KNOW YOUR LDF COVERAGE TO MAKE THE BEST DECISION DURING DIFFICULT TIMES

BRANDI L. HARPER

Founding Partner
Castillo Harper, APC

Unfortunately, it may come to pass at some point in your career, there is no easy or clear choice on a decision to be made. An instance that merits discussion is when an officer is facing potential criminal charges for conduct within the scope of their employment as a law enforcement officer. The difficult decision comes when an officer under criminal investigation, or with real criminal exposure, is faced with the decision of making a voluntary statement or participating in an administrative interview.

Deciding to Give the Voluntary Statement
As an example, consider a use-of-force scenario where the department and/or the public have strong opinions on the reasonableness of the force used. Viral videos are becoming more frequent and a very real factor in the decision-making process of the officer in whether to make a voluntary statement.
When a criminal component rears its ugly head, the investigating agency or an outside investigative entity will ask an officer to give a voluntary statement. While the very nature of the term “voluntary” seems to indicate just that, it is not always the case. Occasionally, whether it be the culture of the agency or the opinion of the administration, there will be quite a bit of pressure put on the officer to give a “freely given” statement. Peers in the department may chime in that “officers always give voluntary statements,” or that “it will be unusual or raise a red flag if you don’t give a voluntary statement.”
Despite the pressure the officer may receive, the decision to give a voluntary statement is one that can only be made between the officer and his or her attorney. There are various factors that go into deciding whether to give a voluntary statement, but what other people think or have done in the past should not be part of the decision-making process. Consider this reality as well — a great, articulate voluntary statement does not necessarily stave off a prosecution. The prosecuting agency may deem it to be self-serving, and the actions may still be considered unreasonable, even if the officer subjectively believed otherwise.
If the criminal allegations against the officer are substantial, or if the officer’s department refuses to toll the statute of limitations on the administrative investigation, the subject officer is faced with the difficult choice of whether to provide a voluntary statement to investigators. This statement will go toward the administrative investigation, of course, but the more immediate question is whether to participate in the criminal investigation and waive self-incrimination rights. Also, consider an administrative statement that has been ordered. Unlike the voluntary statement, which should truly be a choice by the officer, failure to provide a compelled statement under Lybarger will likely lead to an insubordination charge, and almost certainly termination. In this circumstance, the officer may opt for resignation to avoid providing any statements whatsoever as the criminal investigation plays itself out.

What About My PORAC LDF Coverage, Then?
A major concern in the instance above is what happens to the criminal coverage from PORAC LDF if the officer resigns. Thankfully, PORAC LDF has a provision for these circumstances that allows members to continue receiving criminal coverage on the criminal case in instances where the officer is faced with the difficult decision to resign. Having a PORAC LDF panel attorney to guide you through this process is imperative. There are certain requirements that must be met to ensure that coverage continues.

PORAC LDF Extended Coverage in Case of Resignation
According to the PORAC LDF Plan Document, extended coverage is granted in the following circumstances: after involuntary termination, or after what amounts to a strategic, forced resignation, and after an honorable retirement.
Article II, Section 5 (a), excerpted below, discusses involuntarily terminated participants:
(i) A Participant who is being involuntarily terminated shall be entitled to benefits for actions arising from events involving the involuntary termination of employment.
(ii) Provision of benefits for one type of action, i.e., administrative, shall not automatically entitle the Participant to benefits for another type of action, i.e., criminal.
(iii) If coverage has been granted under subsection (a)(i) above and a second or subsequent action involving the Participant is commenced after termination of employment, the Participant shall be entitled to benefits for the second or subsequent action only if (1) the new action arises from the events giving rise to the involuntary termination and (2) the Participant notifies the Legal Administrator of the second or subsequent action within twelve (12) months of termination of employment.
(iv) A Participant who is being or has been involuntarily terminated shall be entitled to benefits for (1) actions for which coverage was granted prior to termination of employment and (2) actions involving events which preceded and are unrelated to the events involving the termination of employment, provided that the Participant notifies the Legal Administrator of the action within twelve (12) months of termination.
(v) A Participant who resigns after the occurrence of any of the following shall be deemed to have been involuntarily terminated for purposes of civil and criminal coverage only:
(A) receipt from his or her employer of a formal written notice of intent to terminate, i.e., a Skelly notice; or
(B)  the existence of surrounding circumstances which clearly and convincingly indicate that issuance of a Skelly notice is imminent; or
(C) the Participant’s assigned Panel Attorney or Field Representative has advised the Participant to resign, with the advice being reduced to writing, signed by the Participant, and transmitted within five (5) working days of signing to the Legal Administrator; or
(D) other good cause as determined by the Board of Trustees.

Article II, Section 5(c), excerpted below, discusses honorably retired members and extended coverage:
“If a Participant retires pursuant to the retirement rules of his or her jurisdiction, the Participant shall be entitled to civil and criminal coverage for any act or omission occurring prior to retirement and while he or she was a Participant. Only in exceptional and compelling circumstances as determined by the Board of Trustees in its sole and unreviewable discretion may a Participant be granted administrative disciplinary coverage for such an act or omission. This coverage limitation applies to cases pending at retirement and to cases initiated after retirement.”
This coverage is not automatic and, in some instances, has a very short timeframe to notify LDF that a member is requesting continued coverage under these provisions. Make sure to keep your PORAC LDF attorney apprised of all developments. And just as importantly, be upfront with them. Your attorneys are here to help you through the most difficult times, and choices, of your career. Strategic decisions are not always the easiest and clearest of options. Together, you can navigate those tough times and keep your coverage intact.

About the Author
Brandi L. Harper is one of the founding partners of Castillo Harper, APC. She has been named a California Super Lawyer Rising Star since 2019 and has received an AV Preeminent rating by Martindale-Hubbell. Her practice focuses on representation of first responders in administrative, labor, criminal and family law matters.