Monterey Park Police Officer’s Suspension Reversed

KIMBERLY D. RILEY
Partner
Dawson & Riley, LLP

The Monterey Park Police Department imposed a 40-hour suspension against the appellant for allegations related to an off-duty incident; however, it failed to notify the appellant within 30 days of its final decision on when he would serve the suspension. With the assistance of Dawson & Riley, LLP, the appellant was able to convince the arbitrator that, based on the Department’s violation of Government Code Section 3304(f), the suspension must be overturned in its entirety.

After electing to waive his Skelly hearing, the appellant was notified on October 20, 2015, that the city manager made a final decision to impose the recommended 40-hour suspension. The appellant’s counsel immediately appealed the suspension. Prior to starting the hearing, the Department and the appellant’s counsel began settlement discussions. During the discussions, it became apparent that the Department failed to ever schedule, much less notify the appellant of, when he would serve his suspension. Based on this information, the appellant’s counsel immediately notified the Department of its violation of Government Code section 3304(f). GC § 3304(f) requires the public agency, once it makes its final decision to impose discipline, to notify an officer within 30 days of its decision, including the date when the discipline will be imposed. The Department failed to complete the latter part of its notification requirement.

Rather than accepting responsibility for its failure to provide the proper notification, the Department, through its counsel, made a myriad of excuses for the violation. However, the only exception to the 30-day notification requirement is if the officer is unavailable for discipline, which did not apply to the matter at hand. Based on the Department’s refusal to retract the imposed discipline, the appellant’s counsel requested that the hearing be bifurcated and that the issue of the violation of GC § 3304(f) be addressed by the arbitrator prior to any hearing on the merits.

The Department’s counsel first alleged that the 30-day notification requirement was tolled based on an either express or implied agreement between the chief and the appellant’s counsel when settlement discussions began. The evidence proved that there was never any agreement by the appellant’s counsel to toll the 30-day notification. Additionally, the Department’s argument was nonsensical. Settlement discussions began in February 2016, approximately four months after the final decision was rendered and well past the 30-day notification period. There would be no reason to agree to tolling the notification period if it had already run. Moreover, the appellant’s counsel subpoenaed the chief to testify regarding the alleged implied or express agreement. The Department’s counsel fervently sought to avoid having the chief testify by filing a motion to quash the subpoena and arguing that the chief’s testimony was not relevant. Clearly, the Department’s counsel had concerns regarding its misrepresentations.

Moreover, even if the Department thought that they had an agreement to toll the 30-day notification requirement during settlement discussions, the Department failed to notify the appellant of its imposition of discipline within 30 days of the termination of settlement discussions. The appellant’s counsel notified the Department on April 29, 2016, of the GC § 3304(f) violation and demanded reversal of the suspension, thereby terminating settlement discussions. The Department did not notify the appellant of the imposition date of the suspension until June 2, 2016 — more than 30 days after the alleged agreement to toll the 30-day notification requirement.

The Department’s counsel also argued that the appellant’s counsel delayed the selection of the arbitrator and thus the statute should be tolled.
The selection of the arbitrator has no bearing on the Department’s obligation to notify the appellant of when the suspension would be served. Secondly, the evidence proved that it was actually the City that delayed selecting the arbitrator, and not the appellant’s counsel.

The next attempt to justify the Department’s violation occurred when its counsel claimed that there was a policy or practice to not impose discipline in cases where an employee waives the Skelly hearing until after the administrative appeal. Not only was there no evidence of such policy or practice produced by the Department, but the Department would clearly have violated the policy or practice when it notified the appellant on June 2, 2016, of the imposition of the suspension prior to the appeal hearing.

Lastly, the Department’s counsel sought to characterize the statute of limitations violation as a procedural due process violation. Pursuant to Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, procedural due process violations require a showing of harm. The case addressed violations of Government Code section 3303 relating to an investigative interview and not the notification requirements of GC § 3304. The appellant’s counsel successfully argued that there is no requirement to prove harm for a statute of limitations violation and that the Department’s utilization of the Hinrichs case for a GC § 3304(f) violation was nonsensical. The arbitrator held that “[s]tatutory provisions defining the respective duties of a public entity with clarity and precision cannot be deemed unreasonable, arbitrary or vague, and thus be subject to constitutional attack on due process ground. The statute is very clear about what is required. There is nothing arbitrary or vague in the language of the statute.”

The arbitrator agreed that the appellant was not provided the requisite notice mandated by GC § 3304(f). Thus, the appellant’s suspension was ordered overturned in its entirety. The appellant is grateful to the Legal Defense Fund for their support, and to his attorneys at Dawson & Riley, LLP, for their attentiveness and persistence in holding the Department accountable for the violation of his rights under the Peace Officers’ Bill of Rights.