Disciplinary and Harassment Investigations

Do you understand these rights?

In light of your understanding of your rights will you cooperate with this investigation and respond to the questions put to you?

(c) Immunity for Firefighters Effective January 1, 2008, the Firefighters Procedural Bill of Rights Act (FBOR) (Government Code, § 3250 et seq.) provides that an employer “shall provide to, and obtain from, an employee a formal grant of immunity from criminal prosecution, in writing, before the employee may be compelled to respond to incriminating questions in an interrogation.” 83 Once the grant of immunity is provided, the employing fire department shall inform a firefighter that the failure to answer questions directly related to the investigation or interrogation may result in punitive action. 84 The FBOR’s language requiring the grant of immunity is ambiguous, and an agency should consult with legal counsel in each case, but the following advisement will be appropriate in most circumstances:

This [agency] is providing you with a formal grant of use immunity in accordance with California Government Code section 3253(e)(1). Use immunity bars a prosecutor from making direct use of your statements in a subsequent criminal proceeding or from using information or any other evidence that was obtained indirectly or derived from your statements against you. Use immunity is not the same as transactional immunity, which would bar a prosecutor from charging you with the crime that is the subject of your statements. Consequently, a criminal prosecutor could still bring charges against you based on other evidence. In light of the [agency]’s grant of use immunity, you are now ordered to fully and truthfully answer all questions asked of you during this interrogation. Your failure to do so will, in and of itself, constitute a disciplinable act of insubordination and will result in a recommendation of disciplinary action against you, up to and including dismissal. Department General Order No.____ provides that: (include general order providing that insubordination is grounds for discipline).

While this statutory directive applies only to firefighters, the principle is applicable to all public employees facing administrative interrogation for conduct that could possibly implicate criminal law. Public agencies should consult with legal counsel whenever immunity issues are presented by the conduct under investigation. vi. Ensure No Retaliation Taking an adverse employment action against an employee for assisting in a harassment investigation is unlawful. Therefore, interviewees should be advised that they will not be retaliated against for assisting in the investigation. This will also encourage cooperation if the person to be interviewed is reluctant to provide information.

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 46