The Fourth District Court of Appeal made a significant interpretation of the Public Safety Officers Procedural Bill of Rights Act ("POBR") (Gov. Code § 3300 et seq.) in the case of Santa Ana Police Officers Association v. City of Santa Ana, 2017 WL 2879796 (2017) that has the potential to impact many administrative investigations of peace officers. In the underlying case, the officers were surreptitiously recorded during an undercover raid of a marijuana dispensary and were investigated for allegedly inappropriate comments made while collecting and logging evidence. After the initial interviews of two officers, the Department wanted to interview them a second time, and the POA claimed that the Department, pursuant to Government Code section 3303(g), was required to give the officers "a transcribed copy of any notes made by a stenographer or ... any reports or complaints made by investigators or other persons except those which are deemed by the investigating agency to be confidential," in addition to the recording of the first interview prior to the second interview. The Department refused to hand over the materials before the second interview, and the POA brought suit.

The trial court sustained the City's demurrer without leave to amend. On appeal, the Court concluded that both the plain language of the statute and the decision in Pasadena Police Officers Association v. City of Pasadena, 51 Cal.3d 564, 572 (1990) required reversal of the trial court's decision. The Pasadena decision has historically stood for the proposition that an officer has no pre-interrogation discovery rights and that Government Code section 3303(g) requires a department to give an officer a recording of the first interview prior to the second interview. The Santa Ana Court concluded that interpreting the Pasadena decision and the statute together, if an officer is entitled to the recording, the statute language renders the right to notes/reports/complaints coextensive with the right to the audio. This means that the officer is entitled to both the audio and the writings prior to any subsequent interview.

At first glance, the Santa Ana decision seems inconsistent with the Pasadena decision. However, the Pasadena decision really only says that an officer is not entitled to the notes/reports/complaints until after an interrogation. The Santa Ana court appears to reconcile Pasadena by interpreting it as meaning after the FIRST interrogation.

The Santa Ana decision has major implications for administrative interrogations of peace officers because usually a department does not conduct a second interview unless the officer is suspected of being dishonest in the first. Now, the officer (and his or her representative) may be able to see the investigator's analysis and other witness statements before giving the second interview - which will significantly assist in a more meaningful defense for the officer. The decision will also impact investigations of firefighters under the Firefighter Bill of Rights Act, which has the same language as POBR in this regard.

If you have any questions about this alert, please contact Gary Messing (gary@majlabor.com) or Lina Balciunas Cockrell (lina@majlabor.com) at 916.446.5297.