You are entitled to legal representation any time you are questioned by your Department about matters that could lead to punitive action. Generally, witnesses are not entitled to legal representation unless the answers that they provide could lead to punitive action against them. However, officers should be aware that while the Department may claim the officer is simply a witness and not entitled to legal representation, the failure by that witness to report certain conduct or take an appropriate response could subject that officer to punitive action. Thus, officers should generally seek to have legal representation during any investigation.
However, officers are not entitled to legal representation during “routine counseling” or “verbal admonishment” by a supervisor. The extent to which these exceptions apply is not completely clear. When in doubt, you should always ask your supervisor whether the questioning could lead to discipline, and if the answer is anything other than an unqualified “no,” you should immediately seek legal representation. If your supervisor refuses to allow you to speak to a representative prior to being questioned, ask to record the interrogation and on the record, state something to the following effect: “I understand that I am being ordered to make a report or answer questions and that if I do not comply with the order, I may be disciplined for insubordination. Therefore, I have no alternative but to abide by the order. However, by doing so, I do not waive my Constitutional rights to remain silent under the Fifth and Fourteenth Amendments to the United States Constitution, and the protections afforded me under case law. Furthermore, by submitting to this coerced interview, I am waiving no right afforded me under the Public Safety Officer’s Bill of Rights Act.”