Statute of Limitations Benefits Public Safety Officers
By: Robert W. Krause
Castle & Krause
For too many years public safety officers were at the
mercy of their departments when it came to timelines in bringing
administrative charges after the department knew, or should have known
of alleged misconduct. Absent some "local" rule or Memorandum
of Understanding provision governing such a timeline the departments
pretty much had an open ended period, subject only to the equitable
doctrine of laches (an unreasonable delay which resulted in prejudice to
the officer’s defense). The courts, let alone administrative bodies,
rarely granted such relief. Statutes of limitations applied in virtually
every aspect of the law, civil, criminal and administrative, but not to
the public safety officers exercising their rights under the POBR (Gov.
Code Section 3300, et seq.).
To remedy this anomaly, PORAC and others helped to
get an amendment to the POBR passed. That amendment came in the form of
Gov. Code Section 3304(d), which is set forth below:
"(d) Except as provided in this subdivision and
subdivision (g), no punitive action, nor denial of promotion on grounds
other than merit, shall be undertaken for any act, omission, or other
allegation of misconduct if the investigation of the allegation is not
completed within one year of the public agency's discovery by a person
authorized to initiate an investigation of the allegation of an act,
omission, or other misconduct. This one-year limitation period shall
apply only if the act, omission, or other misconduct occurred on or
after January 1, 1998. In the event that the public agency determines
that discipline may be taken, it shall complete its investigation and
notify the public safety officer of its proposed disciplinary action
within that year, except in any of the following circumstances:
(Emphasis Added)
(1) If the act, omission, or other allegation of misconduct is also the
subject of a criminal investigation or criminal prosecution, the time
during which the criminal investigation or criminal prosecution is
pending shall toll the one-year time period.
(2) If the public safety officer waives the one-year time period in
writing, the time period shall be tolled for the period of time
specified in the written waiver.
(3) If the investigation is a multijurisdictional investigation that
requires a reasonable extension for coordination of the involved
agencies.
(4) If the investigation involves more than one employee and requires a
reasonable extension.
(5) If the investigation involves an employee who is incapacitated or
otherwise unavailable.
(6) If the investigation involves a matter in civil litigation where the
public safety officer is named as a party defendant, the one-year time
period shall be tolled while that civil action is pending.
(7) If the investigation involves a matter in criminal litigation where
the complainant is a criminal defendant, the one-year time period shall
be tolled during the period of that defendant's criminal investigation
and prosecution.
(8) If the investigation involves an allegation of workers' compensation
fraud on the part of the public safety officer.
(e) Where a predisciplinary response or grievance procedure is required
or utilized, the time for this response or procedure shall not be
governed or limited by this chapter.
(f) If, after investigation and any predisciplinary response or
procedure, the public agency decides to impose discipline, the public
agency shall notify the public safety officer in writing of its decision
to impose discipline, including the date that the discipline will be
imposed, within 30 days of its decision, except if the public safety
officer is unavailable for discipline.
(g) Notwithstanding the one-year time period specified in subdivision
(c), an investigation may be reopened against a public safety officer if
both of the following circumstances exist:
(1) Significant new evidence has been discovered that is likely to
affect the outcome of the investigation.
(2) One of the following conditions exist:
(A) The evidence could not reasonably have been discovered in the normal
course of investigation without resorting to extraordinary measures by
the agency.
(B) The evidence resulted from the public safety officer's
predisciplinary response or procedure.
(h) For those members listed in subdivision (a) of Section 830.2 of the
Penal Code, the 30-day time period provided for in subdivision (e) shall
not commence with the service of a preliminary notice of adverse action,
should the public agency elect to provide the public safety officer with
such a notice.
Like most statutes of limitations, Section 3304(d) has a number of
tolling provisions. Officers and their representatives need to be very
aware of the intricacies of each tolling provision. I will explore some
that have already surfaced and attempt to give some direction in those
we anticipate.
Since this is a very new area of law, as law goes,
cases have not yet worked their way through the Appellate courts. I can
only share with you issues we and others have faced and anticipate
facing to date.
1. Section 3304(d)(5). Department Claim of
Unavailable Officer
At least one department has taken the position that
the 17 months it took to issue its notice of an 80 hour suspension was
"tolled" because the officer was out on "4850" time.
The department reasoned that 4850 time made the officer
"incapacitated or unavailable" under the code. We disagreed.
This officer was on light duty twice during the one-year statutory
period. He had been served with legal service to attend depositions and
medical examinations by the city, had been called in to surrender
equipment and was interviewed by the department on unrelated internal
affairs and criminal matters. In short, he was always only a phone call
away, except of course when the department had a legal duty to serve
him. Now they seek cover under this tolling exception. Our argument, not
surprisingly, fell on deaf ears during the Skelly process. The
matter is now pending before the San Bernardino County Superior Court in
Reed vs. City of Rialto Police Department, et al, Case No. SCVSS 087237.
2. In a recent case pending against the Seal Beach
Police Department the Orange County Superior Court issued a preliminary
injunction against the department for failure to meet the one-year
statute of limitations under 3304(d). The court would not consider the
merits of the allegations against the officer. In short, if the
department blew the time then they were dead in the water, the nature of
the charges do not matter. The case is set for trial in June 2002.
The department tried to be cute in their approach.
They had not completed their investigation but gave the officer
"notice" anyway. They inadvertently included in their notice,
and other documents, that the case had not really been completed. The
department tried to convince the court that since "notice" was
given they were in compliance. That failed. Just prior to giving
"notice" the department tried to get the officer to sign a
time waiver. He wouldn’t.
BE VIGILANT IN MONITORING YOUR CASES
Rest assured, departments will get very creative in
their approaches to avoid being bound to this one-year limitation. As
already stated, we are seeing the application of the "we can do no
wrong" doctrine. Be aware of the limitations period, when it began
and when it ends, and hold your department accountable. If, as above,
you have an officer out on 4850 or other extended leave, make sure you
document all compelled appearances and contacts with the department
during the period of absence.
This office alone has recently sent roughly 10
"notice" letters to department heads advising that the statute
had run on various open I-A cases. Those notice letters included a
demand that no reference to the I-A/complaint be included in the officer’s
file. Our reasoning is that since the statute requires action within the
one-year period that inaction ends the matter. Some have answered in
agreement; others are considering their options. Some will no doubt
fight.
Vigilance also requires analysis of the various
exceptions against the facts facing the individual officer. Monitor the
collateral criminal investigation. Note its start and end dates, use
those dates to your member’s advantage. Never sign a waiver without
consulting legal counsel. Never means just that . . . never. Know all
the involved parties and agencies. Track their involvement for start and
end dates. Do not allow your department to hide behind false tolling
scenarios. Take the initiative to be aware . . . use this relatively new
statute of limitations to the benefit of your members.
About the Author: Bob Krause is a former (now
retired) sergeant with the Oceanside Police Department where he served
many years as president and negotiator for the OPOA. Krause is a partner
in the Law Office of Castle & Krause, Temecula, CA, and has been
representing the interest of public safety officers for the past 17
years throughout southern California.
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