Public Safety Officers
Procedural
Bill of Rights Act.
Government
Code Sections 3300-3312
3300- Title
This chapter is
known and may be cited as the Public Safety Officers Procedural Bill of
Rights Act.
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 ©, 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.
3302- Political
activity: Membership on school board
(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
interrogations; conduct; conditions; 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 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 noncriminal 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 or 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
(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 multijurisdictional 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 predisciplinary 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
predisciplinary 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 predisciplinary
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- Administrative appeal
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; personnel files; opportunity to
read and sign; 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 signedor initialed by such officer.
3306- Response to
adverse comment 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-Inspection
of personnel files; request for correction of file; time
(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-Polygraph
examination; right to refuse; effect
(a) No public safety officer shall be
compelled to submit to a lie detector test against his or her 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, or did not 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-Use of
photograph; penalties
(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; 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 him or
her 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 alike 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 and128.7 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
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.