Friday, September 12, 2003
Page 3
C.A. Rules Officer’s Right to Representative of Choice Not Absolute
By DAVID WATSON, Staff Writer
A peace officer’s right under the Public Safety Officers Procedural Bill of Rights Act to have a representative of his or her choice present at a disciplinary investigative interrogation is not absolute, the Fourth District Court of Appeal ruled yesterday.
The right, codified at Government Code Sec. 3303(i), must be construed to include a reasonableness requirement, a panel of Div. Two held in overturning a permanent injunction issued by retired San Bernardino Superior Court Judge Ben T. Kayashima, sitting on assignment.
Writing for the court, Justice Thomas E. Hollenhorst said a reasonableness requirement was needed to avoid absurd consequences.
“In other words,” he explained, “an officer cannot say ‘I want Antonin Scalia for my representative and, since he is unavailable, you cannot interrogate me.’”
The justice added:
“We are confident that the Legislature did not intend to allow the officer to so easily escape all interrogations.”
Kayashima ruled the language of the statute, providing that an officer subjected to interrogation which could lead to discipline “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,” was unambiguous. The trial judge issued a preliminary injunction, later made permanent to facilitate appeal, barring the Upland Police Department from interrogating Officer Nikola Kac without his chosen representative present.
The department was investigating Kac, the president of the Upland Police Officers Association, over allegations he had conducted association business while on duty, and also looking into a use of force incident. Kac named the association’s counsel, Michael Lackie of Lackie & Dammeier, as his representative.
Lackie got the interrogation postponed and also warned the department that he might have a problem with the new time since he had a hearing earlier in the day in Burbank. When Lackie’s secretary called to advise the investigating officer that the lawyer was tied up in Burbank and would be late, the officer insisted on questioning Kac at the predetermined time anyway.
Hollenhorst said it was unnecessary to decide if the law was ambiguous. Even if it was not, it had to be construed to avoid absurdity, the justice said.
A “literal application” of Kayashima’s injunction “leads to the conclusion that an officer could prevent any interrogation by simply choosing a representative who would never be available,” Hollenhorst observed.
The justice pointed out that Sec. 3303(a) establishes criteria for when interrogations can take place. “Nothing in subdivision (a) suggests that interrogations may be repeatedly postponed, or that the time chosen for the interrogation is subject to the schedule of the chosen representative, particularly when, as in this case, the interrogation of the officer was set at a mutually agreeable time,” he declared.
Hollenhorst noted that Kac and the association had not sought on appeal to argue that the right provided by Sec. 3303(i) was absolute, instead contending that Kayashima’s injunction embodied a finding that under the circumstances the delay sought by Kac to allow his attorney to be present was reasonable. But Kayashima’s ruling was not amenable to that interpretation, Hollenhorst said.
“The trial court’s decision was based on the declarations and documents submitted to support and oppose the request for a preliminary injunction,” the justice wrote. “In deciding the request for a preliminary injunction, the trial court did not evaluate the reasonableness of the Department’s actions but only decided that the statute is unambiguous and that it gives the officer the right to representation.”
He declared:
“[W]e fully support the officer’s right to be represented by a person of his or her choice during an interrogation. We only hold that such a right is not unlimited. The officer must choose a representative who is reasonably available to represent the officer, and who is physically able to represent the officer at the reasonably scheduled interrogation. But it is the officer’s responsibility to secure the attendance of his or her chosen representative at the interrogation—.This is particularly true when, as here, the interrogation has already been scheduled at a mutually agreeable time. Neither the Department nor the officer should be expected to change their schedules simply to accommodate a busy attorney, particularly since other members of the firm could have represented the officer at the scheduled questioning.”
Justices James D. Ward and Barton C. Gaut concurred.
Peter J. Brown, Nate Kowalski and J. Scott Tiedemann of Liebert Cassidy Whitmore in Los Angeles represented Upland. Lackie & Dammeier represented Kac and the association.
The case is Upland Police Officers Association v. City of Upland, E032607.
Copyright 2003, Metropolitan News Company