The Public Safety Officers Procedural Bill of Rights Act contains a statute of limitations that commences with the discovery of misconduct by public safety officers in the employment setting. According to Government Code Section 3304(d)(1), an agency cannot discipline any officer “for any act, omission, or other allegation or misconduct” unless the agency completes its investigation and notifies the officer of the proposed discipline “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.” The Court of Appeal in the Third Appellate District for the State of California recently heard argument regarding how the statute of limitations ought to run for multiple instances of employee misconduct.
Summary of the Facts of the Case of Luis Garcia v. State Department of Developmental Services
Luis Garcia was a police officer for the State Department of Developmental Services starting in 2003. However, in 2018, the Department discovered Garcia had been manipulating his colleagues’ schedules in order to subvert the Department’s policy limitation on overtime accrual. As a result, Garcia received unnecessary overtime and the Office of Law Enforcement Support (OLES) investigated once the Department learned of his conduct. During the course of the investigation, which took place between June 2018 and February 2019, OLES discovered various other acts of misconduct unrelated to the original investigation. These other acts of misconduct occurred in February 2018, May 7, 2018, May 20, 2018, and between June 2017 and June 2018. On April 26, 2019, the Department issued a notice of adverse action, stating Garcia would be terminated effective May 3, 2019. The notice specified that the adverse action was due to Garcia improperly scheduling himself to work overtime, acting unprofessionally, threatening to retaliate against a sergeant, improperly ordering a subordinate to work overtime, and taking photographs of a workplace item for no legitimate reason. Garcia was released from employment on May 3, but the Department subsequently withdrew its adverse action as a result of Garcia’s appeal of the termination.
On September 26, 2019, the Department issued a second notice of adverse action to Garcia announcing an impending demotion effective on October 4, 2019. The notice stated that the adverse action was based on Garcia’s improper scheduling himself to work overtime, acting unprofessionally, improperly ordering a subordinate to work overtime, retaliation, unprofessional behavior, using an offensive slur, using his work computer for non-work purposes, and a plethora of other acts of misconduct. Garcia appealed the decision to the State Personnel Board (SPB) and filed a motion to dismiss the case, arguing the section 3304(d)(1)’s one year limitations period barred the action. He argued that since the Department asked OLES to investigate his overtime misconduct on or around May 24, 2018, the Department must have served its notice of adverse action within one year of that date.
The SPB rejected the argument that in matters of multiple acts of misconduct, the initiation of the investigation into one act triggers the one year limitations period for all acts of misconduct. Following this decision, Garcia filed a writ of mandate to the superior court and the court rejected Garcia’s challenge and entered judgment in the Department’s favor. Garcia appealed to the California Court of Appeal.
The Court of Appeal’s Reasoning
The Court reasoned that that language of Section 3304(d)(1) “makes plain that the date of discovery for each act, not the date an investigation is initiated for any one act, is the relevant consideration.” The Court of Appeal also cited case precedent that largely disagrees with Garcia’s argument, stating that the statute of limitations begins to run at the time of the discovery of each act of misconduct.
The Court rejected Garcia’s four separate arguments. First, he argued the statute did not carve out an exception for extending the 12-month statute when investigators discover new material in their investigation. The Court rejected this argument stating its focus is not on the exceptions but the text itself, which is plain and states that the one-year statute of limitations begins to run from the time the misconduct is discovered. Second, Garcia argued the Department was at fault for not initiating a new investigation each time it discovered a new act of misconduct. He put forth an argument that the text of the statute states that all acts of misconduct during a single investigation are subject to the same limitations period, however, the Court stated that no such requirement appears in the text.
Third, the Court stated that Garcia seemed to assume that because it is difficult for an employee to obtain facts to show an agency acted in an untimely way, that should be enough to state that the agency acted in an untimely manner. The Court disagreed and stated that the employee must prove all facts of the defense to satisfy each of its elements and it is not enough to simply allege the defense. Finally, Garcia relied on a 2018 case Ochoa v. County of Kern arguing that the case shows that the section 3304(d)(1) limitations period for each discovered act of misconduct begins to run once the agency initiates the investigation into any one of the officer’s improper acts. The Court of Appeal disagreed, stating that Ochoa held that “the investigation of the misconduct and requisite notification to the officer must be accomplished within one year of the public agency’s discovery by a person authorized to initiate an investigation.”
The Court did not address any of the Department’s arguments in favor of the Court’s ruling, due to Garcia’s four arguments having failed. As a result, the Court held unequivocally that section 3304(d)(1)’s one year limitations period runs on an act of misconduct from the time it is discovered, regardless of whether the act is discovered as part of an investigation of another act of misconduct.
How does this ruling affect employers?
The employee all but threw the kitchen sink at the Court of Appeal in an attempt to convince the Court to hold that the statute of limitations begins upon the discovery of the first act of misconduct. However, despite these creative attempts, the Court did not budge. This is good news for public agency employers as it does not require employers to adhere to a one year statute of limitations upon the initiation of investigation, regardless of when the misconduct is discovered. As a result, employers can rest easy in the sense that they will not need to expedite procedural due process with respect to misconduct discovered late in the investigation. However, they are also not out of the woods. As mentioned in the case, workplace investigations are complex and it is common that an investigation will uncover unanticipated acts of misconduct.
This will require diligence from both the employer and from the investigator, whether internal or external—as exact dates of discovery will be critical in order to track the statute of limitations in an investigation that discovers multiple acts of misconduct. It would behoove employers to have a discussion with investigators to track discovery of misconduct that is not within the scope of the investigation and to record the date of that discovery. This will allow employers specifically to track each discovery of each act of misconduct, and thus have high accuracy in tracking the statute of limitations.