Senate Bill No. 388

Introduced by Senator Lieu

February 20, 2013

An act to amend Section 3303 of the Government Code, relating to public safety officers.

LEGISLATIVE COUNSEL’S DIGEST

SB 388, as introduced, Lieu. Public safety officers: investigations and interrogations.

The Public Safety Officers Procedural Bill of Rights Act grants certain rights to public safety officers, as defined. The act requires that, when any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation be conducted under certain conditions, except as specified.

This bill would provide that the above-mentioned conditions apply when any interrogation of a public safety officer is conducted, whether or not an investigation of that public safety officer is being conducted.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 3303 of the Government Code is amended
to read:

3303.  

When any public safety officer is under investigation
begin delete and subjected to interrogation end delete begin insert and subjected to interrogation, or
is subject to interrogation without being under investigation, end insert by
his or her commanding officer, or any other begin delete member end delete begin insert representative end insert
of the employing public safety department, that could lead to
punitive action, the interrogation shall be conducted under the
following conditions. For the purpose of this chapter, punitive
action means any action that may lead to dismissal, demotion,
suspension, reduction in salary, written reprimand, or transfer for
purposes of punishment.

(a) The interrogation shall be conducted at a reasonable hour,
preferably at a time when the public safety officer is on duty, or
during the normal waking hours for the public safety officer, unless
the seriousness of the begin delete investigation end delete begin insert inquiry end insert requires otherwise. If
the interrogation does occur during off-duty time of the public
safety officer being interrogated, the public safety officer shall be
compensated for any off-duty time in accordance with regular
department procedures, and the public safety officer shall not be
released from employment for any work missed.

(b) The public safety officer begin delete under investigation end delete shall be
informed prior to the interrogation of the rank, name, and command
of the officer in charge of the interrogation, the interrogating
officers, and all other persons to be present during the interrogation.
All questions directed to the public safety officer under
interrogation shall be asked by and through no more than two
interrogators at one time.

(c) The public safety officer begin delete under investigation end delete shall be
informed of the nature of the begin delete investigation end delete begin insert inquiry end insert prior to any
interrogation.

(d) The interrogating session shall be for a reasonable period
taking into consideration gravity and complexity of the issue being
investigated. The person under interrogation shall be allowed to
attend to his or her own personal physical necessities.

(e) The public safety officer under interrogation shall not be
subjected to offensive language or threatened with punitive action,
except that an officer refusing to respond to questions or submit
to interrogations shall be informed that failure to answer questions
directly related to the begin delete investigation end delete begin insert inquiry end insert or interrogation may
result in punitive action. No promise of reward shall be made as
an inducement to answering any question. The employer shall not
cause the public safety officer under interrogation to be subjected
to visits by the press or news media without his or her express
consent nor shall his or her home address or photograph be given
to the press or news media without his or her express consent.

(f) No statement made during interrogation by a public safety
officer under duress, coercion, or threat of punitive action shall be
admissible in any subsequent civil proceeding. This subdivision
is subject to the following qualifications:

(1) This subdivision shall not limit the use of statements made
by a public safety officer when the employing public safety
department is seeking civil sanctions against any public safety
officer, including disciplinary action brought under Section 19572.

(2) This subdivision shall not prevent the admissibility of
statements made by the public safety officer under interrogation
in any civil action, including administrative actions, brought by
that public safety officer, or that officer’s exclusive representative,
arising out of a disciplinary action.

(3) This subdivision shall not prevent statements made by a
public safety officer under interrogation from being used to
impeach the testimony of that officer after an in camera review to
determine whether the statements serve to impeach the testimony
of the officer.

(4) This subdivision shall not otherwise prevent the admissibility
of statements made by a public safety officer under interrogation
if that officer subsequently is deceased.

(g) The complete interrogation of a public safety officer may
be recorded. If a tape recording is made of the interrogation, the
public safety officer shall have access to the tape if any further
proceedings are contemplated or prior to any further interrogation
at a subsequent time. The public safety officer shall be entitled to
a transcribed copy of any notes made by a stenographer or to any
reports or complaints made by investigators or other persons,
except those which are deemed by the investigating agency to be
confidential. No notes or reports that are deemed to be confidential
may be entered in the officer’s personnel file. The public safety
officer being interrogated shall have the right to bring his or her
own recording device and record any and all aspects of the
interrogation.

(h) If prior to or during the interrogation of a public safety
officer it is deemed that he or she may be charged with a criminal
offense, he or she shall be immediately informed of his or her
constitutional rights.

(i) Upon the filing of a formal written statement of charges, or
whenever an interrogation begin insert under any circumstances end insert focuses on
matters that begin delete are likely to result in end delete begin insert could lead to end insert punitive action
against any public safety officer, that officer, 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.
The representative shall not be a person subject to the same
begin delete investigation end delete begin insert inquiry end insert . The representative shall not be required to
disclose, nor be subject to any punitive action for refusing to
disclose, any information received from the officer begin delete under
investigation end delete begin insert being interrogated end insert for noncriminal matters.

This section shall not apply to any interrogation of a public safety
officer in the normal course of duty, counseling, instruction, or
informal verbal admonishment by, or other routine or unplanned
contact with, a supervisor or any other public safety officer, nor
shall this section apply to an begin delete investigation end delete begin insert inquiry end insert concerned solely
and directly with alleged criminal activities.

(j) No public safety officer shall be loaned or temporarily
reassigned to a location or duty assignment if a sworn member of
his or her department would not normally be sent to that location
or would not normally be given that duty assignment under similar
circumstances.