What Is Reasonable Notice Of Disciplinary Charges?

California’s Police Officer’s Bill of Rights provides that a public safety officer under investigation by his or her department “shall be informed of the nature of the investigation prior to any interrogation.” A recent case out of the California Court of Appeals answered the question: How much “prior to” any interrogation must the officer be given that information?

The case involved John Ellins, an officer for the Sierra Madre Police Department. As an officer, Ellins had access to the California Law Enforcement Telecommunications System (CLETS), 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.

In May 2010, Ellins made 12 inquiries of the CLETS database, which accessed 43 different sub-databases. 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.

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, but Ellins did not appear for medical reasons. Eventually, the Department terminated Ellins, citing his unauthorized use of the CLETS database and his insubordination in failing to participate in an interview. Ellins challenged his termination in court, with the central question being whether he was provided adequate notice of the interview.

The Court declined to adopt a hard-and-fast rule as to the amount of notice required by the Bill of Rights. Instead, the Court found that the Bill of Rights “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.”

The Court held that “a requirement of reasonable advance notice is more consistent with the legislative purpose behind the Bill of Rights. As our Supreme Court has noted, the Bill of Rights’ procedural protections reflect a balance of competing interests – namely, the public interest in maintaining the efficiency and integrity of its police force (through prompt, thorough, and fair investigations) and the personal interest of the officer under investigation in receiving fair treatment.

“Although the disclosure of discovery regarding misconduct in advance of an interrogation might frustrate the effectiveness of any investigation by coloring the recollection of the person to be questioned or leading that person to confirm his or her version of an event to that given by witnesses whose statements have been disclosed in discovery, 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. Thus, advance disclosure of the nature of the investigation serves both purposes of the Bill of Rights by contributing to the efficiency and thoroughness of the investigation while also safeguarding the officer’s personal interest in fair treatment.”

As to Ellins, the Court concluded the Department had provided him with reasonable notice of the charges against him:

“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 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.”

Ellins v. City of Sierra Madre, 2016 WL 337383 (Cal. App. 2016).