Should the Commission grant the appeal by Mr. Terrence McCullough (POST ID #C24-Y65) regarding an exemption of the “Six-Year Exception” codified in Commission Regulation 1008(b)(2)(B)1, which mandates that an individual who successfully completed a Regular Basic Course (RBC), Specialized Investigators’ Basic Course (SIBC), or the Basic Course Waiver Process (BCW) on or after July 1, 1999, but who never served in a California peace officer/Level I reserve officer position for which a Regular or Specialized Investigators’ Basic Course is required, may requalify by successfully completing a POST-certified Requalification Course one time within six years from the date of basic course or waiver process completion?

Should the Commission grant McCullough’s request to obtain a POST Basic Certificate pursuant to regulation 1011?

On June 13, 2009, McCullough successfully completed the RBC.  He did so by completing the Napa Valley College Police Academy, and his completion is reflected on his POST Profile Report (see Attachment A).

On May 3, 2013, McCullough completed the 136-hour POST Requalification Course to ensure his eligibility for hire by a POST general law enforcement agency remained active for an additional specified time period. This is also is reflected on his POST Profile Report.

Pursuant to POST Regulation 1008, graduates of the RBC have a three-year window of opportunity to be appointed as a peace officer. This regulation is commonly referred to as the “Three Year Rule.”  After three years, if the individual has not been appointed as a peace officer, he/she is allowed to take the POST Requalification Course (136 hour minimum) one time within six years from the date of the RBC completion.  This Regulation is commonly referred to as the “Six Year Rule” (see Attachment B). 

The “Six Year Rule” was created after the Commission approved an Agenda Item to establish more restrictive eligibility requirements for the requalification process on January 21, 1999.  These proposed requirements were brought to the Commission specifically to address concerns realized when presenters of the Requalification course reported an inordinate amount of time needed to bring trainees up to a cognitive and skill level prior to testing and skills evaluation, as well as a marked increase in trainees injured due to skill levels that had become stale.

After completion of the Requalification Course, the student must be appointed as a peace officer within the remaining 6 year timeframe.  If the graduate is not appointed to a peace officer position with qualifying service within 6 years, Commission Regulation 1008(b)(2)(B)1 specifies that they must successfully complete the appropriate full course, Regular Basic Course (RBC – 664 hour minimum) or Specialized Investigators’ Basic Course (SIBC-591 hour minimum), to requalify for peace officer appointment. Regulation 1008 articulates that qualifying service is defined as “…serving in a California peace officer/Level I reserve officer position for which a POST-certified Regular Basic Course or Specialized Investigators’ Basic Course was required by law …” (emphasis added).

In the period after his graduation from the RBC and Requalification Course, McCullough sought appointment with various POST participating law enforcement agencies, but was unable to obtain employment. 

According to McCullough, after a period of three years he obtained employment as an officer with the Department of State Hospitals (DSH), in the section that is not a POST participating agency and does not require the RBC for employment.

POST staff have no access to McCullough’s appointment information to independently verify his appointment/employment status since his agency is not part of the POST program, and is basing the analysis of his authority on his written attestation that he has been appointed as a Peace Officer for DSH pursuant to Penal Code 830.38(a).

Based on McCullough’s initial graduation date of June 13, 2009, his six-year window of opportunity to be appointed as a peace officer expired on June 13, 2015 since he had never been appointed to a peace officer position for which the RBC was required by law. 

On May 15, 2016, McCullough sent an email to Standards Evaluation and Research Bureau Chief Kate Singer.  McCullough requested the ability to obtain a POST Basic Certificate and to obtain an exemption from the “Six-Year Rule” rule codified in regulation 1008 since it had been over six years since he went to the RBC (see Attachment C).

Bureau Chief Mario Rodriguez of the Learning Technology Resources Bureau took over the matter, initiated comprehensive research into McCullough's request, and follow-up email exchanges occurred (see Attachment D). 

On May 26, 2016, Bureau Chief Mario Rodriguez advised McCullough, via email, that he had investigated the matter, and explained that given the fact pattern of his situation, McCullough was ineligible for an exemption to the Six-Year Rule. Rodriquez also explained, that his initial belief that McCullough might be eligible for a Basic Course Waiver (BCW) was incorrect since he was a graduate of the RBC, and not an out-of-state applicant, and that his only option, should he desire employment in a POST participating agency, would be to complete a full RBC (see Attachment E).

McCullough later appealed the matter to the Interim Executive Director, and on September 2, 2016, the POST Executive Office assigned the matter to the Basic Training Bureau for a formal inquiry and response (see Attachment F).

On October 4, 2016, after considerable investigation by staff, POST Executive Director Manuel Alvarez provided McCullough with a formal response to his request, reiterating the prior findings that he was ineligible for an exemption to the Six-Year Rule and advising he was also ineligible for a POST Basic Certificate (see Attachment G).

In a corollary matter, Alvarez addressed a complaint from McCullough regarding his belief that unidentified POST staff were dismissive, and advised appropriate follow-up would be conducted if specific details were provided.

(To date, no follow-up information regarding allegations of dismissive demeanor of POST staff have been received.)

On October 11, 2016, McCullough requested that his appeal be heard before the full Commission scheduled for October, 2016.  POST staff were unable to accommodate this request for an immediate appearance before the next Commission meeting due to time constraints associated with publishing the public agenda pursuant to state open meeting laws, as well as timelines codified in Regulation 1058 (see Attachment H).

On January 27, 2017, McCullough, through his attorney, requested to appeal the matter before the next full Commission meeting in June, 2017 (see Attachment I).

On January 31, 2017, Assistant Executive Director Dave Cornejo sent a letter to McCullough’s attorney, acknowledging receipt of the request for appeal, and to provide specific information and direction regarding the date and time of the next Commission Meeting, as well as specific protocol for the appeal (see Attachment J).

The Legislature of the State of California provides POST regulatory authority pursuant Title 11, Division 2 the California Code of Regulations, the California Penal Code, and other legislative acts. Therefore, POST regulation and subsequent administration and compliance oversight are matters of state law.

McCullough requests an exemption from the POST Six-Year Rule codified in Regulation 1008 and the issuance of a POST Basic Certificate pursuant to Regulation 1011 so that he may obtain employment in a different law enforcement agency than his current employer, without having to complete another RBC as mandated by regulation.

With respect to McCullough’s request for an the exemption from the requirement to attend another RBC, pursuant to Regulation 1008, “An individual who successfully completed a Regular Basic Course (RBC), Specialized Investigators’ Basic Course (SIBC), or the Basic Course Waiver Process(BCW) on or after July 1, 1999, but who never served in a California peace officer/Level I reserve officer position for which a Regular or Specialized Investigators’ Basic Course is required may requalify by successfully completing a POST-certified Requalification Course one time within six years from the date of basic course or waiver process completion. After six years, an individual must successfully complete the appropriate basic course (RBC or SIBC) to requalify, regardless of when the Requalification Course was completed.” 

McCullough argues that his inability to obtain employment in a POST participating agency in the 6-year period following his RBC graduation should provide POST with the authority to exempt him from regulation for entry-level training mandates.  POST regulation does not exempt individuals from required basic training qualifications if they are unable to obtain employment in the subsequent years following RBC graduation, regardless if it is due to economic trends in the workplace or agency discretion in hiring.

An audit of McCullough’s POST profile reveals he completed the RBC on June 13, 2009 and he successfully completed a POST Requalification Course on May 3, 2013. The Profile also reflects he has never been appointed to a peace officer position in a POST participating agency for which an RBC or SIBC is required by law.

The DSH is a unique agency, as it is bifurcated into a POST and non-POST section.  The peace officers who are appointed as investigators are in the POST program and must attend the appropriate basic course, while the officers assigned to the section where McCullough is employed are not in the POST program. 

The only legally required mandate for DSH peace officers in McCullough’s position is the PC 832 Course, which is a significantly lower level of training than the RBC.  This is reflected on the official State of California job specifications for that class of peace officer (class codes 1937, 1936, and 1935), Hospital Police Officers, Hospital Police Sergeants, and Hospital Police Lieutenants, as well as the official State of California Open Examination for Department of State Hospitals, Police Officer (see Attachment K).

Any DSH requirement to complete more extensive training than the PC 832 course is exclusively elective, and agency-specific discretion, not that which is mandated by legislation or POST.  Therefore, since completion of an RBC or SIBC is not required by either legislation or regulation, the exemption requested pursuant to regulation 1008 does not apply. McCullough’s employment with DSH does not meet qualifying service standards required by regulation.

Therefore, McCullough’s six-year window of opportunity to become hired as a California peace officer position for which the RBC or SIBC is required expired on June 13, 2015.

With respect to McCullough’s request to obtain a POST Basic Certificate, there are numerous Penal Codes and POST Regulations that address the administration of POST certificates, and clearly establish that McCullough is ineligible for a POST Basic Certificate.

Penal Code 13510.1.(a) states that “The commission shall establish a certification program for peace officers specified in Sections 13510 and 13522 and for the California Highway Patrol. Certificates of the commission established pursuant to this section shall be considered professional certificates.” and that “Persons who are determined by the commission to be eligible peace officers may make application for the certificates, provided they are employed by an agency which participates in the Peace Officer Standards and Training (POST) program (emphasis added).”  McCullough is not a peace officer in a POST participating agency and is therefore ineligible (see Attachment L).

Regulation 1011(a)(4)(A) mandates that “At the time of application, an applicant shall be employed as a full-time peace officer by a POST-participating department.” McCullough is not a peace officer in a POST participating agency and is therefore ineligible (see Attachment M).

McCullough bases his argument that he is still eligible, even as a non-POST participating peace officer, due to additional content of Regulation 1011(a)(4)(A) which states, “When a POST Basic Certificate is required to continue to exercise peace officer powers pursuant to Penal Code section 832.4, employment with a participating department is not required at the time of application.

Analysis of Regulation 1011(a)(4)(A) and Penal Code section 832.4 reveals that McCullough’s appointment is not applicable. 

Penal Code 832.4 has two subsections sections that articulate application as follows:

Penal Code   832.4. (b) states that “Every peace officer listed in subdivision (a) of Section 830.1(emphasis added), except a sheriff, or elected marshal, or a deputy sheriff described in subdivision (c) of Section 830.1 , who is employed after January 1, 1988, shall obtain the basic certificate issued by the Commission on Peace Officer Standards and Training upon completion of probation, but in no case later than 24 months after his or her employment, in order to continue to exercise the powers of a peace officer after the expiration of the 24-month period.” McCullough’s authority resides under penal code 830.38. (a), rather than Section 830.1 as required to be eligible for the basic certificate, and is therefore ineligible to receive a POST Basic Certificate pursuant to this subsection (see Attachment N).

Penal Code   832.4. (a) states that that “Any undersheriff or deputy sheriff of a county, any police officer of a city, and any police officer of a district authorized by statute to maintain a police department, who is first employed after January 1, 1974, and is responsible for the prevention and detection of crime and the general enforcement of the criminal laws (emphasis added) of this state, shall obtain the basic certificate issued by the Commission on Peace Officer Standards and Training within 18 months of his or her employment in order to continue to exercise the powers of a peace officer after the expiration of the 18-month period.” 

Analysis of Penal Code 830.38. (a), which is the authority McCullough is appointed under, reflects that “ The officers of a state hospital under the jurisdiction of the State Department of State Hospitals or the State Department of Developmental Services appointed pursuant to Section 4313 or 4493 of the Welfare and Institutions Code, are peace officers whose authority extends to any place in the state for the purpose of performing their primary duty (emphasis added) or when making an arrest pursuant to Section 836 as to any public offense with respect to which there is immediate danger to person or property, or of the escape of the perpetrator of that offense, or pursuant to Section 8597 or 8598 of the Government Code provided that the primary duty of the peace officers shall be the enforcement of the law as set forth in Sections 4311, 4313, 4491, and 4493 of the Welfare and Institutions Code. Those peace officers may carry firearms only if authorized and under terms and conditions specified by their employing agency (emphasis added).” Conversely, peace officers appointed pursuant to section 830.1 of the Penal Code do not have the aforementioned enforcement and firearms limitations (see Attachment O).

Per McCullough’s attestation he is a peace officer appointed pursuant to Penal Code 830.38.  The official state of California job specifications for Hospital Police Officers, Hospital Police Sergeants, and Hospital Police Lieutenants (class code 1937, 1936, and 1935), state that “… they are distinguished from other peace officer classes (emphasis added) by being regularly required to perform law enforcement duties in close proximity to mentally ill patients. Their duties include maintaining law and order on hospital grounds; patrolling and protecting hospital buildings and grounds; checking for unauthorized movement of patients, breaches of security, and unsafe conditions; conducting administrative and criminal investigations; making arrests; testifying in court; and enforcing vehicle traffic and parking regulations and issuing citations when necessary. Incumbents also monitor patient and visitor activities on hospital grounds; assist nursing personnel in controlling severely combative patients; and carry out standard search procedures in cases of unauthorized patient absences. Incumbents transport patients under security as required and perform other related duties.” 

These duties, as reported on the official State of California job specifications document, are clearly limited to custodial enforcement within, and on hospital grounds, and significantly differ from general law enforcement as performed by deputy sheriffs and city police officers appointed under the authority of Penal Code 830.1 (see Attachment P).

Pursuant to POST Regulation 1001, General Law Enforcement is defined as “…duties which include the investigation of crime, patrol of a geographic area, responding to the full range of requests for police services, and performing any enforcement action on the full range of law violations. McCullough’s appointment is not a General Law Enforcement position, and he is therefore ineligible to receive a POST Basic Certificate (see Attachment Q).

Regulation 1011(a)(5)(C) mandates that “ Every peace officer appointed by a department participating in the POST Program shall possess the appropriate Basic Certificate within the time limits described in subsection 1010(a)(5)(A)*, unless an exception in subsection 1010(a)(5)(D)* pertains to the officer.” McCullough’s position in the DSH is not part of the POST program, and the officers therefore are not subject to POST regulatory authority, nor can they enjoy the benefits of such.

*Note: POST staff discovered an apparent typographical error with respect to reference to regulation 1010(a)(5)(A) and (D).  The correct reference should be Regulation 1011.

If approved, McCullough will be eligible for a peace officer appointment at a POST participating agency, contingent on pre-employment mandates, after a period of over six (6) years since his graduation from the RBC and without the mandated employment experience required by regulation.