LEGISLATION PROPOSES REPRESENTATION FOR PEACE OFFICERS WHO ARE WITNESSES
As of January 30, 2014, Senate Bill 388, proposed by State Senator Ted Lieu (Torrance), has passed the Senate and is in the Assembly for consideration. SB 388 would create a right of representation for an officer who is not the subject of any investigation, but is being asked about the actions of others.
The California Police Chiefs’ Association (CPCA), the California State Sheriffs’ Association (CSSA), and the California Peace Officers’ Association (CPOA) are all on record in opposition to the bill.
The witness officer, according to SB 388, would be entitled to demand an attorney if, in the mind of the witness officer, what he or she would say is “likely to result” in punitive action against another officer.
Since the inception of the Public Safety Officers’ Procedural Bill of Rights Act (POBRA), in 1977, it has provided that “when any public safety officer is under investigation and subjected to interrogation . . .” by his or her agency, that officer shall be provided the protections set forth in the Act. (Emphasis added.)
Among the numerous protections afforded officers is the right to be represented “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 that officer. [Gov. Code 3303(i)].
A litany of California appellate court decisions have ruled that if an officer who is “under investigation and subjected to interrogation” is not informed of the fact that he or she is the subject of an investigation, and/or is not afforded the right of counsel if he/she is the subject of an investigation, any incriminating statements made by that officer could not be used against that officer, and would be suppressed in an administrative appeal hearing. [See City of Los Angeles v. Superior Court (Labio), 57 Cal.App.4th 1506 (1997)].
The rationale behind the decisions is clear and straight forward — when an officer is being questioned about matters which are likely to result in punitive action against that officer, POBRA provides that the officer be allowed representation. In fact, except for the obligation to respond to “public safety” questions, an interview cannot be conducted until a representative is present.
From the inception of POBRA, however, the right of representation belonged to the officer being interrogated about matters which could result in punitive action being taken against that officer; it was never a right of witness officers. Bearing witness is part of the peace officers’ responsibility.
In 1939, the California Court of Appeal discussed the duty and obligation of peace officers to bear witness. Although the case of Christal v. Police Commission, 33 Cal.App.2d 564 dealt with that duty in criminal cases, it speaks eloquently to the role of the law enforcement officer and it applies, no less, in administrative inquiries, than it does in criminal matters.
“The duties of police officers are many and varied. Such officers are the guardians of the peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintaining law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them. Among the duties of police officers are those . . . of disclosing all information known to them . . . . When police officers acquire knowledge of facts which will tend to incriminate any person, it is their duty to disclose such facts to their superiors. . . .It is for the performance of these duties that police officers are commissioned and paid by the community, and it is a violation of said duties for any police officer to refuse to disclose pertinent facts within his knowledge even though such disclosure may show, or tend to show, that he himself has engaged in criminal activities.” (Emphasis added.)
However, the new language in SB 388 states that an officer who is notunder investigation, but is being interviewed about the actions of another officer, “shall have the right to be represented by a representative of his or her choice.“
SB 388 proposes changes to the language in POBR which would substantially alter the historical intent of the law and, in essence, render the phrase “under investigation and subjected to interrogation” meaningless.
What could be the motivation behind such a significant modification of POBRA? The motivation for that is set forth in the legislation itself – it is that officer’s concern that his or her answers “. . . are likely to result in punitive action against [another] public safety officer. . . “
This proposed change to POBR would now permit a witness officer to first confer with counsel before answering the most basic of all questions, “what happened,” solely for the purpose of protecting another officer. That appears to be contrary to the basic duties of an officer, as articulated in the Christal decision; “When police officers acquire knowledge of facts which will tend to incriminate any person, it is their duty to disclose such facts to their superiors . . .”
HOW THIS AFFECTS YOUR AGENCY
There are a variety of ways in which this proposed legislative change can affect agencies. First and foremost would be the potential undermining of the credibility of an agency and its members when it becomes known, publically, that officers can demand to confer with counsel before answering questions, just because they are concerned that their truthful statements “are likely to result in punitive action against [another] officer.”
It is not unreasonable for the public to believe that SB 388 is, in essence, codifying what is referred to as the “code of silence” among law enforcement officers. Were that belief to surface, it could erode the respect and credibility of those who are, in fact, honorable and truthful members of law enforcement.
As has been pointed out by those concerned with the negative impact of SB 388, this measure could deter cooperation of officers that witness on-the-job dishonesty, sexual harassment, and other employment misconduct.
In addition, since this provision is unlimited in its scope, there is a chance that when a supervisor arrives at a scene and inquires of an officer “what happened,” that officer will demand to first confer with an attorney if the officer believes his or her information is “likely to result in punitive action [against] another officer.”
This measure will also lengthen the time and cost of mandated personnel investigations, by allowing for attorneys to be present, not just for officers who are the subject of the investigation, but officers who are being interviewed merely as witnesses.
Another possible impact from the passage of SB 388 might be a significant financial burden placed on the police associations which provide representation to those covered under POBRA, as a result of the need to provide attorneys for witness officers, in addition to suspect officers.
It is also likely that this measure will increase employment litigation related to the supervision of employees. For example, if a “witness officer” demands representation because the witness believes it is “likely to result in punitive action [against] another officer,” but the agency disagrees and does not provide time for the witness to secure a representative, it is inevitable that litigation will ensue.
This legislation has not yet passed and, therefore, those who believe it is adverse to the interests of law enforcement professionals throughout the state, have the time to be heard in opposition. But once it passes, if it does, the impact will be significant and change the process of supervising law enforcement for years to come.
Passing new legislation, and/or modifying existing legislation, involves legal issues and, as such, consultation and advice from your agency’s legal counsel is urged.
As always, should you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 — 1400 or via email at mjm@jones-mayer.com
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