Officers Are Entitled To Reasonable Prior Notice Of The Subject Matter Of An Interrogation

The Second District Court of Appeal recently ruled in Ellins v. City of Sierra Madre (Jan. 28, 2016) that public safety officers must be given notice of the specific subject matter of an investigation "reasonably prior to" an interrogation so that they have sufficient time to consult with a representative.

Officer John Ellins allegedly used the CLETS database to do unofficial searches of his ex-girlfriend. The Sierra Madre Police Department opened an investigation into Ellins' conduct after receiving a tip from the ex-girlfriend. The Department gave a vague notice to Ellins that it was investigating "an alleged abuse of your peace officer powers and duties." Minutes before the interrogation was to begin, the Department told Ellins the specific allegations. The Department then gave Ellins an hour to consult with his attorney representative.

POBR provides that an officer under investigation "shall be informed of the nature of the investigation prior to any interrogation." (Gov. Code, sec. 3303(c).) The Court of Appeal held this means “'reasonably prior to' the interrogation—that is, with enough time for the officer to meaningfully consult with any representative he elects to have present."

The Court rejected the Department's argument that notice can be given only minutes before an interrogation.  But the Court declined to set a hard rule about how far in advance notice must be given.  it stated the amount of time will depend on the circumstances, including whether the officer needs time to obtain a representative, the complexity of the allegations, the number of unrelated allegations, and any risk the officer will retaliate against persons involved in the investigation or will destroy evidence.

The Court explained notice allows officers to prepare for the interrogation and identify justifications, explanations, extenuating circumstances, and other mitigating factors. If an officer is not given adequate prior notice of the subject matter of the interview and time to consult with his representative, he cannot get effective help and protection from his representative.

PERB Greatly Expands Representation Rights to Include Interactive Process Meetings

The Americans with Disabilities Act requires an employer to accommodate an employee’s disability. The employer must meet with an employee and discuss reasonable accommodations. Does an employee get a representative at these meetings? The Public Employment Relations Board answered this question with a resounding “yes” in Sonoma County Superior Court (2015) PERB Decision No. 2409-C.

In the case, a trial court employee was diagnosed with a serious illness. She requested a meeting with her employer to discuss reasonable accommodations. She wanted a union representative during the meetings. The employer said no. The union filed an unfair practice charge.

PERB held an employee has a right to representation during an interactive process meeting. An employee may have a representative present in two contexts. First, an employee has a right to a representative during a discipline proceeding. Second, the employee has a right to a representative when engaging in labor activities. This includes activities like filing a grievance or bargaining.

PERB decided an ADA meeting is like a grievance. The meeting is a negotiation on the appropriate accommodation. This directly concerns working conditions. This is the perfect scenario for a labor representative. The representative has unique knowledge of the labor relationship. The representative can use this knowledge to negotiate with the employer. Thus, the employee must be allowed a representative during an interactive meeting.

Employees are often stressed and concerned when engaging in the interactive process. Employers can take advantage of this stress and exploit the employee. A representative can protect the employee and level the playing field during these negotiations.