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).