California Police Chief- Fall 2013 CPCA_2018_Winter Magazine-FINAL | Page 8

LEGAL
The Statute of Limitations
Under the POBRA
– TWO SIGNIFICANT CASES –
By James Touchstone, General Counsel for California Police Chiefs Association
The issue of when the statute of limitations begins to run for potential disciplinary action
under the Public Safety Officers Bill of Rights Act (“POBRA”) is an issue that has been, and
continues to be, the subject of considerable litigation. This area of the law, along with the
contours of applicable tolling provisions of the POBRA, continues to develop. Two recent
decisions from the courts of appeal have further clarified the law in this area of critical
importance to law enforcement management executives.
Daugherty v. City and County of San Francisco, 24 Cal. App. 5th 928
(2018) - published in July 2018
1
In Daugherty, the California First District Court of
Appeal determined that disciplinary charges were timely
against several officers related to offensive texts discovered
during the course of a criminal investigation. The facts of
Daugherty are significant. 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-Ad-
min. IAD-Crim handles investigations into potential crim-
inal conduct by SFPD officers. IAD-Admin is responsible
for disciplinary investigations. SFPD typically prevents the
dissemination of criminal evidence to disciplinary inves-
tigators by establishing a “wall” between IAD-Crim and
IAD-Admin.
Ultimately, the United States Attorney’s Office
(“USAO”) led a criminal investigation into the matter. No
IAD-Admin officers ever became involved in or privy to
8
California Police Chief | www.californiapolicechiefs.org
the USAO-led criminal corruption investigation. IAD-Crim
officers were required to maintain all information and evi-
dence as confidential. The federal entities had exclusive au-
thority to direct the course of the investigation and decide
what criminal charges to pursue and against whom.
During the USAO-led investigation, search warrants
of the cell phone records of the key figure in the corruption
scheme led to the December 2012 discovery of racist, sexist,
homophobic, and anti-Semitic text messages between the
main suspect and other SFPD officers. The main suspect
and a codefendant ultimately were convicted for conspira-
cy 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 several officers in April 2015. The officers
contended that the disciplinary charges were untimely and
should be rescinded. The trial court found the one-year
statute of limitations began to accrue in December 2012
when the misconduct initially was discovered by IAD-
Crim, and thus, the discipline was untimely.