Decision Further Clarifies (and Limits) POBR Statute of Limitations Protections

SCOTT P. THORNE
Attorney
Messing Adam & Jasmine LLP

As many peace officers know, the Public Safety Officers Procedural Bill of Rights Act (POBR) prohibits any public agency investigating an allegation of misconduct from taking punitive action against a peace officer if the investigation is not completed within one year. This statute of limitations serves to ensure that an officer will not be faced with the uncertainty of a lingering investigation. Yet there are numerous loopholes to the statute, and recent court rulings have served to increase these exceptions.

Thus, it was no surprise when, in January of this year, the California Court of Appeal continued the recent trend of limiting peace officer protections. In Garcia v. State Department of Developmental Services, 88 Cal. App. 5th 460, the court held that when one investigation entails separate acts of misconduct discovered on different dates, the one-year statute of limitations will apply separately to each act and run from the date each act was discovered by a person authorized to initiate an investigation. In other words, there will not be a single one-year period of statute of limitations, starting from the date of discovery of the initial act of misconduct, that will apply to all the acts covered by the investigation. Therefore, at the time the notice of adverse action is served upon an officer, some charges for discipline may be time-barred while others are not. This decision is further confirmation that courts will err on the side of limiting the POBR’s statute of limitations protections rather than expanding them.

The facts in Garcia are as follows: The State Department of Developmental Services sustained five misconduct allegations against Sergeant Luis Garcia and, consequently, demoted him to the rank of officer. Garcia appealed the Department’s adverse action, arguing that the one-year limitations period barred the discipline. Garcia claimed that the notice of adverse action was served upon him one year and four months after the Department initiated the investigation into the first alleged act of misconduct, and the one-year limitations period began to run on all acts of misconduct once the agency started the investigation into that first alleged act.

The State Personnel Board (SPB) ruled against Garcia. Though the SPB found that the act of misconduct that was discovered first by the Department was time-barred because it fell outside the statute’s one-year limitations, it ruled that the remaining four acts, which were unrelated to the first and discovered later in time, were not time-barred. It therefore sustained the Department’s decision to demote Garcia.

The Court of Appeal agreed with the SPB that the relevant date to consider when calculating the statute of limitations is the date from “discovery by a person authorized to initiate an investigation” of each of the allegations of misconduct, not the date the investigation was initiated. The court also rejected Garcia’s argument that the Department was required, but failed, to start a distinct investigation each time it discovered a new alleged act of misconduct. The court “[saw] nothing in the text of section 3304(d)(1) that burdens agencies with this unusual requirement.”

Garcia illustrates the importance of determining the discovery dates of misconduct when defending peace officers, even though such a task may prove to be difficult. Despite these difficulties, a peace officer facing discipline must be steadfast in trying to uncover the timeline of the investigation at issue so that they can find sufficient grounds to argue that the discipline is time-barred. As the court noted, “because Garcia present[ed] no evidence of the dates the [Department] discovered, or even should have discovered, his different acts of misconduct that ultimately formed the basis of his demotion, his appeal must fail.” For example, co-workers may harbor stale allegations that come to the surface only after a lengthy period of time. This issue may be examined through testimony in the late stages of appeal. As another example, there may be a lack of documentation by the Department showing when an investigation was initiated. In this case, a peace officer facing discipline may find bargained-for protections inserted in the memorandum of understanding (MOU) between their union and employer and/or the agency’s policy manuals, which require the dates of discovery to be documented by internal affairs as a standard process. In the absence of such protections, it is easy to see how departments might abuse this standard and “hold back” certain allegations to allow more time to investigate.

Numerous MOUs and policy manuals already contain a restatement of POBR and numerous mandates regarding internal affairs investigative process protocols. Multiple California agencies have adopted Lexipol Policy Manuals that contain, for example, sections 1020.6.2 ADMINISTRATIVE INVESTIGATION PROCEDURES, 1020.6.3 INTERNAL AFFAIRS INVESTIGATION PROCESS, 1020.6.4 ADMINISTRATIVE INVESTIGATION FORMAT and 1020.6.6 COMPLETION OF INVESTIGATIONS. To add a requirement for internal affairs investigators to document the discovery dates of misconduct seems to be a natural and necessary progression considering the clarification provided by the Court of Appeal in this case.

About the Author

Scott P. Thorne is an attorney at Messing Adam & Jasmine LLP who uses his background and experience with law enforcement agencies in Northern and Southern California to provide quality representation to peace officers and other public safety employees during investigations, disciplinary hearings and critical incidents.