Principles for Public Safety Employment

But, for officers subject to the POBR, the officer can specifically be advised that his/her refusal to respond to questions or submit to the interrogation may result in punitive action up to and including dismissal for insubordination in refusing a direct order to participate in the interrogation. In a departure from the POBR, the FBOR requires the employer give the employee a formal grant of immunity from criminal prosecution before the employee may be compelled to respond to incriminating questions in an interrogation. 153 This issue will be discussed below in further detail in Section 3, F, 3 below. 9. R ESTRICTIONS ON E MPLOYEES ’ D ISCUSSION /D ISCLOSURE C ONCERNING THE I NVESTIGATION Ideally, investigations should be processed as confidentially as possible. While the subject employee and witnesses may be ordered not to discuss the subject matter of the investigation with anyone other than their legal representatives, 154 it is important to articulate the justification for this prohibition during the ongoing investigation. Specifically, the agency must have legitimate business justification that outweighs employees’ right to discuss working conditions with each other. Such justifications in a particular case could include a need to protect witnesses, danger that evidence was in danger of being destroyed, testimony was in danger of being fabricated, or a need to prevent a cover-up. If an employer chooses to impose a restriction on discussing the investigation, it is essential to lift the restriction when confidentiality is no longer required. 155 In conducting interviews, identities should not be disclosed, except to the extent necessary to continue the investigation. Statements made by witnesses should not be disclosed to other employees, unless it is necessary to elicit specific, relevant, and necessary information from the employee. Public safety employees generally do not have pre-interrogation discovery rights when subject to an administrative investigation. Interpreting identical provisions in the POBR, the California Supreme Court held in Pasadena Police Officers Association v. City of Pasadena 156 that the POBR does not compel an employing public safety department to provide pre-interrogation discovery rights to a peace officer who is the subject of an internal affairs investigation. Similarly, a firefighter likely does not have the right to receive copies of recordings of the interviews of other witnesses until after the investigation has been concluded and the agency decides to impose discipline based on the investigation. b. Post-Interrogation Right to Materials Government Code sections 3303(g) and 3253(g) state, in part, “If a recording is made of the interrogation, the [employee] shall have access to the recording if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The [employee] shall be 10. D ISCLOSURE OF I NFORMATION /M ATERIALS a. Pre-Interrogation Right to Materials

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