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The Public Safety Officers Procedural Bill of Rights Act, commonly referred to as POBRA or POBR, provides procedural guarantees to public safety officers who are under investigation by their employers.

POBRA is codified in Government Code sections 3300-3313.  Government Code section 3303(c) provides, “The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation.”

Questions often arise from our public safety clients as to how this section is interpreted. Luckily, the court in Ellins v. City of Sierra Madre (2016) 244 Cal. App. 4th 445, 197 Cal. Rptr. 3d 848, provided guidance on this issue.

In short, notice must be provided reasonably prior to the interrogation so the officer has enough time to meaningfully consult with any representative he or she elects to have present. So, what does that really mean? Read on for an expanded explanation.

In Ellins, the city of Sierra Madre Police Department opened up an investigation into peace officer John Ellins’ use of the California Law Enforcement Telecommunications System (CLETS).  The Department formally notified Ellins that an “administrative investigation is currently being conducted regarding an alleged abuse of your peace officer powers and duties.”  The notice provided no further details on the nature of the alleged abuse.

On October 13, 2010, just minutes before his interview was to begin, Ellins was notified orally and in writing that he was alleged “in May 2010 [to have] inappropriately accessed the [CLETS database] and made numerous inquiries regarding [his] former girlfriend…and her relatives.”  Ellins at p. 450.

Ellins and his representative were then given an hour to discuss the charges in private before commencing the interview.  This was the amount of time his representative had requested.  However, after 25 minutes, Ellins told the investigator that he refused to participate in the interview on the advice of his representative.  Ellins’ commanding officer appeared and directly ordered Ellins to sit for the interview.  Ellis still refused.  The Department rescheduled the interview three more times (October 14, 2010; November 15, 2010; and November 16, 2010), but Ellins did not appear for medical reasons. In December 2010, Ellins was issued a notice of intent to terminate, in part because of his refusal to participate in the interrogation on October 13, 2010 and October 14, 2010, in disobeyance of a commanding officer’s direct order.  During the appeal process, the insubordination charge for October 14, 2010 was not upheld because Ellins arguably had a medical excuse.  However, the insubordination for October 13, 2010 was upheld.

An appeal based in part on the timing of the Department’s notice of the nature of the investigation followed.  The court found that notice must be provided reasonably prior to the interrogation so the officer has enough time to meaningfully consult with any representative he or she elects to have present.  The court found that the time necessary 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, the number of allegations.

Further, the court found that an employer with reason to believe that providing this information might risk the safety of interested parties or the integrity of the 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.

Goyette & Associates remains a preeminent law firm in the field of the Public Safety Officers Procedural Bill of Rights Act.  If you have an issue with the notice, or lack thereof, provided to you by your employing peace officer agency, contact Goyette & Associates at (916) 851-1900 or toll free at (888) 993-1600 to schedule a free consultation.

[DISCLAIMER — The above contents do not constitute legal advice.  Consultation or submission of a potential case to Goyette & Associates does not constitute retention as legal counsel.]

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