BILL ANALYSIS �
SB 388
Page 1
Date of Hearing: June 17, 2014
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 388 (Lieu) - As Amended: January 17, 2014
SUMMARY : Allows a firefighter or peace officer to have a
representative present when questioned by his or her employer
regarding the investigation of another firefighter or peace
officer, if that interview may or is likely to lead to punitive
action against the firefighter or officer who is being
interviewed. Specifically, this bill :
1)Provides that if an interrogation focuses on matters that 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 has the right to be represented by a
representative of his or her choice.
2)Provides that if an interrogation focuses on matters that are
likely to result in punitive action against a public safety
officer who is not formally under investigation but is
interviewed regarding the investigation of another public
safety officer, the public safety officer being interviewed
has the right to be represented by a representative of his or
her choice.
3)Allows the firefighter or public safety officer to choose a
representative who is reasonably available to represent the
firefighter or officer at an interrogation that has been
reasonably scheduled.
4)Provides that the representative is not to be a person subject
to the same investigation and that the representative cannot
be required to disclose, or be subject to punitive action for
refusing to disclose, any information received from the
firefighter or officer under investigation for noncriminal
matters.
EXISTING LAW :
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1)Establishes the Firefighters Procedural Bill of Rights (FBOR),
which provides procedural guarantees to firefighters, who
include, but are not limited to, any firefighter who is a
paramedic or emergency medical technician, under
investigation. (Gov. Code, � 3250 et seq.)
2)Establishes the Public Safety Officers Procedural Bill of
Rights (POBOR), which provides procedural guarantees to public
safety officers, as defined, under investigation. (Gov. Code,
� 3300 et seq.)
3)States that, for purposes of FBOR and POBOR, "punitive action"
means any action that may lead to dismissal, demotion,
suspension, reduction in salary, written reprimand, or
transfer for purposes of punishment. (Gov. Code, �� 3251,
subd. (c), & 3303.)
4)Provides that, when any firefighter or public safety officer
is under investigation and subjected to interrogation by his
or her commanding officer, or any other member of the
employing department, that could lead to punitive action, the
is to be conducted under certain conditions, including those
described directly below, except as specified. (Gov. Code, ��
3251 & 3303.)
5)States that upon the filing of a formal written statement of
charges, or whenever an interrogation focuses on matters that
may result in punitive action against any firefighter, that
firefighter, 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. Provides
that the representative is not to be a person subject to the
same investigation and that the representative cannot be
required to disclose, or be subject to punitive action for
refusing to disclose, any information received from the
firefighter under investigation for noncriminal matters.
(Gov. Code, � 3253, subd. (i).)
6)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
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interrogation. Provides that the representative is not to be
a person subject to the same investigation and that the
representative cannot be required to disclose, or be subject
to punitive action for refusing to disclose, any information
received from the officer under investigation for noncriminal
matters. (Gov. Code, � 3303, subd. (i).)
7)Provides that POBOR interrogation rights do not apply to any
interrogation of an 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 to an investigation
concerned solely and directly with alleged criminal
activities. (Gov. Code, � 3303, subd. (i).)
8)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 POBOR, or the exercise of any rights
under any existing administrative grievance procedure. (Gov.
Code, � 3304, subd. (a).)
9)States that nothing in the provision above is to prevent a
head of an agency from ordering a public safety officer to
cooperate with other agencies involved in criminal
investigations. Allows the agency to officially charge an
officer with insubordination if he or she fails to comply with
such an order. (Gov. Code, � 3304, subd. (a).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The right to
representation is a foundational right in the Peace Officer
Bill of Rights' (POBOR) and the Firefighters' Bill of Rights
(FBOR). Unfortunately, a few public safety departments have
recently begun to employ the practice of denying
representation in order to interrogate certain peace officers
or firefighters as witnesses to an investigation. These peace
officers and firefighters are often denied representation even
though the interrogation focuses on their conduct, as it
relates to what they may have seen or heard as a witness. The
information gleaned from these 'witnesses' is then used as
grounds to later file a disciplinary action against them.
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"For example, during October 2011 the Los Angeles Police
Department took the position that peace officer witnesses
subpoenaed by the Internal Affairs Division in Board of Rights
hearings convened on disciplinary cases against other officers
are not entitled to the right to representation at the Board
hearings since such witnesses were not 'under investigation'.
Consequently, numerous officers' 'witnesses' were denied the
basic protections under Section 3303 of POBOR. This occurred
despite the fact that their testimony could have led to
punitive action, including potential disciplinary exposure to
allegations of false and misleading statements, failure to
report misconduct, insubordination or neglect of duty. This
denial of procedural due process has led to complaints and
litigation against the department.
"This problem is also not unique to law enforcement
departments. It has also been reported that the spirit and
intent of FBOR is being circumvented at fire departments too.
This routine disregard for the rights afforded to firefighters
under FBOR appears to be the result of an employer-driven
tactic, whereby an accused firefighter is not able to access
his or her rights due to management expressly refusing to even
classify the firefighter as a witness in or subject of an
investigation. Consequently, until such an employer-determined
witness or subject classification is made, FBOR is being
ignored by the employer in order to deny their rights under
existing law."
2)Background : POBOR was enacted in 1976 and provided law
enforcement officers with a variety of procedural protections.
The courts have summarized POBOR as follows:
[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
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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. (Binkley v. City
of Long Beach (1993) 16 Cal.App.4th 1795, 1805, fn. 5
[internal citations omitted].)
While the purpose of POBOR is to maintain stable
employer-employee relations and thereby assure effective law
enforcement, it also seeks to balance the competing interests
of fair treatment to officers with the need for swift internal
investigations to maintain public confidence in law
enforcement agencies. (Pasadena Police Officers Assn. v. City
of Pasadena (1990) 51 Cal.3d 564.)
AB 220 (Bass), Chapter 591, Statutes of 2007, created FPOR.
FPOR provides firefighters, paramedics and emergency medical
technicians with rights that are analogous to the rights
provided to public safety officers under POBOR. Like POBOR,
FPOR establishes rules governing the interrogation of an
employee who is under investigation.
3)Practical Considerations : Under existing law, when a
firefighter or public safety officer's employing agency
interrogates a firefighter or officer who is under
investigation on matters that, respectively, may or is likely
to result in punitive action against any firefighter or public
safety officer, that firefighter or officer can choose to have
representation of his or her choosing present at all times of
the interview. (Gov. Code, �� 3253, subd. (i), & 3303, subd.
(i).)
Supporters of this bill assert that the right to
representation applies to the investigation's target and
non-targets-specifically witness firefighters and
officers-alike but that some employing agencies deny witness
firefighters or peace officers their right to representation.
Supporters argue that this interpretation of the law by
certain employing agencies has resulted in unnecessary and
costly litigation that this bill would stem. Opponents
contend that existing law limits representation rights only to
a firefighter or peace officer who is the subject of an
investigation that may or is likely to, respectively, result
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in punitive action against any firefighter or public safety
officer to prevent a chilling effect on expedient and thorough
investigations into possible misconduct. They argue that this
bill would extend the right to representation and would hinder
or unnecessarily delay investigations anytime an officer is
asked about non-criminal misconduct such as dishonesty, sexual
harassment, violations of use-of-force policies, or employment
discrimination. The committee may wish to explore how this
bill will affect the balance FBOR and POBOR seeks to maintain
between employee fairness and the integrity of California's
law enforcement.
4)Arguments in Support :
a) The California Association of Highway Patrolmen and
other co-sponsors state that "[t]his bill simply clarifies
and ensures procedural due process for peace officers and
firefighters during investigations, including that witness
peace officers or firefighters cannot be denied the right
of representation, which is consistent with the Peace
Officers' Bill of Rights and the Firefighters' Bill of
Rights."
b) As argued by the Laborers' International Union of North
America , "[u]nder existing law when a firefighter or peace
officer is accused of having engaged in misconduct which
may result in disciplinary action, they are entitled to
representation at investigative meetings with the employer.
Unfortunately, some employers are interpreting the law to
allow them to meet with the employee first as a 'witness',
prior to deeming them a 'suspect', thereby skirting their
obligation to allow representation at such meetings. This
bill seeks to clarify existing law and in so doing will not
only better ensure that employees have representation in
all such meetings, but will also reduce costly litigation
emanating from denial of representation claims."
5)Argument in Opposition : According to the California State
Sheriffs' Association , "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. By creating
formal processes for witness officers, this measure would
unduly interfere with an agency's duty to supervise the
actions of its employees and unnecessarily delay
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investigations anytime an officer is asked about non-criminal
misconduct, which could include acts of dishonesty, sexual
harassment, violations of use-of-force policies, or employment
discrimination."
6)Prior Legislation :
a) SB 313 (De Leon), Chapter 779, Statutes of 2013,
prohibits any public agency from taking any punitive action
against a public safety officer, or denying a promotion on
grounds other than merit, because that officer is placed on
a "Brady list," as specified.
b) AB 2543 (Alejo), of the 2011-12 Legislative Session,
would have prohibited a public agency from taking any
punitive action against a public safety officer because he
or she was placed on a Brady list, as specified. AB 2543
failed passage in the Senate Public Safety Committee.
c) SB 638 (De Leon), of the 2011-12 Legislative Session,
would have prohibited a public agency from taking any
punitive action against a public safety officer because he
or she was placed on a Brady list, as specified. SB 638
failed passage in the Senate Public Safety Committee.
d) AB 220 (Bass), Chapter 591, Statutes of 2007, enacted
the Firefighters Procedural Bill of Rights Act.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees,
AFL-CIO (Co-Sponsor)
CAL FIRE Local 2881 (Co-Sponsor)
California Association of Highway Patrolmen (Co-Sponsor)
California Fraternal Order of Police (Co-Sponsor)
California Professional Firefighters (Co-Sponsor)
Long Beach Police Officers Association (Co-Sponsor)
Los Angeles County Professional Peace Officers Association
(Co-Sponsor)
Sacramento County Deputy Sheriffs Association (Co-Sponsor)
Santa Ana Police Officers Association (Co-Sponsor)
Association for Los Angeles Deputy Sheriffs
California Correctional Peace Officers Association
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California State Firefighters' Association
California Correctional Supervisors Organization
Fontana Police Officers Association
Laborers' International Union of North America, Local 777
Laborers' International Union of North America, Local 792
Los Angeles County Probation Officers Union
Los Angeles Police Protective League
Peace Officers Research Association of California
Riverside Sheriffs' Association
Southern California Alliance of Law Enforcement
State Coalition Of Probation Organizations
Opposition
California Peace Officers' Association
California Police Chiefs Association
California State Association of Counties
California State Sheriffs' Association
Chief Probation Officers of California
Emergency Medical Services Administrators Association
Los Angeles County Board of Supervisors
Marin County Council of Mayors and Councilmembers
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744