The opinion
Filed 5/24/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
DEPARTMENT OF CORRECTIONS AND C073865
REHABILITATION et al.,
(Super. Ct. No.
Plaintiffs and Respondents, 34201080000748CUWMGDS)
v.
STATE PERSONNEL BOARD,
Defendant;
SHIEKH IQBAL,
Real Party in Interest and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County,
Michael P. Kenny, Judge. Affirmed and remanded.
California Correctional Peace Officers Association, Daniel M. Lindsay, Janice R.
Shaw, and Aaron G. Cohen for Real Party in Interest and Appellant.
Department of Corrections and Rehabilitation, Stephen A. Jennings and
Christopher D. Howard for Plaintiffs and Respondents.
1
California Department of Corrections and Rehabilitation (CDCR) gave notice it
intended to discipline its employee, parole agent Shiekh Iqbal (real party in interest), for
unauthorized use of government resources to access criminal history information
concerning a third party. The State Personnel Board (SPB) revoked the discipline on
statute of limitations grounds under the Public Safety Officers Procedural Bill of Rights
Act (POBRA), Government Code section 3304. (Unless otherwise set forth, statutory
references that follow are to the Government Code.) SPB ruled that statutory tolling of
the limitations period for “criminal investigation” of misconduct did not apply because
CDCR conducted the criminal investigation itself, rather than have it done by an
independent agency. (§ 3304.)
Section 3304, subdivision (d) provides “(1) . . . [N]o punitive action . . . 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. . . . In the event that the public agency determines that discipline may be
taken, it shall 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, except as provided in paragraph (2). The public agency shall not be
required to impose the discipline within that one-year period.
“(2)(A) If the act, omission, or other allegation of misconduct is also the subject
of a criminal investigation or criminal prosecution, the time during which the criminal
investigation or criminal prosecution is pending shall toll the one-year time period. [¶]
...”
CDCR and its (former) Secretary Matthew Cate petitioned for administrative
mandamus. (Code Civ. Proc., § 1094.5.) The trial court granted the petition, ruling the
discipline was timely because the limitations period was tolled during CDCR’s internal
2
criminal investigation of the misconduct. Iqbal appeals, arguing we should defer to
SPB’s interpretation of the statute. SPB has elected not to file a brief in this appeal.
We conclude tolling applies, and the disciplinary action was timely. We affirm
the judgment remanding the case for SPB decision on the merits.
FACTS AND PROCEEDINGS
Iqbal has been employed as a CDCR Parole Agent since 1987 and has been
assigned to Alameda County since 1998. In the course of that assignment, he developed
a close working relationship with the Union City Police Department (UCPD) and would
often contact UCPD with work-related inquiries for criminal history information on
subjects through the California Law Enforcement Telecommunications System (CLETS)
or through the Alameda County Consolidated Records Information Management System.
On October 29, 2007, Iqbal contacted a UCPD dispatcher and asked her to check
criminal history information regarding a third party. The third party is not a parolee but
rather is a personal acquaintance of Iqbal. The dispatcher accessed CLETS and relayed
the results to Iqbal.
On an undetermined date in early 2008, CDCR’s Office of Internal Affairs (OIA)
became aware of allegations that Iqbal had accessed CLETS for personal purposes
unrelated to his job. OIA requested information from UCPD, which UCPD provided on
April 10, 2008.
On October 6, 2008, OIA assigned Senior Special Agent Mark Hoff to conduct a
criminal investigation of the matter.
On October 29, 2008, the Department of Justice (DOJ) requested information from
UCPD regarding “Possible CLETS Misuse,” stating DOJ had received a request to
determine if the third party had been inquired upon through CLETS for other than official
business.
3
On November 4, 2008, UCPD provided information about Iqbal’s CLETS access
in response to DOJ’s request.
On December 11, 2008, Hoff attempted to conduct an interview with Iqbal. (AR
311) Pursuant to the Investigative Interview Criminal Subject Memorandum, Iqbal was
told he was being interviewed for possible criminal conduct, and he was read his
Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].) Iqbal
chose to remain silent.
On December 15, 2008, Hoff completed the criminal investigation and submitted a
report to the Alameda County District Attorney’s Office (DA) for consideration of
criminal charges.
On December 15 or 18, 2008, Hoff met with a Deputy DA, a CDCR attorney, and
a representative from the Office of the Inspector General, Bureau of Independent Review.
The Deputy DA said there were chargeable misdemeanor offenses (Pen. Code, §§ 11143,
13304 [unauthorized receipt of state or local criminal history information from state or
local records]) but declined to prosecute because the one-year criminal statute of
limitations had elapsed.
Thus, Hoff “closed” the criminal investigation and “opened” an administrative
investigation to determine whether discipline was warranted.
On January 20, 2009, OIA gave Iqbal an Investigative Interview Administrative
Subject Memorandum, directing him to report for an interview in the administrative
inquiry.
On January 29, 2009, Iqbal appeared for the interview and was read the
Advisement of Rights Administrative Inquiry form, advising him this was an
administrative inquiry for which he did not have the right to refuse to answer questions,
and if he did refuse, his refusal would be grounds for adverse personnel action. He was
further advised that his answers to questions could not be used against him in any
criminal proceedings. In the recorded interview, Iqbal admitted he had signed an
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employee form setting forth the policy for accessing criminal justice information, but said
he did not remember having read it. He admitted he violated the policy by having UCPD
dispatch run an inquiry on the third party. But he claimed he did not think it was wrong
at the time he did it.
Iqbal stated he asked for the information because the third party had recently been
elected vice-president of the East Bay Islamic Society, of which Iqbal was president.
Several years earlier, the third party had said something suggesting he had a criminal
history. Iqbal claimed he was concerned about the organization’s funds and that his
employment as a parole agent might be jeopardized by association with a criminal.
CDCR determined discipline was warranted and served Iqbal with Notice of
Adverse Action to reduce his salary by five percent for one year pursuant to Government
Code section 19574 for failure of good behavior and other grounds, including violation of
Penal Code sections 502 and 13304 (causing unauthorized access of computer network
and unauthorized receipt of information obtained from a record), Government Code
section 19990 (engaging in activity inconsistent with job duties), and the regulatory Code
of Conduct and Code of Ethics. No proof of service appears in the record, but the Notice
was signed on April 16, 2009, and stated the penalty would go into effect on April 30,
2009 (though SPB decision indicated the notice was effective on April 24, 2009 and
therefore the notice was served no earlier than April 16 and no later than April 24, 2009).
Iqbal appealed to SPB and had a hearing before an administrative law judge
(ALJ) on March 1, 2010. In adopting the ALJ’s proposed decision in favor of Iqbal, SPB
adopted the ALJ’s application of a SPB precedential decision (Andrew Ruiz (2005) SPB
Dec. No. 05-03) that the tolling provision for criminal investigations applies only when
the investigation is one being conducted by an independent law enforcement agency other
than the appointing power. To interpret the tolling provision otherwise would allow an
appointing power to circumvent the one-year period by simply designating all
5
investigations as criminal investigations, and would defeat the purpose of the statute.
(Andrew Ruiz, supra, at p. 5.)
SPB found as factual matters that (1) the one-year limitations period began to run
no later than April 10, 2008, when OIA requested information about the incident from the
UCPD, and (2) CDCR served the Notice of Adverse Action “on or after April 16, 2009,
at least one year and six days” after the statute of limitations began to run. SPB,
considering the evidence in the light most favorable to CDCR “for purposes of this
discussion,” concluded the one-year period was tolled for three days (December 15th to
18th, 2008) while the District Attorney’s Office considered whether it would file criminal
charges. SPB accordingly concluded CDCR missed the deadline by three days.
CDCR filed a petition for writ of administrative mandamus in the trial court. SPB
made a formal appearance but did not submit a brief or argue the matter, which was
submitted on papers and oral argument by the attorneys representing CDCR and Iqbal.
The trial court ruled SPB’s interpretation of the statute -- that the tolling provision should
apply only to criminal investigations by an external agency -- was not supported by the
plain language of the statute and was incorrect as a matter of law. The court entered
judgment granting the writ petition and ordering a writ of mandate directing SPB to
vacate its decision that the limitations period had expired, reinstate the Notice of Adverse
Action, and conduct further proceedings on the merits of Iqbal’s administrative appeal.
Iqbal appeals from the trial court’s judgment.
DISCUSSION
I
Standard of Review
In reviewing a SPB decision on a petition for administrative mandamus, we stand
in the same shoes as the trial court, applying the substantial evidence rule. (California
Dept. of Corrections v. State Personnel Bd. (Henning) (2004) 121 Cal.App.4th 1601,
6
1611 (CDC-Henning).) We do not reweigh the evidence but instead indulge all
presumptions and resolve all conflicts in favor of the decision of SPB, which is an agency
of constitutional authority acting as an adjudicatory body to determine facts. (Ibid.;
Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1483, fn. 3 (Telish).) Insofar
as the appeal presents questions of law, our review is de novo. (CDC-Henning, supra, at
p. 1611.) The sole issue in this appeal is statutory interpretation of section 3304, which
presents a question of law subject to de novo review on appeal. (Department of
Corrections and Rehab. v. State Personnel Bd. (Moya) (2013) 215 Cal.App.4th 1101,
1106 (CDCR-Moya).)
II
CDCR’s Criminal Investigation Tolled the Limitations Period
Iqbal asks us to defer to SPB’s interpretation of the statute as stated in its
precedential case, Andrew Ruiz, supra, SPB Dec. No. 05-03, that tolling applies only to
criminal investigations conducted by outside agencies. However, SPB precedential
decisions are not binding on this court. (CDC-Henning, supra, 121 Cal.App.4th at
p. 1618.) “We respect but do not necessarily defer to SPB’s interpretations of the
governing statutes. [Citation.] . . . The judiciary takes ultimate responsibility for the
construction of statutes, although according great weight and respect to the administrative
construction such as is appropriate under the circumstances. [Citation.]” (Id. at p. 1611.)
“While we must generally consider and respect the Board’s interpretation of a statute
within its administrative jurisdiction, we are not bound by the Board’s interpretation nor
are we required to accord any deference to a clearly erroneous interpretation of an
unambiguous statute. [Citations.] The Board has no greater power than we do to graft a
nonexistent requirement into a statute.” (CDCR-Moya, supra, 215 Cal.App.4th at
p. 1108.)
7
In construing statutes, we begin by examining the statutory language, giving it its
usual and ordinary meaning and, if there is no ambiguity, we presume the lawmakers
meant what they said, and the plain meaning governs. (Mays v. City of Los Angeles
(2008) 43 Cal.4th 313, 321.) If the language is ambiguous, we may resort to extrinsic
sources and determine the construction that most closely comports with the lawmakers’
apparent intent, with a view to promoting the general purpose of the statute. (Ibid.)
As indicated, section 3304, subdivision (d), provides:
“(1) Except as provided in this subdivision . . . no punitive action . . . 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 . . . of
the allegation . . . . In the event that the public agency determines that discipline may be
taken, it shall 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, except as provided in paragraph (2). The public agency shall not be
required to impose the discipline within that one-year period.
“(2)(A) If the act, omission, or other allegation of misconduct is also the subject
of a criminal investigation or criminal prosecution, the time during which the criminal
investigation or criminal prosecution is pending shall toll the one-year time period. . . .”
The plain language of section 3304 imposes no restriction on who conducts the
criminal investigation. POBRA itself deals only with law enforcement employers, which
are presumably capable of conducting criminal investigations. While no ambiguity
appears, we must address the authority relied upon by Iqbal in his quest to inject the word
“external” into the criminal investigation language of the statute.
POBRA -- the stated purpose of which is to secure stable employer-employee
relations -- sets forth a list of basic rights and protections which must be afforded all
peace officers being investigated for misconduct by the public entities that employ them.
(§ 3301 [declaration of legislative intent]; Mays, supra, 43 Cal.4th at p. 320.) Section
8
3303 sets conditions on the conduct of interrogations when officers are under
investigation (as opposed to routine counseling), e.g., the time, location, and duration of
interrogations, right to have a representative present, etc. Section 3303 does not apply to
“an investigation concerned solely and directly with alleged criminal activities.” (§ 3303,
subd. (i), italics added.)
“If prior to or during the interrogation of a public safety officer it is deemed that
he or she may be charged with a criminal offense, he or she shall be immediately
informed of his or her constitutional rights,” including the right to remain silent. (§ 3303,
subd. (h); Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 827-829.) In an
administrative investigation, the officer has no right to remain silent, though any self-
incriminating statement cannot be used at a criminal proceeding, while refusal to answer
subjects the officer to disciplinary action for insubordination. (Lybarger, supra, at
p. 827.)
Section 3304 functions as a limitations period on investigations. (Mays, supra,
43 Cal.4th at p. 323 [limitations period is satisfied when employer gives notice that it
might take disciplinary action for specified misconduct, without specifying discipline].)
In enacting section 3304, subdivision (d), “the Legislature was focused upon preventing a
perceived lack of fairness caused by a drawn-out investigatory process -- and not with
requiring that officers receive notice of specific intended discipline at that early stage of
the process.” (Mays, supra, 43 Cal.4th at p. 324; italics omitted.)
In the case relied upon by Iqbal, Andrew Ruiz, supra, SPB Dec. No. 05-03, a
CDCR Chief Deputy Warden formally requested an Internal Affairs (Office of
Investigative Services or OIS) investigation into allegations that a correctional officer
fraudulently signed overtime sheets for work he did not perform. OIS reported to CDCR
when the criminal investigation was complete and referred the results to the District
Attorney for possible criminal prosecution. The District Attorney later determined the
information was insufficient and asked OIS to conduct a supplemental investigation,
9
which it did. The District Attorney’s Office concluded that, even with the supplemental
information, there was insufficient evidence to file criminal charges. The issue before
SPB was “Whether the one-year limitations period under Government Code section
3304(d) was tolled during the time that the Department [CDCR] conducted a criminal
investigation concerning the alleged misconduct, and/or when [CDCR] referred its
investigative findings to the District Attorney’s Office for review and possible criminal
prosecution[.]” (Id. SPB Dec. No. 05-03 at p. 2.) Ruiz argued tolling was inapplicable
because the criminal investigation was conducted by CDCR, and not by an outside,
independent entity. (Id. at p. 3.) SPB (ibid.) found no case law on point but took
guidance from Cal. Corr. Peace Officers Ass’n. v. Cal. (2000) 82 Cal.App.4th 294
(CCPOA).
In CCPOA, the Department of Corrections (CDC) and the DOJ together
investigated alleged criminal misconduct by state prison guards. (Id., supra,
82 Cal.App.4th at p. 299.) The guards sought and obtained a preliminary injunction
against both entities, constraining the manner in which the guards could be interrogated
to conform to protections afforded peace officers under section 3303 of POBRA. (Id. at
pp. 305-306.) The entities argued the statute was inapplicable because it applied only to
investigations by a peace officer’s employer, and the interrogations were being conducted
by DOJ. (Ibid.) The appellate court held the statutory protections applied because CDC
and DOJ “must be considered” to be acting together. (Id. at p. 307.) CDC did not merely
order the guards to cooperate with DOJ, but delivered them to DOJ interrogators,
threatened them with arrest or discipline if they asserted rights during the interrogations,
and prevented them from leaving the prison grounds until they had given statements.
(Ibid.)
In CCPOA, the two entities argued as an alternative that section 3303 was
inapplicable because subdivision (i) states the statute does not apply to “an investigation
concerned solely and directly with alleged criminal activities,” and section 3304 allows
10
an employer to order peace officers to cooperate with other agencies involved in criminal
investigations, under threat of penalty for insubordination. (CCPOA, supra,
82 Cal.App.4th at p. 307.) The appellate court agreed with the peace officers’ argument
that “If these provisions are not limited to investigations conducted by outside agencies
that are substantially independent of the employer . . . they would effectively defeat the
entire purpose of [POBRA]. . . . Almost every administrative investigation of alleged
misconduct could be recast as a criminal investigation to avoid the requirements of
[POBRA]. Thus, we agree that the criminal investigations referred to in subdivision (i)
of section 3303 and subdivision (a) of section 3304 must be ones conducted primarily by
outside agencies without significant active involvement or assistance by the employer.
[Fn. omitted.]” (CCPOA, supra, 82 Cal.App.4th at pp. 308-309.) In a footnote, the court
said, “We do not construe our opinion as materially obstructing the ability of the
employing agency to conduct a criminal investigation of its peace officer employees. It
is true that a law enforcement agency investigating its own peace officer employees
would have to provide the rights accorded by the Act -- i.e., notice of the nature of the
investigation and the identity of the interrogators, the right to record the interrogation,
admonishment of constitutional rights, and the right to representation -- but we do not
think that this requirement would materially impede meaningful investigation of
employees regarding criminal misconduct.” (Id. at p. 309, fn. 6.)
Applying CCPOA, SPB decided in Andrew Ruiz, supra, SPB Dec. No. 05-03, that
the criminal investigation tolling of the limitations period (§ 3304, subd. (d)) applies only
where the criminal investigation is conducted by an outside, independent investigative
entity, because otherwise any agency employing peace officers could avoid the one-year
limitations period by simply designating any investigation it conducts as a criminal
investigation. (Andrew Ruiz, supra, at p. 5.) SPB decided there was some tolling while
the District Attorney’s Office considered whether to file criminal charges, but there was
no tolling for the period when CDCR conducted a supplemental criminal investigation at
11
the express request of the District Attorney’s Office, because the supplemental
investigation was conducted by the employing agency rather than an independent entity.
(Andrew Ruiz, supra, SPB Dec. No. 05-03 at p. 6.) SPB concluded the disciplinary
action was untimely. (Id. at p. 7.)
The Andrew Ruiz decision misapplied CCPOA. The CCPOA court’s concern
about employers avoiding PROBRA’s protections, thus defeating the purpose of POBRA
by recasting investigations as criminal investigations arose because POBRA’s protective
conditions on interrogations simply do not apply at all to investigations that are “solely”
criminal. (§ 3303, subd. (i).) In contrast, tolling applies where the officer’s alleged
misconduct is “also” the subject of a criminal investigation. (§ 3304, subd. (d)(2)(A).)
Here, although CDCR did assert that it first conducted a “criminal” investigation and
closed that investigation before opening an “administrative” investigation, CDCR is not
claiming exemption from POBRA, and Iqbal makes no claim of any violation of section
3303.
SPB’s Andrew Ruiz decision and its cited authority, CCPOA, supra,
82 Cal.App.4th 294, have been criticized.
Van Winkle v. County of Ventura (2007) 158 Cal.App.4th 492, held that POBRA’s
protections for law enforcement officers who are the subjects of administrative
investigations “do not apply to officers subject to criminal investigations conducted by
their employers.” (Id. at p. 494.) Van Winkle first found the evidence did not support the
employee’s claim of a “sham” criminal investigation. (Id. at p. 498.) As concerns us
here, Van Winkle stated that CCPOA in dictum “concluded that section 3303, subdivision
(i), covers only nonemployer law enforcement agencies. But there is no language in the
Act which supports this interpretation. POBRA only applies to law enforcement
employers. (§ 3303, subd. (i).) There would be no need for the Legislature to have
added this provision to regulate the conduct of agencies that are not covered by the Act.
. . . [¶] If lawmakers had believed that law enforcement employers could not conduct
12
independent criminal investigations, or would fraudulently initiate them to undermine
POBRA, they would have excluded them from section 3303, subdivision (i), or they
would have applied POBRA to all employer investigations without exception. But they
did not do so for a good reason. They did not intend POBRA to limit or interfere with
legitimate criminal investigations, or to impede an ‘agency’s efforts to police itself.’
[Citation.]” (Van Winkle, supra, 158 Cal.App.4th at pp. 499-500.)
Van Winkle continued: “The court in CCPOA misinterpreted section 3303,
subdivision (i), and narrowed its scope. The statutory language regarding criminal
investigations does not limit the law enforcement agencies that may conduct those
investigations. Yet, the court assumed that it needed to alter section 3303, subdivision
(i), because it believed law enforcement employers will routinely violate POBRA. But
the court had no evidence to support its speculation that they would be scofflaws. Nor
did it have the authority to alter the legislative definition of the exempt investigations
without legislative guidance. [Citation.]
“The Legislature knew there could be abuses by law enforcement employers who
were conducting criminal and internal affairs investigations of their employees. That is
why it qualified the criminal investigation exemption provision with the language that the
investigation had to be ‘concerned solely and directly with alleged criminal activities.’
(§ 3303, subd. (i).) The County notes that the legislative history reflects that there was no
need to regulate purely criminal investigations. Officers have Miranda protections.
POBRA is designed to reform disciplinary investigations where officers are ordered by
their superiors or internal affairs departments to answer questions without those
protections. (§ 3303, subd. (h).)
“In CCPOA, the court apparently assumed that trial courts could not distinguish
between the types of investigations law enforcement employers conduct. But POBRA
allows officers to bring actions so that trial courts can make that determination.
[Citation.] Courts do in fact decide whether employer investigations fall within POBRA
13
as disciplinary interrogations or are exempt as routine inquiries. [Citation.] They are
able to determine whether routine questions ‘begin to shade into an investigation’
covered by POBRA. [Citation.] They also decide whether investigations are partly
criminal, and within POBRA, or solely criminal and exempt. [Citation.]” (Van Winkle,
supra, 158 Cal.App.4th at pp. 499-500.)
Van Winkle accordingly declined to follow CCPOA. (Ibid.)
Iqbal argues Van Winkle is distinguishable because there the sheriff’s department
had divided the duties: Its internal affairs unit conducted only administrative
investigations, and its “major crimes bureau” handled all criminal investigations. (Id.
158 Cal.App.4th at p. 495.) Iqbal incorrectly claims this point was critical to Van
Winkle’s rejection of CCPOA. Not so. Van Winkle discussed this point in concluding the
evidence did not support the employee’s claim of a “sham” criminal investigation. (Id. at
p. 498.) Van Winkle then turned to the employee’s contention that, even if the criminal
investigation was independent of the administrative investigation, POBRA applied
because the criminal investigation was conducted by agents of the employer -- the
contention for which the employee relied upon CCPOA. (Ibid.)
Here, Iqbal tries to turn a factual issue into a legal one, by arguing that CDCR’s
use of the same investigator to conduct first the criminal investigation and then the
administrative investigation, the latter of which used the information acquired during the
former, proves CCPOA was right about employers using criminal investigations as a
subterfuge to avoid the statute of limitations for disciplinary action. This is really a
factual allegation of a sham investigation unsupported by evidence. To the contrary, the
speculation that an employer might conduct a criminal investigation for the sole purpose
of delay has no traction in this case, where the Notice of Adverse Action was served a
mere three days past the one-year limitations period (taking into consideration the three-
day tolling found by SPB for the three days that the District Attorney’s Office considered
whether to file criminal charges).
14
CCPOA and SPB’s Andrew Ruiz decision were criticized in CDCR-Moya, supra,
215 Cal.App.4th 1101, which held that an internal investigation of workers’
compensation fraud tolled POBRA’s statute of limitations. Section 3304, subdivision
(d)(2)(H), tolls the limitations period “[i]f the investigation involves an allegation of
workers’ compensation fraud on the part of the public safety officer.” The employee in
CDCR-Moya relied on CCPOA and Andrew Ruiz to argue that tolling applies only if the
workers’ compensation fraud investigation is conducted by an independent, outside
agency. CDCR-Moya, supra, 215 Cal.App.4th at pages 1107-1109, rejected the
argument and instead agreed with Van Winkle’s analysis. CDCR-Moya found the statute
unambiguous but nevertheless considered the legislative history of amendments adding
tolling provisions. (Id. 215 Cal.App.4th at pp. 1110-1111.) It shows: “ ‘ “Current law
for state peace officers requires completion and prosecution of state peace officers within
three years. Current law for local peace officers has no time limit. This bill requires
peace officers’ disciplinary investigations to be completed within one year. The bill
excepts certain multi-jurisdiction and other investigation for which management has no
reasonable control. [Italics added.] [¶] All representative law enforcement groups have
carefully negotiated this bill and agree on the need and reasonableness of this bill; in
essence, it is unfair to our peace officer[s] not to investigate and bring charges or dismiss
the action within a reasonable time. One year is the agree[d]-upon time by both labor and
management.” ’ (Assem. [Off. of Research, Concurrence] in Sen. Amends. to Assem.
Bill No. 1436 (1997-1998 Reg. Sess.) as amended June 17, 1997, pp. 2-3.)” (CDCR-
Moya, supra, 215 Cal.App.4th at p. 1111.)
CDCR-Moya said this statement of legislative intent affirmed what was already
apparent from the language of the statute, i.e., the Legislature created a generally
applicable time limit for investigating and bringing charges against the law enforcement
officer, but excepted certain investigations “the timing of which it did not believe
management could control. As this description could conceivably include both internal
15
and external workers’ compensation fraud investigations, we cannot glean from this
statement a clear legislative intent to limit the exception for workers’ compensation fraud
investigations solely to third party investigations.” (Id. 215 Cal.App.4th at p. 1111.)
Iqbal argues we should not follow CDCR-Moya, because it involved only workers’
compensation fraud investigations and therefore should not have talked about CCPOA or
Andrew Ruiz, because Iqbal thinks it would be “impossible” to arbitrarily designate most
administrative investigations as workers’ compensation fraud investigations. We
nevertheless consider CDCR-Moya helpful and persuasive.
Telish, supra, 234 Cal.App.4th 1479, an opinion filed while this appeal was
pending, also criticized CCPOA. In Telish, a DOJ special agent in a disciplinary action
sought to exclude from evidence self-incriminating statements he made in conversations
with a subordinate employee, which Telish thought were confidential but which were
recorded as part of DOJ’s criminal investigation of Telish’s alleged misconduct (which
the District Attorney’s Office eventually declined to prosecute criminally). (Id. at
pp. 1484, 1494.) The subordinate had reported that Telish physically assaulted her and
threatened to publicize sexually explicit photographs of her unless she recanted her
admissions about a consensual sexual relationship with Telish. (Ibid.) Telish argued the
recordings were inadmissible because they were obtained in a “sham criminal
investigation” to enable DOJ to invoke Penal Code authorization to record conversations,
when DOJ’s real purpose was to use the evidence in administrative proceedings against
him. (Id. at pp. 1486, 1492.) The Telish court noted this presented a factual question as
to whether the criminal investigation was a sham, and the evidence supported the
conclusion that it was not. (Id. at pp. 1492-1494.) As concerns us here, Telish stated:
“Telish relies on language in [CCPOA, supra,] 82 Cal.App.4th 294, ‘that the criminal
investigations referred to in subdivision (i) of section 3303 . . . must be ones conducted
primarily by outside agencies without significant active involvement or assistance by the
employer.’ [Citation.] However, Van Winkle noted ‘there is no language in [POBRA]
16
which supports this interpretation.’ [Citations to Van Winkle and CDCR-Moya.]”
(Telish, supra, 234 Cal.App.4th at p. 1495, fn. 9.)
We agree with the cases criticizing CCPOA. We need not rely on CDCR’s
citation of a case holding that similar tolling language in a Los Angeles city charter
applied to internal criminal investigations. (Lucio v. City of Los Angeles (2008)
169 Cal.App.4th 793.)
We conclude limitations period was tolled for the entire duration of CDCR’s
criminal investigation, such that the Notice of Adverse Action was timely under the
timeline factually found by SPB.
DISPOSITION
We affirm the trial court’s judgment granting the writ petition and ordering a writ
of mandate directing SPB to vacate its decision that the limitations period had expired,
reinstate the Notice of Adverse Action, and conduct further proceedings on the merits of
Iqbal’s administrative appeal. CDCR shall recover its costs on appeal. (Cal. Rules of
Court, rule 8.278.)
HULL , Acting P. J.
We concur:
ROBIE , J.
HOCH , J.
17