Government Code section 3304(f), part of the Public Safety Officers Procedural Bill of Rights Act (POBRA) provides that, when a public agency decides to discipline a peace officer, "the public agency shall notify the public safety officer in writing of its decision to impose discipline, including the date that the discipline will be imposed, within 30 days of its decision, except if the public safety officer is unavailable for discipline." In Neves v. California Department of Corrections and Rehabilitation (2012) 203 Cal.App.4th 61, the Court of Appeal held that the Department of Corrections satisfied section 3304(f) when its January 27, 2010 notice of disciplinary action was received by the officer in early February 2010.
Lawrence Neves was a Correctional Officer who, on December 30, 2009, was personally served with a so-called Sulier notice. This notice informed Neves that, pursuant to Sulier v. State Personnel Board (2004) 125 Cal. App. 4th 2, the Department had completed its investigation into allegations of misconduct and had decided to take disciplinary action against him. It was also advised that "the recommended" discipline was termination. The notice further informed Neves that formal papers would be served on him within the next 30 days. According to the Department, the purpose behind the Sulier notice was to satisfy the POBRA requirement in section 3304(d) that a department complete its investigation into alleged misconduct and serve a peace officer with notice of intended disciplinary action within one year of discovery of the alleged misconduct.
A January 27, 2010 notice of discipline informed Neves that he would be terminated effective February 12, 2010. The notice further advised Neves of the legal and factual reasons for the proposed discipline, his right to respond to the proposed action, and his right to appeal to the State Personnel Board. Neves received the notice of discipline on either February 1, or 2, 2010.
Neves filed a petition for writ of mandate and argued that, because he did not receive the notice of intended discipline within 30 days after the December 30, 2009 Sulier notice, the Department could not impose discipline on him. The trial court agreed with Neves, and the Department appealed.
The Court of Appeal reversed and held that Neves had failed to demonstrate any violation of the POBRA. The Court held that the 30-day requirement in section 3304(f) does not begin to run until the department completes the pre-disciplinary process and decides the specific level of discipline that will be imposed. The Court noted that the Sulier notice served on Neves made it clear a decision to dismiss had not yet been made, but was merely being recommended. The 30-day notification requirement of section 3304(f) was triggered on the date of the Department's final decision to impose discipline, which was the same date as its formal notice of disciplinary action, signed and dated January 27, 2010.
Neves serves as a cautionary tale for public safety employers. An inadvertent POBRA violation may result in discipline being overturned in the event of an appeal. Accordingly, agencies should be careful not to provide written communications to a peace officer at the pre-disciplinary stage that will unintentionally trigger the 30-day requirement to notify a peace officer of its decision to impose discipline.