From timing and notifications to the sharing of information with respondents, the complex nuances of conducting workplace investigations involving public safety employees require an extra layer of care.

Public safety employees, such as peace officers and firefighters, are afforded special procedural protections under the Public Safety Officers Procedural Bill of Rights (PBOR) and Firefighters Procedural Bill of Rights (FBOR) that a workplace investigator must follow to ensure legal compliance and avoid challenges to the investigation. This article provides strategies and practice pointers on how to conduct effective workplace investigations involving police and fire personnel to withstand procedural challenges and scrutiny down the road. It outlines when PBOR and FBOR protections apply and to whom, timing considerations, what constitutes proper notice, unique rules related to audio recordings, and special considerations for the investigator to keep in mind when conducting the subject interview.

Determining Applicability of PBOR/FBOR

One of the first considerations for any workplace investigation that involves public safety employees as parties and witnesses is to determine whether the special procedural protections apply.

PBOR protections apply to non-probationary sworn personnel, including peace officers employed by traditional law enforcement agencies such as police, probation, and sheriff departments. These protections also extend to peace officers employed by the University of California and California State educational institutions, correctional officers, fish and game wardens, park rangers, and state attorney general and department of justice investigators. FBOR applies to all non-probationary firefighters, regardless of rank.

Generally, these procedural protections apply only to the subject of the investigation (i.e. the accused or the respondent) who faces potential discipline based on the outcome of the investigation. However, investigators should be aware of any department policies or collective bargaining agreements that may extend these protections to non-sworn and/or probationary personnel or witnesses in the investigation.

👉 Practice Tip: Before conducting interviews, investigators should consult with the employing department to determine whether PBOR or FBOR protections extend to anyone other than the subject of the investigation or to non-sworn or probationary personnel. The investigator may also want to obtain relevant department policies, manuals, or memorandums of understanding to help identify those employees covered by such an extension of these rights.

Timing Limitations

Both PBOR and FBOR require the employing department to notify the subject of potential disciplinary measures within one year of discovering their alleged misconduct, but they differ with respect to when the running of the clock begins.

• Under PBOR, the one-year notice requirement starts when a person authorized to investigate learns of the issue.
• Under FBOR, the one-year notice requirement starts when the employing fire department learns of the issue; this does not necessarily need to be by a person authorized to investigate.

It should be noted a 2014 court case (Pedro v. City of Los Angeles) found that under both PBOR and FBOR, the clock begins to run when the department is put on notice about the alleged misconduct, even when it does not know which employee allegedly engaged in the reported behavior.

In addition, both PBOR and FBOR provide for a tolling of the clock during parallel criminal investigations, a related civil litigation, or gaps in employment among seasonal firefighters (Gov. Code §§ 3304(d)(2)(A), 3254(d)(6), 3254(d)(8)). Edgar Bacilio v. City of Los Angeles, et. al. (2018) 28 Cal.App.5^th 717 held that when there is a parallel criminal investigation the tolling period ends when the prosecuting agency makes a “final determination” not to file charges.

👉 Practice Tip: Investigators should factor in timing constraints to avoid delays, including those caused by union representatives’ availability. While PBOR and FBOR provide the subject the right to be represented by a “representative of [their] choice” during their interview, pursuant to the holding in Upland Police Officers’ Association v. City of Upland (2003) 111 Cal.App.4^th 1294), investigators only need to provide the subject with a reasonable opportunity to secure the representative of their choice, as they do not have an absolute right to that representative. This may arise when the selected representative is unavailable for an extended period. In this instance, the investigator should feel confident in asking the subject to select an alternate representative to move the investigation along to avoid further delay.

Notice Requirements

In Ellins v City of Sierra Madre (2016) 244 Cal.App.4th 445, the court provided guidance about what information peace officers and firefighters under investigation must be provided in advance of their interview. According to that ruling, investigators must inform them of the subject matter or nature of the investigation with sufficient specificity to allow them to meaningfully consult with their union representative and/or legal counsel.

• • Specificity: The investigator should review the notice that the department plans to issue, to ensure it is tailored to the specific investigation and contains sufficient information, and flag potential issues if not. However, it is also important not to provide so much specificity regarding the allegations that it unintentionally limits the scope of the investigation. The notice must strike a balance between fairly and adequately informing the accused about the general nature of the claims being brought against them, while not limiting the evidence the investigator can gather by being overly specific. While PBOR and FBOR provide for special notice requirements, it should be noted that pursuant to Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564. 572-579, neither provides the subject with the right to receive a copy of the complaint or any evidence the investigator has gathered, at least while the investigation is still underway.

• Timing: An investigator must also consider, on a case-by-case basis, how far in advance of the interview to provide notice to the subject, to allow them sufficient time to meaningfully consult with their representative. This depends on several factors including: (1) whether the subject has already retained a representative or needs time to secure one, (2) the nature and complexity of the allegations, and (3) the number of allegations, if unrelated. For example, the Ellins court held that one-hour prior notice provided sufficient time for the subject officer to meaningfully consult with his attorney concerning an allegation that he abused his power by accessing the California State Law Enforcement Telecommunications System (CLETS) to conduct a search of his ex-girlfriend, finding the allegation to be isolated in nature and not complex.

Recording Interviews

Unlike other individuals under investigation, peace officers and firefighters who are the subject of an investigation have an explicit right to record their interview on their own recording device. Witnesses, even sworn peace officers and firefighters, do not have a right to record or a right to obtain any interview recordings. While the subject peace officer or firefighter has a right to record the interview, they do not have the right to obtain a copy of the investigator’s recording unless the investigator conducts a follow-up interview of the subject.

👉 Practice Tip: Prior to interviewing the subject, the investigator should make sure they have gathered sufficient information about the allegations and issues about which they plan to question the subject, understanding that the subject would be entitled to the investigator’s recording of their interview if any follow-up interview is needed. To avoid any misunderstanding, the investigator should inform the subject at the start of their interview that they have right to record but do not have a right to obtain copy of the investigator’s recording, unless they are asked to sit for an additional interview. Should a subject decide to record their interview, the investigator should document this decision orally on their recording.

Managing Subject Interviews

One of the first decisions an investigator must make when creating an investigation plan is the order in which they will interview witnesses. While it may be preferable to interview the subject immediately after the complainant to determine early on whether the subject will acknowledge engaging in some or all of the alleged conduct, possibly limiting the need for witness interviews, there are special factors investigators should consider when conducting PBOR and FBOR investigations regarding both the time and timing of the subject interview.

• Timing: The investigator should schedule interviews to minimize the need for follow-ups, as additional interviews may grant the subject access to certain investigative files. As discussed above, a subject peace officer or firefighter may obtain a copy of the investigator’s recording if they are required to sit for a follow-up interview. While the release of the interview recording, standing alone, may not appear to be problematic, a second interview also triggers other rights, including the right to receive any reports or complaints made by investigators or other persons not deemed confidential by the employing department. A premature release of the investigative file could compromise the integrity of the investigation in various ways. The subject may attempt to influence witness participation, or the information witnesses provide during the investigation. This may also increase the possibility of retaliation against witnesses and could cause additional problems in the workplace, leading to more complaints.

👉 Practice Tip: To avoid a follow-up interview that would afford the subject access to portions of the evidentiary file before the investigation is completed, the investigator might plan to interview the subject of the investigation last, after gathering all relevant witness and documentary evidence.

• Time: When determining the time of day for the subject interview, the investigator should also keep in mind that that both PBOR and FBOR require the interview be conducted at a “reasonable hour.” In addition, on duty interviews are required under both PBOR and FBOR, unless there are circumstances that require otherwise. It should be noted that PBOR also permits an off-duty interview so long as it occurs during the officer’s “normal waking hours” (Govt. Code §3303(a)).

👉 Practice Tip: Investigators should consult with their departmental contact to determine what shift the subject firefighter or officer is assigned to work to ensure that the time of day selected for the interview is reasonable, given that public safety is a 24/7 operation, and the subject may be assigned to a shift (swing or graveyard) that is outside the investigator’s regular working hours.

👉 Practice Tip: When a lengthy interview is anticipated, the investigator should schedule a sufficient block of time for the interview and start the interview early in the day or subject officer or firefighter’s shift, if on an atypical schedule, to make sure the interview can be reasonably conducted and completed in one session. This permits the investigator to maintain a single recording of the subject interview and avoid splitting the interview into two sessions, as this arguably constitutes subsequent questioning, triggering the additional rights discussed above.

Finally, in cases requiring a second interview, record disclosure depends on the jurisdiction, as appellate districts differ in their interpretation. In Oakland Police Officers Association v. City of Oakland (2021) 63 Cal.App.5^th 503 the First District Court of Appeal held that only records the investigating agency has deemed are not confidential must be disclosed before a follow up interview. In contrast, the Fourth District Court of Appeal held in Santa Ana Police Officers Association v. City of Santa Ana (2017) 13 Cal.App.5th 317 that transcribed notes, complaints, and investigative reports, including those in draft form, are subject to disclosure.

Conclusion

Adhering to PBOR and FBOR procedural safeguards is critical to ensure investigations remain legally compliant, effective, and useful to the employing department.