On November 13, 2014, the Third Appellate District in Earl v. State Personnel Board held that the notice of intended discipline required to be given to a public safety officer under Government Code Section 3304(d) must actually be provided to the officer within the one-year statute of limitations.
Subject to certain exceptions, Government Code Section 3304(d) states that no punitive action or denial of promotion against a peace officer may be taken if the investigation of the misconduct is not completed within one year. Under this section of the Public Safety Officers Procedural Bill of Rights Act (“POBRA”), the one-year statute of limitations is triggered by the date “of the public agency’s discovery by a person authorized to initiate an investigation of the allegation.…” Plus, if a public safety department determines that disciplinary action will be taken, it must complete its investigation and “notify the public safety officer of its proposed discipline by a Letter of Intent or Notice of Adverse Action articulating the discipline that year.” However, the department is not required to impose the discipline within that one-year period.
In the Earl case, on May 27, 2009, the California Department of Corrections and Rehabilitation learned that one of its parole agents, Baron Earl, engaged in potential misconduct when the Department discovered at a hearing regarding another employee that Earl may have conducted an unlawful search of a residence. On May 27, 2010, after having completed an investigation and sustaining findings of misconduct, Earl was served, by certified mail, with a notice of intent to discipline him. He received the notice of intent more than one year after the Department learned of the potential misconduct. At his administrative hearing appealing the discipline, Earl argued that the notice he received was inadequate, as he received it late. This argument was rejected, and his discipline was upheld. Earl next filed an administrative mandamus petition making the same argument, and the petition was denied by the trial court.
Earl then appealed to the Court of Appeal and argued that he was entitled to “actual notice” of the contents of the notice of intent within one year of the date of discovery; not service by mail that was received after the one-year date of discovery. The Court of Appeal agreed.
On appeal, Earl argued that although civil service laws contained in the Government Code allow for serving notices of disciplinary action by personal service or by mail, peace officers are subject to an entirely separate statute, the POBRA, which requires actual notice, not constructive notice such as by mail. Earl argues that basic principles of statutory construction provide that a statute that is silent as to the manner in which notice must be given contemplates personal service of said notice. The Department of Corrections argued that the word “notify” in Section 3304(d) of POBRA allows for either actual or constructive notice.
The Court of Appeal relies on its 2007 decision in Hoschler v. Sacramento City Unified School District to hold that Section 3304(d) of the POBRA requires actual service of the notice of intent to discipline a peace officer within the relevant one-year statute of limitations. In Hoschler, the Court of Appeal interpreted a provision of the Education Code which provided that a probationary teacher would be reelected and ultimately achieve tenure unless timely notified of non-reelection by March 15. The School District had sent notice of non-reelection to a teacher by certified mail on March 12, and there was no evidence that the teacher evaded picking up his mail. In Hoschler, the Court of Appeal held that where a statute is silent as to the method of notice, then personal service or some other method equivalent to imparting actual notice is required.
The Court of Appeal applies the same interpretive rule to Section 3304(d) in the Earl case and holds that service by mail as perfected by the Department was not adequate because he did not get actual notice of the contents of the notice of intent for discipline within one year of the date of discovery.
The Court of Appeal also states that Earl is not a case of willful evasion of notice, and concludes that the issue of evasion is thus not before it. In a footnote, it cites to Sullivan v. Centinela Valley Union High School Dist. (2011), a case where a School District hired a probationary teacher for the 2006-2007 school year and reemployed him for the 2007-2008 school year. On March 10, 2008, the District’s human resources director told Sullivan that the District had decided not to recommend his reelection for the following school year and that he could resign in lieu of being non-reelected. Sullivan called in sick on March 11 and 12. On March 13, the District’s governing board approved Sullivan’s non-reelection against the wishes expressed by Sullivan’s attorney during the public comments portion of the board meeting. On March 14, Sullivan called in sick. On March 15, the District personally delivered a non-reelection notice to Sullivan’s home address of record and, because Sullivan was not home for the entire day on March 15, another resident accepted the letter on Sullivan’s behalf. On March 16, Sullivan returned home and read the non-reelection notice, one day after the deadline to get notice of non-reelection. Sullivan challenged his non-reelection and sought a court order compelling the School District to reinstate him because the District was one day late in serving him with the non-reelection notice.
Sullivan clarifies how a non-reelection notice may be properly served in light of the Hoschler decision. In Sullivan, the court held that Mr. Sullivan had actual notice of his non-reelection, as required by Hoschler, i.e., before March 15. The Court found that substantial evidence existed to reasonably infer that Sullivan was evading attempts to personally serve the non-reelection notice, and held that the District’s failure to personally serve him under such circumstances was excusable. Importantly, the court found that Sullivan had actual notice that the board would not reelect him for the following school year on March 10, when the District’s human resources director gave Sullivan the option of resigning in lieu of being non-reelected by the board. The court further found that Sullivan’s actual knowledge of his non-reelection was evidenced by his attempts to avoid personal service of the notice.
The Earl Court’s citation to Sullivan is significant, as it leaves the door open for law enforcement departments to make arguments for other forms of service, such as certified mail to be received before the expiration of the one-year statutory period. This is the case especially where there is evidence of a peace officer evading personal service of a notice of intent for discipline. However, every effort should be made to complete the investigation and draft the notice of intent for discipline in a fashion to allow time for personal service. Further, if there is evidence that a peace officer is evading service, then that should be documented and service in some way other than personal service that provides the officer with actual notice of the intention to discipline should be effectuated before the expiration of the one-year statutory time limit.