Principles for Public Safety Employment

2. W HEN S HOULD A P UBLIC S AFETY E MPLOYEE B E A DVISED THAT H E /S HE IS THE S UBJECT OF AN A DMINISTRATIVE I NVESTIGATION ? There is no statutory or case law requirement that an employee be advised pre-interrogation that he/she is the subject of an administrative investigation. It is not unusual for several days or even weeks to pass between the commencement of an investigation and the actual interrogation of the subject employee. Pre-interrogation notification to the subject employee of the pendency of the investigation may cause fellow employees to be more reluctant to come forward or to be open during the interviews (the subject employee may pressure potential witnesses) and the subject employee’s morale and job performance may be unnecessarily impacted in a negative way where the subject is preoccupied with the investigation. In summary, public safety employees have the right to be informed of the “nature of the investigation” prior to being “interrogated.” 128 However, it is important to remember that this right only attaches at the point of “interrogation,” not “investigation.” 3. S UBJECT E MPLOYEE ’ S S TATUS W HILE U NDER I NVESTIGATION If the alleged misconduct is severe enough, e.g. would likely result in the public safety employee’s dismissal if charges are sustained, then an agency may not want the employee working during the course of the investigation. In such circumstances, an agency may place the subject employee on paid administrative leave. In rare circumstances, when an employee has been indicted or is otherwise charged by prosecutors with a serious criminal offense, an agency may consider placing the employee on unpaid leave while the investigation is pending. 129 An agency should consult with legal counsel prior to doing so, and should be careful to avoid violating Labor Code section 432.7, discussed below, which generally prohibits an employer from taking an adverse action against an employee simply because the employee has been arrested. In addition, the Acts prohibit an agency from loaning or temporarily reassigning a public safety officer or a firefighter to a location or duty assignment if a sworn officer or firefighter in the department would not normally be sent to that location or would not normally be given that duty assignment under similar circumstances. 130 4. S ELECTING AN I NVESTIGATOR Before an investigation can begin, an investigator must be selected. At a minimum, the investigator is responsible for:

 Conducting the investigation  Rendering factual findings  Writing a report

Conducting an investigation is a significant responsibility. In discipline cases, employees may challenge the fairness or accuracy of the investigation, making the investigation itself subject to

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 43