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By PORAC | February 1, 2001 | Posted in PORAC LDF News

Police Department Enjoined from Taking Discipline against Officer in First Test of Limitations Period in Peace Officers’ Procedural Bill of Rights Act

In a strongly worded decision issued on April 20, 2001, Judge Robert H. Gallivan, of the Orange County Superior Court, issued a preliminary injunction against the City of Seal Beach and the Seal Beach Police Department, ordering them to refrain from taking any punitive action (including discipline and holding any pre-disciplinary hearings) against Officer “A” during the pendency of the action.

The judge, who had on March 16, 2001 issued a Temporary Restraining Order against the agency to prevent them from taking disciplinary action against Officer “A”, determined that there was a “possibility of great and irreparable harm to Plaintiff” and that “Plaintiff is likely to prevail at the time of trial.” The judge also found that the city and department failed to complete its investigation and give the officer notice of the proposed discipline within one year as required by Government Code Section 3304 (d) and that the defendants’ notice was defective.

Panel attorney Sylvia Kellison, of Kellison & Vasquez, LLP, represented Officer “A” throughout the investigation and in hearings for the Temporary Restraining Order on March 15 and 16, and the Preliminary Injunction on April 16 and 20, 2001.

An investigation into alleged wrongdoing was commenced in February 2000 by the department, after the District Attorney’s Office rejected a case against Officer “A”. Most of the interviews and the gathering of evidence were completed by the department in June 2000. Expert opinions were sought and those opinions were received in approximately July 2000.

From that time until October 2000, there was no activity on the case, despite the fact that both Officer “A” and Kellison made numerous contacts with the department to ascertain the status of the case. During that time, and up until January 2001, Officer “A” and Kellison were told that a decision would be issued soon.

In late January 2001, the current attorney for the department contacted Kellison and asked for an extension of time to complete the investigation and issue a Proposed Notice of Discipline. Officer “A” declined to grant the extension. On January 31, 2001, Officer “A” was called in and told that he would be placed on administrative suspension, “pending the results of the administrative investigation”, and was given a letter in which the chief indicated that he was considering that he might propose discipline against Officer “A” and that Officer “A” would be given additional investigatory materials as those portions of the investigation were completed.

Two days later, the chief hired a consultant (who also works for the department’s current law firm) to review a report by the department’s prior attorney, finding that Officer “A” had committed no wrongdoing. He was also to review 19 audio tapes and over 2000 pages of documents. The consultant completed his report reversing the prior attorney’s analysis and made findings that Officer “A” had violated department policies.

On February 26, 2001, Officer “A” was given a notice that he had the right to respond to proposed discipline “up to and including termination.” Attached to that document was a list of the documents relied upon, including one entitled “Administrative Investigation, by Mervin Feinstein” (the consultant). The February 26 letter set a date for the “Skelly” hearing and provided Officer “A” with the voluminous documentation gathered by the prior attorney. None of this material had been provided to him with the January 31st letter.

California Government Code Section 3304 (d) requires that the department complete its investigation and give notice to the employee of the proposed discipline within one year, after it discovers, or is notified of the alleged wrongdoing. In filing the application for a Temporary Restraining Order, Kellison alleged that the department had not completed its investigation because Feinstein had not analyzed the evidence or written his investigative report within the year and because the department’s own documents indicated that the investigation was still ongoing beyond the year.

Plaintiff argued that the notice given to Officer “A” was not a proper Notice of Discipline because it did not comply with the city’s own rules and because discipline could not be proposed absent an analysis of the evidence supporting such discipline. The department argued that the investigation was complete when the last interview was done and the last document gathered. Nevertheless, the court ruled that the investigation continued into February and was not completed within the one-year period.

The court issued the Temporary Restraining Order and set a hearing date for April 16, 2000. In the April 16 hearing, the department claimed that the reference to the ongoing investigation in the January 31 letter was a “semantic misstatement”, however, Kellison pointed out five other similar statements in the department’s own documents, indicating that the investigation was not completed until February 26.

The department also argued that they had timely issued the Notice of Termination and that this whole matter was the result of a “schlock investigation.” The court then replied “that appears to be the problem with your entire process,” pointing out a statement in the chief of police’s declaration which stated that he had, on January 31, considered the Feinstein report in proposing discipline, however, Feinstein had not been hired until February 2nd.

Counsel for the department complained that she wanted to put on witnesses and that she needed additional time. The court granted additional time and reset the hearing for Friday, April 20.

On April 20, arguments were again heard, however, the judge felt that it was unnecessary to hear witnesses and made his ruling on the evidence in the record, including all of the department’s own documents. Counsel for the department argued that a “balancing test” should be applied, citing Rampart and other scandals. Kellison pointed out that the League of Cities and a number of police departments had an opportunity in the legislative process to add such a “balancing test” to the statute, but had failed to do so.

The judge did not apply a “balancing test”, and further stated that he was very “troubled” about the city’s own documents. He ruled that neither the investigation nor a proper Notice of Discipline had been completed within the one-year in the statute. He determined that the violation of the plaintiff’s rights constituted serious and irreparable harm, and further ruled that plaintiff would be likely to prevail on the merits at a trial. He then ordered the department not to take any punitive action against Officer “A” during the pendency of the case.

The Judge specifically declined to decide on the merits on the department’s allegations against Officer “A.” The written preliminary injunction was signed and issued on April 23, 2001. Officer “A” will be kept on the payroll while discovery and a trial on the merits proceed. This process could take up to a year.