Court Upholds Officers’ Rights

Posted on Sunday, August 01, 2004 at 12:00PM

In the recently published decision of Alameda v. State Personnel Board, the California Court of Appeal, Third Appellate District, made two critical findings while interpreting the rights of officers pursuant to the Public Safety Officers’ Procedural Bill of Rights Act. (Government Code Section 3300, et seq.) The case was one of such far reaching significance that the PORAC Legal Defense Fund felt compelled to file an Amicus Curiae brief on behalf of the Fund, which was submitted by William J. Hadden of Silver, Hadden & Silver.

First, the court sustained the right of an officer to raise an alleged violation of the act before an administrative hearing body, holding that the power of “initial jurisdiction” conferred upon Superior Courts by Government Code Section 3309.5 to review alleged violations of the act does not constitute “exclusive jurisdiction.” Accordingly, officers may elect to choose to remedy alleged violations of the act in Superior Court or in an administrative forum. Second, the court ruled that the one-year statute of limitation set forth in Government Code Section 3304(d) for administrative disciplinary investigations may not be extended by an allegation of dishonesty stemming from an officer’s mere denials during an interview. Thus, it was held that when an officer denied allegations of sexual misconduct during his interrogation eight months from the onset of the investigation, but was charged with allegations of dishonesty based on those denials over four months later, the department’s action was barred by the one-year rule.

The court’s decision stemmed from the following facts. Nathan Lomeli, an officer with the California Department of Corrections (CDC) was charged by the District Attorney’s office with sexual assault. Six months later, the charges were dismissed. CDC then started an administrative investigation. Since Section 3304(d)(1) allows for the “tolling” (extending) of the one-year rule during a pending criminal investigation or prosecution, CDC had one year from the conclusion of the District Attorney’s investigation to pursue administrative charges. Approximately eight months after its investigation began, CDC interrogated Lomeli, who denied the sexual assault allegations. One year and four days after its investigation began, CDC served Lomeli with a notice of proposed discipline for the alleged sexual assault and for allegations of dishonesty stemming from his denials of the charges. He was later terminated based on those allegations.

Lomeli appealed his dismissal to the California State Personnel Board, and moved to dismiss the allegations as violative of the one-year rule. CDC claimed that while the underlying allegations of sexual assault may have been time-barred, Lomeli’s alleged dishonest denials were received within the statutory period. The SPB rejected CDC‘s arguments, dismissed the charges and ordered Lomeli’s reinstatement. When CDC refused to reinstate Lomeli, maintaining that it did not have to do so pending judicial review, the Court of Appeal ordered Lomeli’s reinstatement in compliance with the SPB’s order (Lomeli v. Department of Corrections (2003) 108 Cal.App.4th 788). CDC appealed to Superior Court, alleging for the first time that the SPB lacked jurisdiction to entertain alleged violations of the act, a position rejected by that court. On appeal to the Third Appellate District, CDC again asserted a lack of jurisdiction, and argued that the dishonesty allegations were not violative of the one-year rule.

The court resoundingly rejected every contention of CDC, noting that “the word ‘initial’ in section 3309.5 simply deprived the employer of defeating court action by arguing the employee has failed to exhaust administrative remedies,” and that “nothing in the word ‘initial’ and nothing in the statute suggests exclusivity.”

CDC hoped to dodge the one-year rule by relying on Section 3304(g), which states in full:

“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.”

The court found CDC’s reliance on these provisions as completely unpersuasive, noting:

“…CDC failed to show that it ‘reopened’ any investigation. Moreover, the statute speaks of newly-discovered evidence. Lomeli’s denial of the sexual assault was not evidence of the sexual assault. Nor was the denial newly-discovered evidence of dishonesty.”

The court concluded:

“It is unseemly to force a person to answer an allegation of misconduct and then punish him for denying the allegation. We agree with the SPB and the trial court that the denial in these circumstances does not constitute separate actionable misconduct but in effect merges with or is derivative of the alleged underlying misconduct… To allow the dishonesty charge to survive would defeat the purpose of the limitations period, which is to insure that conduct that could result in discipline should be adjudicated when memories are fresh. To allow the employer to prove the underlying charges in order to demonstrate that an employee was dishonest in denying the underlying charges would defeat the purpose of the act…”

The court’s decision should have a significant impact on the assertion of officer rights. Administrative bodies have often appeared reluctant to entertain arguments based on the act, uncertain of their own jurisdiction. Now, the court has made clear that those bodies may take action. Where an officer is simply requesting a ruling on the statute of limitations that might bar the department’s action against him, the administrative body should rule on the matter. However, if the officer is seeking to enjoin a department from engaging in certain kinds of activities, such remedy may not be within the authority of the administrative body to grant or administer. Thus, the choice of forum in which to raise an alleged violation of the act will be contingent on the nature of the harm, the remedy desired, and other tactical considerations.

While emphasizing that the act contemplates the completion of an investigation within a one year period, the court left open the possibility that allegations of dishonesty stemming from an officer’s interrogation could conceivably lead to further investigation and the discovery of new evidence it might allow the statute to be tolled. The court made it clear, however, that any set of facts should be viewed in conjunction with the Legislature’s declaration that “effective law enforcement depends upon the maintenance of stable employer-employee relations,” which is served by the guarantee of the speedy adjudication of misconduct allegations that is embodied in the one-year rule.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.