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Public Safety Officers Procedural Bill of
Rights Act
History:
California was the first state to enact a
peace officers bill of rights act: California’s Act is often referred to
as “POBR,” “AB301,” “Officers Bill of Rights” and similar names. The
Public Safety Officers Procedural Bill of Right Act will be referred
to as either “POBR” or “the Act.” It was effective January 1, 1977.
The concept originated around 1974 and involved the LAPD Police
Protective League and PORAC. The largest supporter of POBR was the
ACLU. The bill was signed into law by Governor Jerry Brown.
Opponents to POBR were CPOA, cities and
counties, Cal Chiefs, the State Sheriff’s Association and the California
League of Cities. Opposition to POBR continues even today; the Act is
constantly under attack.
Changes to the Act occurred over the years
which have affected its interpretation. Many people know it exists but
do not know how important it is. How the Act is applied depends on
agency structure and the I.A. process it follows.
The California Supreme Court decided that
POBR applies to all employing entities, regardless whether they
are charter law or general law cities or counties.
POBR consists of Sections 3300-3311, Chapter
9.7, Division 4, Title 1, of the Government Code. Added in 1976 and
amended in 1977, 1978, 1979, 1980, 1982, 1983, 1989, 1990, 1994, 1997,
1998, 1999, 2000, 2002, and 2003.
3300. Short title
This chapter is known and may be cited as
the Public Safety Officers Procedural Bill of Rights Act.
3301. Definition; legislative findings and
declaration
For purposes of this chapter, the term
public safety officer means all peace officers specified in Sections
830.1, 830.2, 830.3, 830.31, 830.32, 830.33, except subdivision (e),
830.34, 830.35, except subdivision (c), 830.36, 830.37, 830.38, 830.4
and 830.5 of the Penal Code.
The legislature hereby finds and declares
that the rights and protections provided to peace officers under this
chapter constitute a matter of statewide concern. The legislature
further finds and declares that effective law enforcement depends upon
the maintenance of stable employer-employee relations, between public
safety employees and their employers. In order to assure that stable
relations are continued throughout the state and to further assure that
effective services are provided to all people of the state, it is
necessary that this chapter be applicable to all public safety officers,
as defined in this section, wherever situated within the State of
California.
a) Except as otherwise provided by law, or
whenever on duty or in uniform, no public safety officer shall be,
prohibited from engaging, or be coerced or required to engage, in
political activity.
(b) No public safety officer shall be
prohibited from seeking election to, or serving as a member of, the
governing board of a school district.
3303. Investigations and interrogations;
conduct; conditions; admissibility of statements; representation;
reassignment
When any public safety officer is under
investigation and subjected to interrogation by his or her commanding
officer, or any other member of the employing public safety department,
that could lead to punitive action, the interrogation shall be conducted
under the following conditions. For the purpose of this chapter,
punitive action means any action that may lead to dismissal, demotion,
suspension, reduction in salary, written reprimand, or transfer for
purposes of punishment.
(a) The interrogation shall be conducted at
a reasonable hour, preferably at a time when the public safety officer
is on duty, or during the normal waking hours for the public safety
officer, unless the seriousness of the investigation requires
otherwise. If the interrogation does occur during off-duty time of the
public safety officer being interrogated, the public safety officer
shall be compensated for any off duty time in accordance with regular
department procedures, and the public safety officer shall not be
released from employment for any work missed.
(b) The public safety officer under
investigation shall be informed prior to the interrogation of the rank,
name, and command of the officer in charge of the interrogation, the
interrogating officers, and all other persons to be present during the
interrogation. All questions directed to the public safety officer
under interrogation shall be asked by and through no more than two
interrogators at one time.
(c) The public safety officer under
investigation shall be informed of the nature of the investigation prior
to any interrogation.
(d) The interrogating session shall be for a
reasonable period taking into consideration the gravity and complexity
of the issue being investigated. The person under interrogation shall
be allowed to attend to his or her own personal physical necessities.
(e) The public safety officer under
interrogation shall not be subjected to offensive language or threatened
with punitive action, except that an officer refusing to respond to
questions or submit to interrogations shall be informed that failure to
answer questions directly related to the investigation or interrogation
may result in punitive action. No promise of reward shall be made as an
inducement to answering any question. The employer shall not cause the
public safety officer under interrogation to be subjected to visits by
the press or news media without his or her express consent nor shall his
or her home address or photograph be given to the press or news media
without his or her express consent.
(f) No statement made during interrogation
by a public safety officer under duress, coercion, or threat of punitive
action shall be admissible in any subsequent civil proceeding. This
subdivision is subject to the following qualifications:
(1) This subdivision shall not limit the use
of statements made by a public safety officer when the employing public
safety department is seeking civil sanctions against any public safety
officer, including disciplinary action brought under Section 19572.
(2) This subdivision shall not prevent the
admissibility of statements made by the public safety officer under
interrogation in any civil action, including administrative actions,
brought by that public safety officer, or that officer’s exclusive
representative, arising out of a disciplinary action.
(3) This subdivision shall not prevent
statements made by a public safety officer under interrogation from
being used to impeach the testimony of that officer after an in camera
review to determine whether the statements serve to impeach the
testimony of the officer.
(4) This subdivision shall not otherwise
prevent the admissibility of statements made by a public safety officer
under interrogation if that officer subsequently is deceased.
(g) The complete interrogation of a public
safety officer may be recorded. If a tape recording is made of the
interrogation, the public safety officer shall have access to the tape
if any further proceedings are contemplated or prior to any further
interrogation at a subsequent time. The public safety officer shall be
entitled to a transcribed copy of any notes made by a stenographer or to
any reports or complaints made by investigators or other persons, except
those which are deemed by the investigating agency to be confidential.
No notes or reports that are deemed to be confidential may be entered in
the officer’s personnel file. The public safety officer being
interrogated shall have the right to bring his or her own recording
device and record any and all aspects of the interrogation.
(h) If prior to or during the interrogation
of a public safety officer it is deemed that he or she may be charged
with a criminal offense, he or she shall be immediately informed of his
or her constitutional rights.
(i) Upon the filing of a formal written
statement of charges, or whenever an interrogation focuses on matters
that are likely to result in punitive action against any public safety
officer, that officer, at his or her request, shall have the right to be
represented by a representative of his or her choice who may be present
at all times during the interrogation. The representative shall not be
a person subject to the same investigation. The representative shall
not be required to disclose, nor be subject to any punitive action for
refusing to disclose, any information received from the officer under
investigation for non-criminal matters.
This section shall not apply to any
interrogation of a public safety officer in the normal course of duty,
counseling, instruction, or informal verbal admonishment by, or other
routine or unplanned contact with, a supervisor or any other public
safety officer, nor shall this section apply to an investigation
concerned solely and directly with alleged criminal activities.
(j) No public safety officer shall be loaned
or temporarily reassigned to a location or duty assignment if a sworn
member of his her department would not normally be sent to that location
or would not normally be given that duty assignment under similar
circumstances.
3304. Lawful exercise of rights;
insubordination; administrative appeal; limitation period for
investigations; exceptions; effect of pre-disciplinary response or
grievance procedures; reopening investigations
(a) No public safety officer shall be
subjected to punitive action, or denied promotion, or be threatened with
any such treatment, because of the lawful exercise of the rights granted
under this chapter, or the exercise of any rights under any existing
administrative grievance procedure.
Nothing in this section shall preclude a
head of an agency from ordering a public safety officer to cooperate
with other agencies involved in criminal investigations. If an officer
fails to comply with such an order, the agency may officially charge him
or her with insubordination.
(b) No punitive action, nor denial of
promotion on grounds other than merit, shall be undertaken by any public
agency against any public safety officer who has successfully completed
the probationary period that may be required by his or her employing
agency without providing the public safety officer with an opportunity
for administrative appeal
(c) No chief of police may be removed by a
public agency, or appointing authority, without providing the chief of
police with written notice and the reason or reasons therefore and an
opportunity for administrative appeal.
For purposes of this subdivision, the
removal of a chief of police by a public agency or appointing authority,
for the purpose of implementing the goals or policies, or both, of the
public agency or appointing authority, for reasons including, but not
limited to, incompatibility of management styles or as a result of a
change in administration, shall be sufficient to constitute “reason or
reasons.”
Nothing in this subdivision shall be
construed to create a property interest, where one does not exist by
rule or law, in the job of Chief of Police.
(d) Except as provided in this subdivision
and subdivision (g), no punitive action, nor denial of promotion on
grounds other than merit, shall be undertaken for any act, omission, or
other allegation of misconduct if the investigation of the allegation is
not completed within one year of the public agency’s discovery by a
person authorized to initiate an investigation of the allegation of an
act, omission, or other misconduct. This one year limitation period
shall apply only if the act, omission, or other misconduct occurred on
or after January 1, 1998. In the event that the public agency
determines that discipline may be taken, it shall complete its
investigation and notify the public safety officer of its proposed
disciplinary action within that year, except in any of the following
circumstances:
(1) If the act, omission, or other
allegation of misconduct is also the subject of a criminal investigation
or criminal prosecution, the time during which the criminal
investigation or criminal prosecution is pending shall toll the one year
time period.
(2) If the public safety officer waives the
one year time period in writing, the time period shall be tolled for the
period of time specified in the written waiver.
(3) If the investigation is a
multi-jurisdictional investigation that requires a reasonable extension
for coordination of the involved agencies.
(4) If the investigation involves more than
one employee and requires a reasonable extension.
(5) If the investigation involves an
employee who is incapacitated or otherwise unavailable.
(6) If the investigation involves a matter
in civil litigation where the public safety officer is named as a party
defendant, the one-year time period shall be tolled while that civil
action is pending.
(7) If the investigation involves a matter
in criminal litigation where the complainant is a criminal defendant,
the one year time period shall be tolled during the period of that
defendant’s criminal investigation and prosecution.
(8) If the investigation involves an
allegation of workers’ compensation fraud on the part of the public
safety officer.
(e) Where a pre-disciplinary response or
grievance procedure is required or utilized, the time for this response
or procedure shall not be governed or limited by this chapter.
(f) If, after investigation and any
pre-disciplinary response or procedure, the public agency decides to
impose discipline, the public agency shall notify the public safety
officer in writing of its decision to impose discipline, including the
date that the discipline will be imposed, within 30 days of its
decision, except if the public safety officer is unavailable for
discipline.
(g) Notwithstanding the one year time period
specified in subdivision (c), an investigation may be reopened against a
public safety officer if both of the following circumstances exist:
(1) Significant new evidence has been
discovered that is likely to affect the outcome of the investigation.
(2) One of the following conditions exist:
(A) The evidence could not reasonably have
been discovered in the normal course of investigation without resorting
to extraordinary measures by the agency.
(B) The evidence resulted from the public
safety officer’s pre-disciplinary response or procedure.
(h) For those members listed in subdivision
(a) of Section 830.2 of the Penal Code, the 30-day time period provided
for in subdivision (e) shall not commence with the service of a
preliminary notice of adverse action, should the public agency elect to
provide the public safety officer with such a notice.
3304.5. Public safety officers;
administrative appeals; procedures
An administrative appeal instituted by a
public safety officer under this chapter shall be conducted in
conformance with rules and procedures adopted by the local public
agency.
3305. Comments adverse to interest; entry in
personnel file or in other record; opportunity to read and sign
instrument; refusal to sign
No public safety officer shall have any
comment adverse to his interest entered in his personnel file, or any
other file used for any personnel purposes by his employer, without the
public safety officer having first read and signed the instrument
containing the adverse comment indicating he is aware of such comment,
except that such entry may be made if after reading such instrument the
public safety officer refuses to sign it. Should a public safety
officer refuse to sign, that fact shall be noted on that document, and
signed or initialed by such officer.
3306. Response to adverse comment entered in
personnel file; time
A public safety officer shall have 30 days
within which to file a written response to any adverse comment entered
in his personnel file. Such written response shall be attached to, and
shall accompany, the adverse comment.
3306.5. Public safety officers: personnel
records
(a) Every employer shall, at reasonable
times and at reasonable intervals, upon the request of a public safety
officer, during usual business hours, with no loss of compensation to
the officer, permit that officer to inspect personnel files that are
used or have been used to determine that officer’s qualifications for
employment, promotion, additional compensation, or termination or other
disciplinary action.
(b) Each employer shall keep each public
safety officer’s personnel file or a true and correct copy thereof, and
shall make the file or copy thereof available within a reasonable period
of time after a request therefore by the officer.
(c) If, after examination of the officer’s
personnel file, the officer believes that any portion of the material is
mistakenly or unlawfully placed in the file, the officer may request, in
writing, that the mistaken or unlawful portion be corrected or deleted.
Any request made pursuant to this subdivision shall include a statement
by the officer describing the corrections or deletions from the
personnel file requested and the reasons supporting those corrections or
deletions. A statement submitted pursuant to this subdivision shall
become part of the personnel file of the officer.
(d) Within 30 calendar days of receipt of a
request made pursuant to subdivision (c), the employer shall either
grant the officer’s request or notify the officer of the decision to
refuse to grant the request. If the employer refuses to grant the
request, in whole or in part, the employer shall state in writing the
reasons for refusing the request, and that written statement shall
become part of the personnel file of the officer.
3307. Lie detector test; right to refuse;
effect
(a) No public safety officer shall be
compelled to submit to a lie detector test against his will. No
disciplinary action or other recrimination shall be taken against a
public safety officer refusing to submit to a lie detector test, nor
shall any comment be entered anywhere in the investigator’s notes or
anywhere else that the public safety officer refused to take a lie
detector test, nor shall any testimony or evidence be admissible at a
subsequent hearing, trial, or proceeding, judicial or administrative, to
the effect that the public safety officer refused to take or was
subjected to a lie detector test.
(b) For the purpose of this section, “lie
detector” means a polygraph, deceptograph, voice stress analyzer,
psychological stress evaluator, or any other similar device, whether
mechanical or electrical, that is used, or the results of which are
used, for the purpose of rendering a diagnostic opinion regarding the
honesty or dishonesty of an individual.
3307.5. Photograph or identity; internet use
(a) No public safety officer shall be
required as a condition of employment by his or her employing public
safety department or other public agency to consent to the use of his or
her photograph or identity as a public safety officer on the Internet
for any purpose if that officer reasonably believes that the disclosure
may result in a threat, harassment, intimidation, or harm to that
officer or his or her family
(b) Based upon his or her reasonable belief
that the disclosure of his or her photograph or identity as a public
safety officer on the Internet as described in subdivision (a) may
result in a threat, harassment, intimidation, or harm, the officer may
notify the department or other public agency to cease and desist from
that disclosure. After the notification to cease and desist, the
officer, a district attorney, or a United States Attorney may seek an
injunction prohibiting any official or unofficial use by the department
or other public agency on the Internet of his or her photograph or
identity as a public safety officer. The court may impose a civil
penalty in an amount not to exceed five hundred dollars ($500) per day
commencing two working days after the date of receipt of the
notification to cease and desist.
3308. Financial disclosure; right to
refuse; exceptions
No public safety officer shall be required
or requested for purposes of job assignment or other personnel action to
disclose any item of his property, income, assets, source of income,
debts or personal or domestic expenditures (including those of any
member of his family or household) unless such information is obtained
or required under state law or proper legal procedure, tends to indicate
a conflict of interest with respect to the performance of his official
duties, or is necessary for the employing agency to ascertain the
desirability of assigning the public safety officer to a specialized
unit in which there is a strong possibility that bribes or other
improper inducements may be offered.
3309. Search of locker or storage space;
consent; search warrant
No public safety officer shall have his
locker, or other space for storage that may be assigned to him searched
except in his presence, or with his consent, or unless a valid search
warrant has been obtained or where he has been notified that a search
will be conducted. This section shall apply only to lockers or other
space for storage that are owned or leased by the employing agency.
3309.5 Local public safety officers;
applicability of chapter; violations; jurisdiction; remedies
(a) It shall be unlawful for any public
safety department to deny or refuse to any public safety officer the
rights and protections guaranteed to them by this chapter.
(b) Nothing in subdivision (h) of Section
11181 shall be construed to affect the rights and protections afforded
to state public safety officers under this Chapter or under Section
832.5 of the Penal Code.
(c) The superior court shall have initial
jurisdiction over any proceeding brought by any public safety officer
against any public safety department for alleged violations of this
chapter.
(d)(1) In any case where the superior court
finds that a public safety department has violated any of the provisions
of this chapter, the court shall render appropriate injunctive or other
extraordinary relief to remedy the violation and to prevent future
violations of a like or similar nature, including, but not limited to,
the granting of a temporary restraining order, preliminary, or permanent
injunction prohibiting the public safety department from taking any
punitive action against the public safety officer.
(2) If the court finds that a bad faith or
frivolous action or a filing for an improper purpose has been brought
pursuant to this chapter, the court may order sanctions against, the
party filing the action, the parties attorney, or both pursuant to
Sections 128.6 and 128.7 of the Code of Civil Procedure. Those
sanctions may include, but not be limited to, reasonable expenses,
including attorney’s fees, incurred by a public safety department, as
the court deems appropriate. Nothing in this paragraph is intended to
subject actions or filings under this section to rules or standards that
are different from those applicable to other civil actions or filings
subject to Section 128.6 or 128.7 of the Code of Civil Procedure.
(e) In addition to the extraordinary relief
afforded by this chapter, upon a finding by a superior court that a
public safety department, its employees, agents, or assigns, with
respect to acts taken within the scope of employment, maliciously
violated any provision of this chapter with the intent to injure the
public safety officer, the public safety department shall, for each and
every violation, be liable for a civil penalty not to exceed twenty-five
thousand dollars ($25,000) to be awarded to the public safety officer
whose right or protection was denied and for reasonable attorney’s fees
as may be determined by the court. If the court so finds, and there is
sufficient evidence to establish actual damages suffered by the officer
whose right or protection was denied, the public safety department shall
also be liable for the amount of the actual damages. Notwithstanding
these provisions, a public safety department may not be required to
indemnify a contractor for the contractor’s liability pursuant to this
subdivision if there is, within the contract between the public safety
department and the contractor, a “hold harmless” or similar provision
that protects the public safety department from liability for the
actions of the contractor. An individual shall not be liable for any
act for which a public safety department is liable under this section.
3310. Procedures of public agency providing
same rights or protections; application of chapter
Any public agency which has adopted, through
action of its governing body or its official designee, any procedure
which at a minimum provides to peace officers the same rights or
protections as provided pursuant to this chapter shall not be subject to
this chapter with regard to such a procedure.
3311. Mutual aid agreements; effect of
chapter upon
Nothing
in this chapter shall in any way be construed to limit the use of any
public safety agency or any public safety officer in the fulfilling of
mutual aid agreements with other jurisdictions or agencies, nor shall
this chapter be construed in any way to limit any jurisdictional or
interagency cooperation under any circumstances where such activity is
deemed necessary or desirable by the jurisdictions or the agencies
involved.
3312. American flag pins or items
containing the American flag; prohibition on punitive action against
officers for wearing pins or display of items; exception
Notwithstanding any other provision of law,
the employer of a public safety officer may not take any punitive action
against an officer for wearing a pin or displaying any other item
containing the American flag, unless the employer gives the officer
written notice that includes all of the following:
(a) A statement that the officer’s pin or
other item violates an existing rule, regulation, policy, or local
agency agreement or contract regarding the wearing of a pin, or the
displaying of any other item, containing the American flag.
(b) A citation to the specific rule,
regulation, policy, or local agency agreement or contract that the pin
or other item violates.
(c) A
statement that the officer may file an appeal against the employer
challenging the alleged violation pursuant to applicable grievance or
appeal procedures adopted by the department or public agency that
otherwise comply with existing law. |
