BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 651 Hearing Date: June 21, 2016
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|Author: |Cooper |
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|Version: |May 31, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Public Safety Officers and Firefighters:
Investigations and Interviews
HISTORY
Source: Sacramento County Deputy Sheriff's Association; Los
Angeles County Professional Peace Officers
Association; California State Lodge, Fraternal Order
of Police
Prior Legislation:SB 388 (Lieu)-vetoed, 2014
SB 313 (De León) - Ch. 779, Stats. 2013
AB 2543 (Alejo) - failed passage in Senate Public
Safety, 2012
SB 638 (De León) - died in Senate Public Safety,
2011
AB 220 (Bass) - Ch. 591, Stats 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: AFSCME, Local 685; Association for Los Angeles Deputy
Sheriffs; California Association of Highway Patrolmen;
CAL FIRE Local 2881; LIUNA Locals 777 & 792; Long
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Beach Police Officers Association; Los Angeles Police
Protective League; Los Angeles County Probation
Officers' Union; Orange County Deputy Sheriffs; Orange
County Professional Firefighters Association, Local
3631; Riverside Sheriffs Association; Santa Ana Police
Officers Association
Opposition:American Civil Liberties Union; California
Association of Joint Power Authorities; California
Police Chiefs Association; California State
Association of Counties; California State Sheriffs'
Association; Chief Probation Officers of California
Rural County Representatives of California; Emergency
Medical Services Administrators Association; League of
California Cities
Assembly Floor Vote: 70 - 3
PURPOSE
The purpose of this bill is to allow a firefighter or peace
officer witness to have a representative present when questioned
by their employer regarding the investigation of another peace
officer of firefighter, if that interview may lead to
disciplinary action against the witness, as specified.
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 § 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
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Government Code section 3253. One of the protections afforded
in Government Code section 3253 is the ability to have a
representative present at the interrogation. (Government Code §
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. (Government Code § 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 Government Code
section 3303. One of the protections afforded in Government
Code section 3303 is the ability to have a representative
present at the interrogation. (Government Code § 3303(i).)
This bill amends both FPOR and POBOR to provide a firefighter or
peace officer, in an investigation on matters that may result in
punitive action against a firefighter or peace officer, who is
not formally under investigation but is interviewed as a witness
regarding an investigation, the right to representation in the
interview at the time that the witness has reasonable cause to
believe that the interrogation may result in punitive action
against him or her. The firefighter or peace officer may choose
a representative who is reasonably available to represent the
firefighter at an interview that has been reasonably scheduled
and the representative shall be permitted to be present at all
during the interview. The representative shall not be a person
subject to the same investigation. The representative shall not
be required to disclose, or be subject to punitive action for
refusing to disclose, any information received from the
firefighter being interviewed as part of the investigation for
noncriminal matters.
This bill provides that if a firefighter or peace officer
requests representation in an interview and the request is
denied, statements taken during the interview after the request
is made shall not be used against the firefighter in a
disciplinary proceeding and shall not be used in determining or
imposing a punitive action against the firefighter.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
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legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
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therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for Legislation
According to the author:
Current law under the Police Officer's Bill of Rights
(POBR) does not specify that a witness can have
representation present in an internal affairs investigation
interrogation. However, some agencies do voluntarily allow
for the representation of witnesses during an internal
affairs interrogation and some do not.
AB 651 seeks to clarify and continue the current practice
of agencies who wish to allow, or will allow in the future,
witness representation. It also seeks to clarify that the
rights of cities or counties to adopt measures or
ordinances formalizing and making witness representation a
right, or formalizing witness representation through the
collective bargaining process is allowable.
2.Effect of the Legislation
This bill would give a peace officer or firefighter witness the
right to have a representative present when being interviewed
about a co-worker's misconduct, if that interview may lead to
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punitive action against the witness officer. The bill further
provides that if a firefighter or peace officer request
representation in an interview and the request is denied,
statements taken during the interview after the request is made
cannot be used against the firefighter in a disciplinary
proceeding and shall not be used in determining or imposing a
punitive action against the firefighter.
The POBOR was enacted in 1976 and provided law enforcement
officers with a variety of procedural protections. Binkley v.
City of Long Beach (1993) 16 Cal.App.4th 1795, explains that:
[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.
[Citations omitted.]
POBOR outlines specific rules that an employer has to follow
when conducting an interrogation of an employee who is under
investigation. Government Code section 3203(i) requires that an
officer have the opportunity to have a representative, of his or
her choice, at an interrogation if:
1. The officer is under investigation for misconduct;
and
2. The interrogation focuses on matters that "are
likely to result in punitive action."
AB 220 (Bass), Chapter 591, Statutes of 2007, created FPOR.
FPOR provides firefighters, paramedics and emergency medical
technicians with rights that are virtually identical to the
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rights provided to peace officers in POBOR. Like POBOR, FPOR
establishes rules governing the interrogation of an employee who
is under investigation.
Government Code section 3953(i) requires that a firefighter have
the opportunity to have a representative, of his or her choice,
at an interrogation if:
1. The firefighter is under investigation for
misconduct, and
2. The interrogation focuses on matters that "may
result in punitive action."
AB 651 would expand the right to have a representative to peace
officer and firefighter witnesses being interviewed about a
co-worker's misconduct, if that interview may result in punitive
action against the witness.
3. Senate Bill 388 Veto Message
This bill is substantially similar to SB 388 (2014). The
Governor vetoed that bill stating:
I am returning Senate Bill 388 without my signature.
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 that the witness could become 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
According to the Long Beach Police Officers Association:
This bill seeks to clarify and ensure procedural due process
for peace officers and firefighters during investigations,
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including that witness peace officers or firefighters are
entitled to the right of representation consistent with Public
Safety Officers Procedural Bill of 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
According to the California State Sheriffs' Association:
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
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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
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 believe this measure
could ultimately interfere with a law enforcement agency's
ability to discipline officers for engaging in job-related
misconduct. We are further concerned that this bill will
unnecessarily prolong investigations and result in increased
agency costs. Discouraging officers from cooperating in
investigations by encouraging representation during any
questioning that may involve officer discipline could chill
investigations and result in the retention of officers that
have engaged in noncriminal misconduct.
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