Principles for Public Safety Employment

attorney and that attorney was contacted; however, it was reported at 8:00 a.m. that the attorney would not be available until late that evening. To provide the officers an opportunity to find another attorney, the Department waited until approximately 2:30 p.m. before interrogating the officers. The Court held that the deputies were not entitled to wait until the particular attorney was available, and that the seriousness of the circumstances prompting the investigation be conducted at the earliest opportunity. In addition, the officers made little to no effort to obtain alternative counsel. 5. W HO M AY B E P RESENT D URING THE I NTERROGATION ON B EHALF OF THE D EPARTMENT ? Government Code section 3303(b) provides for no more than two interrogators asking questions and provision of notice prior to the interrogation of the rank, name, and command of the officer in charge of the interrogation and identity of all others to be present during the interrogation. The POBR does not clearly delineate whether or not non-peace officers can act as interrogators. Based on our experience, non-sworn personnel, particularly attorneys, do frequently become involved acting as interrogators. In highly sensitive proceedings, such practice may be the most productive manner in which to proceed. At a minimum, legal counsel could be present and provide a sworn interrogator with advice during the proceedings. For firefighters, Government Code section 3253(b) provides for no more than two interrogators asking questions and provision of notice prior to the interrogation of the rank, name, and command of the officer “or other person” in charge of the interrogation and identity of all others to be present during the interrogation. Thus, the FBOR explicitly allows for non-firefighters to act as interrogators. As noted above, Government Code sections 3303(c) and 3253(c) provide that the public safety employee under investigation shall be informed of the nature of the investigation prior to any interrogation . To the extent known, we recommend the employee who is the subject of an investigation be advised of the following prior to any interrogation: (1) the dates(s) of action(s) under investigation; (2) a brief description of allegation of misconduct; and (3) statute(s) and/or administrative rules or orders that may have been violated. But do not compromise the investigation by providing so much detail that pre-interrogation discovery (see above) is inadvertently provided. For example, in the above case of workers’ compensation insurance fraud, the subject employee would be advised that, “The nature of this investigation regards your alleged commission of insurance fraud in connection with your pending workers’ compensation claim alleging a back injury having occurred in the course and scope of your employment. At issue are possible violations of Insurance Code section 1871.1 and General Orders…” Hinrichs v. County of Orange 150 In Hinrichs v. County of Orange , a deputy claimed that the Department violated her rights under section 3303 because it failed to inform her of the nature of its 6. W HAT M UST AN E MPLOYEE B E T OLD A BOUT THE N ATURE OF THE I NVESTIGATION P RIOR TO I NTERROGATION ?

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