Court of Appeal Finds a Violation of POBRA
BIJAN DARVISH
Attorney
Law Office of Bijan Darvish, APC
In March, after a five-year battle, a California Court of Appeal held that the City of California City violated the Public Safety Officers Procedural Bill of Rights Act (POBRA) and was now barred from taking any punitive action against two former officers for the underlying alleged misconduct.
Back in 2019, officers responded to a call of a subject acting suspiciously at a business in California City. The subject, a felon with seven outstanding no-bail warrants, refused to obey commands, which resulted in a use of force. A local business owner who was greatly involved in city politics pushed to get the officers investigated. After pressure, the Department hired an independent investigator to conduct the investigation. By the time the investigation was complete, the chief of police had retired and the City had hired Jon Walker, a retired sergeant from LAPD, as the new chief of police. As we learned later, Walker had a close relationship with the local business owner, who had Walker identified as a “Certified Instructor” for his local security business.
The independent investigator exonerated the officers on all allegations. Walker was unhappy with the findings and ordered a second investigation to be conducted by an investigator he handpicked. The second investigator, relying in part on surveillance footage from 0.9 miles away, alleged that the officers violated various policies. In August 2020, Walker issued the officers a notice of intent to terminate. However, Walker had bypassed the mandatory division commander review process. Walker ultimately terminated the officers.
PORAC LDF stepped in and funded a PERB unfair practice charge for bypassing the division commander review.1 PERB ruled that the City violated the MMBA when it changed the working conditions by skipping the division commander review. PERB ordered reinstatement, but allowed the Department to conduct the division commander review and proceed accordingly.
The Department reinstated the officers and had the division commander conduct his review. The division commander recommended suspension and not termination. Walker, again unhappy with the results, issued a new notice of intent to terminate. However, by the time the operative notice of intent was issued, the one-year statute of limitations under Gov. Code Section 3304(d) had expired.
PORAC LDF stepped up again and approved litigation to support the officers. We filed a complaint in the Superior Court for violating the one-year statute of limitations under POBRA. We then obtained a temporary restraining order followed by a preliminary injunction preventing the City from taking punitive action against the officers. Although the trial court granted the preliminary injunction, it ultimately found there was not a violation of POBRA. The trial court reasoned that the first notice of intent informed the officers of the proposed discipline as required under POBRA.
We appealed the trial court ruling and pointed out that the first notice of intent was never valid. First, we argued that PERB invalidated the first notice of intent as a matter of law and reversed the process to the point of the division commander review, which was before any notice of intent was issued. Furthermore, PERB did not have authority to rule on any POBRA issues, as jurisdiction lies exclusively with the Superior Court.
Second, we argued that POBRA required that the City “complete its investigation and notify the public safety officer of its proposed discipline” within one year. The City never completed its investigation, because Walker bypassed the division commander review. Therefore, the Department was not permitted to issue the first notice of intent. We argued that holding otherwise would allow departments to bypass steps in the investigatory process in order to satisfy the one-year statute of limitations. That would defeat the purpose of POBRA.
The City argued that the Department policy states the division commander reviews the “completed investigation,” and therefore the investigation was complete before it would have reached the division commander. The Court of Appeal did not buy that argument and ruled that in order for the investigation to be complete under POBRA, it must mean “to mark the end,” “finality” and “nothing remains to be done.”
The Court of Appeal reasoned, “By forcing the agency to not only complete an investigation but notify the officer of proposed action or inaction based on that investigation, section 3304(d) ensures that officers are not left with potential discipline hanging over their heads, furthering POBRA’s purpose: to secure stable employer–employee relations.” The Court of Appeal ended its opinion with some strong language: “In conclusion, we find that, undisputedly, City did not satisfy section 3304(d)’s requirement to ‘complete its investigation’ within the one-year statute of limitations period. City is statutorily barred from undertaking any punitive action related to plaintiffs’ alleged misconduct at issue here.”
The officers look forward to the day when they resume their positions and get back to protecting the community. The officers are thankful for PORAC LDF’s continuous support throughout this entire process.