PPOA - Legislation

PUBLIC SAFETY OFFICERS
PROCEDURAL BILL OF RIGHTS ACT
Government Code §§ 3300, et seq.
October 14, 1995

Diane Marchant, A Law Corporation
523 W. Sixth St. - Suite 1228
Los Angeles, CA 90014
(213) 533-8923

BILL OF RIGHTS ACT

INTRODUCTION
What is the Public Safety Officers Procedural Bill of Rights Act? It is a California law which gives some measure of
protection to police officers against their own department'sinvestigative zeal.

The Los Angeles Police Protective League was the primary sponsor of the Bill of Rights Act, which was known as AB-301 when it was introduced in the California Assembly, and it is sometimes still called that today.

The Act, which became effective on January 1, 1977, imposed significant changes on the state's police departments in the way they conduct investigations involving their own personnel.

WHO IS COVERED BY THE ACT?
Government Code §3301

Every person who is currently employed as a peace officer as defined by Penal Code §830.1, 830.2, 830.3, 830.31, 830.32, 830.33 (except subdivision [e]), 830.34, 830.35 (except subdivision [c]), 830.36, 830.37, 830.38, 830.4 and 830.5 is entitled to the protections of the Bill of Rights Act.

Members of a fire department arson-investigating unit are peace officers covered by the Act (Penal Code Section 830.37). However, Fire Prevention Officers, even when enforcing fire prevention laws, are not "peace officers" unless their Department decides to designate them as peace officers. Then they also come in under Section 830.37. Service Employees International Union v. City of Redwood City (1995) 32 Cal.App.4th 53, 38 Cal.Rptr.2d 86.

One gray area of coverage involves former officers; that is, officers who have resigned, retired, or been discharged. As will be seen in the following sections, former officers may have certain rights under the Act, even after they are no longer with the Department.

POLITICAL ACTIVITY
Government Code §3302

When off duty and out of uniform, peace officers are free to engage in political activity. When on duty or in uniform they can be prohibited from engaging in political activity. Even if the Department has approved the political activity, the Courts can prohibit it. California Common Cause v. Duffy (1987) 200 Cal.App.3d 730, 246 Cal.Rptr. 285, involved San Diego County Sheriff John Duffy's efforts to assist in the campaign against Rose Bird. Duffy used on-duty uniformed personnel and departmental equipment to distribute postcards printed by a campaign committee opposed to Bird's retention as Chief Justice of the California Supreme Court. Common Cause successfully sued for a judicial declaration that the Sheriff's activity was illegal.

What is "political activity"? In California Common Cause v. Duffy the Court drew a distinction between "political activity" and "informational activity." "Political activity" encompasses bond issues, persons running for office, Charter proposals—any issue that has both proponents and opponents. For example, an officer has the right to inform and enlighten the public about matters that are reasonably within the scope of his law enforcement duties, but he may not promote a partisan position in an election campaign. That is, he may not "take sides" in election contests, but he may give a fair presentation of the facts, both good and bad, in response to a citizen's request for information.

What is "off duty?" Is the Sheriff ever "off duty?" San Diego County Sheriff John Duffy argued that since he was basically never "off duty" the statute had the effect of prohibiting him from ever engaging in political activity. The Court in the Common Cause case ignored the argument since the issue before it was whether his deputies could distribute political postcards while clearly on duty.

INTERROGATION AND INVESTIGATION RIGHTS
Government Code §3303

1. WHEN DO THE RIGHTS KICK IN?

Section 3303 basically describes the rights of officers who are being administratively investigated by their own Department.

Officer as Possible Criminal Suspect. Section 3033 is not applicable when the officer is being questioned by his Department solely about his alleged criminal activities. In such a case, the officer is in the same boat as any citizen—he can refuse to be questioned.

When an officer has participated in an incident that he knows will be "investigated" as a matter of Departmental routine procedure but which, nevertheless, has potential criminal liability, i.e., a "use of force," or an "officer involved shooting," the officer is entitled to the protections of §3303.

As a matter of right under §3303, the court in Long Beach Police Officers Assn. v. City of Long Beach (1984) 156 Cal.App.3d 996, 203 Cal.Rptr. 494, noted: "It would be absurd if an officer who has committed a minor infraction and who is subject to inconsequential punitive action is entitled to representation and counseling under section 3303, subdivision (h), while an officer who has just been involved in a shooting incident and faces potentially grave penal sanctions is not entitled to an advisor prior to the filing of a potentially incriminating report."

The rights set forth in Section 3303 do not pertain to officers who are under criminal investigation by outside agencies, such as the Highway Patrol, the FBI, or the District Attorney's Office. Any officer who is contacted by an outside agency should consult with an attorney.

Officer as "Witness." Section 3303 also does not cover officers who are simply identified by the Department as "witnesses" in an administrative investigation. However, a witness has a Weingarten right under labor law to the presence of a union representative at an interview with a supervisor where the witness fears he or she might eventually be a "suspect."

2. WHEN CAN AN INTERROGATION TAKE PLACE?

The language of this part of the Act is unambiguous, and major misunderstandings do not usually arise here. The question that sometimes comes up is in the context of an officer who is off on vacation, stress or disability at the time the Department decides to interrogate him or her. If the officer is relieved of duty without pay or is not receiving some other form of compensation from the County, he or she is not subject to orders from the Department.

If the officer is on sick leave, or on vacation, or receiving IOD pay, or some other form of compensation, it is the better practice to obey the order to report for the interrogation, but make all appropriate objections on the record to preserve the issue, i.e., put it on the tape of the interview, submit doctor letters, etc.

Similarly, document objections to the length of the interview if the officer has been held for questioning for a number of hours.

3. HOW MUCH INFORMATION PRIOR TO THE INTERROGATION?

The officer is entitled to know the nature of the investigation prior to being interrogated. The officer is entitled to be informed of the name, rank and command of everybody present at the interrogation prior to being interrogated. Generally, an officer is not entitled to reports and complaints made by investigators or other persons prior to the interrogation. Pasadena Police Officers Ass'n v. City of Pasadena (1990) 51 Cal.3d 564, 273 Cal.Rptr. 584.

Also, if the officer is deemed a criminal suspect, Miranda warnings must be given prior to the interrogation. If the officer refuses to waive his constitutional rights, and the Department wishes to continue the interrogation anyway, the Department must order the officer to answer the questions and advise the officer that nothing he says in response to such an order can be used against him in a subsequent criminal or civil proceeding.

4. TAPE RECORDING

If the officer is under investigation and subject to interrogation, the "complete" interrogation may be tape recorded by the officer or the Department or both. The officer should turn his machine on as soon as anyone starts talking, even if it is explanatory or introductory discussion. An officer does not have to wait for the Department to turn on its tape recorder. This right to tape record applies whether the interrogation is being conducted by internal affairs, or by the officer's supervisor.

5. TRANSFER OR REASSIGNMENT

What the Department may do with an officer under investigation needs only to be consistent with what it normally does with officers under investigation. Thus, if it is "normal" to assign an officer to desk duty or to home until the investigation is complete, there is no violation of the Bill of Rights Act. However, if the reassignment also causes loss of pay, the officer is entitled to an administrative appeal. Baggett v. Gates (1982) 32 Cal.3d 128, 185 Cal.Rptr. 232.

6. RIGHT TO REPRESENTATIVE

This act gives an officer the right to a representative in two circumstances: (1) when he or she is formally accused of misconduct; (2) whenever an interview or interrogation "focuses on matters which are likely to result in punitive action" (disciplinary action).

This second aspect of the right to a representative might arise midway through an interview where the officer has been unrepresented up to that point.

Since the Act bestows a confidential relationship between the representative and the accused officer only with regard to non-criminal matters, an officer under investigation should not confide in an officer representative if such confidence would disclose possible criminal liability. An officer-representative could be ordered to disclose those confidences to the Department. If the accused officer is potentially liable for criminal activity, he should use an attorney as a representative.

The officer has the right to represented by the "representative of his choice." What if the officer's chosen representative is not immediately available? Does the Department have to hold off on the interrogation until the representative is available? If so, how long? The officer can probably be required to choose another representative if the first choice is not available within a reasonable period of time.

7. CONSTITUTIONAL RIGHTS

Generally. Every person, including a peace officer, has the right not to incriminate himself. Ordinarily, the only way the government can force a person, including a peace officer, to incriminate himself is by officially granting him immunity from prosecution based on his statements. This device protects the person's right against self-incrimination while at the same time permitting the investigating agency to obtain needed information.

Another device is used when the government wishes to extract information from one of its employees. Should the employee refuse to waive his constitutional right against self incrimination, the government can order the employee to speak. Answers received pursuant to such an order cannot be used against the employee in a subsequent criminal prosecution.

Under the Act. Peace Officers' rights in this context are specifically spelled out in the Act, as explained in Lybarger v. City of Los Angeles (1985) 40 Cal. 3d 822, 221 Cal.Rptr. 529:

(a) If the officer could be charged with a criminal offense, the Department must advise him of his constitutional rights;

(b) The officer may refuse to waive those rights;

(c) If the Department still wants him to answer questions, it must give him an order to answer and it must advise him that failure to obey that order could result in punitive action and it must advise him that statements made in response to this order cannot be used in criminal proceedings against him.

If the Department initiates an interrogation, unaware that the officer being questioned could be charged with a criminal offense, but the officer is aware of such jeopardy, the officer can "take the Fifth," and force the Department to either give him the "Lybarger admonition" or terminate the interview.

Under a recent amendment to the Act, an officer's statements made after a "Lybarger admonition" cannot be used against him in a subsequent civil proceeding either.

Although an officer's statement, made after the "Lybarger admonition," cannot be used against him in a criminal or civil proceeding, the District Attorney can get it if he wants it, pursuant to Penal Code §832.7. Likewise, a Federal Grand Jury can subpoena from the Sheriff's Department any "immunized" statement made by one of its officers.

However, the D.A. may risk the integrity of his prosecution if he does so. People v. Gwillim (1990) 223 Cal.App.3d 1254, 274 Cal.Rptr. 415 ("Although the district attorney may have a statutory right under section 832.7 to obtain a police officer's immunized statement, we do not hold that the district attorney must or should receive such a statement. Depending on the nature of the immunized statement and the circumstances of a given case, a district attorney with knowledge of defendant's immunized statement may be unable to show that a criminal case can be prosecuted without use of the statement. For this reason, the district attorney's decision whether to receive an immunized statement under the authority of section 832.7 should be made in contemplation of the risk involved.")

Likewise, a federal prosecutor who obtains a Federal Grand Jury indictment against an officer, after the Grand Jury has received the officer's "immunized" statement, faces a heavy burden of proving that the indictment rests on wholly independent sources. United States v. Zielezinski, 740 F.2d 727 (9th Cir.1984); United States v. Hinton, 543 F.2d 1002 (2nd Cir. 1976); United States v. Crowson, 828 F.2d 1427 (9th Cir. 1987).

RIGHT TO ADMINISTRATIVE APPEAL
Government Code §3304 (b)

The most common questions involving the right to appeal are: (1) When does the right to an appeal arise; and (2) What kind of appeal does the Act require?

When Do You Get an Appeal: The Department must provide the officer with an administrative appeal any time it takes "punitive action" against the officer, or denies the officer promotion on grounds other than merit. "Punitive action" includes "dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment."

Any dismissal, demotion, suspension, reduction in salary or written reprimand entitles the officer to an appeal, whether or not it was done for disciplinary reasons. Therefore, the loss of bonus pay carries the right to an appeal, as does involuntary retirement for medical reasons. Rejection during probation also carries the right to an appeal.

Because "punitive action" is literally defined in the Act as "any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment," an officer may be entitled to an appeal if some other adverse action is taken against him. For example, in Hopson v. City of Los Angeles (1983) 139 Cal.App.3d 347, 188 Cal.Rptr. 689, the court found it was "punitive action" to put a copy of a Police Commission report on the Eulia Love shooting in the officers' packages, since Chief Gates testified that the presence of such report in the file would be detrimental to their future careers.

Without a showing that the report will result in disadvantage, no appeal is required. Haight v. City of San Diego (1991) 228 Cal.App.3d 413, 278 Cal.Rptr. 334 involved an officer who voluntarily resigned and then complained that the "separation report" prepared by the Department after he left, which recommended that he not be rehired, entitled him to an appeal. The court disagreed. "The placement of an unfavorable review in the police officer's file does not in and of itself require an administrative appeal."

Neither do negative comments contained in a regularly scheduled performance evaluation give rise to the right to an administrative appeal. Turturici v. City of Redwood City (1987) 190 Cal.App.,3d 1447, 236 Cal.Rptr. 53.

What Kind of Appeal Do You Get: The Act does not say precisely what kind of appeal an officer gets. The details of the administrative appeal are left to be formulated by the local agency. Some of these details may be found in civil service rules, arbitration agreements, charter provisions, and the like. So long as the appeal conforms to the local rules, that's good enough in most cases. However, where the local rules do not conform to the requirements of due process, and the employee is entitled to due process, the courts do not hesitate to step in.

Most agencies have some kind of appeal procedure in place for officers hit with "punitive action." For example, in the Sheriff's Department, long suspensions and discharges are appealed to the County Civil Service Commission. Short suspensions and other minor disciplinary action are handled through the grievance process contained in the MOU.

The Bill of Rights Act is not being construed by the Courts these days to require a full trial©type evidentiary hearing for every conceivable "punitive action."

Stanton v. City of West Sacramento (1991) 226 Cal.App.3d 1438, 277 Cal.Rptr. 478, involved a written reprimand issued to an officer by his lieutenant. Under the MOU, he was entitled to an appeal to the Chief of Police. The officer argued that he was entitled to Skelly rights and other due process protections. The Court disagreed. A written reprimand does not implicate due process rights because no loss of pay or benefits is involved. Since the officer had an appeal to someone other than the person who imposed the reprimand, the Bill of Rights Act was satisfied.

Similarly, an officer who is employed "at will" may not be entitled to Skelly rights or a full-blown hearing after discharge. Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 20 Cal.Rptr.2d 903, is a good example. The case involved a police chief, serving at the pleasure of the City Manager, who was discharged after the City Manager "lost confidence" in his ability to lead the Department. Chief Binkley was permitted to present his side of the case to an outside neutral, but the City Manager retained the right to make the final decision. Since no local rules were violated in this procedure, and Binkley had no "due process" rights (being an "at will" employee), the Court found no offense to the Bill of Rights Act.

FREEDOM FROM RETALIATION
Government Code §3304 (a)

The Department may not base punitive action or denial of promotion on an officer's use of the grievance procedure or lawful exercise of rights under the Bill of Rights Act. For example, the Department may not discharge an officer for engaging in off-duty political activity. Such activity would be a lawful exercise of the officer's rights under §3302 (a).

Neither would it be proper for the Department to take revenge against an officer lwho persuades the Civil Service Commission to overturn disciplinary action taken against him by the Sheriff. Because the Act gives the officer the right to appeal to the Civil Serviçe Commission (§3304[b]), he should not suffer adverse consequences for exercising that right.

ENTRIES IN PERSONNEL FILES
Government Code §§3305 and 3306

No adverse comments can be put in an officer's personnel file or any other file used for personnel purposes until he has seen it and had an opportunity to sign it. The officer then has 30 days within which to file a written response, which must be attached to the adverse comment. This provision keeps the Department form building a secret file on an officer.

Citizen complaints of police brutality must be shown to the officer before they are placed in any file used for personnel purposes, including a "separate confidential citizen complaint file." Aguilar v. Johnson (1988) 202 Cal.App. 3d 241, 247 Cal.Rptr. 909.

Even a former officer, who discovers after he resigns that the Department has put an adverse comment in his file after her resigned, has 30 days to file a written response. Haight v. City of San Diego (1991) 228 Cal.App.3d 413, 278 Cal.Rptr. 334.

POLYGRAPH EXAMINATIONS
Government Code §3307

An officer cannot be compelled to take a polygraph, and his refusal to take a poly cannot be commented upon or used against him in any proceeding. However, a recent appellate decision involving the Los Angeles Police Department held that an officer can be required to submit to a polygraph examination as a prerequisite to transferring into certain sensitive positions, such as orgainized crime, vice or narcotics.

FINANCIAL DISCLOSURES
Government Code §3308

This section limits the circumstances under which the Department can acquire information about an officer's financial situation without a warrant. The Act does permit the Department to inquire into such matters if the information "tends to indicate a conflict of interest with respect to the performance of his official duties, or is necessary for the employing agency to ascertain the desirability of assigning the public safety officer to a specialized unit in which there is a strong possibility that bribes or other improper inducements may be offered."
There are no published decisions construing this section. However, in ALADS v. County of Los Angeles (1987) 236 Cal.Rptr. 495, a decision that was depublished, Deputy Sheriff Bryant became the subject of a narcotics investigation. The Department executed a search warrant on his home and found $20,000 in cash. The Department scheduled an interrogation to focus on his personal finances, sources of income and business dealings with family members. Bryant asserted a right not to answer these questions, but the Court disagreed: "On this record, the [Internal Investigations] Bureau would be derelict if it did not look into Bryant's personal finances because the information so far known 'tends to indicate a conflict of interest with respect to the performance of his official duties'..., or at least puts the Bureau on inquiry as to whether
Bryant should be assigned to a sensitive, specialized unit..."

SEARCHES
Government Code

An officer's Departmental locker or other Departmental storage space assigned to him may be searched if (1) he has consented, or (2) he is present, or (3) he has been notified that a search will be conducted, or (4) a search warrant has been obtained. An officer's home, garage, or personal vehicle cannot be searched absent the same circumstances that would warrant such a search of a private individual. This does not mean that the Department can allow an outside criminal investigative agency to come onto the premises and conduct a search of an officer's locker merely upon advance notice to the employee. Such searches would likely require a warrant United States v. Taketa, 923 F.2d 665 (9th Cir. 1991).

LEGAL REMEDIES
Government Code

The Superior Court has jurisdiction to decide whether or not a Bill of Rights Act violation has occurred in a particular case. If the Court finds that a violation has occurred, it must issue an injunction designed to cure the violation and prevent future violations. The officer does not have to exhaust his administrative remedies (such a filing a grievance) before initiating such a court action. Mounger v. Gates (1987) 193 Cal.App.3d 1248, 239 Cal.Rptr. 18.

The courts have decided that not every Bill of Rights Act violation warrants a remedy. The test is whether the outcome would have been different if the violation had not occurred. Think of this in terms of "harmless error" versus "prejudicial error." For example, if a violation occurs in the course of an officer's interrogation, but no disciplinary action is taken against that officer, the mere violation of his rights may be "harmless error." See, Williams v. City of Los Angeles (1988) 47 Cal.3d 195, 252 Cal.Rptr. 817.

Therefore, court action probably should not be initiated until and unless it is clear that the officer is going to suffer some adverse action as the result of the Department's violation of the Act. For example, the officer has been denied a representative and an opportunity to tape record his interrogation, and the Department claims that he admitted misconduct at his interrogation and discharges him based on his own statements. Injunctive relief may be necessary and appropriate to keep the Department from using the officer's alleged "confession." Hanna v. City of Los Angeles (1989) 212 Cal.App.3d 363, 260 Cal.Rptr. 782.

DEPARTMENT'S ESCAPE CLAUSE
Government Code §3310

The Department does not violate the Bill of Rights Act if its own internal procedures give the officer the same or better protection than he would enjoy under the Act.