The Monterey Park Police Department imposed a 40-hour suspension against Appellant for allegations related to an off-duty incident; however, it failed to notify Appellant within 30 days of its final decision of when he would serve the suspension. With the assistance of Dawson & Riley, LLP, Appellant was able to convince the Arbitrator that based on the Department’s violation of Government Code Section 3304(f) the suspension must be overturned in its entirety.
After electing to waive his Skelly hearing, Appellant was notified on October 20, 2015 that the City Manager made a final decision to impose the recommended 40-hour suspension. Appellant’s counsel immediately appealed the suspension. Prior to starting the hearing, the Department and Appellant’s counsel began settlement discussions. During the discussions, it became apparent that the Department failed to ever schedule much less notify Appellant of when he would serve his suspension. Based on this information, Appellant’s counsel immediately notified the Department of its violation of Government Code section 3304(f). Government Code section 3304(f) requires the public agency once it makes its final decision to notify an officer within 30-days of its decision to impose discipline, including the date that the discipline will be imposed. The Department failed to complete the latter part of its notification requirement.
Rather than accept responsibility for its failure to provide the proper notification, the Department, through its counsel, made a myriad of excuses for the violation. However, the only exception to the 30-day notification requirement is if the officer is unavailable for discipline, which did not apply to the matter at hand. Based on the Department’s refusal to retract the imposed discipline, Appellant’s counsel requested that the hearing be bifurcated and that the issue of the violation of Gov. Code section 3304(f) be addressed by the Arbitrator prior to any hearing on the merits.
The Department’s counsel first alleged that the 30-day notification requirement was tolled based on either an express or implied agreement between the Chief and Appellant’s counsel when settlement discussions began. The evidence proved that there was never any agreement by Appellant’s counsel to toll the 30-day notification. Additionally, the Department’s argument was nonsensical. Settlement discussions began in February of 2016, approximately 4 months after the final decision was rendered and well past the 30-day notification period. There would be no reason to agree to tolling the notification period if it had already run. Moreover, Appellant’s counsel subpoenaed the Chief to testify regarding the alleged implied or express agreement. The Department’s counsel fervently sought to avoid having the Chief testify by filing a Motion to Quash the subpoena and arguing that the Chief’s testimony was not relevant. Clearly, the Department’s counsel had concerns regarding its misrepresentations.
Moreover, even if the Department thought that they had an agreement to toll the 30-day notification requirement during settlement discussions, the Department failed to notify Appellant of its imposition of discipline within 30 days of the termination of settlement discussions. Appellant’s counsel notified the Department on April 29, 2016 of the GC 3304(f) violation and demanded reversal of the suspension, thereby terminating settlement discussions. The Department did not notify Appellant until June 2, 2016 of the imposition date of the suspension – more than 30 days after the alleged agreement to toll the 30-day notification requirement.
The Department’s counsel also argued that Appellant’s counsel delayed the selection of the Arbitrator and thus the statute should be tolled. The selection of the arbitrator has no bearing on the Department’s obligation to notify Appellant of when the suspension would be served. Secondly, the evidence proved that it was actually the City that delayed selecting the arbitrator and not Appellant’s counsel.
The next attempt to justify its violation occurred when the Department’s counsel claimed that there was a policy or practice to not impose discipline in cases where an employee waives the Skelly hearing until after the administrative appeal. Not only was there no evidence of such policy or practice produced by the Department, the Department clearly violated the policy or practice when it notified Appellant on June 2, 2016 of the imposition of the suspension prior to the appeal hearing.
Lastly, the Department’s counsel sought to characterize the statute of limitations violation as a procedural due process violation. Pursuant to Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, procedural due process violations require a showing of harm. The case addressed violations of Government Code section 3303 relating to an investigative interview and not the notification requirements of Government Code section 3304. Appellant’s counsel successfully argued that there is no requirement to prove harm for a statute of limitations violation and that the Department’s utilization of the Hinrichs case for a Gov. Code 3304(f) violation was nonsensical. The Arbitrator held “[s]tatutory provisions defining the respective duties of a public entity with clarity and precision cannot be deemed unreasonable, arbitrary or vague, and thus be subject to constitutional attack on due process ground. The statute is very clear about what is required. There is nothing arbitrary or vague in the language of the statute.”
The Arbitrator agreed that Appellant was not provided the requisite notice mandated by Gov. Code 3304(f). Thus Appellant’s suspension was ordered overturned in its entirety. Appellant is grateful to the Legal Defense Fund for their support and to his attorneys at Dawson & Riley, LLP for their attentiveness and persistence in holding the Department accountable for the violation of his Peace Officers’ Bill of Rights.