Discipline Rejected
By Michael A. McGill
Lackie, Dammeier & McGill
The Los Angeles Superior Court recently tossed out a discipline case against an officer based upon a clear violation of Section 3304(f) of the Public Safety Officers Procedural Bill of Rights Act (POBOR). The decision is significant because it represents one of the very few instances where a court has been required to interpret this provision of the POBOR.
Rarely cited, Government Code Section 3304(f) requires a department to notify an officer in writing of its decision to impose discipline, including the date the discipline will be imposed, within 30 days after its final decision. In other words, after an officer is notified of the department’s intent to impose discipline, and after any predisciplinary procedures, such as a Skelly hearing, the department must notify the officer it intends to discipline him or her, within 30 days of making that decision.
The section is rarely violated, because most departments make a final decision to impose discipline and provide proper written notice to the officer concurrently—well within the 30-day time frame. However, the Sierra Madre Police Department is not like most departments.
The Sierra Madre Police Department, plagued by Chief of Police Marilyn Diaz, has been the subject of numerous lawsuits challenging the legality of her actions. Diaz’s most egregious indiscretions include violating officers’ civil rights by searching officers’ lockers without proper authority, and imposing unilateral changes on the terms and conditions of employment without consulting with the Peace Officers’ Association (POA).
The Sierra Madre POA has been a staunch critic of Diaz, taking her to task on every violation. With POA President John Ellins leading the charge, the POA has taken the necessary steps to expose the corruption and improprieties of Diaz. Naturally, Diaz has set out to quash any such opposition.
Deciding to go straight to the source, Diaz imposed discipline on Ellins for violating policies prohibiting officers from knowingly associating with “persons who engage in or continue to engage in serious violations of state or federal laws.” In June 2007, Diaz issued Ellins a notice imposing a 125-hour suspension and removing him as a field training officer.
However, in her notice, Diaz never told Ellins when the discipline was going to be imposed – a clear violation of Section 3304(f). In fact, Diaz sat on the discipline (possibly to keep it hanging over Ellins’ head while he was POA president) and never actually imposed the suspension.
Despite the clear violation being pointed out to Diaz, the city decided to continue to fight the disciplinary appeal. However, in the interim, Ellins requested and was granted additional coverage by LDF to file a Petition for Writ of Mandate in the Superior Court.
In court, the city’s lackluster defense was readily apparent. Although it remains unclear whether the department’s stubborn insistence to press forward with its case in light of the Section 3304(f) violation was mere incompetence on its part, or simply poor legal advice from its outside counsel, needless to say, Ellins’ petition was granted.
Due to the department’s failure to timely notify Ellins of the date of the discipline, the Court issued the Writ of Mandate and a permanent injunction, enjoining the city from imposing the suspension.
In addition, during his administrative appeal, the neutral arbitrator had unfounded the majority of the allegations against Ellins. The arbitrator found that Ellins did not violate the association policy, and stopped just short of calling the policy unconstitutional.
The arbitrator greatly reduced the suspension (which the court subsequently threw out altogether) and ordered Ellins reinstated as a field training officer. Officer Ellins is grateful to LDF for stepping up and providing legal coverage in his time of need, and to his counsel, Lackie, Dammeier & McGill, who were successful in their efforts to quash Chief Diaz’s vendetta.
ABOUT THE AUTHOR: Michael A. McGill is an LDF panel attorney and is a partner with the law firm of Lackie, Dammeier & McGill, who serve as general counsel to the Sierra Madre Police Officers’ Association.