Amended in Senate April 18, 2013

Amended in Senate April 8, 2013

Senate Bill No. 388

Introduced by Senator Lieu

February 20, 2013

An act to amend Sections 3253 and 3303 of the Government Code, relating to public employment.

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 and the Firefighters Procedural Bill of Rights Act grant certain rights to public safety officers and firefighters, as defined. The 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.

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This bill would also state the intent of the Legislature that this measure not be construed to alter specified provisions limiting the right of a public safety officer or firefighter to be represented by a representative of his or her choice.

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By adding to the duties of local agencies to comply with begin insert the Public Safety Officers Procedural Bill of Rights Act and end insert 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: yes. State-mandated local program: yes.

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

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begin insert SECTION 1. end insert   

end insert

begin insert It is the intent of the Legislature that this measure
not be construed to alter any limitations on the rights of
representation contained in subdivision (i) of Section 3253 of the
Government Code or subdivision (i) of Section 3303 of the
Government Code. end insert

begin delete SECTION 1. end delete
begin insert SEC. 2. end insert   

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
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 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 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 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 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 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 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.

begin delete SEC. 2. end delete
begin insert SEC. 3. end insert   

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) 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.

begin delete SEC. 3. end delete
begin insert SEC. 4. end insert   

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.