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Frequently Asked Questions

Castillo Harper, APC

Internal Affairs

What is required to be in your written IA notice?

1.The subject matter/nature of the investigation
2.The names of the interrogators (only 2 can ask questions)
3.The date, time, and location of the interview/interrogation

What happens at Skelly?

The Skelly meeting is the opportunity for you to have an informal discussion with the decisionmaker (generally your Chief) to negotiate your discipline. it is an effort to discuss your side of the story and explain why either certain policy violations should not be sustained and/or why the proposed discipline should be changed.

What can Toll your IA?

1. Criminal investigation or criminal prosecution. 
2. Written waiver. 
3. Multijurisdictional investigation.
4. Involves more than one employee and requires a reasonable extension.
5.Involves an employee who is incapacitated or otherwise unavailable.
6. Involves a matter in civil litigation where the public safety officer is named as a party defendant.
7. Involves a matter in criminal litigation where the complainant is a criminal defendant.
8. Involves an allegation of workers’ compensation fraud on the part of the public safety officer.

How long does your department have to discipline you?

The short answer is ONE YEAR. Your department must inform you of its intent to discipline you within one year of the incident or discovery of the incident. However, as with any rule, there are exceptions. The case and discipline can be tolled for several reasons, as described in California Government Code section 3304 (d) and described in FAQ #3. 

What is Lybarger Admonishment?

It is basically an administrative order advising an officer to answer questions or be subject to discipline for not doing so. Additionally, the statement is to be used for administrative purposes only (not criminal).

Will I get to see the entire investigation?

Hopefully not! You will only get to see the entire investigation if the allegations against you are sustained and you are being disciplined. As much as you may want to see the investigation, at the end it is actually a bigger win to not!

Critical Incidents

What is a Public Safety Statement?

A Public Safety Statement is when an on-scene Law Enforcement Supervisor obtains questions regarding an Officer-Involved Shooting, In-Custody Death, or Officer-Involved Discharge which had just occurred. The scope of questioning by the supervisor is limited to the time sensitive critical information reference the immediate aftermath of the critical incident. The questions are intended to determine existing threats to the public’s safety and to identify any evidence which must be preserved.

Will I be given Lybarger/Miranda?

No, Lybarger and or Miranda will not be given due to the exigent circumstances of obtaining such safety information. The response to the Safety Statement Questions should be brief and limited to only the question asked. Because this line of questioning is designed to be obtained solely for the purpose of gathering time-sensitive information which pertains the public’s safety, a Safety Statement will be considered a compelled statement and should be handled by an uninvolved supervisor when possible. Additionally, if you give a voluntary statement to criminal investigators after the incident you will be doing so voluntarily thus Miranda and Lybarger will not apply.

Do I have privileged communication with my Union Rep based on communications with him/her during the critical incident?

No-unless they are an attorney. Because critical incidents are criminal in nature, there is no privileged communication between you and your union representative. Therefore, make sure you only talk about the facts, circumstances, and details of the incident with your attorney.

Why is the interview not conducted by IA?

A critical incident is considered a criminal matter and thus the criminal investigation is conducted by the corresponding jurisdictional agency. Due to the intense and detailed investigation that a criminal investigation of such critical incidents demand, IA will usually have more than enough information to conclude their investigation by reviewing the criminal investigation. However, if there are potential policy violations, there may be a subsequent investigation by IA to address those issues.

Why is DOJ involved?

Generally, they are involved when the critical incident involves an unarmed citizen. As stated in SB 1506, “This bill would require a state prosecutor to investigate incidents of an officer-involved shooting resulting in the death of an unarmed civilian….” The Department of Justice is required to be involved in a critical incident as the non-bias investigating agency.

Family Law

What is the difference between legal and physical custody?

Legal Custody allows that parent to have decision making power over all legal aspects such as medical treatment, religious activities, school enrollment, etc..

Physical Custody determines who has physical care over the minor child.
Courts generally prefer the parents have joint legal custody so that they can share in the legal decision making for the minor child.

What is a Request for Order (RFO)?

A Request for Order is a motion filed with the court asking for a court order related to one or more issues involved in your family law case. 

Can the other parent and I agree on a child support amount?

Yes, BUT you want to make sure that agreement is in writing and is reasonable. If your matter is in court and you are going to agree to an amount that is different than guideline support than you must explain the reason for deviating from guideline support.

What is a legal separation?

Legal separation is recognition of the parties separation but maintains the parties as married status.  Parties can enter into a legal separation and later dismiss the matter in the case of reconciliation or amended to a dissolution/divorce if the parties decide to end their marriage.  

Can everything be included in a prenuptial agreement?

Pretty much anything can be included in a pre-nuptial agreement.  One thing that can not be included in a pre-nuptial agreement is a waiver of Child Support.  One thing that if often forgotten but easy to include in an agreement are pets.

How is a date of separation determined?

Date of separation is the date the parties have stated that they have decided to terminate the marriage and have no intention of reconciliation. In modern times, there is often a text message or two pointing to the date of separation. In California, the parties can still be living in the same home after the date of separation, so living separately is not required in order to be separated. Although date of separation is generally straightforward it needs to be dealt with on a case by case basis.

Civil Law

What is qualified immunity?

Qualified Immunity is a judicial doctrine that protects state actors from liability in certain instances. Qualified Immunity was created by a series of U.S. Supreme Court cases, most significantly Harlow v. Fitzgerald, Saucier v. Katz, and Pearson v. Callahan. Qualified Immunity protects government officials from being held personally liable under federal law for conduct that did not violate a “clearly established” law.

Non-Profit Formation

What is the difference between a 501(c)(3) and 501(c)(5)?

-An authorized 501(c)(3) organization provides for tax-exemption and is commonly referred to as a charitable organization which allows for tax-deductible contributions.
-An authorized 501(c)(5) organization provides for the exemption from federal income tax of labor, agricultural or horticultural organization.

Does our association need to be a 501(c)(5)?

While you can operate as an association without this designation, you would not realize the benefits of being an authorized 501(c)(5), mainly the ability to forego paying taxes on income received (such as dues). There are benefits of being an authorized employee organization such as IRS exemption from federal income tax to labor groups. This means no income taxes on dues collected, or taxes on interest-earned on investments. It allows your association the ability to engage in PAC or political endeavors. YOU CANNOT do that as a 501(c)(3). While donations are not deductible as charitable contributions, typically a least a portion of the member’s dues may be deductible as a miscellaneous itemized deduction.

Does our association need a 501(c)(3)?

Your association does not need a 501(c)(3) but many local businesses will not donate without this designation, as they will not receive the tax benefit to their business. There are many benefits of having a 501(c)(3), which include the ability to accept contributions and donations that are tax-deductible to the donor; exemption from federal and state income taxes; and in California, it gives you an exemption form sales/use tax.

Do I need bylaws?

Yes, the IRS requires bylaws to be included in any formation of a corporation. These are the governing documents that define how your corporation will operate.

What is the first step?

First step is determining the name of the corporation and enduring it is available, then filing your articles of incorporation with your local Secretary of State. 

How long does it take to get tax-exempt status?

There are many steps and many government entitites to apply with so the process can take anywhere between 6 months to and beyond a year. 

Other Topics

What are "Ground Rules" and are they required?

-“Ground Rules” are agreed upon rules about how the negotiations process will proceed. They usually outline the number of people on each side, scheduling of meetings, ability to caucus, etc.

-“Ground Rules” are not required for bargaining, but many employers will want them before proceeding with negotiations.

Can an employer unilaterally impose "Ground Rules" without meet and confer?

No, parties must bargain over “Ground Rules” in the same manner they must bargain over any other term or condition of employment. (County of Orange (2018) PERB Decision No. 2594-M, pp. 8-16.)

What are mandatory subjects of bargaining?

California Government Code 3504 states, “The scope of representation shall include all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.”

This is by no means an exhaustive list, but some items of mandatory subjects of bargaining are wages, hours, conditions of employment, longevity, call back pay, merit pay, overtime, leaves, length of work shifts, fixed or rotating shifts, safety issues, employee discipline, and conditions involved union activities.

What is a Ratification vote?

Once a tentative agreement is reached by the employee organization negotiation’s team, a ratification vote is the process by which members of the employee organization vote to accept or reject the Tentative Agreement in accordance with their governing bylaws.

What happens if no agreement is reached?

Depending on the individual employer’s rules and regulations on negotiations, impasse is declared. Mediation and Fact-Finding follow and costs are split by the employer and employee organization.

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