BILL ANALYSIS
SB 1032
Page 1
Date of Hearing: June 22, 2010
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1032 (Wright) - As Introduced: April 27, 2010
SUMMARY : Provides that the enforcement provisions of the Peace
Officer Bill of Rights (POBOR) that make it unlawful for any
public safety department to deny any public safety officer the
rights and protections guaranteed to him or her concerning
interrogations and investigations apply to the Office of the
Inspector General (OIG).
EXISTING LAW :
1)Creates the independent OIG which shall not be a subdivision
of any other governmental entity. The Governor shall appoint
subject, to confirmation by the Senate, the IG to a six-year
term. The Inspector General (IG) shall not be removed from
office during that term, except for good cause. (Penal Code
Section 6125.)
2)Provides that the IG shall review departmental policy and
procedure, conduct audits of investigatory practices and other
audits, be responsible for contemporaneous oversight of
internal affairs investigations and the disciplinary process,
and conduct investigations of the California Department of
Corrections (CDCR), as requested by the Secretary of CDCR or a
Member of the Legislature, pursuant to approval by the IG
under policies to be developed by the IG. [Penal Code Section
6126(a)(1).]
3)Authorizes the IG to require any employee of CDCR to be
interviewed on a confidential basis. Any employee requested
to be interviewed shall comply and shall have time afforded by
the appointing authority for the purpose of an interview with
the IG or his or her designee. It is not the purpose of these
communications to address disciplinary actions and grievance
procedures that may routinely occur. If it appears that the
facts of the case could lead to punitive action, the IG shall
be subject to POBOR. [Penal Code Section 6126.5(d).]
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4)Establishes the POBOR. (Government Code Section 3300.)
5)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. [Government Code
Section 3304(a).]
6)Provides no punitive action nor denial of promotion on grounds
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.
[Government Code Section 3304(b).]
7)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 therefore 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.
[Government Code Section 3304(c).]
8)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
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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
[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
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.
9)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.
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[Government Code Section 3304(e).]
10)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. [Government Code Section
3304(f).]
11)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
[Government Code Section 3304(g)]:
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.
12)States that the Legislature hereby finds and declares that
the rights and protections provided to peace officers under
this the POBOR 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 California,
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. (Government Code Section
3301.)
13)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
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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 (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
accordance with regular department procedures, and the
public safety officer shall not be released from employment
for any work missed. [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. [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. [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. [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
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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.
[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
civil proceeding. This subdivision is subject to the
following qualifications [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. [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. [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. [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. [Government Code Section 3303(f)(4).]
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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
his or her own recording device and record any and all
aspects of the interrogation. [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.
[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. [Government
Code Section 3303(i).]
j) Provides that no public safety officer shall be loaned
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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 Section 3303(j).]
14)Provides that it shall be unlawful for any public safety
department to deny or refuse any public safety officer the
rights and protections guaranteed to him or her by POBOR, and
establishes jurisdiction for any claimed violation in the
Superior Court, and provide a variety of civil remedies a
court may grant to address any violation. (Government Code
Section 3309.5.)
FISCAL EFFECT : Unknown
COMMENTS : According to the author, "This bill corrects a flaw
in the original legislation creating the OIG. In the original
legislation, POBOR was referenced requiring the OIG to follow
the provisions of POBOR. The original drafters, however, left
off the enforcement section of POBOR rendering the requirement
of the OIG to comply with POBOR meaningless without any penalty
for failure to follow the law. In a recent court case, the
judge noted that while the OIG to comply with POBOR, because the
penalty section was omitted there was no legal remedy for the
violation. The court further indicated that the OIG should have
followed POBOR."
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
None
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744