POBAR COPY Flashcards
POBAR ACT does not protect a Police Officer from criminal investigations from…
Other Agencies
3311 Mutual Aid Agreements
True or False, The Chief can order an officer to cooperate with other agencies in criminal investigations.
True, failure to comply is insubordination.
3311 Mutual Aid Agreements
What is “punitive action”
Any action that may lead to dismissal, demotion, suspension, reduction is salary, written reprimand or transfer for purposes of punishment.
What is the anti-huddling policy?
Where agencies can impose limits on the right to consult with counsel.
True or False, there is union representative and officer privilege when it comes to criminal matters.
False, a union representative can be compelled to disclose what you have discussed to them in criminal or potential criminal matters
When should the Lybarger warning be given?
A) it appears that the officer may be charged with a criminal offense as a result of misconduct or B) The officer refuses to answer questions on the ground that the answers may be self-incriminating, the questioning must be preceded by a Lybarger warning.
True or False, statements made during the administration interview cannot be used for criminal prosecution?
True
Who has a stautory right to recieve a copy of a Police Officer’s interview statements in a administrative interview.
District Attorney
Who can subpoena an Officer’s statements from a administrative interview?
A grand jury
Does receipt of a coerced statement violate an officer’s 5th amendment right?
No, but the statement may not be used for evidentiary purposes
Coerced statements under duress, or threat of punitive action cannot be used in any subsequent civil proceedings except….
When the department is seeking civil sanctions against the Police Officer, when the officer introduces his statement in a civil action arising out of a disciplinary action, when the statement is used to impeach the officers testimony or when the officer is deceased.
3303 (f) FUTURE CIVIL
If prior to or during the interrogation, it is deemed a Police Officer may be charged with a crime, he or she shall be…
Mirandized
3303 (h)
Officers had the right to receive notice of adverse comments being entered into their personnel file and have how many days to write a response?
30 days
3306 Personnel Files (Response to Adverse Comments
An officer can have access to their own personnel file. If there are mistakes what can the officer do to correct them?
In writing request the errors be fixed or deleted.
3306.5 Personnel Files (Inspection).
How long does the department have to respond to an officer’s request for a correction to their personnel file?
30 days
3306.5 Personnel Files (Inspection).
What is a “Pitchess Motion”
Allows the department to disclose previously filed IA’s against the officer.
True or False, discovery of Police Department personnel records for officers not involved in the incident is allowed under some exceptions
False
Under the California Public Records Act (CPRA) what information is available to the public about any officer
- Police Officer’s name 2. Employment Agency 3. Employment dates
A person filing a Pitchess Motion needs to have some idea of the kind of information that they are looking for and …
That information would help the complainant’s defense or support the claim of officer misconduct.
Does the department have to disclose the entire personnel file?
No, only parts that are “potentially relevant”
The courts shall exclude form discovery any complaints that are more than how many years old?
5 years old
True or False, Officers have a right to sue for improper disclosure of information from a personnel file.
False
Investigations of misconduct that occurred on or after 1/1/1998 must be completed within…
1 year
What are the 8 exceptions to the 1 year rule regarding investigations of misconduct?
- Criminal investigation
- Subject Officer Waives the 1 year requirement
- Multiple agencies involved
- Multiple Officers involved
- Employee is incapacitated or unavailable
- Civil Suit where the PO is named
- Complaintant is a criminal defendant in criminal litigation
- Allegation of Worker’s Comp fraud
3304(d)(2) Punitive Action (Limitation Period Exceptions)
When can an a investigation of misconduct be re-opened after 1 year has passed?
When significant new evidence has been discovered”
3304(g) Punitive Action (Reopening of Investigation).
How long does the agency have to give an officer in writing the officers discipline and the start date of that discipline?
30 days
3304(f) Punitive Action (Notification Period).
Who does not have a right to appeal a disciplinary decision?
Probationary Officers
3301 defines who is covered under Pobar
A probationary officer released for misconduct that he denies is entitled to a what?
“Liberty interest” hearing under the Due Process Clause
True or False, Due process does not apply when property is at stake
False, it does apply
When may an officer sue without using the grievance procedure?
If the department violates POBAR
When can an officer receive backpay?
Department violated POBAR or a internal policy that DOES qualify for backpay
What is the penalty for the department maliciously violating POBAR?
$25,000 and attorney fees
3309.5 Enforcement of this Act
Who must sign off on any adverse comments in a personnel file?
The officer who the file belongs too
3305 Personnel Files (Adverse Comments).
True or False, If an officer refuses to take a polygraph test then the department can make note of it and mention the refuse in court
False, department can’t take note of it or mention it on court
3307 Lie Detector
What is the civil penalty for anyone who has been served with a cease and desist order?
After 2 working days from being served have passed, the civil penalty is $500 a day everyday
3307.5 Privacy Rights of Public Safety Officers.
Who has jurisdiction over any POBAR violations made by a PD
A Superior Court
3309.5 Enforcement of this Act
Any person who knowingly alters, tampers with, conceals, or destroys relevant evidence in any disciplinary proceeding against a public safety officer, for the purpose of harming that officer is guilty of a….
misdemeanor
What penal code says that agencies must have a procedure and policy on how to deal with citizen’s complaints?
Penal Code 832.5
Complaints shall be retained for how long?
5 years
Information in an officer’s personnel file can only be accessed by discovery during court proceedings, except…
In cases of grand jury
A department shall provide written notification to the complaining party of the disposition of the complaint within…
30 days
what is known as the public safety officers procedural bill of rights act. what section.
3300
what defines who is covered under Pobar
3301
what act covers the Political activity protection given to an officer.
3302 Political Activity
3302 (a) says what?
the Officer cannot be prohibited from engaging or be coarse or required to engage in political activity.
3302 (b) says what?
officer cannot the be prohibited from serving on a school board.
3303 (a) says what
Interrogation should be done on duty during normal work hours for the officer in question.
A is for Hay are you working right now?
what act says says the public safety officer under investigation shall be informed prior to the interrogation of the rank name and command of the officer in charge of the interrogation. The officer also has the right to know the names of all other persons to be present during the interrogation no more than two people may ask questions.
B is for both of us.
3303 b
3303 (c) says what?
public safety officer under investigation shall be informed of the nature of the investigation prior to the interrogation.
C is for Charges
3303 (d) says what
The interrogation session shall be for a reasonable period taken in to consider the gravity and complexity of the issue being investigated the person being investigated shall be allowed to attend to his or her own personal physical necessities.
D is for dookie.
3303 e says what
Public safety office under investigation shall not be subject to offensive language or threats with punitive action except that the officer’s refusal to respond to questions or submit to interrogation shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action.
E is for easy.
3303 f says what
no statement made during interrogation by the public safety officer under duress coercion or threat of punitive action shall be admissible in any subsequent civil proceeding.
F is for Future civil issues.
3303 g says what
The interrogation will be recorded and if there are any other interrogations the officer has a right to a transcript of the recording prior to a second interview.
G is for Give up the transcripts.
3303 h says what
if during the interrogation it is deemed that the public safety officer may be charged with a criminal offense he or she shall be immediately informed of his or her constitutional rights.
H is for handcuffs.
3303 I says what
The Publix safety officer has a right to be repped by someone not part of the investigation.
I is for I’m the only one in the room under investigation.
3303 j says what
no public safety officer shall be loaned or temporary reassigned to a location or duty assignment if a sworn member of his or her department would not normally be sent to that location or would not normally be given that duty assignment under similar circumstances.
J is for Job assignment.
3303 a - j short cuts
A-Hay are you working. B-Both of us will interview you. C-Charges are. D-Dookie. E-Easy. F-Future civil issues. G- Give up the transcripts. H-Handcuffs. I-I not we. J-Job assignment.
3304 covers what
Punitive Action
3304 a covers what
A Public Safety Officer shall not be subjected to or threatened with punitive action, or denied promotion, because of the lawful exercise of rights granted under this Act, or under any administrative grievance procedure
3304 b says what
Punitive action or denial of promotion on grounds other than merit shall not be undertaken against any non-probationary Public Safety Officer without providing the Public Safety Officer with an opportunity for administrative appeal. B is for cant be placed on the Bad list.
3304 c says what
A Police Chief shall not be removed without written notice and an opportunity for administrative appeal. Nothing in this subdivision shall be construed to create a property interest, if one does not otherwise exist by rule of law, in the job of Police Chief. C is for Chief.
3304 d 1 says what
Investigation must be completed, and subject notified of proposed disciplinary action within one year of discovery of the act, omission, or other misconduct. D1 is for me.
3304 d 2 says what
If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending, shall toll the one-year period. The eight, eight exception to the one year rule are .
3304 d 2 The eight, exception to the one-year rule are what?
1 Criminal investigation. And 2 criminal litigation. 3. Multiple agencies involved. And 4.Multiple Officers involved. 5. Officer Waives the 1-year requirement. 6. Employee is incapacitated or unavailable. 7. Civil Suit. 8. Allegation of Worker’s Comp fraud.
3304 e says what
Where a pre-disciplinary response or grievance procedure is required or utilized, the time for this response or procedure shall not be governed or limited by this chapter.
3304 f says what
If the Public Agency decides to impose discipline, that Agency shall notify the Public Safety Officer, in writing, of its decision to impose discipline, including the date that the discipline will be imposed, within 30 days of the decision, except where the Public Safety Officer is unavailable for discipline.
3304 g says what
An investigation may be reopened after the one-year limitations period if both the following circumstances exist. 1. Significant new evidence has been discovered that is likely to affect the outcome of the investigation; AND 2. Either, the evidence could not reasonably have been discovered in the normal course of investigation without resorting to extraordinary measures by the agency, OR the evidence resulted from the Public Safety Officer’s pre-disciplinary response or procedure.
3304 h says what
30-Day Notice. For those members listed in subdivision (a) of Section 830.2 of the Penal Code, the 30-day time period provided for in subdivision (f) shall not commence with the service of a preliminary notice of adverse action, should the public agency elect to provide the public safety officer with such a notice.
3304.5 says what
Administrative Appeals. The Skelly court held that a civil service or public sector employee has a property right to his job and could not be deprived of it without due process. Although called a hearing, a Skelly hearing is better described as a pre-disciplinary due process meeting.
3305 says what
A Public Safety Officer shall not have any adverse comments entered in a personnel file (or any other file used for personnel purposes), without the Public Safety Officer having first read and signed the instrument containing the adverse comment indicating he or she is aware of the comment. If the Public Safety Officer has read the instrument and refuses to sign it, that fact shall be noted on the document, signed or initiated by the Public Safety Officer, and then the entry may be made.
3305 covers what in general
Brady list
3305.5(a) and (b)
Prohibition against punitive actions or denial of promotions because officers name place on Brady list. But can be punished for whatever they did to get on the Brady list.
3305.5(c)-(e)
No evidence that a Public Safety Officer’s name has been placed on a Brady list, or is otherwise subject to disclosure under Brady v. Maryland, shall be introduced in any administrative appeal or punitive action unless the act or omission giving rise to the Officer’s name being placed on the Brady List is found to be subject to some form of punitive action.
3306 says what
A Public Safety Officer shall have 30 days within which to file a written response to any adverse comment entered in his or her personnel file. The written response shall be attached to, and shall accompany, the adverse comment.
3306.5 says what
If a Public Safety Officer believes that any material is mistakenly or unlawfully placed in their personnel file, the Public Safety Officer may request, in writing, that the mistaken or unlawful portion be corrected or deleted. Within 30 calendar days of the request, the employer shall either grant the request or notify the Public Safety Officer of the refusal to grant the request.
3307 lie detector
A Public Safety Officer cannot be compelled to submit to a lie detector test, and refusal to submit cannot be noted or used against the Public Safety Officer.
3307.5 says what
After the notification to cease and desist, the officer, a district attorney, or a United States Attorney may seek an injunction prohibiting any official or unofficial use by the department or other public agency on the Internet of his or her photograph or identity as a public safety officer. The court may impose a civil penalty in an amount not to exceed five hundred dollars ($500) per day commencing two working days after the date of receipt of the notification to cease and desist.
3308 says what
A Public Safety Officer cannot be required or requested to disclose his or her assets, income, or debts, unless such information is obtained or required under state law or proper legal procedure, AND EITHER tends to indicate a conflict of interest with respect to the performance of his official duties, OR is necessary for the employing agency to determine the desirability of assigning the Public Safety Officer to a specialized unit where there is a strong possibility that bribes or other improper inducements may be offered.
3309 says what
A Public Agency employer cannot search a Public Safety Officer’s locker or other space for storage unless he or she is present, or consents, or has been notified that a search will be conducted, or a valid search warrant has been obtained.
3309.5
It is unlawful for any public safety department to deny or refuse any Public Safety Officer the rights and protections of this Act, and a Public Safety Officer or association may file a lawsuit in superior court alleging violations of this Act. the department shall be liable for a civil penalty of up to $25,000, for each violation
3310 says what
Any Public Agency which has adopted, through action of its governing body or its official designee, any procedure which at a minimum provides to Peace Officers the same rights or protections as provided pursuant to this chapter shall not be subject to this chapter with regard to such a procedure.
3311 says what
Mutual Aid Agreements/Jurisdiction. Nothing in this chapter shall in any way be construed to limit the use of any public safety agency or any public safety officer in the fulfilling of mutual aid agreements with other jurisdictions or agencies, nor shall this chapter be construed in any way to limit any jurisdictional or interagency cooperation under any circumstances where such activity is deemed necessary or desirable by the jurisdictions or the agencies involved.
3312 says what
Display of American Flag on Uniform
3313 says what
talks about the Modification/ Amendments of POBAR
