Respondent Notices and Admonitions Under POBR and FBOR: You Should Sweat The Small Stuff
When conducting workplace investigations involving first responders, investigators must navigate unique legal requirements under California’s Public Safety Officers Procedural Bill of Rights (POBR) and Firefighter Bill of Rights (FBOR). These statutes guide investigations into police and firefighter misconduct. They impose stricter procedural requirements than standard employment investigations, with critical notice and admonition requirements for Respondents accused of misconduct.
Critical Timing and Strategic Considerations
Before considering specific requirements, investigators must be acutely aware of statutory deadlines. Both POBR and FBOR impose a one-year statute of limitations from discovery of alleged misconduct for employers to notify employees of potential discipline. Therefore, investigators should aim to complete investigations at least one month before this deadline to allow time for the agency to consider and propose disciplinary action.
Additionally, our investigators typically avoid follow-up interviews with Respondents. Case law in some jurisdictions may require disclosure of draft investigative reports and other confidential materials prior to a follow-up investigative interview. To avoid that possibility, plan on gathering all necessary information before conducting your Respondent interview.
Pre-Interview Notice Requirements
Public safety investigations require certain notice requirements that do not apply to non–public safety investigations, primarily related to disclosure of the allegations prior to the investigative interview.
Disclosure of Allegations
Unlike standard investigations, POBR and FBOR require investigators to disclose the “nature of allegations” before Respondent interviews. The key question then becomes: how much information is legally required? Specific dates, policies, or involved parties are not necessarily required. This is case specific, and every investigation will be different. Generally, investigators must provide sufficient detail about the allegations to allow the Respondent to meaningfully prepare with their representative prior to the investigative interview.
The Policy Challenge
One area requiring careful consideration involves whether to include specific policy violations in the notice. Public safety departments often have dozens of overlapping policies.
The solution requires coordinating with client departments. Some agencies include policies as a standard practice, in which case investigators should follow that approach while ensuring comprehensive policy identification. Other agencies focus solely on describing the nature of allegations, which may be preferable when dealing with complex policy frameworks. It is advisable to be cautious here, because if a relevant policy is not included in the notice but later forms the basis for discipline, the Respondent’s representative may argue that insufficient notice invalidates the discipline.
Unique Rights and Admonitions for Respondent Interviews
Public safety investigations also involve other unique rights and admonitions that do not always apply in a non–public safety investigation.
Recording Rights
If investigators audio-record interviews, Respondents can also record them. In practice, it is commonplace for both parties to audio-record interviews in public safety investigations.
Right to Representation
As is true in certain other public sector contexts, public safety officers have a legal right to representation, so long as the representative is not a witness or party to the investigation. Also, the Respondent may choose their preferred representative so long as that person is “reasonably available” for the interview. Investigations should not be delayed indefinitely for long stretches of time due to a representative’s unavailability.
Lybarger Admonitions
One of the more complex admonitions is triggered in situations in which workplace misconduct might also constitute criminal wrongdoing—such as use-of-force incidents or time fraud. In those instances, investigators will typically be asked by the agency to provide a Lybarger admonition.[1] The legal framework creates a trade-off: public safety officers are compelled to appear for interviews and answer questions in an administrative investigation. In exchange for this compulsion, any information provided cannot be used against them in subsequent criminal proceedings. To execute the admonition properly, Respondents should be provided with the Lybarger admonition prior to the start of the investigative interview. Also, be aware that representatives often request these admonitions even when criminal implications seem unlikely.
Conclusion
Effective public safety investigations require careful preparation and procedural attention. Work closely with client agencies to understand their specific practices regarding Respondent notices and admonitions. Preparing ahead of time will make the interview process smoother and more effective.
[1] The Lybarger admonition is named after a 1985 California Supreme Court case, Lybarger v. City of Los Angeles.
