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Appellate Court Tries To Define Officers Right Of Representation
By:
Dieter C. Dammeier
LACKIE & DAMMEIER LLP
As some of you may recall reading, in
September of 2002, the Upland Police Officers Association obtained a
permanent injunction barring the Department from “proceeding with an
interrogation of an officer if the representative of his or her choice is
unavailable.” The Court of Appeal has reversed that injunction,
indicating that it was too broad and could result in an officer
indefinitely postponing an interrogation.
The facts which led to the issuance of the
injunction involved an interrogation of the Upland POA President, Nic Kac.
Kac was being investigated for conducting association business while on
duty, something which illustrates the Department’s view toward the
Association and officer rights. The interrogation date and time was
unilaterally set by the Department at a time that Kac’s chosen
representative, Mike Lackie of Lackie & Dammeier was previously scheduled
on another matter. Lackie contacted internal affairs Sergeant Adams who
reluctantly rescheduled the matter five days later at 3:00 p.m. At that
time, Lackie advised Sergeant Adams that he had another interrogation at
Burbank P.D. that morning but anticipated being able to make the afternoon
appointment in Upland, but would notify the sergeant if he was delayed.
In the interim, Kac was noticed of a second and separate interrogation
involving an allegation of use of force, setting the interrogation at the
same rescheduled time.
On the date of the interrogation, Lackie called
Kac and informed him that he was still in Burbank and unable to make the
scheduled 3:00 p.m. interrogation. Lackie’s secretary informed Sergeant
Adams of Mr. Lackie’s unavailability. Sergeant Adams refused to
reschedule the interrogation, even for a couple of hours and informed Kac
that he could have somebody else represent him in the interrogation. Kac
reiterated his right to a chosen representative of his choice pursuant to
Government Code §3303. Under threat of insubordination, Kac proceeded to
answer questions in both interrogations.
Upland POA immediately authorized Lackie &
Dammeier to seek and obtain an injunction against the Department from
proceeding in future interrogations where the officer’s chosen
representative is unavailable. The San Bernardino County Superior Court,
Judge Ben Kayashima, granted first a preliminary injunction and ultimately
a permanent injunction barring the Department from going forward with an
interrogation of an officer when his or her chosen representative is
unavailable. The City appealed this decision with the assistance of the
California State Sheriff’s Association and California Police Chief’s
Association. In reversing the Trial Court’s injunction, the Court of
Appeal concluded that following the literal language of the injunction and
statute could lead to absurd results. Given that Section 3303(i) gives an
officer the right to be represented by a representative “of his or her
choice,” one could delay an interrogation indefinitely claiming that his
representative is unavailable. The Appellate Court felt that the language
of the permanent injunction requiring such was overbroad since it did not
include an element of “reasonableness.”
The Court inserted an element of reasonableness
into the statute indicating that the “interrogations must be scheduled and
conducted in a reasonably prompt and efficient manner” and that the
“officer must choose a representative who is reasonably available to
represent the officer.” The Court held that
“we
fully support the officers rights to be represented by a person
of his or choice during an interrogation. We only hold
that such a right is not unlimited. The officer must choose a
representative who is reasonably available to represent the officer, and
who is physically able to represent the officer at the reasonably
scheduled interrogation . . . . this is particularly true when, as here,
the interrogation has already been scheduled at a mutually-agreeable time.”
Richard Kriesler, a
leading attorney in representing police management has interpreted this
Court’s decision to require the application of reasonableness on both
sides, including the Department allowing an officer’s representative or
attorney to reschedule an interrogation at least one time to a
mutually-acceptable time.
It remains unclear as to how the
“reasonableness” approach will be utilized throughout the state as a
result of this published Appellate Court decision. As you know, some
departments are more “reasonable” than others. No doubt, from this case
will stem more litigation to further clarify what the reasonable standard
is. The case leaves more unanswered questions than it resolves; such as,
what happens if the officer’s representative gets a flat tire on the way
to the interrogation, is the officer obligated to continue without
representation? What happens when an attorney is delayed in court and is
running late for a mutually-agreed upon interrogation time? Because of
the Court’s vague ruling and these unanswered questions, Upland POA will
be petitioning the California Supreme Court to hear this case and
reinstate the Superior Court’s decision.
In the meantime, for officers who are noticed
of interrogations, they should contact their representative as soon as
possible to let them know of the scheduled interrogation and if necessary,
reschedule the interrogation for a “reasonable” and “mutually-agreeable
time.”
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