Peace Officers Under Investigation Must be Informed of the Nature of the Investigation “Reasonably Prior To” an Interrogation Except Where Advance Disclosure Could Endanger Persons or Evidence

Ellins v. City of Sierra Madre (Jan. 28, 2016, B261968) ___ Cal.App.4th ___ [2016 WL 337383]

The Public Safety Officers Procedural Bill of Rights Act (“POBRA”) (Government Code section 3300 et seq.) provides procedural guarantees to public safety officers who are placed under investigation and interrogated by their employers. POBRA provides, in pertinent part, that a “public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation.” (Gov. Code § 3303(c) (emphasis added).)

In Ellins v. City of Sierra Madre, the Second District Court of Appeal answered the question lurking in this particular procedural guarantee – namely, how long “prior to” an interrogation must an officer be provided the requisite notice. May notice be provided “mere minutes” prior to an interrogation, as the City contended, or is notice required at least one day and up to five days in advance of the interrogation, as the employee suggested?

As discussed in greater detail below, the Court of Appeal, in a decision issued January 28, 2016, rejected both of these views, holding instead that such notice must be provided “reasonably prior to” the interrogation (which in most cases will mean at some point prior to immediately before the start of the interview itself) unless such advance disclosure would jeopardize the safety of persons or integrity of evidence.

This direct holding seems, at first blush, relatively innocuous (after all, who would argue against the proposition that “notice” means “reasonable” notice?). But there’s a hidden issue embedded in this case, discussed below, that presages a more important debate in future cases involving public safety officers, firefighters, and even (potentially) non-safety personnel.

THE FACTS

In the summer of 2010, John Ellins, a police officer with the City of Sierra Madre Police Department, was accused by an ex-girlfriend of using information he improperly obtained from the California Law Enforcement Telecommunications System (“CLETS”) database – a confidential law enforcement database – to track her down in New York. The Department launched an investigation into Ellins’ alleged misuse of the database, formally notifying him in September 2010 that “[a]n administrative investigation is currently being conducted regarding an alleged abuse of your peace officer powers and duties.” The notice provided no further details concerning the nature of the alleged abuse.

An outside consultant hired by the City to run the investigation scheduled an interview with Ellins for October 13, 2010. Minutes before the scheduled interview was to begin, the consultant notified Ellins, orally and in writing, that Ellins was alleged “in May 2010 [to have] inappropriately accessed the [CLETS database] and made numerous inquiries regarding [his] former girlfriend . . . and her relatives.”

Ellins and his representative requested an hour to discuss the charge in private before beginning the interview. The consultant agreed to the request. However, after 25 minutes, Ellins told the consultant that he refused to participate in the interview on the advice of his representative. Ellins’ commanding officer then ordered him to sit for the interview; Ellins refused to do so.

The Department rescheduled the interview three more times but Ellins did not appear for medical reasons and in December 2010, the Department issued Ellins a notice of intent to terminate his employment. The notice stated that Ellins’ termination was based on his unauthorized CLETS searches and his insubordination in refusing to participate in the investigative interview. The Department terminated his employment in February 2011.

Ellins appealed his termination to a hearing officer who affirmed the dismissal. Ellins then filed a petition for writ of mandate, challenging among other things the timing of the Department’s provision of notice to him about the nature of the investigation under Government Code section 3303, subdivision (c) (quoted above). The trial court denied the petition, concluding as to the section 3303, subdivision (c)-based challenge that neither the statute nor any authority stated how long prior to an interrogation the requisite notice had to be provided. (The trial court also concluded that there was sufficient evidence to sustain the city’s findings of unauthorized access to the CLETS database and insubordination). Ellins appealed.

STATUTORY PROVISION

Government Code section 3303 provides, in pertinent part, as follows:

When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions. For the purpose of this chapter, punitive action means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.

. . .

(c) The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation.

. . .

THE COURT OF APPEAL’S DECISION

On appeal, Ellins’ sole contention was that his termination for insubordination was invalid because he had justifiably refused to submit to the October 13, 2010 interrogation when the Department allegedly violated POBRA in not timely notifying him of the nature of the investigation prior to the interrogation.

The core statutory question in this case is how long prior to the interrogation of an accused public safety officer must the officer be informed of the nature of the investigation? The City argued that mere minutes is enough, and Ellins suggested that one to five days was required. The Court of Appeal’s answer, in effect, is that it depends.

[W]e hold that section 3303, subdivision (c), requires an officer to be informed of the nature of the investigation “reasonably prior to” the interrogation-that is, with enough time for the officer to meaningfully consult with any representative he elects to have present. The time necessary to do so may depend upon whether the officer has already retained a representative (or instead needs time to secure one) and upon the nature of the allegations; their complexity; and, if they are unrelated, their number.

Importantly, the Court of Appeal then qualified the rule it was enunciating, explaining that “an employing department with reason to believe that providing this information might risk the safety of interested parties or the integrity of evidence in the officer’s control may delay the notice until the time scheduled for interrogation as long as it thereafter grants sufficient time for consultation.”

Applying its interpretation of the statute to the facts, the Court of Appeal affirmed the judgment of the trial court, concluding that Ellins’ efforts to track down his former girlfriend without her consent provided good cause to the Department to postpone disclosure of the nature of the investigation until the start of the interrogation to avoid any possibility of retaliation against her. The Court of Appeal also noted that the consultant had granted sufficient time to Ellins and his representative to meaningfully confer in private after the notice was provided and prior to the start of any interview and that Ellins thus had received the reasonable notice required by POBRA and had no justification for his insubordination on October 13, 2010.

IMPACT

This case stands for the proposition that an employer of public safety personnel covered by POBRA must give an employee under investigation a reasonable amount of time to contemplate the issues being investigated before being subject to questioning about them. It also stands for the proposition that the amount of pre-interrogation notice can be abbreviated if necessary to protect the safety of interested parties or the integrity of evidence. Neither of these legal propositions is shocking or unmanageable. But a key fact in this case may come back to haunt unsuspecting public employers in future litigation regarding Government Code section 3303. The issue of how much notice the employer must give the employee regarding “the nature of the investigation” is inextricably tied to how much substantive detail the notice needs to provide, since adequate notice is required in order for the “reasonable advance notice” clock to start running. The consultant in Ellins gave Ellins clear and precise notice, orally and in writing, about the nature of the investigation (i.e., that Ellins was alleged to have inappropriately accessed the CLETS database in May 2010 to garner information about his former girlfriend and her relatives). This is in contrast to the department’s initial, very general notice of the nature of the investigation (“an alleged abuse of … peace officer powers and duties”). Lawyers representing public safety officers, firefighters and even non-safety personnel will likely assert that the high degree of disclosure Ellins ultimately received in this case implicitly sets the standard for future cases.

PRACTICE POINTERS

  • Mindful of the risks of litigation under POBRA, most public safety agencies typically provide enough information in notices of investigation to alert the employee about what the charges are and to give the employee the opportunity to formulate a full and informed response. (The same is true for fire agencies covered by the Firefighters Procedural Bill of Rights Act (“FFBOR”) (Government Code section 3250 et seq.), and its identical notice provision, Government Code section 3253, subdivision (c).)  Ellins should serve as a reminder of the imperative of providing adequate detail in a notice of investigation so as to avoid becoming a “test case” on this emerging issue.
  • Non-safety employees in California do not enjoy the elaborate statutory protections of POBRA and FFBOR. However, lawyers representing unionized personnel in both the public and private sectors contend that employees (and their representatives) are entitled to adequate notice about the nature of investigative interviews in order to ensure the right of representation. (Indeed, the Ellins court borrowed from private sector precedent under section 7 of the National Labor Relations Act in reaching its conclusion.)[1] Plaintiff-side lawyers also contend that their public employee clients’ “Due Process” rights entitle them to the same degree of notice provided to police and fire personnel.  Ellins presents the opportunity for non-safety employers to examine their practices regarding the degree of notice they provide in connection with investigative interviews.

[1]Pacific Tel. and Tel. Co. v. NLRB (9th Cir. 1983) 711 F.2d 134, 135.

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For more information, please contact Jeff Sloan (jsloan@publiclawgroup.com, (415) 678-3806) or Ivan Delventhal (idelventhal@publiclawgroup.com, (415) 848-7218).