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FOBR Frequently Asked Questions

Q. I Received a Notice of Administrative Investigation—What Happens Now?

A. If you received a notice regarding an administrative investigation, you are listed as either the subject of the investigation or a witness. If you are the subject, you have been accused of misconduct or violating department policy and have been ordered to appear for an interview on a given date and time. The notice should articulate the subject matter/nature of the investigation, which limits the scope of the interview questions. (Cal. Gov’t Code § 3253(b).) Inquiries into subjects that are reasonably related to the investigation and the alleged misconduct are permissible.

You have the right to representation (a union rep or lawyer) under the Firefighters Procedural Bill of Rights Act (FOBR, often pronounced “po-bar”), but the chosen representative cannot be a witness or subject of the investigation. (Cal. Gov’t Code § 3253(i).) You are also entitled to have a pre-interview conference with your chosen representative and to tape-record the interrogation. (Cal. Gov’t Code § 3253(g).)

If you choose to be represented by a member of your union, the union member cannot be questioned about anything received from you. (Cal. Gov’t Code § 3253(i).) If you are also being criminally prosecuted for the conduct that is the subject of the administrative investigation, you will not enjoy privileged communications with a union representative regarding the criminal prosecution. However, communications with a lawyer will enjoy the status of being privileged whether the communications are related to the administrative investigation or the criminal prosecution.

The administrative interrogation must be conducted at a reasonable time, preferably while you are on duty. However, if the interrogation takes place while you are off-duty, you are entitled to compensation. (Cal. Gov’t Code § 3253(a).)

There can be no more than two investigators asking questions during your administrative interrogation. (Cal. Gov’t Code § 3253(b).) The investigators must not use offensive language, threaten you with punitive action, or promise you any rewards for answering any questions. (Cal. Gov’t Code § 3253(e).) The investigators cannot provide your address, phone number, or photo to the media without your consent. (Cal. Gov’t Code § 3253(e).) If you are subjected to additional interviews in your disciplinary investigation, the department is required to provide you with the recordings from the earlier interrogation, as well as any reports or complaints made by the investigators or other persons and any transcribed stenographer notes. (Cal. Gov’t Code § 3253(g).)

Your representative is more than a mere observer during the administrative interrogation. The representative must be given the opportunity to speak for you and assist you in answering questions. The role of the representative is to protect your rights, prevent illegal questioning, and clarify ambiguous questions/ambiguous responses. A representative’s key role is to prepare you for your interview.

The administrative investigation will conclude with one of four findings: sustained, not sustained, exonerated, or unfounded. Sustained means the preponderance of the evidence obtained during the investigation established that your actions constituted misconduct. Not sustained means there was insufficient evidence to prove or disprove misconduct. Exonerated means the acts complained of did not occur. Unfounded means the acts that provided the basis for the investigation occurred, but the investigation revealed the acts were justified, lawful, or proper.

If you are being interviewed as a witness, you may not be entitled to representation under the FBOR. This is because the FBOR applies to firefighters when they are under investigation and subjected to interrogation, and the investigation could lead to punitive action. The FBOR obviously applies to subjects of investigations. However, a witness within an investigation can at times become a subject. Sometimes information may come to light during your witness interview where it becomes apparent that the questioning could lead to punitive action against you. You should therefore consider getting representation for your administrative interview even if you are just a witness—that way you can better prepare for the interview and avoid pitfalls.

Q. What Can I Expect During My Administrative Interview?

A. The interview will take place in the investigator’s office or a conference room. There can be up to two investigators asking questions, but no more. If you have a representative, your representative will be in the room with you. The investigator will tape-record the interview, and you have the right to do so as well.

Most interviews begin with a Miranda advisement. If the complaint/administrative investigation involves criminal issues, the investigator must give you a Miranda advisement before the administrative interview. (Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822.) The investigator should then ask if you would like to answer the questions voluntarily, and you should say no. If the investigation involves criminal issues and the investigator does not give the Miranda advisement, you should invoke your right to remain silent. At that point, the investigator will order you to answer the questions under threat of insubordination (i.e., if you don’t answer my questions, you could be subject to discipline for insubordination) and then ask if you will answer his questions. You should say yes and answer the investigator’s questions. Going through this process (the Lybarger warning) protects you should criminal charges be brought—your answers during the interview cannot be used against you in future criminal proceedings (unless you give answers while testifying in the criminal trial that are different from the answers you gave during the administrative interrogation). Even when an administrative investigation does not appear to involve criminal misconduct, a Lybarger warning is often given at the beginning of the administrative interview to protect you just in case the investigation leads to criminal proceedings.

Many common complaints have a potential criminal aspect to them—e.g., writing a false report, theft, unsafe driving, sexual harassment, etc. An investigator must determine whether there is reasonable criminal exposure. If an officer under investigation is also being criminally prosecuted, he or she will not enjoy privileged communications with a labor representative regarding the criminal prosecution. However, communications with a lawyer will enjoy the status of being privileged whether the communications are related to the administrative investigation or the criminal prosecution.

After going through the Miranda advisement and Lybarger warning, investigators typically ask basic background information about your current position/title, number of years with the department, and previous firefighter experience. Then they reference the notice of administrative investigation and allegations before asking specific questions concerning the subject of the investigation.

Your representative is more than a mere observer during the administrative interrogation. The representative must be given the opportunity to speak for you and assist you in answering questions. The role of the representative is to protect your rights, prevent illegal questioning, and clarify ambiguous questions/ambiguous responses. A representative’s key role is to prepare you for your interview.

When interviewed as the subject of an administrative investigation or as a witness, you must always tell the truth. Sometimes a firefighter cannot remember what he or she saw, heard, or said during a particular incident. If you truly cannot remember something, it is perfectly acceptable and even preferable that you say you cannot remember. It is important that you understand the question, focus your answer to the question asked, and do not guess. If you have a vague recollection of something, you should begin an answer with language like “I believe” or “I think” or “if I remember correctly,” etc. Not telling the truth, withholding some of the truth, or attempting to give information when the answer should be “I don’t remember” could and likely will lead to additional discipline. If you are found to have been dishonest during an administrative investigation—whether as a subject or as a witness—a separate administrative investigation could be initiated against you and could result in termination.

In addition, investigators sometimes unintentionally or by design ask you the same question more than once, sometimes using different phrasing. Or they try to summarize one of your responses and ask you to agree that the summary is your testimony. It is therefore vital that you pay close attention to each question asked of you, make sure you understand each question before you provide a response, and do not allow the investigator to put words in your mouth.

Q. How Can I Prepare for My Administrative Interview?

A. Gather as much information prior to the interview as possible. Ask the investigator for any reports, evaluations, audio or video recordings, etc. that are relevant to the investigation. Do not talk to coworkers or anyone else about the investigation other than the investigator, your union representative, or your attorney. The notice you receive for the interview will usually order you not to discuss the investigation with anyone, and will explain that failure to obey that order could result in discipline.

Make the decision right now to answer all interview questions truthfully. Dishonesty or providing misleading information will almost certainly result in termination. If you do not remember details specifically, begin your responses with language like “I believe,” “I think,” “to the best of my recollection,” “if I remember correctly,” etc.

When you sit for your interview, do your best to stay calm. Remember the interview will be recorded. A hostile or defensive tone will do you no good, and will likely be taken into consideration and held against you by those handling your investigation. Also, listen carefully and do not provide an answer unless you understand the question being asked. If you do not understand the question, tell the investigator and ask her to rephrase it. Focus your answer to the question being asked. Do not guess; if you truly do not remember something, “I don’t know” is the proper response.

The interview cannot be held while you are off-duty unless you are compensated for your time. There can be no more than two questioners at your interview. The questioners cannot use threats or offensive language, cannot promise you rewards, and cannot provide your address, phone number, or photo to the media without your consent.

Q. I Received a Notice of Proposed Discipline—What Can I Do Now?

A. A notice of proposed discipline should contain a description of the charges upon which the investigation and discipline is based and previous misconduct that was considered before settling on the proposed discipline. When you receive a notice of proposed discipline, the discipline is not final and not imposed yet.

Before you can be disciplined, you have a constitutional due process right to a pre-disciplinary meeting commonly referred to as a Skelly hearing. In addition, you are entitled to all materials upon which the proposed discipline is based, other than documents deemed confidential. The purpose of the Skelly hearing is to provide you with an opportunity to respond to the allegations. Your response can be written and/or in-person. You can have your representative with you at the hearing. You should not confirm a hearing date until after you receive the requested documents.

So, if you receive a notice of proposed discipline, you have two options. First, you can accept the discipline and do nothing to fight it. Second, you can request a Skelly hearing and request all relevant information related to the proposed discipline. Relevant information includes evidence that has any tendency within reason to prove or disprove any disputed fact that is of consequence to the determination of the action or the truthfulness of a witness’s testimony or of a declarant’s hearsay statement.

The Skelly “hearing” is not a hearing in the sense of two adversarial parties putting on witnesses and presenting evidence to a neutral third-party. Rather, it is your opportunity to meet with a representative from your department’s administration and explain why the factual basis for the proposed discipline is inaccurate and/or request lighter discipline. For example, a notice of proposed discipline might claim that suspension is appropriate based on the subject firefighter’s rude and discourteous behavior documented in a complaint. However, another firefighter who witnessed the interaction could have said during an administrative interview that the subject firefighter was exceptionally professional and polite and that none of the complained of behavior occurred. At the Skelly hearing, the subject firefighter can refute the basis for the suspension by pointing out the witness firefighter’s testimony, and ask that he not be disciplined at all.

If in the hypothetical above the witness firefighter testified that she did not observe the interaction, the subject firefighter could request the Skelly hearing to ask for leniency. If this was the subject firefighter’s first policy violation or if he could explain that there was a misunderstanding during a stressful moment, he could apologize for his behavior, explain that he will do better in the future, and request that his suspension be reduced to a letter of reprimand.
Common arguments to be made at a Skelly hearing include there was no just cause for the discipline (the discipline is unfair because of __________ [fill in the blank] mitigating evidence), there was no progressive discipline (you have never been disciplined in the past or the department jumped from a documented counseling straight to a demotion when a letter of reprimand or a suspension is sufficient to correct your behavior), and/or you received disparate treatment (other firefighters have received less severe discipline for the same conduct).

If you request a Skelly hearing, you can change your mind later and cancel it. If you do not request a Skelly hearing soon after receiving the notice of proposed discipline, you most likely will not have time to change your mind and request one later. This is because the deadline to request a Skelly hearing can be as soon as only a few days after receiving the notice of proposed discipline—the deadline will be spelled out in your association’s Memorandum of Understanding, the City Charter, City or County Personnel Rules, or other rules or regulations adopted by your department.

If you receive a notice of proposed discipline, normally the best course of action is to request a Skelly hearing and request all relevant information related to the investigation and proposed discipline. If after reviewing the materials you decide not to challenge the discipline, you can cancel the hearing.

Q. I Received a Notice of Final Discipline—What Can I Do Now?

A. If your department moves forward with discipline after your Skelly Hearing, you have a constitutional right to a full and fair evidentiary hearing due to losing a property interest. Under the FBOR, this evidentiary hearing is described as an administrative appeal. (Cal. Gov’t Code § 3254.5.) The level of discipline you receive can affect the level of administrative appeal your employer is required to afford you. The form of the administrative appeal also depends on the language of your association’s Memorandum of Understanding with the department, the City Charter, City or County Personnel Rules, or other rules or regulations adopted by your department. (Cal. Gov’t Code § 3254.5.) However, the administrative appeal often takes the form of arbitration, but could be a hearing in front of the State Personnel Board, the City Council, Board of Supervisors, etc. No matter where the administrative appeal takes place, it will be conducted by a neutral third-party that listens to witnesses testify, reviews documentary evidence, makes findings of fact, and writes a decision.

Your employer has the burden of proof and the burden to produce evidence to support the charges against you. The arbitrator or neutral third-party may only sustain, modify, or deny the discipline that is being appealed.

If your administrative appeal is in the form of an arbitration, it may be final and binding, meaning that it cannot be appealed. However, if the word “advisory” precedes the word arbitration, the arbitrator’s decision will be reviewed by another body such as the City Council or City Manager, etc. In advisory arbitration, the decision of the subsequent hearing body (City Council, City Manager, etc.) is appealable to the Superior Court pursuant to a Petition for Writ of Mandamus filed under section 1094.5 of the Code of Civil Procedure.

Q. What Discipline Can My Employer Impose Against Me for Misconduct?

A. Your employer can impose a verbal warning, documented counseling, punitive transfer, written reprimand, reduction in pay, suspension, demotion, or termination. A documented counseling is a letter that explains the misconduct, which is placed in your personnel file for a set amount of time before being removed and destroyed, which is typically six months or one year. A written reprimand is much like a documented counseling, but it typically remains in your personnel file for up to five years. A punitive transfer is transfer for purposes of punishment or a transfer involving the loss of pay. The other forms of discipline are self-explanatory.

If your employer wishes to take punitive action against you for sustained misconduct, it must provide you with a letter of intent to discipline or a notice of adverse action no later than one year after a person authorized to initiate an investigation discovered the misconduct. Your department is not required to impose the discipline within one year, just notify you of the proposed discipline. The one-year time limit to notify you of proposed discipline has many exceptions that could extend the deadline for months or years (e.g., if the misconduct is the subject of a criminal investigation/prosecution or the subject of civil litigation). (Cal. Gov’t Code § 3254(d).)

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