The ten most important things a CSLEA member should know about their legal rights
By Kasey Christopher Clark, CSLEA Chief Legal Counsel
At what point am I entitled to legal representation in the disciplinary process?
The right to representation is triggered by an employee’s reasonable belief that his/her responses to questioning could give rise to discipline. Generally, witnesses are not entitled to representation unless the conduct which they observed was so egregious that the witness was neglect in their failure to report. Employees are not entitled to representation in the context of routine counseling or verbal admonishment by a supervisor. If you are called into a meeting with a supervisor and there is doubt as to the purpose of the meeting, you should ask your supervisor whether the responses to questioning could lead to discipline. If your supervisor says “yes” or “depending upon your responses”, you should request legal representation.
How long does an agency have to complete an Internal Affairs investigation?
For peace officer Unit 7 members, pursuant to Government Code Section 3304(d), an Internal Affairs investigation must generally be completed within one (1) year from the date the Department is made aware of the allegations giving rise discipline. There are a number of exceptions to this time limitation including reasonable extensions for multi-jurisdictional investigations and investigations involving a matter in criminal litigation where the complainant or the accused employee is a criminal defendant. For non-peace officer Unit 7 members, pursuant to Government Code Section 19635 an agency has three (3) years from date of knowledge in which to impose adverse action. (see the Peace Officer Bill of Rights)
What information must an agency provide to an accused employee prior to an Internal Affairs interview?
For peace officer Unit 7 members, the accused employee must be informed of the nature of the investigation as well as the rank, name and command of the interrogating officers. Non- peace officer Unit 7 members are entitled to notice as to the nature of the investigation. Accused employees are not entitled to a copy of the complaint or statements of witnesses prior to their investigative interview. An accused employee is entitled to a copy of his or her own statement if the employee is to be re-interviewed regarding the same or similar allegations.
Do I have to provide an Internal Affairs statement if my responses could subject me to criminal prosecution?
An accused employee may not refuse to answer questions in an Internal Affairs interview and assert the right against self incrimination without fear that the agency may discipline the employee for insubordination. If the investigators determine prior to or during the course of an interview that an employee may be criminally charged, the employee must be advised of his or her constitutional Miranda rights. A statement given in an Internal Affairs interview or any information derived from the employee’s statement may not be used as evidence to support the criminal prosecution of that employee. However, statements given in the Internal Affairs interview may be used for purposes of impeachment if the employee is criminally charged and the employee’s testimony in the criminal proceeding is contrary to the Internal Affairs statement.
What is a legal conflict, and when a conflict exists, when am I entitled to legal representation?
Generally a legal conflict can be described as two (2) or more accused employees with adverse interests. The difficultly in representing employees with adverse interests is that in order to successfully defend one employee, it is necessary to advocate that other accused employees are responsible for the conduct in question. Generally, an attorney may not represent clients with adverse interests. There are exceptions which permit attorneys to represent clients with potential or an actual conflict provided there is written informed consent of all clients. Some cases or some stages of disciplinary proceedings do not lend themselves to multiple representation by the same attorney even with written informed consent. If a conflict of interest exists, which is incapable of being resolved by written informed consent, the affected employees must consult with CSLEA Legal to determine:
1. Whether there is an actual legal conflict;
2. Whether the conflict is capable of being resolved by written informed consent of all employees;
3. If the conflict is not capable of resolution by written informed consent, which outside attorney(s) will be appointed as conflict counsel.
What is a Skelly hearing?
A “Skelly” is a hearing which must be provided to an employee prior to the imposition of discipline. Generally, Skelly’s must be provided in the case of termination, demotion, suspension, reduction in pay and transfer with an accompanying loss in pay. An employee’s Skelly rights entitle the employee to due process consisting of: (1) notice of the intended disciplinary action; (2) a copy of all materials upon which the action is based (including material which was available for review by the individual responsible for imposing discipline, regardless of whether such information was, in fact, reviewed); and, (3) an opportunity to respond orally or in writing to an impartial reviewer prior to the effective date of the disciplinary action. Pursuant to State Personnel Board Rule 52.3 an employee must be served with a Notice of Adverse Action at least five (5) days prior to the effective date. The “Skelly” Officer must have the authority to modify (or at a minimum recommend modification) of the adverse action.
What are my rights if the disciplinary action is not resolved as a result of the Skelly hearing?
Employees whose discipline is not resolved at the Skelly stage are entitled to an evidentiary hearing before an Administrative Law Judge employed by the State Personnel Board. The administrative hearing is very similar to a civil trial. The burden of proof rests with the agency to demonstrate there was just cause for the discipline as well as the appropriate penalty for such conduct. Each side has the right to conduct discovery, to make opening statements and closing arguments, to call and cross-examine witnesses, and introduce documentary and other evidence. The accused employee also has the right to testify in his or her own behalf. At the conclusion of the hearing, the administrative law judge will prepare a proposed decision for consideration by the five (5) member State Personnel Board. The SPB need not accept the administrative law judge’s decision and may make modifications consistent with the SPB Rules. The Board is also free to make changes relative to the penalty recommended by the administrative law judge or to reject the recommended decision and hear the case itself. Once any changes are made to the decision, the Board will adopt the decision as its own. Both the employee and the agency have the right of appeal to Superior Court if they are dissatisfied with the Board’s decision.
What should I do if I am involved in a critical incident?
A critical incident can best be defined as a serious injury or death caused by an employee’s operation of a motor vehicle or the application of force, including officer-involved shootings and in-custody deaths.
Assuming the involved employee is physically capable, he or she should provide the first field supervisor to arrive on scene a brief narrative outline of the circumstances surrounding the critical incident for purposes of conducting further investigation, developing a crime scene and providing public safety. This is especially true in the case of an officer-involved shooting where armed suspects may remain at large or weapons have yet to be secured. The employee should provide the field supervisor only those facts necessary to ensure public safety at the crime scene. The employee should refrain from detailing his/her state of mind as to the justification or actions taken.
As those who have experienced critical incidents can attest, it is not unusual for a large number of co-employees to arrive on scene to provide support and assistance. The “involved” employee is cautioned to avoid “venting” to other employees the circumstances of the incident. Such statements only serve to make non-involved employees potential witnesses. The information related by the involved employee may also be inconsistent with a subsequent statement given to detectives.
Employees involved in critical incidents are encouraged to contact the CSLEA Legal Defense Fund at any time of day or night to secure the services of an attorney experienced in such matters. CSLEA LDF has a list of qualified attorneys throughout the State of California who are specialists in the representation of employees involved in critical incidents and have provided the CSLEA LDF Legal Administrator contact information to ensure their availability at all times. The CSLEA LDF 24-hour hot line for CSLEA members is (800) 533-5448.
The critical incident scene supervisor and/or lead homicide investigator must wait a reasonable time for a CSLEA member’s attorney to arrive on scene prior to conducting a walk-through of the incident. Statements given by the involved employee during the course of the walk-through should be limited to physical positions and/or locations of vehicles, angles and directions of travel, the flight of ammunition and number of discharged rounds. The involved employee should again refrain from making state of mind representations.
Providing a Formal Statement
The determination as to whether an involved employee will provide a voluntary statement to homicide or traffic investigators is made on a case-by-case basis with the advice of counsel. Generally, an employee involved in a critical incident is not the focus of a criminal investigation and therefore, the investigating agency has no legal obligation to Mirandize the employee. Under circumstances in which the employee was clearly justified in his/her actions, a non-Mirandized statement will normally be provided. In some circumstances an employee may be advised to assert their right against self-incrimination, i.e. to afford the employee and his/her attorney the opportunity to review physical evidence/witness statements.
Employees involved in critical incidents should be mindful of the following:
1. To the extent possible, refrain from “venting” to other employees the details of the incident;
2. Any statements given outside the presence of an SPOA attorney should be limited to basic facts and the employee should avoid representations regarding state of mind; and
3. Prior to being questioned regarding the details of the incident outside the presence of an attorney, the employee should ask the investigator whether they are entitled to a representative. Regardless of the whether the investigator agrees that the employee is entitled to representation, the employee should assert his/her right to a representative if the employee believes that his/her responses might subject the employee to administrative discipline or criminal charges.
What is a grievance?
A grievance may defined as a complaint that the collective bargaining agreement, i.e. Unit 7 Contract, or in some cases the policy and procedures of the agency have been violated. Grievances must be processed pursuant to Article 6 of the Unit 7 Contract. Generally, a grievance must be initiated no later than 14 days from the date in which the member or Association has knowledge of the facts giving rise to the grievance.
When is an agency legally obligated to meet and confer with CSLEA?
An agency must meet and confer with CSLEA representatives whenever there is a proposed change which may affect the wages, hours, and other terms and conditions of the employment of Unit 7 members, provided the subject matter is not already covered by the Unit 7 Contract. If the subject matter of the proposed change is covered by the Unit 7 Contract, pursuant to Article 20.1A CSLEA has the right to object to the change and to file a grievance over the change. If the proposed change is not covered by the Unit 7 Contract, the duty to meet and confer requires the agency and CSLEA to freely exchange information relevant to the subject matter and to discuss the impact of the proposed change. Certain rights have been defined by State law and the Unit 7 Contract as “management rights”. Some identified management rights are outside the scope of bargaining and therefore, management need not meet with CSLEA representatives prior to the exercise of such rights. However, where the exercise of management rights has an affect on the wages, hours, or other terms and conditions of employment, the agency must still meet and confer with CSLEA prior to the exercise of such rights.