A captain in the Riverside County Sheriff’s Office (RSCO) in California was fired because of sexual improprieties with women under his command and numerous other violations of RSCO employment policies. The sheriff’s office had heard rumors about the captain’s misconduct but did not immediately begin to investigate. After his termination, the captain appealed, arguing the Public Safety Officers Bill of Rights (POBRA) had been violated when the investigation that led to his termination was not completed within POBRA’s one-year statute of limitations. An appellate court ruled that the sheriff’s office had no obligation to begin the investigation or tick the POBRA stopwatch when they first heard rumors of the captain’s misconduct.

POBRA is designed to “balance the public interest in maintaining the efficiency and integrity of the police force with the officer’s interest in receiving fair treatment.” Sheriff Captain Andrew Shouse, the plaintiff and appellant, believed that his rights under POBRA were violated when the investigation into his “alleged improper conduct was not completed within one year of discovery.” He filed a petition for a writ of administrative mandamus, which is a request to reverse an order from an administrative agency.

Judge Irma Poole Asberry of the Superior Court of Riverside County sided with RSCO. Shouse appealed. Now, a unanimous opinion from a three-judge panel from Division Two of California’s Fourth Appellate District has affirmed Asberry’s ruling.

Writing for the court on November 3, Presiding Justice Manuel A. Ramirez first enumerated the findings of Shouse’s administrative hearing. The former sheriff, who had served in the RSCO for 22 years, was found to have “engaged in improper sexual relationships with subordinates under his command.” He also misappropriated country equipment for personal use, was insubordinate when he violated direct orders, excessively consumed alcohol, and engaged in unbecoming conduct that discredited RSCO.

Shouse was notified of his termination in 2017. His notice provided details of the acts and events that led to his dismissal. In May 2016, RSCO Chief Ray Wood learned of Shouse’s five-year “intimate relationship” with a female deputy who was under his command. He confronted Shouse, who acknowledged the relationship, but said it was over. Wood soon learned of an additional relationship with a female deputy from a different sheriff’s station.

A personnel investigation followed. It uncovered “numerous violations of department policies and orders.” The investigation officially began in June 2016, the date on which Shouse acknowledged receipt of notice he was under review. A detailed report was completed in April 2017. It included a notice of termination effective April 25. Shouse filed an appeal, and an eight-day hearing followed. The hearing officer found that all charges were proven by a preponderance of evidence and concluded that “termination is the appropriate discipline.”

Shouse then petitioned for a writ of mandate, in which he challenged the timing of the investigation. He claimed RSCO violated the one-year limitation period under POBRA. None of the other charges regarding improper conduct were challenged. The court found no violation.

Ramirez then turned to POBRA. He explained that one of its guarantees was the right to “speedy adjudication concerning accusations of misconduct.” He cited the Government Code section that says “No punitive action…shall be undertaken if the investigation of the allegation is not completed within one year of the public agency’s discovery…of misconduct.” The one-year statute of limitations “begins to tick” when the person authorized to investigate discovers the misconduct and the agency determines that discipline is appropriate.

These rules were then applied to Shouse’s case. The opinion said that Chief Wood was the person authorized to investigate, and Wood admitted that he had “heard rumors” about relationships between Shouse and several female deputies. However, Wood said he could not at first determine whether these were “inappropriate” because the problem was not the relationships but Wood’s failure to report them. Relationships themselves are not prohibited under department policies. However, relationships with those “in the chain of command” and those who are directly supervised are prohibited.

When he first learned of Shouse’s behavior with women as well as his “drinking to excess,” Wood felt that mere rumors were insufficient to trigger a misconduct investigation. Shouse did not acknowledge a relationship with the deputy he supervised until May 2016, which is within the one-year limit set by POBRA. Ramirez reviewed the events and the timeline and said, “the clock did not start to tick until it was determined petitioner (Shouse) had committed an act of misconduct and because it could not have been determined that (his relationship with the deputy) was improper until her status as a person under (Shouse’s) command had been determined.”

The “tick,” he explained, was thus within one year of Wood’s discovering the misconduct and was therefore timely investigated. The opinion emphasized that “mere rumors” and “unsubstantiated rumors” should not be sufficient to “launch” investigations into the “intimate relationships of public safety officers.” This would have a “devastating impact on the career” of public safety officers. Such investigations, he concluded, should only “be initiated when the officer authorized to investigate… knows the conduct involves actionable misconduct.”

In this case, there was no violation of POBRA. But in this new era of #MeToo, it might be time to investigate whether POBRA, its very short statute of limitations, and its rules about what is needed to authorize investigations, should be investigated as well.