Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate., Super. Ct. No. CIVSS817203, W. Robert Fawke, Judge.
Ruth E. Stringer, County Counsel, and Cynthia L. O’Neill, Deputy County Counsel, for Petitioners.
No appearance for Respondent.
Law Offices of Granowitz, White and Weber and Bradley R. White for Real Party in Interest.
OPINION
MILLER, J.
DISCUSSION
Real party in interest Dana Childs (Childs) was terminated from his employment as a San Bernardino County Deputy Sheriff effective October 19, 2006. His administrative appeal of the decision failed, and he filed a petition for writ of mandate in the Superior Court of San Bernardino County, pursuant to Code of Civil Procedure section 1094.5. The superior court issued a decision to the effect that with respect to charge 1 (leaking information), the termination was improper as time-barred under Government Code section 3304, subdivision (d). With respect to charge 2, a less serious charge (unauthorized “running” a name through the police computer), the trial court found that inadequate findings had been made regarding when the time limit began to run, and it remanded the matter for further proceedings on this issue.
The actual notice was dated October 18, 2006.
All further statutory references are to the Government Code unless otherwise indicated.
Petitioners then filed this petition. We stayed further proceedings on the partial remand pending our resolution of the statute of limitation issue.
The County of San Bernardino and the San Bernardino County Sheriff’s Department.
The trial court remanded as to charge 2 because the hearing officer had not made specific findings with respect to the sheriff’s department’s knowledge that the “running” was for a personal or otherwise improper reason so as to trigger the time limits.
STATEMENT OF FACTS
The significant facts are not complex. In 2003, the Bureau of Alcohol, Tobacco and Firearms (BATF), along with certain local agencies, commenced “Operation 22 Green” to investigate a motorcycle gang known as “Vagos.” The San Bernardino County Sheriff’s Department (the Department) joined in the operation, serving to assist in monitoring a confidential informant named Ashley Wyatt (Wyatt) who infiltrated the gang.
This simple point is not readily ascertainable from the briefs. Petitioners, in their petition, spend about 20 pages detailing the facts negatively to Childs; Childs’s original return spent 17 pages of smaller print interpreting the evidence most favorably to him. However, the petition presents legal issues completely independent from Childs’s conduct or the credibility of any party in the administrative proceedings below-or, on the other side, misconduct or unfairness in the pursuit of the eventual investigation directed at Childs. The facts relevant to the issue before us-the Department’s knowledge of the alleged wrongdoings and the commencement of disciplinary proceedings-are not disputed.
In August 2004, Department personnel were informed by BATF that Wyatt had told them that Childs had provided information to Vagos gang members to assist them in locating one Travis Thames (Thames), who was a suspect in a triple homicide involving Vagos gang members as victims. This report was promptly passed on to a deputy chief and undersheriff. However, because Operation 22 Green continued on well into 2006, no action was taken to pursue the specific allegations against Childs. Only after a major “takedown” of members of the Vagos gang was accomplished in March 2006 was the matter against Childs taken up again.
As for running the name of one Vincent Mariano (Mariano) to check for any warrants, Childs does not deny that he did this in May 2005. Mariano was a member of the Vagos gang. The use of police computers for this purpose was discovered by Childs’s superiors in May 2005, and a lieutenant testified that “[w]e did [a] follow-up investigation to see if there was a legitimate legal investigation-criminal investigation that Dana Childs was investigating where Vincent Mariano was a suspect [and w]e were unable to find anything at that time.” The lieutenant also testified that Childs’s personal reason for running Mariano’s name was not discovered until the investigation of Childs’s overall relationship with the Vagos gang had begun in March 2006.
Childs testified that he did so as a favor to Mariano, who wanted to know if he had any outstanding warrants and was for that reason likely to be arrested.
The primary question presented by this petition is whether the continuing investigation of the Vagos gang tolled the limitation period in which to bring disciplinary action against Childs. The hearing officer concluded that although the focused investigation of Childs was deferred, this was appropriate and the time period was tolled. The trial court also concluded that the investigation of Childs was put on the “back burner, ” but disagreed that the ongoing investigation of the Vagos gang tolled the statute of limitations as to Childs. With respect to charge 1, we conclude that the hearing officer was correct and that the disciplinary proceeding was timely commenced.
DISCUSSION
A decision terminating a public safety officer’s employment affects a fundamental vested right and the court-that is, the trial court-conducts an independent review of the evidence marshaled in favor of the termination. (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313-314.) Our review of the trial court’s conclusions in this respect is under the more deferential “substantial evidence” standard. (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 659-660.) However, the essential issue in this matter is one of law, to which we apply our independent judgment without reference to the decisions of the hearing officer and the trial court. (Santa Clara Valley Transportation Authority v. Rea (2006) 140 Cal.App.4th 1303, 1313.) Insofar as we are called upon to interpret a statute, we must attempt to ascertain and carry out its apparent purpose. (Kaiser Foundation Health Plan, Inc. v. Lifeguard, Inc. (1993) 18 Cal.App.4th 1753, 1760-1762.) While in the case of explicit and unambiguous language, we must enforce what the Legislature has chosen to say; in doubtful cases, it is our obligation to decide upon that interpretation that best serves the primary purpose of the statutory scheme. (Ibid.)
Section 3304 is part of the Public Safety Officers Procedural Bill of Rights Act (the Act) (§ 3300 et seq.), which was designed not only to provide essential due process rights for public safety employees, but also to stabilize relations between public entities and such employees. (§ 3301; Burden v. Snowden (1992) 2 Cal.4th 556, 566-567.)
Among the protections provided to public safety officers is a statute of limitations in section 3304, subdivision (d)(1): “Except as provided in this subdivision and subdivision (g), 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.” Subdivision (d)(2)(A) provides an exception: “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.” Subdivision (d)(2)(C) provides a similar tolling “[i]f the investigation is a multijurisdictional investigation that requires a reasonable extension for coordination of the involved agencies.”
The Act also governs such matters as the timing and conduct of interrogations, the right to counsel, freedom from retaliation, financial privacy rights, etc. (§§ 3303, 3304, 3308.)
Section 3304, subdivision (g), deals with the permissible reopening of an investigation under specified circumstances and does not apply here.
The trial court concluded that the tolling provided in section 3304, subdivision (d)(2)(A), only applied if the “act, omission, or other allegation of misconduct” was the specific and focused subject of an ongoing investigation, so that because Operation Green 22, in this case, was directed at the criminal activities of the Vagos gang in general, there was no tolling. In our view, this approach is too restrictive.
It is true that the trial court found that the Department “put the... matter on a back burner” and that this comment is well supported by the evidence; under the appropriate standard of review we accept this factual finding. However, this does not mean that the Department should be considered to have impermissibly dawdled.
There is not a great deal of useful judicial construction of section 3304 and its tolling provisions. The primary cases cited by the parties are not dispositive. It is quite clear that the statute’s “within one year” language means what it says, that it was intended to prevent the prosecution of stale claims, and that if the time limits are not met, the employing agency is barred from pursuing disciplinary proceedings. (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 322-323 (Mays); see also Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 909-910 (Jackson).) However, the bar exists only if none of the carefully crafted tolling provisions also applies to the matter. We first consider the tolling provision of section 3304, subdivision (d)(2)(C), the “multijurisdictional” provision.
We agree with the trial court that although Operation Green 22 was a “multi-jurisdictional” investigation, the subdivision does not apply. The exact language of the statute is: “If the investigation is a multijurisdictional investigation that requires a reasonable extension for coordination of the involved agencies.” (§ 3304, subd. (d)(2)(C).) In this context, there can be no dispute that “the investigation” relates back to the use of the same phrase in subdivision (d)(1): “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.” (Italics added.) Thus, “the investigation” is the investigation of allegations of misconduct by the public safety officer undertaken by multiple jurisdictions working together and attempting to coordinate their efforts. As used in this subdivision, the term cannot be read to refer to any other related criminal investigation, multijurisdictional or otherwise. Furthermore, “the investigation” of Childs was not multijurisdictional so far as the record shows and did not require additional time for completion due to the involvement of more than one agency. Accordingly, we conclude that this provision did not toll the time in which to bring proceedings against Childs.
Section 3304, subdivision (d)(2)(A), is another matter. It provides for tolling while “the act, omission, or other allegation of misconduct is also the subject of a criminal investigation.” (§ 3304, subd. (d)(2)(A).) The application of this subdivision to cases in which an ongoing “criminal investigation” is centered on the same conduct by the public safety officer that forms the basis for discipline is clear. For example, in Lucio v. City of Los Angeles (2008) 169 Cal.App.4th 793, the officer in question became involved in agitated disputes with two women, on separate occasions, in both of which cases the female called police to report the threatening behavior by the officer. Following the first incident, the matter was referred to an investigator for the criminal section of internal affairs; about five months later, it was determined that there was no prima facie criminal case to be presented to prosecutors. A notice of disciplinary action was served on the officer with respect to the first incident just over a year after the report, but well within the permitted period if the tolling provision applied. In response to a timeliness challenge, the court rejected the argument that tolling only applied if the criminal investigation was conducted by an outside agency over which the employer agency had no control. (Id. at pp. 795-796, 800-801.) It also rejected the argument that no tolling applied with respect to charges that did not relate to criminal conduct, i.e., the charge made against the officer of conducting personal business while on duty. (Id. at pp. 801-802.) Because the noncriminal acts were intertwined with the possibly criminal acts by the officer, and were the subject of the same criminal investigation, the disciplinary statute of limitations was similarly tolled as to these charges.
While the involvement of another agency may cause reasonable delays in processing a complaint or completing a noncriminal investigation, to a considerable extent, this can be dealt with by the “multijurisdictional” tolling.
A similar analysis was applied in Parra v. City and County of San Francisco (2006) 144 Cal.App.4th 977 (Parra). In that case, several officers were suspected of an off-duty assault, and several others allegedly either helped to cover it up or interfered with the investigation. The matter was the subject of extensive criminal investigations both by the police department and the district attorney’s office. (Id. at pp. 980-982.) Lieutenant Parra was never charged with a crime, but was administratively charged with neglect of duty and engaging in selective enforcement of the law and department procedures. (Id. at p. 987.) Resisting the charges, which had been delayed well beyond the one-year limit, he argued that there was no “criminal investigation” as to him within the meaning of section 3304, subdivision (d)(1). The court disagreed, pointing out that “‘the criminal investigation included all of the conduct, indeed the very allegations at issue in these administrative proceedings.’” (Parra, at p. 994.) Thus, despite the fact that Parra’s role in what the appellate court described as a cause célèbre was not criminal, the extensive and complex investigation of the assaults and the departmental reaction to the assaults served to satisfy section 3304, subdivision (d)(2)(A)’s requirement of a “criminal investigation” sufficient to toll the statute of limitations.
Although cases like these do not involve the situation in which the focus of the criminal investigation is on third parties with whom the officer is only tangentially involved and criminal conduct of which he is not suspected, they do support a broad construction of the statutory tolling. It is true that section 3304, subdivision (d)(1), by its terms applies where “the act, omission, or other allegation of misconduct is also the subject of a criminal investigation.” (Italics added.) However, as Parra suggests, a criminal investigation may, in fact, have multiple subjects and may be pursued in several directions at once to encompass numerous possible instances of misconduct. (Parra, supra, 144 Cal.App.4th at p. 994.) Thus, the language of the statute is not as clear or limited as it might first appear and, therefore, is necessary to determine the appropriate construction in light of the Legislature’s presumed intent and, if necessary, the competing public interests and policies. (Van Horn v. Watson (2008) 45 Cal.4th 322, 334; California Correctional Peace Officers Assn. v. State of California (2010) 189 Cal.App.4th 849, 856-857.)
Certainly, that was the case here, where the record demonstrates that the investigation of the Vagos gang was general and wide-ranging in nature. While Childs’s alleged conduct in tipping off the Vagos gang concerning the whereabouts of Thames was clearly not a major point of concern for the investigation as a whole, it did relate to the Vagos gang’s violent conduct and involvement in criminal offenses. It is therefore not unreasonable to construe the tolling provision as applying where, as here, the officer’s questioned conduct occurs in the context of an ongoing criminal investigation involving third parties. As we will explain, such a construction also serves the most important public interest at issue.
At oral argument, petitioners suggested that Childs may have been suspected of knowing conspiracy with the Vagos gang members to harm Thames, so that the investigation of the Vagos gang wrongdoing was also a criminal investigation of Childs. We decline to base our decision on this theory. (See Reed v. Mutual Service Corp. (2003) 106 Cal.App.4th 1359, 1372, fn. 11.)
Childs points out that the Act is “‘concerned primarily with affording individual police officers certain procedural rights during the course of proceedings which might lead to the imposition of penalties against them.’” (Mays, supra, 43 Cal.4th at p. 320.) The Act is meant to “balance the public interest in maintaining the efficiency and integrity of the police force with the police officer’s interest in receiving fair treatment.” (Jackson, supra, 111 Cal.App.4th at p. 909.) Thus, Childs asserts that the balance falls on the side of his right to a speedy resolution of any complaints against him. We are not at all unsympathetic to a public safety officer who finds himself or herself forced to defend against charges as to which his or her memory may be hazy and exculpatory evidence lost. (See generally Adams v. Paul (1995) 11 Cal.4th 583, 592.) We also acknowledge that the Act focuses on the rights and protections to be afforded to police officers. Presumably, the goal of stabilizing labor relations is to be accomplished by establishing disciplinary procedures that are fair to both sides, and specifically protect the officer from coercive or abusive procedures. (See California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294, 309; see also § 3301.) However, it has long been noted that certain provisions of the Act also reflect “the Legislature’s recognition of the necessity for internal affairs investigations to maintain the efficiency and integrity of the police force serving the community.” (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 572; see also Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1286 (Gilbert).) It is of the highest importance that the public trust in law enforcement officers and departments not be undermined by unremedied examples of lack of integrity or misconduct. (See Haney v. City of Los Angeles (2003) 109 Cal.App.4th 1, 12 (Haney).) As petitioners note, in drafting the “Peace Officers Bill of Rights, ” the Legislature was concerned that prior attempts to reach the proper balance had failed and was fully aware of the competing interests. (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1436 (1997-1998 Reg. Sess.) Apr. 15, 2997, p. 2.)
Unfortunately, it is not unknown for public safety officers to be at least suspected of crossing the line either toward improper familiarity with criminals, complicity in crime, or outright criminality. (E.g., Parra, supra, 144 Cal.App.4th at p. 980; Gilbert, supra, 130 Cal.App.4th at p. 1271-1273 [complicity with prostitution ring].) Obviously, it is strongly in the public interest that such cases shall be prosecuted and unreliable officers removed. This case presents an additional factor in that the information about Childs’s alleged misconduct in passing on Thames’s whereabouts to members of the Vagos gang was provided to law enforcement by Wyatt, then acting as an embedded confidential informant. Although the record does not definitively show that either Childs or Vagos gang members would have known that this information-if acted upon by the authorities against Childs-could only have come from Wyatt, the risk of compromising the confidential informant was by no means insubstantial.
This concern does not appear to be a factor with respect to charge 2, as Childs’s own superiors apparently picked up the computer trail relating to his request regarding Mariano on their own.
As the trial court also noted, the Department was in a difficult position. Petitioners had no control over the scope or duration of Operation 22 Green. The confidential informant was the primary responsibility of BATF, and it seems extremely unlikely that, even if it had wished to do so, petitioners had a realistic option of taking action that risked compromising his utility and/or safety. On the other hand, it was obviously crucial to the public interest that petitioners have the opportunity to investigate the allegations of serious wrongdoing against Childs. If no tolling applies, then the choice (if available) was between compromising a major criminal investigation and allowing serious police misconduct to go unpunished.
The record reflects that Wyatt is currently enrolled in a federal witness protection program and has changed his name.
The Department could, of course, have investigated but held back on the actual discipline. Such a prompt “investigation” might have been at risk of becoming known either to Childs or others and, in any event, such a scenario would not have resulted in an earlier filing of the notice of discipline.
Of course, if the statute of limitations was not tolled under one of the express provisions of section 3304, subdivision (d), these proceedings would have been barred. However, we decline to adopt a construction that would put a law enforcement agency to the Hobson’s choice described above. The public interest in pursuing proceedings against Childs militates strongly in favor of a construction of subdivision (d)(1) that allows law enforcement to complete a criminal investigation into which the subject officer has inserted himself before commencing investigative proceedings against the officer. We so conclude and, therefore, also determine that the trial court erred. The disciplinary proceeding was timely and the decision finding good cause to uphold charge 1 must stand.
It remains to dispose of charge 2. The trial court found that because the hearing officer made no findings on the question of when the Department actually acquired information that running Mariano’s name in the computer was improper, it was impossible to determine when cause for discipline first came into existence. Petitioners argue that this was in error because it is “clear” that it did not discover the improper motive until Childs was interviewed in March 2006. However, petitioners also concede that it had “programmed its computers to provide an alert to management when employees accessed information about certain members of the Vagos gang.” This practice “alerted” petitioners that Childs had accessed Mariano’s information in May 2005. Petitioners also concede that “[a]n audit of the Sheriff’s Department’s computer records shows that Childs ran the name of Mariano on May 19, 2005, and his call history for that date reflects that the name was not run pursuant to any legitimate call for service.” In our view, it is not at all clear that the statute of limitations period for this charge did not commence in May 2005.
Petitioners rely on Haney, supra, 109 Cal.App.4th 1, in which officers were known by their superiors to have held a Memorial Day barbecue during working hours-this knowledge acquired within a few days. However, it was not until sometime later, during a routine attendance audit, that the superiors began to suspect that at least some of the officers at the barbecue were demonstrating a pattern of false or nonexistent attendance reports, and eventually learned that the barbecue had been held during duty hours, not break time. The appellate court noted that “[t]he date upon which an administrative agency discovers misconduct is a question of fact, as is the reasonable diligence with which the person authorized to initiate an investigation into misconduct acted.” (Id. at p. 8.) In Haney, the record contained detailed descriptions of the superior officers’ attempts to delve into the matter, resulting in a ruling upholding a finding that the misconduct was actually discovered at the later time and that the superior officers had acted with reasonable diligence.
Here, the administrative record certainly does not compel a finding as a matter of law that the Department reasonably could not have discovered Childs’s improper motive until he admitted it in March 2006. It is clear that the Department knew in May 2005 that running Mariano’s name in the computer was unrelated to any legitimate call. In the circumstances, the trial court did not err in seeking to have the hearing officer perform his duty of making adequate factual findings.
DISPOSTION
In summary, the petition is granted in part and denied in part. In order to keep both parts of the matter together, as suggested by petitioners at oral argument, the Superior Court of San Bernardino County is directed to remand proceedings on count 1 to the San Bernardino County Civil Service Commission along with proceedings on count 2, so that the commission can make a final disciplinary decision depending on its eventual decision with respect to count 2.
Costs are awarded to petitioners.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: HOLLENHORST, Acting P. J., RICHLI, J.