firm victories

LCW Partner Jennifer Rosner Wins Published POBRA Decision -- Unsubstantiated Rumors Do Not Start The One-Year Period For Completing An Internal Investigation.

LCW Partner Jennifer Rosner secured an appellate victory in a peace officer termination case. A captain in a sheriff’s department challenged his termination by claiming a violation of the Police Officers Bill of Rights Act’s (POBRA) one-year statute of limitations for conducting an investigation. Jennifer’s victory resulted in a published decision of the California Court of Appeal.

The captain had been a county employee for approximately 22 years. In around April of 2016, the chief learned of a rumored intimate relationship involving the captain and a female deputy. In May 20, 2016, the chief learned of another alleged relationship between the captain and a second female deputy. A personnel investigation then revealed the captain had maintained multiple sexual relationships with female employees in violation of department policy and general orders.

On June 3, 2016, the captain received written notice that he was the subject of an administrative internal affairs investigation into allegations that he had inappropriate relationships with other department employees/ subordinates. A detailed report, dated April 10, 2017, sustained allegations of the captain’s improper conduct. That same day, the captain received a notice of intent to terminate, and he was terminated on April 25, 2017. The captain lost his subsequent administrative appeal, and filed a petition for writ in the superior court to overturn his termination. The superior court denied the petition and agreed with the hearing officer’s finding that there was sufficient evidence to substantiate the captain’s misconduct. The court found no POBRA violations.

The captain appealed the superior court’s ruling. On appeal, the captain alleged only that the Department violated his POBRA rights by failing to complete its internal investigation within one year of the discovery of his improper conduct. The POBRA contains a statute of limitations at Government Code section 3304, which states that “no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.”

The captain alleged that the chief should have known of his improper conduct earlier because his sexual relationships with subordinates were the subject of the department’s “rumor mill”. The captain claimed “there were at least a half-dozen supervisors and senior officers who were aware of allegations of misconduct involving [the captain] prior to April 10, 2016, all of whom could have, like [the chief], initiated a complaint inquiry.”

The Court of Appeal rejected this argument and held that the POBRA statute of limitations does not begin based on mere rumors, but only after a department determines that actionable misconduct occurred. Here, the captain failed to: identify a single individual who was “authorized to initiate” an investigation; or demonstrate that the public agency had determined that discipline should be taken prior to May 2016.

The Court of Appeal declined to “promote a policy of launching into the intimidate relationships of public safety officers on the basis of mere rumors.” The Court noted that an internal affairs investigation can have a devastating impact on the career of a public safety officer, and “should only be initiated when the officer authorized to initiate an investigation knows or has reason to know that the conduct involves actionable misconduct” and not “on the basis of unsubstantiated rumors.”

Shouse v. County of Riverside, 84 Cal.App.5th 1080 (2022, rev. denied 2/1/23).

LCW Partner Danny Yoo And Associate Aleena Hashmi Won The Early Dismissal Of A Disability Discrimination Lawsuit.

An LCW team led by Partner Danny Yoo and Associate Aleena Hashmi won the dismissal of a lawsuit against a special district client. When a lawsuit is filed, the entity being sued has options. One option is for the entity to answer the complaint to tell its side of the story and to assert affirmative defenses, which would shield the entity from liability even if some of the facts of the complaint are true. Another option is to file a demurrer, which asserts that even if all the allegations in the lawsuit are true, there is still no cause of action. The latter option is very challenging. Even if a court grants the entity’s demurrer, the court usually gives the person suing an opportunity to try again to file a successful lawsuit.

LCW attorneys Danny and Aleena took the more challenging option and won. First, they met and conferred with the former employee who had been separated from his employment at a special district because of the district’s inability to accommodate his disability. After many communications, the former employee’s legal counsel agreed to drop some discrimination claims and a claim for wrongful termination in violation of public policy.

Second, Danny and Aleena filed a demurrer as to the remaining claims for disability discrimination and failure to prevent discrimination. They argued that the employee pursued an administrative appeal of his separation, but then failed to challenge the special district’s administrative hearing decision upholding the separation. Because the finding in the special district’s administrative decision was that the employee could not perform the essential functions of his job with or without accommodation, the employee’s failure to timely challenge that administrative decision meant that the employee was prevented from litigating these same claims in court.

The court granted the demurrer and dismissed the lawsuit because there was no judicial avenue for the employee to challenge his separation. Our special district client benefitted from this strategy because the litigation ended before the time-consuming discovery or trial could begin.

LCW Partner Jennifer Rosner And Associate La Rita Turner Convinced An Arbitrator To Sustain A Termination Of Peace Officer Who Could Not Carry A Firearm.

Partner Jennifer Rosner and Associate La Rita Turner successfully convinced an arbitrator to sustain the termination of a peace officer. Throughout April and May of 2019, a city police officer had repeated law enforcement contacts arising out of domestic violence involving the mother of the officer’s child. The officer failed to report one of those incidents to the Department as required. The mother of the officer’s child came to the station to file a complaint that alleged the officer harassed her by continuously calling and texting her hateful and abusive messages.

The officer admitted to texting and calling, but claimed his communications were about seeing their daughter. The officer’s supervisor stated excessively texting or calling could be committing a crime under Penal Code 653m, and recommended the officer cease such conduct. He also reminded the officer that peace officers are held to a higher standard, which the officer claimed not to have known. Shortly thereafter, the officer texted his supervisor an explicit photograph of him and the mother of his child having sex.

On June 17, 2019, the woman sought and received a Temporary Restraining Order (TRO) for Domestic Violence against the officer. She sought and received a second TRO on November 19, 2019, after the first had expired. As part of the TRO, the Court ordered the officer to surrender his firearm. Due to the continuous harassment, the Court granted a Permanent Restraining Order against the officer on January 17, 2020. A condition of the permanent restraining order was that the officer could not own or possess a firearm for two years.

The City terminated the officer for: his failure to report one law enforcement contact; the inappropriate sexting exchange with his supervisor; and his inability to meet a primary requirement of his job: owning a firearm.

The arbitrator sustained the termination, noting that in addition to the restriction on the firearm causing obvious just cause for dismissal, “[i]t is very unlikely that any law enforcement agency would hire or retain a person with [the officer’s] history of domestic disturbance and domestic violence. It is obvious that police officers are mandated to enforce the law; and officers cannot violate the same laws that they are required to enforce. That is absolutely unacceptable.”

To view these articles and the most recent attorney-authored articles, please visit: www.lcwlegal.com/news • Quoted in Law360, LCW Partner Shelline Bennett speaks on the unionization efforts of Amazon warehouse workers. With regard to strategy, Shelline states, "The national and the bigger unions have so much in [their] playbook that is beneficial to organizing." Amazon employees departing from that playbook "are walking away, potentially, from all of that history and experience and ability to organize in a much more aggressive manner."