Principles for Public Safety Employment

Government Code sections 3304(g) and 3254(g) also state that the one-year time period may be reopened against a public safety employee if significant new evidence has been discovered that is likely to affect the outcome of the investigation and either of the following conditions exist: (1) The evidence could not reasonably have been discovered in the normal course of investigation without resorting to extraordinary measures by the agency; or (2) The evidence resulted from the public safety employee’s predisciplinary response or procedure. 193 In addition to these statutory exceptions, in the POBR context, the California Court of Appeal has also noted that where an officer was terminated and later reinstated, the POBR statute of limitations did not run while he was not employed as a peace officer. Consequently, for practical purposes, the statute of limitations was tolled while he was not employed as a peace officer. 194 3. S PECIFICITY OF THE N OTICE OF P ROPOSED D ISCIPLINE As discussed above, Government Code sections 3304(d) and 3254(d) generally require agencies to notify officers and firefighters of the agency’s “proposed disciplinary action” within one year of the agency’s discovery of the alleged misconduct. The 2009 amendment to Section 3304(d) specifies that a notice of proposed disciplinary action to officers must articulate the proposed discipline. This amendment was likely a direct response to Mays v. City of Los Angeles 195 , where the California Supreme Court held that the notice of “proposed disciplinary action” language in the POBR did not require that specific proposed punishment be articulated. The FBOR was not similarly amended, thus the rationale in Mays could continue to apply to notices of proposed discipline for firefighters. Regardless, fire departments should strive to articulate the proposed discipline in the notice of proposed disciplinary action whenever possible. The California Court of Appeal has also recognized that, under the POBR, the notice of proposed discipline can but does not have to identify the decision maker. 196 K. P UBLIC S AFETY E MPLOYEES ’ R IGHTS TO I NVESTIGATION M ATERIALS Government Code sections 3303(g) and 3253(g) state, in part, “If a tape recording is made of the interrogation, the public safety [employee] shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The public safety [employee] shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. No notes or reports that are deemed to be confidential may be entered in the [employee’s] personnel file.…” Penal Code section 135.5 provides that “Any person who knowingly alters, tampers with, conceals, or destroys relevant evidence in any disciplinary proceeding against a public safety officer, for the purpose of harming that public safety officer, is guilty of a misdemeanor.”

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 66