BILL ANALYSIS                                                                                                                                                                                                    Ó




                   Senate Appropriations Committee Fiscal Summary
                            Senator Kevin de León, Chair


          SB 388 (Lieu) - Public safety officers and firefighters:  
          investigations and interrogations.
          
          Amended: January 17, 2014       Policy Vote: Public Safety 6-0
          Urgency: No                     Mandate: Yes
          Hearing Date: January 21, 2014                          
          Consultant: Jolie Onodera       
          
          This bill meets the criteria for referral to the Suspense File.
          
          
          Bill Summary: SB 388 would specify that a firefighter or peace  
          officer witness may have a representative present when  
          questioned by his or her employer regarding the investigation of  
          another firefighter or peace officer, if that interview may lead  
          to disciplinary action against the witness, as specified.  

          Fiscal Impact: Potentially significant state-reimbursable costs  
          (General Fund) for increased expenditures incurred under the  
          existing FPOR and POBOR statutes to the extent a higher number  
          of formal interrogations and associated activities are provided  
          to firefighter and peace officer witnesses as a result of this  
          measure. While the proportion of mandated costs specific to  
          interrogation activities is unknown, the magnitude of historical  
          POBOR mandate reimbursement claims have been in the range of  
          $6.3 million to $15.7 million. In 2000, the Commission State  
          Mandates (COSM) authorized reimbursement for specified  
          interrogation activities specified in POBOR of peace officers  
          under direct investigation, as well as of officers who become a  
          witness to an incident under investigation, as specified.  


          Background: Existing law establishes the Firefighters Procedural  
          Bill of Rights Act (FPOR) that governs the procedures for the  
          investigation and interrogation of a firefighter for alleged  
          misconduct (Government Code (GC) § 3250, et seq). FPOR  
          specifically provides that the interrogation of a firefighter,  
          who is the subject of an investigation that could lead to  
          punitive action, by his or her commanding officer, or any other  
          member designated by the employing department or licensing or  
          certifying agency, must be conducted in accordance with GC §  
          3253. One of the protections afforded in GC 3253 is the ability  








          SB 388 (Lieu)
          Page 1


          to have a representative present at the interrogation (GC §  
          3253(i)).   
          
          Existing law establishes Public Safety Officers Procedural Bill  
          of Rights Act (POBOR) that controls how the investigation and  
          interrogation of a public safety officer for alleged misconduct  
          occurs (GC § 3300, et seq). POBOR provides that the  
          interrogation of a peace officer, who is the subject of an  
          investigation that could lead to punitive action, by his or her  
          employer, must be conducted in accordance with GC § 3303. One of  
          the protections afforded in GC § 3303 is the ability to have a  
          representative present at the interrogation (GC § 3303(i)).   

          This bill seeks to clarify that witness peace officers and  
          firefighters cannot be denied the right of representation under  
          POBOR and FPOR.
          
          Proposed Law: This bill amends both FPOR and POBOR to specify  
          that a firefighter or peace officer may have a representative of  
          his or her choice present when questioned by his or her employer  
          regarding the investigation of another firefighter or peace  
          officer, as follows:
                 For a firefighter, if that interrogation focuses on  
               matters that may result in punitive action against the  
               firefighter. 
                 For a peace officer, if that interrogation focuses on  
               matters that are likely to result in punitive action  
               against the officer.

          The firefighter or peace officer may choose a representative who  
          is reasonably available to represent the firefighter or peace  
          officer at an interrogation that has been reasonably scheduled.  
          The representative cannot be a person subject to the same  
          interrogation. Additionally, the representative would be able to  
          be present at all times during the interrogation and could not  
          be required to disclose information received from the peace  
          officer or firefighter being interrogated, as specified.
          .
          Prior Legislation: SB 313 (de León) Chapter 779/2013 prohibits a  
          public agency from taking punitive action, or denying promotion  
          on grounds other than merit, against a public safety officer,  
          because the officer's name was placed on a Brady list, as  
          specified. 









          SB 388 (Lieu)
          Page 2


          AB 2543 (Alejo) 2012 would have prohibited a public agency from  
          taking punitive action, or denying promotion on grounds other  
          than merit, against a public safety officer, because the  
          officer's name was placed on a Brady list, or that the officer's  
          name may otherwise be subject to disclosure pursuant to  Brady  v.   
          Maryland  , as specified. This bill failed passage in Senate  
          Public Safety.

          SB 638 (de León) 2011 would have prohibited a public agency from  
          taking punitive action, or denying promotion on grounds other  
          than merit, against a public safety officer, because the  
          officer's name was placed on a Brady list, as specified. This  
          bill died in Senate Public Safety.

          AB 220 (Bass) Chapter 591/2007 created the Firefighters  
          Procedural Bill of Rights (FPOR). FPOR provides firefighters,  
          paramedics, and emergency medical technicians with rights that  
          are virtually identical to the rights provided to peace officers  
          in POBOR.  Like POBOR, FPOR establishes rules governing the  
          interrogation of an employee who is under investigation. 

          Staff Comments: In 1999, the Commission on State Mandates (COSM)  
          approved the test claim for POBOR, finding that certain  
          procedural requirements under POBOR exceeded the requirements of  
          existing state and federal law. On July 27, 2000, the COSM  
          adopted parameters and guidelines (Ps&Gs) authorizing  
          reimbursement beginning July 1, 1994, to counties, cities,  
          school districts, and special districts that employ peace  
          officers for various ongoing activities, including but not  
          limited to when a peace officer is under investigation and is  
          subjected to an interrogation by the employer that could lead to  
          disciplinary action. 
          
          Staff notes the COSM determined that POBOR rights under GC §  
          3303, which address investigations and interrogations,  do  attach  
          when a peace officer is interrogated as a witness to an incident  
          since the officer's own actions regarding the incident can  
          result in punitive action. As such the Ps&Gs include the  
          following paragraph:


                 "Claimants are eligible for reimbursement for the  
               performance of the activities listed in this section  
               only when a peace officer is under investigation,  or  








          SB 388 (Lieu)
          Page 3


               becomes a witness to an incident under investigation  ,  
               and is subjected to an interrogation by the  
               commanding officer, or any other member of the  
               employing public safety department, that could lead  
               to dismissal, demotion, suspension, reduction in  
               salary, written reprimand, or transfer for purposes  
               of punishment.  (Gov. Code, § 3303.)"  


          The Ps&Gs authorized reimbursement for the following activities  
          related to interrogations:
                 Compensating the peace officer for interrogations  
               occurring during off-duty time in accordance with regular  
               department procedures. 
                 Providing prior notice to the peace officer regarding  
               the nature of the interrogation and identification of the  
               investigating officers.
                 Tape recording the interrogation when the peace officer  
               employee records the interrogation. Included in the  
               foregoing is the cost of tape and storage, and the cost of  
               transcription.

                 Providing the peace officer employee with access to the  
               tape prior to any further interrogation at a subsequent  
               time, or if any further proceedings are contemplated and  
               the further proceedings fall within specified categories.  
               Included in the foregoing is the cost of tape copying.

                 Producing transcribed copies of any notes made by a  
               stenographer at an interrogation, and copies of reports or  
               complaints made by investigators or other persons, except  
               those that are deemed confidential, when requested by the  
               officer, as specified.

          While the provisions of this bill do not appear to expand the  
          activities currently eligible for reimbursement by the state  
          under POBOR, the potential number of formal interrogations of  
          public safety officers covered under the existing POBOR statutes  
          could increase as a result of this statutory clarification, and  
          by extension, increase reimbursable costs. The potential impact  
          is significant given the POBOR mandate claims submitted to date.  
          The proportion of mandated costs specific to interrogation  
          activities is unknown, but given the magnitude of historical  
          POBOR mandate reimbursement claims of $6.3 million to $15.7  








          SB 388 (Lieu)
          Page 4


          million, potential costs could be significant. 

          The COSM has indicated no test file has been claimed on FPOR to  
          date. To the extent local firefighting agencies would be  
          considered eligible claimants under Article XIIIB, Section 6 of  
          the Constitution, all FPOR costs associated with this measure  
          could potentially be reimbursable by the state.