Public Safety Officer Must Be Informed of the Nature of an Investigation “Reasonably Prior To” an In

02.17.2016

A public safety officer subject to investigation is entitled to a variety of protections set forth in the Public Safety Officer’s Procedural Bill of Rights Act (“POBRA”) (Cal. Gov. Code §§ 3300 et seq.). On January 28, 2016, the California Court of Appeal addressed the question of how far in advance of an investigation interview an employer must share information with the subject officer. In Ellins v. City of Sierra Madre, the Court of Appeal held that a public safety officer must be informed of the nature of the investigation “reasonably prior” to an interrogation to ensure the officer has sufficient time to “meaningfully consult” with his or her representative. (Ellins v. City of Sierra Madre (January 28, 2016, B261968) _ Cal.App.4th _ [2016 WL 337383].)

John Ellins (“Ellins”) worked as a police officer for the City of Sierra Madre Police Department (“Department”). Ellins had access to the California Law Enforcement Telecommunications System (“CLETS”), a confidential law enforcement system that provides peace officers with access to several integrated databases to assist with their duties. Upon hire, the Department informed Ellins that it would terminate any officer who used the CLETS database for any reason other than official business. In May 2010, Ellins accessed the CLETS database on a personal matter. The Department initiated an investigation after his ex-girlfriend informed the Department that Ellins had tracked her down with information obtained from CLETS. In September 2010, the Department notified Ellins that an investigation had begun “regarding an alleged abuse of your peace officer powers and duties,” without providing any other details.

Just minutes before the scheduled start of Ellins’ interview, the investigator notified Ellins (verbally and in writing) that he was alleged to have “inappropriately accessed” the CLETS database and made “numerous inquiries” regarding his ex-girlfriend and her relatives. The investigator delayed the interview for an hour so that Ellins could discuss the charges with his representative. However, Ellins told the investigator that he refused to participate in the interview on the advice of his representative. Thereafter, Ellins’ commanding officer appeared and directly ordered him to participate. Despite the order, Ellins still refused to participate in the interview.

The Department attempted to reschedule the interview, but Ellins did not appear for any of those dates based on medical reasons. In February 2011, the Department terminated Ellins for making unauthorized searches of the CLETS database, as well as insubordination for refusing to comply with an order to submit to an interrogation. In the administrative appeal, a hearing officer sustained the termination. The Los Angeles County Superior Court subsequently denied Ellins’ petition for writ of mandate to overturn his dismissal. The court held, in part, that POBRA required notice of the charges be given to an officer “prior to” an interrogation, and that current authority did not require that such notice be provided any earlier than it was provided to Ellins in this matter. Ellins appealed the trial court’s decision to the Court of Appeal.

In finding in favor of the Department, the Court of Appeal concurred with the trial court’s interpretation of POBRA. The Court of Appeal observed that POBRA (Cal. Gov. Code § 3303) mandated that a public safety officer “be informed of the nature of the investigation prior to any interrogation.” The Court of Appeal held that an officer must receive notice “reasonably prior to” the interrogation, so that the officer may “meaningfully consult” with his or her representative. The Court of Appeal noted that the requisite time depended on the particular circumstances, such as whether the officer had retained a representative, as well as the nature and complexity of the allegations. The Court of Appeal also held that an employing department may delay notice until the time scheduled for interrogation if it has reason to believe that providing earlier notice might risk the safety of interested parties, or the integrity of the evidence in the officer’s control, provided that the department grants sufficient time for consultation thereafter.

The Court of Appeal noted that the Department had good cause to delay disclosure of the nature of investigation until the commencement of the interrogation. Specifically, Ellins’ efforts to track down his former girlfriend provided good cause to postpone disclosure of the nature of the investigation so as to avoid any possibility of retaliation against her. Further, the Court of Appeal highlighted the fact that the Department delayed the interrogation until Ellins had time to consult with his representative. Given that the Department informed Ellins reasonably prior to the interrogation under this standard, he had no justification for his insubordination.

Effect on Public Safety Agencies

The holding in this case will also apply to interrogations of firefighters pursuant to the Firefighters Procedural Bill of Rights Act (“FBOR”) (Government Code section 3253(c).) Public safety agencies must keep in mind that employees subject to POBRA and FBOR are entitled to “reasonable” advance notice of the nature of an investigation that will permit an employee to meaningfully consult with his or her representative. While notice immediately prior to an interrogation will generally not suffice, employing departments may be able to justify delaying disclosure if they can demonstrate that earlier disclosure would risk the safety of interested parties or the integrity of the investigation.

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