Rains Lucia Stern St. Phalle & Silver, PC
Pursuant to the Public Safety Officers Procedural Bill of Rights Act (POBRA; Government Code section 3300, et seq.), an agency must conduct its administrative investigation of misconduct and notify the employee of the proposed discipline within one year of discovery by a person “authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.” “[T]he one-year limitations period under Government Code section 3304, subdivision (d)(1) begins to run when a person authorized to initiate an investigation discovers, or through the use of reasonable diligence should have discovered, the allegation of misconduct” (Pedro v. City of Los Angeles  229 Cal.App.4th 87, 106).
In a typical administrative investigation, a citizen may call in and complain to an agency about an officer’s behavior. Usually, this call is taken by a supervisor, such as a lieutenant or sergeant on duty. Some agencies have policies that call for a supervisor to conduct a “fact-finding” or “preliminary inquiry” to ascertain if the complaint is plausible or has potential merit. The supervisor may review reports or computer records, and may speak to witnesses, including the subject officer, as part of this “inquiry.” These initial investigations are typically documented in a memorandum and sent up the chain of command.
In some agencies, it is not until after this initial inquiry that an official internal affairs investigation case is opened. Many agencies require that the official request for the internal affairs case be made by a higher-level supervisor, such as a captain or above. Problematically, several agencies are taking the position that this initial “inquiry” does not start the one-year limitations period if the initial supervisor is not authorized to open an official internal affairs investigation.
In one case involving the LAPD, the City of Los Angeles, relying upon a City Charter provision, argued that the one-year limitations period did not begin running until allegations were reported to the chief of police (Jackson v. City of Los Angeles  111 Cal.App.4th 899, 905). The court agreed with the employee that POBRA prevails over the City Charter because POBRA was created to address a matter of statewide concern of maintaining stable relationships between police officers and their employers. Further, the City had issued an administrative order that specified a sergeant could begin an administrative investigation into officer misconduct. As a result, the court concluded, pursuant to the City’s own rules, a sergeant’s date of discovery, not the chief of police’s knowledge, began the limitations period.
The Jackson case recognized the right of agencies to create policies and rules that only allow for a high-level executive to initiate formal internal affairs investigations, which many have done. Agencies have creatively called the initial investigations carried out by sergeants and lieutenants “inquiries.” Many of these policies define “inquiries” as fact-finding missions to ascertain more about the alleged misconduct. After the inquiries are completed and documented, typically in a memorandum, they are forwarded through the chain of command until they reach the person designated to open an official internal affairs investigation. Agencies have been utilizing this method of opening investigations to effectively buy more time to conduct investigations.
The recently decided case of Ochoa v. County of Kern (2018) 22 Cal.App.5th 235 provides a solid basis for arguing that the statute of limitations period begins at the start of the fact-finding process. In Ochoa, a deputy contended that the statute of limitations began to run upon knowledge of alleged misconduct by a sergeant, despite department policy specifying that only a chief deputy was authorized to initiate the formal internal affairs investigation.
The court considered whether the sergeant’s “fact-finding inquiry” into potential policy violations constituted an “investigation” within the meaning of Government Code section 3304(d). First, it looked to the language of the statute itself and noted that POBRA does not create a unique definition of the term “investigation.” The court then referred to the dictionary’s definition of the term “investigation”: “a detailed examination or search, often formal or official, to uncover facts and determine the truth.”
The court noted, however, that protections of POBRA only apply to those investigations “that could lead to punitive action” (Gov. Code, section 3303) and analyzed whether the sergeant’s fact-finding could lead to punitive action. The Ochoa court also found it important that the sergeant had the authority to issue a written reprimand as a result of his inquiry.
In concluding that the sergeant’s inquiry was an investigation within the meaning of Government Code section 3304(d), the court explained that “punitive action … may exist when action is taken which may lead to the adverse consequences specified in section 3303 at some future time” (Ochoa, 231 Cal.Rptr.3d 274, 284, citing to Otto v. Los Angeles Unified School Dist.  89 Cal.App.4th 985, 996). It reasoned that, based on the facts, it was easy to determine that the sergeant’s inquiry might have led to punitive action. When the sergeant prepared his memorandum and forwarded it through the chain of command, an internal affairs investigation that ultimately led to the employee’s discipline was initiated. The court, therefore, ruled that the statute of limitations began running on the date the sergeant had notice of the potential misconduct.
The court’s holding in Ochoa can be used by peace officers to argue that POBRA’s statute of limitations begins at the start of the fact-finding process by the employer, even if the fact-finding is by someone who does not have the authority to open an official internal affairs investigation. It will prevent agencies from expanding the limitations period by having an initial inquiry done by a low-level supervisor and designating a higher-level supervisor as the only individual capable of initiating formal investigations. This rule is a fair interpretation of the statute and its purpose of providing assurance “that an officer will not be faced with the uncertainty of a lingering investigation” (Ochoa, supra, 231 Cal.Rptr.3d at p. 282, quoting Mays v. City of Los Angeles  43 Cal.4th 313, 322).
The case also leaves the door open for future challenges to employers’ questionable practices related to inquiries performed by supervisors. For example, if an inquiry conducted by a supervisor is an investigation that may result in punitive action, shouldn’t the other protections from POBRA also come into play? In the case of Steinert v. City of Covina (2006) 146 Cal.App.4th 458, a supervisor questioned a police officer about a minor mistake for purposes of training. The court of appeal held that this type of questioning was a routine interrogation in the normal course of duty, counseling or informal verbal admonishment, falling within the exception to the protections of POBRA (Gov. Code, section 3303, subd. [i]). The court found it important that the supervisor believed this to be a training issue, with no other knowledge of improper action, and that he intended to only verbally counsel the officer regarding the mistake he was aware of at the time.
By contrast, in Ochoa, the sergeant had received a complaint of harassment and began his investigation by contacting the complaining party prior to questioning the officer. The fact-finding investigation by the sergeant was to “determine what the nature of the complaint was.” The sergeant was authorized to issue a written reprimand if he determined that no serious or criminal violation had occurred. The sergeant, however, prepared a memorandum that was submitted through his chain of command, pursuant to the County’s policies, and ultimately initiated an internal affairs investigation and the discipline of the deputy sheriff.
In determining whether the protections of POBRA apply to a “fact-finding” investigation by a supervisor, the supervisor’s knowledge of potential misconduct when questioning the officer, the supervisor’s intention when contacting the involved officer, and an agency’s policies about the potential implications of such an inquiry become important factors.
Another potential implication from the Ochoa case involves a recent holding in Santa Ana Police Officers Association v. Santa Ana (2017) 13 Cal.App.5th 317, which requires investigators, prior to a second interview, to provide any recordings, stenographer notes, reports and complaints to the subject officer. If an agency questions a subject officer during a “fact-finding” inquiry, the inquiry should be considered an “interrogation” subject to the protections of POBRA, and the requirements set forth in Santa Ana therefore are applicable.
Many agencies have hidden behind the mask of “preliminary inquiry” and fervently denied they are conducting an investigation or interrogation of an employee during this “inquiry” prior to initiating a formal administrative investigation. This ruling by the court makes it arguable that many more of POBRA’s protections apply to such an inquiry.
About the Author
Amanda Waters-Luttrell is a member of the Rains Lucia Stern St. Phalle & Silver Legal Defense Group. Amanda represents peace officers in administrative investigations, disciplinary appeals, critical incident investigations and criminal investigations.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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LDF assisted by taking a stressful situation and calmed it down by thoroughly explaining the entire process. It was nice to know that I had an ally when I was sure that I was alone.
- Adam Laird Eureka POA
Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
- Gerhard Wallace Santa Clara Co DSA
I think that [my representative] did a great job in presenting my case. I would recommend her to any deputy (officer) facing disciplinary action. My case was minor compared to other cases but [she] still did a professional job.
- Omar Daza-Quiroz Oakland POA
I have had (2) two cases in which LDF represented me. Both lawyers were exceptionally professional, intelligent and caring for me. They were friendly and very helpful.
- James F. Beland Lake County SDA
- Martha Tschetter Carson City Sheriffs PA
The LDF process was painless and I was able to get immediate representation in an urgent time of need. Thank you LDF
- Alex Camarillo LASchool P A
[My Representative] did an excellent job with my case. He was very professional and kept me well informed throughout this case. Thank you for an awesome job.
- Tyler Robins Pasadena City College POA
At a time when no one cares about you it's nice to have someone on your side who does. (My attorney ) made a stressful six months a lot more tolerable.
- Ernest Marugg San Diego Deputy DA Association
The LDF responded immediately upon my request for counsel. LDF provided the best representative I could receive! When I called LDF for advice, I was given advice again immediately. Thank you LDF for your concern.
- Melissa Geraci Oakland POA
This is my 1st time using LDF and was very pleased with the service I got. [My representative] was so friendly & always returned my calls & even called to update me without provocation.
- Robert Muelberg Denver PPA
I could not have had a better attorney. [My representative ] went way above and beyond his duties. I would not have had a better experience with my representative. I believe that the LDF is the single most important benefit a police officer could have!
- Jaime Kim Oakland POA
My rep did a good job. First we met and he explained that there might be culpability on my part but not nothing close to the allegations. I appreciated his honesty as we have all done things that can be taken out of context so it was important he told me to realize that.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- Alfredo Hernandez El Centro POA
[My representative] was very attentive, [informative] and knowledgeable. He spoke very clearly and explained things in ways easy to understand. [He] made me feel like he truly cared about what was going on with this case and me. Not to mention [he] was funny and witty, traits which made him trustworthy and someone who would stand by me and other police officers.
- William DeWitt CPPA
Everything was awesome...could not be happier!
- Greg Gladson LA Airport POA
[My representative] was very professional and helpful. She kept me informed with my options and the direction of the investigation.
- Brad Young Oakland POA
[My representative] is an excellent attorney and I am very happy he picks up the phone and answers my questions whenever possible.
- Chris Moore Palo Alto POA
No Complaints. Great Resource.
- Sean Tinney Berkeley PA
[My representative] was very attentive to my case and thorough with his investigation. I would request [him] again in the future.
- Michael Shephard Suisun City POA
LDF is a very valuable resource. I would not do this job without it.
- Jay Garacochea Culver City POA
[My representative] not only did he do a great job but he listened to my concerns. He did not force his views or game plan and we worked well w/ each other. We agreed on a goal and achieved it.
- Kenneth S. Blonski East Bay Regional Parks PMA
I was very pleased with my representative.
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- Tigran Topadzhikyan Glendale POA
[My representative] is an excellent attorney. I would use him again. He communicates with his clients and is very competent.
- Byron Kies Santa Barbara Co DSA
Everything was great!
- Joseph A. Henderson Merced POA
The firm I used was very valuable to my career and kept me updated as to status of the case. Thank you!
- Nestor Hernandez San Diego POA
This is a great program designed to protect LEO’s in need
- Robert Glock Oakland POA
I am always satisfied with LDF and all their representatives.
- Dan McDow San Luis Obispo POA
[My representative] is the poster face representative of the greatest attorney (representative) that anyone could possibly ask for. She gets a 12 out of 10 star rating. Nobody works harder.
- David Heller Yolo County DSA
The charges against me, if sustained, would have likely ended my LE career. I was rightfully exonerated on all charges. I was well represented by [My Representative] and thank him for a job well done!!
- Eric White Emeryville POA
Very satisfied with the LDF services provided. Thank you.
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- Nicholas Belliveau Sebastopol POA
High quality service, proficient, well informed. Overall, very happy with experience.
- Christopher Adams Modesto POA
Thank you for all your help!
- Kim Jasper Alhambra POA
Excellent service, prompt and courteous.
- Robert Morales Rialto PBA
I was very pleased with the service I received
- Anthony Russo Clark Co School District
The members of my Association are very pleased with the level of representation that PORAC has given to us. As the President I can not thank you all enough.
- Patricia Goss San Anselmo POA
[My Representative] is fabulous! Thanks for all the exra work she did for me!
- Christopher Delaney Upland POA
Your rep was very personal. Even though my case involved something minor, your rep made me [feel] my case was his most important. I am very satisfied with my LDF team.
- Todd Costa Santa Clara Co DSA
This was my first Internal Affairs investigation, my lawyer walked me through every step and answered all of my questions, without my lawyer's advice, I would have been lost throughout the investigation and a complete disadvantage against my department.
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- Robin Gonzalez Yolo Co. DSA
[My representative was] very quick to respond, helpful and professional. Thank you!
- Craig Caches Fremont POA
I have only used LDF once for myself, which with the circumstance was great. I work with LDF in my assignment ( OIS investigator ) and after approximately 4-5 OIS's, I have great experiences with LDF.
- Jeff Stanley Upland POA
Excellent program, no one should be without this coverage.
- Ricky L. Hemphill Los Angeles School PA
[My representative] was an excellent lawyer.
- Gina Romines San Joaquin Co Corr POA
I couldn't have been more satisfied with the representative!
- Toinie Lee Jackson Madera Co DSA
Unfortunately, I have been placed in the position to use LDF several times in my career. Without their valued services, I would not be here to write this. I and my family thank you.
- Stephen Woodward Palm Springs POA
Great job by my LDF lawyer. I have had to use them several times over my 20 year career and their service is invaluable.
- Alvaro Ancheta Glendora POA
I felt I was represented in a thorough and professional manner.
- Scott Muir Tracy POA
Very satisfied with the service I was given.
- Christopher Wirth A F G E Border Patrol
LDF referred me to [ representative ] in Spokane, WA. [ Representative ] did an outstanding job representing me. Thank you very much for the referral ! I would not be employed any longer had it not been for [ representative ] and his legal team.”
- John Dougherty National City POA
My LDF Representative was [Representative]. He did an outanding job with my case and I am overjoyed with the results.
- George Fierro El Monte POA
I am a firm believer that LDF serves an essential part in the assistance to protect an officer's POBR & in the integrity of an investigation or complaint. I highly recommend the law office of [My Represenative].
- Michelle Foerder Pinole PEA
I thank God for the support of LDF and my attorney. I had a letter of intent to be fired and he helped me turn it all around. I still have my job and I'm so grateful.
- Jason Boust Sanger POA
My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
- RIchard Okeson Hesperia USD POA
I can't express how satisfying and comforting it was to have such a well qualified and pleasant attorney at my side. Thank you so much for everything you did for me, and if you can, please thank [ my representative] again for being there for me.
- Scot Hicks Humbolt County DSO
My experience was made much less stressful thanks to the LDF representation.
- Larry Fitch Shasta Co DSA
My LDF rep was great, always returned my calls quickly and kept me up to date with what was going on with the case. Thank you.
- Stacey Bonilla San Mateo County DSA
[My Represenative] is an excellent attorney. He is very professional yet personable and I would definitely use him again. Thank you!
- David Baker Placerville POA
My experience through dealing with this matter was horrific. Without the efforts of the LDF and more specifically [my representative], I would most certainly have fallen victim to a corrupt and unethical administration. The LDF has saved my career and brought me justice.
- Marco Flores Ventura County PPOA
Great program. I was lost until the attorneys explained the situation. I was very impressed and satisfied. Thanks LDF.
- Brent Teasley ERS/Reno PSAEA
[ My representative ] was bogged down with multiple cases when he represented me, but I feel he did an excellent job. I would not have wanted anyone else to represent me during a very troublesome time.