The Court of Appeal issued its decision in Ellins v. City of Sierra Madre, which provides public agencies with guidance on when to disclose the nature of an investigation prior to interrogating a peace officer pursuant to the Public Safety Officer Procedural Bill of Rights Act (POBR). This case was handled by Laura J. Kalty and Danny Y. Yoo out of Liebert Cassidy Whitmore’s Los Angeles Office.
Government Code section 3303(c) states that an officer who is under an investigation that could lead to punitive action “shall be informed of the nature of the investigation prior to any interrogation.” The Court of Appeal in Ellins held that this “requires an officer to be informed of the nature of the investigation ‘reasonably prior to’ the investigation – that is, with enough time for the officer to meaningfully consult with any representative he elects to have present.”
In the underlying case, the City of Sierra Madre began an investigation when it learned that Police Officer John Ellins was potentially improperly using CLETS (a highly confidential database) to conduct searches of his ex-girlfriend and her family. Out of concern for the safety of his ex-girlfriend, the City initially informed Ellins that he was under investigation for abuse of his police powers.
Then, on the morning of his scheduled interview, the City informed Ellins of the specific nature of the investigation, i.e., his improper searches. The City’s investigator had previously discussed with Ellins’ attorney that they could have time to meet and discuss the specific charges, and Ellins’ attorney estimated she would need approximately one hour. After a written and verbal interrogation admonition, Ellins and his attorney were permitted to meet in private to discuss the specific charges, just as they had requested. Ellins met with his attorney for approximately 25 minutes, but when he returned, he refused to go forward with the interview, citing insufficient notice of the nature of the investigation. The Chief of Police ordered him to cooperate and participate in the interview, and he still refused. The City terminated him not only for the improper searches, but also for insubordination.
Ellins argued that the City’s actions violated his POBR rights because it did not inform him of the nature of the investigation sufficiently “prior to” the interrogation. He argued that he did not have a meaningful opportunity to consult with his attorney about the specific nature of the investigation. The Court of Appeal held that the City’s decision to postpone the disclosure of the specific nature of the investigation until immediately prior to the interrogation, but then permitting Ellins time to consult with his attorney, did not violate the POBR. Specifically, the Court stated, “an employing department with reason to believe that providing this information might risk the safety of interested parties or the integrity of evidence in the officer’s control may delay the notice until the time scheduled for interrogation as long as it thereafter grants sufficient time for consultation.” The Court held the City did not violate the POBR and upheld the termination.
An agency does not have to disclose the nature of an investigation to an officer at the outset of an investigation, but only prior to the interrogation. An agency may delay disclosure of the specific nature of the investigation to the officer if it believes that earlier disclosure would jeopardize the safety of any interested parties or the integrity of the evidence under the officer’s control. However, after disclosure of the nature of the investigation – even if it is immediately prior to the interrogation – the agency must give the officer a meaningful opportunity to consult with his or her representative. How much time is required to provide a “meaningful opportunity” is going to depend on the facts of the case and the exigencies of moving forward with the interrogation. For example, the Ellins Court noted that the question of whether Ellins had an official reason to be running searches in the CLETS database on his ex-girlfriend was “straight-forward legally and factually.”
Where an agency does not have concerns about the impact of disclosing information to the officer, the more conservative approach is to give reasonable advance notice of the nature of the investigation prior to the interrogation. But the Ellins case now gives agencies some additional strategic options where there are concerns about the impact of disclosing the specifics of what is being investigated.
Although this was a case decided under the POBR, this decision will also likely apply to the Firefighter Bill of Rights (FBOR). The FBOR was modeled after the POBR, and the language in Government Code section 3253(c) in the FBOR is virtually identical to Government Code section 3303(c) in the POBR.
Note: While the Ellins Court stated that the officer must have enough time to consult with a representative who “he or she elects,” the right to a representative is found in Government Code section 3303(i) and is addressed more squarely in Upland Police Officers Association v. City of Upland (2003), a case handled Peter Brown and Scott Tiedemann also of Liebert Cassidy Whitmore’s Los Angeles office. In Upland Police Officers Association, the Court held the officer’s choice of a representative must be reasonable, e.g., he or she cannot choose a representative who will never be available. In fact, the Ellins Court relied on Upland Police Officers Association to “infuse a reasonableness requirement” into Section 3303(c).
 This California appellate decision is separate from Ellins v. City of Sierra Madre, 710 F.3d 1049 (9th Cir. 2013), a decision published in the Ninth Circuit Court of Appeals. The issue in the Ninth Circuit case was whether Ellins’ speech as the union president was protected speech. The Ninth Circuit held that when Ellins was speaking in his capacity as a union representative, his speech was that of a private citizen and thus protected. For our review of the Ninth Circuit decision visit: http://www.lcwlegal.com/84321.