Preserving the Right to a Rep for Interrogations and Interviews

BRANDI L. HARPER
Managing Partner
Castillo Harper, APC

Have you ever fought with your spouse not because of what you said, but because of how you said it? After a few of those fights, you start to figure out that how you say things matters, even if the words basically mean the same thing. The same is true in the law. That is why you must be sure to use the correct verbiage when you want to invoke your interrogation rights for investigatory interviews.

California Government Code Section 3303(i) of the Public Safety Officer’s Procedural Bill of Rights provides that a peace officer “shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation.” This section also requires that “the officer must be given a reasonable opportunity to obtain a representative of his or her choice to be present at the scheduled interrogation” (Upland Police Officers Ass’n. v. City of Upland [2003] 111 Cal. App 4th 1294, 1309).

Consistent with, and in furtherance of, this requirement, the courts have also held that an officer must be given notice of the nature of an interrogation “reasonably prior” to it, such that the officer has “sufficient time to meaningfully consult with any ‘representative’ he or she elects to have present during the interview” (Ellins v. City of Sierra Madre [2016] 244 Cal. App. 4th 445, 449). The Ellins court further determined that “the time necessary to do so may depend upon whether the officer has already retained a representative or instead needs time to secure one” (Id. at p. 453).

Each of these requirements furthers the legislative purpose of the Bill of Rights Act, namely the “public interest in maintaining the efficiency and integrity of its police force” through “prompt, thorough, and fair investigation[s]” and the “personal interest” of the “officer under investigation” “in receiving fair treatment” (Pasadena Police Officers Assn. v. Pasadena [1990] 51 Cal. 3d 564, 568-569).

Taken as a whole, the reasonable opportunity an officer must be given to obtain and consult with the representative of their choice to be present at a scheduled interrogation “allows the officer and his or her representative to be ‘well-positioned to aid in a full and cogent presentation of the [officer’s] view of the matter, bringing to light justifications, explanations, extenuating circumstances, and other mitigating factors” (Ellins, supra., 244 Cal. App. 4th at 454).

What That Means for You

The law requires your employer to allow you time to secure the representative of your choice so that they can be present during the interview in a meaningful way. That often requires the right to have the interview rescheduled.

But be aware that the one-year statute of limitations by which your employer must complete its investigation and notify you of its intent to discipline (Govt. Code §3304[d]) is automatically extended by the additional time beyond the notice that you need to find a representative and reschedule the interview. The point of this is to prevent substantial delays in rescheduling the interview from impacting the limited time within which the department must complete its investigation under section 3304(d) of the Act.

Your rights under POBR are not self-executing. You must assert those rights; the department is not required to notify you of your rights. If you do not raise them at the appropriate time and in the appropriate manner — “how you say it” — you may lose the right to assert them later.

• When you are given notice of an interview, you must advise that the interrogation is subject to Government Code Section 3303(i). Do not expect the department to agree with you, and don’t be rattled. You must raise the issue to preserve your rights to be able to later challenge the interview and any statements you made.
• Request a representative.You must inform the department that you need to arrange to have a representative present for your interview. If you fail to raise the issue of having a representative or choose not to have a representative, then the department is not required to give you additional time.
• Immediately contact your association and/or the PORAC Legal Defense Fund to secure a representative. Immediately contact your association and request your representative, who will then handle scheduling directly with the investigator.
• Until the representative takes over, you must advise the department that you have not been given sufficient notice to allow you to secure the representative of choice to be present. You must raise the issue that you were denied adequate notice that would allow your representative to be present. Due to your request for a representative, and that representative’s unavailability, additional time must be given and the interview rescheduled.
• If the department refuses to provide additional time, you must attend the scheduled interview.During the interview, reassert your right to secure a representative and that any statement that you give is in violation of POBR and is being given under threat of discipline and fear of being declared insubordinate. Even if the department does not follow the requirements, you do not want to be insubordinate or subject yourself to further discipline. Make a record that you are providing the statement in order to prevent further discipline, but have been denied your right to a representative and opportunity to secure your representative of choice. By making a record, then you will have preserved the right to challenge the violation of your rights down the road.

It is my hope that by arming you with knowledge of what you need to say to ensure your rights are protected, you will feel confident in exercising your rights.