BILL NUMBER: SB 388 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 8, 2013
INTRODUCED BY Senator Lieu
FEBRUARY 20, 2013
An act to amend Section Sections 3253 and
3303 of the Government Code, relating to public safety
officers. public empl oyment.
LEGISLATIVE COUNSEL'S DIGEST
SB 388, as amended, Lieu. Public safety officers and
firefighters : investigations and interrogations.
The Public Safety Officers Procedural Bill of Rights Act
grants and the Firefighters Procedural Bill of Rights
Act grant certain rights to public safety officers
and firefighters , as defined. The act requires
acts require that, when any public safety
officer or firefighter is under investigation and
subjected to interrogation by his or her commanding officer, or any
other member of the employing public safety department or fire
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 or firefighter
is conducted, whether or not an investigation of that public
safety officer or firefighter is being conducted.
By adding to the duties of local agencies to comply with the
Firefighters Procedural Bill of Rights Act, this bill would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3253 of the
Government Code is amended to read:
3253. When any firefighter is under investigation and subjected
to interrogation , or subjected to interrogation without being
under investigation, by his or her commanding officer, or any
other member representative designated
by the employing department or licensing or certifying agency, that
could lead to punitive action, the interrogation shall be conducted
under the following conditions:
(a) The interrogation shall be conducted at a reasonable hour, at
a time when the firefighter is on duty, unless an imminent threat to
the safety of the public requires otherwise. If the interrogation
does occur during off-duty time of the firefighter being
interrogated, the firefighter shall be compensated for any off-duty
time in accordance with regular department procedures. The
firefighter's compensation shall not be reduced as a result of any
work missed while being interrogated.
(b) The firefighter under investigation shall
be informed, prior to the interrogation, of the rank, name, and
command of the officer or other person in charge of the
interrogation, the interrogating officer, and all other persons to be
present during the interrogation. All questions directed to the
firefighter under interrogation shall be asked by and through no more
than two interrogators at one time.
(c) The firefighter under investigation shall be
informed of the nature of the investigation
inquiry prior to any interrogation.
(d) The interrogating session shall be for a reasonable period
taking into consideration the gravity and complexity of the issue
being investigated. The person under interrogation shall be allowed
reasonable breaks to attend to his or her own personal physical
necessities.
(e) (1) The firefighter under interrogation shall not be subjected
to offensive language or threatened with punitive action. A promise
of reward shall not be made as an inducement to answering any
question. The employer shall provide to, and obtain from, an employee
a formal grant of immunity from criminal prosecution, in writing,
before the employee may be compelled to respond to incriminating
questions in an interrogation. Subject to that grant of immunity, a
firefighter refusing to respond to questions or submit to
interrogations shall be informed that the failure to answer questions
directly related to the investigation
inquiry or interrogation may result in punitive action.
(2) The employer shall not cause the firefighter under
interrogation to be subjected to visits by the press or news media
without his or her express written consent free of duress, and the
firefighter's photograph, home address, telephone number, or other
contact information shall not be given to the press or news media
without his or her express written consent.
(f) A statement made during interrogation by a firefighter under
duress, coercion, or threat of punitive action shall not be
admissible in any subsequent judicial proceeding, subject to the
following qualifications:
(1) This subdivision shall not limit the use of statements
otherwise made by a firefighter when the employing fire department is
seeking civil service sanctions against any firefighter, including
disciplinary action brought under Section 19572.
(2) This subdivision shall not prevent the admissibility of
statements otherwise made by the firefighter under interrogation in
any civil action, including administrative actions, brought by that
firefighter, or that firefighter's exclusive representative, arising
out of a disciplinary action.
(g) The complete interrogation of a firefighter may be recorded.
If a recording is made of the interrogation, the firefighter shall
have access to the recording if any further proceedings are
contemplated or prior to any further interrogation at a subsequent
time. The firefighter 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 portions that are
otherwise required by law to be kept confidential. Notes or reports
that are deemed to be confidential shall not be entered in the
firefighter's personnel file. The firefighter 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 firefighter, it
is contemplated 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 under any circumstances focuses
on matters that may result in punitive action against any
firefighter, that firefighter, 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
investigation inquiry . The representative shall
not be required to disclose, or be subject to any punitive action
for refusing to disclose, any information received from the
firefighter under investigation being
investigated or interrogated for noncriminal matters.
This section shall not be construed to apply to counseling,
instruction, or informal verbal admonishment by, or other routine or
unplanned contact with, a supervisor or any other firefighter.
(j) A firefighter shall not be loaned or temporarily reassigned to
a location or duty assignment if a firefighter in his or her
department would not normally be sent to that location or would not
normally be given that duty assignment under similar circumstances.
SECTION 1. SEC. 2. Section 3303 of
the Government Code is amended to read:
3303. When any public safety officer is under investigation and
subjected to interrogation, or is subject to interrogation without
being under investigation, by his or her commanding officer, or any
other representative of the employing public safety department
or its designee , 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 inquiry 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 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 shall be informed of the nature of
the inquiry 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 inquiry 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 A statement made during
interrogation by a public safety officer under duress, coercion, or
threat of punitive action shall not 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 under any circumstances focuses on matters
that could lead to 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 inquiry. 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 being investigated or interrogated 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 inquiry 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.
SEC. 3. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.