BILL ANALYSIS �
SB 388
Page 1
SENATE THIRD READING
SB 388 (Lieu)
As Amended January 17, 2014
Majority vote
SENATE VOTE :30-2
PUBLIC SAFETY 7-0 APPROPRIATIONS 17-0
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|Ayes:|Ammiano, Melendez, |Ayes:|Gatto, Bigelow, |
| |Jones-Sawyer, Quirk, | |Bocanegra, Bradford, Ian |
| |Skinner, Stone, Waldron | |Calderon, Campos, |
| | | |Donnelly, Eggman, Gomez, |
| | | |Holden, Jones, Linder, |
| | | |Pan, Quirk, |
| | | |Ridley-Thomas, Wagner, |
| | | |Weber |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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
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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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, 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 General Fund costs could be significant,
potentially in the millions of dollars.
The state has deferred $56 million in Peace Officer Bill of
Rights mandate costs alone over the past six years.
COMMENTS : 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.
"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
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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."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744
FN: 0004756