Friday, April 18, 2008
State High Court Revives Misconduct Action Against LAPD Officer
Justices Say Subject Need Not Be Advised of Proposed Discipline Within Limitations Period
By KENNETH OFGANG, Staff Writer
A statute requiring that a police officer be notified of a disciplinary action within one year from the date the employing agency learns of the misconduct does not require that the officer be told within that time what specific discipline he faces, the state Supreme Court ruled yesterday.
Unanimously reversing this district’s Court of Appeal, the justices said the LAPD’s disciplinary notice to Sgt. Jon Mays, accused of failing to secure LAPD documents stolen from his automobile while it was parked in his driveway and with failing to promptly report the theft, was timely because the department had completed its investigation and informed Mays that it was pursuing charges.
The department notified Mays on July 23, 2002 that he had been charged with specific misconcuct and that the allegations would “be adjudicated by a Board of Rights.” Under the Los Angeles City Charter and LAPD procedures, a Board of Rights—made up of two command-level officers and a civilian—may recommend reprimand, suspension, demotion or termination if it finds that an officer has committed one or more violations of department policy.
The board’s recommendations are submitted to the chief of police, who may sustain or reduce the proposed discipline, but may not increase it. In Mays’ case, however, a hearing was not held on the basis of the July 23 notice because he was subsequently charged in a new notice with the same offenses, plus a new charge of making false statements during an official investigation, Chief Justice Ronald M. George explained in yesterday’s opinion.
A Board of Rights hearing resulted in Mays’ exoneration on the false statements charge. The chief of police imposed a reprimand on the earlier charges, which Mays challenged in a petition for writ of mandate.
One of the contentions of that petition was that the July notice did not satisfy the requirement of Government Code Sec. 3304(d), a provision of the Public Safety Officers Procedural Bill of Rights Act mandating that the department “complete its investigation and notify the...officer of its proposed disciplinary action” within one year of its discovery of the alleged misconduct.
Mays asserted that the notice he received did not comply with the statute because it did not specify what discipline he was facing. The Court of Appeal agreed, but George yesterday said the lower panel was wrong.
The chief justice explained:
“Viewing the terms of section 3304(d) as a whole, it appears clear that the fundamental purpose of this provision is to place a one-year limitation on investigations of officer misconduct. The one-year period runs from the time the misconduct is discovered. Once the public agency decides that discipline may be warranted...it must so inform the public safety officer....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. This interpretation is consistent with the apparent purpose of the subdivision, which 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.”
The Court of Appeal’s contrary conclusion, that the statute requires the agency to determine within the one-year period what discipline it wishes to impose and to notify the officer accordingly, “prematurely would impose a requirement that is unreasonable in view of the timing of the notice,” George said. “It would be anomalous to require the public agency to reach a conclusion regarding potential discipline prior to any predisciplinary proceedings or response on the part of the officer....Such a requirement also could have the practical effect of always leading the public agency to propose the maximum punishment in order to ensure it retained the full range of options in the subsequent disciplinary proceedings.”
The high court’s interpretation, the chief justice added, is consistent with other provisions of the act, giving the agency 30 days to notify the officer once it makes its disciplinary decision and requiring that the officer be given the opportunity for administrative appeal.
Attorneys who argued in the Supreme Court were Diane Marchant of Los Angeles for Mays, Stephen H. Silver of Santa Monica’s Silver, Hadden, Silver, Wexler & Levine for the Los Angeles Police Protective League and California Association of Highway Patrolmen as amici supporting Mays, and Deputy City Attorney Gerald Masahiro Sato for the LAPD.
The Peace Officers Research Association of California Legal Defense Fund also filed an amicus brief supporting Mays.
The case is Mays v. City of Los Angeles, 08 S.O.S. 2210.
Copyright 2008, Metropolitan News Company