SB 388 was introduced by Senator Lieu on February 20, 2013. This bill amends the Public Safety Officers Procedural Bill of Rights (POBR) so that certain rights are triggered with an “interrogation” instead of an “investigation.” Specifically, the change is as follows:
“When any public safety officer is under investigation and subject to interrogation and subjected to interrogation, or is subject to interrogation without being under investigation, by his or her commanding officer, or any other member representative of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions…”
Thus, SB 388 would apply POBR’s protections any time there was an interrogation that could lead to punitive action, even when there is no investigation.
- My objection to this bill is that the term “interrogation” is too broad. For example, let’s say a patrol officer is walking down the hallway and his watch lieutenant says, “Hey, have you turned in your reports for the week?” Is that an interrogation under SB 388? Well, it could be if it could lead to punitive action. So what if the patrol officer says, “No, I didn’t turn my reports in for the week.” Could that lead to punitive action? Well, it might. And that’s the problem with using the term “interrogation” without any more guidance. It’s so broad that it could cover any run-of-the-mill question from a supervisor.
- I suppose that proponents of this bill could point to the Weingarten doctrine which allows an employee to ask for a union representative during investigative interviews. However, there is a whole body of caselaw that has developed under Weingarten to distinguish between investigatory interviews and run-of-the-mill shop floor discussions. That body of law is not incorporated into SB 388 nor is there any guidance on exactly what constitutes an interrogation.
- Because there is not yet any legislative analysis of this bill, I am not sure the problem this bill is trying to solve. If the problem is that officers are being “interrogated” before an investigation is formally started, there is probably a way to address that. However, this bill, as worded, is flawed in my opinion.