From: May 2018 ALADS Dispatcher
An interrogation is simply a question and answer session. It need not be “formal” nor does it have to occur through IAB. It occurs whenever someone is questioned. In the context of internal affairs investigations, an interrogation is governed by the Public Safety Officers Procedural Bill of Rights (POBRA) in Government Code section 3303 if the deputy is under investigation and being interrogated which “could” lead to punitive action except when the interrogation occurs “in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with” the deputy or if the investigation is “concerned solely and directly with alleged criminal activities.”
If the interrogation is covered by POBRA then Government Code section 3303(c) provides that the public safety officer under administrative investigation “shall be informed of the nature of the investigation prior to any interrogation.” The California Supreme Court in the 1990 case of Pasadena Police Officers Association v. City of Pasadena, 51 Cal.3d 564, determined that the officer was not entitled to pre-interrogation discovery although the Department is free to provide it. That Court’s rationale was that “[d]isclosure before interrogation might color the recollection of the person to be questioned or lead that person to conform his or her version of an event to that given by witnesses already questioned” and it might deprive investigators from using information learned during the investigation to “aid in eliciting truthful statements from the person they are questioning.”
Despite the holding in Pasadena, questions remained regarding how much information must be provided to the deputy to constitute the “nature of the investigation” and when the deputy must be told the nature of the investigation. The Court in Ellins v. City of Sierra Madre (2016) 244 Cal.App.4th 445, provided some guidance to both of those questions. In Ellins, the Court adopted the “reasonableness” standard and concluded that “reasonable advance notice” is required. As such, it depends upon the specific circumstances of the individual case. Ellins also made a distinction between disclosure of pre-interrogation discovery and disclosure of the nature of the allegations, to wit:
Although [the Court in Pasadena concluded that] the disclosure of discovery regarding misconduct in advance of an interrogation might ‘frustrate the effectiveness of any investigation’ by ‘color(ing) the recollection of the person to be questioned or lead(ing) that person to confirm his or her version of an event to that given by witnesses’ whose statements have been disclosed in discovery advanced disclosure of the nature of the investigation has the opposite effect: It allows the officer and his or her representative to be ‘well-positioned to aid in a full and cogent presentation of the (officer’s) view of the matter, bringing to light justifications, explanations, extenuating circumstances, and other mitigating factors’ and removes the incentive for ‘uninformed representative(s) to obstruct the interrogation ‘as a precautionary means of protecting employees from unknown possibilities.’ Thus, advance disclosure of the nature of the investigation serves both purposes of POBRA by contributing to the efficiency and thoroughness of the investigation while also safeguarding the officer’s personal interest in fair treatment.
Thus, according to Ellins, within a reasonable time before the interrogation (depending on the specific circumstances) the Department must disclose the nature of the investigation in sufficient means to allow the deputy and the representative to be “well-positioned to aid in a full and cogent presentation of the [deputy’s] view of the matter, bringing to light justifications, explanations, extenuating circumstances, and other mitigating factors.”
Yet, another issue arose about how much information was required to be provided to a deputy after the initial interrogation and prior to any subsequent interrogation in the same case. In that regard, Government Code section 3303(g) states, in pertinent part, that:
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.
The holding in Pasadena only addressed the initial interrogation but it did mention that the way Government Code section 3303(g) was written “[i]t follows, therefore, that access to them [those materials] would be after the interrogation.” For years, agencies including the Sheriff’s Department, opined that nothing needed to be provided to a deputy after the initial administrative investigation and prior to a subsequent administrative interrogation other than the prior audio recording of that deputy and the transcript of it, if one was made. The remaining documents mentioned in Government Code section 3303(g) – “a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons” – were seen as pre-disciplinary documents and were only being produced with the notice of intent to discipline.
Then, in 2017, the Court in Santa Ana Police Officers Association v. City of Santa Ana, 13 Cal.App.5th 317, provided a specific answer. It held that the Legislature’s placement of the provision regarding disclosure of the recording of the prior interrogation and the reports and complaints indicated that the Legislature must have intended the rights “to be coextensive.” The Court then held that “[b]ecause discovery rights to reports and complaints are coextensive with discovery rights to tape recordings of interrogations, and tapes recordings must be produced ‘prior to any further interrogation,’ then it follows that reports and complaints also must be produced ‘prior to any further interrogation.’”
As a result, the take away from these cases is that the deputy is entitled to reasonable advance disclosure of the nature of the investigation prior to the first administrative interrogation with sufficient information to allow the deputy to be “well-positioned to aid in a full and cogent presentation of the (deputy’s) view of the matter” and that the deputy is entitled to the prior recording and transcript along with “any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential” prior to any subsequent interrogation. In the author’s experience, however, the Department will need to be reminded of the holding in Santa Ana and strongly prodded to provide the required information before a subsequent interrogation.
About the Author
Ken Yuwiler is a partner at Rains Lucia Stern St. Phalle & Silver, PC. Ken practices labor and employment law primarily representing public safety employees in civil and administrative proceedings, assisting his clients during internal affairs investigations, critical incidents, disciplinary proceedings, and grievances, including writs and appeals. He also defends associations and public safety employees in civil cases; prosecuted civil cases brought on behalf of aggrieved employees; and has prosecuted and defended writs and appeals.