The Police Officer’s Bill of Rights (POBRA) sets forth a variety of rules that a public entity must follow before taking certain actions against peace officers. One such rule is set forth at California Government Code Section 3303, subd. (c). This section provides that when an investigation could lead to punitive action, a public safety officer who is under investigation by his or her employing safety officer department, “shall be informed of the nature of the investigation prior to any interrogation.” In the recent case Ellins v. City of Sierra Madre (2nd. App. Dist. Jan. 28, 2016) Case No. B261968, the Court determined how much notice regarding the nature of the allegations needs to be given to an officer before the officer must answer questions about the allegations.
In Ellins, a City of Sierra Madre police officer, John Ellins, was accused of inappropriately using the California Law Enforcement Telecommunications System (CLETS) to run inquiries regarding his ex-girlfriend and members of her family. Ellins was informed that he was the subject of an investigation in September 2010, but was not told the nature of the allegations. The police department hired a consultant to conduct an investigation and minutes before Ellins was scheduled to be interviewed in October 2010, he and his attorney were informed about the nature of the allegations. The consultant then gave Ellins and his attorney an hour to discuss the charges in private before commencing the interview. Approximately half way through the hour, Ellins informed the consultant that he refused to participate in the interview. Ellins’ commanding officer then ordered him to sit for the interview and he refused to do so. He was thereafter terminated for using the CLETS database to make unauthorized searches and for disobeying an order to sit for the interview. Ellins challenged the termination, but lost at the hearing officer level and lost his appeal of that decision in the Superior Court.
On appeal, the Second Appellate District held that a safety officer must be informed of the nature of the investigation reasonably prior to any interrogation if the interrogation could lead to punitive action being taken against the officer. The Court found that reasonably prior notice is considered to have occurred when an officer is granted meaningfully sufficient time to consult with any representative that he or she elects to have present during the interview. The factors to be considered in making this assessment include: whether the officer has already retained a representative; the nature of the allegations and their complexity; and the number of allegations and whether they are interrelated.
The Court also found that the employing department may postpone disclosure until the scheduled time of the interview - and briefly postpone the commencement of the interview to allow time for consultation - if the entity has reason to believe that earlier disclosure would jeopardize the safety of any interested parties or the integrity of evidence under the officer’s control. Applying this standard to the Ellins termination, the Court found that Ellins was provided with sufficient notice and upheld his termination.
As a result of the Ellins case, EIA members with public safety officer departments should make sure that reasonable advance notice regarding the nature of allegations against an officer is being provided to the officer before the officer is required to answer questions during an investigation that is being conducted by the employer when the investigation could lead to punitive action being taken. Complying with this requirement will help ensure that disciplinary action against an officer does not get overturned because the entity has violated the procedural requirements of the POBRA.