Principles for Public Safety Employment

 Conclusions- the investigator should not make conclusions regarding whether misconduct has occurred unless he or she has been specifically directed to do so.

2. A TTACHMENTS TO THE R EPORT The investigator should attach relevant documents to the written report, including any Department rules, regulations, policies, or statutes at issue. Such documents might also include any physical evidence gathered during the investigation, including emails, pictures, drawings, or other writings. Any recordings should also be attached to the report. In significant cases, it may be appropriate to have interviews transcribed. J. T IME L IMITATIONS FOR C OMPLETION OF I NVESTIGATION AND N OTIFICATION TO P UBLIC S AFETY E MPLOYEE OF P ROPOSED D ISCIPLINARY A CTION 1. T HE G ENERAL R ULE : T HE POBR AND FBOR H AVE A O NE Y EAR S TATUTE OF L IMITATIONS Subject to certain exceptions, Sections 3304(d) and 3254(d) state that no punitive action or denial of promotion on grounds other than merit may be taken for misconduct if the investigation of the allegation of misconduct is not completed within one year . Under the POBR, the one-year statute of limitations is triggered by the date “of the public agency’s discovery by a person authorized to initiate an investigation of the allegation.…” In contrast, under the FBOR, the one year statute of limitations is triggered by the date “of discovery by the employing fire department or licensing or certifying agency.” 177 The FBOR’s statute of limitations is not triggered by the date someone authorized to initiate an investigation of the allegation discovers the misconduct, like with the POBR. A public safety employer must not only complete its investigation within one year of the discovery of possible misconduct, but the employer must serve the employee with notice of its proposed disciplinary action within that one year. A 2009 amendment to the POBR requires that the notice of proposed disciplinary action articulate the proposed discipline, but specifies that the public agency is not required to impose the discipline within that one-year period. The FBOR was not similarly amended. Because the POBR and FBOR statutes of limitations are a complete defense to what would otherwise be a legitimate disciplinary action, agencies are advised to serve the subject employee with the notice of proposed disciplinary action, articulating the specific discipline proposed, as soon as reasonably possible.

Although non-sworn employees of police departments are not entitled to the protections of the POBR, there is a one year limitation on investigations and discipline for civilian police employees under Government Code § 3508.1.

LCW Practice Advisor

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 62