{"id":2048,"date":"2021-07-02T18:26:08","date_gmt":"2021-07-02T18:26:08","guid":{"rendered":"https:\/\/www.stonebusailah.com\/?p=2048"},"modified":"2021-07-02T18:26:08","modified_gmt":"2021-07-02T18:26:08","slug":"who-can-initiate-an-investigation-under-pobra","status":"publish","type":"post","link":"https:\/\/villagegreentesting.com\/StoneBusailah\/2021\/07\/02\/who-can-initiate-an-investigation-under-pobra\/","title":{"rendered":"WHO CAN \u201cINITIATE\u201d AN INVESTIGATION UNDER POBRA"},"content":{"rendered":"\n

Author: Robert Rabe, Esq.<\/strong><\/p>\n\n\n\n

Arthur Ochoa was a deputy employed by the Kern County Sheriff\u2019s Office (KCSO). On March 22, 2013, Priscilla S. informed Deputy Chaidez that Ochoa harassed her. On that same day, Chaidez submitted an interoffice memorandum documenting the allegation to Sergeant Bittle, Ochoa\u2019s superior. On March 25, 2013, Bittle received Chaidez\u2019s memorandum and \u201cstarted an investigation \u2026 to determine what the nature of the complaint was.\u201d He tried to contact Priscilla S. without success. On March 27, 2013, Bittle submitted an interoffice memorandum concerning Priscilla\u2019s allegation and his attempts to contact her to Commander Hansen. On May 6, 2013, Chief Deputy Zimmerman signed a KCSO \u201cPersonnel Complaint\u201d authorizing internal affairs to investigate Priscilla\u2019s harassment claim against Ochoa. Senior Deputy Levig was appointed to conduct the investigation. On August 11, 2014, Levig served Ochoa with a \u201cNotice of Proposed Disciplinary Action – Termination,\u201d which cited numerous violations of Civil Service Commission Rules and KCSO Policies and Procedures. Following a Skelly hearing, Ochoa was terminated.<\/p>\n\n\n\n

Ochoa filed a petition in the Superior Court for a writ of mandate. The trial court conducted a hearing during which several individuals testified about KCSO procedures. Bittle testified he \u201cwas not authorized to initiate an internal affairs investigation.\u201d As a sergeant, he \u201cha[s] to look into \u2026 allegations to find out what they were all about.\u201d Bittle stated he had \u201cthe ability to investigate subordinates\u201d and \u201cdiscipline [them] for [policies and procedures] violation[s]\u201d but \u201cwould not impose any discipline beyond a written reprimand.\u201d Simpson testified a sergeant \u201cdid not have the authority to initiate an internal
affairs investigation\u201d and \u201conly the Sheriff, the Under sheriff, or Chief Deputies can authorize the initiation of an internal affairs investigation.\u201d \u201c[H]is authority was limited to gathering enough facts to make his chain of command aware of the nature of the allegations.\u201d Levig testified \u201cno one below the rank of a Chief Deputy has the ability to authorize an administrative investigation.\u201d Zimmerman testified he authorized an internal affairs investigation and, pursuant to KCSO policy, \u201conly a Chief Deputy can initiate an internal affairs investigation of a deputy\u201d. A sergeant, on the other hand, \u201ccannot initiate an internal affairs investigation\u201d Instead, a sergeant \u201ccan conduct fact-finding if there is an allegation\u201d to \u201cdetermine [ ] if the allegation is criminal or administrative in nature.\u201d<\/p>\n\n\n\n

The Public Safety Officer Procedural Bill of Rights Act (POBRA), requires the investigation of misconduct to be completed within one year of the \u201cdiscovery by a person authorized to initiate an investigation of the allegation.\u201d (Govt. Code \u00a7 3304 (d)(1).) Ochoa claimed that the KCSO failed to complete the administrative investigation of his alleged misconduct and notify him of the proposed disciplinary action within one year of the agency\u2019s discovery by a person authorized to initiate the investigation. The superior court entered an order and judgment denying his petition, stating \u201cBittle was not authorized to initiate an investigation within the meaning\u201d of the relevant section.<\/p>\n\n\n\n

On appeal, Ochoa again claimed his termination was time barred because the KCSO sergeant initiated an investigation of his alleged misconduct on March 25, 2013, and an internal affairs investigator notified him of the proposed termination on August 11, 2014. The Department argued that since the sergeant who initiated the investigation on March 25, 2013, was not authorized by department policy to initiate an internal affairs investigation, the sergeant\u2019s investigation did not start the one-year limitations period. The Court of Appeal concluded; \u201calthough the sergeant could not initiate an internal affairs investigation, he was \u2018a person authorized to initiate an investigation\u2019 of the allegation within the meaning of [POBRA].\u201d
Citing Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 322, the Court of Appeal noted that the \u201capparent purpose\u201d of the statute \u201cis 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\u2019s discovery of the officer\u2019s 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.\u201d The Court remarked that a KCSO sergeant is authorized to initiate some sort of inquiry into a subordinate\u2019s alleged wrongdoing, so it had to determine whether the \u201cinquiry\u201d by the sergeant constituted an \u201cinvestigation\u201d under POBRA. The Court concluded that when Bittle forwarded his interoffice memorandum, that launched AN inquiry that eventually led to Ochoa\u2019s termination. \u201cThe statute of limitations period, therefore, commenced March 25, 2013.\u201d<\/p>\n\n\n\n

One can see from this case how important it is to know that a department\u2019s policy cannot artificially extend the time to conduct an investigation under POBRA, by limiting those who may \u201cinitiate\u201d an internal affairs investigation to a few command officers. It is vital for an officer to consult with an attorney who is familiar with the issues that may arise under POBRA at the start of any investigation process.<\/p>\n\n\n\n

Stay Safe!<\/strong><\/p>\n\n\n\n

Robert Rabe<\/strong> is Stone Busailah, LLP\u2019s writs and appeals specialist. His 40 years practicing law include 16 years as a Barrister, Supreme Court of England and Wales, practicing in London, England.<\/p>\n","protected":false},"excerpt":{"rendered":"

Author: Robert Rabe, Esq. Arthur Ochoa was a deputy employed by the Kern County Sheriff\u2019s Office (KCSO). On March 22, 2013, Priscilla S. informed Deputy Chaidez that Ochoa harassed her. On that same day, Chaidez submitted an interoffice memorandum documenting the allegation to Sergeant Bittle, Ochoa\u2019s superior. On March 25, 2013, Bittle received Chaidez\u2019s memorandum […]<\/p>\n","protected":false},"author":1,"featured_media":2049,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[18],"tags":[],"class_list":["post-2048","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-pobra"],"_links":{"self":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts\/2048","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/comments?post=2048"}],"version-history":[{"count":0,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts\/2048\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/media\/2049"}],"wp:attachment":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/media?parent=2048"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/categories?post=2048"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/tags?post=2048"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}