A San Gabriel Police Dispatcher was terminated in March of 2017 regarding alleged misconduct that had occurred in October 2015. The Department knew of the alleged misconduct and failed to notify her of its proposed discipline until December of 2016. Appellant’s prior attorney had strongly encouraged her to accept a settlement agreement wherein she would be permitted to resign in exchange for waiving her right to appeal. Not feeling comfortable with the settlement, she then contacted Dawson & Riley, LLP to seek a second opinion and to inquire about our firm taking over her case. Time was of the essence in this case as the City’s attorney had provided a deadline for her to accept the settlement. Dawson & Riley agreed to take over her case and immediately began reviewing the case.
The same day that the case was received, Dawson & Riley noticed a possible violation of the one year statute of limitations outlined in Government Code section 3508.1. Gov. Code section 3508.1 clearly specifies that municipal police departments must not impose discipline upon police civilian employees if the Department fails to complete its investigation and notify the employee within one year from when it knew of the alleged misconduct. Dawson & Riley contacted Appellant’s prior attorney to find out if the issue was previously raised and to find out if any of there were any circumstances that would possibly toll what appeared to be a one-year statute of limitations violation; however, the attorney never responded. Rather than wait for a response, Dawson & Riley immediately contacted the City’s attorney regarding what appeared to be a violation of the one year statute of limitations. The City’s attorney promptly responded and proclaimed that the one year of statute of limitations did not apply as Appellant was a dispatcher and not a police officer. It was clear from the City’s attorney response that the City was not contending that any of the exceptions applied in order to toll the statute of limitations, and even more surprising, that the City’s attorney appeared to be unfamiliar with Gov. Code section 3508.1.
Not only is there a one year statute of limitations outlined in the Peace Officers’ Bills of Rights (Government Code section 3304(d)), but the one year statute of limitations is practically mirrored in Government Code section 3508.1 for municipal police civilian employees. Government Code section 3508.1 is a provision that is not frequently litigated, and it appears is not well known by some attorneys.
After a few days of no response from the City once we advised the City’s attorney that we were well aware that our client was a police civilian employee and we were referring to Gov. Code section 3508.1 and not Gov. Code section 3304(d), the City finally responded. The City now claimed that even if Gov. Code section 3508.1 did apply that the violation had been waived by the prior attorney since that attorney had failed to raise it at the Skelly hearing and had failed to file an Unfair Practice Charge with the Public Employment Relations Board (“PERB”) within 6 months of the alleged violation.
The City’s first contention claiming that the violation had been waived because it was not addressed at the Skelly hearing is without merit. A public employee has the ability to choose what, if any, information he/she seeks to disclose at a Skelly hearing. A defense is not waived if it is not raised at the Skelly hearing.
As to the alleged failure to file a claim within 6 months, this claim was also baseless. The City’s attorney claimed that the 6 month requirement for filing a PERB complaint began when the Notice of Intent was served on Appellant and not the Final Notice of Discipline. Gov. Code section 3508.1 states “With respect to any police employee, except as provided in this subdivision and subdivision (d), no punitive action, nor denial of promotion on grounds other than merit, 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.” (Emphasis added.) The statute requires two parts for a violation: (1) the agency must have failed to complete its investigation and notify the employee within one year of when it knew of the alleged misconduct AND (2) the agency must have imposed the discipline. If the Department had not imposed the discipline, then there would be no violation. As such, the PERB complaint was required to be filed within six (6) months of the imposition of the discipline and not from the date of the Notice of Intent. Had Appellant’s prior attorney filed a PERB complaint prior to the imposition of discipline said filing would have been premature.
Dawson & Riley advised the City’s attorney of its baseless arguments; however, the City refused to budge. Dawson & Riley had no choice but to file an Unfair Practice Charge against the City of San Gabriel for its violation of Gov. Code section 3508.1. The City filed an Answer to the Charge and again reiterated the same baseless arguments. PERB after reviewing both the Charge and the Answer determined that a Complaint should be issued for the City’s unfair practices. Prior to moving forward to a hearing, the parties were required to attend an informal conference/mediation. During the mediation, the City finally changed its tone from its prior refusal to negotiate anything other than resignation to offering a six figure settlement to Appellant along with the removal of the allegations.
Appellant was elated to obtain the six figure settlement and to clear her file, as she did not want to return to work for the City of San Gabriel and had already obtained gainful employment elsewhere. Appellant was grateful to the Legal Defense Fund for providing legal representation and to Dawson & Riley for its knowledgeable and effective counsel during this ordeal.