Chief Mark Fronterotta is overturned once again. This time he terminated a police officer after the one year statute of limitations outlined in Government Code section 3304(d) had run. With the assistance of Dawson & Riley, LLP, Appellant was able to convince the arbitrator that his termination must be overturned based on the Department’s failure to notify Appellant of the intended discipline within the one year requirement.
Appellant was involved in a solo vehicle accident, due to a bus pulling out in front of him, on August 20, 2013. Appellant was placed on 4850 time during his recovery from the accident. While out on 4850 he was interviewed by the Department’s traffic investigator regarding the accident. After he returned to work on modified duty, he was eventually contacted by the Internal Affairs Department to schedule an interview. His interview was scheduled for July 29, 2014. However, the night prior to his interview he was admitted to the hospital for unrelated medical reasons. His attorney contacted the Department and advised he would be unavailable for the scheduled interview. As the Department was close to the one year statute of limitations running, the Department advised in writing that the statute would be tolled from July 29, 2014 until the interview was rescheduled, due to the Appellant’s unavailability as outlined in Government Code section 3304(d)(2)(E). However, the Department made a devastating assumption. The statute is only tolled while Appellant is unavailable and not until the interview is rescheduled.
On July 31, 2014, Appellant provided medical documentation to the Department advising the Department that he would be off work through August 18, 2014. At no time did the Department attempt to schedule the interview for a date upon his return. He eventually returned to work on August 19, 2014, and was not contacted to reschedule the interview. Appellant’s counsel then initiated contact with the IA investigator on August 21, 2014 to schedule the interview; however, the investigator waited until August 25, 2014 to respond and then provided dates in September for scheduling the interview. Appellant and his counsel scheduled the interview for Sept. 4, 2014, which was one of the dates proposed by the investigator. Appellant was therefore available from August 19, 2014 until September 4, 2014 to be interviewed, but the Department made no effort to schedule the interview earlier. Based on the mistaken belief that the statute was tolled until the date of the interview, the Department waited to notify Appellant of its intent to discipline until September 19, 2014 – nine days after the statute ran.
In an effort to resolve the matter and save resources and time for both parties, Appellant’s counsel outlined the statute of limitations violation to Chief Fronterotta during the Skelly hearing. Chief Fronterotta claimed that he would review it and respond. However, when he made his final decision to impose the termination, he did not present any argument to refute the statute of limitations violation; rather, he simply stated he disagreed with our position.
On appeal, Appellant’s counsel filed a Motion to Dismiss prior to the start of the hearing based on the statute of limitations violation. The City’s attorney filed an Opposition claiming that the statute had not run, because the traffic accident constituted a criminal investigation tolled pursuant to Government Code section 3304(d)(2)(A). The Department also claimed the Department’s scheduling of the interview after Appellant’s unavailability was reasonable and therefore the statute was tolled until the interview was scheduled. The hearing officer chose to reserve ruling on the issue of the statute of limitations until the conclusion of the hearing.
During the hearing, the Department’s own witnesses confirmed that there was never a criminal investigation of Appellant or his actions. Additionally, as outlined above, the evidence proved that Appellant was available upon his return to work on August 19, 2014; thus the Department’s contention that the Department scheduled the interview within a reasonable time upon his return to work was insufficient. Chief Fronterotta was the last witness to testify, and when confronted with all of the evidence to prove the statute of limitations was violated, he then contended that even if none of the exceptions in Government Code section 3304(d)(2) applied that the Department still acted in good faith and therefore there was no violation. Given that there is no such good faith exception outlined in Government Code section 3304(d)(2), this contention was easily put to rest.
At the conclusion of the hearing, post-hearing briefs were submitted to the Arbitrator. The City, for the very first time, contended in its post-hearing brief that Appellant was also unavailable during the time he was on 4850 immediately after the accident. Given that this was the first time this issue was raised, the Arbitrator provided an opportunity for both parties. The City argued that according to Bettencourt v. City and County of San Francisco (2007) 53 Cal.App.4th 1090, which addressed the tolling exception relating to a pending civil suit, the statute was tolled while Appellant was on 4850, regardless of whether the Department tried to interview him, because his placement on 4850 constituted his incapacity/unavailability. Not only was this desperate attempt by the City at trying to avoid the statute of limitations violation unsupported by any relevant legal authority, but it was contrary to the evidence. The evidence had already proven that Appellant was contacted while on 4850 and interviewed by the traffic investigator. As such, he was available. Moreover, the arbitrator agreed to reopen the hearing for additional evidence to be presented regarding the Department’s longstanding practice in other IA investigations when employees were on medical leave. The evidence proved that the Department still made attempts to contact employees on medical leave, as one’s inability to perform a peace officer’s duties does not equate to one being unavailable for an interview by IA, and only after representations that an employee was unable to proceed with the interview was it deemed that the statute would be tolled.
The Arbitrator agreed with Appellant’s counsel that Appellant was not incapacitated or unavailable for an interview while on 4850 and confirmed that there was never a criminal investigation of Appellant. Thus the only time the statute was tolled was from July 29, 2014 to August 18, 2014, when Appellant had to cancel his previously scheduled IA interview due to an unexpected hospitalization. The Department was required to notify Appellant of the intended discipline by no later than September 10, 2014, which it failed to do. Thus the Arbitrator ordered Appellant’s reinstatement with full back pay. Appellant is anxious to return to work and grateful to the Legal Defense Fund and his attorneys at Dawson & Riley.