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.