Issue
The California Court of Appeal (Fourth Appellate District, Division Two) recently considered whether there are limits on the right of a peace officer under investigation to a representative of his choice. Upland Police Officers Association v. City of Upland, 2003 WL 22100891.
Facts
Sergeant Adams of the Upland Police Department gave Officer Kac notice of an internal affairs interrogation concerning an allegation that Officer Kac had conducted union activity while on duty. Kac asked attorney Michael Lackie to act as his representative. Lackie contacted the Sergeant and asked that the interrogation be rescheduled. The next day, Kac received notice of another interrogation regarding an alleged use of force incident. Both interrogations were set for the time Lackie had previously agreed to. When the time for the hearing arrived, Lackie was unable to attend. His law partner called the Sergeant and asked that the interrogation be rescheduled. The Sergeant refused and the interrogation proceeded as scheduled.
Kac and the union sought and received an injunction to prevent the Department from proceeding in the future with an interrogation of an officer if his chosen representative is unavailable. The Department appealed.
Court Of Appeal’s Decision
The Public Safety Officers Procedural Bill of Rights Act provides that “whenever an interrogation focuses on matters . . . likely to result in punitive action against any public safety officer, that officer [has] the right to be represented by a representative of his or her choice who may be present at all times during the interrogation.” The Court rejected Kac’s argument that the Department could not proceed with an interrogation if his chosen representative was unavailable, regardless of the circumstances. It concluded that this interpretation would lead to absurd results not contemplated by the state legislature: an officer could avoid an interrogation indefinitely by choosing a representative who would never be “available,” like the President or a Supreme Court justice.
The Court concluded that a reasonable interpretation of the Act meant that Kac must choose a representative reasonably able to represent him at a reasonably scheduled time, particularly when that time has been set by agreement. Kac had the responsibility of securing the attendance of his representative at the interrogation and, if the representative could not do so, Kac should have selected another representative. In this particular situation, the law partner could have represented Kac. The Department did not violate his rights by proceeding with the interrogation at the agreed-upon time.
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