By Debra Reilly
California public safety officers have had their own procedural bill of rights for the last three decades, so it is only fair that California firefighters should also have a procedural bill of rights (as many other states have also enacted). The Firefighters Procedural Bill of Rights Act (FBOR) became effective January 1, 2008; thus, case law has not had sufficient time to develop concerning this new statute (California Government Code Sections 3250 through 3262). However, since FBOR was patterned after the Public Safety Officers Procedural Bill of Rights Act (POBR), similar rights will probably be given the same meaning by the courts. (See the April 2010 CAOWI Quarterly for some case law interpretations of POBR.)
Under FOBR, a “firefighter” means any firefighter employed by a public agency, including, but not limited to, any firefighter who is a paramedic or emergency medical technician, irrespective of rank, but does not include probationary employees or inmates performing firefighting duties.
When any firefighter is under investigation that could lead to “punitive action,” and the firefighter is subjected to interrogation by his or her commanding officer, or subjected to an investigative interview by you (if you are so designated by the Fire Department retaining you), FOBR applies. “Punitive action” means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment. FOBR contains many requirements. However, for an “outside investigator” investigating the conduct of a firefighter, the most notable of FOBR’s “investigation” procedures are:
- The interrogation shall be conducted at a reasonable hour, at a time when the firefighter is on duty, unless an imminent threat to the safety of the public requires otherwise.
- The firefighter under investigation shall be informed, prior to the interrogation, of your name and the names of all other persons you expect to be present during the interrogation.
- All questions directed to the firefighter under interrogation shall be asked by and through no more than two interrogators at one time.
- The firefighter under investigation shall be informed of the nature of the investigation prior to any interrogation.
- The interrogating session shall be for a reasonable period taking into consideration the gravity and complexity of the issue being investigated.
- The person under interrogation shall be allowed reasonable breaks to attend to his or her own personal physical necessities.
- The firefighter under interrogation shall not be subjected to offensive language or threatened with punitive action.
- A “promise of reward” shall not be made as an inducement to answering any question.
- The employer shall provide to, and obtain from, an employee a formal grant of immunity from criminal prosecution, in writing, before the employee may be compelled to respond to incriminating questions in an interrogation. Subject to that grant of immunity, a firefighter refusing to respond to questions or submit to interrogation shall be informed that the failure to answer questions directly related to the investigation or interrogation may result in punitive action (Lybarger warning). Gov’t Code Section 3253(f ). (Note: This requirement of a written offer of immunity is a distinction between FOBR and POBR, and it raises questions since a Fire Department has no authority to grant immunity.)
- A firefighter cannot be required or requested to disclose his or her assets, income, or debts unless required under state law or pursuant to court order.
- The employer (or investigator) cannot search the firefighter’s locker or other space for storage unless the firefighter is present, he or she consents, he or she has been notified that a search will be conducted, or unless a valid search warrant has been obtained.
- The complete interrogation of a firefighter “may” be recorded. If a recording is made of the interrogation, the firefighter shall have access to the recording if any further proceedings are contemplated or prior to any further interrogation at a subsequent time.
- The firefighter being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation.
- The firefighter 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 portions that are otherwise required by law to be kept confidential.
- Notes or reports that are deemed to be confidential shall not be entered in the firefighter’s personnel file.
- If, prior to or during the interrogation of a firefighter, it is contemplated that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights (Miranda warning).
- Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that may result in punitive action against any firefighter, that firefighter, 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, or be subject to any punitive action for refusing to disclose, any information received from the firefighter under investigation for noncriminal matters.
Formal and Informal Investigations.
Any inquiry, formal or informal, into sanctionable conduct triggers the above-listed protections. City of Los Angeles v. Superior Court (Labio), 57 Cal.App.4th 1506 (1997). The Labio court held that statements obtained in violation of these procedural rules, even in an informal investigation, can be suppressed. Officer Labio drove by a fatal accident in a marked patrol vehicle to a doughnut shop. He was informally questioned without being advised that he was under investigation and without being advised of his Miranda rights. If he had been informed, then he might have taped the discussion and requested a representative.
Miranda Warning.
Gov’t Code Section 3253(h) requires that Miranda rights be read to the firefighter if it is deemed that the firefighter may be charged with a criminal offense. Some fire departments routinely give Miranda warnings even if no criminal charges are contemplated as an exercise of caution, as is the practice of police agencies.
Lybarger Warning. If the firefighter is under direct order to submit to an interrogation, then the statement is deemed coerced and Lybarger immunity should apply. In Lybarger v. City of Los Angeles, 40 Cal.3d 822 (1985), the California Supreme Court held that governmental employers may obtain compelled statements from their employees, for administrative purposes, by advising employees that the compelled statement cannot be used against them in a criminal prosecution (commonly referred to as the “Lybarger warning”. See the April 2010 CAOWI Quarterly for the contents of a Lybarger warning.) If a firefighter is under investigation in the workplace for an act that could also potentially lead to criminal prosecution, the investigator should administer the Lybarger warning to the firefighter.
Regarding the applicability of Lybarger, FOBR states that a statement made during interrogation by a firefighter under threat of punitive action shall not be admissible in any subsequent judicial proceeding, except when: (1) The department is seeking civil service sanctions against any firefighter, including disciplinary action brought under Section 19572. (2) The Firefighter or his or her association has brought a civil or administrative action arising out of a disciplinary action. Firefighter “Witness”. Because FOBR applies to firefighters “under investigation and subjected to interrogation . . . which could lead to punitive action,” a firefighter who is only a “witness” does not appear to fall under FOBR’s protections. However, one must be careful in characterizing a firefighter as merely a “witness” because it may turn out that evidence in the investigation reveals that he or she aided and abetted the incident under investigation, failed to report it, or failed to prevent it. A premature or erroneous characterization of a firefighter as a mere witness and denying him or her FOBR rights could result in disastrous consequences.
Originally published in CAOWI Quarterly Vol. 1 No. 3 in July 2010.