Workplace investigations involving Public Safety Officers are governed by special procedural rules set forth in the Public Safety Officers Procedural Bill of Rights Act ("POBR").
Specifically, California Gov’t Code section 3303 says:
When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions. For the purpose of this chapter, punitive action means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.
The POBR contains many requirements, more than contained in this posting, but highlights of some of the "investigation" procedures are:
- 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 officer.
- If the interrogation does occur during off-duty time of the officer, the officer shall be compensated for any off-duty time in accordance with regular department procedures.
- The officer under investigation shall be informed prior to the interrogation of the rank, name, and command of the officer in charge of the interrogation, the interrogating officers, and all other persons to be present during the interrogation.
- All questions shall be asked by and through no more than two interrogators at one time.
- The officer under investigation shall be informed of the nature of the investigation prior to the interrogation.
- The interrogating session shall be for a reasonable period taking into consideration gravity and complexity of the issue.
- The officer shall be allowed to attend to his or her own personal physical necessities.
- The officer shall not be subjected to offensive language or threatened with punitive action.
- However, an officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action.
- No promise of reward shall be made as an inducement to answering any question.
- No statement made during interrogation by an officer under duress, coercion, or threat of punitive action shall be admissible in any subsequent civil proceeding.
- The complete interrogation of an officer may be recorded. If a tape recording is made of the interrogation, the officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time.
- The officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential.
- No notes or reports that are deemed to be confidential may be entered in the
officer’s personnel file.
- The officer shall have the right to bring his or her own recording device and record any and all aspects of the interrogation.
- If prior to or during the interrogation of an 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 (Miranda 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 officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation.
- The representative shall not be a person subject to the same investigation.
- The representative shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from the officer under investigation
for non-criminal matters.
If an officer under interrogation refuses to answer a question and “takes the Fifth,” the investigator must inform the officer of the protections offered to him or her. This instruction is called the “Lybarger Warning,” named after the California Supreme Court case. In such circumstances, officer should be provided, in writing if possible, a Lybarger instruction, for example:
You have been asked to provide information as part of a Police Department [insert employer’s name] investigation. Failure to fully cooperate in this investigation may subject you to disciplinary action. Please be advised that in order to protect your Fifth Amendment right against self-incrimination in a criminal proceeding, any information you provide as part of this investigation cannot be used against you in any subsequent criminal proceeding.
Any investigator commencing an investigation involving a public safety officer should carefully read and understand California Gov’t Code sections 3300-3311 before doing any work (note, Firefighter’s have their own separate Firefighter’s Procedural Bill of Rights).