Principles for Public Safety Employment

that the one-year statute may be extended to allow an agency to accomplish service where the employee willfully evades.

Agencies should carefully document their attempts to serve Notices so that, if necessary, it can be established that the employee willfully evaded service. This documentation should include the date, time, location, and method of attempted service, and be signed under penalty of perjury by the person attempting service.

LCW Practice Advisor

In the POBR context, courts will look at a department’s own rules to determine who is “authorized to initiate an investigation.” 181 As for firefighters, the issue of when an agency has “discovered” that a firefighter has engaged in misconduct will likely be a contentious issue. In a departure from the POBR, the Legislature’s omission of the requirement that misconduct be discovered by someone authorized to initiate an investigation begs the question of whether the Legislature meant the FBOR to be more or less expansive than the POBR with respect to whose knowledge can be imputed on the agency. If an agency does not already have a rule, it should consider establishing a rule that all employees are required to report misconduct by a fellow firefighter. Public safety agencies should take steps to ensure internal investigations are completed in a timely manner since the date the investigation is actually opened is usually not dispositive. The procedural requirements for imposing discipline are discussed in detail in Section 4, F.

Pursuant to Executive Order No. N-40-20, due to the COVID-19 State of Emergency, the one-year statute of limitations under the POBR is extended by 60 days. The Executive Order took effect on March 30, 2020; it does not specify a termination date. The Executive Order does not affect the statute of limitations under the FBOR .

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2. T HE E XCEPTIONS As noted above, the requirement to complete an administrative investigation within one year after the agency’s discovery (for firefighters) or after discovery by an authorized person of the allegations of misconduct (for officers) is subject to certain exceptions. These exceptions include when:

 The act, omission or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution. In such case, the one year period to complete an administrative investigation does not start running until the criminal investigation or criminal prosecution is completed. So long as this investigation is “pending,” it need not be “actual and active.” 182

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 64