Workplace Investigations Blog : California Employment Investigation Lawyer & Attorney : Debra Reilly Law Firm : CA Personnel, Sexual Harassment & Equal Employment Opportunity (EEO) Investigator

California's Firefighters Procedural Bill of Rights Act (FBOR) contains many requirements that might ensnare the unwary investigator.  An investigator investigating the conduct of a firefighter, paramedic, or emergency medical technician (who might be subject to "punitive action" by his/her public agency employer) must comply with the following investigation and pre-investigation procedures:

• The firefighter under investigation shall be informed, prior to the interrogation, of your name and the names of all other persons you expect to be present during the interrogation.
• The firefighter under investigation shall be informed of the nature of the investigation prior to any interrogation.
• All questions directed to the firefighter under interrogation shall be asked by and through no more than two interrogators at one time.
• The interrogation shall be conducted at a reasonable hour, at a time when the firefighter is on duty, unless an imminent threat to the safety of the public requires otherwise.
• The interrogating session shall be for a reasonable period taking into consideration the gravity and complexity of the issue being investigated.
• The person under interrogation shall be allowed reasonable breaks to attend to his or her own personal physical necessities.
• The firefighter under interrogation shall not be subjected to offensive language or threatened with punitive action.
• A “promise of reward” shall not be made as an inducement to answering any question.
• The employer shall provide to, and obtain from, an employee a formal grant of immunity from criminal prosecution, in writing, before the employee may be compelled to respond to incriminating questions in an interrogation. Subject to that grant of immunity, a firefighter refusing to respond to questions or submit to interrogations shall be informed that the failure to answer questions directly related to the investigation or interrogation may result in punitive action (Lybarger warning). Gov’t Code Section 3253(f). (Note: This requirement of a written offer of immunity raises questions since a Fire Department has no authority to grant immunity.)
• A firefighter cannot be required or requested to disclose his or her assets, income, or debts unless required under state law or pursuant to court order.
• The employer (or investigator) cannot search the firefighter’s locker or other space for storage unless the firefighter is present, or her or she consents, or he or she has been notified that a search will be conducted, or unless a valid search warrant has been obtained.
• The complete interrogation of a firefighter “may” be recorded. If a recording is made of the interrogation, the firefighter shall have access to the recording if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The firefighter being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation.
• The firefighter shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those portions that are otherwise required by law to be kept confidential.
• Notes or reports that are deemed to be confidential shall not be entered in the firefighter's personnel file.
• If, prior to or during the interrogation of a firefighter, it is contemplated that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights (Miranda warning).
• Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that may result in punitive action against any firefighter, that firefighter, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation.
• The representative shall not be a person subject to the same investigation. The representative shall not be required to disclose, or be subject to any punitive action for refusing to disclose, any information received from the firefighter under investigation for noncriminal matters.

Since most of these procedures are the same as California's Public Safety Officers Procedural Bill of Rights Act (POBR), any ambiguities in, or questions about, these procedures can probably be cleared up by reviewing the POBR cases (several of which I've discussed in prior postings concerning POBR).

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California public safety officers have had their own procedural bill of rights for the last three decades, so it is only fair that California firefighters should also have a procedural bill of rights (as many other states have also enacted). The Firefighter’s Procedural Bill of Rights Act (FBOR) became effective January 1, 2008; thus, case law has not had sufficient time to develop concerning this statute (California Government Code Sections 3250 through 3262). However, since FBOR was patterned after the Public Safety Officers Procedural Bill of Rights Act (POBR), the various rights will probably be given the same meaning by the courts. 

Under FOBR, a "firefighter" means any firefighter employed by a public agency, including, but not limited to, any firefighter who is a paramedic or emergency medical technician, irrespective of rank, but does not include probationary employees or inmates performing firefighting duties.

When any firefighter is under investigation that could lead to “punitive action,” and the firefighter is subjected to interrogation by his or her commanding officer, or subjected to an investigative interview by you (if you are so designated by the Fire Department retaining you), FOBR applies. "Punitive action" means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.

FOBR contains many requirements, and any investigator conducting such an investigation (internal employee or outside investigator) should stay abreast of the technical requirements of these statutes and the developing case law in this area.

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News flash:  Context matters!   Big headlines this last week about the Obama administration's rush to judgment in demanding the resignation of Shirley Sherrod, the former Agricultural Department's Chief of Rural Development in its Georgia office.  She was forced to resign after a 2 and 1/2 minute clip of her March 2010 speech at an N.A.A.C.P. event in Georgia was all over the Internet and the news.  

Had her employer conducted even a cursory investigation (a few hours locating, and listening to, the whole 45-minute speech or even talking to Ms. Sherrod), it would have learned the truth.  In her speech she recalled a period 24 years ago when she worked for a nonprofit agency that helped rural farmers fight bankruptcy.  In the brief excerpt, she spoke of helping a white farmer, but not with the “full force of what she could do" or with what she then believed black farmers needed in assistance.  She recounted how the white farmer had ultimately opened her eyes to the truth that white farmers faced much the same threat as blacks and that “there is no difference between us.” 

According to a CBS News story on July 20, the white farmer’s family has confirmed her story saying “She’s a good friend”, “She helped us save our farm,” "She's a friend for life" and how she helped them out of bankruptcy. 

So, the context was that she was using a personal story from 24 years ago to make a point that it was not about "black and white", but about helping the poor.

According to a New York Times editorial on July 21:

Ms. Sherrod told of how an agriculture under secretary phoned her to demand she resign instantly via her BlackBerry. The official anxiously cited the likelihood that the furor would “be on Glenn Beck tonight.”

By the time the conservative commentator took up the issue, the full transcript of the speech was out and Mr. Beck was citing Ms. Sherrod — but as a victim of administration recklessness. This time, he was right.

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The Public Safety Officers Procedural Bill of Rights Act (POBR) contains many requirements.   Some of the rights that a workplace investigator should be familiar with are the "representative" requirements.  POBR states the following three rights:

• 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 officer, that public safety officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation.
• The representative shall not be a person subject to the same investigation.
• The representative shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from the public safety officer under investigation for non-criminal matters.

Unavailability of Chosen Representative.  How long can an interview be delayed based upon unavailability of the public safety officer’s representative? Courts have held that it is the public safety officer’s responsibility to secure the attendance of a chosen representative who is physically able to represent the officer at the reasonably scheduled interrogation.  In other words, the interview does not have to be unreasonably delayed because of the “chosen” representative’s unavailability; otherwise, “an officer could prevent any interrogation by simply choosing a representative who would never be available.”  Upland Police Officers Assn v. City of Upland, 111 Cal.App.4th 1294 (2003).

The City of Upland court stated,

Nothing in [POBR] suggests that interrogations may be repeatedly postponed [due to the unavailability of the “chosen” representative] or that the time chosen for the interrogation is subject to the schedule of the chosen representative. . . .

The court concluded:

We only hold that such right is not unlimited. The officer must choose a representative who is reasonably available to represent the officer, and who is physically able to represent the officer at the reasonably scheduled interrogation. But it is the officer's responsibility to secure the attendance of his or her chosen representative at the interrogation. If he or she is unable to do so, the officer should select another representative so that the interrogation may proceed "at a reasonable hour."

Role of Representative. What role does the representative play during the interview? Unlike investigations involving the private employee, the public safety officer’s representative does not have to be silent.  Instead, courts have held that a public safety officer’s representative may speak, object, clarify questions, and even elicit favorable facts during the interrogation.

Thus, the representative can take an assertive role to assist in ascertaining the facts of an incident in the pursuit of protecting the public safety officer. The California Supreme Court identified the purpose of the public safety officer’s representation during an investigatory interview in Civil Service Ass’n v. City and County of San Francisco, 22 Cal.3d 552, 567 (1978):

A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview. . . .” (citing NLRB v. Weingarten, Inc., 420 U.S. 251 (1975).

A note of caution – this does not equate to adversarial confrontation during the interview.

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The Public Safety Officers Procedural Bill of Rights Act (POBR) contains many requirements.  One requirement of particular concern to workplace investigators is the "notice" requirement.  POBR states that the public safety officer under investigation shall be informed of the "nature" of the investigation "prior" to the interrogation.

Of course, this begs the questions-- How much detail?  How much prior notice?

Detail in Notice. How much detail must the officer be given beforehand to meet the “informed of the nature of the investigation” requirement? Although POBR does not specifically tell us, it should be more than a generic interrogation notice, but less than providing each and every specific factual allegation against the peace officer. A notice providing the general nature of the allegations, with adequate content to understand the charges, might look like this:

It has been alleged that you have engaged in conduct that violates the department’s sexual harassment policies. The alleged conduct includes inappropriate comments, touching, emails, computer usage, and photographs over the course of six months.

The particulars of these allegations must then be fully explored during the investigative interview.

Time of Notice. How far in advance must the public safety officer be informed of the nature of the investigation? Again, POBR does not directly state the specifics of the “notice” requirement. Courts have used a “rule of reasonableness,” recognizing that peace officers should receive the notice far enough in advance so as to be able to prepare an adequate response.

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