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Unusual POBAR Violation Clears Tulare Deputy

Posted on Wednesday, January 01, 2003 at 12:00PM

In what appears to be the first LDF case involving the “other” statute of limitations under section 3304 of POBR, Tulare Deputy Kevin Cotton has been restored to his position with no discipline, thanks to energetic work on the part of Cotton and his LDF panel attorneys, Bennett & Sharpe in Fresno.

While most officers and their attorneys are now familiar with the statute of limitations contained in Government Code section 3304(d) requiring that discipline be proposed within one year of the time that an alleged violation becomes known to someone in the agency who is authorized to initiate an investigation, the statute also requires that, once a department determines what level of discipline it intends to impose, it must serve the affected officer within 30 days, (Section 3304(f)). In Cotton’s case, the failure of the agency to serve him promptly resulted in a court order voiding the discipline and restoring the officer to his detective slot.

Cotton began working for the sheriff’s department in 1984, and was assigned to patrol when he suffered an on-the-job injury. He was then assigned to detectives, where he was extremely productive. His career appeared to be derailed in January 2002, when he was served with a proposed order of termination, based on allegations that he had engaged in excessive contacts with his significant other, who was a clerical supervisor in the detectives’ unit. Sparked perhaps by jealousy, the clericals in the unit also accused Cotton and his friend of creating a hostile work environment by engaging in allegedly offensive joking in the office. The fact that the other clericals had joined in the activity appeared to get lost in the shuffle, and both Cotton and his friend were hit with notices of proposed termination. This matter was investigated divisionally by a detective sergeant, who often appeared more interested in clearing his own name than in getting to the bottom of the accusations against Cotton and his friend. A number of witnesses were never contacted, while others were asked questions that seemed primarily aimed at getting the sergeant off the hook.

After what was described by county counsel as “the most thorough Skelly presentation they had ever seen,” the department decided not to terminate Cotton, but to transfer him from his detective position to one in patrol. At that point, the issue of Cotton’s medical condition became an issue, because of doctors’ notes indicating his inability to wear a gun belt and drive a vehicle for sustained periods of time. While the department was considering the question of “accommodation,” it was learned that the investigating sergeant had failed to disclose, and include in his report, an interview with a witness. When questions of Skelly violations were raised, the department cancelled the proposed transfer, and decided to re-Skelly the officer.

At the second Skelly hearing, based on a notice of proposed transfer, the Skelly officer announced that she was in fact upholding the discipline, and that Cotton would be transferred. Over the next several weeks, while the medical implications of this decision were being discussed, Bennett reminded county counsel on several occasions that Cotton had not yet been served. Numerous officers stopped by Cotton’s home, to visit or serve subpoenas, but no order was forthcoming. Thirty-two days after the Skelly decision had been announced, Cotton was served with an “Order of Transfer”.

Recognizing that the service appeared to be tardy under 3304(f), counsel for Cotton demanded that the discipline be rescinded. When the county refused, an application for temporary restraining order and preliminary injunction were filed in the Tulare County Superior Court. Since Bennett had been a witness to the announcement of the decision, Tom Sharpe represented Cotton at the hearing, before a Tulare County Superior Court Judge. Judge Joseph Kalashian found no difficulty in issuing first a TRO, then a preliminary injunction as requested by Cotton, finding that the county had had adequate time to serve Cotton, and that county officials had been reminded on several occasions of the fact that they had not done so. On November 13, 2002, Kalashian ordered the county and sheriff’s department to take no action with respect to the disciplinary transfer, and prohibited them from transferring Cotton from his position as a Tulare County Sheriff’s detective to any other position within the department. Kalashian also ordered the county to pay Cotton his costs and reasonable attorney’s fees.

While the facts of the case are, as is often the case, somewhat unusual, the ruling does emphasize the benefits of trying to get the Skelly officer to commit himself or herself to a decision at the Skelly hearing. While that may not always be beneficial to the officer, it does trigger the statute of limitations and, if the agency fails to make prompt service, it does appear that the courts will apply the same strict standards as they have to violations of 3304(d). In Cotton’s case, that left him discipline-free, in the position where he wanted to be.

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