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The Public Safety Officers Procedural
Bill of Rights Act
California Government Code section 3300 et seq.
GOVERNMENT CODE
TITLE 1. GENERAL
DIVISION 4. Public Officers and Employees
CHAPTER 9.7. Public Safety Officers
§ 3300. Short title
This chapter is known and may be cited as the Public Safety Officers
Procedural Bill of Rights Act.
§ 3301. "Public safety officer";
Legislative findings and declarations
For purposes of this chapter, the term public safety officer means
all peace officers specified in Sections 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 of the Penal Code.
The Legislature hereby finds and declares that the rights and protections
provided to peace officers under this chapter constitute a matter
of statewide concern. The Legislature further finds and declares
that effective law enforcement depends upon the maintenance of stable
employer-employee relations, between public safety employees and
their employers. In order to assure that stable relations are continued
throughout the state and to further assure that effective services
are provided to all people of the state, it is necessary that this
chapter be applicable to all public safety officers, as defined
in this section, wherever situated within the State of California.
§ 3302. Political activity
| (a) |
Except as 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. |
§ 3303. Subjection to
interrogation; Temporary reassignment
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) |
The public safety
officer under investigation shall be informed of the nature
of the investigation prior to any interrogation. |
| (d) |
The interrogating session shall
be for a reasonable period taking into consideration 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: |
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(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. |
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(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. |
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(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. |
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(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.
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. |
| (j) |
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. |
§ 3304. Protection of
procedural rights
| (a) |
No public safety officer shall
be subjected to punitive action, or denied promotion, or be
threatened with any such treatment, because of the lawful exercise
of the rights granted under this chapter, or the exercise of
any rights under any existing administrative grievance procedure.
Nothing in this section shall preclude a head of an agency from
ordering a public safety officer to cooperate with other agencies
involved in criminal investigations. If an officer fails to
comply with such an order, the agency may officially charge
him or her with insubordination. |
| (b) |
No punitive action, nor denial
of promotion on grounds other than merit, shall be undertaken
by any public agency against any public safety officer who has
successfully completed the probationary period that may be required
by his or her employing agency without providing the public
safety officer with an opportunity for administrative appeal. |
| (c) |
No chief of police may be removed
by a public agency, or appointing authority, without providing
the chief of police with written notice and the reason or reasons
therefor and an opportunity for administrative appeal.
For purposes of this subdivision, the removal of a chief of
police by a public agency or appointing authority, for the purpose
of implementing the goals or policies, or both, of the public
agency or appointing authority, for reasons including, but not
limited to, incompatibility of management styles or as a result
of a change in administration, shall be sufficient to constitute
"reason or reasons."
Nothing in this subdivision shall be construed to create a property
interest, where one does not exist by rule or law, in the job
of Chief of Police. |
| (d) |
Except as provided in this subdivision
and subdivision (g), no punitive action, nor denial of promotion
on grounds other than merit, shall be undertaken for any act,
omission, or other allegation of misconduct if the investigation
of the allegation is not completed within one year of the public
agency's discovery by a person authorized to initiate an investigation
of the allegation of an act, omission, or other misconduct.
This one-year limitation period shall apply only if the act,
omission, or other misconduct occurred on or after January 1,
1998. In the event that the public agency determines that discipline
may be taken, it shall complete its investigation and notify
the public safety officer of its proposed disciplinary action
within that year, except in any of the following circumstances: |
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(1) |
If the act, omission, or other
allegation of misconduct is also the subject of a criminal investigation
or criminal prosecution, the time during which the criminal
investigation or criminal prosecution is pending shall toll
the one-year time period. |
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(2) |
If the public safety officer
waives the one-year time period in writing, the time period
shall be tolled for the period of time specified in the written
waiver. |
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(3) |
If the investigation is a multijurisdictional
investigation that requires a reasonable extension for coordination
of the involved agencies. |
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(4) |
If the investigation involves
more than one employee and requires a reasonable extension. |
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(5) |
If the investigation involves
an employee who is incapacitated or otherwise unavailable. |
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(6) |
If the investigation involves
a matter in civil litigation where the public safety officer
is named as a party defendant, the one-year time period shall
be tolled while that civil action is pending. |
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(7) |
If the investigation involves
a matter in criminal litigation where the complainant is a criminal
defendant, the one-year time period shall be tolled during the
period of that defendant's criminal investigation and prosecution. |
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(8) |
Where a predisciplinary response
or grievance procedure is required or utilized, the time for
this response or procedure shall not be governed or limited
by this chapter. |
| (f) |
If, after investigation and any
predisciplinary response or procedure, the public agency decides
to impose discipline, the public agency shall notify the public
safety officer in writing of its decision to impose discipline,
including the date that the discipline will be imposed, within
30 days of its decision, except if the public safety officer
is unavailable for discipline. |
| (g) |
Notwithstanding the one-year
time period specified in subdivision (c), an investigation may
be reopened against a public safety officer if both of the following
circumstances exist: |
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(1) |
Significant new evidence has
been discovered that is likely to affect the outcome of the
investigation. |
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(2) |
One of the following conditions
exist: |
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(A) |
The evidence could not reasonably
have been discovered in the normal course of investigation without
resorting to extraordinary measures by the agency. |
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(B) |
The evidence resulted from the public safety
officer's predisciplinary response or procedure. |
| (h) |
For those members listed in subdivision
(a) of Section 830.2 of the Penal Code, the 30-day time period
provided for in subdivision (e) shall not commence with the
service of a preliminary notice of adverse action, should the
public agency elect to provide the public safety officer with
such a notice. |
§ 3304.5. Procedure for
administrative appeal
An administrative appeal instituted by a public safety officer under
this chapter shall be conducted in conformance with rules and procedures
adopted by the local public agency.
§ 3305. Entry of adverse comments in personnel
file
No public safety officer shall have any comment adverse to his interest
entered in his personnel file, or any other file used for any personnel
purposes by his employer, without the public safety officer having
first read and signed the instrument containing the adverse comment
indicating he is aware of such comment, except that such entry may
be made if after reading such instrument the public safety officer
refuses to sign it. Should a public safety officer refuse to sign,
that fact shall be noted on that document, and signed or initialed
by such officer.
§ 3306. Response to adverse comment
A public safety officer shall have 30 days within which to file
a written response to any adverse comment entered in his personnel
file. Such written response shall be attached to, and shall accompany,
the adverse comment.
§ 3306.5. Inspection of personnel files
of officer
| (a) |
Every employer shall, at reasonable
times and at reasonable intervals, upon the request of a public
safety officer, during usual business hours, with no loss of
compensation to the officer, permit that officer to inspect
personnel files that are used or have been used to determine
that officer's qualifications for employment, promotion, additional
compensation, or termination or other disciplinary action. |
| (b) |
Each employer shall keep each
public safety officer's personnel file or a true and correct
copy thereof , and shall make the file or copy thereof available
within a reasonable period of time after a request therefor
by the officer. |
| (c) |
If, after examination of the
officer's personnel file, the officer believes that any portion
of the material is mistakenly or unlawfully placed in the file,
the officer may request, in writing, that the mistaken or unlawful
portion be corrected or deleted. Any request made pursuant to
this subdivision shall include a statement by the officer describing
the corrections or deletions from the personnel file requested
and the reasons supporting those corrections or deletions. A
statement submitted pursuant to this subdivision shall become
part of the personnel file of the officer. |
| (d) |
Within 30 calendar days of receipt
of a request made pursuant to subdivision (c), the employer
shall either grant the officer's request or notify the officer
of the decision to refuse to grant the request. If the employer
refuses to grant the request, in whole or in part, the employer
shall state in writing the reasons for refusing the request,
and that written statement shall become part of the personnel
file of the officer. |
§ 3307. Lie detector
test
| (a) |
No public safety officer shall
be compelled to submit to a lie detector test against his or
her will. No disciplinary action or other recrimination shall
be taken against a public safety officer refusing to submit
to a lie detector test, nor shall any comment be entered anywhere
in the investigator's notes or anywhere else that the public
safety officer refused to take, or did not take, a lie detector
test, nor shall any testimony or evidence be admissible at a
subsequent hearing, trial, or proceeding, judicial or administrative,
to the effect that the public safety officer refused to take,
or was subjected to, a lie detector test. |
| (b) |
For the purpose of this section,
"lie detector" means a polygraph, deceptograph, voice
stress analyzer, psychological stress evaluator, or any other
similar device, whether mechanical or electrical, that is used,
or the results of which are used, for the purpose of rendering
a diagnostic opinion regarding the honesty or dishonesty of
an individual. |
§ 3307.5. Photograph
or identity as public safety officer
| (a) |
No public safety officer shall
be required as a condition of employment by his or her employing
public safety department or other public agency to consent to
the use of his or her photograph or identity as a public safety
officer on the Internet for any purpose if that officer reasonably
believes that the disclosure may result in a threat, harassment,
intimidation, or harm to that officer or his or her family. |
| (b) |
Based upon his or her reasonable
belief that the disclosure of his or her photograph or identity
as a public safety officer on the Internet as described in subdivision
(a) may result in a threat, harassment, intimidation, or harm,
the officer may notify the department or other public agency
to cease and desist from that disclosure. After the notification
to cease and desist, the officer, a district attorney, or a
United States Attorney may seek an injunction prohibiting any
official or unofficial use by the department or other public
agency on the Internet of his or her photograph or identity
as a public safety officer. The court may impose a civil penalty
in an amount not to exceed five hundred dollars ($ 500) per
day commencing two working days after the date of receipt of
the notification to cease and desist. |
§ 3308. Disclosure of
financial status
No public safety officer shall be required or requested for purposes
of job assignment or other personnel action to disclose any item
of his property, income, assets, source of income, debts or personal
or domestic expenditures (including those of any member of his family
or household) unless such information is obtained or required under
state law or proper legal procedure, tends to indicate a conflict
of interest with respect to the performance of his official duties,
or is necessry 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.
§ 3309. Search of locker
No public safety officer shall have his locker, or other space for
storage that may be assigned to him searched except in his presence,
or with his consent, or unless a valid search warrant has been obtained
or where he has been notified that a search will be conducted. This
section shall apply only to lockers or other space for storage that
are owned or leased by the employing agency.
§ 3309.5. Proceeding for violations of
rights and protections
| (a) |
It shall be unlawful for any
public safety department to deny or refuse to any public safety
officer the rights and protections guaranteed to him or her
by this chapter. |
| (b) |
The superior court shall have
initial jurisdiction over any proceeding brought by any public
safety officer against any public safety department for alleged
violations of this chapter. |
| (c) |
(1) |
In any case where the superior
court finds that a public safety department has violated any
of the provisions of this chapter, the court shall render appropriate
injunctive or other extraordinary relief to remedy the violation
and to prevent future violations of a like or similar nature,
including, but not limited to, the granting of a temporary restraining
order, preliminary, or permanent injunction prohibiting the
public safety department from taking any punitive action against
the public safety officer. |
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(2) |
If the court finds that a bad
faith or frivolous action or a filing for an improper purpose
has been brought pursuant to this chapter, the court may order
sanctions against the party filing the action, the parties attorney,
or both pursuant to Sections 128.6 and 128.7 of the Code of
Civil Procedure. Those sanctions may include, but not be limited
to, reasonable expenses, including attorney's fees, incurred
by a public safety department, as the court deems appropriate.
Nothing in this paragraph is intended to subject actions or
filings under this section to rules or standards that are different
from those applicable to other civil actions or filings subject
to Section 128.6 or 128.7 of the Code of Civil Procedure. |
| (d) |
In addition to the extraordinary
relief afforded by this chapter, upon a finding by a superior
court that a public safety department, its employees, agents,
or assigns, with respect to acts taken within the scope of employment,
maliciously violated any provision of this chapter with the
intent to injure the public safety officer, the public safety
department shall, for each and every violation, be liable for
a civil penalty not to exceed twenty-five thousand dollars ($
25,000) to be awarded to the public safety officer whose right
or protection was denied and for reasonable attorney's fees
as may be determined by the court. If the court so finds, and
there is sufficient evidence to establish actual damages suffered
by the officer whose right or protection was denied, the public
safety department shall also be liable for the amount of the
actual damages. Notwithstanding these provisions, a public safety
department may not be required to indemnify a contractor for
the contractor's liability pursuant to this subdivision if there
is, within the contract between the public safety department
and the contractor, a "hold harmless" or similar provision
that protects the public safety department from liability for
the actions of the contractor. An individual shall not be liable
for any act for which a public safety department is liable under
this section. |
§ 3310. Exception as
to public agencies providing protections of rights
Any public agency which has adopted, through action of its governing
body or its official designee, any procedure which at a minimum
provides to peace officers the same rights or protections as provided
pursuant to this chapter shall not be subject to this chapter with
regard to such a procedure.
§ 3311. Mutual aid agreements
Nothing in this chapter shall in any way be construed to limit the
use of any public safety agency or any public safety officer in
the fulfilling of mutual aid agreements with other jurisdictions
or agencies, nor shall this chapter be construed in any way to limit
any jurisdictional or interagency cooperation under any circumstances
where such activity is deemed necessary or desirable by the jurisdictions
or the agencies involved.
§ 3312. Wearing or displaying items containing the American
flag by public safety officers
Notwithstanding any other provision of law, the employer of a public
safety officer may not take any punitive action against an officer
for wearing a pin or displaying any other item containing the American
flag, unless the employer gives the officer written notice that
includes all of the following:
| (a) |
A statement that the officer's
pin or other item violates an existing rule, regulation, policy,
or local agency agreement or contract regarding the wearing
of a pin, or the displaying of any other item, containing the
American flag. |
| (b) |
A citation to the specific rule,
regulation, policy, or local agency agreement or contract that
the pin or other item violates. |
| (c) |
A statement that the officer
may file an appeal against the employer challenging the alleged
violation pursuant to applicable grievance or appeal procedures
adopted by the department or public agency that otherwise comply
with existing law. |
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