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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- 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.
- Tia Dixione Inglewood POA
My representative was very helpful and informative.
- Eric Olson Escondido POA
You guys did an amazing job! Thank you L.D.F. !
- Chris Lyon Tulare Co DSA
Very thorough group of sharp/smart government concerned [attorneys]. They understood what was happening and briefed me on everything. I was very impressed.
- Robyn Delaney Mono County PSOA
[My Representative] truly is an exceptional attorney. He has always represented me with honesty and compassion. Well Done.
- 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.
- 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].
- Jon Seabron Oceanside POA
[My Representative] was the best and if I ever need to call al lawyer again for anything, I'll be calling her.
- Nancy Page Aurora PA
I didn't end up needing his service but he was awesome in what conversations we had before the matter was resolved. Very valuable - LDF!
- Sherri Coral Riverside Community College
He was very professional. I trusted him to defend and he did! I am very thankful he was here for me.
- Christopher M. Fuzie Modesto POA
I was very impressed with the speed at which the case was handled. Thank you!
- Linda Mendez Imperial Co Prob and Corr
I'm very pleased with the services offered by the LDF. I feel so fortunate to enjoy the benefits of having the membership. The services provided by LDF to its members is simply 110% professional, supportive, great!! LDF care for its members is reflected by the quality of Best Law Firm offered, simply the best!
- 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.
- Juan Pascua, Jr. San Diego Co DSA
Very helpful and very informative!
- Jack Ellis Lompoc POA
An excellent plan. Very valuable to its members.
- 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.
- Kim Jasper Alhambra POA
Excellent service, prompt and courteous.
- Carlos Gonzalez Oakland POA
Very well informed group.
- Jason Walters Claremont POA
LDF was very informative and provided me with the direction on how to handle my case. I was very happy with LDF and their staff.
- 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.
- Brian Schopf Elk Grove POA
Keep up the good work.
- 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!
- Ricky L. Hemphill Los Angeles School PA
[My representative] was an excellent lawyer.
- 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.
- 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.
- Paul Figueroa Oakland POA
LDF was there when I needed them!! In this litigious world, it's nice to know LDF has GREAT lawyers on our side who look out for us!! [My Representative] is a great attorney and a person I would trust in any circumstance!!!
- 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.
- 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.
- 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.
- Robert Morales Rialto PBA
I was very pleased with the service I received
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Billy Aldridge Chico POA
[My representative] was awesome! He provided an excellent explanation of the process and was very professional. This was my first IA in 11 years of LE and [my representative] did a great job of reassuring me that I had nothing to worry about. Thank you so much for all your help.
- James Beckman Miracosta College POA
Excellent service everytime.
- 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.
- Melvarene Hayes LA Airport POA
They were there when I needed them and my whole case was handled on the phone. I met my representative after my case closed and he was at our union meeting when I had the pleasure to meet him and thank him in person.
- 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.
- Steven Moorehouse Redding POA
You guys are Great! Very professional and well informed. THANK YOU!
- Malcolm Norrington LA School PA
I am very pleased with LDF and would use and recommend them again and again and again.
- Rick Stephens Alpine CO DSA
My representative was very good. I highly recommend my lawyer to anyone.
- Shaun Luciano LA School PA
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.
- Dennis Leach National City POA
[My Representative] is a knowledgeable attorney and I would highly recommend him to anyone needing representation.
- Keith Braden Los Angeles School Police Mgmt Assn
Great work, no complaints.
- James Stephenson Petaluma POA
Outstanding service. Thanks.
- 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.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- John Tinder Chino POA
Having an LDF attorney who is experienced, knowledgeable and professional is an outstanding quality. [My representative ]exhibit all of these qualities and more. They are outstanding and I would not entrust my career to anyone else!
- Cherie Rye Lyon Co SEA
I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
- Robin Gonzalez Yolo Co. DSA
[My representative was] very quick to respond, helpful and professional. Thank you!
- Christopher Adams Modesto POA
Thank you for all your help!
- Byron Kies Santa Barbara Co DSA
Everything was great!
- Douglas Mansker Bakersfield POA
(My attorney) is a very good attorney, despite his young age. He kept me well informed throughout my legal matter and returned phone calls in a prompt manner. I was very satisfied with his performance and would not hesitate to be represented by him again.
- Paul Spencer Santa Paula POA
[My Representative] was great!
- Steven E. Lopez Santa Maria POA
Keep up the Good Work! Your service was extremely helpful to me. Thank you.
- Stephanie Haas Lyon Co SEA
When I first contacted LDF re: my case I was unsure of how well/poor I'd actually be represented. I was impressed beyond belief. From the timely responses from my attorney, his knowledge in my case, advising me what my rights were and where I stood. I felt like I was genuinely being protected from unwarranted and unfounded accusations and believe, as long as I am in the right, I have someone fighting for me. Thank you, Thank you.
- Paul Barrolaza Twin Cities POA
- Paul Hernandez LA Gen Services POA Inc.
[My Representative] was very helpful in my situation and I can't thank him enough.
- Andrew J. Brice Santa Maria POA
As always... an excellent result.
- Richard Salcido Brea PA
LDF is a great organization that not only helps their clients but many of those around them such as coworkers and family members.
- Raymond Fisher Colorado State Patrol Assn
I have known for sometime that PORAC would provide the services I needed at the time I needed them. This is a professional competent organization prepared to handle the appropriate legal matters our officers face in today's environment.
- William Jackson Santa Maria POA
Keep up the great work.
- Brendan Dolan Milwaukee PA
Everything went very smooth and they handled everything! 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.
- Oliver Sansen Concord POA
In 14 years I have never had to deal with an "IA." [My representative] was wonderful & put my mind at ease throughout the entire process. Thank you!
- Michael Sexton Manteca POA
[My representative] was awesome.
- 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.”
- Nestor Hernandez San Diego POA
This is a great program designed to protect LEO’s in need
- Andrea Salas Sonoma County DSA
[My Representative] was great! Thank you.
- 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.
- Derwin Longmire Oakland POA
Outstanding [law firm] - incredible firm. And, LDF was easy to work and correspond with.
- James F. Beland Lake County SDA
- Grace Castro AFGE Local 2455 – Laredo, TX
My representative was very kind and showed he cared when explaining what my legal rights were when dealing with an internal investigation.
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- 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.
- Dwayne Sue Oakland POA
[My representative was] great! She kept me informed and was very professional. She would be my choice if I should need her services in the future! (But I hope I won't) Thanks!
- Clyde Williams San Diego Harbor POA
Thank you for all of the work related to my officer involved shooting case.