LEGAL UPDATE

FEDERAL COURT REJECTS “ADVISORY ARBITRATION” AS VIOLATION OF FUNDAMENTAL FAIRNESS

Former Rocklin police sergeant Rick Eaton sued the City and its police chief and city manager in federal court for having fired him in violation of his civil rights and in retaliation for whistleblowing. He previously was unsuccessful in an advisory arbitration appeal from termination involving similar claims.

The defendants – Rocklin, Chief of Police Mark Siemens, and City Manager Carlos Urrutia – moved to dismiss Eaton’s lawsuit based on the general rule a terminated public employee cannot sue for civil damages involving any claim that was decided against him in his due process appeal from termination. The rule, known as “claim preclusion,” means a public employee cannot sue her employer for wrongful termination or other civil rights violations if the local administrative proceeding rejected those same claims in a final and binding quasi-judicial process. In Eaton’s case, however, the arbitration was “advisory” to the city manager. When the arbitrator rendered his decision, the city manager was free to reject, modify or adopt the decision.

Ruling on the motion to dismiss, the federal district court found the city manager’s authority to reject the arbitrator’s recommendation meant the administrative decision did not meet the three “fairness requirements” necessary for “claim preclusion” to operate: “first, the administrative agency must act in a judicial capacity; second, the agency must resolve disputed issues of fact properly before it; and third, the parties must have had an adequate opportunity to litigate.” (Eaton v. Siemens (May 23, 2007) No. CIV. S-07-315 FCD KJM.) The court denied the motion to dismiss, allowing the lawsuit to go forward.

SUPREME COURT GRANTS REVIEW IN CASE INVOLVING DISMISSAL OF POLICE DISCIPLINE AS UNTIMELY UNDER POBR STATUTE OF LIMITATIONS

In a case involving a letter of reprimand imposed on a Los Angeles police sergeant, the California Supreme Court has granted review to determine whether the Second District Court of Appeal was correct in ruling the letter was imposed after the one year statute of limitations under Government Code section 3304(d) had run. (Mays v. City of Los Angeles (2006) 145 Cal.App.4th 932.)

Mays, the police sergeant, received a notice of proposed discipline on February 3, 2003, based on the loss of his police identification and badge in a burglary of his personal vehicle. The incident had occurred in July, 2001, well outside the POBR statute of limitations. The Department had not notified Mays of its original proposed discipline – demotion – within one year of the incident.

Government Code section 3304(d) provides, with some exceptions, that no punitive action may be imposed on a public safety officer unless the agency has proposed discipline within one year of learning of the alleged misconduct. Despite the one year statute of limitations having run, the LAPD chief of police issued a letter of reprimand to Mays. The City argued it could reprimand Mays because the reprimand had not been contemplated when the incident first was investigated. City and police department personnel regulations exempted letters of reprimand; however, the court ruled the POBR controlled over those rules and held the letter was untimely.

The California Supreme Court granted review in May to determine whether punitive action that is different than the proposed discipline may be levied after the statute of limitations has expired.

COURT OF APPEAL IMPOSES PUBLIC ENTITY CLAIM REQUIREMENT IN POBR ACTIONS

In Lozada v. City and County of San Francisco (December 18, 2006) 145 Cal.App.4th 1139, the First District Court of Appeal held, in a case of first impression, that a public safety officer’s claims for damages and civil penalties under Government Code section 3309.5 may be barred if the officer fails to file a public entity claim before filing a petition for writ of mandate under the statute.

Generally, actions for specific or equitable relief generally are exempt from the Government Claims Act. (Eureka Teacher’s Assn. v. Board of Education (1988) 202 Cal.App.3d 469, 475.) In Lozada, however, the First District Court of Appeal held claims for actual damages and civil penalties under Government Code section 3309.5 are subject to the Government Claims Act where those damages are “more than incidental” to the extraordinary relief sought.

Lozada, a San Francisco police officer, filed a petition for writ of mandate seeking money damages and civil penalties of over $325,000 for alleged violations of the Act even though he had not suffered punitive action involving a loss of pay. Comparing Lozada’s case to claims brought under other state civil rights statutes, the court held the officer was required to file a claim against the public entity as a condition precedent to filing a lawsuit because his primary interest was money, not the injunctive or extraordinary relief authorized under the statute.

The Lozada court did not impose a requirement that every claim for monetary relief and civil penalties under Government Code section 3309.5 be preceded by a government tort claim. The court’s holding instead was limited to those cases where the primary relief sought was monetary rather than equitable or injunctive. “[A]n action for specific relief does not lose its exempt status solely because incidental money damages are sought.” (Lozada, supra, 145 Cal.App.4th at p. 1167.) Nonetheless, the best practice is to file a tort claim whenever there is a potential for damages and penalties under the POBR.