Courtesy of James R. Touchstone, Esq. & Paul R. Coble, Esq.
As reported to you in an earlier Client Alert (Vol. 33 No. 23; July 27, 2018) the First District Court Appeal had held in Daugherty v. City and County of San Francisco, 24 Cal. App. 5th 928 (1st Dist. 2018) that disciplinary charges were timely where a senior officer aware of officer misconduct was not deemed “a person authorized to initiate an [administrative] investigation.” Alternatively, the Court also found timeliness applied where the statute of limitations period was tolled while said misconduct was also the “subject” of a related criminal investigation and prosecution.
The officers in Daugherty sought review of that decision by the California Supreme Court, or in the alternative, that the Court of Appeal decision be decertified for publication, which would have meant it could not be cited as legal precedent.
On September 12, 2018, the California Supreme Court acted to deny the petition for review of the decision by the Court of Appeal and denied the request for depublication. This disposes of this case and closes the door on further appellate review. The Court of Appeal decision as reported in our earlier Client Alert remains undisturbed and may be cited as legal precedent.
HOW THIS AFFECTS YOUR AGENCY
The wall SFPD imposed was not unique; other agencies separate a criminal section that handles criminal misconduct, from an administrative section, dealing only with officer discipline. This may occur as between separate units of the same Department, as here in San Francisco, or it may arise where the employing agency retains responsibility for the administrative investigation while an outside agency conducts the criminal investigation. Daugherty supports agencies that implement such policies to ensure confidentiality of information and integrity of evidence gleaned in investigations while comporting with POBRA’s disciplinary notice regulations. In order to more comfortably understand statute of limitation issues, agencies should be aware of the details of judicial determinations that assess who is a person “authorized to initiate an investigation,” and in which contexts they apply. Agencies should also examine existing internal polices in consultation with their legal counsel to ensure that the responsibility and authority for the initiation of an internal or administrative investigation into alleged police misconduct clearly and plainly address this issue.
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