Disciplinary and Harassment Investigations

The investigator should also ask the alleged harasser to identify people who should be interviewed, and the information he/she thinks those persons will contribute to the investigation. The investigator should ask the alleged harasser for relevant documents and evidence as well. Finally, the investigator should ask the alleged harasser what steps he/she believes would be appropriate for the investigator to take to ensure a fair investigation. iii. Right of Representation Employees participating in investigatory interviews, who have a reasonable belief that discipline may result from the interview, have a right to be represented by their union representative or legal counsel in such an interview upon request. 63 Prior to the alleged harasser’s interview, he/she must be advised of his/her right to representation. While the employee has the right to have a union representative present during an interview that might lead to discipline, the employer may set reasonable “ground rules” including:

 Cannot object to questions or argue about the relevance of questions;



Cannot obstruct the investigation;

 Cannot conduct discovery/ask fact-finding questions;

 May ask clarifying questions if a question is not clear.

In Upland Police Officers Association v. City of Upland , 64 the Court of Appeal held that the right to choice of representation in internal affairs investigations is limited. This right, which is supplied by Government Code section 3303(i) of the Public Safety Officers Procedural Bill of Rights Act, permits an officer to choose a representative. While the employee has the right to have a union representative present during an interview that might lead to discipline, the employer may set reasonable “ground rules” including:  Same union representative cannot be present/support the complainant and represent the accused;

 Cannot instruct a witness not to answer;

 Cannot object to questions or argue about the relevance of questions;



Cannot obstruct the investigation;

 Cannot conduct discovery/ask fact-finding questions;

 May ask clarifying questions if a question is not clear.

A representative is one “who is reasonably available to represent the officer, and who is physically able to represent the officer at the reasonably scheduled interrogation.” 65 This rule is also likely applicable to firefighters covered under the Firefighters Procedural Bill of Rights Act. 66

Note that private discussions that take place in the course of an investigation between the employee and his/her union representative, in contrast with a lawyer, are not privileged. 67

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 40