Information Obtained During a “Compelled” Internal Affairs Interview Cannot be Used Against That Person in a Later Criminal Prosecution

In the case, State v. Ward, 361 Ga.App. 684 (2021), the defendant was a former police officer in Georgia who was convicted of child molestation. Prior to being prosecuted for the offense his police employer conducted an internal affairs investigation into the child molestation allegations. As part of the internal affairs investigation the defendant was subjected to an administrative interview about the allegations and the interview was later shared with the prosecution team. Prosecutors were unaware of their burden not to use information, learned either directly or in-directly, from a “compelled” administrative interview in the criminal investigation or trial preparation. (Garrity v. State of N.J., 385 U.S. 493 (1967) and Kastigar v. United States, 406 U.S. 441 (1972). Although the internal affairs interview was not admitted at trial, the prosecution team obtained the administrative investigative file and reviewed it ahead of time while preparing for trial. The defendant testified in his own defense at trial and the prosecution rebutted his testimony (in-directly), by calling an investigator who had listened to his administrative interview and testified the defendant was not truthful.   

The defendant was found guilty at trial but on appeal his conviction was overturned. The Court of Appeals for the State of Georgia held that the prosecution was unable to meet their Kastigar burden of proving there was no derivative use of the compelled statements from the administrative interview, and that derivative use of the prior statement had effect on the verdict. The decision also found it was ineffective assistance of counsel for failing to raise this issue and object at trial.

This case is significant in that it demonstrates there is real protection given to public sector employees when they are compelled to make statements during an administrative interview and are essentially forced to choose between incriminating themselves or losing their job. (Lybarger v. City of Los Angles, 40 Cal.3d 822 (1985). The fact that a conviction for a serious felony was overturned because of the derivative use of information from the administrative interview makes it likely that prosecutors will steer clear from knowing or being in possession of information from administrative cases in the future. Defense attorneys who represent public sector employees should carefully be on the lookout for this issue in cases where there is an administrative investigation followed by a criminal prosecution. If the prosecutor is apprised of the contents of an administrative case file during a criminal investigation, it may be very difficult, or impossible, for the government to later prove that the criminal prosecution did not derivatively use information learned during the administrative investigation.        

Ninth Circuit Grants Summary Judgement Against San Jose Fire Fighters in FLSA Regular Rate Lawsuit

In Wallace v. City of San Jose (9th Cir. 2020) 799 Fed.Appx. 477, the Ninth Circuit Court of Appeals granted the City of San Jose summary judgement in an FLSA lawsuit over alleging the city under calculated the Regular Rate of Pay used to calculate firefighters’ overtime and claimed unauthorized credits based on contractual overtime that exceeded the FLSA minimum requirements.  Here, the appellate court ruled the firefighters failed to present evidence that they were underpaid FLSA overtime.

The City had adopted a 28-day pay period for its firefighters and a base hourly rate for 224 hours per work period, regardless of whether they actually work a full 224 hours. Anytime a firefighter works hours outside of his or her regularly scheduled shifts, the City pays “contractual overtime” of 1.5 times his or her base hourly rate for each additional hour worked. Such “contractual overtime” payments are distinct from FLSA overtime requirements.  The firefighters are entitled to FLSA overtime pay for each hour worked over the 212-hour threshold.  Each work period, the City calculates what is owed to its firefighters under FLSA. If the amount the City paid a firefighter is less than required under FLSA, it adds a FLSA overtime adjustment to the firefighter's paycheck at the end of the work period.

The appellate court held that the city conclusively demonstrated that it paid firefighters more than was required under FLSA, regardless of the method applied for calculating the Regular Rate of Pay.  The DOL Regulations provide different calculation formulas depending on whether employees are paid a base salary or on a purely hourly basis.  Under the salaried method, the divisor used is the regularly scheduled hours rather than all hours worked, and the multiplier is 1.5 as opposed to a .5 multiplier.  

The other dispute centered on whether the City takes an improper “credit” against its FLSA overtime liability.  The Plaintiffs alleged that the City improperly took a 1.5 credit for contractual overtime paid and deducted that credit from its FLSA liability, when they were only entitled to take a half-time credit (0.5) against their FLSA overtime liability.  However, the City taking such a “credit,” and a supervising accountant for the City made a sworn declaration that it does not do so.

The court admonished the firefighters for “fail[ing] to adduce any specific evidence to substantiate their improper credit argument.”  They submitted their own calculations but the court held they offered “no clear explanation for these calculations and cite to no clear authority to support their use.”  The Court noted they failed to refute the City calculations and omitted “broad swaths of the compensation they actually received.”  The court held that their calculations contained multiple mathematical errors further undermining their credibility.  

Ultimately, the court held that the firefighters failed to identify any disputed material fact with regard to their claim that the City took an improper FLSA credit or under payment of FLSA overtime.  Often FLSA ligation focuses on damages and contractual overtime credit calculations, rather than whether a particular item of compensation must be included in the Regular Rate of Pay. This case demonstrates the importance of marshaling reliable evidence of FLSA under payments and the proper calculation of credits claimed by the employing agency.  

POBR Did Not Apply to Questioning of Officers Terminated for Playing Pokemon On Duty

In Lozano v. City of Los Angeles, also known as the Pokemon case, the California Second District Appellate Court ruled that the questioning of two officers who failed to respond to a call for service and subsequent review of their accidentally recorded conversations did not violate the POBR or Penal Code Section 632.  Two officers were terminated based in part on in car recordings evidencing willful abdication of their duty to assist a commanding officer with a robbery in progress while instead playing Pokemon Go on their phone app.  The appellate court rejected their claims that their supervisor's questioning violated the POBR and that the review of the recording was unlawful. 

Background

A captain heard a radio call for a robbery in progress with multiple suspects. When the call came in, the captain could see the robbery location from where he was stopped, and noticed a police car in an alley just a few feet away. The captain was not able to identify the unit, and when the unit did not respond to the radio call, the captain assumed it was a traffic unit or a unit from a different division. The captain decided he would respond to the call. While responding to the call, he saw the police car start to back up down the alley to leave the area. A sergeant at the station looked at the watch commander’s board and saw a unit was in the Crenshaw Corridor. The sergeant attempted to radio the unit and requested they respond to the robbery to assist the captain, but the sergeant received no response. The sergeant asked dispatchers again for the unit’s response. They replied "no" and that was it.

Later the sergeant asked the officers to clarify their duties, because there could be any number of reasons the officers would be located in the area they placed themselves during the time of the robbery. Officer Lozano explained they were charged with making community contacts with citizens and business people in the area. The sergeant then asked the officers if their radios were working and if they had heard what he believed was a call for “backup” for a robbery in progress. The officers explained the area around the park was often very loud. The sergeant acknowledged this was a credible explanation for why they had not heard the radio, and instructed that they should have moved to a location where they could hear the radio.  The sergeant counseled them for not listening to the radio and "left it at that."

The next morning the sergeant  reviewed the officers’ vehicle's recording to “find out what [the officers] do on their average day.” At the time of review, he had no reason to know the vehicle had recorded the officers’ conversation regarding the captain or the robbery. By happenstance the vehicle did capture the officers’ conversations.  The recording suggested that the officers were playing Pokemon Go while on duty that day.  The recording showed that five minutes after saying "screw it" to checking in about the robbery call, the officers discussed chasing a "Snorlax" and "Togetic" for the next 20 minutes.  After capturing the electronic creatures, the officer commented about getting a new Pokemon today and how the guys are going to be jealous. 

After uncovering this evidence of egregious misconduct, the sergeant initiated a formal disciplinary action against them.

POBR Does Not Apply to Counseling Sessions

The court noted that in contrast to the Labio case, the sergeant did not have evidence that the officers had committed a crime or egregious misconduct when he met with them to discuss the radio calls earlier that evening.  As such, the POBR interrogation procedures did not apply.  Consistent with the sergeant’s description of the meeting, one of the officers acknowledged it was “a normal exchange between supervisor and subordinate” and it was “the same type of discussion or ... supervisory oversight that's provided daily to the patrol units.” While acknowledging that some of the sergeant's “questions and remarks beg[an] to shade into an investigation” during the meeting, the trial court found that this was, as an officer acknowledged, a routine exchange between supervisor and subordinate within the normal course of administering the department and therefore, POBRA did not apply.

The officers' admission, coupled with the sergeant’s testimony, supported the court's finding that the sergeant met with the officers as part of his normal duty to provide “counseling, instruction, or informal verbal admonishment” to subordinate public safety officers. Since the sergeant’s comments were “counseling, instruction, or informal verbal admonishment” POBRA did not apply. The court noted that where no facts caused the superior officer to believe serious misconduct had been committed, but rather a minor infraction that could properly be addressed by counseling, Government Code Section 3303 did not apply.

The Recording Was Not Inadmissible under Penal Code Section 632(d)

The Court also made important rulings about the use of Body Warn Camera/In Car Camera recordings in disciplinary proceedings.  California Penal Code § 632 “prohibits the intentional eavesdropping to a confidential communication by means of any electronic amplifying or recording device, without the consent of all parties.” The Court found that California Penal Code § 632 is not a valid basis to exclude the use of the recordings in the discipline hearing because it requires specific intent to record confidential communications.  Although the department knew that by installing recording equipment, the devices could could record sensitive personal communications, Section 632 did not apply because the department did not have the specific intent to to record a confidential communication, rather than simply an intent to turn on a recording apparatus which happened to record a confidential communication.”

Takeaways 

As the saying goes, "bad facts make bad law."  The court could have determined the sergeant suspected serious misconduct (i.e. that the officers intentional blew off a call involving an in progress crime and call for assistance) based on the sergeant's suspicions in questioning the officers regarding their failure to respond and the subsequent review of the officers' recordings even after receiving a plausible explanation.  Section 3303 applies whenever the superior officer believes the questioning could lead to punitive action.  The line between a counseling and questioning that could lead to punitive action is often unclear.  Officers should always ask for a representative anytime the officer believes a questioning could lead to discipline, because the Weingarten right to representation is triggered by the officer's belief.