INTERNAL AFFAIRS & YOUR RIGHTS AS A PUBLIC SAFETY EMPLOYEE

1. INTERNAL AFFAIRS & YOUR RIGHTS AS A PUBLIC SAFETY EMPLOYEE Presented by • Christopher W. Miller, Esq. • Mastagni, Holstedt, Amick, Miller & Johnsen & State Coalition of Probation Organizations

2. Government Code § 3300-3313 • Enacted in 1977 as AB 301 • The POBRA is the rulebook by which administrative investigations of peace officers must be conducted in California • POBRA is an ever-changing document that governs the administrative rights of a special class of public employee

3. Key Rights & Responsibilities • Interrogation Rights & Procedures • Right to Representation • Right to Appeal • Searches & Polygraphs • Remedies for POBR Violations

4. PURPOSE OF I.A. • Internal Affairs = Risk Management • Promote Integrity/Public Perceptions • Identify Potential Liability • Correct Behavior or Procedures • Protect Against Litigation

5. When Does POBRA Apply?

6. When Does the POBRA Apply? • APPLIES • Peace Officers • Permanent • Limited At-Will • Investigation leading to “Punitive Action” • Interrogation • Other Rights • DOES NOT APPLY • Routine or unplanned contact w/supervisor • Informal Counseling • Verbal Admonishment • Probationary Officers • Non-sworn Employees

7. “Punitive Action” • Punitive Action Is • Dismissal • Demotion • Suspension • Reduction in Pay • Written Reprimand • Punitive Transfer • Adverse Finding • Punitive Action Is Not • Adverse Evaluation • Worker’s Comp • Routine Transfer not involving Loss of Pay • Routine Counseling

8. PROBATIONARY EMPLOYEES • Law treats probationary employees as “at will” employees with limited rights • Probationary employee may be released for any reason or no reason but cannot be released for illegal reason • POBR rights do not apply to probationary employees

9. INTERNAL AFFAIRS INVESTIGATIONS & POBRA

10. How A Complaint BecomesAn Investigation • Penal Code § 832.5 • Requires the department to have a procedure for investigating citizen complaints • Requires a written description of the procedure be made available to the public • Complaints/reports/findings shall be retained for at least five years • Does not require a formal written complaint and investigation in every instance

11. Nature of the Investigation • “The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation.” • (Govt. Code § 3303 (c).)

12. Scope of the Investigation • Course & Scope of Employment • On-Duty Criminal Misconduct • Any allegation of on-duty misconduct • Inquire into subjects “reasonably related” • Off-Duty Conduct • “Nexus” to Employment • CUBO

13. Scope of the Investigation Complaint Categories • Usually Cite to the Rules/ Policies of Employer as Possible Violations • Catch-Alls Generally Used • Possible to Have Multiple Categories per violation

14. Off-Duty Conduct • Courts have held that an employer must establish a “nexus” between the activity and an alleged inability to perform the functions of the job • Usually disciplined as CUBO • Labor Code s. 96(k)

15. Criminal Misconduct • Investigator must determine whether there is reasonable criminal exposure • Many common complaints have a criminal aspect • writing a false report - improper CLETS/CJIS access - mishandled property or evidence • A labor representative does not enjoy privileged communications regarding a criminal prosecution • There may be a pending criminal prosecution

16. Interrogation Rights & Responsibilities

17. Internal Affairs Interrogations • Subject Officer is Entitled to: • Name(s) of the Interrogators & OIC • Representative of choice • Nature of the Charges • Tape-Record the Interrogation • Review prior statements

18. Before the Interview • Employee is not entitled to a copy of the complaint • Employee is not entitled to all the evidence • This information will be provided if disciplinary action is taken

19. The Interrogator Cannot: • Interrogate Off-Duty without Compensation • Use More than Two Questioners • Use Threats or Offensive Language • Promise Rewards • Provide Address, Phone or Photo to Media w/o consent

20. LybargerWarning • If the complaint involves criminal issues, investigator must give a Miranda advisement (Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822) • The answer to the advisement is NO • If the complaint has criminal issues and the advisement is not given, employee can invoke the right

21. Answering Questions • Understand the question • Answer completely and honestly • Focus your answer to the question • Don’t open any doors • Don’t guess • “I don’t remember” is a proper response

22. Use of Compelled Statement • Criminal Proceedings • Statement Cannot Be Used Against Officer • EXCEPT • Impeachment • Civil Proceedings • Statement Cannot Be Used Against Officer • EXCEPT • Discipline • Suit by Employee • Impeachment • Death

23. RIGHT TO REPRESENTATION

24. Right To Representation • Triggered whenever matter “likely to result in punitive action” • viewpoint of the employer • ask the question, “Do I need a rep?” or “Will this result in discipline?” • Subject Officer • Witness Exception • Weingarten Rule

25. Representative of Choice • Representative must not be someone involved in the investigation • Representative cannot be questioned about any information received from the officer • Choice of representative cannot unreasonably delay the investigation • (Upland POA v. City of Upland (2003) 111 Cal.App.4th 1294)

26. Role of the Representative • Representative must be allowed opportunity to speak for employee • More than a mere observer • Weingarten: Role of representative is to protect the rights of the employee and assist employee in answering questions

27. POST-INTERROGATION ISSUES

28. Investigation Concludes • The investigation will result in a finding of sustained, not sustained, exonerated or unfounded • Agency notifies citizen complainant, but the notification cannot disclose discipline imposed, employee statement, or specific facts in the investigation

29. Sustained Misconduct • Notice of Proposed Discipline • Pre-disciplinary meeting & Skelly rights • Notice of Discipline • Administrative appeal

30. Proposed Discipline • The notice will contain a description of the charges upon which the action is based • The notice will contain any previous misconduct that was considered • The discipline is not final and has not yet been imposed

31. Pre-Disciplinary Hearing • Before you can be disciplined you are entitled to a pre-disciplinary meeting commonly referred to as a Skelly Hearing • Purpose is to provide you with an opportunity to respond to the allegations • This is a constitutional due process right, not a POBRA right

32. Post-Interrogation Issues • Post-Interrogation Access to Documents • Pasadena: post-interrogation right to documents other than those deemed confidential • Skelly: separate (non-POBR) right to all documents on which the discipline is based • Statutes of Limitations Imposed by POBRA

33. Post-Interrogation Issues • Pre-Disciplinary Hearing Time Limits • Agency has 30 days to notify the subject officer of a decision to impose discipline • Local rules will control over POBRA so long as minimum standards are met

34. Statute of Limitations

35. Statute of Limitations • Gov. Code § 3304(d): • No punitive action or denial of promotion for any allegation of misconduct if the investigation is not completed within one year of the public agency’s discovery of the allegation of an act, omission, or other misconduct.

36. Statute of Limitations • Gov. Code § 3304(d): • If the agency determines discipline may be taken, the agency has one year to complete its investigation and propose discipline by letter of intent or notice of adverse action • Supreme Court decision allowing agency merely to notify officer of intent to discipline was abrogated by legislative action

37. Statute of Limitations • An investigation may be reopened after the limitations period if, and only if: • significant new evidence likely to affect the outcome; • AND • evidence could not have been discovered; • OR • evidence came up in the Skelly process

38. ADMINISTRATIVE APPEAL

39. Right to Appeal • Employee has constitutional right to a full and fair evidentiary hearing for loss of property interest • POBRA sets minimum standards for administrative appeal but does not prevail over local rules • Standards for conducting administrative appeals should be codified in MOU or personnel rules

40. Right to Appeal • No punitive action may be imposed without the opportunity for an administrative appeal • “Punitive action is any action likely to adversely affect the employee’s opportunities for advancement now or in the future”

41. Case Examples • Gordon v. Horsley (2001) 86 Cal.App.4th 336 • Sheriff’s Decision to Disarm Deputy “Punitive” • Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209 • Citizen’s Review Board Findings “Punitive Action” • Hopson v. City of Los Angeles (1983) 139 Cal.App.3d 347 • Adverse OIS Report is “Punitive Action”

42. Case Examples • Otto v. LAUSD (2001) 89 Cal.App.4th 985 • Counseling Memo May be “Punitive Action” • James v. City of Coronado (2003) 106 Cal.App.4th 905 • Limitations on Due Process in POBRA Cases • Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305 • Reprimand for Off-Duty Shooting Requires Appeal

43. Punitive Transfer • A “punitive transfer” is: • (1) transfer for purposes of punishment; • OR • (2) any transfer involving a loss of pay • is “per se punitive” • May result in “White hearing” • White v. County of Sacramento (1982) 31 Cal.3d 676

44. PERSONNEL RECORDS

45. Adverse Documents • No “adverse comment” may be entered in personnel file without officer having had an opportunity to review and sign document • Officer has 30 days to respond to adverse comment and response becomes part of personnel file

46. Access to Personnel Files • Government Code § 3306.5: • Allows peace officers to request and inspect personnel file(s) during business hours • Penal Code § 832.5 defines “personnel file” as “any file used for personnel purposes” • Allows peace officers to request correction or deletion of material and requires the employer to comply or explain refusal

47. OTHER POBRA RIGHTS

48. Polygraphs & CVSA • “Don’t Ask, Don’t Tell” • Employee Cannot be Requested or Required to Take a Polygraph/CVSA Examination • Employee Should Never Agree to a Polygraph • Results Cannot Be Used Against Employee • Using Polygraph to “Establish” Innocence

49. Administrative Searches • Strip searches must be based on a reasonable suspicion that evidence will be disclosed • Locker/Desk searches limited to areas provided by the employer • Criminal searches must meet normal standards of search and seizure

50. Locker Searches • Locker or Other Assigned Space for Storage Cannot Be Searched Except: • in officer’s presence; • with a warrant; • with officer’s consent; • with notice to the officer