BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
SB 388 (Lieu) - Public safety officers and firefighters:
investigations and interrogations.
Amended: January 17, 2014 Policy Vote: Public Safety 6-0
Urgency: No Mandate: Yes
Hearing Date: January 21, 2014
Consultant: Jolie Onodera
This bill meets the criteria for referral to the Suspense File.
Bill Summary: SB 388 would specify that a firefighter or peace
officer witness may have a representative present when
questioned by his or her employer regarding the investigation of
another firefighter or peace officer, if that interview may lead
to disciplinary action against the witness, as specified.
Fiscal Impact: Potentially significant state-reimbursable costs
(General Fund) for increased expenditures incurred under the
existing FPOR and POBOR statutes to the extent a higher number
of formal interrogations and associated activities are provided
to firefighter and peace officer witnesses as a result of this
measure. While the proportion of mandated costs specific to
interrogation activities is unknown, the magnitude of historical
POBOR mandate reimbursement claims have been in the range of
$6.3 million to $15.7 million. In 2000, the Commission State
Mandates (COSM) authorized reimbursement for specified
interrogation activities specified in POBOR of peace officers
under direct investigation, as well as of officers who become a
witness to an incident under investigation, as specified.
Background: Existing law establishes the Firefighters Procedural
Bill of Rights Act (FPOR) that governs the procedures for the
investigation and interrogation of a firefighter for alleged
misconduct (Government Code (GC) § 3250, et seq). FPOR
specifically provides that the interrogation of a firefighter,
who is the subject of an investigation that could lead to
punitive action, by his or her commanding officer, or any other
member designated by the employing department or licensing or
certifying agency, must be conducted in accordance with GC §
3253. One of the protections afforded in GC 3253 is the ability
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to have a representative present at the interrogation (GC §
3253(i)).
Existing law establishes Public Safety Officers Procedural Bill
of Rights Act (POBOR) that controls how the investigation and
interrogation of a public safety officer for alleged misconduct
occurs (GC § 3300, et seq). POBOR provides that the
interrogation of a peace officer, who is the subject of an
investigation that could lead to punitive action, by his or her
employer, must be conducted in accordance with GC § 3303. One of
the protections afforded in GC § 3303 is the ability to have a
representative present at the interrogation (GC § 3303(i)).
This bill seeks to clarify that witness peace officers and
firefighters cannot be denied the right of representation under
POBOR and FPOR.
Proposed Law: This bill amends both FPOR and POBOR to specify
that a firefighter or peace officer may have a representative of
his or her choice present when questioned by his or her employer
regarding the investigation of another firefighter or peace
officer, as follows:
For a firefighter, if that interrogation focuses on
matters that may result in punitive action against the
firefighter.
For a peace officer, if that interrogation focuses on
matters that are likely to result in punitive action
against the officer.
The firefighter or peace officer may choose a representative who
is reasonably available to represent the firefighter or peace
officer at an interrogation that has been reasonably scheduled.
The representative cannot be a person subject to the same
interrogation. Additionally, the representative would be able to
be present at all times during the interrogation and could not
be required to disclose information received from the peace
officer or firefighter being interrogated, as specified.
.
Prior Legislation: SB 313 (de León) Chapter 779/2013 prohibits a
public agency from taking punitive action, or denying promotion
on grounds other than merit, against a public safety officer,
because the officer's name was placed on a Brady list, as
specified.
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AB 2543 (Alejo) 2012 would have prohibited a public agency from
taking punitive action, or denying promotion on grounds other
than merit, against a public safety officer, because the
officer's name was placed on a Brady list, or that the officer's
name may otherwise be subject to disclosure pursuant to Brady v.
Maryland , as specified. This bill failed passage in Senate
Public Safety.
SB 638 (de León) 2011 would have prohibited a public agency from
taking punitive action, or denying promotion on grounds other
than merit, against a public safety officer, because the
officer's name was placed on a Brady list, as specified. This
bill died in Senate Public Safety.
AB 220 (Bass) Chapter 591/2007 created the Firefighters
Procedural Bill of Rights (FPOR). FPOR provides firefighters,
paramedics, and emergency medical technicians with rights that
are virtually identical to the rights provided to peace officers
in POBOR. Like POBOR, FPOR establishes rules governing the
interrogation of an employee who is under investigation.
Staff Comments: In 1999, the Commission on State Mandates (COSM)
approved the test claim for POBOR, finding that certain
procedural requirements under POBOR exceeded the requirements of
existing state and federal law. On July 27, 2000, the COSM
adopted parameters and guidelines (Ps&Gs) authorizing
reimbursement beginning July 1, 1994, to counties, cities,
school districts, and special districts that employ peace
officers for various ongoing activities, including but not
limited to when a peace officer is under investigation and is
subjected to an interrogation by the employer that could lead to
disciplinary action.
Staff notes the COSM determined that POBOR rights under GC §
3303, which address investigations and interrogations, do attach
when a peace officer is interrogated as a witness to an incident
since the officer's own actions regarding the incident can
result in punitive action. As such the Ps&Gs include the
following paragraph:
"Claimants are eligible for reimbursement for the
performance of the activities listed in this section
only when a peace officer is under investigation, or
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becomes a witness to an incident under investigation ,
and is subjected to an interrogation by the
commanding officer, or any other member of the
employing public safety department, that could lead
to dismissal, demotion, suspension, reduction in
salary, written reprimand, or transfer for purposes
of punishment. (Gov. Code, § 3303.)"
The Ps&Gs authorized reimbursement for the following activities
related to interrogations:
Compensating the peace officer for interrogations
occurring during off-duty time in accordance with regular
department procedures.
Providing prior notice to the peace officer regarding
the nature of the interrogation and identification of the
investigating officers.
Tape recording the interrogation when the peace officer
employee records the interrogation. Included in the
foregoing is the cost of tape and storage, and the cost of
transcription.
Providing the peace officer employee with access to the
tape prior to any further interrogation at a subsequent
time, or if any further proceedings are contemplated and
the further proceedings fall within specified categories.
Included in the foregoing is the cost of tape copying.
Producing transcribed copies of any notes made by a
stenographer at an interrogation, and copies of reports or
complaints made by investigators or other persons, except
those that are deemed confidential, when requested by the
officer, as specified.
While the provisions of this bill do not appear to expand the
activities currently eligible for reimbursement by the state
under POBOR, the potential number of formal interrogations of
public safety officers covered under the existing POBOR statutes
could increase as a result of this statutory clarification, and
by extension, increase reimbursable costs. The potential impact
is significant given the POBOR mandate claims submitted to date.
The proportion of mandated costs specific to interrogation
activities is unknown, but given the magnitude of historical
POBOR mandate reimbursement claims of $6.3 million to $15.7
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million, potential costs could be significant.
The COSM has indicated no test file has been claimed on FPOR to
date. To the extent local firefighting agencies would be
considered eligible claimants under Article XIIIB, Section 6 of
the Constitution, all FPOR costs associated with this measure
could potentially be reimbursable by the state.