Ellins v. City of Sierra Madre

Filed 1/28/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JOHN ELLINS, B261968
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS142699)
v.
CITY OF SIERRA MADRE,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Robert H. O’Brien, Judge. Affirmed.
Michael A. Morguess for Plaintiff and Appellant.
Liebert Cassidy Whitmore, Laura J. Kalty and Danny Y. Yoo, for Defendant and
Respondent.
******
The Police Officer’s Bill of Rights (POBRA) provides that a “public safety officer
under investigation” by his or her “employing public safety department[] that could lead
to punitive action” “shall be informed of the nature of the investigation prior to any
interrogation.” (Gov. Code, § 3303, subd. (c), italics added.)1 We now confront the
question: How much “prior to” any interrogation must the officer be given that
information? We conclude that a public safety officer must be informed of the “nature of
the investigation” reasonably prior to any interrogation. Notice is “reasonably prior to”
an interrogation if it grants the officer sufficient time to meaningfully consult with any
“representative” he or she elects to have present during the interview, although the
employing department may postpone disclosure until the scheduled time of the
interview—and briefly postpone the commencement of the interview to allow time for
consultation—if it has reason to believe that earlier disclosure would jeopardize the
safety of any interested parties or the integrity of evidence under the officer’s control.
Because the undisputed facts indicate that the officer in this case had sufficient time to
meaningfully consult with his representative, we affirm the trial court’s order denying the
officer’s writ petition seeking to overturn his dismissal due in part to his insubordination
in refusing to submit to an interrogation.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff-appellant John Ellins (Ellins) joined the City of Sierra Madre Police
Department (Department) in 1999. As a peace officer, Ellins had access to the “CLETS
database.” CLETS is short for “California Law Enforcement Telecommunications
System”; the CLETS database “is a confidential law enforcement database that allows
police officers to access [several integrated databases containing] an individual’s criminal
history, as well as driver’s license and vehicle registration information.” (Richardson v.
City & County of San Francisco Police Com. (2013) 214 Cal. App. 4th 671, 674, fn. 1.)
When Ellins joined the Department, he was informed that use of the CLETS database for
1 Unless otherwise indicated, all further statutory references are to the Government
Code.
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any reason other than official business was improper and grounds for immediate
dismissal.
In May 2010, Ellins made 12 inquiries of the CLETS database, which accessed 43
different subdatabases. The subject of the inquiries was Ellins’ ex-girlfriend and
members of her family. Ellins had no official reason to make those inquiries.
In the summer of 2010, the Department opened an investigation into Ellins’ use of
the CLETS database after receiving a letter from the ex-girlfriend, who reported that
Ellins told her he had tracked her down in New York with information from the database.
The Department hired an outside consultant to run the investigation.
In September 2010, the Department formally notified Ellins that “[a]n
administrative investigation is currently being conducted regarding an alleged abuse of
your peace officer powers and duties.” The notice provided no further details on the
nature of that alleged abuse. Ellins retained an attorney as his representative.
After a few minor scheduling delays, the consultant, Ellins, and his counsel agreed
that the consultant would interview Ellins on October 13, 2010. Just minutes before the
interview was to begin, the consultant notified Ellins—orally and in writing—that he was
alleged “in May 2010 [to have] inappropriately accessed the [CLETS database] and made
numerous inquiries regarding [his] former girlfriend . . . and her relatives.” The
consultant then gave Ellins and his representative an hour to discuss the charges in
private before commencing the interview; this was the amount of time Ellins’
representative had requested. However, after 25 minutes, Ellins told the consultant he
refused to participate in the interview on the advice of his representative. Ellins’
commanding officer appeared and directly ordered Ellins to sit for the interview; Ellins
still refused.
The Department rescheduled the interview three more times (on October 14, 2010;
November 15, 2010; and November 16, 2010), but Ellins did not appear for medical
reasons. In December 2010, the Department issued Ellins a Notice of Intent to Terminate
him on three independent grounds: (1) making unauthorized searches of the CLETS
database; (2) engaging in insubordination on October 13, 2010 by disobeying his
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commanding officer’s direct order to submit to an interrogation; and (3) engaging in
insubordination on October 14, 2010 by disobeying his commanding officer’s direct
order to submit to an interrogation. The Department terminated him in February 2011.
Ellins appealed his termination to a hearing officer. In December 2012, the
hearing officer sustained the termination order. The officer concluded that sufficient
evidence supported the Department’s findings that Ellins had accessed the CLETS
database without authorization and was insubordinate for not submitting to the October
13, 2010 interview. The officer did not affirm the Department’s second finding of
insubordination for refusal to submit to the October 14, 2010 interview because Ellins
arguably had a medical excuse. The officer affirmed the penalty of dismissal after
weighing Ellins’ service record against its current findings of misconduct and two prior
findings of misconduct.
In January 2013, the City of Sierra Madre adopted the hearing officer’s opinion as
its own.
Ellins petitioned the Los Angeles County Superior Court for a writ of mandate to
overturn his dismissal. In addition to arguing the insufficiency of the evidence and
raising constitutional challenges, Ellins challenged the timing of the Department’s notice
of the nature of the investigation under section 3303, subdivision (c).
In November 2014, the trial court denied Ellins’ petition. After independently
reviewing the administrative record, the court found sufficient evidence to sustain the
city’s findings of unauthorized access to the CLETS database and insubordination on
October 13, 2010. The court also rejected Ellins’ section 3303, subdivision (c)-based
challenge. The court reasoned that the statute “merely states that notice” “of the specific
charges against [an officer]” “must be given ‘prior to’ any interrogation” and noted that
Ellins had “failed to direct the [c]ourt to any authority that establishes how long before an
interrogation” that notice must be given.
Following the trial court’s entry of judgment, Ellins timely appealed.
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DISCUSSION
Ellins’ sole contention on appeal is that his termination for insubordination is
invalid because he had a valid reason for refusing to submit to the October 13, 2010
interrogation—namely, that the Department violated POBRA by not properly advising
him of the nature of the investigation “prior to” his interrogation. The validity of this
claim turns on two questions: (1) what does section 3303, subdivision (c) mean when it
requires an employing department to inform a public safety officer of the nature of the
investigation “prior to” any interrogation; and (2) did the Department in this case satisfy
that standard? The first question is one of statutory interpretation, and the second is one
of sufficiency of the evidence; we review the first de novo (Shafer v. Los Angeles County
Sheriff’s Department (2003) 106 Cal. App. 4th 1388, 1396), and the second for substantial
evidence if the facts are disputed and de novo if the facts are undisputed (Westchester
Secondary Charter School v. Los Angeles Unified School Dist. (2015) 237 Cal. App. 4th
1226, 1236).
I. Meaning of section 3303, subdivision (c)
POBRA “provides procedural guarantees to public safety officers under
investigation” by their employers. (City of Los Angeles v. Superior Court (1997) 57
Cal. App. 4th 1506, 1512 (City of Los Angeles).) Section 3303 sets forth an officer’s rights
when he or she is “subjected to interrogation by his or her commanding officer[] or any
other member of the employing public safety department[] that could lead to punitive
action.” (§ 3303.) (These rights do not attach to questioning “in the normal course of
duty, counseling, instruction, or informal verbal admonishment by, or other routine or
unplanned contact with, a supervisor.” [Id., subd. (i).]) These rights include the right to
have any interrogation conducted at a “reasonable hour,” for a “reasonable period,” and
in a nonoffensive manner (id., subds. (a), (d) & (e)); the right to know who will be
conducting the interrogation and who will be present (id., subd. (b)); the right to have a
“representative of [the officer’s] choice” present (id., subd. (i)); and the right to record
the interrogation or obtain any recording made by the interrogator (id., subd. (g)).
Section 3303, subdivision (c) spells out the right at issue in this case: “The public safety
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officer under investigation shall be informed of the nature of the investigation prior to
any interrogation.” (§ 3303, subd. (c).)
In this appeal, we decide how much “prior to” the interrogation the public safety
officer must be informed of the nature of the investigation. The statute itself is silent on
this point, and the only other decision to touch upon the issue—Hinrichs v. County of
Orange (2004) 125 Cal. App. 4th 921—did not resolve it. (Id. at p. 926.) The Department
argues that as long as notice temporally precedes the interrogation, even if by mere
minutes, it is “prior to” the interrogation and hence sufficient. Ellins seems to suggest
that at least one day’s and up to five days’ advance notice is required. We reject both
views.
Instead, we hold that section 3303, subdivision (c), requires an officer to 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. We reach this conclusion for four
reasons.
First, a requirement of reasonable advance notice is contemplated by language in
other subdivisions of section 3303. As noted above, section 3303, subdivision (i), grants
a public safety officer the “the right to be represented by a representative of his or her
choice who may be present at all times during the interrogation” if that interrogation
follows the filing of formal written charges or “focuses on matters that are likely to result
in punitive action.” (§ 3303, subd. (i).) But that right is not unlimited: “The
representative shall not be a person subject to the same investigation.” (Ibid.) The only
way an officer can assess whether his or her chosen representative is “subject to the same
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investigation”—and, to a lesser extent, whether the interrogation is “likely to result in
punitive action”—is if he or she knows the nature of the investigation. If departments
may withhold this information until the last minute, interrogations will routinely need to
be postponed at the last minute whenever that information reveals for the first time that
the interrogation is “likely to result in punitive action” or that the officer’s chosen
representative is implicated in the investigation. Such delays are at odds with one of
POBRA’s purposes—namely, to provide for “prompt investigations of allegations of
officer misconduct.” (Upland Police Officers Assn. v. City of Upland (2003) 111
Cal. App. 4th 1294, 1305 (Upland Police Officers Assn.).) Because we are required to
read a statute’s provisions “as a whole” and to “harmoniz[e] ‘statutes or statutory sections
relating to the same subject . . . both . . . internally and with each other, to the extent
possible’” (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal. 3d 564,
575 (Pasadena Police Officers Assn.), quoting Dyna-Med, Inc. v. Fair Employment &
Housing Com. (1987) 43 Cal. 3d 1379, 1386-1387), and to avoid interpretations leading to
absurd results (Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal. 4th 624, 630),
we are disinclined to construe subdivision (c) in a manner that causes mischief under
subdivision (i).
Second, a requirement of reasonable advance notice is more consistent with the
legislative purpose behind POBRA. (People v. Harrison (2013) 57 Cal. 4th 1211, 1221-
1222 [statutory construction looks to “‘“ostensible objects to be achieved, the evils to be
remedied [and] public policy”’”].) As our Supreme Court has noted, POBRA’s
“procedural protections” reflect a “balanc[e] of competing interests”—namely, the
“public interest in maintaining the efficiency and integrity of its police force” (through
“prompt, thorough, and fair investigation[s]”) and the “personal interest” of the “officer
under investigation” “in receiving fair treatment.” (Pasadena Police Officers Assn.,
supra, 51 Cal.3d at pp. 570, 568, 572; City of Los Angeles, supra, 57 Cal.App.4th at
p. 1512.) Although the disclosure of discovery regarding misconduct in advance of an
interrogation might “frustrate the effectiveness of any investigation” by “color[ing] the
recollection of the person to be questioned or lead[ing] that person to confirm his or her
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version of an event to that given by witnesses” whose statements have been disclosed in
discovery (Pasadena Police Officers Assn., at pp. 578-579), advanced disclosure of the
nature of the investigation has the opposite effect: It allows the officer and his or her
representative to be “well-positioned to aid in a full and cogent presentation of the
[officer’s] view of the matter, bringing to light justifications, explanations, extenuating
circumstances, and other mitigating factors” and removes the incentive for “uninformed
representatives . . . to obstruct the interrogation ‘as a precautionary means of protecting
employees from unknown possibilities.’ [Citation.]” (United States Postal Service v.
NLRB (D.C. Cir. 1992) 969 F.2d 1064, 1071.) Thus, advance disclosure of the nature of
the investigation serves both purposes of POBRA by contributing to the efficiency and
thoroughness of the investigation while also safeguarding the officer’s personal interest
in fair treatment.
Third, a requirement of reasonable advance notice tracks the two models our
Legislature used when fashioning POBRA’s protections—the rights accorded to
employees under labor relations law and the rights accorded to suspects under criminal
investigation.
POBRA was designed in part to “‘secure stable employer-employee relations’”
(Upland Police Officers Assn., supra, 111 Cal.App.4th at p. 1302; Pasadena Police
Officers Assn., supra, 51 Cal.3d at p. 572; Baggett v. Gates (1982) 32 Cal. 3d 128, 135),
and was “modeled on section 7 of the National Labor Relations Act [NLRA] (29 U.S.C.
§ 157)” (Upland Police Officers Assn., at p. 1308). Cases interpreting section 7 of the
NLRA are accordingly “persuasive authority” when construing POBRA. (Ibid.)
Paralleling an officer’s right to the presence of a representative under section 3303,
subdivision (i), section 7 of the NLRA guarantees an employee the right to “have the
assistance of [a] union representative at a confrontation with his employer.” (NLRB v. J.
Weingarten, Inc. (1975) 420 U.S. 251, 260.) This right is vindicated only if the employer
“first inform[s] the employee[] of the subject matter of the interviews and allow[s] [him]
time for a pre-interview conference with a union representative.” (Pacific Tel. & Tel. Co.
v. NLRB (9th Cir. 1983) 711 F.2d 134, 135.) “Without such information and such
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conference, the ability of the union representative effectively to give the aid and
protection sought by the employee would be seriously diminished.” (Id. at p. 137.)
Although not binding, this precedent strongly suggests that section 3303, subdivision (c)
should be construed in a similar fashion—that is, to require notice of the subject matter
(that is, the nature) of the investigation sufficiently in advance of any interrogation to
give an officer time to meaningfully consult with his representative on that topic.
POBRA’s procedural protections also mirror those granted to criminal defendants,
although an employing agency has “greater latitude . . . than would be constitutionally
permissible in a criminal investigation.” (See Pasadena Police Officers Assn., supra, 51
Cal.3d at p. 577; see also ibid. [“some of the rights that the Act affords peace officers
resemble those available in a criminal investigation”]; San Diego Police Officers Assn. v.
City of San Diego (2002) 98 Cal. App. 4th 779, 784-785 [looking to discovery rights of
criminal defendants to define discovery rights under POBRA]; Upland Police Officers
Assn., supra, 111 Cal.App.4th at pp. 1308-1309 [looking to criminal defendants’ right to
counsel to define right to representative under POBRA]; accord, § 3303, subd. (h)
[requiring officer to be advised of his “constitutional rights” if he may be charged with a
criminal offense]; Lybarger v. City of Los Angeles (1985) 40 Cal. 3d 822, 829 [so
noting].) The United States Supreme Court has recognized that a criminal defendant has
“a constitutional right to discuss” his case “with his lawyer” and an “has an absolute right
to . . . consult[] [with his attorney] before he begins to testify.” (Perry v. Leeke (1989)
488 U.S. 272, 281, 284.) This right to consult may be abridged only during brief recesses
while the defendant is testifying (id. at pp. 280-281); otherwise, his right to consult with
his lawyer controls (Geders v. United States (1976) 425 U.S. 80, 91). Although not
binding, this precedent also strongly suggests that an officer’s right to representation
carries with it a right to meaningfully consult with that representative prior to any
interrogation.
Fourth and finally, a requirement of reasonable advance notice is consistent with
precedent that has similarly “infus[ed] a reasonableness requirement” into subdivision (i)
of section 3303. (Upland Police Officers Assn., supra, 111 Cal.App.4th at p. 1305.) In
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Upland Police Officers Assn., the court concluded that an officer’s right under POBRA to
select a “representative of his or her choice” did not include the right to “prevent any
interrogation by simply choosing a representative who would never be available”; such a
literal reading, the court reasoned, would defeat the “legislative intent to protect the
officer during interrogations without eliminating the ability of [a] [d]epartment to carry
out prompt and timely investigations of its own officers.” (Id. at pp. 1305-1306.)
Instead, the court read POBRA’s guarantee to “include a reasonableness requirement”
that conferred a more limited right to “choose a representative who is reasonably
available to represent the officer, and who is physically able to represent the officer at [a]
reasonably scheduled interrogation.” (Id. at pp. 1297, 1306.) Relatedly, the court in
Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166
Cal. App. 4th 1625 held that an officer’s right to a representative of his own choosing did
not extend to having several officers with the same lawyer “huddle” collectively and
thereby align their accounts of what happened; the ability to confer one-on-one with the
representative was sufficient. (Id. at p. 1637.) Requiring an employing department to
inform an officer of the nature of the charges “reasonably prior to” an interrogation
infuses a similar reasonableness requirement into subdivision (c) of section 3303.
However, this reasonableness requirement must account for the possibility that early
disclosure of an investigation’s subject matter can lead to possible danger to individuals
who are victims or otherwise implicated in the investigation and/or lead to the possible
destruction of evidence within the officer’s control. Thus, just as Penal Code section
1054.7 provides that such dangers constitute good cause to delay discovery in criminal
prosecutions, an employing agency with reason to believe disclosure may lead to these
concerns may reasonably postpone disclosure of the subject matter of an investigation
until the scheduled time for the interview and thereafter allow a brief postponement to
allow the officer to consult with his or her representative.
The Department offers two arguments in favor of its literal “‘prior to’ means ‘prior
to,’ even immediately ‘prior to’” argument. First, it argues that we should consider the
meaning of subdivision (c) in isolation, and without regard to its effect on the right to
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representation contained in subdivision (i) of section 3303. But this contradicts the duty
of courts, in construing statutes, “‘not to construe statutes in isolation, but rather [to] read
every statute “with reference to the entire scheme of law of which it is a part so that the
whole may be harmonized and retain effectiveness.” [Citation.]’” (Horwich v. Superior
Court (1999) 21 Cal. 4th 272, 276.)
Second, the Department argues that our Legislature’s decision, in 1994, to amend
other subdivisions of section 3303 but not to amend subdivision (c) means that the
Legislature has implicitly rejected anything but a literal interpretation of subdivision (c).
We are unpersuaded. At best, “legislative inaction [may] signal[] acquiescence when
there exists both a well-developed body of law interpreting a statutory provision and
numerous amendments to a statute without altering the interpreted provision.” (Olson v.
Automobile Club of Southern California (2008) 42 Cal. 4th 1142, 1156.) But even then, it
is a “slim reed upon which to lean.” (Quinn v. State of California (1975) 15 Cal. 3d 162,
175; In re Marriage of Davis (2015) 61 Cal. 4th 846, 863 [“legislative inaction after a
judicial decision does not necessarily imply legislative approval” or acquiescence in that
decision].) Where, as here, there is no intervening judicial interpretation of section 3303,
subdivision (c), legislative inaction regarding that section means nothing.
II. Compliance with section 3303, subdivision (c)
On the undisputed facts presented in this case, we conclude that the Department
provided Ellins with notice of the nature of the investigation “reasonably prior to” his
interrogation. The letter the Department received from Ellins’ former girlfriend
indicating Ellins’ efforts to track her down without her consent provided good cause to
postpone disclosure of the nature of the investigation until the commencement of the
interrogation to avoid any possibility of retaliation against her. Moreover, once the
consultant disclosed the nature of the investigation, he granted Ellins and his
representative the time they had requested to confer. They did not use all of this time,
and instead elected to press the statutory argument before us on appeal. The sole
allegation at issue here was straight-forward legally and factually: Did Ellins have any
official reason to be running searches in the CLETS database on his ex-girlfriend and her
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family? The time Ellins had was sufficient to allow for meaningful consultation as to that
allegation. Because Ellins was informed reasonably prior to the interrogation, he had no
justification for his insubordination on October 13, 2010.
In light of this conclusion, we have no occasion to reach the Department’s
alternative argument that Ellins’ termination independently rests on his unauthorized
access of the CLETS database.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
CERTIFIED FOR PUBLICATION.
_________________________, J.
HOFFSTADT
We concur:
_________________________, P.J.
BOREN
_________________________, J.
CHAVEZ
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