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.
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This was the first time in my twenty-five year career that I had to use the services of my legal defense fund. My LDF Representative was extremely courteous, informative and professional.. She addressed all of my concerns and answered all of my questions. She did an overall outstanding job of representing me and handling my case. I could not have been any more pleased or satisfied with the job she did! I would definitely request her to represent me in the future if I needed representation.
- 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.
- 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!
- Matthew Gardner Colorado PPA
I would not want to be an officer without this coverage. It was great to have it and kept my mind at ease.
- Miguel Suarez Monterey Co DSA
[My representative] was very knowledgeable and courteous. He knew his stuff, and I couldn't have asked for a better guy to be on my side on this matter. Thanks.
- Keith Stiver Hayward POA
[My representative] brings a superlative reputation, a comforting and confidence building demeanor and a clear expertise to the table. In particular I appreciate her philosophy that she gives her total undivided attention to her clients during their appointments.
- 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!
- Rodd N. Joseph Clearlake MMA
I appreciate the fact that my representative met with me in a social setting prior to the interview, during which time she learned the facts of the case. She was prepared for the interview. She seemed to have a genuine interest in my case.
- Clyde Williams San Diego Harbor POA
Thank you for all of the work related to my officer involved shooting case.
- Eric White Emeryville POA
Very satisfied with the LDF services provided. Thank you.
- Keith Braden Los Angeles School Police Mgmt Assn
Great work, no complaints.
- Christopher Wells Hollister POA
My rep was great.
- Carl Miller Clearlake POA
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- Andrew J. Brice Santa Maria POA
As always... an excellent result.
- Jurell Snyder Oakland POA
My LDF representative had a power point presentation, which was extremely professional.
- John M. Laser Oceanside POA
[My representative] always took my calls or returned them within hours. Put my mind at ease and kept me well informed. LDF is well served by this law firm!
- Rachel Tyner Transit EOA of San Diego
All the LDF representatives were very courteous and attentive with a punctual response to all of my concerns, inquiries and appointment scheduling. My representative was very informative about the legalities and kept in contact with me regularly. He was also very patient and straight forward. I would definitely want to use the LDF again and felt more confident through my proceedings because I had representation!
- Christopher Adams Modesto POA
Thank you for all your help!
- Andrea Salas Sonoma County DSA
[My Representative] was great! Thank you.
- 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.
- Nestor Hernandez San Diego POA
This is a great program designed to protect LEO’s in need
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- Scott King Ripon POA
[My representative] is the best LDF rep I have ever had. If I were to need an LDF rep again I would want it to be [my representative].
- Derwin Longmire Oakland POA
Outstanding [law firm] - incredible firm. And, LDF was easy to work and correspond with.
- Roy Iler San Benito CO LEM
[My representative] always returned phone calls and let me know if he was contacted with information.
- Robert Glock Oakland POA
I am always satisfied with LDF and all their representatives.
- Brendan Dolan Milwaukee PA
Everything went very smooth and they handled everything! Thank you.
- Eric Olson Escondido POA
You guys did an amazing job! Thank you L.D.F. !
- Gina Reyes Broadmoor POA
[My representative] was wonderful! Even though my situation didn't end in my favor, he was very supportive, informative & patient. He always answered every email in a timely fashion and was very accessible. I appreciated everything he was able to do for me.
- Evelyn Hooks Shasta CO PPOA
Thank God for the L.D.F.
- 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.
- William Jackson Santa Maria POA
Keep up the great work.
- Kip RIngen Lake Co DSA
My LDF rep kept me well informed concerning the progress of my case. I was extremely satisfied with the service I received. Thanks.
- James Beckman Miracosta College POA
Excellent service everytime.
- 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.
- Robyn Delaney Mono County PSOA
[My Representative] truly is an exceptional attorney. He has always represented me with honesty and compassion. Well Done.
- Gregg Palmer San Joaquin Co Corr POA
Everything was explained very well prior to my questioning. I was not worried at all during the investigation. Very professional and a great asset to its members.
- Steven Moorehouse Redding POA
Thank you for your help.
- Brendan Tinney UC Berkeley POA
[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.
- Dennis Leach National City POA
[My Representative] is a knowledgeable attorney and I would highly recommend him to anyone needing representation.
- James F. Beland Lake County SDA
- Yvonne Heuston ERS/SPPOA Supervisors
My representative was outstanding and knew what to lookout for and how to handle situations as they appeared. He told me what to expect and how he proposed to handle the hurdles. Just telling what to expect helped put me at ease as the situation was so foreign to me, and intimidating.
- Chad Sakamoto National City POA
Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.
- James Hika Border Patrol Supervisors Association
They did a great job!
- Christopher Walters Antioch POA
My LDF rep was very attentive, and courteous. She made every effort to keep me informed, and kept my best interests at the front of the process. I was very satisfied with my LDF rep, and the entire process.
- Scott Muir Tracy POA
Very satisfied with the service I was given.
- Shandon Murphy San Mateo POA
Great work! Thank you so much!
- Phillip Flores Oxnard POA
My attorney was excellent. I would use her again.
- 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
- 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.
- 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.”
- 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.
- 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.
- William DeWitt CPPA
Everything was awesome...could not be happier!
- 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.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- James Stephenson Petaluma POA
Outstanding service. Thanks.
- Patricia Goss San Anselmo POA
[My Representative] is fabulous! Thanks for all the exra work she did for me!
- Noe Cordero San Diego POA
Thank you for your help. I feel very secure as you assisted me.
- Michael Kan Palo Alto POA
I have always been and will continue to be a strong supporter of LDF and would not work as a police officer without it. I am extremely happy with the service I have received both from LDF and [my representative].