Tuesday, September 11, 2018
Court of Appeal:
POBRA Right Breached by Deterring Request for Representative
Opinion Says Burbank Police Detective Was Entitled to Be Accompanied to Interview Although Was Not Under Suspicion of Misconduct and Did Not Expressly Invoke the Right
By a MetNews Staff Writer
The right under the Public Safety Officers Procedural Bill of Rights Act for an officer to have a representative present during questioning in connection with a disciplinary investigation is violated even where the investigation does not center on conduct of that officer and no request for a representative is made, the Court of Appeal for this district has held.
Writing for Div. Three, Justice Anne H. Egerton disagreed with the conclusion reached by Los Angeles Superior Court Judge Joanne O’Donnell—who denied a petition for a writ of administrative mandamus—that POBRA rights of then-Burbank Police Department Detective Pete Allen did not kick in because he was not the subject of the investigation. She agreed, however, that Allen’s untruthful statements during the interview were properly admitted at a later disciplinary hearing which led to termination of his employment.
At issue was an interpretation of Government Code §3303i, which provides:
“[W]henever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation.”
O’Donnell interpreted the language to require the opportunity for representation only where the interviewer knows that answers by the person being questioned “may lead to punitive action against him/her” and the presence of as representative is requested.
Egerton wrote, in an opinion filed Friday:
“Contrary to the court’s construction, the right to representation is not triggered by the interviewer’s ‘knowledge that the interviewee is likely to make statements during the interview that may lead to punitive action.’ (Italics added.) Rather, as the statute explicitly states, the right is triggered by whether ‘an interrogation focuses on matters that are likely to result in punitive action.’ (§3303, subd. (i), italics added.) In other words, the right is triggered by the questions the investigator will ask—that is, whether those questions will focus on matters that, if proven, would lead to punitive action—not on the responses the interviewee is expected to make. This is the only construction that is both consistent with the statutory text and workable in practice.”
Although the opinion was not certified for publication, Egerton said no case has previously considered whether the right to presence of a representation is waived if not expressly invoked.
“We conclude that where, as here, the right to representation is triggered, a public safety department interferes with POBRA by communicating to an officer that his or her rights do not apply, and this constitutes a violation regardless of whether the officer ever requests representation.”
Egerton noted that in the same email summoning Allen for an interview, it was indicated that he had no right to a representative present, which was repeated at the start of the interview. Allen was told:
“Detective Allen, you’re not the focus of any allegations of misconduct and are being interviewed strictly as a witness. As such, employee rights regarding administrative interviews do not apply. I expect you to answer my questions in a truthful and accurate manner, in compliance with the duty manual.”
These admonishments, Egerton said, understandably deterred Allen from invoking his right under POBRA.
“We hold that, under these circumstances, where an interview is reasonably certain to “focus[ ] on matters that are likely to result in punitive action” (§3303, subd. (i)), an employing public safety department interferes with an officer’s rights under POBRA by communicating to the officer that his or her rights do not apply,” the jurist said. “And this constitutes a violation regardless of whether the officer requests representation or not.”
Exclusion Not Warranted
She said O’Donnell “reasonably concluded that suppression of Allen’s dishonest statements was not warranted, as Allen was not prejudiced by the lack of representation.”
Nonetheless, there was a reversal and a remand. Egerton explained:
“Although we find the trial court’s suppression analysis was sound and supported by the evidence, the POBRA violation statutorily obligates the court to ‘render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature.’ (§3309.5, subd. (d)(1).) In addition, the trial court has discretion to award a civil penalty and damages if the public safety department maliciously violated POBRA. (§3309.5, subd. (e).) Accordingly, we must reverse the judgment and remand the matter to the trial court with directions to issue appropriate relief consistent with the principles expressed herein.”
Allen was interviewed in connection with police conduct toward robbery suspects. He had been lead investigator in connection with a December 2007 robbery, and another then-Burbank detective, Angelo Dahlia, was assigned as his partner.
Members of Mara Salvatrucha—the Los Angeles-founded El Salvadoran criminal gang better known as MS-13—had taken over the Porto’s Bakery in Burbank with the help of at least two employees of the Cuban eatery. After restraining several employees, the robbers forced a manager to open the safe and absconded with around $11,000.
During the investigation, Dahlia told Allen that he had seen then-Burbank Police Department Lieutenant Omar Rodriguez pull his gun on an in-custody suspect in the case.
According to Dahlia, he was in the hallway of the detective bureau and saw Rodriguez with the suspect, a boyfriend of one of the Porto’s employees thought to have been in league with the robbers. The suspect was later determined to have not been involved with the caper, and no charges were pressed against him.
Dahlia claimed Rodriguez grabbed the suspect by the throat and slammed him into the wall. He drew his service pistol and, putting it under the suspect’s eye, yelled “how does it feel to have a gun in your face…?”
The suspect later confirmed this account of the incident when questioned by internal affairs investigator Lieutenant J.J. Puglisi.
The case is Allen v. City of Burbank, B278024.
Michael P. Stone, Muna Busailah, and Robert Rabe of Stone Busailah in Pasadena were counsel for Allen. Burbank Assistant City Attorney Charmaine Jackson represented the defendants.
Ten members of the Burbank Police Department were fired in 2010 in connection with the 2007 robbery investigation. Deputy Chief Bill Taylor, whom Egerton described as “the principal most responsible for denying Allen his right to representation,” was one of them.
He won a jury verdict of nearly $1.3 million in 2012 in a lawsuit against Burbank. Others obtained lesser sums.
In 2009, Dahlia was put on administrative leave, and sued the city in the U.S. District Court for the Central District of California for allegedly retaliating against him for speaking against Rodriguez in the investigation. He obtained a $1.4 million settlement from the city in 2014, and though he did not regain his job he was also afforded retiree status as part of the agreement.
The District Attorney’s Office declined to prosecute Rodriguez for the alleged assault, citing what it saw as lack of credibility on the part of Dahlia and another witness.
Rodriguez was the plaintiff in two lawsuits against the city. A 2009 racial discrimination case filed in Los Angeles Superior Court was brought to an end by Div. Four of this district’s Court of Appeal in 2012 in affirming O’Donnell’s 2011 grant of summary judgment in favor of the city, and a 2011 action in the U.S. District Court for the Central District of California resulted in a 2012 settlement.
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