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Statute of Limitations Benefits Public Safety Officers

Posted on Monday, April 01, 2002 at 12:00PM
Posted by Robert W. Krause

To remedy this anomaly, PORAC and others helped to get an amendment to the POBR passed. That amendment came in the form of Gov. Code Section 3304(d), which is set forth below:

“(d) Except as provided in this subdivision and subdivision (g), no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct. This one-year limitation period shall apply only if the act, omission, or other misconduct occurred on or after January 1, 1998. In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed disciplinary action within that year, except in any of the following circumstances: (Emphasis Added)

(1) If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the one-year time period.

(2) If the public safety officer waives the one-year time period in writing, the time period shall be tolled for the period of time specified in the written waiver.

(3) If the investigation is a multijurisdictional investigation that requires a reasonable extension for coordination of the involved agencies.

(4) If the investigation involves more than one employee and requires a reasonable extension.

(5) If the investigation involves an employee who is incapacitated or otherwise unavailable.

(6) If the investigation involves a matter in civil litigation where the public safety officer is named as a party defendant, the one-year time period shall be tolled while that civil action is pending.

(7) If the investigation involves a matter in criminal litigation where the complainant is a criminal defendant, the one-year time period shall be tolled during the period of that defendant’s criminal investigation and prosecution.

(8) If the investigation involves an allegation of workers’ compensation fraud on the part of the public safety officer.

(e) Where a predisciplinary response or grievance procedure is required or utilized, the time for this response or procedure shall not be governed or limited by this chapter.

(f) If, after investigation and any predisciplinary response or procedure, the public agency decides to impose discipline, the public agency shall notify the public safety officer in writing of its decision to impose discipline, including the date that the discipline will be imposed, within 30 days of its decision, except if the public safety officer is unavailable for discipline.

(g) 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.

(h) For those members listed in subdivision (a) of Section 830.2 of the Penal Code, the 30-day time period provided for in subdivision (e) shall not commence with the service of a preliminary notice of adverse action, should the public agency elect to provide the public safety officer with such a notice.

Like most statutes of limitations, Section 3304(d) has a number of tolling provisions. Officers and their representatives need to be very aware of the intricacies of each tolling provision. I will explore some that have already surfaced and attempt to give some direction in those we anticipate.

Since this is a very new area of law, as law goes, cases have not yet worked their way through the Appellate courts. I can only share with you issues we and others have faced and anticipate facing to date.

1. Section 3304(d)(5). Department Claim of Unavailable Officer

At least one department has taken the position that the 17 months it took to issue its notice of an 80 hour suspension was “tolled” because the officer was out on “4850″ time. The department reasoned that 4850 time made the officer “incapacitated or unavailable” under the code. We disagreed. This officer was on light duty twice during the one-year statutory period. He had been served with legal service to attend depositions and medical examinations by the city, had been called in to surrender equipment and was interviewed by the department on unrelated internal affairs and criminal matters. In short, he was always only a phone call away, except of course when the department had a legal duty to serve him. Now they seek cover under this tolling exception. Our argument, not surprisingly, fell on deaf ears during the Skelly process. The matter is now pending before the San Bernardino County Superior Court in Reed vs. City of Rialto Police Department, et al, Case No. SCVSS 087237.

2. In a recent case pending against the Seal Beach Police Department the Orange County Superior Court issued a preliminary injunction against the department for failure to meet the one-year statute of limitations under 3304(d). The court would not consider the merits of the allegations against the officer. In short, if the department blew the time then they were dead in the water, the nature of the charges do not matter. The case is set for trial in June 2002.

The department tried to be cute in their approach. They had not completed their investigation but gave the officer “notice” anyway. They inadvertently included in their notice, and other documents, that the case had not really been completed. The department tried to convince the court that since “notice” was given they were in compliance. That failed. Just prior to giving “notice” the department tried to get the officer to sign a time waiver. He wouldn’t.

BE VIGILANT IN MONITORING YOUR CASES

Rest assured, departments will get very creative in their approaches to avoid being bound to this one-year limitation. As already stated, we are seeing the application of the “we can do no wrong” doctrine. Be aware of the limitations period, when it began and when it ends, and hold your department accountable. If, as above, you have an officer out on 4850 or other extended leave, make sure you document all compelled appearances and contacts with the department during the period of absence.

This office alone has recently sent roughly 10 “notice” letters to department heads advising that the statute had run on various open I-A cases. Those notice letters included a demand that no reference to the I-A/complaint be included in the officer’s file. Our reasoning is that since the statute requires action within the one-year period that inaction ends the matter. Some have answered in agreement; others are considering their options. Some will no doubt fight.

Vigilance also requires analysis of the various exceptions against the facts facing the individual officer. Monitor the collateral criminal investigation. Note its start and end dates, use those dates to your member’s advantage. Never sign a waiver without consulting legal counsel. Never means just that . . . never. Know all the involved parties and agencies. Track their involvement for start and end dates. Do not allow your department to hide behind false tolling scenarios. Take the initiative to be aware . . . use this relatively new statute of limitations to the benefit of your members.

About the Author: Bob Krause is a former (now retired) sergeant with the Oceanside Police Department where he served many years as president and negotiator for the OPOA. Krause is a partner in the Law Office of Castle & Krause, Temecula, CA, and has been representing the interest of public safety officers for the past 17 years throughout southern California.

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