POBRA STATUTE OF LIMITATIONS ACCRUAL DATE NOT APPLICABLE AT THE POINT IN TIME WHEN A SENIOR OFFICER, WHO WAS NOT A PERSON “AUTHORIZED TO INITIATE AN INVESTIGATION”, RECEIVED EVIDENCE OF MISCONDUCT

Courtesy of: James R. Touchstone, Esq. and Paul R. Coble, Esq.

In Daugherty v. City and County of San Francisco, 24 Cal. App. 5th 928 (1st Dist. 2018), published in July 2018, the California First District Court of Appeal found disciplinary charges were timely where a senior officer aware of officer misconduct was not deemed “a person authorized to initiate an 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 criminal investigation and prosecution.

Background

In 2011, a San Francisco public defender accused several San Francisco Police Department (“SFPD”) officers of criminal activities. The criminal unit of SFPD’s internal affairs division (“IAD-Crim”) began a criminal investigation in response.  SFPD’s internal affairs division is separated into two fully autonomous units, each with their own police lieutenants:  IAD-Crim and IAD-Admin. IAD-Crim handles investigations into potential criminal conduct by SFPD officers.  IAD-Admin is responsible for disciplinary investigations. In matters requiring confidentiality or to otherwise protect the integrity of an ongoing criminal investigation, SFPD typically prevents the dissemination of criminal evidence to disciplinary investigators (or to the rest of SFPD) by establishing a “wall” between IAD-Crim and IAD-Admin.

Ultimately, the United States Attorney’s Office (“USAO”) led the criminal investigation into the matter, assisted by select members of IAD-Crim.  At a June 2011 meeting, convened by the USAO and the FBI, IAD-Crim was represented by its supervising lieutenant Jerome DeFilippo and a few chosen members.  Also in attendance were the captain to whom DeFilippo reported, and her immediate superior, the Deputy Chief of Staff.  No IAD-Admin officers attended the meeting, nor ever became involved in or privy to the USAO-led criminal corruption investigation throughout its duration.

At the meeting, the deputy chief, on behalf of the SFPD, agreed USAO would lead the single investigation and that IAD-Crim officers would maintain confidentiality throughout the investigation. The USAO also required SFPD to designate the highest ranking officer who would be privy to investigatory information.  This designated person was not to disclose evidence to anyone of a higher rank, nor to anyone outside the group of investigators working on the case.

Lieutenant DeFilippo was chosen for this role.  IAD-Crim officers assigned to work on the USAO investigation under Lieutenant DeFilippo’s direction also were not permitted to disclose information about the investigation to anyone outside of the authorized group.  USAO also required IAD-Crim members and others to sign a nondisclosure agreement before they could become privy to the federal government’s evidence. DeFilippo was IAD-Crim’s supervising lieutenant from February 2011 to June 2013. He was succeeded by Lieutenant Michelle Jean, who supervised IAD-Crim from June 2013 to June 2015. Jean later testified she too was made aware of the confidentiality and nondisclosure expectations after she became IAD-Crim’s supervisory lieutenant.

Throughout the duration of the corruption investigation and prosecution, the federal entities had exclusive authority to direct the course of the investigation and decide what criminal charges to pursue and against whom.  All evidence discovered during the course of the USAO’s investigation belonged to the federal authorities, including that evidence encountered by IAD-Crim.

During the USAO-led investigation, search warrants of the cell phone records of former SFPD Sergeant Ian Furminger—the key figure in the corruption scheme—led to the December 2012 discovery of racist, sexist, homophobic, and anti-Semitic text messages between Furminger and other SFPD officers. Furminger and a codefendant were ultimately convicted for conspiracy to commit theft, conspiracy against civil rights and wire fraud.  Three days after the verdict, on December 8, 2014, the USAO released the text messages to IAD-Admin.

After IAD-Admin completed its investigation of the text messages, the chief of police issued disciplinary charges against respondents here in April 2015.  One of the respondents, Rain Daugherty, filed a petition for writ of mandate and complaint for extraordinary relief, contending that the disciplinary charges were untimely and should consequently be rescinded. The remaining respondents joined in Daugherty’s petition.  The trial court granted the writ petition and complaint, finding the one-year statute of limitations began to accrue in December 2012 when the misconduct was discovered, and thus, the investigation of respondents’ misconduct was not completed in a timely manner.

Discussion

After deciding that the trial court judge’s order could be appealed and that the trial court had proper jurisdiction to consider the petition, the California First District Court of Appeal turned to consideration of the statute of limitation issue.

The Court explained that under the Public Safety Officers Procedural Bill of Rights Act[1] (“POBRA”), “no punitive action may be taken against a public safety officer for any alleged act, omission, or other misconduct unless the investigation is completed within one year of ‘the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct,’ subject to certain statutory exceptions. ([Gov. Code section] 3304, subd. (d)(1).) One such exception provides that the one-year time period is tolled while the act, omission, or other alleged misconduct is also the ‘subject’ of a pending criminal investigation or prosecution. (Id., subd. (d)(2)(A).)” The Court observed that where evidence of misconduct arose in a criminal case, the Legislature intended that section 3304, subdivision (d), govern the statute of limitations’ accrual date and any applicable tolling periods.

Respondents argued that IAD-Crim’s supervisory lieutenant DeFilippo was a “person authorized to initiate an investigation” well before the text messages were released by the USAO because he was a superior officer who learned of the texts in December 2012 as part of the criminal investigation. The Court disagreed, determining that the statutory language of Section 3304(d) linked accrual of the statute of limitations to the time when someone authorized to initiate an investigation discovered the relevant information.  The Court found that the power to designate persons authorized to initiate disciplinary investigations belonged to the law enforcement agency, and here, SFPD designated IAD-Admin officers as authorized to initiate investigations of misconduct by SFPD officers.  The Court found that respondents’ citation of Jackson v. City of Los Angeles[2] actually supported appellants’ contention that courts should apply an agency’s designation of who is authorized to initiate investigations for purposes of POBRA.  IAD-Admin learned of the text messages in December 2014. Further, the SFPD had implemented a consistent policy of a “wall” between the two units where concerns of confidentiality and investigatory integrity arose.

Respondents also contended that SFPD’s General Order 1.06 provided authority to officers outside of IAD-Admin, including Lieutenant DeFilippo, to initiate investigations of misconduct. The Court explained that General Order 1.06 explains the duties and responsibilities of superior and commanding officers. It requires a “superior officer” to “[p]romptly report in writing any misconduct by subordinates and forward the report to their superiors.” Section I.A.4.a provides that any superior officer who becomes aware of possible misconduct by any member of his/her unit must notify the “senior-ranking officer” on duty at the unit and this senior-ranking officer shall “[r]emain personally responsible for the conduct of the matter until relieved of responsibility” and “[c]onduct an administrative investigation.” However, the Court found no evidence that the respondents were in DeFilippo’s unit, nor did respondents ever contend that they were.

As to misconduct found of officers in other units, General Order 1.06 provides: “When a superior officer becomes aware of possible misconduct by any member assigned to another unit, he/she shall … [¶] … [i]mmediately notify the senior-ranking officer on duty at the member’s unit.  If the unit is closed, the commanding officer of the unit shall be notified at any time day or night. [¶] … The senior-ranking officer or commanding officer (as appropriate) shall be responsible for performing the steps outlined in Section a. above,” including the portion regarding the administrative investigation.

The Court determined that General Order 1.06 provided that, where alleged misconduct pertained to members of units other than Lieutenant DeFilippo’s, he was required to “notify” the senior-ranking officers of those members’ units and “report” the misconduct to his superiors, leaving the investigation of the misconduct to the affected senior-ranking officer or commanding officer of those other unit(s). The Court thus found that Lieutenant DeFilippo and, after her succession to IAD-Crim in June 2013, Lieutenant Jean, were not authorized to initiate an investigation into respondents’ text messaging misconduct in December 2012.

In addition, the Court found that, even if it accepted respondents’ contention that Lieutenant DeFilippo possessed the authority to initiate a POBRA investigation by reporting the text messaging misconduct pursuant to General Order 1.06, that authority was revoked when SFPD agreed to the confidentiality restrictions imposed by the USAO for its corruption investigation. The Court noted that SFPD’s command staff agreed to the USAO’s requirement that IAD-Crim officers assisting in the corruption investigation would maintain confidentiality throughout the investigation and DeFilippo was designated as the gatekeeper in this regard, long before the text messages were discovered.  Moreover, the text messages belonged to the federal corruption investigation and remained subject to a federal protective order in the Furminger case.  The USAO had mandated that “no violation of these confidentiality obligations would be tolerated,” and DeFilippo testified that USAO actually threatened to charge him if he released any information. The Court noted that the discovered text message evidence belonged to the federal investigation and were subject to a federal protective order that restricted their disclosure and use. The Court explained that it was not for DeFilippo or the SFPD to decide when the restriction no longer applied.

The First District thus concluded that the trial court erred in finding that the statute of limitations accrued in December 2012, when IAD-Crim, as part of the investigation headed by the USAO, learned of the text messages.  December 2014 was the correct accrual date because that was when IAD-Admin received the text message records from the USAO and IAD-Crim. After receiving this information, IAD-Admin completed its investigation within five months and served disciplinary notices, well within the one-year period required by POBRA. Therefore, the Court concluded that respondents were timely notified of the proposed discipline by persons actually authorized to initiate the pertinent administrative investigations.

While its conclusions sufficiently supported reversal of the trial court’s ruling, the Court of Appeal next offered an alternate analysis supporting reversal.

Alternate Basis Supporting Timeliness of Disciplinary Charges

POBRA’s Section 3304, subdivision (d)(2)(A), provides, “If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the one-year time period.” Citing Parra v. City and County of San Francisco[3] and Lucio v. City of Los Angeles[4] as relevant cases, the Court determined that respondents’ text messaging misconduct was a “subject” of the criminal investigation and prosecution within the meaning of section 3304(d)(2)(A).

The Court noted that the Furminger case was a criminal conspiracy case and the text messages were a critical investigative tool to aid in this effort because the investigators knew that Furminger, the central figure in the corruption scheme, conducted criminal activity using texts. Respondents’ text messages were obtained through search warrants of Furminger’s cell phone, and corruption investigators examined the text messages obtained by the search warrants for evidence of Furminger’s relationships, associates and accomplices. The Court observed that the tolling provision of Section 3304(d)(2)(A) focused on conduct and that respondents’ comfort level with Furminger as exhibited in the offensive language in their texts suggested the reasonable possibility that respondents were willing to engage in criminal conduct with Furminger. Essentially, the Court determined that though the text message misconduct was not the specific criminal action, it was nevertheless “also the subject” of a criminal investigation or prosecution.

Having concluded the text messaging misconduct was also a “subject” of a criminal investigation as per Section 3304(d)(2)(A), the Court thus found that the limitations period was tolled after the indictments and until the Furminger verdict. This was the period between December 2012, when IAD-Crim officers discovered the offensive text messages, and December 2014, when Furminger’s trial ended.  At that point, tolling also ended, about two years in duration.  Respondents were notified of the disciplinary charges by April 2015, well within one year of the Furminger verdict. The Court concluded Section 3304(d)(2)(A)’s tolling provision provide an alternative basis for finding that the disciplinary charges were timely.

Because either line of analysis supported reversal, the Court accordingly reversed and remanded the decision to the trial court.

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.

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

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] Gov. Code, section 3300 et seq.

[2] 111 Cal.App.4th 899 (2nd Dist. 2003).

[3] 144 Cal.App.4th 977 (1st Dist. 2006).

[4] 169 Cal.App.4th 793 (2nd Dist. 2008).





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