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AB-887 Public safety officers: investigations and interviews. (2017-2018)

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Date Published: 07/13/2017 09:00 PM
AB887:v94#DOCUMENT

Amended  IN  Senate  July 13, 2017
Amended  IN  Senate  July 06, 2017
Amended  IN  Senate  June 26, 2017
Amended  IN  Assembly  April 17, 2017
Amended  IN  Assembly  March 16, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 887


Introduced by Assembly Member Cooper
(Coauthors: Assembly Members Daly and O’Donnell)
(Coauthor: Senator Mendoza)

February 16, 2017


An act to amend Section 3303 of, and to add Section 3309.2 to, the Government Code, relating to public safety officers.


LEGISLATIVE COUNSEL'S DIGEST


AB 887, as amended, Cooper. Public safety officers: investigations and interviews.
Existing law, the Public Safety Officers Procedural Bill of Rights Act, grants a variety of rights to public safety officers, as defined, and imposes various duties on their employers. The act requires, when a public safety officer is under investigation and is interrogated by his or her commanding officer, or another member of the employing agency, on matters than that could lead to punitive action, the interrogation be conducted under certain conditions, including that the public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation.
This bill would specify that a public safety officer under investigation is required to be informed of the time, date, and location of any incident at issue, the internal affairs case number, if any, and the title of any policies, rules, and procedures alleged to have been violated with a general characterization of the event giving rise to any complaint. The bill would prohibit these provisions from being construed to grant a right to full discovery of reports and witness statements or a detailed description of the events that are the basis of the allegation before an officer’s interrogation. The bill would specify information an agency may provide if it is investigating voluminous complaints, as defined, regarding the violation of the same rule or policy. The bill would specify, among other things, that the provisions regarding investigations and interrogations, as described above, do not preclude eliminating or adding other policy or rule citations as warranted by the discovery of new information or evidence in the course of an investigation.
This bill would also prohibit requiring a representative of a recognized employee organization or a public safety officer to disclose, or be subject to punitive action for refusing to disclose, the existence or content of specified communications between them.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 3303 of the Government Code is amended to read:

3303.
 When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions. For the purpose of this chapter, punitive action means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.
(a) The interrogation shall be conducted at a reasonable hour, preferably at a time when the public safety officer is on duty, or during the normal waking hours for the public safety officer, unless the seriousness of the investigation requires otherwise. If the interrogation does occur during off-duty time of the public safety officer being interrogated, the public safety officer shall be compensated for any off-duty time in accordance with regular department procedures, and the public safety officer shall not be released from employment for any work missed.
(b) The public safety officer under investigation shall be informed prior to the interrogation of the rank, name, 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 to the public safety officer under interrogation shall be asked by and through no more than two interrogators at one time.
(c) (1) The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation. For this purpose, the officer shall be informed of the following:
(A) The time and date of any incident at issue.
(B) The location of any incident at issue.
(C) The internal affairs case number, if any.
(D) The title of any policies, orders, rules, procedures, or directives alleged to have been violated with a general characterization of the event giving rise to the allegation against the public safety officer is based.
(2) This subdivision shall not be construed to provide a right of full discovery of investigation reports and witness statements or a detailed description of the events that are the basis of the allegation made before an officer’s interrogation.
(3) (A) For administrative investigations that have voluminous complaints for the same rule or policy violation, the agency may list the date, time, and location, and characterization for 10 events and, in addition, list the timeframe from the first to the last event and the total number of events within that timeframe.
(B) For purposes of this subdivision, “voluminous complaints” are defined as violations that have 25 or more incidents being investigated.
(d) The interrogating session shall be for a reasonable period taking into consideration the gravity and complexity of the issue being investigated. The person under interrogation shall be allowed to attend to his or her own personal physical necessities.
(e) The public safety officer under interrogation shall not be subjected to offensive language or threatened with punitive action, except that an officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action. No promise of reward shall be made as an inducement to answering any question. The employer shall not cause the public safety officer under interrogation to be subjected to visits by the press or news media without his or her express consent nor shall his or her home address or photograph be given to the press or news media without his or her express consent.
(f) No statement made during interrogation by a public safety officer under duress, coercion, or threat of punitive action shall be admissible in any subsequent civil proceeding. This subdivision is subject to the following qualifications:
(1) This subdivision shall not limit the use of statements made by a public safety officer when the employing public safety department is seeking civil sanctions against any public safety officer, including disciplinary action brought under Section 19572.
(2) This subdivision shall not prevent the admissibility of statements made by the public safety officer under interrogation in any civil action, including administrative actions, brought by that public safety officer, or that officer’s exclusive representative, arising out of a disciplinary action.
(3) This subdivision shall not prevent statements made by a public safety officer under interrogation from being used to impeach the testimony of that officer after an in camera review to determine whether the statements serve to impeach the testimony of the officer.
(4) This subdivision shall not otherwise prevent the admissibility of statements made by a public safety officer under interrogation if that officer subsequently is deceased.
(g) The complete interrogation of a public safety officer may be recorded. If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. No notes or reports that are deemed to be confidential may be entered in the officer’s personnel file. The public safety officer being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation.
(h) If prior to or during the interrogation of a public safety officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights.
(i) 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 any public safety officer, that officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation. The representative shall not be a person subject to the same investigation. The representative shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from the officer under investigation for noncriminal matters.
(j) (1) This section shall not apply to any interrogation of a public safety officer in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other public safety officer, nor shall this section apply to an investigation concerned solely and directly with alleged criminal activities.
(2) This section does not preclude eliminating or adding other policy or rule citations as may be warranted by the discovery of new information or evidence during the course of an investigation nor does it limit the policies or rules the violation of which may form the basis of potential misconduct charges once the truth of a matter has been ascertained.
(k) No public safety officer shall be loaned or temporarily reassigned to a location or duty assignment if a sworn member of his or her department would not normally be sent to that location or would not normally be given that duty assignment under similar circumstances.

SEC. 2.

 Section 3309.2 is added to the Government Code, to read:

3309.2.
 Neither a representative of a recognized employee organization nor a public safety officer shall be required to disclose, or be subject to punitive action for refusing to disclose, the existence of, or content of, any communication between them seeking representation or regarding matters within the scope of the organization’s representation.