Kelly v. City of Fresno

• Decision Date: 15 August 1984
• Citation: Kelly v. City of Fresno, 205 Cal.Rptr. 416, 159 Cal.App.3d 110 (Cal. App. 1984)
• Court: California Court of Appeals
• Parties: Michael KELLY, Petitioner, v. CITY OF FRESNO et al., Respondents. Civ. F002574.

Page 416

205 Cal.Rptr. 416

159 Cal.App.3d 110

Michael KELLY, Petitioner, v.CITY OF FRESNO et al., Respondents.

Civ. F002574.

Court of Appeal, Fifth District, California.

Aug. 15, 1984.

As Modified on Denial of Rehearing Sept. 13, 1984.

Hearing Granted Nov. 21, 1984.

David E. Roberts, Fresno, for petitioner.

James A. McKelvey, City Atty., Edwin A. Oeser, Asst. City Atty., Fresno, for respondents.

OPINION

WOOLPERT, Associate Justice.

A police officer is suspected of criminal activity.When the criminal investigating officer seeks a statement, the police officer refuses on constitutional grounds.However, two days later an internal affairs officer gains the sought after incriminating statement from the suspect on the threat that the officer must answer all questions or suffer an "insubordination" firing.

In this mandamus proceeding the trial court applied the established rule that police officers must cooperate with their superiors and answer truthfully all questions concerning their suspected criminal conduct, even if the result will be a termination of employment.The only protection given an officer in such a compelled interrogation situation has been prohibition against the use of the fruits of the inquiry, including any admissions, in subsequent criminal proceedings.

We hold that this rule was changed in 1976 with the passage of the Public Safety Officers Procedural Bill of Rights Act.(Gov.Code, § 3300 et seq.)¹In section 3303, subdivision (g), the Legislature created a statutory right to advisement of constitutional rights when an internal affairs interrogation focuses on criminal activity.However, the Legislature failed to spell out the remedy in case the right is violated.We assume the Legislature meant the advice to be meaningful.Should the right be violated, we conclude the Legislature intended the customary criminal law exclusion rules would be applied to exclude all uses of the fruits of the violation, whether in a criminal case or administrative proceeding to discipline or discharge the officer employee.

THE FACTS

Petitioner Kelly was an officer with the Fresno City Police Department.In January of 1983he became the focus of a criminal investigation.The owner of Lambe Aircraft Sales had reported to the police the unauthorized entry of a hangar and an aircraft, consumption of alcohol in the aircraft, and the possible malicious destruction of the engines aboard the aircraft.Petitioner, because of witness statements, became the primary suspect.

On January 26, 1983, the detective investigating the above incident informed petitioner of the criminal investigation.He then informed petitioner of his Miranda rights.²Petitioner declined to make any statement or to discuss the case.On January 27, the investigator sought an arrest warrant for petitioner, completing a declaration to support his request.

On January 28, petitioner was advised to go to the police department's internal affairs (IA) office to be questioned about the Lambe incident.Petitioner went with a fellow officer who was to act as his representative.The interview was tape-recorded.Petitioner was explicitly told in response to his questions about interrogation rights that he had no "civil rights" and that he was not going to be read or admonished of his "rights."

Petitioner then responded to questions, his statements implicating him in both the trespass and petty theft of alcohol, though not in the destruction of the engines.When the interrogation was completed petitioner was given an "Order of Termination" and advised of his right to request a hearing before the civil service board.

On March 3, 1983, petitioner sought a writ of mandate, requesting (1) civil suppression of the statement made on January 28, as it was obtained in violation of section 3303, subdivision (g);(2) an injunction against further departmental violation of section 3303, subdivision (g); and (3) immediate reinstatement of petitioner to his position.The court denied petitioner reinstatement before exhaustion of administrative remedies.

In its original and supplemental "Decision and Statement of Decision,"the trial court found petitioner to be a public safety officer covered by section 3300 et seq., the Public Safety Officers Procedural Bill of Rights Act.Further, the court found that at the time of the IA investigation respondents knew petitioner might be charged with a criminal offense arising from the subject matter of the investigation.The trial court concluded, however, that reading sections 3303, subdivisions (e) and (g), and3304 together, that the police department had no obligation to advise petitioner of his constitutional rights nor did petitioner have a privilege to refuse to answer questions without suffering punitive action.The court found the statement obtained from petitioner to be usable civilly and/or administratively though unusable for criminal purposes.

THE RIGHT

In 1976 the California State Legislature enacted Government Code, chapter 9.7, sections 3300-3311, known as the Public Safety Officers Procedural Bill of Rights Act(Act).In this casewe are asked to interpret section 3303, subdivision (g), of the Act.Relevant to our interpretation are the following provisions of the Act.

Section 3303.

"When any public safety officer is under investigation and subjected to interrogation by his commanding officer, or any other member of the employing public safety department, which could lead to punitive action, such interrogation shall be conducted under the following conditions.For the purpose of this chapter, punitive action is defined as any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.

"...

"(e) The public safety officer under interrogation shall not be subjected to offensive language or threatened with punitive action, except that an officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action....

"...

"(g) If prior to or during the interrogation of a public safety officer it is deemed that he may be charged with a criminal offense, he shall be immediately informed of his constitutional rights."

Section 3304.

"(a) No public safety officer shall be subjected to punitive action, or denied promotion, or be threatened with any such treatment, because of the lawful exercise of the rights granted under this chapter, ..."

Petitioner contends that under the circumstances of this casesection 3303, subdivision (g), provided him with the privilege to be informed of and exercise his constitutional right to remain silent and that the statement obtained in derogation of this right should have been civilly suppressed.Respondents contend that under both federal and state law, an employee has no right to refuse to answer questions posed by his employer relative to his fitness for his employment, and that section 3303, subdivision (g), does not attempt to create an exception to this rule but merely codifies the rule that the employee's responses cannot be used in any subsequent criminal proceedings.

We agree with petitioner.However, we purposely avoid the temptation to treat this as a constitutional interpretation case rather than a statutory interpretation case.We need not frame the issue in emotionally evocative terms, i.e., "Do police have greater (more) Miranda rights than other citizens?"Instead, we must decide whether a public safety officer has a constitutional right to remain silent, statutorily extended to administrative investigation/interrogation situations, when it is likely criminal charges will be filed.Another provision of the act has been termed a "statutory privilege."(Estes v. City of Grover City(1978)82 Cal.App.3d 509, 516, 147 Cal.Rptr. 131.)

At the time the Act was passed, federal law clearly provided that public employees could be compelled, on pain of losing their jobs, to answer questions concerning performance of their job duties as long as the answers were not used in any subsequent criminal proceedings.(Lefkowitz v. Turley(1973)414 U.S. 70, 77-79, 94 S.Ct. 316, 322-32338 L.Ed.2d 274.)The restriction against criminal use derives from the Fifth Amendment and is therefore applicable to the states.(Ibid.)California recognized this restriction.(Hankla v. Governing Bd.(1975)46 Cal.App.3d 644, 652-653, 120 Cal.Rptr. 827.)There is no doubt that petitioner had no right to remain silent during his IA interrogation without suffering punitive action unless the Act so provided.

In interpreting the public safety officer's rights under section 3303, subdivision (g), of the Act, our primary goal is to discern the Legislature's intent in enacting the provision.(Code Civ.Proc., § 1859.)It is not our province " 'to determine the wisdom, desirability or propriety of statutes enacted by the Legislature.'[Citations.]"(Cadiz v. Agricultural Labor Relations Bd.(1979)92 Cal.App.3d 365, 372, 155 Cal.Rptr. 213.)A general rule of statutory construction requires a liberal construction in favor of those persons for whom a statute was designed to protect.(Connolly Development, Inc. v. Superior Court(1976)17 Cal.3d 803, 826-827, 132 Cal.Rptr. 477, 553 P.2d 637, app. dism.429 U.S. 1056, 97 S.Ct. 778, 50 L.Ed.2d 773.)

We begin with the plain language of the statute.Again, section 3303, subdivision (g), says:

"(g) If prior to or during the interrogation of a public safety officer it is deemed that he may be charged with a criminal offense, he shall be immediately informed of his constitutional rights."

Here, "interrogation" refers to "interrogation by his commanding officer, or any other member of the employing public safety department."Although under certain factual situations, "deemed that he may be charged with a criminal offense" could be ambiguous, it is...