When Does The Limitations Period Begin?
Rains Lucia Stern St. Phalle & Silver, PC
Pursuant to the Public Safety Officers Procedural Bill of Rights Act (POBRA; Government Code section 3300, et seq.), an agency must conduct its administrative investigation of misconduct and notify the employee of the proposed discipline within one year of discovery by a person “authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.” “[T]he one-year limitations period under Government Code section 3304, subdivision (d)(1) begins to run when a person authorized to initiate an investigation discovers, or through the use of reasonable diligence should have discovered, the allegation of misconduct” (Pedro v. City of Los Angeles  229 Cal.App.4th 87, 106).
In a typical administrative investigation, a citizen may call in and complain to an agency about an officer’s behavior. Usually, this call is taken by a supervisor, such as a lieutenant or sergeant on duty. Some agencies have policies that call for a supervisor to conduct a “fact-finding” or “preliminary inquiry” to ascertain if the complaint is plausible or has potential merit. The supervisor may review reports or computer records, and may speak to witnesses, including the subject officer, as part of this “inquiry.” These initial investigations are typically documented in a memorandum and sent up the chain of command.
In some agencies, it is not until after this initial inquiry that an official internal affairs investigation case is opened. Many agencies require that the official request for the internal affairs case be made by a higher-level supervisor, such as a captain or above. Problematically, several agencies are taking the position that this initial “inquiry” does not start the one-year limitations period if the initial supervisor is not authorized to open an official internal affairs investigation.
In one case involving the LAPD, the City of Los Angeles, relying upon a City Charter provision, argued that the one-year limitations period did not begin running until allegations were reported to the chief of police (Jackson v. City of Los Angeles  111 Cal.App.4th 899, 905). The court agreed with the employee that POBRA prevails over the City Charter because POBRA was created to address a matter of statewide concern of maintaining stable relationships between police officers and their employers. Further, the City had issued an administrative order that specified a sergeant could begin an administrative investigation into officer misconduct. As a result, the court concluded, pursuant to the City’s own rules, a sergeant’s date of discovery, not the chief of police’s knowledge, began the limitations period.
The Jackson case recognized the right of agencies to create policies and rules that only allow for a high-level executive to initiate formal internal affairs investigations, which many have done. Agencies have creatively called the initial investigations carried out by sergeants and lieutenants “inquiries.” Many of these policies define “inquiries” as fact-finding missions to ascertain more about the alleged misconduct. After the inquiries are completed and documented, typically in a memorandum, they are forwarded through the chain of command until they reach the person designated to open an official internal affairs investigation. Agencies have been utilizing this method of opening investigations to effectively buy more time to conduct investigations.
The recently decided case of Ochoa v. County of Kern (2018) 22 Cal.App.5th 235 provides a solid basis for arguing that the statute of limitations period begins at the start of the fact-finding process. In Ochoa, a deputy contended that the statute of limitations began to run upon knowledge of alleged misconduct by a sergeant, despite department policy specifying that only a chief deputy was authorized to initiate the formal internal affairs investigation.
The court considered whether the sergeant’s “fact-finding inquiry” into potential policy violations constituted an “investigation” within the meaning of Government Code section 3304(d). First, it looked to the language of the statute itself and noted that POBRA does not create a unique definition of the term “investigation.” The court then referred to the dictionary’s definition of the term “investigation”: “a detailed examination or search, often formal or official, to uncover facts and determine the truth.”
The court noted, however, that protections of POBRA only apply to those investigations “that could lead to punitive action” (Gov. Code, section 3303) and analyzed whether the sergeant’s fact-finding could lead to punitive action. The Ochoa court also found it important that the sergeant had the authority to issue a written reprimand as a result of his inquiry.
In concluding that the sergeant’s inquiry was an investigation within the meaning of Government Code section 3304(d), the court explained that “punitive action … may exist when action is taken which may lead to the adverse consequences specified in section 3303 at some future time” (Ochoa, 231 Cal.Rptr.3d 274, 284, citing to Otto v. Los Angeles Unified School Dist.  89 Cal.App.4th 985, 996). It reasoned that, based on the facts, it was easy to determine that the sergeant’s inquiry might have led to punitive action. When the sergeant prepared his memorandum and forwarded it through the chain of command, an internal affairs investigation that ultimately led to the employee’s discipline was initiated. The court, therefore, ruled that the statute of limitations began running on the date the sergeant had notice of the potential misconduct.
The court’s holding in Ochoa can be used by peace officers to argue that POBRA’s statute of limitations begins at the start of the fact-finding process by the employer, even if the fact-finding is by someone who does not have the authority to open an official internal affairs investigation. It will prevent agencies from expanding the limitations period by having an initial inquiry done by a low-level supervisor and designating a higher-level supervisor as the only individual capable of initiating formal investigations. This rule is a fair interpretation of the statute and its purpose of providing assurance “that an officer will not be faced with the uncertainty of a lingering investigation” (Ochoa, supra, 231 Cal.Rptr.3d at p. 282, quoting Mays v. City of Los Angeles  43 Cal.4th 313, 322).
The case also leaves the door open for future challenges to employers’ questionable practices related to inquiries performed by supervisors. For example, if an inquiry conducted by a supervisor is an investigation that may result in punitive action, shouldn’t the other protections from POBRA also come into play? In the case of Steinert v. City of Covina (2006) 146 Cal.App.4th 458, a supervisor questioned a police officer about a minor mistake for purposes of training. The court of appeal held that this type of questioning was a routine interrogation in the normal course of duty, counseling or informal verbal admonishment, falling within the exception to the protections of POBRA (Gov. Code, section 3303, subd. [i]). The court found it important that the supervisor believed this to be a training issue, with no other knowledge of improper action, and that he intended to only verbally counsel the officer regarding the mistake he was aware of at the time.
By contrast, in Ochoa, the sergeant had received a complaint of harassment and began his investigation by contacting the complaining party prior to questioning the officer. The fact-finding investigation by the sergeant was to “determine what the nature of the complaint was.” The sergeant was authorized to issue a written reprimand if he determined that no serious or criminal violation had occurred. The sergeant, however, prepared a memorandum that was submitted through his chain of command, pursuant to the County’s policies, and ultimately initiated an internal affairs investigation and the discipline of the deputy sheriff.
In determining whether the protections of POBRA apply to a “fact-finding” investigation by a supervisor, the supervisor’s knowledge of potential misconduct when questioning the officer, the supervisor’s intention when contacting the involved officer, and an agency’s policies about the potential implications of such an inquiry become important factors.
Another potential implication from the Ochoa case involves a recent holding in Santa Ana Police Officers Association v. Santa Ana (2017) 13 Cal.App.5th 317, which requires investigators, prior to a second interview, to provide any recordings, stenographer notes, reports and complaints to the subject officer. If an agency questions a subject officer during a “fact-finding” inquiry, the inquiry should be considered an “interrogation” subject to the protections of POBRA, and the requirements set forth in Santa Ana therefore are applicable.
Many agencies have hidden behind the mask of “preliminary inquiry” and fervently denied they are conducting an investigation or interrogation of an employee during this “inquiry” prior to initiating a formal administrative investigation. This ruling by the court makes it arguable that many more of POBRA’s protections apply to such an inquiry.
About the Author
Amanda Waters-Luttrell is a member of the Rains Lucia Stern St. Phalle & Silver Legal Defense Group. Amanda represents peace officers in administrative investigations, disciplinary appeals, critical incident investigations and criminal investigations.