BILL ANALYSIS �
SB 388
Page 1
Date of Hearing: July 2, 2014
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
SB 388 (Lieu) - As Amended: January 17, 2014
Policy Committee: Public
SafetyVote: 7-0
Urgency: No State Mandated Local Program:
Yes Reimbursable: Yes
SUMMARY
This bill allows a firefighter or peace officer to have a
representative present when questioned by an 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 being interviewed.
FISCAL EFFECT
As current law, as well as Commission on State Mandates
precedent, appears to cover officers/firefighters interviews
that could lead to punitive action, this bill would not increase
state-reimbursable costs. Based, however, on the author's
contention that some entities are not interpreting the relevant
Government Code sections in this manner, to the extent this bill
is necessary, and increases the number of mandate claims, annual
GF costs could be significant, potentially in the millions of
dollars.
The state has deferred $56 million in Peace Officer Bill of
Rights (POBOR) mandate costs alone over the past six years.
COMMENTS
1)Rationale . The author and proponents, rank-and-file law
enforcement and firefighter entities, contend that while
current law states that in any interrogation in which an
officer or firefighter could face punishment that officer or
firefighter is entitled to a representative, some employers
skirt this statutory provision. The author states this
interpretation of statute reduces rights and results in
SB 388
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litigation. The intent of this measure is to clarify the right
to representation for interviewees who are not the subject of
the investigation but could face punishment, based on their
interviews.
2)Current law states that upon filing of a charges, or whenever
an interrogation focuses on matters that may result in
punitive action against any officer or firefighter, that
officer or firefighter has the right to representation of his
or her choice, who may be present at all times during the
interrogation.
3)Support . The California Association of Highway Patrolmen and
other co-sponsors state this 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."
4)Opposition includes The Peace Chiefs Association, the Sheriffs
Association, the Chief Probation Officers of CA, and the L.A.
County Board of Supervisors, who contend the bill is
unnecessary and could result in a costly expansion of the
Peace Officers Bill of Rights and the Firefighters Bill of
Rights. According to the Police Chiefs, "It should be noted
that under current Government Code Section 3303(i)
representation is available to an officer '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.' A plain
reading of current law would suggest that SB 388 is
unnecessary.
"Operating on the judicial presumption that the Legislature
does not enact unnecessary laws, however, a court is likely to
conclude that SB 388 creates additional rights for a witness
officer that are not currently available?.
"SB 388 could be interpreted as going 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
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actions of its employees and unnecessarily delay
investigations anytime an officer is asked about non-criminal
misconduct."
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081