This is a follow-up to an article that was published in September of 2016. Subsequent to a Hearing Officer ordering the reinstatement of an Inglewood PD officer due to the City’s violation of the one-year statute of limitations, the City Council overturned the Hearing Officer’s decision and refused to reinstate the officer. As a result, Dawson & Riley, LLP filed a Petition for Writ of Mandate in Superior Court seeking to overturn the City Council’s decision based on the Department’s violation of the one year statute of limitations and the merits of the case.
The underlying case involved a solo vehicle accident of an Inglewood police officer (Petitioner), due to a bus pulling out in front of him, on August 20, 2013. Petitioner was placed on IOD during his recovery from the accident. While out on IOD 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 Petitioner’s unavailability, as outlined in Government Code § 3304(d)(2)(E). However, the Department made a devastating assumption. The statute is only tolled while Petitioner is unavailable and not until the interview is rescheduled.
On July 31, 2014, Petitioner 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. Petitioner’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. Petitioner and his counsel scheduled the interview for Sept. 4, 2014, which was one of the dates provided by the investigator. Petitioner 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 Petitioner of its intent to discipline until September 19, 2014 – nine days after the statute ran.
Under Government Code § 3304(d)(1), no punitive action may be imposed upon any public safety officer for alleged misconduct unless the public agency investigating the allegations completes its investigation and notifies the public safety officer of its proposed disciplinary action within one year of discovering the alleged misconduct. In an effort to overcome the statute violation, the City first claimed that the traffic accident investigation “could have” constituted a criminal investigation and thus the statute of limitations should be tolled pursuant to Government Code § 3304(d)(2)(A). However, the Department’s traffic investigator testified that at no time did he conduct a criminal investigation into Petitioner’s actions. Despite the clear testimony, the City refused to drop this argument. The City contended that Government Code § 3304(d)(2)(A) does not require that the conduct prove to be criminal. Rather, it claimed the standard is simply whether the conduct is “potentially criminal.” The Superior Court concluded that contrary to the City’s argument, the plain meaning of § 3304(d)(2)(A)’s language that the “allegation of misconduct is also the subject of a criminal investigation” means that the police officer’s actions must be the subject of criminal investigation in order for the limitations period to be tolled. There does not need to be a final determination that the officer’s conduct is criminal in order for tolling to apply; the potential for such a conclusion suffices. But there must be an actual criminal investigation of the police officer’s misconduct. Thus the City’s justification for tolling the statute of limitations due to a criminal investigation was denied.
Another exception is applicable if the investigation involves an employee who is “incapacitated or otherwise unavailable”, as outlined in Government Code § 3304(d)(2)(E). The City contended that Petitioner was incapacitated or otherwise unavailable following the August 20, 2013 accident simply because he was hospitalized for nine days and placed on IOD leave status until he returned to work. The Court held that Petitioner’s IOD leave status is not by itself persuasive evidence of unavailability. Although Petitioner was hospitalized, there was substantial evidence that Petitioner was available to be interviewed. In fact, the Department’s traffic investigator interviewed Petitioner by telephone two days after the accident. Clearly, he was available. Thus there was no evidence to support tolling due to Petitioner’s IOD status as a result of the accident.
The City further contended that the Hearing Officer wrongly tolled only the 21 days that Petitioner was hospitalized (July 29-August 18), and not until he submitted to the interview on September 4, 2014. The City relied on Chief Fronterotta’s letter warning Petitioner that the one-year statute would be tolled and cited to Petitioner’s counsel’s four-day delay in responding to the IA investigator’s email of proposed interview dates, as evidence that Petitioner was improperly shielding himself until the statute of limitations ran. The Superior Court held that the City’s argument was “specious”. While it is true that a deliberate evasion of interview would render Petitioner unavailable under § 3304(d)(2)(E}, no deliberate evasion occurred. Petitioner expressly provided the IA investigator with notice that he would be off of work until August 18, 2014. The Department knew that the one-year statute was about to run, as evidenced by Chief Fronterotta’s letter. Yet, the IA investigator made no attempt to contact Petitioner when he returned to work on August 19, 2014. On August 21, 2014, two days after Petitioner’s return to work, Petitioner’s counsel took affirmative steps to reschedule the interview by emailing the IA investigator. This evidence proved that Petitioner was not deliberately avoiding interview. The Department apparently thought it was protected by Chief Fronterotta’s letter and was dilatory in rescheduling the interview. Thus the Court held the letter did not shield the Department from the one-year statute of limitations violation.
Thus the only time the statute was tolled was from July 29, 2014 to August 18, 2014, when Petitioner had to cancel his previously scheduled IA interview due to an unexpected hospitalization. The Department was required to notify Petitioner of the intended discipline by no later than September 10, 2014, which it failed to do. The Superior Court ordered Petitioner’s reinstatement with full back pay due to the Department’s violation of Government Code § 3304(d)(1). Petitioner is anxious to return to work and grateful to the Legal Defense Fund and his attorneys at Dawson & Riley.