SUPERIOR COURT ISSUES
INJUNCTION AGAINST RIALTO CHIEF OF POLICE
By: Bob Krause
Law Office of Castle & Krause
Temecula, CA
Recently I had the
privilege of being asked to author an article dealing with Government
Code Section 3304(d), the relatively recent statute of limitations in
bringing administrative actions against public safety officers. At that
writing, a number of 3304(d) cases were pending (PORAC News Vol. 34, No
4 – April 2002).
I am happy to report that
since then the San Bernardino County Superior Court, Judge Martin A.
Hildreth presiding, has issued a preliminary injunction against Rialto
Police Chief Michael Meyers based on the successful pleadings and
arguments made by our office. The city has now stipulated to the
permanent injunction. The order has been issued.
Background:
Officer Courtenay Reed is a veteran police officer with the Rialto
Police Department. In June 2000 the department opened an internal
affairs investigation alleging various department rules and regulations
violations.
I was contacted by Reed
for legal representation and had the honor to represent him from the IA
through the administrative and Superior Court proceedings. While the
department completed its investigation in July 2000, it did not get
around to giving notice of an 80-hour suspension until November 2001.
At the Skelly
hearing I raised, rather strongly, the 3304(d) issues. I shall never
forget Chief Meyers’ response of "Oh really?" Within
24-hours Meyers issued his final order, never taking the time or
extending the courtesy to look into the facts, consider the argument, or
for that matter, to obey the law. Meyers forced this matter to Superior
Court where he lost. LDF funded the court action in support of Reed and
the Rialto POA.
The Superior Court’s Decision:
The court’s words, taken largely from our pleadings, are instructive
should your association face a similar factual situation. The court in
pertinent part wrote:
"Plaintiff is a
Rialto police officer, who is facing an 80-hour suspension from the
police force. According to the complaint, the disciplinary action
against plaintiff Officer Reed stemmed from a June 2000 citizen’s
complaint in which plaintiff was charged with failing to take a report
and to make a citizen’s arrest upon request.
Plaintiff seeks an
injunction to stop the defendants from proceeding with the discipline.
He alleges that the disciplinary action is time-barred under Government
Code Section 3304(d), which requires the agency to complete its
investigation and notify the public safety officer of its proposed
disciplinary action within one year after the agency discovered the
alleged misconduct.
The department initiated
and completed the investigation of the charge against plaintiff in July
2000.
Plaintiff was notified of
the proposed discipline in November 2001, one year and five months after
receiving the citizen’s complaint.
Defendants argue the
one-year time period set forth in Section 3304(d) was tolled, since
plaintiff was incapacitated from regular duty, suffering with a
job-related shoulder injury from late 2000 until November 27, 2001.
As support, defendants
cite the following exception to the one-year time period set forth in
Government Code Section 3304(d)(5).
Under 5, ‘If the
investigation involves an employee incapacitated or otherwise
unavailable.’
In their November 27
notice of proposed discipline, defendants advised plaintiff that they
had not presented the notice of proposed discipline to him within the
one-year time period ‘due to your being unavailable because of injury.’
Government Code 3304(d)(5).
As support for labeling
plaintiff unavailable, defendants argue plaintiff was incapacitated from
his regular duties, suffering from a workers’ comp injury. He
indicated he was not on regular payroll, but rather receiving sick
leave, compensatory time off, and unpaid leave.
Defendants submit the
declaration of the Rialto City Police Chief, Michael Myers [sic], who
states he directed the disciplinary action against plaintiff to be held
in abeyance under Section 3304(d)(5), because he believed plaintiff
could not be disciplined during his injury leave.
Aside from the chief’s
beliefs, defendants otherwise offer no guidance on the meaning of ‘unavailable.’
In contrast, plaintiff
views the Section 3304(d)(5) unavailability exception, as applying to
the officer’s availability to receive notice of the proposed
discipline, not his availability to work at his regular assignment.
Defendant’s
interpretation of the meaning unavailable to apply where an officer is
off work due to a work-related injury, using sick time and other
applicable leave, is not reasonable. The one-year notice period is
clearly intended as a statute of limitations, to provide the officer
with notice of any proposed discipline within a reasonable time.
(emphasis added).
The one-year mandatory
statutory notification period is, thus, unaffected by plaintiff’s
off-work status or any claim that plaintiff was not prejudiced by the
untimely notification.
The question here is
whether the officer was available to receive the notice. Plaintiff was
available for notice during the statutory time period. He declares that
between July 2000 and December 2001, he retained the same address and
telephone number, and so he was fully available.
He reported for
light-duty work on two occasions during the statutory time period and
was called into the department to be interviewed by internal affairs, as
a witness in another officer’s case.
Also, during this time
period, plaintiff appeared on matters involving his workers’
compensation case.
The court finds the
plaintiff was available to receive notification in the proposed
discipline during the one-year statutory notification period; that
defendant’s failed to provide such notice under Section 3304(d), and
that the unavailability under Section 3304(d)(5) does not apply, and
that the department violated Section 3304(d)
The court is granting the
request for an injunction to prohibit the department from taking any
punitive action against the plaintiff under Government Code Section
3309.5(c).
That completes it."
Other Observations: Sadly, Chief
Michael Meyers’ assertions to the court in his declarations that he
believed the time that was tolled was totally rebutted by an unrelated
case that under his command took one year and seven months to
"unfound". One other matter under Meyers’ command remains
beyond the one-year period. One must wonder if Chief Meyers’ position
will again be, "Oh really?".
LDF Home Page | News
Article Index
