BILL ANALYSIS Ó
AB 651
Page 1
Date of Hearing: April 14, 2015
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
651 (Cooper) - As Amended April 9, 2015
SUMMARY: Allows a peace officer or firefighter to have a
representative present when questioned by his or her employer
regarding the investigation of another peace officer or
firefighter, if that interview may result in punitive action
against the officer who is not formally under investigation,
when representation is mutually agreed upon, as specified.
Specifically, this bill:
1)Provides that if an investigation focuses on matters that may
result in punitive action against a public safety officer or
firefighter who is not formally under investigation but is
interviewed regarding the investigation of another public
safety officer or firefighter, the public safety officer or
firefighter may have representation in the interview when the
representation has been mutually agreed upon.
2)Allows the public safety officer or firefighter to choose a
representative who is reasonably available to represent the
public safety officer or firefighter at an interrogation that
has been reasonably scheduled and the representative shall be
permitted to be present at all times during the interview.
3) Provides that the representative shall not to be a person
subject to the same investigation and that the representative
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cannot be required to disclose, or be subject to punitive
action for refusing to disclose, any information received from
the public safety officer or firefighter being interviewed as
part of the investigation for noncriminal matters.
4)States that the above provisions shall not be construed to
impair any right or privilege established pursuant to a
memorandum of understanding between a public agency and a
recognized bargaining unit or pursuant to an action by a
governing body or by mutual agreement between the governing
body and recognized bargaining unit, or limit the ability of
the parties to negotiate an agreement to a higher standard of
rights or privileges.
EXISTING LAW:
1)Establishes the Firefighters Procedural Bill of Rights (FBOR),
which provides procedural guarantees to firefighters, who
include, but are not limited to, any firefighter who is a
paramedic or emergency medical technician, under
investigation. (Gov. Code, § 3250 et seq.)
2)Establishes the Public Safety Officers Procedural Bill of
Rights (POBOR), which provides procedural guarantees to public
safety officers, as defined, under investigation. (Gov. Code,
§ 3300 et seq.)
3)States that, for purposes of FBOR and POBOR, "punitive action"
means any action that may lead to dismissal, demotion,
suspension, reduction in salary, written reprimand, or
transfer for purposes of punishment. (Gov. Code, §§ 3251,
subd. (c), & 3303.)
4)Provides that when any firefighter or public safety officer is
under investigation and subjected to interrogation by his or
her commanding officer, or any other member of the employing
department, that could lead to punitive action, the
interrogation is to be conducted under certain conditions,
including those described directly below, except as specified.
(Gov. Code, §§ 3251 & 3303.)
5)States that upon the filing of a formal written statement of
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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. Provides
that the representative is not to be a person subject to the
same investigation and that the representative cannot be
required to disclose, or be subject to punitive action for
refusing to disclose, any information received from the
firefighter under investigation for noncriminal matters.
(Gov. Code, § 3253, subd. (i).)
6)States that 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. Provides that the representative is not to be
a person subject to the same investigation and that the
representative cannot be required to disclose, or be subject
to punitive action for refusing to disclose, any information
received from the officer under investigation for noncriminal
matters. (Gov. Code, § 3303, subd. (i).)
7)Provides that POBOR interrogation rights do not apply to any
interrogation of an 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 to an investigation
concerned solely and directly with alleged criminal
activities. (Gov. Code, § 3303, subd. (i).)
8)States that no public safety officer shall be subjected to
punitive action, or denied promotion, or be threatened with
any such treatment, because of the lawful exercise of the
rights granted under POBOR, or the exercise of any rights
under any existing administrative grievance procedure. (Gov.
Code, § 3304, subd. (a).)
9)States that nothing in the provision above is to prevent a
head of an agency from ordering a public safety officer to
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cooperate with other agencies involved in criminal
investigations. Allows the agency to officially charge an
officer with insubordination if he or she fails to comply with
such an order. (Gov. Code, § 3304, subd. (a).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 651 seeks to
clarify the permissibility of agencies to witnesses being
interrogated in internal affairs investigations. It also
seeks to clarify that the right of witness representation can
also be mutually agreed upon by a city or county and a
recognized employee bargaining unit."
2)Background : POBOR was enacted in 1976 and provided law
enforcement officers with a variety of procedural protections.
The courts have summarized POBOR as follows:
[T]he Act: (1) secures to public safety officers the
right to engage in political activity, when off duty
and out of uniform, and to seek election to or serve
as a member of the governing board of a school
district; (2) prescribes certain protections which
must be afforded officers during interrogations which
could lead to punitive action; (3) gives the right to
review and respond in writing to adverse comments
entered in an officer's personnel file; (4) provides
that officers may not be compelled to submit to
polygraph examinations; (5) prohibits searches of
officers' personal storage spaces or lockers except
under specified circumstances; (7) gives officers the
right to administrative appeal when any punitive
action is taken against them, or they are denied
promotion on grounds other than merit; and (8)
protects officers against retaliation for the exercise
of any right conferred by the Act. (Binkley v. City
of Long Beach (1993) 16 Cal.App.4th 1795, 1805, fn. 5
[internal citations omitted].)
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While the purpose of POBOR is to maintain stable
employer-employee relations and thereby assure effective law
enforcement, it also seeks to balance the competing interests
of fair treatment to officers with the need for swift internal
investigations to maintain public confidence in law
enforcement agencies. (Pasadena Police Officers Assn. v. City
of Pasadena (1990) 51 Cal.3d 564.)
AB 220 (Bass), Chapter 591, Statutes of 2007, created FPOR.
FPOR provides firefighters, paramedics and emergency medical
technicians with rights that are analogous to the rights
provided to public safety officers under POBOR. Like POBOR,
FPOR establishes rules governing the interrogation of an
employee who is under investigation.
3)Governor's Veto of SB 388 (Lieu): SB 388 (Lieu) of the
2013-14 Legislative Session was similar to this bill, but gave
the officer being interviewed the right to representation. SB
388 was vetoed by the Governor. Governor Brown in his veto
message stated, "This bill would allow peace officers and
firefighters who have witnessed an alleged misconduct incident
to have a representative present during questioning if there
is a chance the witness could be the subject of punitive
action.
"The need for this bill is unclear. Under current law, as soon
as an employer learns during an interview that the witness is
subject to punitive action, questioning must stop until a
representative is provided if requested by the employee. If
this doesn't happen any information obtained can be excluded
at trial."
4)Argument in Support: The Sacramento Deputy Sheriffs'
Association states, "This bill seeks to clarify and ensure
procedural due process for peace officers and firefighters
during investigations, including that witness peace officers
or firefighters are entitled to the right of representation
consistent with Public Safety Officers Procedural Bill of
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Rights (POBOR) and the Firefighters Procedural Bill of Rights
(FPBOR).
"The right to representation is a foundational right in POBOR
and FPBOR. In many departments, peace officers and
firefighters are routinely allowed representation when being
questioned as a witness under the existing provisions of POBOR
and FPBOR.
"Unfortunately, some departments have recently interpreted
Government Code Sections 3253 and 3303 in a manner to deny
peace officer and firefighter representation requests. This
new interpretation has not only led to reduced rights, but has
also created unnecessary and costly litigation.
"As a retired police captain, we applaud your sense of fairness
and your willingness provide a mechanism for those without
this protection to achieve it. The permissive language in
this bill is not ideal from our perspective. However, we
recognize it to be a rational, deliberative compromise that
protects local control and management's authority.
"AB 651 will simply provide an opportunity for peace officers
and firefighters to secure witness representation in areas
where it is currently unavailable. AB 651 is not a mandate,
but would require future action by a local agency or adoption
via the collective bargaining process to become effective."
5)Argument in Opposition: The California State Sheriffs'
Association argues, "The Public Safety Officers Procedural
Bill of Rights balances the public interest in maintaining the
efficiency and integrity of a law enforcement agency with a
peace officer's interest in receiving fair treatment. As such,
it requires certain protections when an officer faces a formal
investigation into matters that are likely to result in
punitive action by an employer. "Even if not criminal in
nature, acts of a police officer that tend to impair the
public's trust in its police department can be harmful to the
department's efficiency and morale. Thus, when allegations of
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officer misconduct are raised, it is essential that the
department conduct a prompt, thorough, and fair
investigation." (Pasadena Police Officers Assn. v. City of
Pasadena (1990) 51 Cal.3d 564, 568.)
"This measure is similar to last year's Senate Bill 388 (Lieu),
which was vetoed by the Governor. We appreciate the fact that
this bill permits rather than mandates representation for
"witness officers." However, we must remain opposed. Although
permissive, we believe this measure will ultimately interfere
with a law enforcement agency's ability to discipline officers
for engaging in job-related misconduct. Discouraging officers
from cooperating in investigations by encouraging
representation during any questioning that may involve officer
discipline will chill investigations and result in the
retention of officers that have engaged in noncriminal
misconduct."
6)Prior Legislation: SB 388 (Lieu) of the 2013-14 Legislative
Session was similar to this bill, but gave the public safety
officer the right to representation, whereas, this bill make
representation discretionary. SB 388, also, included
firefighters. SB 388 was vetoed by the Governor.
REGISTERED SUPPORT / OPPOSITION:
Support
Sacramento County Deputy Sheriffs' Association (Co-sponsor)
Los Angeles County Professional Peace Officers Association
Long Beach Police Officers Association
Fraternal Order of Police, California State Lodge
Santa Ana Police Officers Association
Opposition
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California State Association of Counties
California State Sheriff's Association
League of California Cities
California Association of Joint Powers Authority
LIUNA Locals 777 & 792
Analysis Prepared
by: Gregory Pagan / PUB. S. / (916) 319-3744