To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
IA INVESTIGATIONS: ONE-YEAR STATUTE OF LIMITATIONS
November 24, 2003
Approximately six years ago, the Peace Officers Procedural Bill of Rights Act (G.C. § 3300-3312) was amended to create a one-year statute of limitations for the completion of an investigation and notification to an employee of proposed disciplinary action. Specifically, G.C. §3304 (d) states that: “except as provided in this subdivision and subdivision (g), no punitive action, … shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one-year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.”
There are also eight situations in which the one-year statute of limitations would be tolled and the department, although it could, would not be obligated to proceed with the internal affairs investigation.
On November 13, 2002, an article was published in the Los Angeles Daily Journal indicating that “San Francisco police officials said at least six disciplinary cases against officers will probably be dropped because internal Affairs Investigators failed to meet the deadline for charges.” The Captain in charge of departmental discipline stated that the investigators had not completed the cases before the one-year statute of limitations expired and, therefore, no disciplinary action would be taken.
Additionally, there are two recently published decisions from the California Court of Appeal addressing the question of whether or not the investigations were completed, and notification of proposed discipline provided, within the statutory limit of time.
G.C. §3304(d) states, in part, that “in the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed disciplinary action within that year, except in any of the following circumstances…” and the statute then sets forth the eight sets of circumstances which would stop, or toll, the one-year time period. (Emphasis added)
The eight situations which would keep the one-year statute from running are the following:
1. If the alleged misconduct is also the subject of a criminal investigation or criminal prosecution;
2. If the officer waives the one-year time period in writing;
3. If the investigation is multi-jurisdictional in nature and requires a reasonable extension for coordination of the involved agencies;
4. If more than one employee is involved in the investigation and a reasonable extension of time is needed;
5. If the investigation involves an employee who is incapacitated or otherwise unavailable;
6. If the investigation involves a matter in >civil litigation where the officer is named as a party defendant;
7. If the investigation involves a complainant who is a criminal defendant, during the period of the defendant’s criminal investigation and/or prosecution; and
8. If the investigation involves an allegation of Worker’s Compensation fraud on the part of the officer.
An issue arises when the investigation comes close to the statutory period for completion. Sometimes the question focuses on “what did the department know and when did it know it?” The statutory language is fairly explicit when it states that the one-year “clock” will begin running following “the public agency’s discovery (of the alleged misconduct) by a person authorized to initiate an investigation of the allegation of … misconduct.”
One question which will arise, and has arisen, is who is the individual “authorized to initiate an investigation…?”
In the case of Jackson v. City of Los Angeles (2003) 111 Cal. App. 4th, 899, the Court of Appeal concluded that, at least in that case, “the person in section 3304, subdivision (d) who is authorized to initiate an investigation of the allegation of an act, omission, or other misconduct,” is a supervisor in the police department. In the Jackson case, a sergeant learned on March 26, 1999 that officer Jackson had allegedly threatened to kill a number of LAPD officers. The investigation was ultimately completed and officer Jackson was served with a Notice of Intent to impose discipline on March 31, 2000 – one-year and five days after the sergeant learned of the alleged misconduct.
The City of Los Angeles argued that its charter prevailed over the Public Safety Officers’ Procedural Bill of Rights Act (“POBR”) and the clock did not start running until the Chief of Police was notified. The Court ruled that under the city charter the complaint would have been timely, but because POBR is a matter of statewide concern it prevailed over the city’s charter and its calculation of one-year was applicable in the instant case. “In matters of statewide concern…applicable general state laws govern charter cities regardless of their charter provisions.” As such, the complaint against Officer Jackson was untimely, under POBR, and the trial court was ordered to enter a new and different order granting the employee’s Petition for Writ of Mandate.
A few months earlier, in May 2003, the Court of Appeal issued a ruling in Haney v. City of Los Angeles, 109 Cal. App. 4th 1, in which the Court again found that the “date upon which an administrative agency discovers misconduct is a question of fact, as is the reasonable diligence with which the person authorized to initiate an investigation into misconduct acted.” In the Haneycase, a Sergeant learned that an officer hosted a barbeque on Memorial Day of 1998 and, subsequently, that it was attended by several officers who were on duty at that time. The issue which arose was whether the Sergeant, when he discovered the attendance at the barbeque, knew or should have known that misconduct had occurred at that time. If the Sergeant were held to the standard of having knowledge of misconduct, when he first learned of the barbeque, then the serving of the personnel complaint upon officer Haney would have been approximately four weeks past the one-year statute.
The trial court concluded that the Sergeant did not discover misconduct until after the investigation determined that the officers were on duty while attending the barbeque at Haney‘s home. The court stated “this is an instance where reasonable minds could differ on the question of whether (the) Sergeant…should have suspected misconduct any earlier than June 29, 1998. We therefore must defer to the trial court’s determination of that point.”
The court held that the triggering of the period of limitations requires more than mere discovery of an event, but an awareness by the agency that the event involved misconduct.
HOW THIS EFFECTS YOUR AGENCY:
As the Jackson court stated, the one-year statute of limitations, “by encouraging prompt investigation of allegations of officer misconduct, …promotes the public interest in maintaining the efficiency and integrity of the police force. It promotes the police officer’s interest in receiving fair treatment by requiring the diligent prosecution of known claims….”
It is imperative that all supervisors be made aware that their discovery of alleged misconduct starts the “clock” running regarding the one-year statute of limitations, even if that information is not conveyed up the chain of command. Discovery of alleged misconduct begins the statutory period when discovery is by one authorized to initiate an investigation. Although a supervisor may not be authorized to initiate an investigation on his or her own, the supervisor has the ability to cause an investigation to be initiated.
Delays in a supervisor’s reporting instances of alleged misconduct can result in a delay of the completion of the investigation and notification of proposed discipline and, therefore, prevent the department from imposing discipline when it is, in fact, appropriate. The Jackson case is a significant example of that problem since the underlying issue of misconduct involved alleged threats to harm other members of the department. Nonetheless, because of the delay in the process, LAPD is now precluded from disciplining that officer.
A thorough review and analysis of your internal affairs process, from intake through completion, is highly beneficial in a variety of ways. Complying with statutory obligations, is only one of the benefits.