SB 388, as amended, Lieu. Public safety officers and firefighters: investigations and interrogations.
The Public Safety Officers Procedural Bill of Rights Act and the Firefighters Procedural Bill of Rights Act grant certain rights to public safety officers and firefighters, as defined. The acts require that, when any public safety officer or firefighter is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department or fire department, that could lead to punitive action, the interrogation be conducted under certain conditions, except as specified.
This bill would provide thatbegin delete the above-mentioned conditions apply when any interrogation of a public safety officer or firefighter is conducted, whether or not an investigation of that public safety officer or firefighter is being conductedend deletebegin insert
if an interrogation 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 being interviewed is entitled to representation, as specifiedend insert.
This bill would also state the intent of the Legislature that this measure not be construed to alter specified provisions limiting the right of a public safety officer or firefighter to be represented by a representative of his or her choice.
end deleteBy adding to the duties of local agencies to comply with the Public Safety Officers Procedural Bill of Rights Act and the Firefighters Procedural Bill of Rights Act, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
It is the intent of the Legislature that this measure
2not be construed to alter any limitations on the rights of
3representation contained in subdivision (i) of Section 3253 of the
4Government Code or subdivision (i) of Section 3303 of the
5Government Code.
Section 3253 of the Government Code is amended to
7read:
When any firefighter is under investigation and subjected
9to interrogation, or subjected to interrogation without being under
10investigation, by his or her commanding officer, or any other
11representative designated by the employing department or licensing
12or certifying agency, that could lead to punitive action, the
13interrogation shall be conducted under the following conditions:
14(a) The interrogation shall be conducted at a reasonable hour,
15at a time when the firefighter is on duty, unless an imminent threat
16to the safety of the public requires otherwise. If the interrogation
17does occur during off-duty time of the firefighter being
18interrogated, the firefighter shall be
compensated for any off-duty
P3 1time in accordance with regular department procedures. The
2firefighter’s compensation shall not be reduced as a result of any
3work missed while being interrogated.
4(b) The firefighter shall be informed, prior to the interrogation,
5of the rank, name, and command of the officer or other person in
6charge of the interrogation, the interrogating officer, and all other
7persons to be present during the interrogation. All questions
8directed to the firefighter under interrogation shall be asked by
9and through no more than two interrogators at one time.
10(c) The firefighter shall be informed of the nature of the inquiry
11prior to any interrogation.
12(d) The interrogating session shall be for a
reasonable period
13taking into consideration the gravity and complexity of the issue
14being investigated. The person under interrogation shall be allowed
15reasonable breaks to attend to his or her own personal physical
16necessities.
17(e) (1) The firefighter under interrogation shall not be subjected
18to offensive language or threatened with punitive action. A promise
19of reward shall not be made as an inducement to answering any
20question. The employer shall provide to, and obtain from, an
21employee a formal grant of immunity from criminal prosecution,
22in writing, before the employee may be compelled to respond to
23incriminating questions in an interrogation. Subject to that grant
24of immunity, a firefighter refusing to respond to questions or
25submit to interrogations shall be informed that the failure to answer
26questions
directly related to the inquiry or interrogation may result
27in punitive action.
28(2) The employer shall not cause the firefighter under
29interrogation to be subjected to visits by the press or news media
30without his or her express written consent free of duress, and the
31firefighter’s photograph, home address, telephone number, or other
32contact information shall not be given to the press or news media
33without his or her express written consent.
34(f) A statement made during interrogation by a firefighter under
35duress, coercion, or threat of punitive action shall not be admissible
36in any subsequent judicial proceeding, subject to the following
37qualifications:
38(1) This subdivision shall not limit the use of statements
39otherwise
made by a firefighter when the employing fire
P4 1department is seeking civil service sanctions against any firefighter,
2including disciplinary action brought under Section 19572.
3(2) This subdivision shall not prevent the admissibility of
4statements otherwise made by the firefighter under interrogation
5in any civil action, including administrative actions, brought by
6that firefighter, or that firefighter’s exclusive representative, arising
7out of a disciplinary action.
8(g) The complete interrogation of a firefighter may be recorded.
9If a recording is made of the interrogation, the firefighter shall
10have access to the recording if any further proceedings are
11contemplated or prior to any further interrogation at a subsequent
12time. The firefighter shall be entitled to a transcribed copy of
any
13notes made by a stenographer or to any reports or complaints made
14by investigators or other persons, except those portions that are
15otherwise required by law to be kept confidential. Notes or reports
16that are deemed to be confidential shall not be entered in the
17firefighter’s personnel file. The firefighter being interrogated shall
18have the right to bring his or her own recording device and record
19any and all aspects of the interrogation.
20(h) If, prior to or during the interrogation of a firefighter, it is
21contemplated that he or she may be charged with a criminal
22offense, he or she shall be immediately informed of his or her
23
constitutional rights.
24(i) Upon the filing of a formal written statement of charges, or
25whenever an interrogation under any circumstances focuses on
26matters that may result in punitive action against any firefighter,
27that firefighter, at his or her request, shall have the right to be
28represented by a representative of his or her choice who may be
29present at all times during the interrogation. The representative
30shall not be a person subject to the same inquiry. The representative
31shall not be required to disclose, or be subject to any punitive
32action for refusing to disclose, any information received from the
33firefighter being investigated or interrogated for noncriminal
34matters.
35This section shall not be construed to apply to counseling,
36instruction, or informal verbal admonishment
by, or other routine
37or unplanned contact with, a supervisor or any other firefighter.
38(j) A firefighter shall not be loaned or temporarily reassigned
39to a location or duty assignment if a firefighter in his or her
40department would not normally be sent to that location or would
P5 1not normally be given that duty assignment under similar
2circumstances.
begin insertSection 3253 of the end insertbegin insertGovernment Codeend insertbegin insert is amended
4to read:end insert
When any firefighter is under investigation and subjected
6to interrogation by his or her commanding officer, or any other
7member designated by the employing department or licensing or
8certifying agency, that could lead to punitive action, the
9interrogation shall be conducted under the following conditions:
10(a) The interrogation shall be conducted at a reasonable hour,
11at a time when the firefighter is on duty, unless an imminent threat
12to the safety of the public requires otherwise. If the interrogation
13does occur during off-duty time of the firefighter being
14interrogated, the firefighter shall be compensated for any off-duty
15time in accordance with regular department procedures. The
16firefighter’s compensation shall not be reduced as a result
of any
17work missed while being interrogated.
18(b) The firefighter under investigation shall be informed, prior
19to the interrogation, of the rank, name, and command of the officer
20or other person in charge of the interrogation, the interrogating
21officer, and all other persons to be present during the interrogation.
22All questions directed to the firefighter under interrogation shall
23be asked by and through no more than two interrogators at one
24time.
25(c) The firefighter under investigation shall be informed of the
26nature of the investigation prior to any interrogation.
27(d) The interrogating session shall be for a reasonable period
28taking into consideration the gravity and complexity of the issue
29being investigated. The person under interrogation shall be allowed
30reasonable breaks to attend to his or her own personal
physical
31necessities.
32(e) (1) The firefighter under interrogation shall not be subjected
33to offensive language or threatened with punitive action. A promise
34of reward shall not be made as an inducement to answering any
35question. The employer shall provide to, and obtain from, an
36employee a formal grant of immunity from criminal prosecution,
37in writing, before the employee may be compelled to respond to
38incriminating questions in an interrogation. Subject to that grant
39of immunity, a firefighter refusing to respond to questions or
40submit to interrogations shall be informed that the failure to answer
P6 1questions directly related to the investigation or interrogation may
2result in punitive action.
3(2) The employer shall not cause the firefighter under
4interrogation to be subjected to visits by the press or news media
5without his or her express written consent free
of duress, and the
6firefighter’s photograph, home address, telephone number, or other
7contact information shall not be given to the press or news media
8without his or her express written consent.
9(f) A statement made during interrogation by a firefighter under
10duress, coercion, or threat of punitive action shall not be admissible
11in any subsequent judicial proceeding, subject to the following
12qualifications:
13(1) This subdivision shall not limit the use of statements
14otherwise made by a firefighter when the employing fire
15department is seeking civil service sanctions against any firefighter,
16including disciplinary action brought under Section 19572.
17(2) This subdivision shall not prevent the admissibility of
18statements otherwise made by the firefighter under interrogation
19in any civil action, including administrative
actions, brought by
20that firefighter, or that firefighter’s exclusive representative, arising
21out of a disciplinary action.
22(g) The complete interrogation of a firefighter may be recorded.
23If a recording is made of the interrogation, the firefighter shall
24have access to the recording if any further proceedings are
25contemplated or prior to any further interrogation at a subsequent
26time. The firefighter shall be entitled to a transcribed copy of any
27notes made by a stenographer or to any reports or complaints made
28by investigators or other persons, except those portions that are
29otherwise required by law to be kept confidential. Notes or reports
30that are deemed to be confidential shall not be entered in the
31firefighter’s personnel file. The firefighter being interrogated shall
32have the right to bring his or her own recording device and record
33any and all aspects of the interrogation.
34(h) If, prior to or during the interrogation of a firefighter, it is
35contemplated that he or she may be charged with a criminal
36offense, he or she shall be immediately informed of his or her
37constitutional rights.
38(i)begin insert end insertbegin insert(1)end insert Upon the filing of a formal written statement of charges,
39or whenever an interrogation focuses on matters that may result
40in punitive action against any firefighter, that firefighter, at his or
P7 1her request, shall have the right to be represented by a
2representative of his or her choice who may be present at all times
3during the interrogation. The representative shall not be a person
4subject to the same investigation. The representative shall not be
5required to disclose, or be subject to any punitive action for
6refusing to disclose, any information received from the firefighter
7under
investigation for noncriminal matters.
8(2) If an interrogation focuses on matters that may result in
9punitive action against a firefighter who is not formally under
10investigation but is interviewed regarding the investigation of
11another firefighter, the firefighter being interviewed shall have
12the right to be represented by a representative of his or her choice.
13The representative may be present at all times during the
14interrogation or interview. The representative shall not be a person
15subject to the same investigation. The representative shall not be
16required to disclose, or be subject to punitive action for refusing
17to disclose, any information received from the firefighter being
18interrogated as part of the investigation for noncriminal matters.
19This
end delete
20begin insert(3)end insertbegin insert end insertbegin insertThis end insertsection shall not be construed to apply to counseling,
21instruction, or informal verbal admonishment by, or other routine
22or unplanned contact with, a supervisor or any other firefighter.
23(j) A firefighter shall not be loaned or temporarily reassigned
24to a location or duty assignment if a firefighter in his or her
25department would not normally be sent to that location or would
26not normally be given that duty assignment under similar
27circumstances.
Section 3303 of the Government Code is amended to
29read:
When any public safety officer is under investigation
31and subjected to interrogation, or is subject to interrogation without
32being under investigation, by his or her commanding officer, or
33any other representative of the employing public safety department
34or its designee, that could lead to punitive action, the interrogation
35shall be conducted under the following conditions. For the purpose
36of this chapter, punitive action means any action that may lead to
37dismissal, demotion, suspension, reduction in salary, written
38reprimand, or transfer for purposes of punishment.
39(a) The interrogation shall be conducted at a reasonable hour,
40preferably at a time when the public safety
officer is on duty, or
P8 1during the normal waking hours for the public safety officer, unless
2the seriousness of the inquiry requires otherwise. If the
3interrogation does occur during off-duty time of the public safety
4officer being interrogated, the public safety officer shall be
5compensated for any off-duty time in accordance with regular
6department procedures, and the public safety officer shall not be
7released from employment for any work missed.
8(b) The public safety officer shall be informed prior to the
9interrogation of the rank, name, and command of the officer in
10charge of the interrogation, the interrogating officers, and all other
11persons to be present during the interrogation. All questions
12directed to the public safety officer under interrogation shall be
13asked by and through no more than two interrogators at one time.
14(c) The public safety officer shall be informed of the nature of
15the inquiry prior to any interrogation.
16(d) The interrogating session shall be for a reasonable period
17taking into consideration gravity and complexity of the issue being
18investigated. The person under interrogation shall be allowed to
19attend to his or her own personal physical necessities.
20(e) The public safety officer under interrogation shall not be
21subjected to offensive language or threatened with punitive action,
22except that an officer refusing to respond to questions or submit
23to interrogations shall be informed that failure to answer questions
24directly related to the inquiry or interrogation may result in punitive
25action. No promise of reward shall be
made as an inducement to
26answering any question. The employer shall not cause the public
27safety officer under interrogation to be subjected to visits by the
28press or news media without his or her express consent nor shall
29his or her home address or photograph be given to the press or
30news media without his or her express consent.
31(f) A statement made during interrogation by a public safety
32officer under duress, coercion, or threat of punitive action shall
33not be admissible in any subsequent civil proceeding. This
34subdivision is subject to the following qualifications:
35(1) This subdivision shall not limit the use of statements made
36by a public safety officer when the employing public safety
37department is seeking civil sanctions against any public safety
38officer, including
disciplinary action brought under Section 19572.
39(2) This subdivision shall not prevent the admissibility of
40statements made by the public safety officer under interrogation
P9 1in any civil action, including administrative actions, brought by
2that public safety officer, or that officer’s exclusive representative,
3arising out of a disciplinary action.
4(3) This subdivision shall not prevent statements made by a
5public safety officer under interrogation from being used to
6impeach the testimony of that officer after an in camera review to
7determine whether the statements serve to impeach the testimony
8of the officer.
9(4) This subdivision shall not otherwise prevent the admissibility
10of statements made by a public safety officer
under interrogation
11if that officer subsequently is deceased.
12(g) The complete interrogation of a public safety officer may
13be recorded. If a tape recording is made of the interrogation, the
14public safety officer shall have access to the tape if any further
15proceedings are contemplated or prior to any further interrogation
16at a subsequent time. The public safety officer shall be entitled to
17a transcribed copy of any notes made by a stenographer or to any
18reports or complaints made by investigators or other persons,
19except those which are deemed by the investigating agency to be
20confidential. No notes or reports that are deemed to be confidential
21may be entered in the officer’s personnel file. The public safety
22officer being interrogated shall have the right to bring his or her
23own recording device and record any and all aspects of the
24interrogation.
25(h) If prior to or during the interrogation of a public safety
26officer it is deemed that he or she may be charged with a criminal
27offense, he or she shall be immediately informed of his or her
28constitutional rights.
29(i) Upon the filing of a formal written statement of charges, or
30whenever an interrogation under any circumstances focuses on
31matters that could lead to punitive action against any public safety
32officer, that officer, at his or her request, shall have the right to be
33represented by a representative of his or her choice who may be
34present at all times during the interrogation. The representative
35shall not be a person subject to the same inquiry. The representative
36shall not be required to disclose, nor be subject to any punitive
37action for refusing to disclose, any
information received from the
38officer being investigated or interrogated for noncriminal matters.
39This section shall not apply to any interrogation of a public safety
40officer in the normal course of duty, counseling, instruction, or
P10 1informal verbal admonishment by, or other routine or unplanned
2contact with, a supervisor or any other public safety officer, nor
3shall this section apply to an inquiry concerned solely and directly
4with alleged criminal activities.
5(j) No public safety officer shall be loaned or temporarily
6reassigned to a location or duty assignment if a sworn member of
7his or her department would not normally be sent to that location
8or would not normally be given that duty assignment under similar
9
circumstances.
begin insertSection 3303 of the end insertbegin insertGovernment Codeend insertbegin insert is amended to
11read:end insert
When any public safety officer is under investigation
13and subjected to interrogation by his or her commanding officer,
14or any other member of the employing public safety department,
15that could lead to punitive action, the interrogation shall be
16conducted under the following conditions. For the purpose of this
17chapter, punitive action means any action that may lead to
18dismissal, demotion, suspension, reduction in salary, written
19reprimand, or transfer for purposes of punishment.
20(a) The interrogation shall be conducted at a reasonable hour,
21preferably at a time when the public safety officer is on duty, or
22during the normal waking hours for the public safety officer, unless
23the seriousness of the investigation requires otherwise. If the
24
interrogation does occur during off-duty time of the public safety
25officer being interrogated, the public safety officer shall be
26compensated for any off-duty time in accordance with regular
27department procedures, and the public safety officer shall not be
28released from employment for any work missed.
29(b) The public safety officer under investigation shall be
30informed prior to the interrogation of the rank, name, and command
31of the officer in charge of the interrogation, the interrogating
32officers, and all other persons to be present during the interrogation.
33All questions directed to the public safety officer under
34interrogation shall be asked by and through no more than two
35interrogators at one time.
36(c) The public safety officer under investigation shall be
37informed of the nature of the investigation prior to any
38interrogation.
39(d) The interrogating session shall be for a reasonable period
40taking into consideration gravity and complexity of the issue being
P11 1investigated. The person under interrogation shall be allowed to
2attend to his or her own personal physical necessities.
3(e) The public safety officer under interrogation shall not be
4subjected to offensive language or threatened with punitive action,
5except that an officer refusing to respond to questions or submit
6to interrogations shall be informed that failure to answer questions
7directly related to the investigation or interrogation may result in
8punitive action. No promise of reward shall be made as an
9inducement to answering any question. The employer shall not
10cause the public safety officer under interrogation to be subjected
11to visits by the press or news media without his or her express
12consent nor shall his or her home address or photograph be
given
13to the press or news media without his or her express consent.
14(f) No statement made during interrogation by a public safety
15officer under duress, coercion, or threat of punitive action shall be
16admissible in any subsequent civil proceeding. This subdivision
17is subject to the following qualifications:
18(1) This subdivision shall not limit the use of statements made
19by a public safety officer when the employing public safety
20department is seeking civil sanctions against any public safety
21officer, including disciplinary action brought under Section 19572.
22(2) This subdivision shall not prevent the admissibility of
23statements made by the public safety officer under interrogation
24in any civil action, including administrative actions, brought by
25that public safety officer, or that officer’s exclusive representative,
26
arising out of a disciplinary action.
27(3) This subdivision shall not prevent statements made by a
28public safety officer under interrogation from being used to
29impeach the testimony of that officer after an in camera review to
30determine whether the statements serve to impeach the testimony
31of the officer.
32(4) This subdivision shall not otherwise prevent the admissibility
33of statements made by a public safety officer under interrogation
34if that officer subsequently is deceased.
35(g) The complete interrogation of a public safety officer may
36be recorded. If a tape recording is made of the interrogation, the
37public safety officer shall have access to the tape if any further
38proceedings are contemplated or prior to any further interrogation
39at a subsequent time. The public safety officer shall be entitled to
40a transcribed
copy of any notes made by a stenographer or to any
P12 1reports or complaints made by investigators or other persons,
2except those which are deemed by the investigating agency to be
3confidential. No notes or reports that are deemed to be confidential
4may be entered in the officer’s personnel file. The public safety
5officer being interrogated shall have the right to bring his or her
6own recording device and record any and all aspects of the
7interrogation.
8(h) If prior to or during the interrogation of a public safety
9officer it is deemed that he or she may be charged with a criminal
10offense, he or she shall be immediately informed of his or her
11constitutional rights.
12(i)begin insert end insertbegin insert(1)end insert Upon the filing of a formal written statement of charges,
13or whenever an
interrogation focuses on matters that are likely to
14result in punitive action against any public safety officer, that
15officer, at his or her request, shall have the right to be represented
16by a representative of his or her choice who may be present at all
17times during the interrogation. The representative shall not be a
18person subject to the same investigation. The representative shall
19not be required to disclose, nor be subject to any punitive action
20for refusing to disclose, any information received from the officer
21under investigation for noncriminal matters.
22(2) If an interrogation focuses on matters that may result in
23punitive action against a public safety officer who is not formally
24under investigation but is interviewed regarding the investigation
25of another public safety officer, the public safety officer being
26interviewed shall have the right to be
represented by a
27representative of his or her choice. The representative may be
28present at all times during the interrogation or interview. The
29representative shall not be a person subject to the same
30investigation. The representative shall not be required to disclose,
31or be subject to punitive action for refusing to disclose, any
32information received from the public safety officer being
33interrogated as part of the investigation for noncriminal matters.
34This
end delete
35begin insert(3)end insertbegin insert end insertbegin insertThis end insertsection shall not apply to any interrogation of a public
36safety officer in the normal course of duty, counseling, instruction,
37or informal verbal admonishment by, or other routine or unplanned
38contact with, a supervisor or any other public
safety officer, nor
39shall this section apply to an investigation concerned solely and
40directly with alleged criminal activities.
P13 1(j) No public safety officer shall be loaned or temporarily
2reassigned to a location or duty assignment if a sworn member of
3his or her department would not normally be sent to that location
4or would not normally be given that duty assignment under similar
5circumstances.
If the Commission on State Mandates determines that
8this act contains costs mandated by the state, reimbursement to
9local agencies and school districts for those costs shall be made
10pursuant to Part 7 (commencing with Section 17500) of Division
114 of Title 2 of the Government Code.
O
96