Disciplinary and Harassment Investigations

In Ellins v. City of Sierra Madre , 68 the Court of Appeal held that the City gave sufficient notice of the nature of the investigation prior to an officer’s interrogation pursuant to the Public Safety Officers Procedural Bill of Rights Act, and clarified that "reasonable" notice is required in order to allow an employee the opportunity to "meaningfully consult" with his/her representative. Under Government Code section 3303, subdivision (c), an officer under investigation shall be informed of the nature of the investigation prior to any interrogation. In Ellins , the officer and his attorney were informed on the morning of his scheduled interrogation about the nature of the investigation. After providing written and verbal admonitions for the interview, Ellins and his attorney were permitted to meet in private to discuss the specific charges. Ellins argued that he did not have a meaningful opportunity to consult with his attorney about the specific nature of the investigation. The Court of Appeal disagreed and held that while an officer should be notified of the nature of the investigation "reasonably prior to" the interrogation, the agency can delay disclosure "if it 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." 69 In a 2012 Court of Appeals decision, the court held that an employee who retained an attorney to defend against a law enforcement investigation was not entitled to a defense or indemnification. 70 The Government Claims Act requires a public entity to pay for the defense of any civil action or proceeding brought against an employee for acts in the scope of his or her employment. The employer was not required to do so here because there was no civil action or proceeding brought against the employee. The terms "action" and "proceeding" do not include an investigation. iv. Admonition Not to Discuss Investigation with Co-Workers To safeguard the integrity of the investigatory process, it was common to direct employees who are interviewed not to discuss with others, including with any other employees: :

 The fact that they are being interviewed,



The existence of an investigation, or

 The questions asked or answers provided during the interview process.

This type of blanket directive is problematic when issued to employees and is unlawful.. As discussed below, there are specific circumstances that must be determined on a case-by-case basis where employers may use a confidentiality directive to employees. An agency may require employees to maintain confidentiality during an investigation of either employee or student misconduct if the agency can establish in an individual investigation that confidentiality is necessary to protect a witness, prevent the destruction of evidence, preserve testimony, prevent a cover-up, or further another legitimate business interest. Also when giving the directive, the agency should articulate to the employee the general reason for the confidentiality directives, which should be tailored to the applicable reasons in each individual investigation.

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 41