Appellant Arthur Ochoa, formerly employed by the Kern County Sheriff's Office (KCSO) as a deputy sheriff, petitioned for a peremptory writ of mandate commanding respondents County of Kern and Kern County Sheriff Donny Youngblood to set aside his termination and other extraordinary relief to remedy a violation of the Public Safety Officers Procedural Bill of Rights Act ( Gov. Code, § 3300 et seq. ).
On appeal, Ochoa reiterates his termination was time barred because a KCSO sergeant initiated an investigation of his alleged misconduct on March 25, 2013, and an internal affairs investigator notified him of the proposed termination on August 11, 2014. Respondents assert the one-year statute of limitations period in section 3304, subdivision (d)(1), does not commence until an internal affairs investigation
FACTUAL AND PROCEDURAL HISTORY
On March 22, 2013, Priscilla S. informed Deputy Chaidez that Ochoa harassed her. On the same day, Chaidez submitted an interoffice memorandum documenting the allegation to Sergeant Bittle, Ochoa's superior.
On March 25, 2013, Bittle received Chaidez's memorandum and "started an investigation" "to determine what the nature of the complaint was." Between March 25 and March 27, 2013, he tried to contact Priscilla several times without success. On March 27, 2013, Bittle submitted an interoffice memorandum concerning Priscilla's allegation and his attempts to contact her to Commander Hansen.
On April 8, 2013, Bittle spoke to Priscilla and her brother. Priscilla stated Ochoa made unwanted sexual advances toward her for almost four years. Priscilla's brother stated Ochoa punched him in the face a few days earlier. Bittle detailed the conversation in an April 8, 2013, interoffice memorandum to Hansen.
On April 9, 2013, in KCSO case No. SR13-10251, Senior Deputy Rutledge initiated a criminal investigation of Ochoa "for assault under color of authority and annoying/molesting a child under the age of 18 years old."
On May 6, 2013, Chief Deputy Zimmerman signed a KCSO "Personnel Complaint" authorizing internal affairs to investigate Priscilla's harassment claim against Ochoa. Senior Deputy Levig was appointed to conduct this investigation.
Between June 21, 2013, and July 2, 2013, Rutledge "learned facts related to an alleged violation of Penal Code [s]ection 502, unauthorized access to computers, computer systems and computer data, specifically
On July 30, 2013, in connection with KCSO case No. SR13-10251, Deputy District Attorney Kohler reviewed Ochoa's personnel file. Thereafter, on an unspecified date, she assigned District Attorney Investigator Caldas to look into the allegations more thoroughly. After Caldas's investigation, Kohler met with the District Attorney and an Assistant District Attorney. The District Attorney decided not to prosecute Ochoa.
On June 25, 2014, Sergeant Simpson ordered Rutledge, his subordinate, to investigate Ochoa's potential violation of Penal Code section 502 in KCSO case No. SR14-16963. On July 1, 2014, Rutledge asked the District Attorney to charge Ochoa with knowingly and without permission accessing a computer, computer system, or computer network ( Pen. Code, § 502, subd. (c)(7) ). On July 7, 2014, the District Attorney rejected the request because the applicable statute of limitations had run.
On August 11, 2014, Levig served Ochoa with a "Notice of Proposed Disciplinary Action-Termination," which cited numerous violations of Civil
On October 28, 2014, Ochoa petitioned for a peremptory writ of mandate and other extraordinary relief pursuant to Code of Civil Procedure section 1085 and section 3309.5, respectively.
Simpson testified a sergeant "did not have the authority to initiate an internal affairs investigation" and "only the Sheriff, the Undersheriff, or Chief
Levig testified "no one below the rank of a Chief Deputy has the ability to authorize an administrative investigation."
Zimmerman testified he authorized an internal affairs investigation on May 6, 2013, and "only a Chief Deputy can initiate an internal affairs investigation of a deputy" pursuant to Policies and Procedures Nos. D-300 (Employee Discipline-Misconduct)
Kohler testified she "d[id] not remember the specific date that Caldas was assigned" to investigate KCSO case No. SR13-10251 and "did not know the specific date of the final rejection of [said] case." She recalled (1) she assigned Caldas "[p]retty quickly" after she reviewed Ochoa's personnel file on July 30, 2013; and (2) Caldas "took about a month to get in contact with [Priscilla]." Kohler remarked Caldas "took ... anywhere from two or three weeks to a month or two to complete ... [an] investigation." After receiving the results of Caldas' investigation, Kohler met with District Attorney Green and Assistant District Attorney Spielman and they decided to forgo criminal prosecution. This meeting took place "a month or two" after July 30, 2013.
Caldas testified he "was asked by ... Kohler to attempt to locate and talk to [Priscilla] regarding an investigation of [Ochoa]" sometime in 2013. He contacted Priscilla, who told him "she did not want to cooperate any further." Caldas informed Kohler about the exchange "two weeks" after "Kohler requested that he contact [Priscilla]." He "did not conduct any other work ... other than contacting [Priscilla] one time."
Thereafter, the court denied Ochoa's petition. It held:
"[Ochoa] has not met his burden of proving that the August 11, 2014, notice of proposed disciplinary action was served outside the one-year limitations period set forth in ... section 3304[, subdivision ](d)(1).
"The criminal investigation regarding [KCSO case No.] SR13-10251 commenced April 9, 2013. The administrative investigation commenced May 6, 2013; ... Bittle was not authorized to initiate an investigation within the meaning of ... [section] 3304[, subdivision ](d)(1). The limitations period for the administrative action was tolled during the criminal investigation regarding [KCSO case No.] SR13-10251.
"... Kohler reviewed [Ochoa]'s personnel file on July 30, 2013, as part of the ongoing criminal investigation. A preponderance of the evidence shows that Kohler requested additional investigation after she reviewed ...
[Ochoa]'s file, and ... Caldas undertook that criminal investigation. Kohler estimated the additional investigation took from one to two months, to a little less than a month. Caldas recalls that his investigation took two weeks. Kohler also met with her superiors to discuss the possible criminal filing before it was finally rejected; the date of that meeting is unknown, but it was part of the criminal investigation regarding [KCSO case No.] SR13-10251 after Kohler reviewed the personnel file. [Ochoa] has not shown that the criminal investigation concerning [KCSO case No.] SR13-10251 concluded on or before August 11, 2013. A preponderance of the evidence tends to show the criminal investigation regarding [KCSO case No.] SR13-10251 concluded after August 11, 2013.
"In addition, a preponderance of the evidence shows that a criminal investigation regarding [KCSO case No.] SR14-16963 took place between June 25, 2014, and July 7, 2014 (12 days). That criminal investigation was undertaken in good faith and would have extended the limitations period, but as stated above, the criminal investigation regarding [KCSO case No.] SR13-10251 concluded after August 11, 2013.
"[Ochoa] has not met his burden of proving the administrative action is barred by the limitations period."
DISCUSSION
I. POBRA overview.
"Initially enacted in 1976 [citation], POBRA 'sets forth a list of basic rights and protections which must be afforded all peace officers [citation] by the public entities which employ them. It is a catalogue of the minimum rights [citation] the Legislature deems necessary to secure stable employer-employee relations [citation].' [Citations.]" ( Mays , supra ,
"One protection codified in section 3304 is the speedy adjudication of conduct that could result in discipline." ( Breslin v. City and County of San Francisco (2007)
"[N]o punitive action[8 ]... 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 initiatean investigation of the allegation of an act, omission, or other misconduct. ... 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." (See Mays , supra , 43 Cal.4th at pp. 321-322 [ , 74 Cal.Rptr.3d 891 ] ["Not only completion of the investigation, but also the requisite notification to the officer, must be accomplished within a year of discovery of the misconduct."].) 180 P.3d 935
"[T]he apparent purpose of [section 3304,] subdivision[ (d)(1) ], ... is to ensure that an officer will not be faced with the uncertainty of a lingering investigation, but will know within one year of the agency's discovery of the officer's act or omission that it may be necessary for the officer to respond in the event he or she wishes to defend against possible discipline." ( Mays , supra ,
Section 3304 "allows for tolling or extension of the one-year limitations period under specified circumstances." ( Breslin , supra ,
"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."
Therefore, "[POBRA] requires the tolling of the one-year statute of limitations while a criminal investigation is pending if the misconduct is the subject of that investigation." ( Breslin , supra ,
II. Standard of review.
"Discipline imposed on public employees affects their fundamental vested right in employment." (
III. Analysis.
Ochoa contends his termination was time barred under section 3304, subdivision (d)(1), because Bittle launched an investigation of the misconduct on March 25, 2013, and Levig served the "Notice of Proposed Disciplinary Action-Termination" on August 11, 2014, after 504 days elapsed.
Respondents insist Ochoa's misconduct was not discovered until May 6, 2013, the date Zimmerman authorized the internal affairs investigation. Moreover, they claim the one-year limitations period was tolled by the criminal investigations in KCSO cases Nos. SR13-10251 and SR14-16963.
a. The one-year limitations period commenced March 25, 2013 .
As noted, before a punitive action can be undertaken against a transgressing officer, 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 ...." (§ 3304,
The record establishes a KCSO chief deputy, not a sergeant, can initiate an internal affairs investigation. Nonetheless, a sergeant is empowered to (1) "conduct fact-finding" in connection with purported Policies and Procedures violations to "determine[ ] if the allegation[s] [are] criminal or administrative in nature"; and (2) impose certain forms of discipline (e.g., documented oral counseling, written reprimands) when the violations are neither "serious" nor "criminal" and do not necessitate an internal affairs investigation. Clearly, a sergeant is authorized to initiate some sort of inquiry into a subordinate's
The fundamental objective of statutory construction is to ascertain legislative intent so as to effectuate the purpose of the law. ( Los Angeles County Metropolitan Transportation Authority v. Alameda Produce Market, LLC (2011)
In common parlance, an "investigation" refers to "a detailed examination or search, often formal or official, to uncover facts and determine the truth." (Webster's New World Dict. (2d college ed. 1982) p. 741.) POBRA does not explicitly provide its own specialized definition for the term. (See § 3300 et seq. )
On March 25, 2013, Bittle, a sergeant, became aware of Priscilla's harassment claim against Ochoa by way of Chaidez's memorandum. Commensurate with his authority, he commenced an inquiry "to determine what the nature of the complaint was" by attempting to contact Priscilla. If Bittle found misconduct that did not rise to a "serious" or "criminal" level and did not warrant an internal affairs investigation, he had the power to issue a written reprimand. (See ante , fn. 8; see also Wences v. City of Los Angeles (2009)
b. The criminal investigation in KCSO case No. SR13-10251 tolled the one-year limitations period for at least 143 days .
The judgment is affirmed. Costs on appeal are awarded to respondents County of Kern and Kern County Sheriff Donny Youngblood.
WE CONCUR:
HILL, P.J.
LEVY, J.
Certified for Partial Publication.
Notes
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part III.b. of the Discussion.
Henceforth, we refer to this statute by the commonly used acronym POBRA. (See, e.g., Mays v. City of Los Angeles (2008)
In addition, subsequent statutory citations refer to the Government Code unless otherwise indicated.
The record on appeal includes the parties' agreed statement. (See Cal. Rules of Court, rule 8.134.) "Facts recited in an agreed statement take the place of factual findings, and bind the parties." (Institoris v. City of Los Angeles (1989)
The notice specified Ochoa infringed rules, policies, and/or procedures pertaining to the following: (1) "Conduct unbecoming an employee in the public service"; (2) "Disorderly or immoral conduct"; (3) "Incompetence or inefficiency"; (4) "Neglect of duty"; (5) "Violation of any lawful or reasonable regulation or order"; (6) "Dishonesty"; (7) "Duties of Personnel-All Members"; (8) "Duties of Personnel-Deputy Sheriffs"; (9) "Rules of Conduct-Law Enforcement Personnel"; (10) "Use of Mobile Data Computers"; and (11) "Use of Computer Systems and Data."
Skelly v. State Personnel Board (1975)
We note Ochoa petitioned for a writ of ordinary mandamus (Code Civ. Proc., § 1085 ) rather than a writ of administrative mandamus (id. , § 1094.5).
" 'The proper method of obtaining judicial review of most public agency decisions is by instituting a proceeding for a writ of mandate.' [Citation.] Two such writs are provided by statute: (1) ordinary mandamus [citation] and (2) administrative mandamus [citation]. Challenge of an agency's action or decision via proceeding for a writ of administrative mandamus is available if the decision was 'made as a result of a proceeding in which by law a hearing is required to be given ....' [Citations.]" (Nathan G. v. Clovis Unified School Dist . (2014)
Although Ochoa "improperly brought his petition ... as a traditional mandamus proceeding, we [may] ... treat[ ] it as if it had been properly brought under Code of Civil Procedure section 1094.5." (Lanigan , supra ,
Policies and Procedures No. D-300 reads in pertinent part:
"PROCEDURE B-SUPERVISOR INITIATED COMPLAINTS
"A supervising employee who becomes aware of misconduct on the part of any member will:
"? Prepare a confidential memo, including:
"o The rules, regulations, policies or orders applicable to the incident.
"o A description of what actions he or she took (if any) concerning the incident.
"? Forward the confidential memo and all supporting documentation and information directly to his or her commander in a sealed envelope. In cases where the supervising employee is of the rank of commander or higher, the documentation will be forwarded to the next highest level.
"The affected division commander will:
"? Evaluate the nature of the complaint and determine if the situation may be appropriately handled at the supervisory level. If the situation is of a more serious nature and it appears discipline may be warranted, forward the documentation to his or her chief deputy.
"PROCEDURE C-CASE INVESTIGATIONS
"The chief deputy, upon receiving a personnel complaint, will evaluate the complaint and determine if the case will be:
"? Returned to the appropriate division for a pre-investigation
"? Concluded as an 'Adverse Comment' only
"? Eligible for a Pre-disposition Settlement Agreement (PDSA)
"? Handled as a division level investigation
"? Handled as an Internal Affairs investigation
"The chief deputy will document his or her decisions on the complaint form and return the entire package to the Personnel Division Commander."
Policies and Procedures No. D-600 reads in pertinent part:
"PROCEDURE
"Any member of the Sheriff's Office who is given a formal citizen's complaint will:
"? Accept the complaint as written by the complainant;
"? Give a copy to the complaining party of his or her own statements at the time the complaint is filed. [¶] ... [¶]
"? Forward the complaint form in a sealed envelope to the Undersheriff or his designee."
"The Undersheriff or Chief Deputy, upon receiving a personnel complaint, will:
"? Determine if an Internal Affairs investigation is warranted;
"? Determine if the investigation, if any, will be done by the Internal Affairs Section or be returned to the appropriate division for investigation;
"? Forward the entire package to the Human Resources Division Commander with authorization for an investigation to be conducted;
"? Monitor or cause to be monitored the progress of the investigation."
A "punitive action" means "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment." (§ 3303.)
Thus, we find unconvincing respondents' suggestion that Bittle's "fact finding inquiry" could not constitute an investigation because, at the outset, he "was unsure if there were sufficient facts in [Priscilla]'s complaint against [Ochoa] to warrant a more serious investigation" and "was not certain exactly what to make of the allegations lodged against [Ochoa]." Obviously, the purpose of such an inquiry is to uncover the facts and evaluate whether they tend to prove or disprove the allegations. Respondents even acknowledge "[w]hen ... Bittle received the memorandum from ... Chaidez detailing a citizen's complaint involving [Ochoa], it was his responsibility to determine if there was any credence to the claims."
See ante , footnote 8.
See footnote *, ante .