On May 24, 2016, the
Third District Court of Appeal held the one-year statute of limitations under
the Public Safety Officers Bill of Rights Act (“POBRA”) is tolled when a
law enforcement agency conducts its own criminal investigation. (Department of Corrections and Rehabilitation v. State Personnel Board (Shiekh Iqbal)(May 24, 2016, No. C073865.)
Under POBRA, employers
cannot take punitive action for investigations not completed within one year,
except under certain circumstances. One such circumstance is that the statute of
limitations is tolled while a criminal investigation into the same conduct by
the same employee is ongoing. The question before the court was whether the
statutory tolling of the limitations for “criminal investigations” applied when
the agency conducts its own investigation, rather than having it done by an independent
agency.
The court determined the language of the statute was clear and
placed no restriction on who conducts
the criminal investigation. The court dismissed a State Personnel Board
decision that reached the opposite conclusion, finding the Board has misapplied prior case law. Looking to Legislative intent, the court reasoned that the
Legislature knew there could be abuses by law enforcement employers who were
conducting criminal and internal affairs investigations of their employees
which is why it qualified the criminal investigation exemption provision with
the language that the investigation had to be “concerned solely and directly with alleged criminal activities.”
Ultimately,
the court held the defendant was arguing a factual issue on whether the employer
was conducting a criminal investigation only to toll the statute of limitations.
The court found the allegation of delay had no traction because the Notice of
Adverse Action (“NAA”) was served only three days past the one-year limitations
period expired. Regardless, the court stated the limitations period had been
tolled for the entire criminal investigation, and thus, the NAA was timely.
