POBR AND THE ONE-YEAR STATUTE OF LIMITATIONS
September 1, 2005
The California Court of Appeal, Fourth Appellate District, ruled on August 29, 2005, in the case ofCastagna v. City of Seal Beach et al., that the Seal Beach Police Department did not violate any provisions of the Peace Officers Procedural Bill of Rights Act (POBR) in terminating the employment of a long time member of its agency. Castagna challenged the department’s right to terminate his employment on the grounds that the agency neither completed its investigation of his alleged misconduct, nor notified him of its proposed disciplinary action, within the statutory limitations period as set for in Government Code sec. 3304(d).
Cynthia Blaylock and Martin Mayer, of Jones & Mayer, represented the City and Chief Mike Sellers in what turned out to be a long, but successful, case.
G.C. sec. 3304(d) prohibits the taking of punitive actions against an officer if the investigation of alleged misconduct is “not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation..” Furthermore, the law states that if the agency “determines that discipline may be taken, it shall complete the investigation and notify the public safety officer of its proposed disciplinary action within that year..” (Emphasis added.) The law then sets forth eight (8) exceptions which would toll the statute and give the agency more time.
One of those exceptions states that, if the “.allegation of misconduct is also the subject of a criminal investigation.the time during which the criminal investigation.is pending shall toll the one year time period.” This is one of the issues raised in the Castagna law suit. A second issue was his contention that an internal affairs investigation is not completed until the investigator’s report has been written. After reviewing all of the facts and relevant law, the Court of Appeal disagreed.
The disciplinary issue arose after Castagna testified in a probate matter and the trial judge issued a minute order which read, in part: “Charles Castagna introduced a self-serving, forged document to this court and lied under oath about its authenticity and circumstances of creation.” As a result of the judge’s finding, and a complaint by the decedent’s brother, on July 20, 1999, the (then) Orange County Marshal’s Office alerted Captain Gary Maiten at the Seal Beach P.D. of the alleged misconduct and that it was beginning a criminal investigation.
On February 1, 2000 the Marshal’s office provided its report to Captain Maiten, as well as to the Office of the District Attorney. On February 14, 2000 the D.A. notified the Marshal’s office that it was declining to file because it didn’t believe it could prove guilt of perjury, beyond a reasonable doubt.
Seal Beach P.D. started its own internal affairs investigation shortly after Captain Maiten received the report from the Marshal and completed it prior to July 4, 2000, when the Captain retired. A preliminary, draft I.A. memo to Chief Sellers concluded that the charges were not sustained or were unfounded. Subsequently, however, as the Court of Appeal notes, the “Department’s outside counsel reviewed the internal affairs memorandum and concluded the findings were inconsistent with the facts set forth in the memorandum.”
The Department then retained the services of a consultant, Retired Riverside Deputy Police Chief Mervin D. Feinstein, to review the material contained in the I.A. investigation and prepare a report based on that material. Feinstein was directed by Mayer and Chief Sellers to not conduct any additional investigation, not to interview any witnesses and not to follow up on any of the investigation already completed. His task was merely to write a report, based on the evidence contained in the already completed I.A.
On January 31, 2001 the Department served Castagna with a “Notice of Intent to Discipline” along with copies of the judge’s minute order and a letter from the District Attorney’s Office, which stated that “the allegations made against Officer Charles Castagna, including the Court’s findings, must be disclosed to any future defendant on trial in any case where Officer Castagna is a material witness..”
On February 22, 2001 Feinstein submitted a written report to Chief Sellers regarding his independent review of the I.A., which concluded that “Castagna had engaged in serious acts of misconduct.” Subsequently, the Department provided the Feinstein report to Castagna and notified him of his right to a pre-disciplinary conference, pursuant to Skelly v. State Personnel Board.
On March 15, 2001 Castagna filed a complaint against the Department with the Orange County Superior Court, alleging a violation of POBR, G.C. sec. 3304(d), and secured a temporary restraining order prohibiting the Department from proceeding with the proposed disciplinary action.
Ultimately a trial on this legal issue was held and the Superior Court issued a decision in favor of the Department. Castagna appealed from that judgment, and the Court of Appeal has now upheld the Superior Court’s decision.
Findings of the Court
First, the Court of Appeal ruled that “because the marshal’s office and then the district attorney’s office were conducting investigations, the one year period was tolled.” The Court held that the criminal investigation was not complete until February 14, 2000, after the District Attorney’s review of the marshal’s investigation and its decision to not file criminal charges against Castagna.
Second, the Court ruled that the I.A. investigation was completed within one year after the February 14, 2000 date and that the report by Feinstein was not part of the I.A. investigation. “The trial court’s conclusion that the preparation of Feinstein’s report was not a part of the investigation is well supported. To investigate is to ‘observe or study closely: inquire into systematically.'” The Court held that, “the preparation of a report is not necessarily encompassed within the investigation contemplated by section 3304, subdivision (d).”
Finally, the Court ruled that substantial evidence supported the conclusion that “the police department notified Castagna of the proposed disciplinary action within one year after February 14, 2000,” even though the Notice of Intent to Discipline did not contain the completed investigative report prepared by Feinstein.
The Court stated that “because the Notice of Intent ‘was the first step whereby the [police department] initiated the process through which the matter would be adjudicated,’ and the police department subsequently afforded Castagna his Skelly rights.,” by giving him all material upon which the proposed discipline was based including Feinstein’s report, “Castagna’s Skelly rights were not violated.”
HOW THIS AFFECTS YOUR AGENCY:
It is imperative that agencies stay on top of their internal affairs investigations and ensure that they are completed and reviewed, by appropriate legal counsel, well before the one year, POBR, statute of limitations. Although this case is unpublished and, therefore, cannot be cited in court pleadings, it is a decision of the Court of Appeal and a significant analysis of the POBR provisions at issue.
In the instant case, the I.A. was completed approximately six months after it was started, but there was a delay in securing a legal review of the preliminary report. It was only after we conducted such a review, that it was discovered that the evidence set forth in the report did not support the findings in the initial draft memorandum. The review of the I.A. by Feinstein could not be completed by, what appeared to be, the end of the one year statutory time period and, therefore, we advised the Department to serve the notice of intent, without a copy of the I.A. report.
Although the Court has totally ratified our advice, we would urge that agencies avoid getting close to the one year deadline. Losing a matter due to procedural errors, such as delays in processing investigations, is, obviously, detrimental to any law enforcement agency.
Again, as always, we urge a close working relationship between law enforcement management and their department’s legal advisors. A case such as this proves the necessity of such legal support. If you wish to discuss this matter in greater detail, please don’t hesitate to contact me by phone (714 – 446-1400) or e-mail (mjm@jones-mayer.com).