Inglewood Officer Reinstated Based On Violation Of Peace Officers’ Bill Of Rights

ANDREW M. DAWSON
Partner
KIMBERLY D. RILEY
Partner
Dawson & Riley, LLP

This is a follow-up to an article that was published in the September 2016 issue of PORAC LE News. After a hearing officer ordered the reinstatement of an Inglewood Police Department officer due to the City’s violation of the one-year statute of limitations, the City Council overturned the hearing officer’s decision and refused to reinstate the officer. As a result, Dawson & Riley, LLP filed a petition for writ of mandate in Superior Court seeking to overturn the City Council’s decision based on the Department’s violation of the one-year statute of limitations and the merits of the case.

The underlying case involved a solo vehicle accident of an Inglewood police officer, due to a bus pulling out in front of him on August 20, 2013. The officer was placed on IOD during his recovery from the accident. While out on IOD, he was interviewed by the Department’s traffic investigator regarding the accident. After he returned to work on modified duty, he was eventually contacted by the Internal Affairs Department to schedule an interview. His interview was scheduled for July 29, 2014. However, the night prior to his interview, he was admitted to the hospital for unrelated medical reasons. His attorney contacted the Department and advised that the officer would be unavailable for the scheduled interview. As the Department was close to the one-year statute of limitations running out, the Department advised in writing that the statute would be tolled from July 29 until the interview was rescheduled, due to the officer’s unavailability as outlined in Government Code Section 3304(d)(2)(E). However, the Department made a devastating assumption. The statute was only tolled while the officer was unavailable and not until the interview was rescheduled. 

On July 31, the officer provided medical documentation to the Department, advising the Department that he would be off work through August 18. At no time did the Department attempt to schedule the interview for a date upon his return. He eventually returned to work on August 19, but was not contacted to reschedule the interview. The officer’s counsel then initiated contact with the IA investigator on August 21 to schedule the interview; however, the investigator waited until August 25 to respond and then provided dates in September for scheduling the interview. The officer and his counsel scheduled the interview for September 4, which was one of the dates proposed by the investigator. The officer was therefore available from August 19 until September 4 to be interviewed, but the Department made no effort to schedule the interview earlier. Based on the mistaken belief that the statute was tolled until the date of the interview, the Department waited to notify the officer of its intent to discipline until September 19 — nine days after the statute ran out.

Under Government Code Section 3304(d)(1), no punitive action may be imposed upon any public safety officer for alleged misconduct unless the public agency investigating the allegations completes its investigation and notifies the public safety officer of its proposed disciplinary action within one year of discovering the alleged misconduct. In an effort to overcome the statute violation, the City first claimed that the traffic accident investigation “could have” constituted a criminal investigation and thus the statute of limitations should have been tolled pursuant to Government Code Section 3304(d)(2)(A). However, the Department’s traffic investigator testified that at no time did he conduct a criminal investigation into the officer’s actions. Despite the clear testimony, the City refused to drop this argument. The City contended that Government Code Section 3304(d)(2)(A) does not require that the conduct proved to be criminal. Rather, it claimed the standard is simply whether the conduct is “potentially criminal.” The Superior Court concluded that contrary to the City’s argument, the plain meaning of Section 3304(d)(2)(A)’s language that the “allegation of misconduct is also the subject of a criminal investigation” means that the police officer’s actions must be the subject of criminal investigation in order for the limitations period to be tolled. There does not need to be a final determination that the officer’s conduct is criminal in order for tolling to apply; the potential for such a conclusion suffices. But there must be an actual criminal investigation of the police officer’s misconduct. Thus, the City’s justification for tolling the statute of limitations due to a criminal investigation was denied.

Another exception is applicable if the investigation involves an employee who is “incapacitated or otherwise unavailable,” as outlined in Government Code Section 3304(d)(2)(E). The City contended that the officer was incapacitated or otherwise unavailable following the August 20 accident simply because he was hospitalized for nine days and placed on IOD leave status until he returned to work. The Court held that the officer’s IOD leave status was not by itself persuasive evidence of unavailability. Although the officer was hospitalized, there was substantial evidence that the officer was available to be interviewed. In fact, the Department’s traffic investigator interviewed the officer by telephone two days after the accident. Clearly, he was available. Thus, there was no evidence to support tolling due to the officer’s IOD status as a result of the accident.

The City further contended that the hearing officer wrongly tolled only the 21 days that the officer was hospitalized (July 29 to August 18), and not until he submitted to the interview on September 4. The City relied on the Chief’s letter warning the officer that the one-year statute would be tolled and cited to the officer’s counsel’s four-day delay in responding to the IA investigator’s email of proposed interview dates, as evidence that the officer was improperly shielding himself until the statute of limitations ran out. The Superior Court held that the City’s argument was “specious.” While it is true that a deliberate evasion of an interview would render the officer unavailable under Section 3304(d)(2)(E), no deliberate evasion occurred. The officer expressly provided the IA investigator with notice that he would be off of work until August 18. The Department knew that the one-year statute was about to run out, as evidenced by the Chief’s letter. Yet, the IA investigator made no attempt to contact the officer when he returned to work on August 19. On August 21, two days after the officer’s return to work, the officer’s counsel took affirmative steps to reschedule the interview by emailing the IA investigator. This evidence proved that the officer was not deliberately avoiding the interview. The Department apparently thought it was protected by the Chief’s letter and was dilatory in rescheduling the interview. Thus, the Court held that the letter did not shield the Department from the one-year statute of limitations violation.

Thus, the only time the statute was tolled was from July 29 to August 18, when the officer had to cancel his previously scheduled IA interview due to the unexpected hospitalization. The Department was required to notify the officer of the intended discipline by no later than September 10, which it failed to do. The Superior Court ordered the officer’s reinstatement with full back pay due to the Department’s violation of Government Code Section 3304(d)(1). The officer is anxious to return to work and grateful to the Legal Defense Fund and his attorneys at Dawson & Riley.