By: Karen Carrera
The High Stakes of Public Safety Investigations
When misconduct allegations arise involving peace officers or firefighters, the stakes are uniquely high. These professionals hold positions of public trust, wield significant authority and often operate in high-pressure environments. Investigating their conduct requires not only legal precision but also a deep understanding of the procedural protections afforded to them under California law.
Enter the Public Safety Officers Procedural Bill of Rights Act (POBR) and the Firefighters Procedural Bill of Rights Act (FBOR). These statutes provide robust safeguards for officers and firefighters during disciplinary investigations. For neutral external investigators, navigating these protections while maintaining impartiality, thoroughness and timeliness is both a legal obligation and a professional imperative.
Understanding the Legal Framework: POBR and FBOR
What Are POBR and FBOR?
POBR (Gov. Code §§ 3300–3313) and FBOR (Gov. Code §§ 3250–3262) are California statutes that establish procedural rights for peace officers and firefighters, respectively, when they are subject to investigations that could lead to punitive action — such as suspension, demotion or termination.
These laws apply to most non-probationary public safety employees in California, including:
- Police officers, deputy sheriffs, probation officers and correctional officers (POBR)
- Firefighters, paramedics and EMTs employed by public agencies (FBOR)
While the two statutes are nearly identical in many respects, there are subtle differences that investigators must understand and respect.
The Role of the Neutral Investigator
Why Use an External Investigator?
Using a neutral third-party investigator helps ensure:
- Impartiality: Avoids conflicts of interest and internal bias
- Credibility: Enhances public and employee trust in the process
- Compliance: Ensures adherence to complex legal requirements under POBR and FBOR
External investigators must be well-versed in the statutes, case law and best practices to avoid procedural missteps that could invalidate findings or expose the agency to liability.
Best Practices for Conducting Investigations Under POBR and FBOR
1. Determine Applicability Early
Before beginning, confirm whether POBR or FBOR covers the subject of the investigation. These rights apply only when:
- The employee is non-probationary
- The interview could lead to punitive action
Witnesses are not initially entitled to these protections, but if their statements begin to implicate them in misconduct, the interview must be paused and rescheduled with full rights afforded.
2. Provide Proper Notice
Both POBR and FBOR require that the subject be notified of:
- The nature of the investigation
- The name and rank of the interviewer and others present
- Their right to representation
This notice must be given reasonably in advance to allow meaningful consultation with a representative. Courts have emphasized that vague or last-minute notices violate the statutes.
3. Respect the Right to Representation
Subjects have the right to a representative during interviews, provided that the representative is not also a witness or subject in the same investigation. Investigators must:
- Allow time for the subject to secure representation
- Avoid proceeding without representation unless the subject waives the right in writing
4. Schedule Interviews Reasonably
POBR and FBOR require interviews to be conducted during duty hour, or during normal waking hours, if off-duty. If the interview occurs off-duty, the employee must be compensated. Interviews must also be of reasonable length, with breaks and accommodations as needed.
5. Maintain Professional Conduct During Interviews
Investigators must:
- Avoid offensive language or threats
- Limit questioning to two investigators at a time
- Allow restroom breaks
- Avoid offering rewards for cooperation
These requirements are not just best practices — they are statutory mandates.
6. Recordings and Access to Evidence
If an interview is recorded, the subject must be given access to the recording before any subsequent interview. They are also entitled to transcribed notes, complaints and investigative reports.
However, under POBR, some materials may be withheld if deemed confidential. FBOR has a narrower confidentiality provision, requiring disclosure unless the law mandates confidentiality.
7. Advising on Self-Incrimination
If criminal charges are possible, investigators must advise the subject of their constitutional rights. Under the Lybarger ruling, peace officers may be compelled to answer incriminating questions in administrative investigations if they are told their statements won’t be used criminally.
For firefighters, however, FBOR requires a written grant of immunity before they can be compelled to answer such questions.
8. Timeliness Is Critical
Both POBR and FBOR impose a one-year statute of limitations for imposing discipline. The clock starts when the misconduct is discovered by someone authorized to initiate an investigation.
Delays can invalidate the entire process, so investigators must:
- Begin promptly
- Document discovery dates
- Track tolling events (e.g., criminal investigations, leaves of absence)
Key Traits of a Successful External Investigator
Neutrality
The investigator must be independent of the agency and free from any bias or preconceived notions. This includes:
- Avoiding prior relationships with involved parties
- Disclosing potential conflicts of interest
- Maintaining objectivity throughout the process
Thoroughness
A complete investigation includes:
- Reviewing all relevant documents and policies
- Interviewing all key witnesses
- Asking open-ended, non-leading questions
- Following up on inconsistencies
The final report should be detailed, evidence-based and clearly explain the rationale for findings.
Promptness
Timeliness is not just a legal requirement — it’s a matter of fairness. Delays can:
- Undermine witness memory
- Increase workplace tension
- Jeopardize the agency’s ability to impose discipline
Investigators should set and adhere to a clear timeline while allowing flexibility for due process.
Common Pitfalls to Avoid
- Failing to pause a witness interview when it becomes accusatory
- Not providing adequate notice of the investigation
- Proceeding without confirming representation rights
- Withholding evidence improperly
- Missing the one-year deadline for discipline
Each of these can result in procedural violations that may invalidate the investigation or lead to litigation.
Conclusion: Integrity Through Process
Investigating misconduct involving peace officers and firefighters is a uniquely sensitive and high-stakes endeavor. The procedural protections under POBR and FBOR are not mere formalities — they are essential to ensuring fairness, transparency and accountability.
For external investigators, the path forward is clear: be neutral, be thorough and act with urgency. By doing so, you not only comply with the law — you uphold the integrity of the profession and the trust of the public.
References:
- Lybarger v. City of Los Angeles, 40 Cal. 3d 822 (1985): A public employee can be compelled to answer questions about job performance, even if the answers are incriminating, but only after being told the answers cannot be used against them in a criminal case.
- Ellins v. City of Sierra Madre, 244 Cal. App. 4th 445 (2016): Reinforced the requirement for meaningful advance notice.
- Santa Ana POA v. City of Santa Ana 13 Cal. App. 5th 317 (2017): Required disclosure of interview materials before subsequent interviews.
- Oakland POA v. City of Oakland 63 Cal. App. 5th 503 (2021): Allowed withholding of confidential materials under certain conditions — though this is still unsettled law.
Renne Public Law Group attorneys and workplace investigators have experience conducting investigations under POBR and FOBR. Contact Head of Investigations Practice Group Karen Carrera at kcarrera@publiclawgroup.com for more information.