A CRIMINAL INVESTIGATION IS NO LONGER PENDING — AND THE TOLLING PERIOD IN POBRA’S SECTION 3304(D)(2)(A) ENDS — WHEN A FINAL DETERMINATION IS MADE NOT TO PROSECUTE ALL OF THE PUBLIC SAFETY OFFICERS IMPLICATED IN THE MISCONDUCT AT ISSUE

Courtesy of James R. Touchstone, Esq.

In the case of Bacilio v. City of L.A., 2018 Cal. App. LEXIS 968 (2nd Dist. Oct. 25, 2018), the California Second District Court of Appeal affirmed a trial court’s judgment denying a Los Angeles Police Department officer’s petition for a writ seeking to vacate disciplinary findings against the officer.  The officer argued that he was not given notice of potential discipline within one-year as required under the Public Safety Officers Procedural Bill of Rights Act (“POBRA”).[1] He specifically contended the tolling period under the exception for criminal investigations ended when the prosecutor orally told the internal affairs investigator that “she was not going to file against the officers” rather than when the district attorney’s office formally rejected prosecution a few months later.

Background

On March 30, 2011, LAPD Officers Edgar Bacilio and Nestor Escobar responded to a family dispute call. They arrested the husband, and placed the child with the wife. Later in their shift, they went to the wife’s apartment to conduct a welfare check on the child.  Bacilio was the officer in charge of accurately documenting the officers’ activities during their shift.  In the Daily Field Activities Report (“DFAR”), Bacilio reported that the officers were at the wife’s apartment for 115 minutes.  This reported time differed from those reported by the Incident Recall Sheet and Unit History Log, which also track officers’ activities during their shifts.  The Incident Recall Sheet indicated that Bacilio and Escobar had been at the apartment for 12 minutes.  The Unit History Log indicated the officers had stayed at the wife’s apartment for 86 minutes.

In August 2011, the wife filed a report alleging that Officer Escobar had spent 90 minutes in her apartment and that Escobar had kissed her, touched her private parts over her clothes, and propositioned her for sex.  The wife later picked Escobar out of a photo spread, indicating that she was 60 to 70 percent sure he was the one who sexually assaulted her.

Criminal Investigation

LAPD’s Internal Affairs Division immediately began to investigate the wife’s claim of misconduct.  Because the alleged misconduct could involve the potential crimes of sexual battery by Officer Escobar and aiding and abetting sexual battery by Bacilio, the investigation was both administrative and criminal.  In June 2013, the lead internal affairs investigator presented the results of the LAPD’s Internal Affairs investigation to the Los Angeles County District Attorney’s Office.  The lead investigator sought prosecution of Escobar for felony sexual battery under color of authority.

In August 2013, a deputy district attorney interviewed the wife, using the lead internal affairs investigator as a translator. According to the lead investigator’s notes of his post-interview discussion with the deputy district attorney immediately after the interview, the prosecutor said “she was not going to file against the officers” and that “it was okay … to do the admin[istrative] interviews” of Officer Bacilio and another officer “since she is not filing charges against them.” The investigator later testified about the post-interview discussion that the prosecutor had not “officially rejected” the case for prosecution; that she had said “she most likely was not going to file … against the officers” but “was still actually working on the case”; and that it was okay to interview Bacilio and the other officer because they “were not” “criminally involved,” such that interviewing them “would not interfere with [the prosecutor’s] case.”

In October 2013, the district attorney’s office sent Internal Affairs a Charge Evaluation Worksheet (“Worksheet”) officially declining to file charges against Escobar, Bacilio, and the other officer due to insufficient evidence.  The Worksheet was signed by the prosecutor as well as a “reviewing deputy.”

Administrative discipline

In September 2014, the LAPD gave notice to Officer Bacilio that Internal Affairs was seeking an official reprimand against him based on the underlying incident. In November 2014, the LAPD brought administrative charges against Bacilio alleging two counts of misconduct.  The LAPD ultimately sustained a charge for “fail[ing] to maintain an accurate daily field activities report (DFAR)” during his March 30, 2011 shift.  The other charge was not sustained.

Officer Bacilio appealed the LAPD’s ruling to a hearing officer.  Bacilio and the lead internal affairs investigator both testified at the evidentiary hearing.  In a written ruling thereafter, the hearing officer found that the LAPD had initiated administrative disciplinary proceedings against Bacilio in a timely manner because POBRA’s one-year limitations period was tolled from the time of the wife’s initial report of potentially criminal misconduct until Bacilio’s criminal case was officially rejected by the District Attorney’s Office in October 2013 when they sent the Worksheet.  On the merits, the hearing officer sustained the DFAR reporting charge.  LAPD’s Chief of Police agreed with the hearing officer’s conclusion on this charge.

Officer Bacilio filed a petition for a writ of administrative mandamus against the City of Los Angeles (the “City”) and the Chief of Police seeking (1) declaratory and injunctive relief vacating all adverse disciplinary findings, and (2) a $25,000 penalty for the LAPD’s alleged malicious violation of POBRA. After a hearing, the trial court denied the petition as to the DFAR reporting charge, concluding that the LAPD’s administrative proceedings against Bacilio were timely under POBRA.  The court ruled that the “statutory tolling period” for criminal investigations did not end until “the DA … formally close[d] its criminal file” in October 2013.  The court noted “[t]here are good policy reasons” to continue tolling until “a formal notice from the DA” declining prosecution—chiefly, that “informal discussions could be misinterpreted.”  On the merits, the court found that the weight of the evidence supported the police chief’s finding as to the charge for failing to maintain an accurate DFAR.  Officer Bacilio appealed.

Discussion

The Second District Court of Appeal explained that POBRA fosters stable public safety employer-employee relations by codifying a list of basic rights for public safety employees.  One of these rights is the right to speedy investigation if accused of misconduct. POBRA requires public agencies investigating misconduct by a public safety officer to complete their investigation and notify the officer of any proposed discipline within one year of discovering the misconduct.  (Government Code section 3304(d)(1).)  This one-year limitations period “ensure[s] that an officer will not be faced with the uncertainty of a lingering investigation.”  (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 322.)  If the possible misconduct “is also the subject of a criminal investigation or criminal prosecution,” the one-year period is tolled while the “criminal investigation or criminal prosecution is pending.”  (Section 3304, subd. (d)(2)(A)) While a criminal investigation is pending, tolling is mandatory for its “entire duration.”[2]  The reason for this tolling is that criminal investigations are more complex, nuanced, and time-consuming than purely administrative investigations, and therefore should not be expected to be completed as quickly or simply as purely administrative investigations.

The Court determined that the essential question on appeal was:  When is a criminal investigation no longer “pending,” ending the tolling period for a criminal investigation?  Officer Bacilio argued on appeal that the deputy district attorney’s comments to the lead internal affairs investigator immediately after their August 2013 interview of the wife marked the end of the criminal investigation.  The deputy district attorney had said to the investigator that she was not going to file against the officers, and that it was “okay … to do the admin[istrative] interview” of the officers. Bacilio argued that her comments constituted “an official rejection” of criminal prosecution, and that the tolling period for the statute of limitations ended then.  Officer Bacilio claimed that LAPD’s notice to him of potential discipline, given in September 2014, was accordingly not timely per POBRA’s one-year limit.

Since POBRA did not explicitly specify or define when an investigation was no longer “pending,” the Second District looked to “other aids, such as the statute’s purpose, legislative history, and public policy.”[3]  The Court concluded that a criminal investigation was no longer pending—and Section 3304(d)(2)(A)’s tolling period ended—when a final determination was made not to prosecute all of the public safety officers implicated in the misconduct at issue.

The Court gave three reasons.  The first was that linking the ending of tolling to the final decision not to prosecute assured a thorough complete criminal investigation without the pressure of POBRA’s one-year limit looming.  The Court said this linkage “best harmonize[d]” POBRA’s purpose of fostering good employee-employer relations by providing both (1) the public safety officer’s right to a prompt investigation and adjudication; and (2) the public agency employer’s need to conduct a proper investigation free from the ticking clock of POBRA’s time impositions.

The Court also considered its chosen standard as the “most workable standard” given the “practical realities” of criminal investigations.  Decisions short of a final determination would be “necessarily in flux; they should not be given determinative effect” due to the ebb and flow of activity in different lines of inquiry and the stops and starts of the investigatory process.  The Court also rejected tying tolling’s end to whether a case was “active” (too vague a determination to be workable) or to “formal notice” of the end of a criminal investigation (agencies could arbitrarily hold off on providing such formal notice to manipulate POBRA’s timetable).

The Court lastly explained that its linkage of the conclusion of tolling and the final determination whether to prosecute was in accord with other cases that had considered Section 3304(d)(2)(A).  These cases, such as Richardson v. City & Cnty. of S.F. Police Com.,[4] ruled that tolling ended when the prosecuting entity or the public agency itself had formally ended its criminal investigation, or involved entries into a public record log that otherwise indicated a final determination that the criminal investigation had been completed.

The Court then applied the final determination standard to Bacilio’s case here.  The Court found, looking at the totality of the circumstances, that substantial evidence supported the finding that the City carried its burden of showing that the District Attorney’s Office did not make its final determination regarding prosecution until it issued its October 2013 Worksheet declining to prosecute.  The Court noted the lead internal affairs investigator testified that the deputy district attorney’s comments to him in August 2013 were tentative because she was at that point “still actually working on the case.”  The fact that the District Attorney’s Office prepared the October 2013 Worksheet officially declining to file charges and sent it out suggested the notion that the August 2013 commentary was an interim, not final decision.  So too, did the fact that the Worksheet was signed not just by the prosecutor but by a reviewing deputy – an additional step beyond the deputy district attorney’s comments in August 2013.  The Second District found the later Worksheet functioned as the equivalent of the formal memo in Richardson, in which the court concluded that a criminal investigation was still pending (and thus still tolled under POBRA) until the prosecuting entity wrote a formal memorandum declining charges, even though earlier memoranda to the file indicated that no investigation was ongoing.

The Court found that the tolling period did not end until the Los Angeles County District Attorney officially rejected prosecution of all of the investigated officers by means of the Worksheet in October 2013. Consequently, the investigation and discipline of Bacilio was timely.  The Court accordingly affirmed.

HOW THIS AFFECTS YOUR AGENCY

It is worth noting from the facts of this case that, even after this law enforcement agency had completed an investigation sufficient in its view to warrant submission of the case to the District Attorney for evaluation of criminal charges, it nonetheless took another eleven months following the formal decision by the District Attorney before issuing a notice of discipline.  The Court found that this delay was permissible under the circumstances because the prosecuting agency had not issued its official determination that it would not prosecute the case.  Accordingly, it remains the case that an agency has twelve months within which to complete its administrative investigation, exclusive of any period of time during which a criminal investigation of the same conduct is ongoing.

With this decision, agencies have a reaffirmation by the Second District Court of Appeal of this principal and a clear standard to understand the ending of tolling in a context where both criminal and administrative investigations of a misconduct incident are involved: tolling under Section 3304(d)(2)(A) ends when a final determination is made not to prosecute all of the public safety officers implicated in the misconduct at issue.  That said, agencies will want to always ensure that administrative investigations are conducted with all due haste consistent with the paramount objective of ascertaining the truth of the matter regarding the alleged misconduct and taking appropriate action based on that determination.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] Government Code section 3300 et seq.

[2] Daugherty v. City and County of San Francisco, 24 Cal.App.5th 928, 958–959 (1st Dist. 2018).

[3] Coalition of Concerned Communities, Inc. v. City of Los Angeles, 34 Cal.4th 733, 737 (2004).

[4]  214 Cal. App. 4th 671 (2nd Dist. 2013).

 





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