After facing a criminal complaint brought forward by his own department which was soundly rejected by the Los Angeles County District Attorney’s Office and then only to suffer through a lengthy administrative investigation that was started by a Lieutenant, an El Monte Police Sergeant has returned to work with his stripes nearly three years after the nightmare began.
It all started in November of 2017. Appellant had been in charge of the Community Relations Office for the El Monte Police Department. One of his many duties was obtaining toy donations for the Department’s numerous giveaways throughout the year, one of the largest events being the Christmas Toy Drive. His job required him to develop and maintain numerous relationships throughout the community, and he had the discretion to donate toys and items throughout the year to other charitable organizations in the community and to members of the community. One person that continually assisted him with obtaining donations and also putting him in touch with families that needed assistance was a retired El Monte Police Chief, who at the time was an active community member and a reserve officer for the Department. The retired Police Chief also runs a charitable organization that provides donations throughout the City of El Monte and the “toy give- away” program had been in existence for decades.
In July of 2017, a Lieutenant took over as the supervisor for the Community Relations Office. The Lieutenant’s transition into this new assignment was ambiguous, as Appellant continued to be responsible for some of the duties in the Office after the Lieutenant was supposed to take over the position. Unbeknownst to Appellant, in November of 2017, the Lieutenant went to the Department’s storage facility to see how many toys they had available to use in the upcoming Christmas Toy Drive. The Lieutenant was allegedly told that there were numerous toys missing from last year’s annual Toy Drive and that there should have been many more bags of toys. However, the Department did not maintain any type of inventory of its donations and did not have any documentation to show how many, if any, were missing. The department had no policy regarding said documentation or inventory protocol.
After the Lieutenant claimed he discovered an alleged shortage of toys he consulted with Department command staff regarding the issue. He then called and questioned Appellant on November 17, 2017, while he had other witnesses listen in on the conversation, regarding the whereabouts of the toys and whether anyone had access to the storage facility. The Lieutenant apparently suspected that Appellant had either taken the toys or had allowed the retired Police Chief to take the toys and distribute them to the community through his own charitable organization. The Lieutenant questioned the Appellant and there was no evidence that he provided him any of his POBR rights outlined in Government Code section 3303, as it appeared the Lieutenant suspected misconduct of Appellant at the time of the questioning and had consulted with Department command staff prior to the questioning. Additionally, he allowed other witnesses to listen to the conversation, and there was no evidence that he notified Appellant. Our office has noticed that some departments ignore that eavesdropping or recording of what a reasonable person believes is a confidential communication is only exempt when conducting a criminal investigation, as outlined in Penal Code section 633. There was no criminal investigation being conducted at the time, as the Department’s actions showed that they were only conducting an administrative investigation. It was not until December 11, 2017 that the Department contacted the Los Angeles County Sheriff’s Department requesting that it conduct a criminal investigation. The evidence showed that the Department was not conducting a criminal investigation at the time of the call. Thus the Department was arguably not exempt from the eavesdropping prohibition on confidential communications with Appellant.
At the beginning of 2018, Appellant received notice that a criminal investigation was being conducted by the LA County Sheriff’s Department regarding alleged grand theft of donated toys. The Legal Defense Fund provided him criminal coverage for the allegations, and he thereby retained Dawson & Riley to also represent him in the pending criminal investigation. The Los Angeles County District Attorney’s Office rejected the filing of any criminal charges on January 29, 2019, thereby ending the criminal investigation. The DA’s Office made it clear that even if bags were taken, there was no evidence to show that the bags even belonged to the El Monte Police Department. It further held that “[i]t is also impossible to establish that the taking, if it was a taking, was without the ‘owner’s’ consent…[T]he items were not necessarily owned by EMPD. To the extent that they were, however, the individual authorized to disburse those items was Appellant.” Despite very strong conclusions by the DA’s Office that there was insufficient evidence of a crime, the Department continued to keep Appellant on administrative leave and moved forward with an administrative investigation.
On January 28, 2020, Appellant received a Notice of Intent wherein the Department sought to demote him from his position as a Police Sergeant based on primarily the questioning by the Lieutenant on the phone call and the Departments alleged “theft” of the unknown amount of toys. Through the Skelly process, Appellant’s attorneys argued the alleged violations of Appellant’s POBR rights, which included the Department’s violation of the one-year statute of limitations mandated by Government Code § 3304(d).
Government Code § 3304(d)(1), which, in pertinent part, states:
[N]o 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.
The investigation revealed the Lieutenant became aware of the alleged misconduct on November 17, 2017 and consulted with management regarding the alleged misconduct on the same date. Thus Appellant’s attorneys argued that at a minimum the statute of limitations began on November 17, 2017. Arguably, the statute of limitations was tolled during the pendency of the criminal investigation, pursuant to Government Code § 3304(d)(2)(a). However, the statute of limitations did not start tolling until the start of the criminal investigation, which occurred on December 11, 2017, when the Chief contacted the LA County Sheriff’s Department to conduct the criminal investigation. The clock on the one-year statute started again after the issuance of the DA’s rejection sheet which occurred on January 29, 2019. The Department did not conclude the administrative investigation and notice Appellant of the Notice of Intent until January 28, 2020; thus, Appellant’s attorneys argued the Department had exceeded the one-year statute of limitations by at least 23 days.
After the conclusion of the Skelly process, the Department requested to settle the matter. The matter has settled, and as of September 21, 2020, Appellant has returned to work as a Sergeant with the El Monte Police Department. Appellant is grateful to the Legal Defense Fund for their support and to his attorneys at Dawson & Riley, LLP for their unwavering support during this lengthy ordeal.