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HomeMy WebLinkAbout108.003 - Demand for Witness FeesEffective Date: October 2007 Section 108.003 Current Revision Date: 4/1/2022 ADA Next Revision (2) Date: 4/1/2024 Page 1 of 6 100 Administrative Manual SECTION 108.003 DEMAND FOR WITNESS FEES PURPOSE The purpose of this policy is to establish guidelines for obtaining witness fees when a member of the Fresno Fire Department (FFD or Department) is subpoenaed. APPLICATION Whenever a member of the Department is subpoenaed to serve as a witness, he or she may be entitled to recover compensation in the form of witness fees for such service. OPERATIONAL POLICY This section intentionally left blank. OPERATIONAL GUIDELINE This section intentionally left blank. PROCESS When a Department member is served with a subpoena as a witness in a case involving City business or alleged City involvement, the member should first determine whether the subpoena is a criminal or civil subpoena. Examples of a criminal subpoena (Exhibit A) and a civil subpoena (Exhibits B through F) are attached. Please note, the subpoena itself indicates whether it is a civil subpoena or a criminal subpoena in the heading just below the case name. Depending on the type of subpoena, the member shall then take the following steps: CRIMINAL SUBPOENA Appearance in Court or at Hearing A criminal subpoena (Exhibit A) requiring the appearance of a member as a witness in connection with an event the member observed or investigated in the course of the Fresno City Fire Department Effective Date: October 2007 Section 108.003 Current Revision Date: 4/1/2022 ADA Next Revision (2) Date: 4/1/2024 Page 2 of 6 member’s duties as a City employee shall be served by delivery directly to the member or by delivery of two copies to the member’s immediate supervisor (California Penal Code, Section 1328(c)). No witness fees should be demanded by the person sought to be served at the time of service. Members being served should refuse service of the subpoena unless the member is a) the person named in, and sought to be served by, the subpoena, or b) is the person authorized to receive service as the Custodian of Records of the Department. If service is made upon the immediate superior, the immediate superior shall deliver a copy of the subpoena to the member as soon as possible and in no event later than a time which will enable the member to comply with the subpoena (California Penal Code, Section1328(c)). Once served, either by personal service or through the immediate supervisor, the named member must appear as required by the subpoena. After appearance in court, the member subpoenaed should request the subpoenaing party for payment of witness fees and expenses pursuant to California Penal Code, Section 1329. The current rate for witness fees is $12 per day for each day in which testimony is given. The judge will then decide whether such fees and expenses will be paid. If the judge orders the fees and expenses to be paid, the member shall remit this money and a copy of the subpoena to the Fire Department Finance Section for deposit with the City Finance Department. Production of Documents (Subpoena “Duces Tecum”) In addition to requiring the member to appear and offer testimony in court, a criminal subpoena “duces tecum” may also request the production of documents (Exhibit A.) If the subpoena requests the production of any documents, the City Attorney’s Office shall be promptly informed through the member’s immediate supervisor as soon as possible and before the time of appearance in court. The responsive documents should be retrieved and provided to the City Attorney’s Office. The City Attorney’s Office will review the responsive documents to determine if the documents are confidential and not subject to disclosure. If appropriate, the City Attorney’s Office will submit written objections to the request for production of documents. CIVIL SUBPOENA: WITNESS / INVESTIGATIONS A civil subpoena may either require attendance at a trial or at a deposition and may request the production of certain documents. Civil Trial Subpoena A civil trial subpoena (Exhibit B) requiring the personal appearance of a member as a witness in connection with an event the member observed or investigated in the Effective Date: October 2007 Section 108.003 Current Revision Date: 4/1/2022 ADA Next Revision (2) Date: 4/1/2024 Page 3 of 6 course of his/her duties shall be served by delivery directly to the member or to the member’s immediate supervisor (California Government Code, Section 68097.1(a)). Sworn Firefighters or Peace Officers The amount of $275, together with the subpoena, must be tendered to the person accepting the subpoena for each day a sworn firefighter or peace officer is required to remain in attendance pursuant to the subpoena (California Government Code, Section 68097.2(b)). Do not accept the subpoena unless a) payment of $275 has been attached for each day the member is required to be in attendance; b) a numbered receipt is provided with the subpoena showing payment of the $275 deposited with the court or the Fire Department; or c) there is a court order relieving the subpoenaing party from payment. If payment is attached to the subpoena, the member must promptly provide it to the member’s immediate supervisor. If a receipt is provided, the member shall contact the Department’s accounts receivable at 621-4000 to confirm the witness deposit has been made. If there is a court order relieving the subpoenaing party from payment, the member must promptly provide it to the member’s immediate supervisor. The member shall keep a record of the total number of days and hours each day in attendance and actual travel expenses incurred due to appearing at the hearing. Such information, together with a copy of the subpoena, shall be submitted to the Finance Section. The City Finance Department will compute the costs of attendance of the member, including fringe benefits and travel expenses, and bill the court or hearing body in possession of the deposit. If payment of the $275 was received by the City with service of the subpoena, and the costs of attendance of the member are less than that amount, the City Finance Department shall refund any remaining amount to the party from whom payment was received. If there is a court order relieving the subpoenaing party from payment, no amounts may be billed (California Government Code, Section 68097.55). If fees were not properly tendered at the time of service before the scheduled appearance, the person subpoenaed should request the subpoenaing party for payment of witness fees and expenses pursuant to California Government Code, Section 68097.2(b) for each day of testimony. Fire Department Members Not Sworn Firefighters or Peace Officers If a Department member is not a sworn firefighter or peace officer, witness fees are currently set at $35 per day plus $0.20 per mile actually traveled (California Government Code, Section 68093). The subpoenaing party has the option of paying these fees either with the service of the subpoena or at the time of the deposition. Effective Date: October 2007 Section 108.003 Current Revision Date: 4/1/2022 ADA Next Revision (2) Date: 4/1/2024 Page 4 of 6 Civil Deposition Subpoena A deposition is a process by which a member will testify under oath in response to questions by attorneys, but without a judge and jury present. At the time of service of the civil deposition subpoena for personal appearance and production of records (Exhibit D), the member shall request witness fees in the same manner as required for civil trial subpoenas, and shall also comply with the same requirements for recording time and travel expenses. If the member has received a civil subpoena for deposition testimony and no witness fees were properly tendered at the time of service, sworn firefighters or peace officers shall request payment of $275 from the attorney issuing the subpoena at the beginning of the deposition. If a member of the Department is not a sworn firefighter or peace officer, witness fees are currently set at $35 per day plus $0.20 per mile actually traveled (California Government Code, Section 68093). The subpoenaing party has the option of paying these fees either with the service of the subpoena or at the time of the deposition. Civil Subpoenas: Production of Documents In addition to requiring the member to appear and offer testimony in court or at a deposition, a civil subpoena may also request the production of certain documents or items (Exhibits D and E). On the other hand, some subpoenas may request only the production of business records without the requirement of any personal appearance by the member or the custodian of records (Exhibit F). In all cases where the subpoena requests the production of any documents, items, or business records, the City Attorney’s Office shall be promptly informed through the member’s immediate supervisor as soon as possible and before the time of appearance in court and/or deposition. The responsive documents should be retrieved and provided to the City Attorney’s Office. The City Attorney’s Office will review the responsive documents to determine if the documents are confidential and not subject to disclosure. If appropriate, the City Attorney’s Office will submit written objections to the request for production of documents. Deposition subpoenas for only production of business records are generally addressed to the Custodian of Records. Service may be accepted by the Department’s designated Custodian of Records. No other member shall accept service of a deposition subpoena for only the production of business records. If the City is not a party to the action it is also entitled to recover all reasonable costs incurred in producing business records, including staff time, at the rates set forth in California Evidence Code, Section 1563. The Custodian of Records or designated members should first demand payment of the costs of production when the documents are ready to be delivered. No records should be delivered until payment is actually received by the designated member or custodian of records. Effective Date: October 2007 Section 108.003 Current Revision Date: 4/1/2022 ADA Next Revision (2) Date: 4/1/2024 Page 5 of 6 SUBPOENAS (CRIMINAL OR CIVIL) NOT INVOLVING CITY BUSINESS Not all subpoenas will involve cases concerning City business or alleged City involvement. Instead, a member may be served a subpoena for events, which were observed in his/her individual capacity, involve personal business, and/or which were not witnessed or investigated as part of the member’s duties. Examples of such events generally include marital dissolution proceedings, collections, foreclosures, etc. A member may personally accept service of a subpoena for a personal matter or other events. However, the immediate supervisor shall not accept service on behalf of the member for cases which do not involve City business. If any member is compelled by subpoena to testifying at any hearing or trial during on- duty hours, the member must obtain approval from the department director and comply with the provisions of the Fresno Municipal Code, Chapter 3, Article 1, Section No. 3-109(a). In the event circumstances arise, which are not specifically addressed in this policy, the member may request clarification from his/her respective Division Manager or the Personnel Officer. INFORMATION This section intentionally left blank. DEFINITIONS This section intentionally left blank. Effective Date: October 2007 Section 108.003 Current Revision Date: 4/1/2022 ADA Next Revision (2) Date: 4/1/2024 Page 6 of 6 CROSS-REFERENCES California Penal Code Sections 1328 (c) and 1329 California Government Code Sections 68093, 68097.1 (a), 68097.2 (b), and 68097.55 California Evidence Code Section 1563 Fresno Municipal Code Chapter 3, Article 1, Section No. 3-109 (a)