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Procedural Time Limits In Administrative Investigations - Absolutes

Jack Ryan

When you are involved with public employee disciplinary matters and have procedural time limits imposed on your case, failing to meet those time limits will normally result in losing the ability to discipline the employee regardless what the misconduct may be. In essence these limits are essentially a statute of limitations, in other words, bring your discipline within the allotted time frame or you cannot bring it, no matter what the facts prove. These types of time limits are embodied in legislation, such as Law Enforcement Officers Bill of Rights, other legislative or administrative rulings, collective bargaining agreements, City or County Charters, Civil Service Commission rules and local jurisdiction personnel guidelines.

Another pressure we’ve been seeing in the law enforcement sector is the movement by employee groups to set these types of firm time limits. There is good reason for this. Some agencies won’t allow an employee to be promoted or reassigned to another job as long as there’s a pending disciplinary investigation. It’s understandable to see why this would create employee frustration and hostility. The 2001 Consent Decree between the Los Angeles Police Department and the U.S. Department of Justice allows the agency 150 days to complete its Internal Affairs investigations. In a large Midwest police agency it often takes up to three years for disciplinary issues to be heard by its Police Board. That is absurd from anyone’s point of view.

California is a good example of this issue and has repeated case decisions giving us direction. California’s Bill of Rights, Section 3304, subdivision (d), reads, in part: “No punitive action, nor denial of promotion on grounds other than merit, 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 initiate an 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 disciplinary action within that year, except in any of the following circumstances: 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.”

As an example, the L.A.P.D. found an officer guilty of policy violations and after deliberations informed him that he would be suspended for 20 days. This was a couple of weeks before the expiration of the one year period. The Chief of Police, however, added a reduction in rank, from Police Officer III to II, after the one year period. The Court ordered the reinstatement of the officer to the higher rank. In another case, a Department was notified of alleged misconduct by the officer. The Department undertook the administrative investigation within the one year period, but stayed any adjudication and notification to the officer when it was notified that a criminal investigation was underway by the Marshal’s Office. That did not result in a criminal filing. The criminal investigation, however, extended the one year period and the officer was notified of the intended discipline within one year period of the initiation of the criminal aspect of the matter. There was another twist that the officer proposed stating that the investigation continued beyond the one year period, but the Court found that this was not an investigation but rather deliberations by the City’s outside counsel and a consultant he employed. It should be noted that some jurisdictions distinguish cases where there is also a criminal charge. An example is provided by the Rhode Island Law Enforcement Officers’ Bill of Rights, which provides: “Disciplinary action for violation (s) of departmental rules and/or regulations shall not be instituted against a law enforcement officer under this chapter more than three (3) years after such incident, except when such incident involves a potential criminal offense, in which case disciplinary action under this chapter may be instituted at any time within the statutory period of limitations for such offense.”

Another twist on this theme occurred in another LAPD case. When the LEOBOR restricted the ability of the Department to discipline the sergeant, the Chief of Police issued a written reprimand. The Department contended that a “paper penalty” was excluded from the LEOBOR as it was specifically referenced in the City Charter not subject to the disciplinary system. The trial court was unmoved and ruled, “A reprimand is a punitive action. The reprimand is untimely because it was barred by the section 3304, subdivision (d) statute of limitations.”

This is an exception to the cases involving the California statutory limitation of one year, as it revolved around an amendment to the LEOBOR. That exception removed the one year limitation when the allegation involved an allegation of worker’s compensation fraud. In this case the officer suffered an injury when playing for the Department’s softball team. But he was investigated and videotaped conducting himself contrary to his alleged injuries. He also engaged in off-duty employment without a valid work permit. He contended that he was not convicted of workers’ compensation fraud and therefore the provision was not applicable. His termination was upheld by the Court.

A case from New Jersey illustrates another issue involved in procedural time limits. Can an agency deliberately circumvent the procedural issue by creating administrative roadblocks? This case involves a “sick out” and attempted discipline of over 100 officers. The discipline eventually was dismissed and the City enjoined against continuing the process. While there is a great deal of specific discussion of New Jersey law, the court went to a discussion of what it believed to be the legislative intent on the State’s requirement for discipline to be instituted within 45 days of when the approving authority had sufficient notice of the internal violations by the officers. “However, what is problematic is the timing of the true commencement of the investigation on November 2, 2004, in essence, a period of seventy-two days from the date of the conduct complained of. N.J.S.A. 40A:14-147 does not specify a time frame within which an investigation into violations of departmental rules and regulations must commence. However, there is little question based upon a literal reading of the statute, and the principles which emerge from the case law cited above, that barring extraordinary circumstances (which do not exist in the instant case), the investigation should commence promptly after the occurrence of events which may warrant disciplinary action. This is particularly true where the City and Acting Chief believed that the events of August 21 and 22, 2004, were of such immediate concern that legal action was necessary on August 22 and August 23, 2004. Additionally, there were no further events after the entry of Judge Seltzer’s Order which might justify a lengthy delay in commencing an investigation. It should also be noted that the investigation did not involve a complicated matter. Either the police officers had valid excuses for failing to report to work, or, they did not. The statute is clear. A simultaneous criminal investigation will toll the 45-day rule. Additionally, the 45-day rule is not applicable if it is a private citizen who actually files the Complaint. Neither of those circumstances exist in the instant case.”

In this case the Town began disciplinary proceedings against the officer for use of force and lying during the investigation. The Town and the officer mutually agreed to postpone the process, with the record indicating that the Town Counsel stated, “There were charges filed. The case was voluntarily dismissed. It was dismissed, by agreement, without prejudice.” After the officer successfully won a disability claim, the Town “refiled” the original charges. The record does not show that the Board began hearings in this case within 30 days of the refiling of charges following the voluntary dismissal of the original charges. The Court dismissed the actions of the Town on procedural time limits not being met, “The record also gives no indication that Cesario delayed the hearing on the refiled charges. Thus, we cannot conclude from this record that the Board had jurisdiction over the case when it began the evidentiary hearing. Accordingly, we hold that the trial court correctly vacated the Board’s order.”

Time limits can also be applied to citizen complaint investigations. Mr. Martin made a complaint regarding his stop and the use of alleged excessive force after the 60 day limit specified by the CBA between the City and the FOP. The City did investigate the complaint, but adjudicated it as Unfounded because of the time limit prohibition. This case and the supporting cases cited by the Court are instructive. They can support time limits adopted by an agency. But the discussion also is instructive to see that liability can develop if an agency fails to conduct these types of investigations. “As this Court has previously recognized, in general, one does not have a constitutional right to have a police investigation conducted in a particular manner, or to have one conducted at all.” But, “The Sixth Circuit has held that a failure to investigate complaints or discipline officers can give rise to § 1983 liability. Leach v. Shelby County Sheriff, 891 F.2d 1241, 1247 (6th Cir. 1989), cert. denied, 495 U.S. 932 (1990); Marchese v. Lucas, 758 F.2d 181, 188 (6th Cir. 1985), cert. denied, 480 U.S. 916 (1987); see also Walker v. Norris, 917 F.2d 1449, 1457 (6th Cir. 1990). The theory underlying these cases is that the municipality’s failure to investigate or discipline amounts to a “ratification” of the officer’s conduct. Dyer v. Casey, 1995 U.S. App. LEXIS 37042, 1995 WL 712765, *2 (6th Cir. 1995).” “This provision of the CBA has come under this Court’s scrutiny before. In Otero v. Wood, 316 F.Supp.2d 612, 629 (S.D. Ohio 2004) (Marbley, J.), the officer who took the plaintiff’s complaint filled out an “incident report” (used to inform the police of any unlawful incident) instead of a “citizen complaint” (used to complain to the police department about the conduct of an officer). The incident report was not converted to a citizen complaint until after the 60-day time period had already run. The plaintiff alleged that the use of an incident report rather than a citizen complaint was not an accident, but was deliberately done as a part of the City’s policy to insulate officers from discipline. This Court found that if the plaintiff’s claims were true, the City had a policy of dealing with citizen complaints in such a way as to virtually ensure that offending officers will not be disciplined for their misconduct. .”

Thoughts to consider:

1.Time limits can assist in bringing disciplinary investigations to a conclusion within a reasonable period of time;

2.Establishing procedural time limits will require that your agency adhere to them or face the real potential of losing the ability to discipline an employee in a specific case]

3.Attempting to circumvent an established procedural time limit will usually result in losing the case and probably create unnecessary friction with your employees;

4.Adopt specific administrative notification safeguards to ensure that these procedural time limits are met even if it means you have to set new case priorities and assign extra personnel to the task; and

5.NOTE: An employee’s attorney will always try to beat you on procedure rather than the substance of your discipline.

Citations:

Sanchez v. City of Los Angeles; 2006 Cal. App. LEXIS 945. (Cal. App, 2006).

Castagna v. City of Seal Beach; 2005 Cal. App. Unpub. LEXIS 7775 (Cal. App. 2005)

R.I.G.L. 42-28.6-4 (a) (2007).

Jon Mays v. City of Los Angeles, 145 Cal. App. 4th 932; 2006 Cal. App. LEXIS 1942 (Cal. App. 2006).

Manuel Argomaniz v. City of Los Angeles, 2005 Cal. App. Unpub. LEXIS 8963 (Cal. App. 2005).

Paul Aristizibal, et al., v. City of Atlantic City, et al., 380 N.J. Super. 405; 882 A.2d 436; 2005 N.J. Super. LEXIS 294 (NJ Super Ct. 2005)

David Cesario v. Board of Fire, Police and Public Safety Commissioners of the Town of Cicero, 2006 Ill. App. LEXIS 866 (Ill. App. Ct. 2006).

Martin v. City of Columbus; 2005 U.S. Dist. LEXIS 24207 (Dist of Ohio 2005).


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