days of the official separation of the agency.
12. 12.If an officer is placed on administrative leave pending arbitration, when would the Affidavit of Separation notice be required? The notice is required upon official separation from employment.

Decertification Investigations and Reporting Obligations

1. 1.If the Peace Officer Standards Accountability Division (Division) recommends an action to revoke a certification to be a peace officer, can the decision be appealed? Yes. If the Division recommends action against a peace officer’s certification, the peace officer will be notified of the recommendation. Upon notification, the peace officer may, within 30 days, file a request for a review by the Peace Officer Standards Accountability Advisory Board (Board) and the POST Commission. If the peace officer does not file a request for review within 30 days, the action will stand without further proceedings (Penal Code section 13510.8).
2. 2.Will my agency need to retain the investigative files for 30 years? Each agency shall follow their records retention schedule on investigative files. POST is mandated to retain all investigative files for 30 years following the date the investigation is deemed concluded by the Commission.
3. 3.If POST receives a complaint from a citizen on my agency personnel, will my agency be notified? All complaints received from members of the public will be provided to the involved agency, unless such notification would interfere with the investigation.
4. 4.Does SB 2 require agencies to provide POST with the last three years' internal investigations? Not exactly. By July 1, 2023, any agency employing peace officers shall report the following events that occurred between January 1, 2020, and January 1, 2023:
   1. Any complaint, charge, or allegation of misconduct against a peace officer employed by that agency that could render a peace officer subject to suspension or revocation of certification by the commission pursuant to Penal Code section 13510.8.
   2. Any finding or recommendation by a civilian oversight entity, including a civilian review board, civilian police commission, police chief, or civilian inspector general, that a peace officer employed by that agency engaged in conduct that could render a peace officer subject to suspension or revocation of certification by the Commission pursuant to Penal Code section 13510.8.
   3. The final disposition of any investigation that determines a peace officer engaged in conduct that could render a peace officer subject to suspension or revocation of certification by the Commission pursuant to Penal Code section 13510.8, regardless of the discipline imposed.
   4. Any civil judgment or court finding against a peace officer based on conduct, or settlement of a civil claim against a peace officer or an agency based on allegations of officer conduct that could render a peace officer subject to suspension or revocation of certification by the Commission pursuant to Penal Code section 13510.8.
5. 5.Will POST be conducting investigations into serious misconduct? POST has the statutory authority to review investigations completed by law enforcement agencies and, as necessary, conduct additional investigations into serious misconduct that may provide grounds for action against a peace officer’s certification. Agencies will continue to be responsible for conducting and completing their own internal investigations.
6. 6.Will POST be accepting hard copies of case files? No. POST will only accept case files via secure upload in POST's Mark43 case management system. Each agency employing members of law enforcement throughout California will have a select number of Mark43 licenses (provided by POST) for the appropriate agency employees to submit the required reports. Agencies should contact their assigned Professional Conduct Bureau staff for information on how to submit case documents and other information. 
7. 7.Does serious misconduct need to be reported within 10 days of receiving the allegation or 10 days after the completion of the investigation? Both. Penal Code section 13510.9 requires agencies to report to POST within 10 days of receiving the allegation and the final disposition of any investigation that determines a peace officer engaged in conduct that could render a peace officer subject to suspension or revocation. 
8. 8.Are agencies required to submit all allegations of misconduct, including those that are frivolous, clearly unfounded, or exonerated? SB 2 states all allegations of serious misconduct shall be reported to POST within 10 days. There are no statutory exceptions for frivolous, unfounded, or exonerated allegations.
9. 9.What if an agency clears an officer of misconduct, but POST does not? While the results and disposition of any agency investigation are taken into consideration, each Professional Conduct Bureau is responsible for conducting an independent assessment and analysis of any alleged serious misconduct before making any recommendation for action.  
10. 10.How will POST investigations be conducted so as not to interfere with each agency's individual investigation? POST will rely on the employing agency to conduct the investigation first. Allegations of serious misconduct received directly to POST will be referred to the employing agency for investigation. The findings of the agency's investigation will be forwarded to POST for review. Any subsequent investigation needed would occur after the conclusion of the agency investigation.
11. 11.Can POST take action on misconduct that allegedly took place between January 1, 2022, and January 1, 2023? Yes, if the misconduct meets the statutory definition of serious misconduct.
12. 12.How does POBR (Peace Officer Bill of Rights) apply with POST conducted investigations? POBR applies only to the employing agency, so it does not apply to the decertification investigation. However, POST will provide similar rights consistent with Commission Regulation 1206.
13. 13.Should POST find criminal misconduct during an investigation, what happens? Criminal misconduct will be forwarded to the appropriate law enforcement agency to investigate.
14. 14.Regarding the retroactive reporting, is it only sustained complaints or all complaints that must be submitted? Between January 1, 2020, and January 1, 2023, all complaints of serious misconduct must be reported to POST, regardless of the finding.
15. 15.What will POST do when they receive a civilian complaint? It is the intent that all complaints received from the public will be referred to the employing agency for investigation.
16. 16.How long does a decertification last for and how does an officer regain certification? Once an officer's certification has been revoked, it cannot be reinstated unless there is a subsequent factual finding that exonerates the involved officer.
17. 17.In the event of an immediate temporary suspension, how does an individual get reinstated if they are cleared of misconduct? After POST reviews the agency's investigation and determines the allegations do not meet the threshold for decertification, the suspension would be withdrawn, and the certification reinstated.
18. 18.If an officer is temporarily suspended, will this information be relayed to an out-of-state agency conducting a background on a potential candidate? Consistent with Penal Code section 13510.9, information reported to POST is made available to any law enforcement agency performing a pre-employment background investigation of a peace officer. 
19. 19.If a public complaint is made through POST, does that automatically meet the agency notification of the allegation requirement, or does the agency then have to report to POST once they receive the complaint from POST? If the complaint contains sufficient information to determine the allegation meets the definition of serious misconduct, the agency will not have to notify POST until they complete their investigation and report the findings. 
20. 20.If an officer's POST certificate is revoked and they are of retirement age, does the decertification affect their retirement? POST only takes action on certification, not employment. POST does not have any involvement or authority related to an officer’s retirement.
21. 21.There may be instances where a member of the public does not believe that the employing agency is doing anything with their complaint. Does POST offer any recourse? If the allegations include serious misconduct, POST is required to review the agency's final investigation and make its own determination independent of the agency’s findings.
22. 22.Are correctional officers part of SB 2? No, correctional officers employed by the California Department of Corrections and Rehabilitation are explicitly excluded from SB 2. 
23. 23.When a peace officer appeals discipline relating to serious misconduct, does that delay the decertification process with POST? Generally, POST will toll any determination or recommendation for decertification pending the outcome of disciplinary appeals, or civil or criminal actions. 
24. 24.Will POST recommend decertification of peace officers for incidents of serious misconduct that occurred within the three years of retroactivity? Per SB 2, POST can only take action on serious misconduct that occurred prior to January 1, 2022, if it meets the following criteria: dishonesty, sexual assault, use of deadly force resulting in death or serious bodily injury, or the employing agency makes a final determination regarding its investigation AFTER January 1, 2022.
25. 25.What about probation officers? Probation officers are excluded from SB 2.
26. 26.Does POST have the authority to compel a statement from a subject officer? Serious misconduct can include “failure to cooperate with an investigation.” However, this does not prevent the “lawful exercise of rights granted under the United States Constitution, the California Constitution, or any other law shall not be considered a failure to cooperate.” Questions regarding compelled statements would be evaluated on a case-by-case basis with competent legal counsel. 
27. 27.Will POST wait for an agency to complete their investigation prior to beginning their decertification review? Yes, unless unique circumstances dictate otherwise.
28. 28.If decertification is recommended and the officer appeals the findings, does this place the decertification on hold? A decertification will not take place until the due process hearings have been held and completed, or if the officer does not request the hearings, the decertification would take effect 30 days after the Notice of Intent to Revoke has been issued.
29. 29.If an agency makes a determination to terminate an employee and POST moves forward with decertification, what happens if the employee gets their job back through arbitration? POST conducts investigative reviews solely for the purpose of decertification. If the Commission ultimately determines decertification is appropriate, the officer would no longer be eligible to be a peace officer in California. This is separate and distinct from any employment decision made by the agency. 
30. 30.Do deputy sheriff's under Penal Code section 830.1(c) fall under SB 2? Yes, but only those whose agencies are specifically listed in Penal Code section 830.1(c).
31. 31.Would an officer who is decertified lose their ability to have a "Civilian CCW?" That is the decision of the Sheriff of the county where the CCW license was issued.
32. 32.Procedurally, will a public decertification hearing be held if there are still criminal charges pending related to the original incident? Generally, POST will toll any determination or recommendation for decertification pending the outcome of any disciplinary appeals, or civil or criminal actions. 
33. 33.If an agency receives multiple complaints about an officer for the same incident, does the agency have to submit a notice to POST for each complaint or one notice about multiple complaints for the single act? If it is truly the same act with several complainants, then only one notification is required.
34. 34.What are the penalties if an agency fails to report an allegation of misconduct to POST within 10 days? There is no penalty currently listed in SB 2; however, it would be a clear violation of the statute.
35. 35.Do all internal affairs investigations conducted need to go to POST for review? Only cases involving an allegation of serious misconduct as defined by Penal Code section 13510.8(b).
36. 36.Is the POST public complaint form available on POST's website? Yes, the POST public complaint form can be found by following the link on POST's Public Complaint Page.
37. 37.What if POST does not recommend decertification, but the Board does? Only those cases POST determines contain clear and convincing evidence to support decertification will be forwarded to the Board.

Decertification Process, the Peace Officer Standards Accountability Advisory Board, and the POST Commission

3. 1.What are the proceedings if an investigation finds grounds for suspension or revocation? The Peace Officer Standards Accountability Division (Division) will notify the officer of the determination in writing. If desired, the officer will have 30 days to file an appeal and a public hearing by the Peace Officer Standards Accountability Advisory Board (Board) will be scheduled. At the public hearing, the findings of the investigation will be presented and the Board will make a recommendation to the Commission for revocation or suspension when appropriate. The Commission shall review the recommendations by the Board. If the Commission supports the Board’s recommendation, the Division will initiate proceedings for a formal hearing before an administrative law judge. All hearings and reviewed records are considered public records.
4. 2.Upon a Basic Certificate or Proof of Eligibility being suspended or revoked, who will be notified? POST will make notification to the subject officer and the agency head of the affected officer’s agency. POST is required to publish the names of any peace officer whose certification is suspended or revoked and the basis for the suspension or revocation and will notify the National Decertification Index of the International Association of Directors of Law Enforcement Standards and Training of the suspension or revocation.
5. 3.What is the purpose of the Board? The purpose of the Board is to make recommendations on the decertification of peace officers to the Commission.
6. 4.Who serves on the Board? The Board consists of nine members who are appointed by the Governor and Legislature. The Board shall include: one current or former peace officer with command experience; one current or former peace officer with management rank; two members of the public with experience working at a non-profit or academic institution; two members of the public with experience working with community-based organizations related to police accountability; two members of the public with strong consideration given to individuals who have been subjected to wrongful use of force likely to cause death or serious bodily injury by a peace officer or who are surviving family members of a person killed by the wrongful use of deadly force by a peace officer; and one attorney.
7. 5.I am interested in serving on the Board. How do I apply? Pursuant to Penal Code section 13509.6, seven (7) appointments on the Board are made by the Governor and two (2) appointments are made by the Legislature. Should you be interested, please apply directly to those offices. The following links contain information on the appointment process:
   • Governor - Appointments
   • Speaker of the Assembly - Appointments
   • President of the Senate - Appointments
8. 6.What is the timeline for the Board to review and come to a conclusion? POST has three years from the date an allegation is received to take action.
9. 7.What is the standard of proof for both the Board and Commission actions? The standard of proof is clear and convincing evidence.
10. 8.Can the Board act independently regardless of anyone else's findings? The Board can make a recommendation to the Commission for action, but they cannot take independent actions. Only the Commission has the authority to determine suspension or revocation.
11. 9.With hundreds of agencies submitting their internal affairs reports involving serious misconduct to POST, how will they be reviewed in a timely manner? These reports will be uploaded electronically via a database, which will allow for a timely review. Not all cases will be taken to the Board, only those that POST are requesting decertification and of those, only ones where the officer requests a review.
12. 10.Is the public hearing process held if the certification is voluntarily surrendered? No, if an officer voluntarily surrenders their certification, there will not be a hearing.
13. 11.Do internal affairs files need to be retained for 30 years even if not sustained or exonerated? POST is required to maintain their files for 30 years. Each agency should comply with their specific record retention requirements.
14. 12.How can decertification NOT be considered punitive? SB 2 solely deals with licensing and not employment, or criminal matters.
15. 13.Can the Commission disagree with the Board’s recommendation to decertify an officer and decide to allow the officer to retain their certification? Yes. The Board can only provide a recommendation, but the Commission has final decision authority.
16. 14.Will POST get involved in Pitchess motions if they retain files longer than the agency? No, POST will not participate in Pitchess motions.
17. 15.Can the Commission's final decision be appealed beyond the request for review by the officer? Yes, there is recourse through Superior Court.
18. 16.Are agencies sending investigations to POST that include both sustained and not sustained findings, and will POST retain both for 30 years? Yes.
19. 17.What about suspensions imposed by the POST Commission? The Commission does have the ability to recommend suspension for any duration of time. If an officer has their certification suspended, it is entirely up to the agency to determine what to do with that officer, but they would not be able to perform in a sworn peace officer capacity during the suspension period.
20. 18.Can the public video and/or audio record the hearings? Anyone who attends a public meeting (i.e., a meeting of a governmental body required to be open to the public by law) in California is generally allowed to make an audio or video recording unless the state or local body holding the meeting determines that the recording disrupts the proceedings by noise, illumination, or obstruction of view (Government Code sections 11124.1(a), 54953.5(a), and 54953.5.6).
21. 19.If an agency suspends an officer, will POST then suspend the officer for additional time? POST only has authority related to peace officer certification. Employment decisions, including disciplinary suspensions imposed by employing agencies, are independent of any action by POST.
22. 20.Does the Board's decision have to be unanimous or should more than 50% be sufficient for a revocation/cancellation recommendation? The Board’s decision is made by a majority vote.
23. 21.Who is on the Board and Commission? The POST Website provides the make up of Board members and Commissioners.
24. 22.Can the make up of the Board be challenged by an officer? No. The composition of the Board is specified in SB 2 and appointees are made by the Governor and the Legislature.