INTERNAL AFFAIRS & YOUR RIGHTS
AS A PUBLIC SAFETY EMPLOYEE
Presented by
Christopher W. Miller, Esq.
Mastagni, Holstedt, Amick, Miller & Johnsen

Government Code § 3300-3313

Enacted in 1977 as AB 301

The POBRA is the rulebook by which
administrative investigations of peace
officers must be conducted in California

POBRA is an ever-changing document that
governs the administrative rights of a
special class of public employee
Key Rights & Responsibilities

Interrogation Rights & Procedures

Right to Representation

Right to Appeal

Searches & Polygraphs

Remedies for POBR Violations
PURPOSE OF I.A.
Internal Affairs = Risk Management

Promote Integrity/Public Perceptions

Identify Potential Liability

Correct Behavior or Procedures

Protect Against Litigation
WHEN DOES POBRA APPLY?
When Does the POBRA Apply?
APPLIES
•
Peace Officers
•
•
•
•
•
Permanent
Limited At-Will
Investigation leading to
“Punitive Action”
Interrogation
Other Rights
DOES NOT APPLY





Routine or unplanned
contact w/supervisor
Informal Counseling
Verbal Admonishment
Probationary Officers
Non-sworn Employees
“Punitive Action”
Punitive Action Is







Dismissal
Demotion
Suspension
Reduction in Pay
Written Reprimand
Punitive Transfer
Adverse Finding
Punitive Action Is Not




Adverse Evaluation
Worker’s Comp
Routine Transfer not
involving Loss of Pay
Routine Counseling
PROBATIONARY EMPLOYEES

Law treats probationary employees as “at will”
employees with limited rights

Probationary employee may be released for
any reason or no reason but cannot be released
for illegal reason

POBR rights do not apply to probationary
employees
INTERNAL AFFAIRS
INVESTIGATIONS & POBRA
How A Complaint Becomes
An Investigation

Penal Code § 832.5

Requires the department to have a procedure for
investigating citizen complaints

Requires a written description of the procedure be
made available to the public

Complaints/reports/findings shall be retained for at
least five years

Does not require a formal written complaint and
investigation in every instance
Nature of the Investigation
“The public safety officer under
investigation shall be informed of
the nature of the investigation
prior to any interrogation.”
(Govt. Code § 3303 (c).)
Scope of the Investigation

Course & Scope of Employment




On-Duty Criminal Misconduct
Any allegation of on-duty misconduct
Inquire into subjects “reasonably related”
Off-Duty Conduct


“Nexus” to Employment
CUBO
Scope of the Investigation
Complaint Categories
•
Usually Cite to the Rules/ Policies of
Employer as Possible Violations
•
Catch-Alls Generally Used
•
Possible to Have Multiple Categories
per violation
Off-Duty Conduct

Courts have held that an employer must
establish a “nexus” between the activity and an
alleged inability to perform the functions of
the job

Usually disciplined as CUBO

Labor Code s. 96(k)
Criminal Misconduct

Investigator must determine whether there is
reasonable criminal exposure

Many common complaints have a criminal aspect
 writing
a false report - improper CLETS/CJIS
access - mishandled property or evidence

A labor representative does not enjoy privileged
communications regarding a criminal prosecution

There may be a pending criminal prosecution
INTERROGATION RIGHTS &
RESPONSIBILITIES
Internal Affairs Interrogations
Subject Officer is Entitled to:





Name(s) of the Interrogators & OIC
Representative of choice
Nature of the Charges
Tape-Record the Interrogation
Review prior statements
Before the Interview

Employee is not entitled to a copy of the
complaint

Employee is not entitled to all the evidence

This information will be provided if
disciplinary action is taken
The Interrogator Cannot:



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Interrogate Off-Duty without
Compensation
Use More than Two
Questioners
Use Threats or Offensive
Language
Promise Rewards
Provide Address, Phone or
Photo to Media w/o consent
Lybarger Warning



If the complaint involves criminal issues,
investigator must give a Miranda advisement
(Lybarger v. City of Los Angeles (1985) 40
Cal.3d 822)
The answer to the advisement is NO
If the complaint has criminal issues and the
advisement is not given, employee can invoke
the right
Answering Questions

Understand the question

Answer completely and honestly

Focus your answer to the question

Don’t open any doors

Don’t guess

“I don’t remember” is a proper response
Use of Compelled Statement

Criminal Proceedings
 Statement Cannot Be
Used Against Officer

EXCEPT
EXCEPT
–
Impeachment
Civil Proceedings
 Statement Cannot Be
Used Against Officer
–
–
–
–
Discipline
Suit by Employee
Impeachment
Death
RIGHT TO REPRESENTATION
Right To Representation


Triggered whenever matter “likely to result in
punitive action”

viewpoint of the employer

ask the question, “Do I need a rep?” or “Will this
result in discipline?”
Subject Officer
 Witness Exception
 Weingarten Rule
Representative of Choice

Representative must not be someone involved
in the investigation

Representative cannot be questioned about any
information received from the officer

Choice of representative cannot unreasonably
delay the investigation
(Upland POA v. City of Upland (2003) 111
Cal.App.4th 1294)
Role of the Representative

Representative must be allowed opportunity to
speak for employee

More than a mere observer

Weingarten: Role of representative is to
protect the rights of the employee and assist
employee in answering questions
POST-INTERROGATION ISSUES
Investigation Concludes

The investigation will result in a finding of
sustained, not sustained, exonerated or
unfounded

Agency notifies citizen complainant, but the
notification cannot disclose discipline
imposed, employee statement, or specific facts
in the investigation
Sustained Misconduct

Notice of Proposed Discipline

Pre-disciplinary meeting & Skelly rights

Notice of Discipline

Administrative appeal
Proposed Discipline

The notice will contain a description of the
charges upon which the action is based

The notice will contain any previous
misconduct that was considered

The discipline is not final and has not yet been
imposed
Pre-Disciplinary Hearing

Before you can be disciplined you are entitled
to a pre-disciplinary meeting commonly
referred to as a Skelly Hearing

Purpose is to provide you with an opportunity
to respond to the allegations

This is a constitutional due process right, not a
POBRA right
Post-Interrogation Issues


Post-Interrogation Access to Documents

Pasadena: post-interrogation right to
documents other than those deemed
confidential

Skelly: separate (non-POBR) right to all
documents on which the discipline is based
Statutes of Limitations Imposed by POBRA
Post-Interrogation Issues

Pre-Disciplinary Hearing Time Limits

Agency has 30 days to notify the subject
officer of a decision to impose discipline

Local rules will control over POBRA so long
as minimum standards are met
STATUTE OF LIMITATIONS
Statute of Limitations

Gov. Code § 3304(d):
No punitive action or denial of promotion for
any allegation of misconduct if the
investigation is not completed within one year
of the public agency’s discovery of the
allegation of an act, omission, or other
misconduct.
Statute of Limitations

Gov. Code § 3304(d):


If the agency determines discipline may be taken,
the agency has one year to complete its
investigation and propose discipline by letter of
intent or notice of adverse action
Supreme Court decision allowing agency
merely to notify officer of intent to discipline
was abrogated by legislative action
Statute of Limitations

An investigation may be reopened after the
limitations period if, and only if:

significant new evidence likely to affect the
outcome;
AND

evidence could not have been discovered;
OR

evidence came up in the Skelly process
ADMINISTRATIVE APPEAL
Right to Appeal

Employee has constitutional right to a full and
fair evidentiary hearing for loss of property
interest

POBRA sets minimum standards for
administrative appeal but does not prevail over
local rules

Standards for conducting administrative
appeals should be codified in MOU or
personnel rules
Right to Appeal

No punitive action may be imposed without
the opportunity for an administrative appeal

“Punitive action is any action likely to
adversely affect the employee’s opportunities
for advancement now or in the future”
Case Examples

Gordon v. Horsley (2001) 86 Cal.App.4th 336


Caloca v. County of San Diego (1999) 72
Cal.App.4th 1209


Sheriff’s Decision to Disarm Deputy “Punitive”
Citizen’s Review Board Findings “Punitive
Action”
Hopson v. City of Los Angeles (1983) 139
Cal.App.3d 347

Adverse OIS Report is “Punitive Action”
Case Examples

Otto v. LAUSD (2001) 89 Cal.App.4th 985


James v. City of Coronado (2003) 106
Cal.App.4th 905


Counseling Memo May be “Punitive Action”
Limitations on Due Process in POBRA Cases
Wences v. City of Los Angeles (2009) 177
Cal.App.4th 305

Reprimand for Off-Duty Shooting Requires
Appeal
Punitive Transfer

A “punitive transfer” is:
(1) transfer for purposes of punishment;
OR
(2) any transfer involving a loss of pay
is “per se punitive”

May result in “White hearing”

White v. County of Sacramento (1982) 31 Cal.3d
676
PERSONNEL RECORDS
Adverse Documents

No “adverse comment” may be entered in
personnel file without officer having had an
opportunity to review and sign document

Officer has 30 days to respond to adverse
comment and response becomes part of
personnel file
Access to Personnel Files
Government Code § 3306.5:

Allows peace officers to request and inspect
personnel file(s) during business hours

Penal Code § 832.5 defines “personnel file” as
“any file used for personnel purposes”

Allows peace officers to request correction or
deletion of material and requires the employer
to comply or explain refusal
OTHER POBRA RIGHTS
Polygraphs & CVSA


“Don’t Ask, Don’t Tell”

Employee Cannot be Requested or Required to
Take a Polygraph/CVSA Examination

Employee Should Never Agree to a Polygraph

Results Cannot Be Used Against Employee
Using Polygraph to “Establish” Innocence
Administrative Searches

Strip searches must be based on a reasonable
suspicion that evidence will be disclosed

Locker/Desk searches limited to areas
provided by the employer

Criminal searches must meet normal standards
of search and seizure
Locker Searches

Locker or Other Assigned Space for Storage
Cannot Be Searched Except:

in officer’s presence;

with a warrant;

with officer’s consent;

with notice to the officer
Financial Disclosure
No Request to Disclose Assets, Finances,
or Sources of Income Except
Required by Law
 Conflict of Interest in Duties
 Assignment where bribes likely to be
offered

Political Activity

No politics on duty

No restrictions on running for school
board

Cannot be coerced into political
activity on behalf of officeholder

O.K. to wear flag lapel pin
REMEDIES FOR
POBRA VIOLATIONS
Remedies for POBRA Violations

Superior Court has “initial jurisdiction” over
violations of POBR

No “exhaustion” requirement

Court can enjoin conduct and suppress
evidence

Zazueta: Choice of hearing affects remedy

Gov. Code § 3309.5(d) imposes sanctions
Remedies for POBRA Violations
Violations of representation rights may be
brought under MOU or POBRA or both

MOU: Grievance for violation of Union
recognition rights clause

POBRA: Gov. Code § 3309.5

Violation of Representation Rights Must Be
Objected to at time of Violation if
Representative is Present
Remedies for POBRA Violations

Against Employer
 $25,000 penalty
 attorney fees
 actual damages

Requires Finding
“Malicious” Conduct
= Intent to Injure
= Wilful Disregard of
Rights

Against Employee
 sanctions for any
action brought in
“bad faith” or
frivolous
 sanctions vs. attorney
 award fees and costs
CONCLUSION
Internal Affairs is a Necessary Evil
Internal Affairs Should Facilitate
Prompt and Just Disciplinary Action
Internal Affairs Should Facilitate
Documented Vindication
POBR Is a Sword and a Shield
Questions?