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Upland POA Gets Injunction Against Police Management

By Michael D. Lackie
LACKIE & DAMMEIER LLP

Most law enforcement agencies in California understand and accept the Public Safety Officer's Procedural Bill of Rights Act. For the most part, police managers have gotten over being upset about the existence of the Act and try to follow the Act as written by the Legislature and interpreted by the Courts. Of course, they have to --- the Act is long-standing public policy of this state. 

Yet, there are a few police chiefs who view the Act as an intrusion on their ability to exert totalitarian control of their department. These agency heads can't understand why the Act was enacted, even though Government Code §3301 tells us exactly why the Act exists: to provide peace officers rights and protections from their employer. Amazingly, some department heads think the Act will go away or officers will not invoke their rights if their officers are given a bad time at every stage of an administrative investigation. 

Upland police officer Nic Kac, a long-time member of the Upland POA and its current president, has strong feelings for the Act and equally strong feelings against those who would violate it. Shortly after Officer Kac began his term as an association president, Upland police department managers began giving him a bad time whenever they thought he might be conducting association business while on duty. Kac is a patrol officer and necessarily has conversations with his members about association business while on duty and handles urgent matters relating to association membership when brought to his attention by fellow officers requesting his assistance. However, this is apparently upsetting to the Department which has a long history of making it difficult for Upland POA to conduct business in an orderly manner.

The immediate past president, Robert Galindo, is presently appealing discipline imposed by the Department for handling association business while on duty. Apparently the Chief decided to take a swipe at newly-installed POA President Kac by claiming he disobeyed orders to not conduct any association business on company time. 

As is Upland's practice, Officer Kac was notified of an interrogation concerning his union activities by unilaterally scheduling an interrogation date and time without first checking with Officer Kac and his attorneys. Upland POA internal affairs notices typically advise the officer that a representative's "calendaring conflict" is an insufficient reason to postpone the interrogation. The attorneys of Lackie & Dammeier LLP who have represented Upland POA members for several years have tried to convince Upland police managers to call the firm to schedule the interrogations ahead of time without success. Although not every interrogation at Upland starts out on the wrong foot, it is not uncommon to find resistance from the Department in scheduling interrogations and improper conduct during interrogations.

In the case of Officer Kac, the Department had two matters to deal with: insubordination for conducting association business on duty and an excessive force complaint. The investigator was contacted and a date and time set for the IA. Attorney Michael Lackie, who is Upland POA's primary attorney, had an appointment at another agency preceding Kac's planned interrogation and wrote a letter to the investigator advising him that he would possibly be delayed. As it turned out, Mr. Lackie was caught up in a serious administrative and criminal investigation involving an officer which required more time than anticipated.

Mr. Lackie's office informed Officer Kac and the Upland investigator of the delay and asked that the interrogation be postponed. Remember, at this point, no postponements had been sought for this investigation. More importantly, it was crucial that Mr. Lackie be present with Officer Kac during an interrogation which might delve into union matters (a topic concerning which the officer may properly decline to answer questions) and a potential criminal complaint (excessive force) for which we expected the investigator to give Officer Kac his Miranda rights.

The investigator didn't mind postponing the interrogation but his captain and the police chief had other ideas. These managers told Officer Kac and Mr. Lackie's office that they would go forward with the interrogation "with or without Mr. Lackie" because the Department wanted to "get the matter over with." 

As most readers of this article will have recognized at this point, subjecting Officer Kac to an interrogation when his chosen representative is unavailable is a blatant violation of Government Code §3303(i), which provides that an officer facing an interrogation "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."

When the Department was warned that proceeding with the interrogation when Officer Kac's representative (here, an attorney) would be a violation of the Act, the investigator's captain, (and, presumably, the Chief) told Officer Kac that they would allow him to have "another representative" present during the interrogation so that it would go forward as planned. Officer Kac stood his ground and demanded that his chosen representative, Mr. Lackie, be present with him during the interrogation. The Department refused his request and ordered him under threat of insubordination to submit to the interrogations for both cases. 

During the interrogation, Officer Kac did the right things: he turned on his tape recorder, read his non-waiver statement supplied by Lackie & Dammeier LLP, and stated several times that he wanted Mr. Lackie with him during the interrogation. Amazingly, the investigator said the interrogation would go forward on the theory that Officer Kac could choose "another representative of his choice." Of course, the Act does not give the Department the ability to substitute representatives over the objection of the target officer. The Act gives the Department no control whatsoever over who an officer's representative will be except that the representative cannot be someone who is subject to the same investigation. Officer Kac politely informed the investigator that he wanted the interrogation postponed until his attorney could be present. That request was denied and the interrogations took place. As you might expect, Officer Kac was questioned about union business and negotiations strategy --- forbidden topics of questioning. No doubt, Mr. Lackie would have objected to such questions and insisted that the investigator stick to the alleged misconduct. Officer Kac, believing a refusal to answer such questions would lead to additional charges of insubordination answered those questions. Clearly, he needed the guidance of an attorney.

Undaunted by Officer Kac's correct insistence that the investigation be postponed, the investigator next questioned Officer Kac about the excessive force complaint. The Miranda warning was given, which includes advisal of the right to have an attorney present. Apparently not realizing the significance of that advisal, the investigator then proceeded to the Lybarger admonition in order to coerce answers from Officer Kac even after he insisted upon the presence of an attorney following the Miranda warning. Officer Kac dutifully answered the questions and then got out of the interview room as quickly as possible. His first stop was at a telephone to contact Mr. Lackie.

It took the Upland Police Officers Association a matter of hours to conclude that legal action was necessary to stop further unlawful interrogations. The Association had absolutely no confidence whatsoever that the Upland Police Department and its managers would conform with the Act until and unless a court issued an injunction.

Lackie & Dammeier LLP filed a complaint for injunctive relief and civil rights violation in the San Bernardino County Superior Court, and concurrently filed a Motion for a Preliminary Injunction under Government Code §3309.5. The Court papers requested that the injunction bar the Upland Police Department from interrogating an officer when his or her chosen representative cannot be present. 

On April 18, 2001, the hearing on Officer Kac's Motion for a Preliminary Injunction was heard in the Rancho Cucamonga District of the San Bernardino County Superior Court. Of course, the Upland Police Department vigorously opposed the requested injunction on the basis that the unavailability of an officer's chosen representative is not sufficient reason to postpone an interrogation. The Department argued that an officer is not absolutely entitled to an attorney (because of the act's use of "representative"), and one representative is just as good as another. In order to not delay an administrative investigation, the Department argued that it can insist a subject officer choose another representative when the person he wants can't make it to the interrogation. 

Government Code §3303(i) is not ambiguous, it provides the Department no options as to representatives, and is clear that an investigator must abide by the officer's choice of a representative. 

The Court agreed with Officer Kac. The Judge found the language of Section 3303(i) to be unambiguous in granting an officer the right to have his chosen representative present. The Court equated this section to a similar situation in a criminal case when a party's attorney can't be present in court for one reason or another. The Court noted that the other side in the criminal or civil case has no right to insist that the party without an attorney find someone else to sit in for the day. Consequently, the Court found that a police department cannot order an officer to find a substitute representative or demand that the interrogation go forward without an officer's attorney (or other representative) being present. In accordance with its ruling, the Court granted Kac's request for a preliminary injunction. That injunction reads: 

"The Court grants a Preliminary Injunction under Government Code §3309.5, during the pendency of this action, prohibiting Defendants from proceeding with an interrogation of an officer if the representative of his or her choice is unavailable."

The next step in Officer Kac's lawsuit is to obtain a permanent injunction of the same nature. A preliminary injunction is similar to a temporary restraining order in that it bars the Department from future similar violations of the Act until such time as a trial on the merits takes place, which in this case will result in a permanent injunction. 

Officer Kac's civil rights action, under United States Code §1983, alleges that the Department has a "pattern and practice" of violating officers' right of representation through an explicit or implicit policy designed to invade or restrict an officer's representational rights under the Act. Monetary damages, attorney's fees and other relief is available under Section 1983. The Court will rule on the Civil Rights Action (and the remainder of the requested relief) when the case goes to trial later this year.