BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 388 (Lieu)
As Amended April 18, 2013
Hearing date: April 30, 2013
Government Code
SM:mc
PEACE OFFICERS AND FIREFIGHTERS
HISTORY
Source: Peace Officer Research Association of California; Los
Angeles Police Protective League; California
Professional Firefighters
Prior Legislation: SB 313 (De Le�n) - pending in Senate
Appropriations
AB 2543 (Alejo) - failed passage in Senate Public
Safety, 2012
SB 638 (De Le�n) - died in Senate Public Safety,
2011
AB 220 (Bass) - Ch. 591, Stats of 2007
AB 1873 (Koretz) - Ch. 63, Stats. 2002
AB 2040 (Diaz) - Ch. 391, Stats. 2002
AB 2559 (Cardoza) - Ch. 971, Stats. 2000
AB 1016 (Hertzberg) - Ch. 25, Stats. 1998
AB 3434 (House) - Ch. 1108, Stats. 1996
Support: Association for Los Angeles Deputy Sheriffs;
Association of Orange County Deputy Sheriffs;
California Correctional Supervisors Organization;
California Fraternal Order of Police; Fontana Police
Officers Association; Los Angeles County Probation
Officers Union; Los Angeles County Professional Peace
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Officers Association; Long Beach Police Officers
Association; Riverside Sheriffs Association; Sacramento
Deputy Sheriffs Association; Santa Ana Police Officers
Association; State Coalition of Probation
Organizations; Southern California Association of Law
Enforcement; California Correctional Peace Officers
Association; California Association of Highway
Patrolmen
Opposition:California Police Chiefs Association; California
State Association of Counties; California State
Sheriffs' Association; Chief Probation Officers of
California; Emergency Medical Services Administrators
Association; Marin County Council of Mayors and
Councilmembers; Emergency Medical Directors Association
of California; Los Angeles County Board of Supervisors
KEY ISSUES
SHOULD THE PROCEDURAL PROTECTIONS UNDER THE FIREFIGHTERS PROCEDURAL
BILL OF RIGHTS AND THE PEACE OFFICERS PROCEDURAL BILL OF RIGHTS THAT
NOW APPLY TO A FIREFIGHTER OR PEACE OFFICER WHO IS UNDER
INVESTIGATION AND SUBJECTED TO INTERROGATION BY THEIR EMPLOYER BE
EXTENDED TO APPLY TO ANY FIREFIGHTER OR PEACE OFFICER, WHETHER OR
NOT THEY ARE UNDER INVESTIGATION?
SHOULD THE RIGHT BE EXTENDED TO PEACE OFFICERS TO HAVE A
REPRESENTATIVE OF THEIR CHOICE PRESENT WHEN QUESTIONED BY THEIR
EMPLOYER IN CASES THAT MIGHT LEAD TO DISCIPLINARY ACTION, NOT JUST
THOSE THAT ARE LIKELY TO LEAD TO DISCIPLINARY ACTION?
SHOULD UNCODIFIED LEGISLATIVE INTENT LANGUAGE BE APPROVED STATING
THAT THIS MEASURE "NOT BE CONSTRUED TO ALTER ANY LIMITATIONS ON THE
RIGHTS OF REPRESENTATION" CONTAINED IN THOSE GOVERNMENT CODE
SECTIONS IT AMENDS?
PURPOSE
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The purpose of this bill is to (1) extend the procedural
protections under the Firefighters Procedural Bill of Rights and
the Peace Officers Procedural Bill of Rights that now apply to a
firefighter or peace officer who is under investigation and
subjected to interrogation by their employer to apply to any
firefighter or peace officer, whether or not they are under
investigation; (2) extend to peace officers the right to have a
representative of their choice present when questioned by their
employer in cases that might lead to disciplinary action, not
just those that are likely to lead to disciplinary action; and
(3) state in uncodified legislative intent language that this
measure "not be construed to alter any limitations on the rights
of representation" contained in those Government Code sections
it amends.
Current law provides that when any firefighter is under
investigation and subjected to interrogation by his or her
commanding officer, or any other member 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:
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.
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
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shall be asked by and through no more than two
interrogators at one time.
The firefighter under investigation shall be informed of
the nature of the investigation prior to any interrogation.
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:
o 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 or interrogation may result in punitive
action.
o 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.
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:
o This subdivision shall not limit the use of
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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.
o 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.
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.
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.
Upon the filing of a formal written statement of
charges, or whenever an interrogation 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
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subject to the same investigation. 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 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.
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. (Government
Code � 3253.)
Current law generally governs law enforcement agencies
conducting internal affairs investigations of peace officers.
(Gov. Code �� 3300-3313.) This is known as the Public Safety
Officers Procedural Bill of Rights Act and provides peace
officers with several procedural rights in these investigations.
Some of those procedural rights include:
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 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.
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
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investigation 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.
The public safety officer under investigation 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.
The public safety officer under investigation shall be
informed of the nature of the investigation prior to any
interrogation.
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.
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
investigation 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.
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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:
o 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.
o 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.
o 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.
o This subdivision shall not otherwise prevent
the admissibility of statements made by a public
safety officer under interrogation if that officer
subsequently is deceased.
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
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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.
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.
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, 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 investigation. 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 under
investigation 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 investigation concerned solely and
directly with alleged criminal activities.
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. (Government Code �
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3303.)
This bill would extend the procedural protections under the
Firefighters Procedural Bill of Rights and the Peace Officers
Procedural Bill of Rights that now apply to a firefighter or
peace officer who is under investigation and subjected to
interrogation by their employer to apply to any firefighter or
peace officer, whether or not they are under investigation.
This bill would extend to peace officers the right to have a
representative of their choice present when questioned by their
employer in cases that might lead to disciplinary action, not
just those that are likely to lead to disciplinary action.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
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In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
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whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
In many departments, peace officers and firefighters
are routinely allowed representation when being
questioned as a witness under the existing provisions
of PBOR and FBOR. Unfortunately, some departments
have started interpreting Government Code Sections
3253 and 3303 as a way to deny peace officer and
firefighter representation requests. This new
interpretation has not only led to reduced rights, but
also unnecessary and costly litigation.
Senate Bill 388 would clarify that witness peace
officers or firefighters cannot be denied the right of
representation under the Peace Officer's Bill of
Rights or the Firefighter's Bill of Rights.
2. Effect of This Bill
AB 220 (Bass), Chaper 591, Statutes of 2007, created the
Firefighters Procedural Bill of Rights Act (FPBR) establishing
various rights of firefighters, paramedics and emergency medical
technicians, as specified, with regard to political activity,
interrogation, punitive action, and administrative appeals.
FPBR confers upon firefighters protections that are very similar
to those afforded to peace officers under POBOR, a measure
enacted in 1976. These include the right to be represented by a
representative of the firefighter or peace officers choice
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during interrogations when a formal written charge is brought
against the firefighter or peace officer. (Government Code ��
3253(i) and 3303(i).) Additionally, the right to have a
representative present during interrogation applies, in the case
of firefighters, whenever an interrogation focuses on matters
that may result in punitive action against that firefighter.
(Government Code � 3253(i).) In the case of peace officers, the
right to have a representative present during interrogation also
applies whenever an interrogation focuses on matters that are
likely to result in punitive action against the officer.
(Government Code � 3303(i).)
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This bill would extend to peace officers the right to have a
representative of their choice present when questioned by their
employer in cases that might lead to disciplinary action, not
just those that are likely to lead to disciplinary action.
This bill would also extend those protections to any firefighter
or peace officer subjected to interrogation by their employer,
whether or not they are the subject of any investigation .
Supporters of the bill state that it is intended to address
situations where management question an officer ostensibly as a
witness in an investigation, and therefore not entitled to have
a representative present during the questioning, only to later
decide the officer is a suspect of the investigation. Had the
officer been told he or she was a subject of the investigation,
the officer would have been entitled to have a representative
present during questioning by management. Since "interrogation"
could be interpreted to mean any questioning by the employer,
taken together, these provisions appear to give any peace
officer or firefighter the right to have a representative
present in any situation in which management asks them anything
that might lead to disciplinary action. This could be
interpreted quite broadly to mean any questioning by management
about anything related to the employee's job performance.
3. Legislative Intent Language
The author has recently amended the bill to include the
following legislative intent language:
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.
This language is very confusing because the effect of the bill
is to amend the very sections referred to in the intent language
so as to expand the right to representation by employees when
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questioned by their employers regarding matters that might lead
to disciplinary action. Therefore the intent language seems
directly at odds with the operative language of the bill.
4. Statement in Support
The California Correctional Peace Officer Association states:
Sometimes it is unclear if an officer is a witness or
a subject of an investigation. In such cases,
management sometimes interviews the officer as a
witness, only to later within the process switch to an
interrogation and decides that the officer is a
subject. SB 388 will ensure that all witnesses are
provided the protections of POBOR. The measure
eliminates ambiguity at the beginning of the process,
and avoids disputes over whether the designation of
the officer as a witness was an attempt to skirt
POBOR.
5. Statement in Opposition
The California State Association of Counties state:
SB 388 makes any casual inquiry into the duty of a
peace officer or firefighter subject to the complex
processes of the Public Safety Officers and
Firefighters Procedural Bill of Rights Acts (Acts) and
will make supervising the work of those individuals
unmanageable.
The Acts afford public safety officers and
firefighters with procedural rights that must be
accorded to an officer when he or she is subject to
investigation or discipline, including the right to
have a representative available during questioning
about the investigation.
By changing investigation to inquiry, SB 388 will
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expand the right to representation to officers and
firefighters in more situations and at unpredictable
points in the course of an individual's duty. This
expansion of rights will interfere with the ability
for management authorities to effectively manage their
workforce and ensure public safety. Simple inquiries
about the completion of a report in the field could
result in delays as managers wait for officers or
firefighters who have exercised their rights under the
Acts. Meanwhile, without timely reports the work of
public safety officials cannot be pursued. Inquiry
can be ongoing; good managers are always inquiring
into the work of their subordinates. It is at the
point that an inquiry becomes an investigation when
right of the Acts should attach, and no sooner.
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