Court Decides What Is Reasonable Notice under POBR

February 9, 2016 | Bulletin No. 1273993.1

On January 28, 2016, the Second District Court of Appeal held that public safety departments are required to give officers notice of the nature of the investigation "reasonably prior" to any interrogation when officers are facing an investigation that could lead to punitive action. In Ellins v. City of Sierra Madre, the Court interpreted how much prior notice public safety departments are required to give under of the Police Officer's Bill of Rights ("POBR") and determined that prior notice is sufficient if, under the circumstances, it allows an officer enough time to meaningfully consult with any representative he or she elects to have present. (Ellins v. City of Sierra Madre (1/28/16) B261968.)

Background

John Ellins ("Ellins"), an officer for Sierra Madre Police Department ("The Department"), had access to the California Law Enforcement Telecommunications System, or "CLETS", an electronic database that allows officers to access an individual's confidential information. Ellins was informed that the use of CLETS for anything other than official business was improper and grounds for dismissal. The Department initiated an investigation into Ellins' misuse of CLETS when it received a letter from Ellins' ex-girlfriend that Ellins had tracked her down in using information from the database.

In September 2010, the Department notified Ellins that "an administrative investigation is currently being conducted regarding alleged abuse of your peace officer duties" but contained no other details regarding the nature of the alleged abuse. Later, Ellins, assisted by private counsel, agreed to be interviewed by the Department's investigating consultant. Minutes before the interview began Ellins was notified orally and in writing that he was being investigated for improper use of the CLETS database to contact his ex-girlfriend. The Department's consultant gave Ellins an hour to consult with his representative prior to the interview, which was the amount of time the representative requested. After only twenty five minutes of meeting with his attorney, Ellins told the consultant the he refused to participate in the interview and continued to refuse to participate even when instructed to do so by his commanding officer.

The Department initiated termination proceedings against Ellins for insubordination and making improper use of CLETS. Ellins challenged his termination on the ground that the timing of the Department's notice of the nature of the investigation was insufficient and he was therefore not insubordinate but justified in refusing to participate in the interview. The trial court determined that notice was sufficient and Ellis appealed.

Analysis

On appeal, the Second District Court affirmed the judgment in favor of the Department. It reasoned that Ellins' appeal turned on what the POBR statute means when it requires an employing department to inform an officer "prior to" any interrogation. Ellins argued that a standard of advance notice of at least one day, and of up to at least five days, is required. The Department argued that notice is sufficient as long as it precedes an interrogation even by mere minutes. The Court rejected both arguments and declined to set a bright line rule. Instead, it interpreted the statute to impose a requirement of notice "reasonably prior" to the interrogation, with enough time for the officer to meaningfully consult with any representative.

The Court identified factors on which the reasonableness assessment turns, including (1) whether the officer has already retained a representative, or instead needs time to secure one; (2) the nature of the allegations; (3) the complexity of the allegations; and (4) if the allegations are unrelated, the number of allegations. Importantly, the Court held that if a department has reason to believe that providing prior notice "might risk the safety of interested parties or the integrity of evidence in the officer's control" the department may delay the notice until the time scheduled for interrogation as long as it provides sufficient time thereafter for consultation.

Applying this interpretation to Ellins' claim, the Court held that the Department provided Ellins with notice reasonably prior to his interrogation. Although he was only told minutes before his interrogation of the nature of the investigation, the letter that the Department received from Ellins' ex-girlfriend provided good cause for the Department to postpone disclosure of the nature of the investigation until the commencement of the interrogation to avoid any possibility of retaliation to her. Additionally, the Court considered that Ellins was given time between when he received notice of the allegations and when the interrogation was to commence to consult with his attorney. The attorney had requested an hour to confer with Ellins yet the two only used twenty five minutes of that time. The Court deemed the hour requested by Ellins' representative to be sufficient time, given the straightforward nature of the allegation of a CLET violation against Ellins.

The Court ultimately determined that Ellins was given notice of the nature of the allegations reasonably prior to the interrogation and thus his refusal to participate in the interview amounted to insubordination sufficient to support his termination.

What This Means For Public Safety Departments

This decision provides some guidance to public safety departments that conduct investigations of employees whose rights are triggered under POBR. Under the "reasonably prior" standard outlined in Ellins, public safety departments now have guidelines to determine how much advance notice should be granted to the officer prior to an interrogation. Before initiating an interrogation, departments should assess the nature, complexity, and number of allegations being brought against the officer. The more complex and numerous the allegations, the more prior notice a department will likely be required to give before interviewing the officer. In addition, prior notice will likely be required earlier if the officer has not obtained counsel in the matter. Under Ellins, departments have more leeway to postpone notice if there are reasons to believe that giving notice would jeopardize safety of parties involved or integrity of evidence under the officer's control. However, departments should still ensure that, even under those circumstances, if notice is postponed until the time of the interrogation, the officer is still given sufficient time prior to the interview to consult with his or her representative.

Questions

If you have any questions concerning this Legal Alert, please contact Kristianne Seargeant or the attorney with whom you normally consult.