To Talk or Not to Talk
Setting aside Abraham Lincoln’s advice that it is “better to remain silent and be thought a fool than to speak out and remove all doubt,” the decision to talk or not to talk can have repercussions if you are a police officer. Different considerations arise depending on who is requesting the interview. Internal Affairs? Employee Representative? Public Defender Investigator? Workers Comp investigator? City Attorney? Each situation requires some thought about potential ramifications of each request and some techniques to reduce possible negative consequences. Let’s consider some common situations which might arise.
Internal Affairs: That email that you might receive ordering you to an Internal Affairs interview is probably the most common situation that you will experience. Yes, you must submit to the interview. The end result of refusing is a charge of insubordination and probable termination.
If you are in danger of “punitive action,” the Public Safety Officers Procedural Bill of Rights Act (POBRA) at section 3303 of the Government Code lays down a series of rights that you must be afforded such as being conducted at a reasonable hour, the right to tape record the interrogation, the right to representation, and other requirements and exceptions to those requirements. (See 3303 for details).
The MOU also provides the right to representation under Article 10.1 which states “The right to representation during the investigation and adjudication of misconduct, categorical use of force investigation, an administrative appeal and grievance presentation is not to be denied to any employee. Any interview of an employee in connection with an investigation that the employee reasonably believes may result in disciplinary action against the employee will entitle the employee to a representative of the employee’s choice. The employee has the right to choose a representative, subject only to reasonable consideration of the representative’s availability and the urgency of the investigation. The representative may be a Department employee from the rank of lieutenant or below, or legal counsel (at the employee’s expense), or both.”
Occasionally, an issue arises over whether a “witness” officer is entitled to representation on the grounds that the officer is not accused and therefore has no reasonable belief of potential punitive action. The League believes that any officer being interviewed in a personnel investigation is in such danger. For example, if the witness officer witnessed what the Department considers to be misconduct and failed to immediately report it, the officer is now an accused and, of course, any inconsistent statement with previous reports or statements can be viewed as false statements. Any interview is a potential mine field. The Department recognizes this and in Bureau Order No. 01-15 of June 23, 2015, negotiated by the League, it states “Although the right to representation is technically only afforded to investigations where the interrogation focuses on matters that are likely to result in punitive action, if a “witness” employee requests a representative, investigators should allow him/her to have a representative present. Under no circumstances should an accused employee be discouraged from seeking representation or from having the representative present at all times, or be told that he/she doesn’t need a representative, or that he/she doesn’t have a right to a representative.” This order lays out reasonable rules to be followed by both officers and investigators to reduce friction during the personnel complaint investigation process.
The advice for personnel complaint investigations involves two rules that should never be violated. Take a League attorney or employee rep with you and always be ordered to cooperate with the investigation. Reading the League Card provides you with protection that prevents the statement from being used against you in a criminal investigation. Why take a chance?
Employee Rep Interview: The other side of the IA interview may be an interview from an accused officer’s representative. Just as the Department interviews officers to put a case together, a rep needs to interview officers to evaluate the evidence against the officer when preparing for a hearing. It’s only fair and it is part of the MOU. Article 10.6 D says, “All Department employees have an obligation to cooperate with other Department employees or any other civilian representatives designated by the League who are representatives for the employee or the Department and to answer their questions responsively.”
The reason this was negotiated by the League was to ensure that Internal Affairs and officer representatives were on a level playing field when it comes to the gathering of information from officer witnesses. If officers are required to answer IA questions, why shouldn’t the same be true for officer representatives who are also trying to determine what the facts are in their cases and prepare for their hearings. It goes without saying that both IA and officer representatives must be professional and respectful in their interviews.
As with any personnel complaint interview, whether from the Department or from the officer’s representative, you are allowed to have your own representative if you wish.
Public Defender Investigator interview: The Public Defender has an investigation section that assists the Public Defender in investigating cases where the Public Defender is representing a suspect in a criminal case. It is not uncommon for an officer to be contacted by the PD investigator for an interview. It should be noted that if you have information that a suspect is not guilty, you have the obligation to bring that to the attention of the District Attorney. No one wants an innocent person to go to jail. However, that is not what all too often is really the goal of the interview.
You, as an officer, and the District Attorney both have a duty to disclose any information under Brady that may be helpful to the defense. On the other hand, the Public Defender investigator does not have a duty to disclose any information that might be helpful to convict the defendant. Typically, the Public Defender investigator is looking for information that can be used to attack the credibility of officer witnesses who will be testifying against the officer. Often it has to do with previous complaints against officers. The defendant has other mechanisms to obtain this sort of information such as Pitchess Motions or subpoenas to examine officers in court.
You have no duty to submit to these investigations unless ordered to do so by the Department which does not happen. Your decision to participate is completely voluntary. Be aware that your answers can be used for any purposes. Because your participation is voluntary there is no right to representation from ORS or the League Legal Plan.
Workers Comp investigator: When an officer files a Workers Comp claim for an injury on duty, it can result in an investigation by the City. This may result in a request for an interview by private investigators hired by the City to interview witnesses that may have knowledge of the injury. This presented the question of whether non-officer investigators could compel an officer to submit to an interview. This was answered by Special Order No. 37 in 2010. It specifically specifies that there is a duty to cooperate with private investigators hired by the City’s legal representatives upon pain of being charged with insubordination.
You are entitled to representation during the interrogation.
City Attorney interview: Occasionally an officer ends up being involved in a civil case being defended by the City Attorney. It may be an outside person suing the Department or it may be another LAPD officer suing the Department. The Deputy City Attorney may want to interview the officer and notifies the officer to appear. LAPD Risk Management officers are also typically there.
The first thing that you should determine is a direct question to the Deputy City Attorney (DCA) to determine if the DCA is representing you. Are you being interviewed as a client? If the answer is yes, you want to attend and cooperate because if you do not, the City can refuse to represent you. If you are a client, you are being represented by the DCA and your communications are protected by the attorney-client privilege.
If the answer is no, then you are being interviewed as a witness. Maybe a friendly witness, maybe not, depending on your knowledge of the case. You are not covered by the attorney/client privilege.
Must you cooperate? Yes. Under the previously mentioned Special Order 37, you must cooperate with DCA’s and their investigators. You are entitled to bring representation to the meeting.
Remember: You have said it a hundred times to others. “Anything you say can and will be used against you.” Under the current anti-law enforcement atmosphere, this now also applies to you. Take advantage of any protections that are available. That includes an attorney if you are a member of the League’s Legal Plan. It’s the best way to…
Be legally careful out there.
