BILL ANALYSIS Ó
AB 398
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Date of Hearing: April 2, 2013
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 398 (Fox) - As Introduced: February 15, 2013
SUMMARY : Adds coroners and deputy coroners to the list of
public safety officers covered by the Public Safety Officers
Procedural Bill of Rights Act (POBAR).
EXISTING LAW :
1)Defines "public safety officer," for the purposes of POBAR, as
numerous state and local peace officer classifications
including, but not limited to, city police, deputy sheriffs,
court marshals, district attorney investigators, the
California Highway Patrol, university police, state regulatory
investigators, park rangers, game wardens, housing authority
police, community college and school district police, port and
transit officers, public utility officers, and parole and
state correctional officers. [Government Code Section 3301.]
2)States that the Legislature finds and declares that effective
law enforcement depends upon the maintenance of stable
employer-employee relations between public safety employees
and their employers. [Government Code Section 3301.]
3)Provides for specified procedures and safeguards when any
public safety officer is under investigation and subject to
interrogation by his or her commanding officer or any other
member of the employing department that could lead to punitive
action. Some of the procedures and safeguards required
include:
a) Conducting the interrogation at a reasonable hour,
preferably at a time when the public safety officer is on
duty or during the normal waking hours of the officer,
unless the seriousness of the investigation requires
otherwise, and requiring that the officer be compensated if
the interrogation occurs during off-duty time of the
officer;
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b) Informing the public safety officer under investigation
prior to the interrogation of the rank, name, and command
of officer in charge of the interrogation, the
interrogating officer, and all other people present during
the interrogation;
c) Informing the public safety officer under investigation
of the nature of the investigation before any
interrogation;
d) Prohibiting the admissibility, with specified
exceptions, in any subsequent civil proceeding any
statement made during the interrogation by a public safety
officer under duress, coercion, or threat of punitive
action;
e) Providing the public safety officer with access to the
tape if a tape recording is made of the interrogation; and
f) Upon the filing of a formal written statement of charges
or whenever an interrogation focuses on matters that are
likely to result in punitive action against any public
safety officer, the officer who is being interrogated, at
his or her request, shall have the right to be represented
by a representative of his or her choice who may be present
at all times during the interrogation. [Government Code
Section 3303.]
4)Provides that no public safety officer shall have his assigned
locker or other storage space that is owned or leased by the
employing agency searched except in his presence or with his
consent or unless a valid search warrant has been obtained or
where he has been notified that a search will be conducted.
[Government Code Section 3309.]
5)Provides that no public safety officer shall be subjected to
punitive action, or denied promotion, or be threatened with
any such treatment, because of the lawful exercise of the
rights granted under POBAR, or the exercise of any rights
under any existing administrative grievance procedure but that
this provision does not prevent a head of an agency from
ordering a public safety officer to cooperate with other
agencies involved in criminal investigations. If an officer
fails to comply with such an order, the agency may officially
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charge him or her with insubordination. [Government Code
Section 3304(a).]
6)Provides that no punitive action, nor denial of promotion on
grounds other than merit, shall be undertaken by any public
agency against any public safety officer who has successfully
completed the probationary period that may be required by his
or her employing agency without providing the public safety
officer with an opportunity for administrative appeal.
[Government Code Section 3304(b).]
7)Provides that no police chief may be removed by a public
agency, or appointing authority, without providing the police
chief with written notice and the reason or reasons of the
removal and an opportunity for administrative appeal.
[Government Code Section 3304(c).]
8)Provides that, except as specified, no punitive action, nor
denial of promotion on grounds other than merit, shall be
undertaken for any act, omission, or other allegation of
misconduct if the investigation of the allegation is not
completed within one year of the public agency's discovery by
a person authorized to initiate an investigation of the
allegation of an act, omission, or other misconduct. In the
event that the public agency determines that discipline may be
taken, it shall complete its investigation and notify the
public safety officer of its proposed disciplinary action
within that year, except in any of the following
circumstances:
a) If the act, omission, or other allegation of
misconduct is also the subject of a criminal
investigation or criminal prosecution, the time during
which the criminal investigation or criminal prosecution
is pending shall toll the one-year time period;
b) If the public safety officer waives the one-year time
period in writing, the time period shall be tolled for
the period of time specified in the written waiver;
c) If the investigation is a multi-jurisdictional
investigation that requires a reasonable extension for
coordination of the involved agencies;
d) If the investigation involves more than one employee
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and requires a reasonable extension;
e) If the investigation involves an employee who is
incapacitated or otherwise unavailable;
f) If the investigation involves a matter in civil
litigation where the public safety officer is named as a
defendant, the one-year time period shall be tolled while
that civil action is pending;
g) If the investigation involves a matter in criminal
litigation where the complainant is a criminal defendant,
the one-year time period shall be tolled during the
period of that defendant's criminal investigation and
prosecution; or
h) If the investigation involves an allegation of
workers' compensation fraud on the part of the public
safety officer. [Government Code Section 3304(d).]
9)Provides that where a predisciplinary response or grievance
procedure is required or utilized, the time for this response
or procedure shall not be governed or limited by POBAR.
[Government Code Section 3304(e).]
10)Provides that if, after investigation and any predisciplinary
response or procedure, the public agency decides to impose
discipline, the public agency shall notify the public safety
officer in writing of its decision to impose discipline,
including the date that the discipline will be imposed, within
30 days of its decision, except if the public safety officer
is unavailable for discipline. [Government Code Section
3304(f).]
11)Provides that notwithstanding the one-year time period
specified above, an investigation may be reopened against a
public safety officer if both of the following circumstances
exist:
a) Significant new evidence has been discovered that is
likely to affect the outcome of the investigation; and
b) One of the following conditions exist:
i) The evidence could not reasonably have been
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discovered in the normal course of investigation
without resorting to extraordinary measures by the
agency; or
ii) The evidence resulted from the public safety
officer's predisciplinary response or procedure.
[Government Code Section 3304(g).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 398 will end
the disparity that currently exists within Section 3301. By
including coroners and deputy coroners in the description of
public safety officers, the true intent of the law will be
realized. The intent of Section 3301 is to improve all phases
of law enforcement by maintaining stable employee-employer
relations within law enforcement communities throughout the
state. AB 398 will improve the effectiveness of Section 3301
by creating equality for all public safety officers."
2)Is Including Coroners and Deputy Coroners Under POBAR
Consistent with the Purpose of the Act? : Looking to the plain
language of the Act, POBAR generally focuses on the procedural
rights of public safety officers when they are accused or
suspected of some act that may lead to punitive action.
Additionally, since enactment by the Legislature in 1976,
POBAR has engendered a relatively large body of case law that
provides guidance as to its purpose. In County of Riverside
v. Superior Court (Madrigal) (2002) 27 Cal.4th 793, the
California Supreme Court summarized the purpose of the Act:
[POBAR] declares "that effective law enforcement
depends upon the maintenance of stable
employer-employee relations, between public safety
employees and their employers." Among other things,
the Act guarantees public safety officers the right to
view any adverse comment placed in their personnel
files and to file, within 30 days, a written response,
which will be attached to the adverse comment. These
provisions reflect the public's interest in good
relations between peace officers and their employers,
including protecting peace officers from unfair
attacks on their character. Peace officers, in
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particular, must confront the public in a way that may
lead to unfair or wholly fabricated allegations of
misconduct from disgruntled citizens. Law enforcement
agencies must take these citizen complaints seriously
but at the same time ensure fairness to their peace
officer employees. The Bill of Rights Act therefore
gives officers a chance to respond to allegations of
wrongdoing. [Id. at 799, citations omitted.]
Furthermore, in his veto message of AB 2893 (Montanez), of the
2003-04 Legislative Session, Governor Schwarzenegger stated:
[POBAR] was intended to provide an additional layer of
protection to peace officers due to the unique
circumstances that they face while enforcing
California's laws. Their job leads to a variety of
public interactions and requires split-second decision
making that could mean life or death for the officer
or members of the community. While I recognize the
vital service that coroners provide to the citizens of
California, their job duties do not generally place
them in situations that would necessitate the
protections provided in this Act.
In addition, as public employees, coroners already
have significant civil service protections. Mandating
that they be covered by the Act would simply remove
local decision making and increase State costs without
providing a significant benefit to the public.
[Governor's veto message to Assem. on Assem. Bill No.
2893 (Sept. 15, 2004) 6 Assem J. (2003-2004 Reg.
Sess.) p. 8133.]
Do coroners and deputy coroners confront the public in a way
that may lead to unfair or wholly fabricated allegations of
misconduct from disgruntled citizens? Do their jobs require
split-second decision making that could mean life or death for
the officer or members of the community?
3)Argument in Support : According to the Los Angeles County
Professional Peace Officers Association , "Assembly Bill 398
adds coroners and deputy coroners who are peace officers, but
not part of a sheriff's department, to those covered by the
Public Safety Officers Procedural Bill of Rights Act (POBR).
Those who are part of a sheriff's department are already
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covered by POBR. This proposal effects less than 100 coroner
investigators state wide, there are 38 in Los Angeles County."
4)Prior Legislation :
a) AB 2893 (Montanez), of the 2003-04 Legislative Session,
was substantially similar to this bill and would have added
coroners and deputy coroners under the coverage of POBAR.
AB 2893 was vetoed by the Governor.
b) AB 170 (La Suer), of the 2001-02 Legislative Session,
would have included reserve peace officers to the list of
public safety officers covered by POBAR. AB 170 died in
the Assembly Public Safety Committee.
c) AB 417 (Cedillo), of the 2001-02 Legislative Session,
would have included all civilian employees of any city's
police department to the list of public safety officers
covered by POBAR. AB 417 was held on the Assembly
Appropriations Committee suspense file.
d) SB 522 (Chesbro), of the 2001-02 Legislative Session,
would have included custodial officers employed by a law
enforcement agency to the list of public safety officers
covered by POBAR. SB 522 died in the Senate Public Safety
Committee.
e) AB 1411 (Longville), of the 1999-2000 Legislative
Session, would have established the Firefighters Procedural
Bill of Rights Act. AB 1411 was held on the Assembly
Appropriations Committee suspense file.
f) AB 2101 (Epple), of the 1993-94 Legislative Session,
would have included reserve peace officers to the list of
public safety officers covered by POBAR. AB 2101 was
vetoed by the Governor.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County Professional Peace Officers Association
(Sponsor)
California State Coroners' Association
AB 398
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Opposition
None
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744