POLICE DEPARTMENT ENJOINED
FROM TAKING DISCIPLINE AGAINST OFFICER IN FIRST TEST OF LIMITATIONS
PERIOD IN PEACE OFFICERS’ PROCEDURAL BILL OF RIGHTS ACT
In a strongly worded
decision issued on April 20, 2001, Judge Robert H. Gallivan, of the
Orange County Superior Court, issued a preliminary injunction against
the City of Seal Beach and the Seal Beach Police Department, ordering
them to refrain from taking any punitive action (including discipline
and holding any pre-disciplinary hearings) against Officer "A"
during the pendency of the action. The judge, who had on March 16, 2001
issued a Temporary Restraining Order against the agency to prevent them
from taking disciplinary action against Officer "A",
determined that there was a "possibility of great and irreparable
harm to Plaintiff" and that "Plaintiff is likely to prevail at
the time of trial." The judge also found that the city and
department failed to complete its investigation and give the officer
notice of the proposed discipline within one year as required by
Government Code Section 3304 (d) and that the defendants' notice was
defective.
Panel attorney Sylvia
Kellison, of Kellison & Vasquez, LLP, represented Officer
"A" throughout the investigation and in hearings for the
Temporary Restraining Order on March 15 and 16, and the Preliminary
Injunction on April 16 and 20, 2001.
An investigation into
alleged wrongdoing was commenced in February 2000 by the department,
after the District Attorney's Office rejected a case against Officer
"A". Most of the interviews and the gathering of evidence were
completed by the department in June 2000. Expert opinions were sought
and those opinions were received in approximately July 2000. From that
time until October 2000, there was no activity on the case, despite the
fact that both Officer "A" and Kellison made numerous contacts
with the department to ascertain the status of the case. During that
time, and up until January 2001, Officer "A" and Kellison were
told that a decision would be issued soon.
In late January 2001, the
current attorney for the department contacted Kellison and asked for an
extension of time to complete the investigation and issue a Proposed
Notice of Discipline. Officer "A" declined to grant the
extension. On January 31, 2001, Officer "A" was called in and
told that he would be placed on administrative suspension, "pending
the results of the administrative investigation", and was given a
letter in which the chief indicated that he was considering that he
might propose discipline against Officer "A", and that Officer
"A" would be given additional investigatory materials as those
portions of the investigation were completed. Two days later, the chief
hired a consultant (who also works for the department's current law
firm) to review a report by the department's prior attorney, finding
that Officer "A" had committed no wrongdoing. He was also to
review 19 audio tapes and over 2000 pages of documents. The consultant
completed his report reversing the prior attorney's analysis and made
findings that Officer "A" had violated department policies.
On February 26, 2001,
Officer "A" was given a notice that he had the right to
respond to proposed discipline "up to and including
termination." Attached to that document was a list of the documents
relied upon, including one entitled "Administrative Investigation,
by Mervin Feinstein" (the consultant). The February 26 letter set a
date for the "Skelly" hearing and provided Officer
"A" with the voluminous documentation gathered by the prior
attorney. None of this material had been provided to him with the
January 31st letter.
California Government
Code Section 3304 (d) requires that the department complete its
investigation and give notice to the employee of the proposed discipline
within one year, after it discovers, or is notified of the alleged
wrongdoing. In filing the application for a Temporary Restraining Order,
Kellison alleged that the department had not completed its investigation
because Feinstein had not analyzed the evidence or written his
investigative report within the year, and because the department's own
documents indicated that the investigation was still ongoing beyond the
year. Plaintiff argued that the notice given to Officer "A"
was not a proper Notice of Discipline because it did not comply with the
city's own rules and because discipline could not be proposed absent an
analysis of the evidence supporting such discipline. The department
argued that the investigation was complete when the last interview was
done and the last document gathered. Nevertheless, the court ruled that
the investigation continued into February and was not complete within
the one-year period.
The court issued the
Temporary Restraining Order and set a hearing date for April 16, 2000.
In the April 16 hearing, the department claimed that the reference to
the ongoing investigation in the January 31 letter was a "semantic
misstatement", however, Kellison pointed out five other similar
statements in the department's own documents, indicating that the
investigation was not complete until February 26. The department also
argued that they had timely issued the Notice of Termination and that
this whole matter was the result of a "schlock investigation."
The court then replied "that appears to be the problem with your
entire process," pointing out a statement in the chief of police's
declaration which stated that he had, on January 31, considered the
Feinstein report in proposing discipline, however, Feinstein had not
been hired until February 2nd. Counsel for the department complained
that she wanted to put on witnesses, and that she needed additional
time. The court granted additional time and reset the hearing for
Friday, April 20.
On April 20, arguments
were again heard, however, the judge felt that it was unnecessary to
hear witnesses and made his ruling on the evidence in the record,
including all of the department's own documents. Counsel for the
department argued that a "balancing test" should be applied,
citing Rampart and other scandals. Kellison pointed out that the League
of Cities and a number of police departments had an opportunity in the
legislative process to add such a "balancing test" to the
statute, but had failed to do so. The judge did not apply a
"balancing test", and further stated that he was very
"troubled" about the city's own documents. He ruled that
neither the investigation, nor a proper Notice of Discipline had been
completed within the one-year in the statute. He determined that the
violation of the plaintiff's rights constituted serious and irreparable
harm, and further ruled that plaintiff would be likely to prevail on the
merits at a trial. He then ordered the department not to take any
punitive action against Officer "A" during the pendency of the
case. The Judge specifically declined to decide on the merits on the
department's allegations against Officer "A." The written
preliminary injunction was signed and issued on April 23, 2001. Officer
"A" will be kept on the payroll while discovery and a trial on
the merits proceed. This process could take up to a year.
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