Finding the Facts - Disciplinary and Harassment Investigation

(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.” 110 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. 111 The FBOR’s language requiring the grant of immunity is ambiguous, and an district should consult with legal counsel in each case, but the following advisement will be appropriate in most circumstances:

This [district] 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 [district]’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. Districts 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. The alleged harasser should be admonished that he/she shall not retaliate against the complainant or anyone else associated with the investigation for having complained about harassment or being involved in the investigation. This admonition should also be given to anyone else who has the authority to take adverse employment actions against persons involved in the investigation.

Disciplinary and Harassment Investigations ©2020 (e) Liebert Cassidy Whitmore 50