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Superior Court Issues Injunction Against Rialto Chief of Police

Posted on Monday, July 01, 2002 at 12:00PM
Posted by Bob Krause

Recently I had the privilege of being asked to author an article dealing with Government Code Section 3304(d), the relatively recent statute of limitations in bringing administrative actions against public safety officers. At that writing, a number of 3304(d) cases were pending (PORAC News Vol. 34, No 4 – April 2002).

I am happy to report that since then the San Bernardino County Superior Court, Judge Martin A. Hildreth presiding, has issued a preliminary injunction against Rialto Police Chief Michael Meyers based on the successful pleadings and arguments made by our office. The city has now stipulated to the permanent injunction. The order has been issued.

Background: Officer Courtenay Reed is a veteran police officer with the Rialto Police Department. In June 2000 the department opened an internal affairs investigation alleging various department rules and regulations violations.

I was contacted by Reed for legal representation and had the honor to represent him from the IA through the administrative and Superior Court proceedings. While the department completed its investigation in July 2000, it did not get around to giving notice of an 80-hour suspension until November 2001.

At the Skelly hearing I raised, rather strongly, the 3304(d) issues. I shall never forget Chief Meyers’ response of “Oh really?” Within 24-hours Meyers issued his final order, never taking the time or extending the courtesy to look into the facts, consider the argument, or for that matter, to obey the law. Meyers forced this matter to Superior Court where he lost. LDF funded the court action in support of Reed and the Rialto POA.

The Superior Court’s Decision: The court’s words, taken largely from our pleadings, are instructive should your association face a similar factual situation. The court in pertinent part wrote:

“Plaintiff is a Rialto police officer, who is facing an 80-hour suspension from the police force. According to the complaint, the disciplinary action against plaintiff Officer Reed stemmed from a June 2000 citizen’s complaint in which plaintiff was charged with failing to take a report and to make a citizen’s arrest upon request.

Plaintiff seeks an injunction to stop the defendants from proceeding with the discipline. He alleges that the disciplinary action is time-barred under Government Code Section 3304(d), which requires the agency to complete its investigation and notify the public safety officer of its proposed disciplinary action within one year after the agency discovered the alleged misconduct.

The department initiated and completed the investigation of the charge against plaintiff in July 2000.

Plaintiff was notified of the proposed discipline in November 2001, one year and five months after receiving the citizen’s complaint.

Defendants argue the one-year time period set forth in Section 3304(d) was tolled, since plaintiff was incapacitated from regular duty, suffering with a job-related shoulder injury from late 2000 until November 27, 2001.

As support, defendants cite the following exception to the one-year time period set forth in Government Code Section 3304(d)(5).

Under 5, ‘If the investigation involves an employee incapacitated or otherwise unavailable.’

In their November 27 notice of proposed discipline, defendants advised plaintiff that they had not presented the notice of proposed discipline to him within the one-year time period ‘due to your being unavailable because of injury.’ Government Code 3304(d)(5).

As support for labeling plaintiff unavailable, defendants argue plaintiff was incapacitated from his regular duties, suffering from a workers’ comp injury. He indicated he was not on regular payroll, but rather receiving sick leave, compensatory time off, and unpaid leave.

Defendants submit the declaration of the Rialto City Police Chief, Michael Myers [sic], who states he directed the disciplinary action against plaintiff to be held in abeyance under Section 3304(d)(5), because he believed plaintiff could not be disciplined during his injury leave.

Aside from the chief’s beliefs, defendants otherwise offer no guidance on the meaning of ‘unavailable.’

In contrast, plaintiff views the Section 3304(d)(5) unavailability exception, as applying to the officer’s availability to receive notice of the proposed discipline, not his availability to work at his regular assignment.

Defendant’s interpretation of the meaning unavailable to apply where an officer is off work due to a work-related injury, using sick time and other applicable leave, is not reasonable. The one-year notice period is clearly intended as a statute of limitations, to provide the officer with notice of any proposed discipline within a reasonable time. (emphasis added).

The one-year mandatory statutory notification period is, thus, unaffected by plaintiff’s off-work status or any claim that plaintiff was not prejudiced by the untimely notification.

The question here is whether the officer was available to receive the notice. Plaintiff was available for notice during the statutory time period. He declares that between July 2000 and December 2001, he retained the same address and telephone number, and so he was fully available.

He reported for light-duty work on two occasions during the statutory time period and was called into the department to be interviewed by internal affairs, as a witness in another officer’s case.

Also, during this time period, plaintiff appeared on matters involving his workers’ compensation case.

The court finds the plaintiff was available to receive notification in the proposed discipline during the one-year statutory notification period; that defendant’s failed to provide such notice under Section 3304(d), and that the unavailability under Section 3304(d)(5) does not apply, and that the department violated Section 3304(d)

The court is granting the request for an injunction to prohibit the department from taking any punitive action against the plaintiff under Government Code Section 3309.5(c).

That completes it.”

Other Observations: Sadly, Chief Michael Meyers’ assertions to the court in his declarations that he believed the time that was tolled was totally rebutted by an unrelated case that under his command took one year and seven months to “unfound”. One other matter under Meyers’ command remains beyond the one-year period. One must wonder if Chief Meyers’ position will again be, “Oh really?”.

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