In Ellins v. City of Sierra Madre, the second of two published decisions issued on January 28, 2016 that were filed and argued by the Law Office of Michael A. Morguess, the Second Appellate District clarified interrogation rights under the Public Safety Officers Procedural Bill of Rights Act. Under Government Code section 3303(c), a public safety officer under investigation “shall be informed of the nature of the investigation prior to any interrogation.” The Court confronted for the first time the question of how much time “prior to” an interrogation must the officer be told of the nature of the investigation. Ellins was notified of an interrogation but was not told of the nature of the investigation until he arrived at the interrogation; however, he was accompanied by his attorney representative. Ellins was also notified, when he arrived, that the City held out on the nature of the investigation because it was concerned for the safety of the complainant, although the Chief specifically told Ellins that although she was not ordering him not to contact the complainant, she advised him it was in his best interest not to do so—an odd admonition given that officers are routinely ordered not to discuss the matter with any one related to the investigation. Ellins and his attorney conferred and then requested that the interrogation be rescheduled because the attorney believed that on such short notice, she could no advise Ellins concerning the matter. The City refused and Ellins departed. The City charged him with insubordination.

The City argued that under existing case law (Heinrichs v. County of Orange), so long as the notice temporally preceded the interrogation, even if at the last minute, it has given sufficient notice. The City also argued that there is no specific right to consult with a representative or attorney prior to any such questioning, only that the representative or attorney be present during the interrogation. Ellins argued that under relevant National Labor Relations Act law and the language of the Bill of Rights Act, the notice of the nature of the investigation must be sufficient so as to allow the peace officer to determine whether he or she needs a representative or attorney, to allow time to secure that representative or attorney if he or she has not yet done so, and to allow time for meaningful consultation with the representative prior to the interrogation. Additionally, since under Section 3303(i) the representative cannot be someone who is also subject to the same investigation, Ellins argued that without advance notice of the nature of the investigation, the peace officer will not be able to determine whether his or her representative is subject to the same investigation. Finally, Ellins argued that if not notified of the nature of the interrogation he or she would not know if a representative was needed, and a game would ensue where the peace officer could just arrive at the interrogation unrepresented; once notified of the nature of the investigation the peace officer could halt the interrogation and claim the right to a representative, which would force an agency to reschedule the interrogation anyway to allow the officer a reasonable time to secure a representative of his or her choice.

Siding with Ellins on the law, the Court of Appeal rejected the City’s literal and inflexible interpretation of the notification and consultation rights. The Court stated:

“We hold that section 3303, subdivision (c) requires an officer be informed of the nature of the investigation “reasonably prior to” the interrogation—that is, with enough time for the officer to meaningfully consult with any representative he elects to have present. The time necessary to do so may depend upon whether the officer has already retained a representative (or instead needs time to secure one) and upon the nature of the allegations; their complexity; and, if they are unrelated, their number. However, an employing department with reason to believe that providing this information might risk the safety of interested parties or the integrity of evidence in the officer’s control may delay the notice until the time scheduled for interrogation as long as it thereafter grants sufficient time for consultation.”

The Court determined that under the specific facts here, the City met the notification requirements, and only because Ellins happened to arrive ready with an attorney representative and was afforded sufficient time to consult with his counsel. However, the Court cautioned that absent some urgent need, a public safety department cannot wait until the officer arrives to notify him or her of the nature to the investigation. This will also prevent a common occurrence during interrogations: in the middle of an interrogation, the investigator may ask questions about subjects for which the officer has not been notified. Frequently the investigator demands, under threat of insubordination, a preliminary response before permitting the peace officer to consult with his or her representative. This case has shut the door on such mischief.  This is a long overdue decision on this issue.

The case is Ellins v. City of Sierra Madre, (2016)—Cal. App. 4th —.