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Los
Angeles County Judge
Rules Discipline Untimely
By Michael A.
Morguess
Lackie & Dammeier LLP
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Niles Rose is a police officer with the County of Los Angeles Office of Public Safety and a member of the Los Angeles County Police Officers Association (LACPOA). On August 1, 2000, the County employer began an investigation into an allegation of misconduct stemming from an incident occurring on the previous day. The investigation concluded in late 2000. On December 18, 2000, Chief Bayan Lewis signed the investigation disposition worksheet, and proposed a twenty-days suspension.
Months passed before Rose’s Department did anything about the discipline. Then, on April 21, 2001, Officer Rose was injured while on duty and immediately put on IOD Status, reassigned to home, Mondays through Fridays, from 9:00 a.m. to 5:00 p.m., and paid pursuant to Labor Code Section 4850.
On March 15, 2002, the day Officer Rose returned to work, and nineteen months after the investigation opened, he was served with a Notice of Intent to impose the twenty-days suspension. After arguments at the Skelly hearing that the Department failed to notify Officer Rose within the one year statute of limitation set forth in Government Code Section 3304(d), the Department stuck with its original intent, and imposed the twenty-day suspension. The Department reasoned that since Officer Rose was out on IOD, he fell within one of the exceptions to the one-year statute of limitation, as being “incapacitated or otherwise unavailable.” (Section 3304(d)(5)) Officer Rose served the suspension.
Officer Rose and his Association contacted Lackie & Dammeier LLP. We immediately filed a Petition for Writ of Mandate in the Los Angeles County Superior Court, pursuant to the Public Safety Officers Procedural Bill of Rights Act, asking the Court to issue a writ of mandate to compel the Department to drop the discipline and restore back pay, with interest, lost from the twenty day suspension, and to remove all references to the discipline from Officer Rose’s personnel file and other Department files. The basis for the Petition was Government Code Section 3304(d), which provides:
“[N]o punitive action . . . shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct . . . . In the event that the public agency determined that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed disciplinary action within that year . . . .”
We argued before the Court that Officer Rose had full capacity and was available to be notified of the proposed discipline. In fact, Officer Rose’s Sergeant contacted him weekly concerning his medical condition, status, and other administrative issues. Rose’s supervisor asked him to come into the station twice—once to clear out his locker for temporary use by another officer, and once to retrieve a radio from his locker for use by another officer. We also presented evidence that Officer Rose testified two times in court on work-related matters, while on IOD, and was paid for those appearances; and that Officer Rose had the same phone number and address while out on
IOD.
At oral argument, County Counsel was confusing “disabled” for purposes of Labor Code Section 4850 with “incapacitated,” which has a different and specific legal definition, and the County also argued the fact one is not at work makes them unavailable. However “incapacitated” usually includes that one is away from work, and that by choosing “incapacitated” the Legislature meant something more than just away or off from work, and that by using “incapacitated” in conjunction with “otherwise unavailable,” the Legislature meant more than just “not at work” because any other interpretation would render the word “incapacitated” superfluous within the statute. Finally, we pointed out that despite the supposed 10-day cutoff to have a Skelly hearing, that rule is flexible and Officer Rose actually had his Skelly more than 30 days after being served with the Notice of Intent.
Judge Ray L. Hart found that Officer Rose was indeed available, and had the capacity, to be served with the notice within the statutory period. He found that the “incapacitated or otherwise unavailable” exception must be examined on a case-by-case basis and that in this case, given the County’s continuous contact with Officer Rose, and the fact that Rose came into the station twice, and appeared in Court twice, the Department was required, but failed, to notify Officer Rose of the proposed discipline within the time prescribed by Government Code Section 3304(d). The Petition was granted. Rose v. County of Los Angeles, Los Angeles County Superior Court Case No. BS 079559.
This was the first step in straightening out several employer-employee issues at the County of Los Angeles Office of Public Safety. Currently, Officer Rose’s association, the Los Angeles County Police Officers Association has another action pending against the Office of Public Safety related to other Bill of Rights Act violations of Section 3303.
About
the author: Michael A. Morguess is an attorney with Lackie & Dammeier
LLP, a firm specializing in representing police associations and officers
in California and has litigated numerous labor relations cases for peace
officers.
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