DEPARTMENT OF CORRECTIONS AND REHABILITATION et al., Plaintiffs and Respondents, v. STATE PERSONNEL BOARD, Defendant; SHIEKH IQBAL, Real Party in Interest and Appellant.
No. C073865
Third Dist.
May 24, 2016
700
Daniel M. Lindsay, Janice R. Shaw and Aaron G. Cohen for Real Party in Interest and Appellant.
Stephen A. Jennings and Christopher D. Howard for Plaintiffs and Respondents.
OPINION
HULL, Acting P. J.—Department of Corrections and Rehabilitation (CDCR) gave notice it intended to discipline its employee, parole agent Shiekh Iqbal (real party in interest), for unauthorized use of government resources to access criminal history information concerning a third party. The State Personnel Board (SPB) revoked the discipline on statute of limitations grounds under the Public Safety Officers Procedural Bill of Rights Act (POBRA),
“(2)(A) If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the one-year time period.”
CDCR and its former Secretary Matthew Cate petitioned for administrative mandamus. (
We conclude tolling applies, and the disciplinary action was timely. We affirm the judgment remanding the case for SPB decision on the merits.
FACTS AND PROCEEDINGS
Iqbal has been employed as a CDCR parole agent since 1987 and has been assigned to Alameda County since 1998. In the course of that assignment, he developed a close working relationship with the Union City Police Department (UCPD) and would often contact UCPD with work-related inquiries for criminal history information on subjects through the California Law Enforcement Telecommunication System (CLETS) or through the Alameda County Consolidated Records Information Management System.
On October 29, 2007, Iqbal contacted a UCPD dispatcher and asked her to check criminal history information regarding a third party. The third party is not a parolee but rather is a personal acquaintance of Iqbal. The dispatcher accessed CLETS and relayed the results to Iqbal.
On an undetermined date in early 2008, CDCR‘s office of internal affairs (OIA) became aware of allegations that Iqbal had accessed CLETS for personal purposes unrelated to his job. OIA requested information from UCPD, which UCPD provided on April 10, 2008.
On October 6, 2008, OIA assigned Senior Special Agent Mark Hoff to conduct a criminal investigation of the matter.
On October 29, 2008, the Department of Justice (DOJ) requested information from UCPD regarding “Possible CLETS Misuse,” stating DOJ had received a request to determine if the third party had been inquired upon through CLETS for other than official business.
On November 4, 2008, UCPD provided information about Iqbal‘s CLETS access in response to DOJ‘s request.
On December 11, 2008, Hoff attempted to conduct an interview with Iqbal. Pursuant to the investigative interview criminal subject memorandum, Iqbal was told he was being interviewed for possible criminal conduct, and he was read his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602].) Iqbal chose to remain silent.
On December 15, 2008, Hoff completed the criminal investigation and submitted a report to the Alameda County District Attorney‘s Office (DA) for consideration of criminal charges.
On December 15 or 18, 2008, Hoff met with a deputy DA, a CDCR attorney, and a representative from the Office of the Inspector General, Bureau of Independent Review. The deputy DA said there were chargeable misdemeanor offenses (
Thus, Hoff “closed” the criminal investigation and “opened” an administrative investigation to determine whether discipline was warranted.
On January 20, 2009, OIA gave Iqbal an investigative interview administrative subject memorandum, directing him to report for an interview in the administrative inquiry.
On January 29, 2009, Iqbal appeared for the interview and was read the advisement of rights administrative inquiry form, advising him this was an administrative inquiry for which he did not have the right to refuse to answer
Iqbal stated he asked for the information because the third party had recently been elected vice-president of the East Bay Islamic Society, of which Iqbal was president. Several years earlier, the third party had said something suggesting he had a criminal history. Iqbal claimed he was concerned about the organization‘s funds and that his employment as a parole agent might be jeopardized by association with a criminal.
CDCR determined discipline was warranted and served Iqbal with notice of adverse action to reduce his salary by 5 percent for one year pursuant to
Iqbal appealed to SPB and had a hearing before an administrative law judge (ALJ) on March 1, 2010. In adopting the ALJ‘s proposed decision in favor of Iqbal, SPB adopted the ALJ‘s application of an SPB precedential decision (In re Ruiz (2005) SPB Precedential Dec. No. 05-03) that the tolling provision for criminal investigations applies only when the investigation is one being conducted by an independent law enforcement agency other than the appointing power. To interpret the tolling provision otherwise would allow an appointing power to circumvent the one-year period by simply designating all investigations as criminal investigations, and would defeat the purpose of the statute. (In re Ruiz, supra, at p. 5.)
SPB found as factual matters that (1) the one-year limitations period began to run no later than April 10, 2008, when OIA requested information about the incident from the UCPD, and (2) CDCR served the notice of adverse action “on or after April 16, 2009, at least one year and six days” after the
CDCR filed a petition for writ of administrative mandamus in the trial court. SPB made a formal appearance but did not submit a brief or argue the matter, which was submitted on papers and oral argument by the attorneys representing CDCR and Iqbal. The trial court ruled SPB‘s interpretation of the statute—that the tolling provision should apply only to criminal investigations by an external agency—was not supported by the plain language of the statute and was incorrect as a matter of law. The court entered judgment granting the writ petition and ordering a writ of mandate directing SPB to vacate its decision that the limitations period had expired, reinstate the notice of adverse action, and conduct further proceedings on the merits of Iqbal‘s administrative appeal.
Iqbal appeals from the trial court‘s judgment.
DISCUSSION
I
Standard of Review
In reviewing an SPB decision on a petition for administrative mandamus, we stand in the same shoes as the trial court, applying the substantial evidence rule. (California Dept. of Corrections v. State Personnel Bd. (Henning) (2004) 121 Cal.App.4th 1601, 1611 [18 Cal.Rptr.3d 390] (Henning).) We do not reweigh the evidence but instead indulge all presumptions and resolve all conflicts in favor of the decision of SPB, which is an agency of constitutional authority acting as an adjudicatory body to determine facts. (Ibid.; Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1483, fn. 3 [184 Cal.Rptr.3d 873] (Telish).) Insofar as the appeal presents questions of law, our review is de novo. (Henning, supra, at p. 1611.) The sole issue in this appeal is statutory interpretation of
II
CDCR‘s Criminal Investigation Tolled the Limitations Period
Iqbal asks us to defer to SPB‘s interpretation of the statute as stated in its precedential case, In re Ruiz, supra, SPB Precedential Dec. No. 05-03, that tolling applies only to criminal investigations conducted by outside agencies. However, SPB precedential decisions are not binding on this court. (Henning, supra, 121 Cal.App.4th at p. 1618.) “We respect but do not necessarily defer to SPB‘s interpretations of the governing statutes. [Citation.] . . . The judiciary takes ultimate responsibility for the construction of statutes, although according great weight and respect to the administrative construction such as is appropriate under the circumstances. [Citation.]” (Id. at p. 1611.) “While we must generally consider and respect the Board‘s interpretation of a statute within its administrative jurisdiction, we are not bound by the Board‘s interpretation nor are we required to accord any deference to a clearly erroneous interpretation of an unambiguous statute. [Citations.] The Board has no greater power than we do to graft a nonexistent requirement into a statute.” (Moya, supra, 215 Cal.App.4th at p. 1108.)
In construing statutes, we begin by examining the statutory language, giving it its usual and ordinary meaning and, if there is no ambiguity, we presume the lawmakers meant what they said, and the plain meaning governs. (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 321 [74 Cal.Rptr.3d 891, 180 P.3d 935] (Mays).) If the language is ambiguous, we may resort to extrinsic sources and determine the construction that most closely comports with the lawmakers’ apparent intent, with a view to promoting the general purpose of the statute. (Ibid.)
As indicated,
“(1) Except as provided in this subdivision . . . no 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 . . . of the allegation . . . . In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed discipline by a Letter of Intent or Notice of Adverse Action articulating the discipline that year, except as provided in paragraph (2). The public agency shall not be required to impose the discipline within that one-year period.
“(2)(A) If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the one-year time period.”
The plain language of
POBRA—the stated purpose of which is to secure stable employer-employee relations—sets forth a list of basic rights and protections, which must be afforded all peace officers being investigated for misconduct by the public entities that employ them. (
“If prior to or during the interrogation of a public safety officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights,” including the right to remain silent. (
In the case relied upon by Iqbal, In re Ruiz, supra, SPB Precedential Dec. No. 05-03, a CDCR chief deputy warden formally requested an internal
In Correctional Peace Officers Assn., the Department of Corrections (CDC) and the DOJ together investigated alleged criminal misconduct by state prison guards. (Correctional Peace Officers Assn., supra, 82 Cal.App.4th at p. 299.) The guards sought and obtained a preliminary injunction against both entities, constraining the manner in which the guards could be interrogated to conform to protections afforded peace officers under
In Correctional Peace Officers Assn., the two entities argued as an alternative that
Applying Correctional Peace Officers Assn., SPB decided in In re Ruiz, supra, SPB Precedential Dec. No. 05-03, that the criminal investigation tolling of the limitations period (
The In re Ruiz decision misapplied Correctional Peace Officers Assn. The Correctional Peace Officers Assn. court‘s concern about employers avoiding POBRA‘s protections, thus defeating the purpose of POBRA by recasting investigations as criminal investigations arose because POBRA‘s protective conditions on interrogations simply do not apply at all to investigations that are “solely” criminal. (
SPB‘s In re Ruiz decision and its cited authority, Correctional Peace Officers Assn., supra, 82 Cal.App.4th 294, have been criticized.
Van Winkle v. County of Ventura (2007) 158 Cal.App.4th 492 [69 Cal.Rptr.3d 809] (Van Winkle), held that POBRA‘s protections for law enforcement officers who are the subjects of administrative investigations “do not apply to officers subject to criminal investigations conducted by their employers.” (Id. at p. 494.) Van Winkle first found the evidence did not support the employee‘s claim of a “sham[]” criminal investigation. (Id. at p. 498.) As concerns us here, Van Winkle stated that Correctional Peace Officers Assn. in dictum “concluded that
Van Winkle continued: “The court in [Correctional Peace Officers Assn.] misinterpreted
“The Legislature knew there could be abuses by law enforcement employers who were conducting criminal and internal affairs investigations of their employees. That is why it qualified the criminal investigation exemption provision with the language that the investigation had to be ‘concerned solely and directly with alleged criminal activities.’ (
“In [Correctional Peace Officers Assn.], the court apparently assumed that trial courts could not distinguish between the types of investigations law enforcement employers conduct. But POBRA allows officers to bring actions so that trial courts can make that determination. [Citation.] Courts do in fact decide whether employer investigations fall within POBRA as disciplinary interrogations or are exempt as routine inquiries. [Citation.] They are able to determine whether routine questions ‘begin to shade into an investigation’ covered by POBRA. [Citation.] They also decide whether investigations are partly criminal, and within POBRA, or solely criminal and exempt. [Citation.]” (Van Winkle, supra, 158 Cal.App.4th at p. 500.)
Van Winkle accordingly declined to follow Correctional Peace Officers Assn. (Van Winkle, supra, 158 Cal.App.4th at p. 500.)
Iqbal argues Van Winkle is distinguishable because there the sheriff‘s department had divided the duties: Its internal affairs unit conducted only administrative investigations, and its “major crimes bureau” handled all criminal investigations. (Van Winkle, supra, 158 Cal.App.4th at p. 495.) Iqbal incorrectly claims this point was critical to Van Winkle‘s rejection of Correctional Peace Officers Assn. Not so. Van Winkle discussed this point in concluding the evidence did not support the employee‘s claim of a “sham[]” criminal investigation. (Id. at p. 498.) Van Winkle then turned to the employee‘s contention that, even if the criminal investigation was independent of the administrative investigation, POBRA applied because the criminal investigation was conducted by agents of the employer—the contention for which the employee relied upon Correctional Peace Officers Assn. (Van Winkle, supra, at p. 498.)
Here, Iqbal tries to turn a factual issue into a legal one, by arguing that CDCR‘s use of the same investigator to conduct first the criminal investigation and then the administrative investigation, the latter of which used the information acquired during the former, proves Correctional Peace Officers Assn. was right about employers using criminal investigations as a subterfuge to avoid the statute of limitations for disciplinary action. This is really a factual allegation of a sham investigation unsupported by evidence. To the contrary, the speculation that an employer might conduct a criminal investigation for the sole purpose of delay has no traction in this case, where the notice of adverse action was served a mere three days past the one-year limitations period (taking into consideration the three-day tolling found by SPB for the three days that the district attorney‘s office considered whether to file criminal charges).
Correctional Peace Officers Assn. and SPB‘s In re Ruiz decision were criticized in Moya, supra, 215 Cal.App.4th 1101, which held that an internal investigation of workers’ compensation fraud tolled POBRA‘s statute of limitations.
Moya said this statement of legislative intent affirmed what was already apparent from the language of the statute, i.e., the Legislature created a generally applicable time limit for investigating and bringing charges against the law enforcement officer, but excepted certain investigations “the timing of which it did not believe management could control. As this description could conceivably include both internal and external workers’ compensation fraud investigations, we cannot glean from this statement a clear legislative intent to limit the exception for workers’ compensation fraud investigations solely to third party investigations.” (Moya, supra, 215 Cal.App.4th at p. 1111.)
Iqbal argues we should not follow Moya, because it involved only workers’ compensation fraud investigations and therefore should not have talked about Correctional Peace Officers Assn. or In re Ruiz, because Iqbal thinks it would be “impossible” to arbitrarily designate most administrative investigations as
Telish, supra, 234 Cal.App.4th 1479, an opinion filed while this appeal was pending, also criticized Correctional Peace Officers Assn. In Telish, a DOJ special agent in a disciplinary action sought to exclude from evidence self-incriminating statements he made in conversations with a subordinate employee, which Telish thought were confidential but which were recorded as part of DOJ‘s criminal investigation of Telish‘s alleged misconduct (which the district attorney‘s office eventually declined to prosecute criminally). (Id. at pp. 1484, 1494.) The subordinate had reported that Telish physically assaulted her and threatened to publicize sexually explicit photographs of her unless she recanted her admissions about a consensual sexual relationship with Telish. (Ibid.) Telish argued the recordings were inadmissible because they were obtained in a “sham criminal investigation” to enable DOJ to invoke
We agree with the cases criticizing Correctional Peace Officers Assn. We need not rely on CDCR‘s citation of a case holding that similar tolling language in a Los Angeles city charter applied to internal criminal investigations. (Lucio v. City of Los Angeles (2008) 169 Cal.App.4th 793 [86 Cal.Rptr.3d 833].)
We conclude the limitations period was tolled for the entire duration of CDCR‘s criminal investigation, such that the notice of adverse action was timely under the timeline factually found by SPB.
DISPOSITION
We affirm the trial court‘s judgment granting the writ petition and ordering a writ of mandate directing SPB to vacate its decision that the limitations period had expired, reinstate the notice of adverse action, and conduct further
Robie, J., and Hoch, J., concurred.