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Newsletters
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APPELLATE COURT TRIES TO DEFINE
OFFICERS RIGHT OF REPRESENTATION
By: Dieter C. Dammeier
LACKIE & DAMMEIER LLP
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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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