Peace officer improperly ordered subordinate to work overtime, investigation finds
Permanent civil service employees were entitled to not only pre-discipline but also post-discipline procedural rights, including the rights to request an administrative hearing and to pursue discovery to inspect documents and to interview witnesses, a recent ruling said.
The plaintiff in the case of Garcia v. State Department of Developmental Services et al. was a sergeant for the State Department of Developmental Services. An investigation of the Office of Law Enforcement Support (OLES) found that he committed overtime manipulation and various acts of misconduct. He allegedly:
- asked another sergeant if a gay coworker was his boyfriend and if the sergeant would perform oral sex on him in February 2018
- told a subordinate officer to get out and to inspect a car accident and later improperly ordered the officer to work overtime in May 2018
- argued with another sergeant and told him he would ensure that the sergeant would not get any overtime and would “cut his throat on overtime” even “if his kids starve” in May 2018
- used his work computer for nonwork purposes, including downloading and viewing images and videos between June 2017 and June 2018
- took photographs of workplace items, including a work schedule, without authority or a legitimate reason in June 2018
In April 2019, the department issued the plaintiff a notice of adverse action stating that it would terminate him. It released him from employment in May 2019. He appealed the department’s decision. The department withdrew its adverse action and reinstated him as sergeant.
In September 2019, the department issued the plaintiff a second notice of adverse action, which said that it would demote him from a sergeant to an officer in October 2019. He appealed and filed a motion to dismiss the department’s adverse action.
The plaintiff argued that the one-year limitation period in section 3304(d)(1) of California’s Government Code barred the department’s adverse action. He asserted that, because the department asked the OLES to investigate his alleged overtime misconduct in May 2018, the department needed to serve its notice of adverse action within a year from then.
The State Personnel Board mostly disagreed with the plaintiff’s argument, which prompted him to file a petition. The trial court denied the petition and issued judgment in the department’s favor.
The plaintiff appealed. He argued that the limitation period started to run on all acts of misconduct once the department initiated an investigation into any of these acts. His employer asserted that the limitation period began to run on an act of misconduct only once it discovered that particular act.
Court takes employer’s side
The trial court and the California Court of Appeal for the Third District agreed with the employer’s interpretation of section 3304(d)(1).
The section clearly stated that the limitation period for an act of misconduct started to run on the date that the department discovered the misconduct, not the date that it initiated an investigation, the appellate court said. Under the section, the court should consider each act of misconduct separately to determine the date that the agency discovered the misconduct.
The appellate court rejected the plaintiff’s argument that it was overly difficult for peace officers to obtain evidence in adverse employment actions. After his demotion, the plaintiff exercised some rights afforded to permanent civil service employees, including his right to an administrative hearing, the appellate court noted.
