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 titles 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. 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 officers 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.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 137 (Cooper) - Facilities of the State Plan of Flood Control

Bill Summary:

1. This bill would expand the prohibition on cutting or altering specific levees to a prohibition on concealing, defacing, destroying, modifying, using, occupying, cutting, altering, or physically or visually obstructing any levee forming part of any of the plans of flood control adopted by this part or by the board, or any other facility of the State Plan of Flood Control without permission of the board.

Fiscal Impact:

• Unknown, potentially significant workload cost pressures to the trial courts to adjudicate charges brought against defendants who alter or obstruct any levee as proscribed by this measure. While the superior courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. For example, the Budget Act of 2019 appropriated $41.8 million from the General Fund to backfill continued reduction in fine and fee revenue for trial court operations. (General Fund*)
• Unknown potential increase in non-reimbursable local enforcement and incarceration costs to prosecute and incarcerate those charged with and found guilty of conduct proscribed by this bill. Costs would be offset, to a degree, by fee and assessment revenue. (Local funds)

Background:

Existing law:

1. Establishes the Central Valley Flood Protection Board (board) and authorizes the board to engage in various flood control activities along the Sacramento River, the San Joaquin River, their tributaries, and related areas.
2. Defines “Facilities of the State Plan of Flood Control” as the levees, weirs, channels, and other features of the federally and state-authorized flood control facilities located in the Sacramento River and San Joaquin River drainage basin for which the board or the Department of Water Resources (DWR) has given the assurances of nonfederal cooperation to the United States required for the project, and specific units or portions of works of the Sacramento River Flood Control Project. (PRC §5096.805(j))
3. Requires the board, in Article 7, Chapter 3, Part 4, Division 5, of the Water Code, to approve every plan of reclamation, flood control, drainage, improvement, dredging or work, that includes or contemplates the construction, enlargement, revetment or alteration of any levee, embankment, canal or other excavation in the bed of or along or near the banks of the Sacramento or San Joaquin Rivers or any of their tributaries or connected therewith, or upon any land adjacent thereto, or within any of the overflow basins thereof, or upon any land susceptible to overflow therefrom, before construction is commenced. (WC §§ 8710 et seq.)
   1. Specifically, and among other things, it is unlawful to cut or alter any levee along a river or by-pass at specific locations identified in Article 7, nor any levee forming part of any of the plans of flood control, without permission of the board.
   2. Any person who does any act contrary to or in violation of any of these provisions is guilty of a misdemeanor.

Proposed Law:

This bill would:

1. Expand the prohibition on cutting or altering specific levees to a prohibition on concealing, defacing, destroying, modifying, using, occupying, cutting, altering, or physically or visually obstructing any levee forming part of any of the plans of flood control adopted by this part or by the board, or any other facility of the State Plan of Flood Control without permission of the board.
2. Authorize the board, its designee, or a local agency that maintains the levee or facility, to inspect and remove any physical or visual obstructions placed or alterations made on any levee along a river or bypass at any of the places mentioned in Article 7, any levee forming part of any of the plans of flood control adopted by this part or by the board, or any other facility of the State Plan of Flood Control.
3. Authorize a peace officer, as defined, to enforce the provisions of Article 7 in any place in the state to which the peace officer’s authority extends.

Staff Comments:

The fiscal impact of this bill cannot be known with certainty, as the actual impact will be dependent on numerous factors, including, but not limited to, judicial and prosecutorial discretion, the criminal history of a defendant, and the factors unique to each case. As the crime expanded upon by this bill is punishable as a misdemeanor with the potential for incarceration, certain rights to the defendants are attached to the proceedings, including the right to a jury trial and the right to counsel (at public expense if the defendants are unable to afford the costs of representation) which could lead to lengthier and more complex court proceedings. Consequently, to the extent that the court adjudicates eleven or more of these new crimes, on average, that otherwise would not have been filed or resulted in a criminal action but for the alleged violation of AB 137, cost pressures to the courts would surpass the Suspense File threshold.

*Trial Court Trust Fund

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: AB 137 Hearing Date: June 18, 2019

Subject: Public Safety Officers: Investigations and Interviews

HISTORY

Source: Association of Orange County Deputy Sheriffs

Prior Legislation: AB 887 (Cooper), 2017, held in Senate Rules

AB 729 (Hernández), of the 2013-2014 Legislative Session, vetoed

SB 388 (Lieu), of the 2013-2014 Legislative Session, vetoed

SB 313 (De Leon), Chapter 779, Statutes of 2013

AB 955 (De Leon), Chapter 494, Statutes of 2009

Support: California Narcotic Officers’ Association; California Statewide Law Enforcement Association; Fraternal Order of Police; Long Beach Peace Officers Association; Los Angeles Police Protective League; Peace Officers’ Research Association of California (PORAC); Sacramento County Deputy Sheriffs’ Association

Opposition: American Civil Liberties Union of California; California Civil Liberties Advocacy; California State Sheriffs’ Association

Assembly Floor Vote: 63 - 3

PURPOSE

The purpose of this bill is to set forth what information must be provided to a peace officer prior to questioning in an administrative disciplinary proceeding and provide that specified communications between peace officers and their representative are confidential.

Existing law defines “public safety officer” as all peace officers, except as specified. (Gov. Code, § 3301.)

Existing law finds and declares that effective law enforcement depends upon the maintenance of stable employer-employee relations between public safety employees and their employers. (Gov. Code, § 3301.)

Existing law provides that 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 specified conditions. (Government Code, § 3303.)

Existing law states that, for purposes of the POBOR, "punitive action" means any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment. (Government Code, § 3303.)

Existing law specifies that 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:

• 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; (Government Code, § 3303, subd. (a).)
• 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; (Government Code, § 3303, subd. (b).)
• The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation; (Government Code, § 3303, subd. (c).)
• 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; (Government Code, § 3303, subd. (d).)
• 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; (Government Code, § 3303, subd. (e).)
• 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; (Government Code, § 3303, subd. (e).)
• 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, subject to certain qualifications; (Government Code, § 3303, subd. (f).)
• 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. No notes or reports that are deemed to be confidential may be entered in the officer's personnel file; (Government Code, § 3303, subd. (g).)
• 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; (Government Code, § 3303, subd. (h).)
• 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; and (Government Code, § 3303, subd. (i).)
• 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. (Government Code, § 3303, subd. (i).)
  

Existing law states that the restrictions on interrogation 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. (Government Code, § 3303, subd. (i).)

Existing law specifies that 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 under the Public Safety Officers Procedural Bill of Rights, or the exercise of any rights under any existing administrative grievance procedure. (Gov. Code, § 3304.)

Existing law states that administrative appeal by a public safety officer Public Safety Officers Procedural Bill of Rights shall be conducted in conformance with rules and procedures adopted by the local public agency. (Gov. Code, § 3304.5.)

Existing law no public employee shall be subject to punitive action or denied promotion, or threatened with any such treatment, for the exercise of lawful action as an elected, appointed, or recognized representative of any employee bargaining unit. (Gov. Code, § 3502.1.)

Existing law public agencies and employee organizations shall not interfere with, intimidate, restrain, coerce or discriminate against public employees because of their exercise of their rights to join unions. (Gov. Code, § 3506.)

Existing law provides that a public agency shall not do any of the following: (Gov. Code, § 3506.5.)

• Impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter;
• Deny to employee organizations the rights guaranteed to them by this chapter;
• Refuse or fail to meet and negotiate in good faith with a recognized employee organization;
• Dominate or interfere with the formation or administration of any employee organization, contribute financial or other support to any employee organization, or in any way encourage employees to join any organization in preference to another; and
• Refuse to participate in good faith in an applicable impasse procedure.

This bill states that prior to an interrogation of a peace officer as part of an administrative disciplinary proceeding the officer shall be informed of the following, to the extent that the information is reasonably known to the agency: 

1. The time and date of any incident at issue;
2. The location of any incident at issue; and
3. The title of any policies, orders, rules, procedures, or directives alleged to have been violated with a general characterization of the conduct events that are the basis of the allegation.
   

This bill specifies that 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.

This bill defines “voluminous complaints” as violations that have 25 or more incidents being investigated, for purposes of this bill.

This bill clarifies that this bill does not provide a right to full discovery of investigation reports and witness statements or a detailed description of the events that are the basis of the allegation before the officer’s interrogation.

This bill states that the provisions of this bill do 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.

This bill specifies that a public safety officer shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information exchanged between the representative selected by the peace officer when noncriminal disciplinary action has been initiated, and the officer.

COMMENTS

1. Need for This Bill

According to the author:

Existing law requires that when a peace officer is the subject of an internal administrative investigation (IA) that he/she must be notified of the nature of the investigation and that the communications between the peace officer and their chosen representative is confidential for non-criminal, administrative complaints.

AB 137 creates a minimum standard for the type of information provided to the officer prior to the IA and clarifies that the protected communication is guaranteed to the peace officer and their selected union representative for a non-criminal administrative investigation.

Specifically, Government Code 3300 states that the rights and protections provided to peace officers constitute a matter of statewide concern and declare that effective law enforcement depends upon the maintenance of stable employer-employee relations, between public safety employees and their employers.

Law requires that when a peace officer is the subject of an IA they must be “informed of the nature of investigation prior to any interrogation”. Furthermore, the law requires a peace officer be allowed to have representation during an IA interrogation. The law prohibits the peace officers representative from being questioned regarding any communication between them or the peace officer(s) they represent in non-criminal, administrative investigations.

The problem is that some employers’ have narrowly interpreted the “…nature of investigation…” to mean only the date, time, place of the interrogation and sometimes charge of the interrogation. The notice often omits date, time, location of incident, and policy violation against the officer. This has created delays in the IA process and unnecessarily stalled investigations. AB 137 will define the minimum amount of information provided to the peace officer and their representative so that IA investigations can be conducted more efficiently and conclude in a timely manner only in non-criminal, administrative investigations. AB 137 does not seek, nor require, to obtain the details of the administrative investigation such as witness statement(s), complainant statement(s), physical/video, audio evidence, etc. prior to the interrogation.

The law also protects the peace officers’ union representative from being ordered by the employer to disclose any communications between them and the peace officer, regarding an IA. However, by statute, it does not prohibit the employer from questioning the peace officer about the communications he/she had with an official representative.

The problem is that even though most employers have traditionally respected the privilege of this communication both ways, more recently peace officers are being ordered to disclose that they talked to a union representative, and even the content of that communication. AB 137 will clarify that that communication is privileged for both the union representative and the employee.

AB 137 seeks to maintain the employer-employee relationship by providing the peace officer and their union representative with the minimum amount of information to respond to IA interrogations in a timely manner and to clarify the basic right of privileged communications between the union member and union representative in non-criminal, administrative investigations.

2. Public Safety Officers Bill of Rights (POBOR)

POBOR provides peace officers with procedural protections relating to investigation and interrogations of peace officers, self-incrimination, privacy, polygraph exams, searches, personnel files, and administrative appeals. When the Legislature enacted POBOR in 1976 it found and declared “that the rights and protections provided to peace officers under this chapter constitute a matter of statewide concern.” While the purpose of POBOR is to maintain stable employer-employee relations and thereby assure effective law enforcement, it also seeks to balance the competing interests of fair treatment to officers with the need for swift internal investigations to maintain public confidence in law enforcement agencies. (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564.)

3. Providing a Description of Events Before Interrogation of an Officer

Under POBOR, an interrogation is an investigatory interview of the public safety officer regarding a matter which would form the basis of an administrative disciplinary action. The rules under POBOR which pertain to “interrogations” do not apply when investigating actions of a police officer that are potentially criminal in nature. Existing law requires that the public safety officer under investigation for disciplinary purposes be informed of the “nature” of the investigation prior to any interrogation (Government Code, § 3303, subd. (c).) Courts have not explicitly interpreted through any published opinions what exactly constitutes the “nature” of an investigation. Opponents to this legislation argue that this bill goes beyond the bounds of a reasonable disclosure by requiring that officers be provided a factual description of the incident in question. Stating the “nature” of an inquiry could be something as simple as stating the type of inquiry (i.e. a harassment complaint, allegations of making false statements, etc). Requiring a “factual description” could arguably provide the person being interviewed information that could color their testimony.

In interpreting POBOR, the court in Ellins v. City of Sierra Madre (2016) 244 Cal.App.4^th 445, discussed the benefits of disclosing the “nature” of the investigation to the officer prior to the interrogation.

Although 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. (Id. at 454, citations omitted.)

The court in Ellins contrasted disclosure of the nature of the investigation prior to the interview to a requirement that the officer to be provided discovery prior to the interview. Discovery requires full disclosure of witness statements and any other evidence supporting an allegation of misconduct. The court pointed out that disclosure of the discovery prior to an interview is likely to diminish the effectiveness of the interview.

. . . , to require disclosure of crucial information about an ongoing investigation to its subject before interrogation would be contrary to sound investigative practices. During an interrogation, investigators might want to use some of the information they have amassed to aid in eliciting truthful statements from the person they are questioning. Mandatory pre-interrogation discovery would deprive investigators of this potentially effective tool and impair the reliability of the investigation. This is true in any interrogation, whether its purpose is to ferret out criminal culpability or, as in this case, to determine if a peace officer used a mailing list in contravention of a direct order by his superiors. Pasadena Police Officers Assn. vs. City of Pasadena 51 Cal.3d 564.

This bill would require the following disclosures to the officer prior to the interrogation:

• The time and date of any incident at issue;
• The location of any incident at issue;
• The title of any policies, orders, rules, procedures, or directives alleged to have been violated with a general characterization of the conduct events that are the basis of the allegation.

While this bill does not call for providing a general description, it does call for the disclosure of a general characterization of the conduct events that are the basis of the allegation. One major policy question this bill poses is whether the general characterization discloses to much information to the officer to allow them to potentially fabricate or cover-up alleged conduct versus the officer not receiving enough information to adequately protect themselves by not knowing what they are being interrogated for. In AB 887 (Cooper) of 2017, a substantially similar bill to this bill was amended in this committee. That bill required a factual description of the underlying incident under investigation. The bill was amended to require only a general characterization as this bill does. That bill passed the Senate Public Safety Committee and was later held by the author in a later committee.

4. Relationship Between Employees and Union Representatives

California does not have an evidentiary privilege for communications between employees and their union representatives. AB 729 (Hernández), of the 2013-2014 Legislative Session, would have provided that a union agent and a represented employee or represented former employee have a privilege to refuse to disclose any confidential communication between the employee or former employee and the union agent while the union agent was acting in his or her representative capacity, except as specified. AB 729 was vetoed by the Governor.

This bill would create a right to confidentiality regarding communications between officers and union representatives. Under existing law, only the communications from the officer to their representative are explicitly considered confidential.

In the background information, the Author states that, “The problem is that even though most employers have traditionally respected the privilege of this communication both ways, more recently peace officers are being ordered to disclose that they talked to a union representative, and even the content of that communication.”

There are policy reasons to protect communications between employees and their union representatives. Peterson v. State (2012) 280 P.3d 559, 565, decided by the Supreme Court of Alaska, discussed that fact that an expectation of confidentiality can allow a union member to be more open about issues involving working conditions. The court in Peterson stated that the expectation of confidentiality is critical because without it “union members would be hesitant to be fully forthcoming with their representatives, detrimentally impacting a union representative’s ability to advise and represent union members with questions or problems.”

The Peterson court held that the union agent-represented worker privilege in the state of Alaska “extends to communications made: (1) in confidence; (2) in connection with representative services relating to anticipated or ongoing disciplinary or grievance proceedings; (3) between an employee (or the employee’s attorney) and union representatives; and (4) by union representatives acting in official representative capacity. The privilege may be asserted by the employee or by the union on behalf of the employee. Like the attorney-client privilege, the union-relations privilege extends only to communications, not to underlying facts.” (Id.)

5. Argument in Support

According to the Fraternal Order of Police:

Current law requires that when a peace officer is notified that they are subject of an internal investigation, that the communication between them and a chosen representative remain confidential for non-criminal, administrative complaints. Unfortunately, the law only protects union representatives and does not prohibit an employer from asking the peace officer if they have spoken with their union representative. AB 137 simply clarifies that communications for these types of internal investigations between the peace officer and their union representative is privileged communication.

AB 137 also seeks to provide the peace officer and their union representative with the appropriate level of notice to respond to the internal investigation. By clarifying the law, we can ensure our peace officers and union representatives are privy to the necessary information, treated fairly, and also ultimately saving our departments time and resources.

6. Argument in Opposition

According to the California State Sheriffs’ Association:

We are concerned that the level of detail required by this bill will open a course of disciplinary action to challenge if all of the information is not provided to the officer. Often, an agency may not have all of the specified information or have it to the level of detail required by the bill as the investigation or interview begins. It is not uncommon for some of that detail to be revealed in the interview. Requiring this level of detail, even if only to the extent that information is reasonably known to the agency, will call investigations into question and potentially make it more difficult to discipline officers as appropriate.

While we understand and appreciate the desire to provide more employment protections for peace officers facing disciplinary action, law enforcement agencies are routinely criticized for not addressing claims of employee misconduct in a manner befitting their serious nature. AB 137 complicates the existing employee discipline process and potentially makes it more difficult to discipline officers as appropriate.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 137

Author:(Cooper)

As Amended Ver:March 11, 2019

Majority vote

SUMMARY:

Describes what information must be provided to a peace officer prior to questioning in an administrative disciplinary proceeding. States that specified communications between peace officers and their disciplinary representative are confidential.

Major Provisions

1. States that prior to an interrogation of a peace officer as part of an administrative disciplinary proceeding the officer shall be informed of the following, to the extent that the information is reasonably known to the agency:
   1. The time and date of any incident at issue;
   2. The location of any incident at issue; and
   3. The title of any policies, orders, rules, procedures, or directives alleged to have been violated with a general characterization of the conduct events that are the basis of the allegation.
2. Specifies that a public safety officer shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information exchanged between the representative selected by the peace officer when noncriminal disciplinary action has been initiated, and the officer.

COMMENTS:

According to the Author:

"The Importance of maintaining good employer-employee relationships is paramount in a harmonious, fair and productive work place. This takes time and attention. AB 137 will ensure that when police officers are notified of a non-criminal, administrative complaint against them that they are afforded sufficient information to discuss the complaint with their union representative and effectively prepare for direct and accurate responses. This is critical in transparent and swift conclusions of administrative complaints. Furthermore, AB 137 will ensure that the communications between an employee and his/her union representative are confidential over matters within the scope of the organization's representation. AB 137 ensures that peace officers are afforded the fundamental and basic rights afforded to all union members."

Arguments in Support:

According to the Fraternal Order of Police, "Current law requires that when a peace officer is notified that they are subject of an internal investigation, that the communication between them and a chosen representative remain confidential for non-criminal, administrative complaints. Unfortunately, the law only protects union representatives and does not prohibit an employer from asking the peace officer if they have spoken with their union representative. AB 137 simply clarifies that communications for these types of internal investigations between the peace officer and their union representative is privileged communication.
"AB 137 also seeks to provide the peace officer and their union representative with the appropriate level of notice to respond to the internal investigation. By clarifying the law, we can ensure our peace officers and union representatives are privy to the necessary information, treated fairly, and also ultimately saving our departments time and resources."

Arguments in Opposition:

According to California Civil Liberties Advocacy, "The CCLA opposes this bill, particularly, because we strongly feel that its provisions grant rights to officers alleged to have committed wrongdoing that are not afforded to common citizens under criminal investigation, and will further erode the public's trust and confidence in the integrity of California's nearly 120,000 law enforcement personnel.

"Specifically, AB 137 mandates that an officer under investigation shall be informed of the time, date, and location of any incident at issues, the internal affairs case number, and the titles of any policies, orders, rules, procedures, or directives alleged to have been violated with a general characterization of the event giving rise to that allegation.

"Common citizens are never afforded any such pre-interview discovery, to prepare their defense ahead of time. The law has many allowances for ex parte orders for various methods of surveillances and searches so that a defendant is not afforded an opportunity to change their conduct or impede an ongoing investigation. If this same rationale is applied to affording officers who are investigated for wrongdoing-including criminal allegation-then the need for this bill appears to be a thinly disguised attempt to grant officers more rights than the common citizens they are sworn to serve. The CCLA's position is that wrongdoing is wrongdoing and no one is above the law."

FISCAL COMMENTS:

Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

Please see the policy committee analysis for a full discussion of this bill.

VOTES:

ASM PUBLIC SAFETY: 7-1-0

YES: Jones-Sawyer, Lackey, Diep, Kamlager-Dove, Quirk, Santiago, Wicks

NO: Bauer-Kahan

UPDATED:

VERSION: March 11, 2019

CONSULTANT: David Billingsley / PUB. S. / (916) 319-3744 FN: 0000057

Date of Hearing: March 19, 2019

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 137

Author:(Cooper) – As Amended Ver:March 11, 2019

VOTE ONLY

SUMMARY:

Describes what information must be provided to a peace officer prior to questioning in an administrative disciplinary proceeding. States that specified communications between peace officers and their disciplinary representative are confidential. Specifically, this bill:

1. States that prior to an interrogation of a peace officer as part of an administrative disciplinary proceeding the officer shall be informed of the following, to the extent that the information is reasonably known to the agency: 
   
   1. The time and date of any incident at issue;
      
   2. The location of any incident at issue; and
      
   3. The title of any policies, orders, rules, procedures, or directives alleged to have been violated with a general characterization of the conduct events that are the basis of the allegation.
      
2. Specifies that 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.
3. Defines “voluminous complaints” as violations that have 25 or more incidents being investigated, for purposes of this bill.
   
4. Clarifies that this bill does not provide a right to full discovery of investigation reports and witness statements or a detailed description of the events that are the basis of the allegation before the officer’s interrogation.
   
5.  States that the provisions of this bill do 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.
6. Specifies that a public safety officer shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information exchanged between the representative selected by the peace officer when noncriminal disciplinary action has been initiated, and the officer.

EXISTING LAW:

1. Defines “public safety officer” as all peace officers, except as specified. (Gov. Code, §
   3301.)
   
2. Finds and declares that effective law enforcement depends upon the maintenance of stable employer-employee relations between public safety employees and their employers. (Gov. Code, § 3301.)
   
3. Provides that 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 specified conditions. (Gov. Code, § 3303.)
   
4. States that, for purposes of the POBOR, "punitive action" means any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment. (Gov. Code, § 3303.)
   
5. Specifies that 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:
   
   1. 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; (Gov. Code, § 3303, subd. (a).)
      
   2. 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; (Gov. Code, § 3303, subd. (b).)
      
   3. The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation; (Gov. Code, § 3303, subd. (c).)
      
   4. 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; (Gov. Code, § 3303, subd. (d).)
      
   5. 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; (Gov. Code, § 3303, subd. (e).)
      
   6. 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; (Gov. Code, § 3303, subd. (e).)
      
   7. 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, subject to certain qualifications; (Gov. Code, § 3303, subd. (f).)
      
   8. 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. No notes or reports that are deemed to be confidential may be entered in the officer's personnel file; (Gov. Code, § 3303, subd. (g).)
      
   9. 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; (Gov. Code, § 3303, subd. (h).)
      
   10. 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; and (Gov. Code, § 3303, subd. (i).)
       
   11. 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. (Gov. Code, § 3303, subd. (i).)
       
6. States that the restrictions on interrogation 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. (Gov. Code, § 3303, subd. (i).)
   
7. Specifies that 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 under the Public Safety Officers Procedural Bill of Rights, or the exercise of any rights under any existing administrative grievance procedure. (Gov. Code, § 3304.)
   
8. States that administrative appeal by a public safety officer Public Safety Officers Procedural Bill of Rights shall be conducted in conformance with rules and procedures adopted by the local public agency. (Gov. Code, § 3304.5.)
   
9. No public employee shall be subject to punitive action or denied promotion, or threatened with any such treatment, for the exercise of lawful action as an elected, appointed, or recognized representative of any employee bargaining unit. (Gov. Code, § 3502.1.)
   
10. Public agencies and employee organizations shall not interfere with, intimidate, restrain, coerce or discriminate against public employees because of their exercise of their rights to join unions. (Gov. Code, § 3506.)
    
11. A public agency shall not do any of the following: (Gov. Code, § 3506.5.)
    
    1. Impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter;
       
    2. Deny to employee organizations the rights guaranteed to them by this chapter;
       
    3. Refuse or fail to meet and negotiate in good faith with a recognized employee organization;
       
    4. Dominate or interfere with the formation or administration of any employee organization, contribute financial or other support to any employee organization, or in any way encourage employees to join any organization in preference to another; and
       
    5. Refuse to participate in good faith in an applicable impasse procedure.

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "The Importance of maintaining good employer-employee relationships is paramount in a harmonious, fair and productive work place. This takes time and attention. AB 137 will ensure that when police officers are notified of a non-criminal, administrative complaint against them that they are afforded sufficient information to discuss the complaint with their union representative and effectively prepare for direct and accurate responses. This is critical in transparent and swift conclusions of administrative complaints. Furthermore, AB 137 will ensure that the communications between an employee and his/her union representative are confidential over matters within the scope of the organization’s representation. AB 137 ensures that peace officers are afforded the fundamental and basic rights afforded to all union members.”
   
2. Public Safety Officers Bill of Rights (POBOR): POBOR provides peace officers with procedural protections relating to investigation and interrogations of peace officers, self-incrimination, privacy, polygraph exams, searches, personnel files, and administrative appeals. When the Legislature enacted POBOR in 1976 it found and declared “that the rights and protections provided to peace officers under this chapter constitute a matter of statewide concern.” While the purpose of POBOR is to maintain stable employer-employee relations and thereby assure effective law enforcement, it also seeks to balance the competing interests of fair treatment to officers with the need for swift internal investigations to maintain public confidence in law enforcement agencies. (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564.)
   
3. Providing Facts About the Nature of the Allegation(s) Before Interrogation of An Officer is Consistent with the Purpose of POBOR: Under POBOR, an interrogation is an investigatory interview of the public safety officer regarding a matter which would form the basis of an administrative disciplinary action. The rules under POBOR which pertain to “interrogations” do not apply when investigating actions of a police officer that are potentially criminal in nature. Existing law requires that the public safety officer under investigation for disciplinary purposes be informed of the “nature” of the investigation prior to any interrogation (Government Code, § 3303, subd. (c).) In order to communicate the “nature” of the investigation to the officer it seems necessary to provide some description of the conduct which is the subject of the investigation. Otherwise, the requirement to notify the officer of the “nature” of the investigation would have little meaning.
   
   In interpreting POBOR, the court in Ellins v. City of Sierra Madre (2016) 244 Cal.App.4^th 445, discussed the benefits of disclosing the “nature” of the investigation to the officer prior to the interrogation.
   

Although 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. (Id. at 454, citations omitted.)

The court in Ellins contrasted disclosure of the nature of the investigation prior to the interview to a requirement that the officer to be provided discovery prior to the interview. Discovery requires full disclosure of witness statements and any other evidence supporting an allegation of misconduct. The court pointed out that disclosure of the discovery prior to an interview is likely to diminish the effectiveness of the interview.

. . . , to require disclosure of crucial information about an ongoing investigation to its subject before interrogation would be contrary to sound investigative practices. During an interrogation, investigators might want to use some of the information they have amassed to aid in eliciting truthful statements from the person they are questioning. Mandatory preinterrogation discovery would deprive investigators of this potentially effective tool and impair the reliability of the investigation. This is true in any interrogation, whether its purpose is to ferret out criminal culpability or, as in this case, to determine if a peace officer used a mailing list in contravention of a direct order by his superiors. Pasadena Police Officers Assn. vs. City of Pasadena 51 Cal.3d 564.

This bill would require the following disclosures to the officer prior to the interrogation:

The time and date of any incident at issue;

The location of any incident at issue;

The internal affairs case number, if any;

The title of any policies, orders, rules, procedures or directives alleged to have been violated with a brief factual description of the conduct upon which the allegation(s) against the public safety officer were based.

The disclosure of information demanded by this bill is limited in scope and should not infringe on the ability of an investigator to test the credibility of an officer in an interrogation based on other statements or evidence gathered as part of the investigation.

1. Police Officers are Entitled to Select a Representative When They Are Facing Administrative Discipline: Current law under POBOR allows an officer to be represented by another individual when the officer faces disciplinary action. Current law protects that representative from disclosing any information received from the officer under investigation for noncriminal matters.
   

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; and (Government Code, § 3303, subd. (i).)

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. (Government Code, § 3303, subd. (i).)

Current law does not specifically provide reciprocal protection to ensure that the officer subject to administrative investigation and discipline is not required to disclose his communications with his representative.

In the background information, the Author states that, “The problem is that even though most employers have traditionally respected the privilege of this communication both ways, more recently peace officers are being ordered to disclose that they talked to a union representative, and even the content of that communication.”

The amendments proposed to be adopted in committee would ensure a reciprocal right to confidentiality for the officer regarding communications between the officer and his or her representative, when the officer is facing non-criminal discipline.

1. Argument in Support: According to the Fraternal Order of Police, “Current law requires that when a peace officer is notified that they are subject of an internal investigation, that the communication between them and a chosen representative remain confidential for non-criminal, administrative complaints. Unfortunately, the law only protects union representatives and does not prohibit an employer from asking the peace officer if they have spoken with their union representative. AB 137 simply clarifies that communications for these types of internal investigations between the peace officer and their union representative is privileged communication.
   
   “AB 137 also seeks to provide the peace officer and their union representative with the appropriate level of notice to respond to the internal investigation. By clarifying the law, we can ensure our peace officers and union representatives are privy to the necessary information, treated fairly, and also ultimately saving our departments time and resources.”
   
2. Argument in Opposition: According to California Civil Liberties Advocacy, “The CCLA opposes this bill, particularly, because we strongly feel that its provisions grant rights to officers alleged to have committed wrongdoing that are not afforded to common citizens under criminal investigation, and will further erode the public’s trust and confidence in the integrity of California’s nearly 120,000 law enforcement personnel.
   
   “Specifically, AB 137 mandates that an officer under investigation shall be informed of the time, date, and location of any incident at issues, the internal affairs case number, and the titles of any policies, orders, rules, procedures, or directives alleged to have been violated with a general characterization of the event giving rise to that allegation.
   
   “Common citizens are never afforded any such pre-interview discovery, to prepare their defense ahead of time. The law has many allowances for ex parte orders for various methods of surveillances and searches so that a defendant is not afforded an opportunity to change their conduct or impede an ongoing investigation. If this same rationale is applied to affording officers who are investigated for wrongdoing-including criminal allegation-then the need for this bill appears to be a thinly disguised attempt to grant officers more rights than the common citizens they are sworn to serve. The CCLA’s position is that wrongdoing is wrongdoing and no one is above the law.”
   
3. Related Legislation: AB 418 (Kalra), would provide that a union agent, as defined, and a represented employee have an evidentiary privilege to refuse to disclose any confidential communication between the employee or former employee and the union agent while the union agent was acting in his or her representative capacity, except as specified.
   
4. Prior Legislation:
   
   1. AB 887 (Cooper), of the 2017-2018 Legislative Session, contained provisions nearly identical to this bill. AB 887 was gut and amended in the Senate. AB 887 was referred back to the Senate Rules Committee and ultimately held in the Senate Rules Committee.
      
   2. AB 3121 (Kalra), of the 2017-2018 Legislative Session, was substantial the same as AB 418 (Kalra). AB 3121 died on the Senate Inactive File.
      
   3. AB 1298 (Santiago), of the 2018-2018 Legislative Session, would have required clear and convincing evidence to sustain an administrative disciplinary action against a law enforcement officer for making a false statement. AB 1298 was held in the Senate Public Safety Committee.
      
   4. AB 729 (Hernández), of the 2013-2014 Legislative Session, would have provided that a union agent and a represented employee or represented former employee have a privilege to refuse to disclose any confidential communication between the employee or former employee and the union agent while the union agent was acting in his or her representative capacity, except as specified. AB 729 was vetoed by the Governor.
      
   5. SB 388 (Lieu), of the 2013-2014 Legislative Session, would have provided that if an interrogation focuses on matters that may result in punitive action against a public safety officer who is not formally under investigation, but is interviewed regarding the investigation of another public safety officer, the public safety officer being interviewed is entitled to representation, as specified. SB 388 was vetoed by the Governor.
      
   6. SB 313 (De Leon), Chapter 779, Statutes of 2013, prohibits any public agency from taking any punitive action against a public safety officer, or denying a promotion on grounds other than merit, because that officer is placed on a "Brady list," as specified.
      
   7. AB 955 (De Leon), Chapter 494, Statutes of 2009, Specified that discipline need not be imposed upon peace officers within the one-year time limit placed upon the investigation and imposition of penalty by the Public Safety Officers Procedural Bill of Rights (POBOR).
      

REGISTERED SUPPORT / OPPOSITION:

Support

Association of Orange County Deputy Sheriff's (Sponsor)
California Fraternal Order of Police (Sponsor)
Long Beach Police Officers Association (Sponsor)
Sacramento County Deputy Sheriffs Association (Sponsor)
Association of Deputy District Attorneys
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Correctional Peace Officers Association
California Correctional Supervisors Organization
California Narcotic Officers' Association
California Statewide Law Enforcement Association
Los Angeles County Professional Peace Officers Association
Riverside Sheriffs' Association

Oppose

American Civil Liberties Union of California
California Civil Liberties Advocacy
California Public Defenders Association
California State Sheriffs' Association
Ella Baker Center for Human Rights
San Francisco Public Defender's Office

Analysis Prepared by:

David Billingsley / PUB. S. / (916) 319-3744

Date of Hearing: February 26, 2019

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 137

Author:(Cooper) – As Introduced Ver:December 7, 2018

As Proposed to be Amended in Committee

SUMMARY:

Describes what information must be provided to a peace officer prior to questioning in an administrative disciplinary proceeding. States that specified communications between peace officers and their disciplinary representative are confidential. Specifically, this bill:

1. States that prior to an interrogation of a peace officer as part of an administrative disciplinary proceeding the officer shall be informed of the following: 
   
   1. The time and date of any incident at issue;
      
   2. The location of any incident at issue;
      
   3. The internal affairs case number, if any; and,
      
   4. The title of any policies, orders, rules, procedures, or directives alleged to have been violated with a general characterization of the conduct events that are the basis of the allegation.
      
2. Specifies that 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.
3. Defines “voluminous complaints” as violations that have 25 or more incidents being investigated, for purposes of this bill.
   
4. Clarifies that this bill does not provide a right to full discovery of investigation reports and witness statements or a detailed description of the events that are the basis of the allegation before the officer’s interrogation.
   
5.  States that the provisions of this bill do 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.
6. Specifies that a public safety officer shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information exchanged between the representative selected by the peace officer when noncriminal disciplinary action has been initiated, and the officer.

EXISTING LAW:

1. Defines “public safety officer” as all peace officers, except as specified. (Gov. Code, §
   3301.)
   
2. Finds and declares that effective law enforcement depends upon the maintenance of stable employer-employee relations between public safety employees and their employers. (Gov. Code, § 3301.)
   
3. Provides that 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 specified conditions. (Gov. Code, § 3303.)
   
4. States that, for purposes of the POBOR, "punitive action" means any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment. (Gov. Code, § 3303.)
   
5. Specifies that 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:
   
   1. 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; (Gov. Code, § 3303, subd. (a).)
      
   2. 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; (Gov. Code, § 3303, subd. (b).)
      
   3. The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation; (Gov. Code, § 3303, subd. (c).)
      
   4. 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; (Gov. Code, § 3303, subd. (d).)
      
   5. 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; (Gov. Code, § 3303, subd. (e).)
      
   6. 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; (Gov. Code, § 3303, subd. (e).)
      
   7. 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, subject to certain qualifications; (Gov. Code, § 3303, subd. (f).)
      
   8. 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. No notes or reports that are deemed to be confidential may be entered in the officer's personnel file; (Gov. Code, § 3303, subd. (g).)
      
   9. 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; (Gov. Code, § 3303, subd. (h).)
      
   10. 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; and (Gov. Code, § 3303, subd. (i).)
       
   11. 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. (Gov. Code, § 3303, subd. (i).)
       
6. States that the restrictions on interrogation 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. (Gov. Code, § 3303, subd. (i).)
   
7. Specifies that 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 under the Public Safety Officers Procedural Bill of Rights, or the exercise of any rights under any existing administrative grievance procedure. (Gov. Code, § 3304.)
   
8. States that administrative appeal by a public safety officer Public Safety Officers Procedural Bill of Rights shall be conducted in conformance with rules and procedures adopted by the local public agency. (Gov. Code, § 3304.5.)
   
9. No public employee shall be subject to punitive action or denied promotion, or threatened with any such treatment, for the exercise of lawful action as an elected, appointed, or recognized representative of any employee bargaining unit. (Gov. Code, § 3502.1.)
   
10. Public agencies and employee organizations shall not interfere with, intimidate, restrain, coerce or discriminate against public employees because of their exercise of their rights to join unions. (Gov. Code, § 3506.)
    
11. A public agency shall not do any of the following: (Gov. Code, § 3506.5.)
    
    1. Impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter;
       
    2. Deny to employee organizations the rights guaranteed to them by this chapter;
       
    3. Refuse or fail to meet and negotiate in good faith with a recognized employee organization;
       
    4. Dominate or interfere with the formation or administration of any employee organization, contribute financial or other support to any employee organization, or in any way encourage employees to join any organization in preference to another; and
       
    5. Refuse to participate in good faith in an applicable impasse procedure.

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "The Importance of maintaining good employer-employee relationships is paramount in a harmonious, fair and productive work place. This takes time and attention. AB 137 will ensure that when police officers are notified of a non-criminal, administrative complaint against them that they are afforded sufficient information to discuss the complaint with their union representative and effectively prepare for direct and accurate responses. This is critical in transparent and swift conclusions of administrative complaints. Furthermore, AB 137 will ensure that the communications between an employee and his/her union representative are confidential over matters within the scope of the organization’s representation. AB 137 ensures that peace officers are afforded the fundamental and basic rights afforded to all union members.”
   
2. Public Safety Officers Bill of Rights (POBOR): POBOR provides peace officers with procedural protections relating to investigation and interrogations of peace officers, self-incrimination, privacy, polygraph exams, searches, personnel files, and administrative appeals. When the Legislature enacted POBOR in 1976 it found and declared “that the rights and protections provided to peace officers under this chapter constitute a matter of statewide concern.” While the purpose of POBOR is to maintain stable employer-employee relations and thereby assure effective law enforcement, it also seeks to balance the competing interests of fair treatment to officers with the need for swift internal investigations to maintain public confidence in law enforcement agencies. (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564.)
   
3. Providing Facts About the Nature of the Allegation(s) Before Interrogation of An Officer is Consistent with the Purpose of POBOR: Under POBOR, an interrogation is an investigatory interview of the public safety officer regarding a matter which would form the basis of an administrative disciplinary action. The rules under POBOR which pertain to “interrogations” do not apply when investigating actions of a police officer that are potentially criminal in nature. Existing law requires that the public safety officer under investigation for disciplinary purposes be informed of the “nature” of the investigation prior to any interrogation (Government Code, § 3303, subd. (c).) In order to communicate the “nature” of the investigation to the officer it seems necessary to provide some description of the conduct which is the subject of the investigation. Otherwise, the requirement to notify the officer of the “nature” of the investigation would have little meaning.
   
   In interpreting POBOR, the court in Ellins v. City of Sierra Madre (2016) 244 Cal.App.4^th 445, discussed the benefits of disclosing the “nature” of the investigation to the officer prior to the interrogation.
   

Although 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. (Id. at 454, citations omitted.)

The court in Ellins contrasted disclosure of the nature of the investigation prior to the interview to a requirement that the officer to be provided discovery prior to the interview. Discovery requires full disclosure of witness statements and any other evidence supporting an allegation of misconduct. The court pointed out that disclosure of the discovery prior to an interview is likely to diminish the effectiveness of the interview.

. . . , to require disclosure of crucial information about an ongoing investigation to its subject before interrogation would be contrary to sound investigative practices. During an interrogation, investigators might want to use some of the information they have amassed to aid in eliciting truthful statements from the person they are questioning. Mandatory preinterrogation discovery would deprive investigators of this potentially effective tool and impair the reliability of the investigation. This is true in any interrogation, whether its purpose is to ferret out criminal culpability or, as in this case, to determine if a peace officer used a mailing list in contravention of a direct order by his superiors. Pasadena Police Officers Assn. vs. City of Pasadena 51 Cal.3d 564.

This bill would require the following disclosures to the officer prior to the interrogation:

The time and date of any incident at issue;

The location of any incident at issue;

The internal affairs case number, if any;

The title of any policies, orders, rules, procedures or directives alleged to have been violated with a brief factual description of the conduct upon which the allegation(s) against the public safety officer were based.

The disclosure of information demanded by this bill is limited in scope and should not infringe on the ability of an investigator to test the credibility of an officer in an interrogation based on other statements or evidence gathered as part of the investigation.

1. Police Officers are Entitled to Select a Representative When They Are Facing Administrative Discipline: Current law under POBOR allows an officer to be represented by another individual when the officer faces disciplinary action. Current law protects that representative from disclosing any information received from the officer under investigation for noncriminal matters.
   

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; and (Government Code, § 3303, subd. (i).)

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. (Government Code, § 3303, subd. (i).)

Current law does not specifically provide reciprocal protection to ensure that the officer subject to administrative investigation and discipline is not required to disclose his communications with his representative.

In the background information, the Author states that, “The problem is that even though most employers have traditionally respected the privilege of this communication both ways, more recently peace officers are being ordered to disclose that they talked to a union representative, and even the content of that communication.”

The amendments proposed to be adopted in committee would ensure a reciprocal right to confidentiality for the officer regarding communications between the officer and his or her representative, when the officer is facing non-criminal discipline.

1. Argument in Support: According to the Fraternal Order of Police, “Current law requires that when a peace officer is notified that they are subject of an internal investigation, that the communication between them and a chosen representative remain confidential for non-criminal, administrative complaints. Unfortunately, the law only protects union representatives and does not prohibit an employer from asking the peace officer if they have spoken with their union representative. AB 137 simply clarifies that communications for these types of internal investigations between the peace officer and their union representative is privileged communication.
   
   “AB 137 also seeks to provide the peace officer and their union representative with the appropriate level of notice to respond to the internal investigation. By clarifying the law, we can ensure our peace officers and union representatives are privy to the necessary information, treated fairly, and also ultimately saving our departments time and resources.”
   
2. Argument in Opposition: According to California Civil Liberties Advocacy, “The CCLA opposes this bill, particularly, because we strongly feel that its provisions grant rights to officers alleged to have committed wrongdoing that are not afforded to common citizens under criminal investigation, and will further erode the public’s trust and confidence in the integrity of California’s nearly 120,000 law enforcement personnel.
   
   “Specifically, AB 137 mandates that an officer under investigation shall be informed of the time, date, and location of any incident at issues, the internal affairs case number, and the titles of any policies, orders, rules, procedures, or directives alleged to have been violated with a general characterization of the event giving rise to that allegation.
   
   “Common citizens are never afforded any such pre-interview discovery, to prepare their defense ahead of time. The law has many allowances for ex parte orders for various methods of surveillances and searches so that a defendant is not afforded an opportunity to change their conduct or impede an ongoing investigation. If this same rationale is applied to affording officers who are investigated for wrongdoing-including criminal allegation-then the need for this bill appears to be a thinly disguised attempt to grant officers more rights than the common citizens they are sworn to serve. The CCLA’s position is that wrongdoing is wrongdoing and no one is above the law.”
   
3. Related Legislation: AB 418 (Kalra), would provide that a union agent, as defined, and a represented employee have an evidentiary privilege to refuse to disclose any confidential communication between the employee or former employee and the union agent while the union agent was acting in his or her representative capacity, except as specified.
   
4. Prior Legislation:
   
   1. AB 887 (Cooper), of the 2017-2018 Legislative Session, contained provisions nearly identical to this bill. AB 887 was gut and amended in the Senate. AB 887 was referred back to the Senate Rules Committee and ultimately held in the Senate Rules Committee.
      
   2. AB 3121 (Kalra), of the 2017-2018 Legislative Session, was substantial the same as AB 418 (Kalra). AB 3121 died on the Senate Inactive File.
      
   3. AB 1298 (Santiago), of the 2018-2018 Legislative Session, would have required clear and convincing evidence to sustain an administrative disciplinary action against a law enforcement officer for making a false statement. AB 1298 was held in the Senate Public Safety Committee.
      
   4. AB 729 (Hernández), of the 2013-2014 Legislative Session, would have provided that a union agent and a represented employee or represented former employee have a privilege to refuse to disclose any confidential communication between the employee or former employee and the union agent while the union agent was acting in his or her representative capacity, except as specified. AB 729 was vetoed by the Governor.
      
   5. SB 388 (Lieu), of the 2013-2014 Legislative Session, would have provided that if an interrogation focuses on matters that may result in punitive action against a public safety officer who is not formally under investigation, but is interviewed regarding the investigation of another public safety officer, the public safety officer being interviewed is entitled to representation, as specified. SB 388 was vetoed by the Governor.
      
   6. SB 313 (De Leon), Chapter 779, Statutes of 2013, prohibits any public agency from taking any punitive action against a public safety officer, or denying a promotion on grounds other than merit, because that officer is placed on a "Brady list," as specified.
      
   7. AB 955 (De Leon), Chapter 494, Statutes of 2009, Specified that discipline need not be imposed upon peace officers within the one-year time limit placed upon the investigation and imposition of penalty by the Public Safety Officers Procedural Bill of Rights (POBOR).

REGISTERED SUPPORT / OPPOSITION:

Support

Association of Orange County Deputy Sheriff's (Sponsor)
California Fraternal Order of Police (Sponsor)
Long Beach Police Officers Association (Sponsor)
Sacramento County Deputy Sheriffs Association (Sponsor)
California Correctional Peace Officers Association
California Statewide Law Enforcement Association
Riverside Sheriffs' Association

Oppose

American Civil Liberties Union of California
California Civil Liberties Advocacy
California Public Defenders Association
California State Sheriffs' Association
Ella Baker Center for Human Rights
San Francisco Public Defender's Office

Analysis Prepared by:

David Billingsley / PUB. S. / (916) 319-3744