POBAR

Question 1

POBAR SECTION 3300

Answer 1

The Public Safety Officers Procedural Bill of Rights

Question 2

POBAR

Who does POBAR not cover?

Answer 2

• Rail Road Police PC 830.33(e)
• Reserve Police Officers 830.6
• County Coroner 830.35(c)

Question 3

POBAR 3302 Political Activity

Answer 3

(a) Except otherwise provided by law, or whenever on duty or in uniform, no public safety officer shall be prohibited from engaging, or be coerced or required to engage, in political activity
(b) No Public safety officer shall be prohibited from seeking election to, or serving as a member of, the governing board of a school district

Can’t use public funds for political activity

CA Common cause v. Duffy (1987)

Question 4

POBAR 3303 Punitive action

Officers allowed procedural rights when be interviewed or interrogated by commanding officer or public safety department if interview or interrogation can lead to discipline or punitive action

What is definition of punitive action?

Answer 4

Definition of punitive action = any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer = punishment

Question 5

POBAR 3303(a) Interview time

Answer 5

• Shall be conducted at reasonable hour -preferably during work hours, unless seriousness of investigation determines otherwise
• if interrogation is off duty = compensation
• Officer cannot be released from employment for any work missed during interrogation
• can be interviewed whether on active dirt or leave of absence (paid or u paid) Ballf v. Public Welfare Dept. also Crowley v. City and County of San Francisco

Question 6

POBAR 3303(b) INTERVIEWER

WHAT INFO IS OFFICER ENTITLED TO?

Answer 6

Officer entitled to name, rank, and command of the officer in charge of the interrogation, the interrogating officers, and all other persons to be present during the interrogation.

All questions directed at officer can only be directed by no more than 2 investigators

Question 7

POBAR 3303(c) NATURE OF THE COMPLAINT

What info is officer permitted to see for interrogation?

Answer 7

• the general nature of the complaint
• most departments allow date and time of occurrence, regulation violated, and if there are witnesses, however only general nature of complaint and regulation violated may be disclosed

Question 8

POBAR 3303(d) Length of Interview

How long can interview/ interrogation last?

Answer 8

• for a reasonable amount of time
• depends on the gravity and complexity of issue being investigated
• person under interrogation allowed to attend to his/her own physical necessities (hunger/ bathroom etc.)

Bottom line: employee allowed breaks

Question 9

POBAR 3303(e) HOW INTERVIEWS ARE CONDUCTED

Answer 9

• not subject to offensive language
• threatened with punitive action (except if officer refuse to answer questions or submit to interrogations/ Lybarger v. CITY OF Los Angeles 1985).
• no promise of reward
• can not be subject to visits by the press or news media without expressed consent
• nor shall address, or photo be given to press or news media without his/ her expressed consent* may be changed now*

Question 10

POBAR 3303(f) HIW INTERVIEWS ARE CONDUCTED

Answer 10

• no statement made during interrogation by public safety officer under duress, coercion, or threat of punitive action shall be admissible in any subsequent “civil” proceeding:
• except when department is seeking civil sanctions and disciplinary action brought under Section 19572
• shall not prevent admissibility of statements by officer in any civil action, including administrative actions, brought by the officer or officers representative, arising out of disciplinary action
• shall not prevent statements by officer under interrogation being used to impeach testimony of that officer after in camera review to determine whether the statements serve to impeach the testimony of the officer
• shall not prevent admissibility of statements of officer if he/she is deceased

Question 11

POBAR 3303(h) HOW INTERVIEWS ARE CONDUCTED

MIRANDA RIGHTS DURING INTERVIEW IR INTERROGATION

Answer 11

• if prior or during interview or interrogation, it is deemed that the officer may be charged with a criminal offense, the officer shall immediately be informed of constitutional rights (Miranda, 5th amendment self incrimination and the 14th coerced statements etc.)

Lybarger V. City of Los Angeles (informed of rights)

• 3303(e) says refusal to answer questions can pose administrative punishment = termination
• but refusal can be activated to protect from self incrimination from criminal prosecution

Example: right to remain silent can be deemed insubordination = disciplinary action

GARRITY v. State of New Jersey if Lybarger used in administrative interview, statements made cannot be used in criminal proceeding

Question 12

POBAR 3303(g) RECORDINGS

Rules of recorded interrogations/ interviews

Answer 12

• if interrogation is recorded, the involved officer shall be granted access to the recording(s)
• officer shall be entitled to copy of recording transcript or notes if any additional investigation follows, regardless of the level of discipline (unless determined to be confidential)
• no notes, reports or recordings determined to be confidential cannot be entered into officers Personnel file
• officer can bring his/her own recording device

Question 13

POBAR 3303(i) RIGHT TO REPRESENTATION

WHEN DOES AN OFFICER HAVE RIGHT TO REPRESENTATION

Answer 13

• officer is entitled to representation when ever a written complaint or charges or interrogation likely to result in punitive action
• representative of hi/her choice
• Representative can be present at all times
• Representative cannot be apart of same investigation
• Representative not required to disclose or be subject to punitive action for refusing to disclose any info received from an officer for any no criminal matter

does not cover normal/ unplanned interrogation or informal interview by supervisor during normal course of duty or criminal matters

does not allow officer to exclusive Representative of a single person if scheduling conflict exist. Must be reasonable and allow department to conduct interviews/ investigation in reasonable time

Question 14

POBAR 3304 Lawful Exercise of Rights

3304(a)

Answer 14

• No officer can be subjected to punitive action or denied promotion or threatened with any such treatment because of lawful exercise of rights or any existing administrative grievance procedure
• However, nothing shall preclude a head of an agency from ordering a public safety employee to cooperate with other agencies involved in criminal investigations; if officer refuses, he/she can be charged with insubordination if:

The investigation is primarily conducted by outside agency and without significant involvement by officer’s actual employer and the officer is not the subject of a criminal investigation.

Question 15

POBAR 3304(b) Administrative speak from demotion

Answer 15

No punitive action nor denial of promotion on grounds other than merit for officer who has completed probation, without process of administrative appeal

• documented counseling or memorandum with notation of potential future punishment invokes 3304(b)

Question 16

POBAR 3304(d) Time-Bar 1 yr

Except as provided in this subdivision and subdivision (g), no punitive action nor denial of promotion on grounds other than merit, shall be taken for any act, omission, or other allegation of misconduct if the investigation of allegations. Is not completed by 1yr of agency discovery (after January 1, 1998) unless:

Answer 16

1- act is also subject to criminal investigation (time tolled)

2- if officer waives 1 year time

3- if involves multiple-jurisdictional investigation which requires reasonable extension

4- if investigation involves more than one employee and required reasonable extension

5- if investigation involves employee who is incapacitated or unavailable

6- if employee is named as defendant in civil litigation, must wait until civil matter is resolved (time tolled)

7- if employee is involved in criminal litigation, which must be resolved (time tolled)

8- if employee is involved in workers compensation fraud

Bonus*** mere discovery of an incident does not necessarily start the clock but rather the discover of misconduct

Question 17

POBAR 3305 Personnel File

Adverse file

Answer 17

No officer shall have adverse comment added to personnel file or any file used by employee for personnel purposes, without officer reading and signing expect:

• if officer refuses to sign; then should be noted on comment or file