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.