Finding the Facts - Disciplinary and Harassment Investigation

iii. Right of Representation Employees participating in investigatory interviews, who have a reasonable belief that discipline may result from the interview, have a right to be represented by their union representative or legal counsel in such an interview upon request. 88 Prior to the alleged harasser’s interview, he/she must be advised of his/her right to representation. While the employee has the right to have a union representative present during an interview that might lead to discipline, the employer may set reasonable “ground rules” including:

 Cannot object to questions or argue about the relevance of questions;



Cannot obstruct the investigation;

 Cannot conduct discovery/ask fact-finding questions;

 May ask clarifying questions if a question is not clear.

In Upland Police Officers Association v. City of Upland , 89 the Court of Appeal held that the right to choice of representation in internal affairs investigations is limited. This right, which is supplied by Government Code section 3303(i) of the Public Safety Officers Procedural Bill of Rights Act, permits an officer to choose a representative. While the employee has the right to have a union representative present during an interview that might lead to discipline, the employer may set reasonable “ground rules” including:  Same union representative cannot be present/support the complainant and represent the accused;

 Cannot instruct a witness not to answer;

 Cannot object to questions or argue about the relevance of questions;



Cannot obstruct the investigation;

 Cannot conduct discovery/ask fact-finding questions;

 May ask clarifying questions if a question is not clear.

A representative is one “who is reasonably available to represent the officer, and who is physically able to represent the officer at the reasonably scheduled interrogation.” 90 This rule is also likely applicable to firefighters covered under the Firefighters Procedural Bill of Rights Act. 91

Note that private discussions that take place in the course of an investigation between the employee and his/her union representative, in contrast with a lawyer, are not privileged. 92

In Ellins v. City of Sierra Madre , 93 the Court of Appeal held that the City gave sufficient notice of the nature of the investigation prior to an officer’s interrogation pursuant to the Public Safety Officers Procedural Bill of Rights Act, and clarified that "reasonable" notice is required in order to allow an employee the opportunity to "meaningfully consult" with his/her representative. Under Government Code section 3303, subdivision (c), an officer under investigation shall be informed of the nature of the investigation prior to any interrogation. In Ellins , the officer and his

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 45