On
May 5, 2018, the First Appellate District of California issued the now published decision in Daugherty v. City and Countyof San Francisco. This widely publicized case arose out of the criminal investigation
of San Francisco Police Department (SFPD) Sergeant Ian Furminger. The United
States Attorney’s Office (USAO) conducted this investigation with the assistance
of selected members of the criminal unit of SFPD’s Internal Affairs Division
(IAD-Crim). The SFPD Internal Affairs Division is separated into two units: IAD-Crim
investigates potential criminal conduct by SFPD officers, while disciplinary
investigations are handled by IAD-Admin. SFPD imposes a “wall” between these
two departments in order to protect evidence in criminal investigations. In the
Furminger investigation, the USAO further required confidentiality and required
IAD-Crim officers to sign nondisclosure agreements.
In
December 2012, the investigation led to the discovery of racist, sexist,
homophobic, and anti-Semitic text messages between Furminger and nine other
SFPD officers. IAD-Crim brought these text messages to the attention of
Lieutenant DeFilippo. In order to maintain confidentiality, USAO and the
Lieutenant chose not to disclose the text messages to IAD-Admin at this time. On
December 5, 2014, a federal jury convicted Furminger. Three days after the
final verdict, the USAO lifted the confidentiality restriction and released the
text messages to IAD-Admin. IAD-Admin conducted an investigation and issued
disciplinary charges against respondents in April 2015.
Rain
O. Daugherty filed a writ of mandate seeking to rescind the disciplinary
charges on the grounds that they were untimely and in violation of the Public
Safety Officers Procedural Bill of Rights (“POBRA”). Under 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 “of the public agency’s discovery by a person authorized to
initiate an investigation of the allegation of an act, omissions, or other
misconduct,” subject to certain statutory exceptions. 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.
The
City of San Francisco argued that Lieutenant DeFilippo was not a “person
authorized to initiate an investigation” because it is SFPD’s policy that only
IAD-Admin was authorized to initiate disciplinary investigations of SFPD
officers. Accordingly, the City argued that the statute did not accrue until
the text messages were released to IAD-Admin in December 2014.
In
ruling for the City, the Appellate court stated that the details for
implementing various provisions of POBRA are to be formulated by the agency
itself. Based on this principle, the court held that law enforcement agencies
have latitude to designate “a person authorized to initiate an investigation”
and courts should apply the agency’s designation in determining when the
limitations period begins to run. Applying SFPD’s designation, the court
determined the statute of limitations did not begin to accrue until December
2014, when the text messages were turned over to IAD-Admin. The Court also found that the one-year statute of
limitations was tolled during the criminal investigation because “tolling
applies to any conduct with a clear connection to the criminal investigation.”
Although other courts have supported a more expansive view "person[s] authorized to initiate an investigation", this Opinion undermines the legislative intent of 3304(d) to provide peace officers a speedy adjudications of disciplinary actions by inviting agencies to narrowly define those authorized to initiate investigations. Under Daugherty, high ranking police managers can avoid their duty to act promptly upon being informed of alleged misconduct. As job security and disciplinary appeal rights remain squarely within the scope of representation, labor representatives should demand to meet and confer over any proposed policy changes narrowing the persons authorized to initiate investigations.
Although other courts have supported a more expansive view "person[s] authorized to initiate an investigation", this Opinion undermines the legislative intent of 3304(d) to provide peace officers a speedy adjudications of disciplinary actions by inviting agencies to narrowly define those authorized to initiate investigations. Under Daugherty, high ranking police managers can avoid their duty to act promptly upon being informed of alleged misconduct. As job security and disciplinary appeal rights remain squarely within the scope of representation, labor representatives should demand to meet and confer over any proposed policy changes narrowing the persons authorized to initiate investigations.
