Thursday, June 28, 2018

First Appellate District Allows SFPD to Circumvent Govt Code 3304(d) by Disciplining Officer for Acts Committed In December of 2012

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.