BILL ANALYSIS
AB 955
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Date of Hearing: April 21, 2009
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 955 (De Leon) - As Amended: April 13, 2009
As Proposed to be Amended in Committee
SUMMARY : Specifies that discipline need not be imposed upon
peace officers within the one-year time limit placed upon the
investigation and imposition of penalty by the Public Safety
Officers Procedural Bill of Rights (POBOR). Specifically, this
bill :
1)States that agencies need not actually impose prescribed
discipline within the one-year time limit placed upon
investigations and the resolution of disciplinary actions of
peace officers by POBOR.
2)States that the officer shall be notified by a Letter of
Intent articulating the proposed discipline, or Notice of
Adverse Action within the one-year time limit imposed by
POBOR.
EXISTING LAW :
1)Establishes the POBAR. (California Government Code Section
3300.)
2)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 this chapter, or the exercise of any
rights under any existing administrative grievance procedure.
Nothing in this section shall preclude a head of an agency
from ordering a public safety officer to cooperate with other
agencies involved in criminal investigations. If an officer
fails to comply with such an order, the agency may officially
charge him or her with insubordination. [California
Government Code Section 3304(a).]
3)Provides no punitive action nor denial of promotion on grounds
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other than merit shall be undertaken by any public agency
against any public safety officer who has successfully
completed the probationary period that may be required by his
or her employing agency without providing the public safety
officer with an opportunity for administrative appeal.
[California Government Code Section 3304(b).]
4)States no chief of police may be removed by a public agency,
or appointing authority, without providing the chief of police
with written notice and the reason or reasons therefor and an
opportunity for administrative appeal. For purposes of this
subdivision, the removal of a chief of police by a public
agency or appointing authority, for the purpose of
implementing the goals or policies, or both, of the public
agency or appointing authority, for reasons including, but not
limited to, incompatibility of management styles or as a
result of a change in administration, shall be sufficient to
constitute "reason or reasons." Nothing in this subdivision
shall be construed to create a property interest, where one
does not exist by rule or law, in the job of Chief of Police.
[California Government Code Section 3304(c).]
5)Except as specified, no punitive action, nor denial of
promotion on grounds other than merit, shall be undertaken for
any act, omission, or other allegation of misconduct if the
investigation of the allegation is not completed within one
year of the public agency's discovery by a person authorized
to initiate an investigation of the allegation of an act,
omission, or other misconduct. This one-year limitation
period shall apply only if the act, omission, or other
misconduct occurred on or after January 1, 1998. In the event
that the public agency determines that discipline may be
taken, it shall complete its investigation and notify the
public safety officer of its proposed disciplinary action
within that year, except in any of the following circumstances
[California Government Code Section 3304(d)]:
a) If the act, omission, or other allegation of misconduct
is also the subject of a criminal investigation or criminal
prosecution, the time during which the criminal
investigation or criminal prosecution is pending shall toll
the one-year time period.
b) If the public safety officer waives the one-year time
period in writing, the time period shall be tolled for the
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period of time specified in the written waiver.
c) If the investigation is a multi-jurisdictional
investigation that requires a reasonable extension for
coordination of the involved agencies.
d) If the investigation involves more than one employee and
requires a reasonable extension.
e) If the investigation involves an employee who is
incapacitated or otherwise unavailable.
f) If the investigation involves a matter in civil
litigation where the public safety officer is named as a
party defendant, the one-year time period shall be tolled
while that civil action is pending.
g) If the investigation involves a matter in criminal
litigation where the complainant is a criminal defendant,
the one-year time period shall be tolled during the period
of that defendant's criminal investigation and prosecution.
h) If the investigation involves an allegation of workers'
compensation fraud on the part of the public safety
officer.
6)Provides where a pre-disciplinary response or grievance
procedure is required or utilized, the time for this response
or procedure shall not be governed or limited by this chapter.
[California Government Code Section 3304(e).]
7)States if, after investigation and any pre-disciplinary
response or procedure, the public agency decides to impose
discipline, the public agency shall notify the public safety
officer in writing of its decision to impose discipline,
including the date that the discipline will be imposed, within
30 days of its decision, except if the public safety officer
is unavailable for discipline. [California Government Code
Section 3304(f).]
8)Specifies, notwithstanding the one-year time period specified,
an investigation may be reopened against a public safety
officer if both of the following circumstances exist
[California Government Code Section 3304(g)]:
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a) Significant new evidence has been discovered that is
likely to affect the outcome of the investigation.
b) One of the following conditions exist:
i) The evidence could not reasonably have been
discovered in the normal course of investigation without
resorting to extraordinary measures by the agency.
ii) The evidence resulted from the public safety
officer's pre-disciplinary response or procedure.
9)States that the Legislature hereby finds and declares that the
rights and protections provided to peace officers under this
the POBAR constitute a matter of statewide concern. The
Legislature further finds and declares that effective law
enforcement depends upon the maintenance of stable
employer-employee relations, between public safety employees
and their employers. In order to assure that stable relations
are continued throughout the state and to further assure that
effective services are provided to all people of the state, it
is necessary that this chapter be applicable to all public
safety officers, as defined in this section, wherever situated
within the State of California. (California Government Code
Section 3301.)
10)States that 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 (California Government
Code Section 3303):
a) Specifies that 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 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
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accordance with regular department procedures, and the
public safety officer shall not be released from employment
for any work missed. [California Government Code Section
3303(a).]
b) States that 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. [California Government Code
Section 3303(b).]
c) Provides that the public safety officer under
investigation shall be informed of the nature of the
investigation prior to any interrogation. [California
Government Code Section 3303(c).]
d) States that 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. [California
Government Code Section 3303(d).]
e) Provides that 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.
[California Government Code Section 3303(e).]
f) Specifies that no statement made during interrogation by
a public safety officer under duress, coercion, or threat
of punitive action shall be admissible in any subsequent
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civil proceeding. This subdivision is subject to the
following qualifications [California Government Code
Section 3303(f)]:
i) 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
specified disciplinary actions. [California Government
Code Section 3303(f)(1).]
ii) 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. [California
Government Code Section 3303(f)(2).]
iii) 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. [California
Government Code Section 3303(f)(3).]
iv) This subdivision shall not otherwise prevent the
admissibility of statements made by a public safety
officer under interrogation if that officer subsequently
is deceased. [California Government Code Section
3303(f)(4).]
g) States that 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
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his or her own recording device and record any and all
aspects of the interrogation. [California Government Code
Section 3303(g).]
h) Provides that 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.
[California Government Code Section 3303(h).]
i) 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. 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 non-criminal matters. Specifies that
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. [California
Government Code Section 3303(i).]
j) Provides that 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.
[California Government Code Section 3303(j).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 955 seeks to
clarify existing law to provide officers administrative
guidance and appropriate information regarding the details and
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decisions of any investigations conducted on them in a timely
manner."
2)Abrogation of the California Supreme Court Decision in Mays v.
City of Los Angeles : On April 17, 2008, the California
Supreme Court decided the case of Mays v. City of Los Angeles
(2008) 43 Cal 4th 313. In Mays, the court was asked to
determine if the one-year statute of limitations imposed for
notice in the POBOR was satisfied by notification to the
subject officer that discipline would be imposed. The Supreme
Court overturned an appellate court decision which had held
that the police department was required to inform the subject
officer of the specific proposed punishment it sought to
impose within the one year statute. The Supreme Court held
that the police department need only inform the subject
officer that it has completed the investigation and seeks to
impose some form of disciplinary action for specified conduct
within the one-year statute of limitations.
The Supreme Court interpreted Government Code Section 3304(d),
which provides a statute of limitations period specifying that
"no punitive action" may be imposed upon any public safety
officer for alleged misconduct unless the public agency
investigating the allegations "completes its investigation and
notifies the public safety officer of its proposed
disciplinary action" within one year of discovering the
alleged misconduct.
In Mays, the notice informed the officer of the proposed board
of rights adjudication not only informed the officer that
disciplinary action might be taken as the result of the
investigation into the alleged misconduct but also identified
the procedural mechanism by which the officer's punishment, if
any, would be determined. The Supreme Court ruled that this
notice was sufficient under Penal Code Section 3304.
This bill requires that the officer must be notified "by a
Letter of Intent articulating the proposed discipline, or
other document that initiates the predisciplinary response"
prior to the running of the statute of limitations. This
bill, therefore, abrogates Mays.
3)Argument in Support : According to the Peace Officer's
Research Association of California , "Government Code Section
3304(d) was placed into the statute to protect officers from
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the management practice of capriciously opening an
investigation on an officer, often times putting that officer
on administrative leave, and then dragging that investigation
out over a long period of time. These investigations would
sometimes take years to complete. It is extremely difficult
when employees are put on administrative leave for long
periods of time. Many times, management has used this
investigative tool as discipline or punishment for an employee
then did not personally care for, knowing full well that
eventually when the case goes to court, the officer would
likely be reinstated with full pay. At that point, the damage
has been done.
"On April 17, 2008, the California Supreme Court ruled in Mays
v. City of Los Angeles (43 Cal. 4th 313) that the Court of
Appeals erred in interpreting section 3304(d), requiring
notice of specific proposed punishment, and that 'although the
agency is not precluded from proposing specific discipline at
that time, it is not required by Section 3304(d) to do so.'
This means that the original intent of Government Code Section
3304(d), to limit the investigation and notice of the proposed
discipline to one year, has been completely misconstrued and,
in effect, overturned. The language in this bill would simply
clarify the original intent and restore the protection of
Government Code Section 3304(d) that was in effect prior to
this case."
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Highway
Patrolmen (Sponsor)
Association for Los Angeles Deputy Sheriffs
California Correctional Supervisors Organization
California Peace Officers' Association
California Police Chiefs Association
L.A. County Probation Officers Union
Peace Officer's Research Association of California
Riverside Sheriffs' Association
Opposition
None
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Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744