10 u 2 13 4 15 16 W 18 19 20 21 2 23 24 25 26 a 28 PHILLIP MURRAY (SBN 213352) DANIEL M. LINDSAY (SBN 142895) JAMES HARRISON (SBN 194979) JENNIFER RAGAN (SBN 191711) JUSTIN DELACRUZ (SBN 285274) CALIFORNIA CORRECTIONAL PEACE OFFICERS ASSOCIATION LEGAL DEPARTMENT. 755 Riverpoint Drive, Suite 200 West Sacramento, California 95605-1634 Telephone: (916) 372-6060 Facsimile: (916) 340-9372 Attorneys for Plaintiffs BO DEC 1S PM 1:16 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO BRYAN BLUE, JASON HASTEY, STEVEN OSCHNER, ARTHUR TOVAR, JAMES MCCLOUGHAN, CALIFORNIA CORRECTIONAL PEACE OFFICERS ASSOCIATION, Plaintiffs, v. ) ) ) } CALIFORNIA OFFICE OF THE ) INSPECTOR GENERAL; ROBERT A.) BARTON, Inspector General, ROY ) WESLEY, Chief Deputy Inspector General) MICHAEL J, MADDOX, Deputy Inspector _) General, CALIFORNIA DEPARTMENT OF ) CORRECTIONS AND REHABILITATION; ) JEFFREY BEARD, Ph.D, Secretary, DOES ”) 1-100, ) 2 Defendants. ) Case No.: 34-2015-00187126-CU-GR-GDS PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Date: January 11, 2016 Time: 9:00 am. Department: 54 Honorable Raymond M. Cadei Plaintiffs’ Memorandurn of Points and Authorities in Support of Motion for Preliminary InjunctionCw ae 10 a 12 13 4 15 16 7 18 19 20 21 2 23 24 25 26 27 28 ‘TABLE OF CONTENTS Page 1 INTRODUCTION... Tl FACTUAL BACKGROUND....... October 13, 2015, Interviews of Comectional Officers Brian Rodrigues and Mark Rosales at California State Prison, Los Angeles County....... ; October 15, 2015, Interview of Correctional Officer Bryan Bl Blue at Ironwood State Prison in Blythe, California........ - October 29, 2015, Interviews of Correctional Officer Arthur Tovar and Correctional Sergeant Jason Hastey at California Correctional Center in Susanville, California... October 30, 2015, Interview of Correctional Officer Steven Oschner at Salt Creek Conservation Camp in Paskenta, Califor eee eosneseeeteeees November 2, 2015, Interview of Correctional Officer James es MoCloughan at Washington Ridge Conservation Camp in Nevada City, California......... November 4, 2015, Interview of Retired Correctional Officer Michael Jones In Susanville, California. . ql. ARGUMENT... OIG SHOULD BE ENJOINED FROM DENYING REPRESENTATION RIGHTS, GUARANTEED BY POBRA AND FROM ISSUING UNCONSTITUTIONAL SUBPOENAS...6 A. LEGAL STANDARD. 26 1. A Preliminary injumetin Issues Where Intearable Injury and Some Likelihood of Success On the Merits Is Shown... a, Plaintiffs Have a Strong Likelihood of Success on the Merits because Defendant OIG Violated its Statutory Duty to Adhere to Penal Code § 6126.5(d) which Guarantees Peace Officers the Right to Representation ‘When the Officer Reasonably Believes the Facts ofthe Case Cou Lea to Punitive Action. al b, POBRA Right to Representation, c. OIG Issued Unconstitutional Administrative Subpoenas. 2, The Balance of Hardship Tilts Towards Plaintiffs; OIG Will Suffer No Harm.....11 B, Government Code § 3309.5 Does Not Require a Showing of, Tereperable Harm to Obtain Injunctive Relie 12 C. Constitutional Violations Warrant Injunctive Relief. 12 Iv. CONCLUSION... val3 Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Preliminary InjunctionTABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES. Garment Workers v. Quality Me Co, (1975) 420 U.S. 276.. NLRB y. Weingarten, (1975) 420 US. 251... See v. City of Seattle, (1967) 387 U.S. 541... United States v. Morton Salt Co., (1950) 338 U.$.632...ccscoeeees CALIFORNIA CASES Brovelli v. Superior Court, (1961) 56 Cal.2d 524. Butt v. State of California, (1992) 4 Cal.4th 668....... California Correctional Peace Officers Association v. State te of California, (2000) 82 Cal.App.4th 294 California Restaurant Association v. Henning, (1985) 173 Cal.App.3d 1069..... é City of Los Angeles v. Labio, (1997) 57 Cal.App.4th 1506... Gales v. Superior Court (City of Pasadena), (1996) 47 Cal.App-4th 1596........ Hopson v. City of Los Angeles, (1983) 139 Cal App.34.347 Law School Admission Couneil, Inc. v. State, (2014) 222 Cal.App.4th 1265.....snseeesens Lybarger v, City of Los Angeles, (1985) 40 Cal.3d 822... Robbins v. Superior Court, (1985) 38 Cal.3d 199..... Robinson v. State Personnel Board, (1979) 97 Cal.App.3d 994, 999... Page(s) oO Plaintiffs? Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction10 u 12 1B 14 15 16 7 18 19 20 a 22 23 4 28 26 27 28 TABLE OF AUTHORITIES (cont:) Page(s) CALIFORNIA CASES (cont.) ULC, Nuclear Weapons Labor Conversion Project v. Laurence Livermore Laboratory, (1984) 154 Cal.App.3d 1157... oe . Upland Police Officers Association v. City of Upland, (2003) 111 Cal,App.4th 1294... FEDERAL CASES Gutierrez v, Mun. Ct. of S.E. Judicial District, (Oth Cir. 1988) 838 F.2d 1031......... STATUTES Code of Civil Procedure Section $26(a)(3 Section 527, Government Code Section 3300.. Section 3303.. Section 3303 Section 33034). Section 3309.5.. Penal Code Section 6126.5(d).. Section 6127.4... vo, 6, 11, 13 cold Plaintiffs? Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction10 u 12 B 14 15 16 17 18 19 20 21 22 3 24 25 26 27 28 L INTRODUCTION In October and November of 2015, the Office of the Inspector General (“OIG”) interviewed several correctional officers throughout California. ‘These interviews were part of an OIG investigation conducted at the request of the Senate Rules Committee into allegations of excessive force and mistreatment of inmates at High Desert State Prison (“HDSP”), The officers OIG interviewed had at one time worked at HDSP. At first, OIG told officers the interviews were voluntary and they could decline to interview at any time, ‘Two officers were allowed to bring union representatives. When Plaintiff Bryan Blue, however, took O1G’s representations at face value and declined to interview, OIG officials became incensed, The Chief Deputy Inspector General, Roy Wesley, contacted Blue’s Warden and ordered him to order Blue to interview. Wesley then ordered his investigator Michael Maddox to bar Blue’s representative from the interview, a move which denied Blue his right of counsel and retaliated against Plaintiff California Correctional Peace Officers Association (“CCPOA”) by not allowing it to represent its members. After Blue’s interview, OIG continued to tell officers the interviews were voluntary but then immediately presented administrative subpoenas to those officers who declined and demanded their immediate compliance under various threats of civil sanctions or insubordination, OIG investigators continued to bar representation by prohibiting the officers from having union representatives ot lawyers present in the interviews. By doing so, OIG violated the Public Safety Officers Procedural Bill of Rights (“POBRA”) codified in Govemment Code § 3300 et seq, and made applicable to OIG by way of Penal Code § 6126.5(d). Il. FACTUAL BACKGROUND October 13, 2015, Interviews of Correctional Officers Brian Rodriguez and Mark Rosales at California State Prison, Los Angeles County On October 13, 2015, OIG investigator Harman Sufi interviewed two correctional officers at California State Prison, Los Angeles County (“CSP-LAC”) in Lancaster, California, The OIG investigator permitted the two officers, Brian Rodriguez and Mark Rosales, to have a representative present during the interviews, Robert Davis, President of the CSP-LAC CCPOA Chapter represented Rodriguez and Rosales, (Decl. Robert Davis 5.) 1 Plaintiffs’ Momorandum of Points and Authorities in Support of Motion for Preliminary InjunctionSoma anuewon u 12 13, 14 15 16 17 18 19 20 a 22 24 25 26 27 28 October 15, 2015, Interview of Correetional Officer Bryan Blue at Ironwood State Prison in Blythe, California On October 14, 2015, Bryan Blue, a Correctional Officer at Ironwood State Prison (“ISP”) in Blythe, California was contacted by ISP Correctional Lieutenant Felipe Alvarez and told to report the next morning to the ISP Warden’s Conference Room where he would be interviewed by an investigator from OIG. (Decl, Bryan Blue 3.) Alvarez did not tell Blue what the interview was about, and Blue received no written notice. (Id. 3.) On the following morning, October 15, 2015, Blue reported to the ISP Warden's Conference Room with his legal representative, CCPOA Staff Legal Counsol Phillip Murray. (Id. 44, Decl. Phillip Murray 6, 7.) Blue and Murray were met by Michael Maddox, a Deputy Inspector General with OIG. (Decl. Blue { 4, Decl. Murray { 7.) Murray asked Maddox if the interview was voluntary, and Maddox stated that the interview was voluntary. (Decl. Blue 4, Decl. Murray 8.) Blue declined to interview. (Decl. Blue { 4, Deol. Murray § 8.) Shortly after Blue declined to interview, Chief Deputy Inspector General Roy Wesley called ISP Warden Neil McDowell and ordered McDowell to compel Blue’s participation in the interview. (Decl, Terry Hammon { 9.) McDowell called ISP Correctional Lieutenant Felipe Alvarez and instructed Alvarez to order Blue to participate in the interview. (Id. {.9.) Alvarez, then went to Blue’s post in the ISP Administrative Segregation Unit and ordered him to talk with Maddox. Alvarez escorted Blue from his post to the Warden’s Conference Room. (Decl. Blue { 5, Deel, Hammon {| 9.) Alvarez waited with Blue inside the Warden’s Conference Room until the OIG investigator returned. (Decl. Murray ¥ 9.) At approximately 9:00 a.m., Maddox entered the hallway outside the Warden's Conference Room where he was met by Murray. Maddox told Murray that he would interview Blue but Blue would not be permitted to have a representative, Maddox told Murray his superiors had directed him “to keep the union attorney out of the room.” (Id. $10.) Maddox then interviewed Blue without a representative present. (Decl. Blue 5, Decl. ‘Murray $10.) ‘After Blue finished interviewing with Maddox, Murray and ISP CCPOA Chapter President ‘Terry Hammon confronted Maddox, (Decl. Murray {[ 12, Decl. Hammon 10.) Murray asked 2 Plaintiffs? Memorandum of | ‘and Authorities in Support of Motion for Protiminary Injunction10 ul 12 B 14 15 16 7 18 19 20 a 22 23 24 25 26 27 28 Maddox who gave the order to exclude representatives from Blue’s interview, and Maddox replied that Chief Deputy Inspector Roy Wesley had given the order to exclude Murray. (Decl, Phillip Murray 12, Decl. Terry Hammon { 10). October 29, 2015, Interviews of Correctional Officer Arthur Tovar and Correctional Sergeant Jason Hastey at California Correctional Center in Susanville, California ‘At approximately 7:30 am, on October 29, 2015, David Faris, a Correctional Sergeant at California Correctional Center (“CCC”) in Susanville, California, called Correctional Officer ‘Arthur Tovar at his post and informed Tovar he would interview with an investigator from OIG at 12:30 p.m. that afternoon, (Decl. Arthur Tovar 3.) That same morning, CCC Correctional Lieutenant Casey Weeks contacted Correctional Sergeant Jason Hastey and told Hastey that “somebody needed to talk with you.” (Decl. Jason Hastey 3.) Neither Tovar nor Hastey were provided any written notice as to what the interview was about. ‘Tovar contacted Casey Granfield, President of the CCC CCPOA Chapter and requested that Granfield represent him in his interview with OIG, Decl. Tovar { 4). Granfield spoke with Michael Maddox and asked if the officers were being compelled to interview. (Decl. Casey Granfield 4), Maddox told Granfield the interviews were voluntary, but if the officers declined to interview, Maddox would give them administrative subpoenas compelling them to immediately interview. (Id. 4, Decl. Tovar 6). Maddox told Granfield “either way, it works out the same.” (ld.44), Granfield then stated he would represent both Tovar and Hastey. (Decl. Granfield 7 4.) Maddox told Granfield that neither officer would be permitted a representative. (Id. 44). ‘Tovar reported for his interview with Maddox and requested a representative, (Decl. ‘Tovar { 8, 9.) Maddox told Tovar that he would not be permitted a representative and that he could not record the interview. (Decl. Tovar J 8.) Tovar asked whether the interview was voluntary, and Maddox told him that it was, but that if Tovar declined, he would be given a subpoena commanding his participation, (Id. 7.) (A true and correct copy of the administrative subpoena is attached as Exhibit “A.”) Tovar then tead a statement from a printed advisement card stating to the effect that he was being denied a representative and was answering questions only because he was ordered to do so and that such answers were not to be deemed his waiver of 3 Plaintiffs? Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction10 u 12 1B 14 16 ae 18 19 20 21 22 2B 24 25 26 27 28 statutory or constitutional rights. (Decl. Tovar { 9.) (A true and correct copy of the statement read attached to the Declaration of Arthur Tovar as Exhibit “A” to that Declaration.) Tovar then interviewed with Maddox. (Decl. Tovar 10.) ‘At approximately 1:15 p.m, on October 29, 2015, Correctional Sergeant Jason Hastey reported for his interview with Maddox, (Decl. Jason Hastey 45.) Maddox informed Hastey that OIG was conducting an “authorized review” of certain issues at HDSP. (Jd. 47, 9.) Hastey asked Maddox if he had a subpoena, and Maddox tumed off his recording device and gave Hastey an administrative subpoena. (Id. 8.) (A true and correct copy of the administrative subpoena is attached as Exhibit “B.”) Hastey then requested a representative. (Jd. 10.) Maddox stated that Hastey would not be allowed a representative. ((d.) Hastey then told Maddox his concerns about interviewing, namely that he received no notice of the interview or of its subject matter and thus had little, if any, time to prepare, and he was consequently concerned that the answers he provided could later become the basis of administrative punitive action and quite possibly criminal prosecution. (Jd. § 11.) Hastey again demanded a representative, but Maddox again denied Hastey’s request. (Id. 12.) Hastey stated that he believed his constitutional rights and his rights under POBRA were being violated. (Id. 4 13.) At the end of Hastey’s interview, Hastey reiterated that he had been entitled to a representative and stated again his concerns about the lack of notice and the potential for punitive action or criminal prosecution, (Jd. 15). Maddox replied by saying “I am just doing what I am told to do.” (Id. 15.) Hastey then asked to be provided a copy of the recording Maddox had made of the interview, but Maddox stated that he would not provide a copy. (Id. 16.) October 30, 2015, Interview of Correctional Officer Steven Oschner at Salt Creek Conservation Camp in Paskenta, California On October 30, 2015, Maddox arrived at Salt Creek Conservation Camp (“SCCC”) in Paskenta, California to interview Correctional Officer Steven Oschner. Oschner and his legal counsel, CCPOA Staff Legal Counsel Phillip Murray and Justin Delacruz, met Maddox in an office of the SCCC Administration Building. (Decl. Murray 18.) Maddox told Murray that Murray would not be permitted to represent Oschner during the interview. (Decl. Murray 18.) 4 PPlaintifis" Memorandum of Points and Authorities in Support of Motion for Preliminary Injunctionwe wn ee u 2 13 4 15 16 7 18 19) 20 au 22 23 24 25 26 27 28 Murray asked Maddox if the interview was voluntary, and Maddox stated that the interview was voluntary, but if Oschner declined to interview, he would be given a subpoena, (Decl. Murray 18,) Murray protested that Oschner was being denied a representative and pointed out that the Penal Code made Government Code § 3303 applicable to the OIG. (Decl. Murray 18.) Maddox demurred, stating that he was only doing what his superiors had instrueted him to do. (Id. 18.) Oschner told Maddox that he declined to interview, and Maddox gave Oschner a subpoena. (A true and correct copy of the subpoena given to Oschner is attached as Exhibit “C.") Oschner then interviewed with Maddox without a representative present. November 2, 2015, Interview of Correctional Officer James McCloughan at Washington Ridge Conservation Camp in Nevada City, California On November 2, 2015, Maddox interviewed Correctional Officer James MeCloughan at ‘Washington Ridge Conservation Camp (“WRCC”) in Nevada City, California, MeCloughan was represented by attomey Douglas Foley. (Decl. James McCloughan 3.) Foley asked Maddox if the interview was voluntary, and Maddox stated that the interview was voluntary, but if McCloughan declined, he would be presented with an administrative subpoena. (A true and correct copy of the subpoena given to McCloughan is attached as Exhibit “D.”) (Id. {3.) Foley told Maddox that he was retained by CCPOA to represent MeCloughan in the interview and demanded to be allowed to sit in during the interview. (Id. 3.) Maddox telephoned his office, and after a brief conversation told Foley that OIG deemed him no different than a CCPOA attomey and denied his demand to represent MeCloughan. (Id, { 4.) Maddox then interviewed MeCloughan without a representative. (Jd. 3.) November 4, 2015, Interview of Retired Correctional Officer Michael Jones in Susanville, California On November 4, 2015, OIG Chief Counsel James Casey Spurling took the deposition of retired HDSP Correctional Officer Michael Jones pursuant to @ subpoena issued on or about October 19, 2015. (Decl. Murray § 21.) Spurling allowed Jones's legal representatives Phillip Murray and Justin Delacruz to be present during the deposition. (Id. 4 21.) (Attached hereto as Exhibit “E”, is a copy of Jones Subpoena.) 5 Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Preliminary Injunctionaa 10 i 12 13 14 15 16 17 18 iL 20 21 22, 23 24 25 26 rag 28 IL ARGUMENT OIG SHOULD BE ENJOINED FROM DENYING REPRESENTATION RIGHTS GUARANTEED BY POBRA AND FROM ISSUING UNCONSTITUTIONAL SUBPOENAS A. LEGALSTANDARD 1. A Preliminary Injunction Issues Where Irreparable Injury and Some Likelihood of Success On the Merits Is Shown ‘The Code of Civil Procedure § 527 authorizes a court to issue an injunetion before trial. Sufficient grounds for issuance exist where a party may suffer great or irreparable injury. (Code Civ. Proc. § 526(@)(3),) When deciding to issue a preliminary injunction, this Court looks to two factors, The first factor is the comparative harms to the parties that result from issuing ot not issuing the injunction. The second factor is the likelihood that the plaintiff will prevail on the merits. (Law School Admission Couneil, Ine. v, State (2014) 222 Cal.App.4" 1265, 1280.) The court must exercise its discretion “in favor of the party most likely to be injured.” (Robbins v. Superior Court (1985) 38 Cal.34 199, 205-206.) ‘The greater the likelihood of success at trial, the less potential harm must be demonstrated. (Butt v. State of California (1992) 4 Cal.4" 668, 677- 78) a, Plaintiffs Have a Strong Likelihood of Success on the Merits because Defendant OIG Violated its Statutory Duty to Adhere to Penal Code § 6126.5(d) which Guarantees Peace Officers the Right to Representation when the Officer Reasonably Believes the Facts of the Case Could Lead to Punitive Action California Penal Code § 6126.5(4) provides that whenever OIG interviews CDCR peace officers, as it has done so in the instant case, it must adhere to specific enumerated sections of the Public Safety Officers Procedural Bill of Rights Act (“POBRA”) as if the OIG were the employer. Penal Code § 6126.5(4) provides in pertinent part: If it appears that the facts of the case could lead to punitive action, the Inspector General shall be subject to Sections 3303, 3307, 3307.5 3308, 3309, and subdivisions (a) to (d) inclusive, of Section 3309.5 of the Government Code as if the Inspector General were the employer, except that the Inspector General shall not be subject to the provisions of any memorandum of understanding or other agreement entered into between the employing agency and the employee or the employee’s representative that is in conflict with, or adds to the requirements of Sections 3303, 3307, 6 Plaintiff’ Memorandum of Points and Authorities in Support of Motion for Preliminary Injunctionawe . 10 sy 12 13 4 15 16 7 18 19 20 21 23 24 25 26 27 28 3307.5, 3308, 3309, and subdivisions (a) to (d), inclusive, of Section 3309.5 of the Government Code. Government Code § 3303 is the portion of POBRA that govems the rights of peace officers subject to interrogations and describes the procedures that must be followed when any peace officer is under investigation and subjected to interrogation that could lead to punitive action by his or her commanding officer or any other member of the employing public safety department. (California Correctional Peace Officers Association v. State of California (2000) 82 Cal.App.4™ 294, 304-305.) Subsection (j) of Section 3303 provides the right to representation and provides in pertinent part: ‘Whenever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at his or her Fequest, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation, ‘An interrogation for purposes of § 3303) occurs when an officer is questioned about a matter that could lead to punitive action. (City of Los Angeles v. Labio (1997) 57 Cal.App.4* 1506.) Tn the instant case, OIG interviewed officers about subjects that could potentially subject the officers to administrative punitive action or even possibly criminal liability because the subject matter ranged from knowledge of excessive force incidents to knowledge of mistreatment of disabled inmates and identifying to other inmates those inmates convicted of sex crimes. Knowledge of these subjects could have implicated the officers in wrongdoing, depending upon their respective knowledge and experience. ‘The nature of OIG's investigation and questioning was broad, encompassing many areas of potential misconduct, and the potential for adverse statements was ever present, Califomia courts have interpreted the term punitive action broadly. In Hopson v. City of Los Angeles (1983) 139 Cal.App.3d 347, a court determined that investigative findings alone could be considered punitive even absent disciplinary action because the inclusion of the findings could have “ramifications for the career opportunities for the officers.” Db. _ POBRA Right to Representation Section 3303) provides that the right to a representative is triggered when an interrogation “focuses on matters that are likely to result in punitive action against any public 1 Plaintifis’ Memorandum of Points andl Authorities in Support of Motion for Preliminary Injunctionaur wD Sow x ul 12 13 4 15 16 7 18 19 20 2 2 2B or 25 26 27 28 safety officer.” Section 3303() is modeled upon the concept of employee representation put forward by the United States Supreme Court in NERB v. Weingarten (1975) 420 U.S. 251. (Upland Police Officers Association v, City of Upland (2003) 111 Cal.App.4® 1294, 1308.) The Upland Court holds that where California laws are modeled after federal laws, “federal decisions interpreting substantially identical statutes are unusually strong persuasive precedent on construction of our own laws.” (Id. at 1308.) In Weingarten, the U.S. Supreme Court stated that union-represented employees have a protected right to presence of their union representative in an investigatory interview that the employee reasonably believes will result in disciplinary action. The analysis here tums on whether the employee, not the employer, has a reasonable basis for believing that answers to an employer's questions could become the basis of disciplinary action. (Robinson v. State Personnel Board (1979) 97 Cal.App3d 994, 999.) The reasonableness of the employee's belief is measured against the facts and ciroumstances of the particular interview. (Garment Workers ». Quality Mfg Co, (1975) 420 US. 276.) Tris not necessary that discipline actually occur at the meeting or that the person conducting the interview have the authority to discipline, only that it is reasonable to believe that as a result of the meeting, discipline might ocour at some future time. (NLRB ¥. Weingarten (1975) 420 U.S. 251.) (1975) Section 3303() encapsulates the Weingarten analysis with the difference, however, that the subsection does not specify who determines when the interrogation is “likely to result in pu action.” Whereas the U.S. Supreme Court clearly stated representation turns upon the employee's mindset, subsection 3303()) does not provide a subject for the modifying clause beginning the section, The California Supreme Court, however, has interpreted similar language in POBRA in Iybarger v. City of Los Angeles (1985) 40 Cal.3d 822, and the reasoning of that decision is applicable to a reading of § 3303(). ‘The Lybarger Court addressed the language of Government Code § 3303(h), which provides: “If prior to or during the interrogation of a public safety officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional tights.” ‘The Zybarger Court noted that the passive verb construction did not 8 Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Preliminary Injunctiona wR aa 10 i 2 1B 4 15 16 7 18 19 20 a 2 2B 24 25 26 27 28 provide a subject and thus itis ambiguous as to who deems that a etiminal charge is forthcoming. ‘The Court interpreted the Ianguage to find that either party, the employer or the officer being interrogated, may make the defemination, thercby triggering the required advisement of constitutional rights, (Lybarger, at p. 828. See also Justice Bird’s concurring opinion at p. $32- §33,) Likewise, § 3303() should also be read to allow either party, the employer or the officer under investigation, to make the determination as to when the facts of a case could lead to punitive action thereby triggering the right to representation. ‘This reading also comports with a common sense interpretation. If the determination were only for the employer to make, the right to representation would become illusory as the employer could merely sweep away the tight by arguing that the subject matter of an interrogation is not likely to result in punitive action. This is exactly what OIG did in the instant case. Tt made the unilateral decision that its interviews were not likely to result in punitive action and, based upon that independent decision, barred the Plaintiff officers from having representatives present during interviews. OIG"s one-sided assessment swept aside the officers’ fears ~ feats that were reasonable given the subject matter of the interviews — that the facts and circumstances of the interviews carried the potential for punitive action or criminal liability. Moreover, OIG demonstrated that the officers had a sound basis to be fearful. OIG investigators told the officers that the interviews were voluntary when they in fact were not. ‘Those officers who declined to interview voluntarily were then confionted with orders from CDCR to immediately interview or with administrative subpoenas signed by O1G’s Chief Counsel ‘and served by Maddox purporting to demand compliance, Based upon OIG’s initial rmisrepresentations about the nature of the interviews, it was entirely reasonable for the officers to doubt and to mistrust any further OIG representations that their answers would not be used against them. Indeed, several of the Plaintiff officers voiced this fear to OIG investigator Maddox. Correctional Sergeant Hastey specifically told Maddox that he believed his answers had the potential to adversely affect his employment, (Decl. Hastey 4 15.) Hastey illustrated his points with hypothetical examples that illustrated the real and immediate danger of answering questions 9 Plaintiffs” Memorandum of Points and Authorities in Support of Motion for Preliminary Injunctionao 10 MW 12 B 4 15 16 7 18 19 20 24 22 23 24 25 27 28 about his knowledge of past incidences of excessive force or of outing inmates convicted of sex crimes to other inmates. (Id) OIG Issued Unconstitutional Administrative Subpoenas ‘An administrative subpoena is an investigative tool used by administrative agencies when there is no legal action pending and thus no judicial oversight. They aro analogous to a search warrant and courts have long held that they are govemed by the U.S. Constitution’s 4" ‘Amendment, Indeed, the courts have deemed them “constructive searches.” (California ‘Restaurant Association v. Henning (1985) 173 Cal.App.34 1069.) The California Supreme Court has stated that administrative agencies “cannot compe! the production of evidence in disregard of ‘the constitutional provisions prohibiting unreasonable searches and seizures.” (Brovelli v. ‘Superior Court (1961) 56 Cal.2d 524, 529.) Courts have held that the 4° Amendment is satisfied if an administrative subpoena meets three criteria: (1) The subpocna relates to an inquiry the agency is authorized to make; (2) the subpoena secks information reasonably relevant to that inquiry; and (3) the subpoena is not foo indefinite, (United States v, Morton Salt Co, (1950) 338 U.S.632.) “The administrative subpoenas in the instant case fail the third prong of this analysis. The subpoenas given to officers Tovar, Hstey, andl Oschner state only that itis issued “in connection with a confidential review authorized by the Senate Rules Committee.” This is inadequate notice of the subject matter to be discussed and thus “too indefinite” to put the officers on notice regarding what information is required of them. ‘The administrative subpoenas issued in the instant case were served on the plaintiff officers just minutes before the interview was to begin, and only if the officer declined to voluntatily interview. ‘The 4% Amendment requires that there be a process for challenging the sufficiency of an administrative subpoena before compliance ean be exacted. (See » City of Seattle (1967) 387 U.S, 541.) That process is usually in the form of judicial review. (Id.) Thus, before any penalty and contempt proceeding can be exacted, the recipient of the subpoena must be afforded the opportunity to seek judicial review. In the instant cases, the officers were handed the subpoenas and told their failure to interview will result in contempt of court and Hiability for 10 Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Preliminary Injunctionew ane en 10 u 13 4 15 16 7 18 19 20 2 22 2B 24 25 26 27 28 monetary damages. Most important, the OIG circumvented Penal Code § 6127.4, the statute authorizing O1G to issue subpoenas. Penal Code § 6127-4 provides that if any person disobeys @ subpoena, the OIG must first seek an order from the applicable superior court to compel attendance, Only if the person then disobeys the court order will contempt attach. Accordingly, OIG misrepresented its authority to enfore its subpoenas on the face of the subpoena when it threatened civil contempt and monetary liability. ‘This threat, coupled with the fucts and circumstances of their issuance, denied the Plaintiff officers the opportunity to test the legal sufficiency of the administrative subpoenas. An officer handed a subpoena and then told he must immediately participate in an interview must then weigh the exercise of his constitutional right to challenge the subpoena against the tisk of insubordination to his employer should the OIG seek an order from CDCR, as it did in Officer Blue's case, to command his participation, ‘The use of an administrative subpoena under these circumstances is unduly coercive as the officer must choose between insubordination and exercising his constitutional rights. “The above analysis establishes that Plaintiffs will most likely prevail. A plain reading of Penal Code § 6126.5(d) establishes that OIG had a legal duty to adhere to Government Code § 33036), There is no dispute that the Plaintiff officers were denied representation in their respective interviews, OIG?s only dafense con be thet it deemed the interviows to be oncs that could not lead to punitive action, That defense, however, will nt stand because the determination of when punitive action may arise is not unilateral. ‘The Plaintiff officer's reasonable fears were dismissed and swept aside which is contrary to Government Code § 3303(). 2 ‘The Balance of Hardship Tilts ‘Towards Plaintiffs; OIG Will Suffer No Harm ‘The tight to representation is fundamental in due process and fair play. It is a right POBRA specifically guarantees to peace officers, In the instant case, OIG subjected Plant officers to questioning about topics they had little to no advance notice of. ‘These topies included, among ofhers, incidents of excessive fotve at HDSP by correctional officers and the possible abusive treatment of HDSP inmates, and what the Plaintiff officers might have witnessed or heard u Plaintifis’ Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction10 int 12 13 14 15 16 7 18 19 20 21 2 23 24 25 26 27 28 about these topics. ‘The subject matter of these questions carries enormous tisk for administrative sanction and possible criminal liability. ‘The right to counsel during questioning and to understand the consequences of the answers is crucial. Accordingly, Plaintiff's or other COs will be subject to grave tisk of administrative sanction and possible criminal liability should they be questioned in the future without benefit of legal representation. Defendant O1G, on the other hand, will suffer no harm if ordered to allow officers to have representation, Thus far in its investigation, OIG allowed representatives for officers Rodriguez and Rosales and retired officer Michael Jones and its investigation or ability to ask questions has not been impaired or prevented by the presence of the representatives. OIG has been able to carry out its investigation in the same manner whether ot not representatives are present. ‘Thus, OIG"s investigation practices will not be impaired should a preliminary injunction issue from this Court, B. Government Code § 3309.5 Does Not Require a Showing of Irreparable Harm to Obtain Injunetive Relief In the altemative, Government Code § 3309.5 does not require that irreparable harm be shown to obtain a preliminary injunction. Section 3309.5 specifically places jurisdiction with the superior court to issue injunctive and equitable orders to ensure compliance with POBRA and mandates the issuance of injunctive relief where appropriate to remedy and prevent future violations. In Gales v. Superior Court (City of Pasadena) (1996) 47 Cal.App.4* 1596, the court pointed out that if an officer believes thatthe employer has violated POBRA, the officer is entitled at any time during the investigation to file an action in superior court seeking injunctive or other extraordinary relief pursuant to § 3309.5. Cc Constitutional Violations Warrant Injunctive Relief Govemmental abridgement of constitutional rights constitutes “irreparable injury” which warrants injunctive relief. (U.C. Nuclear Weapons Labor Conversion Project v. Lawrence Livermore Laboratory (1984) 154 Cal.App.3d 1157, 1172.) Indeed, when an alleged deprivation of constitutional rights is involved, most courts hold that no further showing of irreparable harm is necessary. (Gutierrez v. Mun. Ct, of SB. Judicial District (9" Ci. 1988) 838 F-24 1031, 1045.) uw 2 Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Prefiminary Injunctioneet oot) 10 il 12 13 14 1S 16 17 18 19 20 21 22, 23 24 25 26 27 28 1V. CONCLUSION C1G's denial of Plaintiffs’ rights to'a union representative and/or legal counsel is an egregious violation of Penal Code Section 6126.5(@). ‘The harm flowing to peace officers giving compelled, unprotected statements in an investigation focusing upon serious matters that may sinplicate violations of poliey and potential criminal ats is obvious and inrepasable. In enacting Penal Code § 6126.5(d), the Legislature specifically commanded O1G to not thwart representation in matters that could lead to punitive action, ‘The OIG has violated that command by denying the Plaintiff officers their rights guaranteed by POBRA. DATED: December 15, 2015 By: 13 Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction