Court of Appeal Issues Groundbreaking Decision Clarifying Statute of Limitations for POBRA Discipline
On June 22, 2018 the California Court of Appeals, First District published a decision denying several police officers’ claims that notices of discipline were untimely and thus violated the Public Safety Officers Procedural Bill of Rights Act (“POBRA”). After being issued disciplinary charges in April 2015 for alleged misconduct discovered before the one-year statute of limitations period, the police officers filed suit in court against the City and County of San Francisco (“City”) to rescind the charges. The appellate court reversed the trial court’s decision, ruling that the notices of discipline were timely because the misconduct was not discovered by a person authorized to initiate an investigation until December 2014, or alternatively since the misconduct was subject to a criminal investigation, the period was tolled until December 2014.
Facts of the Case
Rain Daugherty was employed as a police officer by the San Francisco Police Department (“SFPD”). He and eight other officers were issued disciplinary charges in April 2015 regarding sending racist, sexist, homophobic, and anti-Semitic text messages. The text messages were discovered in December 2012 by the FBI and the United States Attorney’s Office (“USAO”) during a joint federal and SFPD corruption investigation of an SFPD officer. All evidence discovered during the course of the investigation was the property of the USAO and protected under a federal nondisclosure agreement, known as a 6(e) agreement, as strictly confidential. A few officers within SFPD who did not supervise the nine officers were aware of the discovery but prohibited by the USAO from sharing the information with the rest of SFPD pursuant to the nondisclosure agreement. A criminal case proceeded against the officer and resulted in a verdict against him in December 2014. Three days after the verdict, the text messages were released to SFPD. In April 2015, Daugherty and the other officers were issued administrative disciplinary charges. Daugherty filed a writ pursuant to Government Code Section 3309.5 to rescind the disciplinary charges for being issued after the one-year statute of limitations outlined in the POBRA. (Gov. Code § 3304(d).)
The trial court ruled in favor of Daugherty, finding that an administrative investigation should have been initiated when the text messages were discovered in 2012, and that the statute of limitations could not be tolled since the text messages were not the subject of a criminal investigation. The appellate court reversed.
Statute of Limitations Period Under Government Code Section 3304
POBRA is intended to protect peace officers from arbitrary or abusive treatment in their employment. Government Code Section 3304 in particular requires that an investigation into alleged misconduct be completed within one year of discovery of the allegations. The discovery must be made by a person authorized to initiate an investigation. The one-year period is subject to certain exceptions as well. (Gov. Code § 3304(d).) One of those exceptions applies if the alleged misconduct is the subject of pending criminal investigation or prosecution. In that instance the one-year period is tolled during the time the investigation or prosecution is pending.
The City claimed that the statute of limitations did not begin when the text messages were discovered in December 2012, because the officers who knew about them were not authorized to initiate an investigation at the time. The court agreed and held that according to SFPD policy the officers who knew about the allegations prior to December 2014 lacked the required authority to initiate an investigation regarding the content of text messages. The court stressed that it is SFPD policy and its designation of persons authorized to initiate investigations that is controlling. Furthermore, the court noted that USAO’s confidentiality restriction prevented disclosure to persons within SFPD who were authorized to initiate an investigation. The confidentiality restriction was not lifted until December 2014. Therefore the April 2015 disciplinary charges fell well within the one-year period.
Alternatively, the City also claimed that the statute of limitations was tolled because the text messages were the subject of the criminal investigation and prosecution of an SFPD officer for corruption. The court again agreed, reasoning that the text messages were key tools needed to determine the full scope of the corruption scheme. Moreover, the use and disclosure of the text messages was restricted by the federal protective order issued in the corruption case. This made the text messages “subjects” of the criminal investigation. “Subjects” of an investigation as applicable to POBRA, the court reasoned, is broader than the law enforcement understanding of the term. Conduct is a “subject” of a criminal investigation if it has a “possible connection” to the conduct in the administrative proceedings regardless of the alleged misconduct’s level of criminality. Thus, the text messages were subjects of the corruption investigation, and tolling ended when the criminal trial came to an end in December 2014.
Accordingly, the disciplinary charges were timely both because, in keeping with the protective order, the one-year period did not begin until a person authorized to initiate an investigation was aware of the alleged misconduct in December 2014, and because the one-year period was tolled until the same because the text messages were a subject of a criminal prosecution. Daugherty could not have the disciplinary charges rescinded as untimely.
The Public Safety Officers Procedural Bill of Rights Act is meant to provide police officers with a fair and speedy disciplinary process without jeopardizing the integrity of investigations into officer misconduct. The Daugherty decision clarifies two things: (1) that only those individuals within an agency with the “authority” to initiate an investigation will trigger the one-year time limit; and (2) that if conduct has a “possible connection” to a criminal investigation it is the “subject” of the same which tolls the one-year period irrespective of the conduct’s criminality. However, when a federal agency is involved, its orders and directives can govern the timing on the discoverability of evidence of potential misconduct.