Vol. 18 No. 17- Upland Poa V. City Of Upland

To: All Police Chiefs and Sheriffs

From: Martin J. Mayer

September 12, 2003

We are most pleased to inform you that the California Court of Appeal, Fourth Appellate District, unanimously ruled that an officer’s “right” to a representative of his or her choice, at an I.A. interrogation, must be read to include a “reasonable requirement.” The firm of Jones & Mayer was asked by Upland Chief Martin Thouvenell to prepare and submit an Amicus Curiae brief from the California Police Chiefs Association (CPCA) and the California State Sheriffs Association (CSSA) supporting the City’s position. After securing authorization from the two Associations, the amicus brief was prepared and submitted. Martin J. Mayer also presented oral argument before the Court of Appeal on September 3, 2003. (The Court rejected other amicus briefs and the Court’s published opinion makes several references to the arguments presented by CSSA and CPCA.)

The issue in the Upland case involved the POA attorney calling just before a SCHEDULED interrogation to inform the department he was unavailable. The interrogation was re-scheduled to another date, selected by the attorney. On the next date the attorney called just before the interview and stated he was, once again, unavailable. The POA attorney refused to send another member of his firm, stating that the Peace Officers Bill of Rights Act allowed the officer to specify the “representative of his or her choice,” and no other person would suffice. The Chief insisted the interview proceed.

Subsequently the POA was able to secure a preliminary injunction against the City preventing the City from proceeding with disciplinary action, alleging Bill of Rights violations. An appeal was taken to the Court of Appeal which stated, “(w)e agree with the City and amici curiae and reverse the trial court’s granting of the preliminary injunction.”

The key question before the court focused on “who’s in control” of the process? Although the language in the statute IS clear, and states “representative of his or her choice, the Court held that “(e)ven unambiguous statutes must be construed to avoid absurd results which do not advance the legislative purpose….” The Court also stated that “…the literal application of the judgement leads to the conclusion that an officer could prevent any interrogation by simply choosing a representative who would never be available.” The Court agreed that an officer has a “right to be represented by a person of his or her choice during an interrogation. We only hold that such a right is not unlimited.”

The Court went on to state that “(w)e agree with the Department and amici curiae that (Federal cases) are persuasive authority which supports the Department’s contention that it is a legitimate employer perogative to schedule an interrogation in a prompt and timely manner so long as the officer has a reasonable opportunity to obtain representation. This is particularly true for interrogations concerning alleged officer misconduct.”

During oral argument the Court raised concerns about the necessity to proceed with the interrogation at that time. We strongly suggest applying the standard of reasonableness in making the decision to “draw the line” and require the interview to proceed, absent the officer’s “representative of choice.” It will be necessary to justify it, if challenged.

Finally, the Court held that the City can recover it’s costs on the appeal.