Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. CIVRS809453, Keith D. Davis, Judge.
Patrick Barber, in pro. per., for Plaintiff and Appellant.
Rose E. Mohan, Assistant Chief Counsel, and Stephen A. Jennings, Staff Counsel IV, for Defendant and Respondent.
OPINION
King, J.
I. INTRODUCTION
Plaintiff and appellant Patrick Barber was demoted by his employer, the California Department of Corrections and Rehabilitation (the CDCR), from parole agent I to youth correctional counselor, after the CDCR determined he had forged a ward’s signature on a parole board report and did not give the ward an opportunity to review and sign the report, in contravention of the CDCR policy. Barber petitioned the trial court for a writ of mandate setting aside his demotion on the ground it was time-barred. He claimed he was not notified of the CDCR’s proposed action demoting him until after the one-year limitations period for initiating and completing an investigation of his alleged misconduct had already expired. (Gov. Code, § 3304, subd. (d).) The trial court denied Barber’s petition, and he appeals from the judgment entered in favor of the CDCR. We affirm.
All further statutory references are to the Government Code unless otherwise indicated.
Barber claims the CDCR violated his procedural rights under the Public Safety Officers Procedural Bill of Rights Act (the POBRA) (§ 3300 et seq.) because it did not serve him with notice of its proposed disciplinary action demoting him until September 18, 2008, more than one year after his alleged misconduct was discovered by several persons he claims were “author[ized] to initiate or conduct an investigation” of his alleged misconduct within the meaning of former section 3304, subdivision (d). The issue on this appeal is when the one-year limitations period for initiating and completing internal investigations of peace officer misconduct allegations began to run-before or after September 19, 2007, one year before the notice was given.
We conclude substantial evidence supports the trial court’s determination that the one-year period began to run no earlier than September 19, 2007, the date the ward filed a written grievance alleging Barber’s misconduct. Based on the evidence before it, the trial court reasonably concluded that the CDCR’s “Hiring Authority, ” namely, Acting Superintendent Ramon Martinez, should have discovered Barber’s alleged misconduct no earlier than September 19, 2007, the date the ward filed the grievance against Barber. The notice to Barber of the CDCR’s intention to demote him was therefore timely served and Barber’s demotion was not time-barred.
Barber maintains-and at oral argument strongly emphasized-that the record on this appeal does not support the CDCR’s allegation that he forged the ward’s signature, the ward did in fact attend his parole board hearing on September 4, 2007, the CDCR’s Office of Internal Affairs (OIA) wrongfully destroyed records of five of seven interviews it conducted concerning his alleged misconduct, he was wrongfully interrogated and threatened in violation of the POBRA during his immediate supervisor’s initial investigation of his alleged misconduct, and the CDCR’s Department Operations Manual was not properly established under the California Administrative Procedure Act. We are unable to consider the merits of these claims because they were not properly presented in the trial court and are therefore not before this court on this appeal.
II. THE ONE-YEAR LIMITATIONS PERIOD ON PEACE OFFICER MISCONDUCT INVESTIGATIONS
The POBRA is “primarily a labor relations statute.” (California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294, 304.) It “‘sets forth a list of basic rights and protections which must be afforded all peace officers [citation] by the public entities which employ them....’ [Citations.]” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 320 (Mays).) One of these rights and protections is the one-year limitations period on public agency investigations of peace officer misconduct set forth in section 3304. (Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 909 (Jackson).)
During 2007, when Barber’s alleged misconduct occurred and the CDCR began investigating the matter, subdivision (d) of former section 3304 provided that: “[N]o 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 initiatean investigation of the allegation of an act, omission, or other misconduct....” (Italics added; Stats. 1997, ch. 148, § 1, p. 749.) During the same time period, the third sentence of former subdivision (d) provided: “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....” (Former § 3304, subd. (d), italics added.)
Effective January 1, 2010, the third sentence of subdivision (d) of former section 3304 was amended to state that the public agency must “notify the public safety officer of its proposed discipline by a Letter of Intent or Notice of Adverse Action articulating the discipline that year....” (Stats. 2009, ch. 494, § 1, p. 2638.)
This first sentence of former section 3304, subdivision (d), which is continued without change in current subdivision (d)(1), constitutes a one-year limitations period on investigations of officer misconduct. (See Mays, supra, 43 Cal.4th at p. 321.) The period begins to run when the officer’s alleged misconduct is discovered by a person “authorized to initiate an investigation” of the alleged misconduct. (Former § 3304, subd. (d).) The period ends when the agency notifies the officer that it has completed its investigation and disciplinary action may be taken against the officer based on his or her misconduct. (Mays, supra, at pp. 321-325; Sulier v. State Personnel Bd. (2004) 125 Cal.App.4th 21, 27 (Sulier).)
The POBRA balances two competing interests: the public interest in maintaining the efficiency and integrity of the police force, and the officer’s interest in receiving fair treatment. (Jackson, supra, 111 Cal.App.4th at p. 909.) The one-year limitations period serves both of these interests. It promotes the public interest in maintaining the efficiency and integrity of the police force “[b]y encouraging prompt investigation of allegations of officer misconduct....” (Ibid., citing Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 572.) By the same token, it promotes the officer’s interest in receiving fair treatment “by requiring the diligent prosecution of known claims so that police officers receive prompt notice of claims against them, can prepare a fair defense on the merits, and can marshal the facts while memories and evidence are fresh.” (Jackson, supra, at p. 909, citing Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 755-756.) The “fundamental purpose” of the one-year limitations period 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, 43 Cal.4th at p. 322.)
III. FACTS AND PROCEDURAL HISTORY
During 2007, Barber was employed by the CDCR as a parole agent I and was assigned to the Heman G. Stark Youth Correctional Facility (the youth facility) in Chino, California. Barber’s duties included working with juvenile wards at the youth facility and preparing “Parole Consideration Date Board Reports” (board report) on behalf of wards assigned to him. In certain cases, the board report is required to include an individual change plan (ICP). The board report and ICP assist the parole board in determining whether a ward is eligible for parole. Before the board report and ICP are submitted to the parole board, a case conference is held between the ward and his parole agent. During the case conference, the ward is given an opportunity to review and sign his board report and ICP. The ward then appears before the parole board.
Ward R. was scheduled to appear before the parole board on September 4, 2007, but did not appear. On September 19, R. filed a written grievance alleging that Barber, his assigned parole agent, had forged his name on the board report without his permission and without giving him an opportunity to review the document before it was submitted to the parole board.
Barber points out that he allegedly forged R.’s ICP, not his board report, but the distinction is not important for our purposes.
On November 1, 2007, the acting superintendent of the youth facility, Ramon Martinez, requested that Ward Grievance Coordinator Raymond Paniagua conduct a preliminary inquiry concerning R.’s allegations. The preliminary inquiry was completed, and Paniagua submitted an “Inquiry Report” to Martinez on December 21, 2007. During the course of the preliminary inquiry, Paniagua interviewed several persons, including R., Senior Youth Correctional Counselor Mona Forbes, Treatment Team Supervisor Barbara Govan, and Parole Agent III Don Reetz. Though the focus of Paniagua’s inquiry was on Barber’s alleged misconduct, we are concerned with what the interviews revealed in terms of when the various persons whom Barber claims were “authorized to initiate an investigation” first learned of his alleged misconduct involving R.
When interviewed on December 7, 2007, R. told Paniagua that when Barber slid his board report to him through his door, R. noticed it had already been signed. R. showed the board report to Forbes and Govan, and Forbes advised him to file a grievance. R. claimed that Barber later approached him and asked him why he had filed the grievance. At that time, Barber told R. he signed the board report for R. because he “did not feel like walking upstairs” to get R. to sign it.
Paniagua interviewed Forbes on December 17. Forbes recalled that, on an unspecified date, R. showed her a copy of his board report, complained he did not sign it, and was upset because he felt it did not fairly represent him. Forbes had seen R.’s signature before and said the signature on the board report did not appear to be his, but she was unsure. Forbes advised R. to pursue a complaint or grievance if he felt his rights had been violated. Forbes told Govan about the matter, and, according to Forbes, Govan showed the board report to Reetz. Also according to Forbes, Reetz told Govan he “would take care of it.”
Paniagua interviewed Govan on December 20, 2007. Govan recalled that Forbes first brought the matter to her attention. Govan also believed the signature on the board report may have been Barber’s. Govan said she had never spoken to Barber about the matter because she “anticipated an adverse action and did not want to interfere with a possible investigation.” Govan was also aware that a preliminary investigation had been ordered, and felt the matter would be thoroughly investigated.
Following his interview with Govan, Paniagua informed Martinez that the inquiry might require a more in-depth review of Barber’s actions. At Martinez’s direction, Paniagua completed his preliminary inquiry within the assigned time frame on December 21, 2007. Paniagua spoke with Reetz on December 21. Reetz recalled that Forbes brought the matter to his attention, but he did not recall seeing a copy of the allegedly forged board report. In any event, Reetz did not know what R.’s or Barber’s signatures looked like, and believed it was the responsibility of Barber’s direct supervisor, Govan, to “follow up.”
In his declaration in support of his writ petition, Barber claims he held a case conference with R. on July 28, 2007. He also submitted evidence that at a hearing before the state personnel board, to which he separately appealed his demotion, Forbes testified she knew of R.’s allegations the same day R. received his board report, and she immediately informed Govan. Similarly, Govan testified that she knew of R.’s allegations the same date Forbes learned of them. Barber also declared that he provided R. with his board report and ICP around August 23. Thus, Barber argues both Forbes and Govan must have known of R.’s allegations around August 23.
After reviewing Paniagua’s inquiry report, Martinez determined that Barber had apparently forged R.’s board report. On January 11, 2008, Martinez requested that the OIA conduct a formal inquiry of R.’s allegations. The OIA completed its investigation on September 8, 2008.
During the OIA investigation, Martinez confirmed that Barber’s immediate supervisor was Treatment Team Supervisor Govan and that Parole Agent III Reetz was assigned to the Y and Z Company. Govan also confirmed she was Barber’s immediate supervisor. Govan said that, after R. brought the matter to her attention, she made a copy of R.’s board report and told Program Administrator Joe Hardigan about R.’s allegations. Paniagua recalled that Hardigan, not Martinez, had instructed him to conduct the preliminary investigation, but the record includes a letter dated November 1, 2007, from Martinez to Paniagua instructing Paniagua to conduct the preliminary investigation. Martinez confirmed that he initiated the preliminary inquiry and assigned Paniagua to conduct it.
On September 18, 2008, the CDCR served Barber with written notice in the form of a letter informing him the CDCR had completed its investigation of R.’s allegations and had determined that Barber signed R.’s signature on a board report without R.’s permission and without giving R. an opportunity to review it. The notice advised Barber that the CDCR intended to demote him. On October 16, 2008, Barber was served with a formal notice of adverse action (§ 19574) informing him he would be demoted from parole agent I to youth correctional counselor effective October 30, 2008. Barber was later demoted effective October 30, 2008. In April 2009, Barber was terminated from his employment with the CDCR for reasons unrelated to this litigation.
IV. DISCUSSION
A. The Parties’Contentions
The parties agree that Barber was properly served on September 18, 2008, with a “Sulier notice” of the CDCR’s proposed action demoting him. (Sulier, supra, 125 Cal.App.4th at pp. 26-27; cf. Mays, supra, 43 Cal.4th at pp. 321-324.) They dispute when the one-year limitations period commenced, however. If the one-year period commenced on or after September 19, 2007, then the Sulier notice was timely served and Barber’s subsequent demotion is not time-barred. But if the one-year period began to run before September 19, 2007, then Barber is correct in his claim that the investigation was not completed within one year, and his demotion is time-barred.
As discussed, September 19, 2007, was the date R. filed a grievance complaining that Barber had forged his signature on the board report. Barber claims the one-year period began to run earlier than the date R. filed his grievance-specifically, during August 2007 when Forbes and Govan first learned of Barber’s alleged misconduct from R. or in any event when Reetz and Hardigan first learned of his alleged misconduct-sometime before R. filed his written grievance. As a legal matter, Barber claims Forbes, Govan, Reetz, and Hardigan were all “person[s] authorized to initiate an investigation” of his alleged misconduct. (Former § 3304, subd. (d).) He relies on the job descriptions or classifications of these individuals as set forth in the state personnel board classification plan (SPB classification plan).
The CDCR argues the one-year period began to run no earlier than November 1, 2007, the date Martinez, the acting superintendent of the facility, ordered a preliminary investigation of Barber’s alleged misconduct. The CDCR maintains that Martinez was the only person at the youth facility who was “authorized to initiate an investigation” of Barber’s alleged misconduct because, as the acting superintendent, he was the designated Hiring Authority in the CDCR’s department operations manual (the operations manual or DOM).
B. The Trial Court’s Ruling
In denying Barber’s petition, the trial court agreed with the CDCR’s position. It reasoned that Martinez, as acting superintendent of the facility, was the person designated as the Hiring Authority in the CDCR’s operations manual. As such, the trial court ruled that Martinez was the only person at the youth facility who was authorized to initiate an investigation of Barber’s alleged misconduct.
C. Standard of Review
This reviewing court is required to uphold the trial court’s factual determinations if substantial evidence supports them. (Jackson, supra, 111 Cal.App.4th at p. 902.) The date a peace officer’s alleged misconduct is first discovered, and the reasonable diligence that a person “authorized to initiate an investigation” (former § 3304, subd. (d)) uses in initiating an investigation of the alleged misconduct, are questions of fact (Haney v. City of Los Angeles (2003) 109 Cal.App.4th 1, 8). We independently review and determine questions of law, however. (Jackson, supra, at p. 902.)
D. Analysis
Barber claims the trial court relied on the “wrong legal authority, ” specifically, the CDCR’s operations manual, in concluding Martinez was the CDCR’s designated Hiring Authority at the youth facility and, as such, was the only person “author[ized] to initiate or conduct an investigation” of Barber’s alleged misconduct within the meaning of former section 3304, subdivision (d). He argues the operations manual is “simply an internal policy and guideline established by [the] CDCR, ” and does not determine who is “author[ized] to initiate or conduct an investigation.” We disagree.
We believe the law is settled that public agencies such as the CDCR are authorized to designate persons “authorized to initiate an investigation” of peace officer misconduct under the POBRA, and that the courts are bound by the agencies’ designations. (Jackson, supra, 111 Cal.App.4th at p. 910 [Los Angeles Police Department Administrative Order No. 7, identifying “Sergeant I or Detective II or higher” as persons authorized to initiate investigations, established the one-year limitations period]; see also Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209, 1223 [“‘[T]he procedural details for implementing the provisions for an administrative appeal are to be formulated by the local agency.’”]; cf. Haney v. City of Los Angeles, supra, 109 Cal.App.4th at p. 8 [observing in apparent dicta that Los Angeles Police Department Administrative Order No. 7 was “nothing more than an internal departmental guideline, not in itself a limitations period or an interpretation of the law.”].)
The court in Haney determined that substantial evidence supported the trial court’s conclusion that Sergeant Foreman, a person authorized to initiate an investigation of a subordinate Los Angeles police officer’s misconduct, did not reasonably discover that the officer had engaged in misconduct until June 29, 1998, within the one-year limitations period, though the sergeant first became aware that the officer was involved in an incident of possible misconduct on May 27, 1998, a date that fell outside the one-year period. (Haney v. City of Los Angeles, supra, 109 Cal.App.4th at pp. 4-5, 8.) We believe Haney stands for the proposition that a person authorized to initiate an investigation is allowed a reasonable period of “initial fact finding, ” before his or her employing agency may be deemed to have “discovered” misconduct. As the court observed: “The 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.) The court’s dismissal of Administrative Order No. 7, “nothing more than an internal departmental guideline, not in itself a limitations period or an interpretation of the law” (ibid), was unnecessary to its holding.
The CDCR’s operations manual effectively provided that a Hiring Authority, and only one Hiring Authority, is the only person authorized to initiate an investigation of peace officer misconduct under the POBRA. The operations manual defines Hiring Authority as including only higher level CDCR employees, such as wardens, superintendents, and parole administrators. (DOM, § 31140.3.) The operations manual further provides that the Hiring Authority is responsible for “requesting” and “directing” “inquiries” and “investigations” of employee misconduct. (DOM, §§ 31140.4.10, 31140.14.) If sufficient information is obtained from an initial “allegation inquiry” to warrant a formal OIA investigation, the Hiring Authority is to forward a request for such an investigation to the OIA. (DOM, § 31140.14.) By contrast, lower level employees, including “supervisors” and “managers” are responsible for “[r]eferring alleged misconduct and requests for investigation or adverse action to the Hiring Authority immediately following discovery of facts which may constitute misconduct.” (DOM, § 33030.5.3, italics added.)
Substantial evidence showed that Martinez was the acting superintendent of the youth facility during 2007 and, as such, was the CDCR’s designated Hiring Authority authorized to initiate the investigation of R.’s misconduct allegations against Barber. Martinez initiated that investigation on November 1, 2007. Importantly, the record does not indicate when Martinez first discovered R.’s allegations before November 1, 2007, but there is no evidence that Martinez knew or should have known of Barber’s alleged misconduct any time before R. filed his written grievance on September 19, 2007. And, based on the evidence before it, the trial court could have reasonably determined that Martinez knew or should have known of R.’s allegations no earlier than the date R. filed his grievance. Indeed, before R. filed his grievance, the persons who knew of his informal, unwritten allegations, including Forbes, Govan, Reetz, and Hardigan, could have reasonably determined the circumstances did not warrant reporting them to Martinez. Substantial evidence showed that, before R. filed his grievance, Govan and the other officers who knew of his allegations lacked sufficient reason to believe he would pursue them, and without R.’s cooperation, his allegations may not have been proved.
Nor did Barber demonstrate that Forbes, Govan, Reetz, or Hardigan were Hiring Authorities authorized to initiate the investigation. To the contrary, the record showed these persons were, at most, lower level supervisors or managers who were responsible for referring R.’s misconduct allegations to Martinez. In a further declaration submitted in support of his reply brief in the trial court, Barber claimed Hardigan knew of R.’s allegations around August 23, 2007, and was at that time the acting deputy superintendent of the youth facility in Martinez’s absence. The trial court rejected Barber’s declaration as insufficient. Indeed, there was no showing that Barber had personal knowledge that Hardigan, though a program administrator and qualified to act as a Hiring Authority, was the acting superintendent or acting deputy superintendent of the youth facility around August 23, and was the Hiring Authority in Martinez’s absence.
Benefield v. Department of Corrections & Rehabilitation (2009) 171 Cal.App.4th 469 involved a similar factual situation and is instructive. There, a CDCR correctional officer, Jaramillo, reported in February 2004 that a group of other correctional officers had been involved in an incident of misconduct on November 3, 2003. (Id. at p. 471.) Jaramillo testified at a state personnel board hearing that she did not report the incident when she witnessed it on November 3, because on that date she saw Lieutenant Van Hoose “gesturing in an upset manner” as he was speaking to some of the officers involved, though Jaramillo did not hear what the lieutenant was saying. (Id. at p. 476.) Nevertheless, Jaramillo believed the lieutenant knew about the officers’ misconduct and would “do something about it.” (Ibid.) The lieutenant declared he did not know of the incident on November 3 and first learned of it in March 2004. (Ibid.)
Based on the evidence before it, the Benefield court reasoned that, even if the trial court could have credited Jaramillo’s testimony and inferred that the lieutenant was aware of the misconduct on November 3, there was no evidence the lieutenant was a Hiring Authority or otherwise had authority to initiate an investigation of the alleged incident. (Benefield v. Department of Corrections & Rehabilitation, supra, 171 Cal.App.4th at pp. 476-477.) Accordingly, there was no evidence that the one-year limitations period commenced on November 3, because there was no evidence that any person who was authorized to initiate an investigation of the alleged incident knew of it on that date. (Id. at p. 477.) Similarly, here there was no evidence that a Hiring Authority, other than Martinez, knew about Barber’s alleged misconduct anytime before R. filed his grievance against Barber on September 19, 2007.
Barber claims the trial court was legally required to rely on the job descriptions of Forbes, Govan, Reetz, and Hardigan, as set forth in the SPB classification plan, in determining who was authorized to initiate the investigation. He claims the SPB classification plan authorized each of these individuals, as peace officers, “to gather evidence, initiate adverse action, initiate investigations, conduct interviews, and/or conduct investigations....” He submits that the department of personnel administration and the state personnel board are “the constitutionally established authorities” that determine “the essential job duties” of civil service personnel, including CDCR employees.
Nothing in the SPB classification plan states that any peace officer is authorized to “initiate an investigation” of another officer’s alleged misconduct. (Former § 3304, subd. (d).) Barber takes isolated portions of the SPB classification plan’s job descriptions out of context. For example, a treatment team supervisor, such as Govan, “conducts work improvement discussions and initiates adverse action as necessary, ” but that does not mean that Govan was authorized to initiate an investigation of Barber’s alleged misconduct within the meaning of the statute. As discussed, CDCR policy provides that treatment team supervisors, such as Govan, are to “refer” allegations of misconduct to the Hiring Authority. As Barber would have it, any supervisor or manager in the CDCR would be authorized to initiate an investigation of a peace officer’s misconduct. But that is not CDCR policy, and that is not the law.
State personnel board precedent is in accord. The trial court took judicial notice of SPB Board Decision No. 08-02, In re Russell Brizendine, where the board clarified who constitutes a “person authorized to initiate an investigation” of peace officer misconduct in a case involving a CDCR correctional officer. The board ruled: “Absent any specific identification or authorization by the appointing power, the ‘person authorized to initiate an investigation’ must be at a supervisory level or higher, have been a witness to or otherwise have knowledge of the underlying alleged misconduct, and not have participated in the underlying alleged misconduct.” (Italics added.) Thus, not just any CDCR employee, at a supervisory level or higher, may initiate an investigation when, as here, the CDCR has specifically identified and authorized a Hiring Authority as the person authorized to initiate an investigation.
V. DISPOSITION
The judgment is affirmed. The parties shall bear their respective costs on appeal.
We concur: Hollenhorst, Acting P.J., Richli, J.