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408.03000 – Investigatory Interviews

When an employee requests representation in an investigatory interview, the employer may exercise one of three options: (1) it may grant the employee’s request for representation; or (2) it may discontinue the interview; or (3) offer the employee the choice of proceeding with the interview without union representation or having no interview. Where the Association has appointed no DPDs as labor representatives, the Public Defender’s across-the-board prohibition of cross-representation between DPDs and DDAs in any investigatory meetings prevents attorneys in the Office of the Public Defender from ever being represented by Association representatives in investigatory interviews or other disciplinary proceedings. Such action is inherently destructive of both employees’ right to be represented and the Association’s right to represent unit members. A Public Defender has a legitimate reason to exclude DDAs from investigatory meetings, at least where the Public Defender’s client confidential information or Public Defender work product is likely to be revealed. It may also be justified in preventing such cross-representation where the representing DDA is the opposing counsel to the DPD in a criminal case, or in other situations in which the rules of professional responsibility or rules of court require that the representation be disclosed to the Public Defender’s client, and/or that either attorney would be forced to disqualify himself or herself from further representation in the criminal case. Internal office procedures for documenting attorney work do not fall within the definition of attorney “work product.” Although the Public Defender had no power over whom the Association appointed as stewards or representatives, or over the fact that the Association had not appointed any DPDs as labor representatives, and although the cross-representation ban was occasioned by circumstances beyond the employer’s control, the Public Defender had the alternative of declining to proceed with the interview and continue its investigation by other means, or redacting sensitive information from materials involved in the investigatory interview. A Public Defender may not seek to secure for itself the benefits of an investigatory interview with an employee suspected of wrongdoing by compelling the employee’s attendance at the interview, while it denies the employee and the Association their respective representation rights, including the employee’s right to decline to be interviewed without threat of insubordination. When confronted with a DPD’s request for Association representation in an investigatory interview, the Public Defender could either grant the request, or inform the employee that it will not permit the representative to be present, and the employee has the option of attending the interview without a representative or decline to be interviewed. Or the employer may dispense with the interview entirely. The employer may not persist in proceeding with the interview without the employee’s representative present. Nor may the employer threaten the employee with additional discipline for declining to attend the interview without representation. Regardless of whether the Public Defender’s prohibition on cross-representation was justified, the DPD ultimately had the right to decline to be interviewed or to submit to the interview unrepresented. The Public Defender was never privileged to threaten the DPD with insubordination after failing to give him those options. A union representative’s physical presence made her “available” to represent a DPD, and therefore the County (under the Weingarten/Rio Hondo framework) was obligated to give the DPD the choice of proceeding without representation or foregoing the interview, and to refrain from threatening the DPD with discipline for failure to attend the interview. The fact that an employee and his or her union ultimately withdraw their request for representation at an investigatory meeting does not shield the employer from liability for threatening an employee with discipline for insubordination. Advanced notice from an employer that it will ignore the Weingarten/Rio Hondo representation framework is no defense to an actual violation of the law and does not obligate either the union or employee under investigation to accommodate that violation of the employee’s and the union’s rights. A Public Defender is not legally obligated to interview an employee as part of its disciplinary investigation, thus excusing its threat to discipline him for insubordination if he failed to attend the interview. The Weingarten/Rio Hondo framework applies to DPDs and DDAs under the MMBA. Regardless of any alleged past practice between the parties, the Association was within its rights to insist that its statutory right to represent the members of the bargaining unit be honored.