History:
First state to get a POBR)Peace Officers Bill of
Rights), effective 1-1-77. The concept originated around 1974. The largest
supporter of POBR was the ACLU. Governor Jerry Brown signed the bill into law.
3301-
Definition; Legislative findings and declaration
3302-
Political activity: Membership on school board
3303-Investigations
interrogations; conduct;conditions;representation;reassignment
3304-Lawful
exercise of rights;insubordination;administrative
appeal
3304.5-Administrative
appeal
3305-Comments adverse to interest;personnel files;opportunity to read and sign;refusal to sign
3306-Response to adverse comment in personnel file;time
3306.5-Inspection
of personnel files;request for correction of file;time
3307-Polygraph
examination;right to refuse;effect
3307.5-Use
of photograph;penalties
3308-Financial
disclosure;right to refuse;exceptions
3309-Search
of locker or storage space;consent;search warrant
3309.5-Local public safety officers;applicability
of chapter;jurisdiction;remedie
3310-Procedures of public agency providing same rights or protections;application of chapter
3311-Mutual aid agreements;effect of chapter upon
3312-American
Flag;pins
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
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 therefor 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 signed
or 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 therefor 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 a
like 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 and
128.7 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.