BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 388 (Lieu)
As Amended January 6, 2014
Hearing date: January 14, 2014
Government Code
JRD:mc
PEACE OFFICERS AND FIREFIGHTERS
HISTORY
Source: Peace Officer Research Association of California; Los
Angeles Police Protective League; California
Professional Firefighters
Prior Legislation:SB 313 (De Le�n) - Ch. 779, Stats. 2013
AB 2543 (Alejo) - failed passage in Senate
Public Safety, 2012
SB 638 (De Le�n) - 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: California Professional Firefighters; California
Correctional Peace Officers Association; L.A. County
Probation Officers Union; Los Angeles County
Professional Peace Officers Association; Association
for Los Angeles Deputy Sheriffs; Los Angeles Police
Protective League; Riverside Sheriffs' Association;
Association of Orange County Deputy Sheriffs;
California Correctional Supervisors Organization;
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California Fraternal Order of Police; Fontana Police
Officers Association; Long Beach Police Officers
Association; Sacramento County Deputy Sheriffs
Association; Santa Ana Police Officers Association;
State Coalition of Probation Organizations; Southern
California Alliance of Law Enforcement; California
Association of Highway Patrolmen
Opposition:California Police Chiefs Association; California
State Association of Counties; California State
Sheriffs' Association; Chief Probation Officers of
California; Emergency Medical Services Administrators
Association; Marin County Council of Mayors and
Councilmembers; Emergency Medical Directors Association
of California; Los Angeles County Board of Supervisors
KEY ISSUE
SHOULD PEACE OFFICERS AND FIREFIGHTERS HAVE THE RIGHT TO A
REPRESENTATIVE WHEN BEING INTERVIEWED BY THEIR EMPLOYER REGARDING
THE ALLEGED MISCONDUCT OF ANOTHER PEACE OFFICER OR FIREFIGHTER, IF
THAT INTERVIEW MAY LEAD TO DISCIPLINARY ACTION AGAINST THEM?
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.
Existing law establishes the Firefighters Procedural Bill of
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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
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 allow a firefighter or
peace officer to have a representative of their choice present
when questioned by their employer regarding the investigation of
another peace officer or firefighter, if that interview might
lead to disciplinary action against them. The representative
cannot be a person subject to the same interrogation.
Additionally, the representative would be able to be present at
all times during the interrogation and could not be required to
disclose information received from the peace officer or
firefighter being interrogated, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
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prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % prisoner population cap by December 31,
2013.
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The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
As of December 4, 2013, California's 33 prisons were at 146.2
percent capacity, with 119,258 inmates.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
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reasonable, appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
In many departments, peace officers and firefighters
are routinely allowed representation when being
questioned as a witness under the existing provisions
of PBOR and FBOR. Unfortunately, some departments
have started interpreting Government Code Sections
3253 and 3303 as a way to deny peace officer and
firefighter representation requests. This new
interpretation has not only led to reduced rights, but
also unnecessary and costly litigation.
Senate Bill 388 would clarify that witness peace
officers or firefighters cannot be denied the right of
representation under the Peace Officer's Bill of
Rights or the Firefighter's Bill of Rights.
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 punitive action against the witness
officer.
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
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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 3253(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
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 3903(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
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2. The interrogation focuses on matters that "may
result in punitive action."
SB 388 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.Issues and Concerns
Supporters state that this bill is intended to address
situations where management questions an officer or firefighter,
as a witness in an investigation (not entitled to have a
representative present during the questioning under Government
Code sections 3252 and 3303), only to later decide the officer,
or firefighter, is a suspect of the investigation. Had the
officer, or firefighter, been told he or she was a subject of
the investigation, the officer would have been entitled to have
a representative present during questioning by management.
According to the California Correctional Peace Officers
Association:
In some cases, management interrogates the officer, and
later decides that the officer is a subject of an
investigation. SB 388 will insure that all public safety
officers are provided the protections of POBOR. The
measure eliminates ambiguity at the beginning of the
process, and avoids disputes over whether the designation
of the officer as not being a subject of the investigation
was an attempt to skirt POBOR.
Because a witness officer would be entitled to a representative
before being interviewed, the law enforcement agency would have
to give the witness officer a reasonable opportunity to obtain
the representative of his or her choice. See generally Upland
Peace Officers Association v. City of Upland, (2003) 111
Cal.App.4th 1294; Association for Los Angeles Deputy Sheriffs v.
County of Los Angeles (2008) 166 Cal.App.4th 1625. According to
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opponents, this could delay investigations.
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SB 388 limits this right to cases in which the interview "may
result in punitive action." However, the California State
Sheriffs' Association argues that SB 388 "goes beyond providing
fair treatment to an officer under investigation and would
require formal representation for every officer that is
questioned about the investigation of another officer."
(Emphasis added.)
Members may wish to consider addressing the opposition's
concerns by recommending language that will: (1) narrow a
witness's right to a representative to matters that "are likely"
to result in punitive action; and, (2) limit the delays that may
be created by the new right by providing the witness a
"reasonable opportunity" to obtain representation.
Specifically, Government Code Section 3303(i)(2) could be
amended to read:
If an interrogation focuses on matters that are likely
to may result in punitive action against a firefighter
who is not formally under investigation but is
interviewed regarding the investigation of another
firefighter, the firefighter being interviewed shall
have the right to be represented by a representative of
his or her choice. The firefighter shall have a
reasonable opportunity to obtain a representative. The
representative may be present at all times during the
interrogation or 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
interrogated as part of the investigation for
noncriminal matters.
Government Code Section 3253(i)(2) could be amended to read:
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If an interrogation focuses on matters that are likely
to may result in punitive action against a public
safety officer who is not formally under investigation
but is interviewed regarding the investigation of
another firefighter, the public safety officer being
interviewed shall have the right to be represented by a
representative of his or her choice. The public safety
officer shall have a reasonable opportunity to obtain a
representative. The representative may be present at
all times during the interrogation or 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 public safety officer being interrogated as part of
the investigation for noncriminal matters.
Should a witness, who is not under investigation, have the right
to have a representative at an interview about a co-worker's
misconduct, if that interview may result in punitive action
against the witness?
Should a witness's right to a representative, as described in
this bill, be limited to cases where the interview is "likely"
to result in punitive action against the witness?
Should a provision be added to the legislation that states that
the witness has a "reasonable" opportunity to get
representation?
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