POBR/FBOR Investigations: A Primer on the Basics
Investigations of police or firefighter misconduct in California are governed by two key statutes: the Public Safety Officers Procedural Bill of Rights Act (POBR) and the Firefighters Procedural Bill of Rights Act (FBOR). These statutes establish protections for peace officers and firefighters subject to such investigations. With a few notable exceptions, the provisions of these statutes are generally similar or identical. This article highlights some of the key provisions of POBR/FBOR from the standpoint of an outside investigator.
When POBR/FBOR Applies. POBR covers most state, county, or municipal peace officers in California, including non-reserve deputy sheriffs, probation officers, and certain types of corrections employees. FBOR covers most firefighters employed by public agencies in California, including firefighters who are paramedics or emergency medical technicians.
POBR and FBOR apply when covered peace officers or firefighters are subject to an “interrogation” that could lead to “punitive action.”
POBR and FBOR do not apply to witness interviews. However, if a peace officer or firefighter witness begins making statements during an interview that could lead to punitive action, investigators should consider pausing the interview to ascertain whether the employee should be afforded POBR/FBOR rights and the interview rescheduled to a later date.
Right to a Representative. Under POBR and FBOR, peace officers and firefighters facing potential punitive action are entitled to have a representative at an investigative interview, provided that the representative is not a witness or subject in the same investigation.
Notice of the Investigation. Before an interview can be conducted, POBR and FBOR require the peace officer or firefighter to be given notice of the “nature of the investigation.”
Case law has helped define some of the contours of this notably vague term. For example, in Ellins v. City of Sierra Madre, 244 Cal. App. 4th 445 (2016), the Second District Court of Appeal held that such notice must be provided “reasonably prior to” an interview. The court further explained that officers must be able to “meaningfully consult” with any representative they may have. The court indicated that officers would also need sufficient information to confirm that potential representatives are not subject to the same investigation.
PORB and FBOR also require advance notice of certain other details, including the name and rank of the person in charge of the interview, the interviewer, and anyone else who will be present.
Interview Scheduling. Both POBR and FBOR require interviews to be conducted at a “reasonable hour.” Under POBR, an interview must “preferably” be conducted when an officer is on duty, or during the officer’s normal waking hours, unless the seriousness of the investigation requires otherwise. FBOR requires investigations to be conducted while a firefighter is on duty, unless an imminent threat to public safety requires otherwise.
Both statutes provide that if an interview occurs when a peace officer or firefighter is off duty, the interviewee is entitled to compensation consistent with regular department procedures. This will often entitle an interviewee to overtime pay.
Conduct during the Interview. POBR and FBOR set forth several substantive rights regarding conduct during interviews. While most of these rights rarely present issues for professional investigators, some require more careful observance. For example, POBR and FBOR provide that peace officers or firefighters may not be subjected to offensive language or threats, must be allowed to take restroom breaks, and may not be questioned by more than two investigators at a time. No promise of reward may be offered as an inducement to answer questions. Additionally, investigative interviews must be of a “reasonable” length, taking into account the “gravity” and “complexity” of the matter under investigation.
POBR and FBOR permit interviewees and investigators to record interviews. If a recording is made, the interviewee must be given access to the recording before any subsequent interview in the same investigation.
Refusal to Answer Questions. POBR provides that a peace officer who refuses to answer questions “shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action.” FBOR contains a similar requirement. Both statutes also require that if criminal charges are contemplated, officers and firefighters must be advised about their constitutional rights against self-incrimination.
However, POBR and FBOR differ with respect to situations when a peace officer or firefighter refuses to answer questions that may be self-incriminating. In Lybarger v. City of Los Angeles, 40 Cal. 3d 822 (1985), the California Supreme Court held that POBR permits employers to require officers to answer incriminating questions during administrative investigations, if the officer is advised that statements made under threat of discipline will not be admissible in subsequent criminal proceedings. In contrast, under FBOR, an employer is required to “provide to, and obtain from, an employee a formal grant of immunity from criminal prosecution, in writing” before a firefighter may be required to answer incriminating questions during an interview.
Access to Transcripts and Reports. Both POBR and FBOR require that interviewees be provided copies of interview recordings, transcribed notes, complaints, and investigative reports. However, as we covered here, courts interpreting POBR have diverged in their interpretations of the relevant statutory text.
Under POBR, if an interview is recorded, the peace officer must receive access to the recording “prior to” any later interview. POBR further provides that officers are entitled to transcribed notes, complaints, and investigative reports, “except those which are deemed by the investigating agency to be confidential.”
In Santa Ana Police Officers’ Association v. City of Santa Ana, 13 Cal. App. 5th 317 (2017), the Fourth District Court of Appeal held that the statutory language requiring recordings to be provided “prior to” any later interview also requires disclosure of transcribed notes, complaints, and investigative reports before later interviews.
However, in Oakland Police Officers’ Association v. City of Oakland, 63 Cal. App. 5th 503 (2021), the First District Court of Appeal held that the timing for providing transcribed notes, complaints, and reports depends on whether the investigating agency has deemed them confidential. Under this ruling, non-confidential materials must be disclosed upon request. However, materials deemed confidential may be withheld even if an officer is interviewed again. The court commented that an agency could deem such materials confidential and withhold them to protect the integrity of an ongoing investigation.
The California Supreme Court has yet to resolve this issue. In the meantime, investigators should consider whether either the First District’s or the Fourth District’s position is controlling.
To make matters more complicated, FBOR’s provision shielding confidential material from disclosure is narrower than the parallel provision of POBR. Under FBOR, firefighters are entitled to transcribed notes, complaints, and reports before later interviews, “except those portions that are otherwise required by law to be kept confidential.” Unlike POBR, FBOR does not authorize agencies to deem material confidential beyond the extent required by law.
Courts interpreting FBOR are likely to follow decisions applying the parallel provisions of POBR. Thus, courts applying FBOR may require agencies to provide transcribed notes, complaints, and reports “prior to” later interviews. Due to FBOR’s narrower confidentiality provision, agencies will likely not be able to avoid disclosing such materials simply by deeming them confidential—even in jurisdictions that follow the First District’s approach to POBR.
Timing of the Investigation. Both POBR and FBOR generally set a one-year deadline to impose discipline based on an investigation. Under both laws, discipline may not be imposed unless the peace officer or firefighter is notified of the proposed discipline within one year after misconduct is discovered. (This time period may be tolled or extended under certain circumstances.)
Notably, however, the language of the two statutes differs with respect to when the one-year clock starts running.
Under POBR, discipline must be imposed “within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.” Under some circumstances, this language may allow an employing agency to argue that the limitations period did not begin running when conduct was first discovered by the agency, if the personnel involved did not have authority to initiate investigations.
In contrast, under FBOR, discipline must be imposed “within one year of discovery by the employing fire department or licensing or certifying agency.”
Conclusion. While the summary above highlights many of the requirements of POBR and FBOR, investigators conducting investigations subject to these laws should be sure to familiarize themselves with the statutes themselves, as well as applicable interpretive case law.
