IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
July 21, 2011
NATASHA NORRIS, PLAINTIFF AND APPELLANT,
STATE PERSONNEL BOARD, DEFENDANT; DEPARTMENT OF CORRECTIONS AND REHABILITATION, REAL PARTY IN INTEREST AND RESPONDENT.
Super. Ct. No. 34200880000041CUWMGDS
The opinion of the court was delivered by: Raye , P. J.
Norris v. State Personnel Bd.
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The sole issue presented by this appeal is whether the California Department of Corrections and Rehabilitation's (CDCR) termination of Lieutenant Natasha Norris was barred by the one-year statute of limitations set forth in the Public Safety Officers Procedural Bill of Rights Act. (Gov. Code, § 3300 et seq.) We affirm the trial court's denial of her petition for a writ of mandate because Norris was terminated "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." (Gov. Code, § 3304, subd. (d)(1).)
Few facts are relevant to the statute of limitations question. On July 30, 2005, an inmate riot broke out in a minimum security area at Folsom State Prison. Sergeant Keeley Stevens responded. He was later assisted by Correctional Officer Shawn Stewart. Appellant Norris was the incident commander.
Stevens and Stewart submitted incident reports between July 30 and August 12. Any rule violation reports (known as a CDC form 115) must be completed and served on any inmates against whom rule violations are alleged within 15 days of the incident. On August 11 or 12, 2005, Norris drafted and signed Stevens's name to six rule violation reports. Stevens testified he did not authorize Norris to write the reports or sign his name, nor did he know she had done so. Norris testified she did so with Stevens's permission and approval of the contents.
On or about August 13, Norris told Stevens, "[B]y the way, you wrote six [CDC form] 115s on that incident at the camp." When Stevens asked her if he was supposed to review the reports and sign them, Norris replied, "[N]o, that is already done."
Correctional Officer Russell Brizendine was assigned to investigate the rule violation reports, and issued them to the inmates. One of the inmates claimed he was not present at the riot and had been wrongly identified. Brizendine testified Stevens told him he had observed the inmate battering another inmate. Stevens testified he told Brizendine he did not write the report.
Brizendine turned his report over to Lieutenant Rick Vickrey for review of the documentation and for a hearing. Vickrey conducted a hearing for the inmate who claimed he was not involved and found him guilty. During that hearing, on or about August 20, Vickrey called Stevens at home and asked him if it was possible he had made a mistake in identifying the inmate. Stevens told Vickrey he did not write the reports; Norris had written and signed them.
Norris, together with her supervisor, determined that Stevens did not respond appropriately because he was unable to identify the inmates he sprayed with pepper spray during the riot. As a result, Stevens was given an employee counseling memo on September 24, 2005. On October 3, 2005, Stevens complained to Captain M. Williams that Norris had prepared and signed the rule violation reports without his knowledge or permission.
On October 25, 2005, Norris received an employee counseling memo based on her preparation of the rule violation reports. She was dismissed from her position effective October 6, 2006, a date that was later amended to October 19, 2006.
Norris appealed her termination to the State Personnel Board (the Board). Following an administrative hearing before an administrative law judge (ALJ), the Board sustained the dismissal, finding that "acting on her own and without Stevens' knowledge, [Norris] authored six separate Rules Violation Reports (CDC Form 115) on the six inmates . . . , making it appear as if Stevens was the author of the reports. On each report, she (as if Stevens were writing) noted, 'I responded to the riot and observed approximately six (6) Hispanic inmates later identified as [names omitted] committing battery against [the Caucasian] inmate.' [Norris] then forged Stevens' signature (without Stevens' knowledge) on each Rules Violation Report, and turned them in." The ALJ found that Stevens was credible; Norris was not.
In her petition for a writ of administrative mandamus pursuant to section 1094.5 of the Code of Civil Procedure, Norris asserted that the disciplinary action against her was barred by the statute of limitations contained in Government Code section 3304, subdivision (d), and the factual findings regarding her misconduct, particularly the credibility findings, were not supported by substantial evidence. The trial court rejected both grounds in a well-reasoned, 17-page decision. On appeal, she challenges only the ruling that the statute of limitations does not bar the disciplinary action.
Government Code section 3304, subdivision (d)(1) provides: "[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 . . . that year . . . ."
Norris argued at her evidentiary hearing that Sergeant Stevens was aware of her alleged misconduct by August 13, 2005, and Lieutenant Vickrey was aware of it no later than August 20, 2005. Since she was not served with a notice of adverse action until September 30, 2006, she maintained below as she does on appeal that the CDCR employees who were authorized to initiate an investigation of her misconduct, as provided in Government Code section 3304, subdivision (d)(1), were aware of the facts more than one year before the date she was notified. Her argument is premised on her assumption that Stevens and Vickrey were persons "authorized to initiate an investigation." The trial court rejected her assumption, relying in part on CDCR's Department Operations Manual (DOM). On appeal, Norris objects to the court's reliance on the DOM. Her objection comes too late.
Whether characterized as a waiver or an invited error, the problem with Norris's delinquent complaint is the fact that she cited to the DOM herself in her briefing before the trial court. The court pointed out that Norris cited to the DOM for the proposition that correctional sergeants are supervisors who are obligated to report misconduct. Because both Norris and CDCR relied on relevant parts of the DOM in the mandamus proceedings and the court in Benefield v. Department of Corrections & Rehabilitation (2009) 171 Cal.App.4th 469, 476-477 (Benefield) held that the provisions of the DOM are relevant and material on the issue of who is authorized to initiate an investigation, the trial court considered the relevant portions of the DOM in this case.
Norris complains that the trial court erred by considering material not contained in the administrative record. This was no oversight; the court intentionally relied on the DOM, recognizing it was not part of the record. It did so precisely because both parties invited it to rely on the DOM. Thus, we agree with CDCR that if there was any error, it was invited or waived and Norris cannot be heard to complain about reliance on the decisive manual she herself encouraged the court to consider. (In re Karla C. (2010) 186 Cal.App.4th 1236, 1266-1267.) Moreover, if, after receiving the trial court's ruling in which it expressly relied on the DOM, Norris believed the court had erred, she should have raised an objection. Having failed to raise the error in the trial court, she will not be heard to complain on appeal. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.)
According to the plain language of the statute, the one-year statute of limitations commences to run only when a correctional officer's alleged misconduct is discovered by a "person authorized to initiate an investigation." Thus, pursuant to this language, the fact that either Stevens and/or Vickrey knew that Norris had prepared and signed the reports did not trigger the statute unless they were authorized to initiate an investigation into Norris's misconduct.
The Board, adopting the findings of the ALJ in the proposed decision, found: "[A]s a Correctional Sergeant subordinate to [Norris], Stevens was not authorized to initiate an investigation into his superior's misconduct. He was not in [Norris's] chain of command, did not supervise her, and could not discipline her. He was obligated to report such misconduct to the hiring authority: even though he did so belatedly, he was not authorized to initiate an investigation into it.
"Stevens' discovery of the misconduct on August 13, 2005, then, did not trigger the start of the one-year period for [CDCR] to complete the investigation and to notify [Norris] of the proposed adverse action. No other evidence that [CDCR] violated that one-year deadline was presented. [CDCR's] notice of disciplinary action (the NAA) was timely served. [Norris's] motion to dismiss on this ground is denied."
The trial court noted that the Board did not consider whether Vickrey was authorized to initiate an investigation. It does not appear that Norris argued in the administrative proceedings that Vickrey was authorized to initiate an investigation, nor did she object to the ALJ's failure to discuss Vickrey. Therefore, she waived the issue.
Nevertheless, the trial court considered her newly conceived allegation concerning Vickrey in her petition for a writ of mandamus. As the court aptly stated, "The critical issue is whether either of those officers was a person 'authorized to initiate an investigation' of that alleged misconduct. As held in Benefield v. Department of Corrections and Rehabilitation (2009) 171 Cal.App.4th 469, 476-477, this is an issue of fact that must be determined on the basis of the evidence." We must sustain the trial court's factual findings if supported by substantial evidence. (Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 902.)
The evidence offered in Benefield also provided a disputed issue of fact. There was conflicting evidence as to when a correctional lieutenant learned of the alleged misconduct. But, as the court acknowledged, his knowledge was not dispositive as to whether the statute of limitations commenced to run unless the lieutenant was a person authorized to initiate an investigation. (Benefield, supra, 171 Cal.App.4th at pp. 476-477.) To resolve the question of authority, the court looked to the operations manual.
"CDCR's operations manual states that 'serious' misconduct . . . 'shall be reported to the Regional OIA [office of internal affairs], Investigative Lieutenant, Chief Deputy Warden, Warden, Deputy RPA [regional prison administrator], RPA, or Hiring Authority.' 'The Hiring Authority shall designate who shall prepare a written report of the allegation and the format of the report.' This report must then be submitted to the hiring authority. If the misconduct is serious, 'the Hiring Authority shall request an investigation by the OIA.'" (Benefield, supra, 171 Cal.App.4th at p. 476.)
The court concluded that the "record contains no evidence that [the lieutenant] held the position of 'Hiring Authority' or held any other position that gave him the authority to initiate an investigation of the alleged incident. [Fn. omitted.] It follows that the record lacks substantial evidence that the limitations period commenced to run on the date of the incident." (Benefield, supra, 171 Cal.App.4th at p. 477.)
Applying the Benefield rationale, the trial court held that "there is no evidence in the record to support [Norris's] contention that either Sgt. Stevens or Lt. Vickery [sic] were persons 'authorized to initiate an investigation' within the meaning of Government Code section 3304(d)." Norris relies on job descriptions for the two positions wherein she asserts they must report misconduct and take or recommend appropriate action. Citing Benefield, the court emphasized that the authority to report is not synonymous with the authority to commence an investigation. There was no evidence, according to the court, that either officer had the authority to investigate. Thus, we agree with the trial court's conclusion that there is "substantial evidence supporting [the Board's] determination that no person who was authorized to initiate an investigation into [Norris's] alleged misconduct knew of it more than one year prior to service of the Notice of Adverse Action."
The DOM further supports the trial court's findings. As the trial court noted, DOM 311.4.10 provides that the "'Hiring Authority' is responsible for '[r]equesting investigations and direct adverse action by completing and forwarding to [the Office of Internal Affairs] CDC Forms 989, Confidential Request, for Internal Affairs Investigation/Notification of Direct Adverse Action.'"
The trial court further stated that "DOM 31140.3 defines the 'Hiring Authority' as follows: 'The Undersecretary, General Counsel, Chief Information Officer, or any Assistant Secretary, Executive Officer, Chief Deputy Secretary, Director, Deputy Director, Associate Director, Warden, Parole Administrator, Superintendent, Superintendent of Education, Assistant Superintendent of Education, Health Care Manager, Regional Health Care Manager, Regional Health Care Administrator, or any other person authorized by the appointing power to hire, discipline, and dismiss staff under his/her signature authority.'" Conspicuously missing from this list are either correctional sergeants or lieutenants.
Finally, as the trial court stated, "DOM 31140.4.11 defines the duties of supervisors and managers as follows: 'Each supervisor and manager shall be responsible for referring alleged misconduct and requests for investigation or adverse action to the Hiring Authority immediately following discovery of facts which may constitute misconduct.'"
The DOM thus identifies, by position, those who constitute the "Hiring Authority" and delegates to those positions the authority to initiate investigations. By contrast, those who occupy supervisorial and managerial positions can request, but not initiate, investigations into misconduct. Since Stevens and Vickrey may have been supervisors or managers but, under the DOM, were not a part of the hiring authority, neither had the authority to initiate an investigation. We agree with the trial court that there is no substantial evidence to support a contrary finding.
Norris also contends that the Board misconstrued Government Code section 3304, subdivision (d) by determining that before the one-year period was triggered there must be "an allegation of misconduct" made to one authorized to investigate the misconduct. We need not consider the merits of this argument. Because we conclude the statute of limitations did not run because there is substantial evidence to support the finding the statute was not triggered when either Sergeant Stevens or Lieutenant Vickrey discovered the misconduct, any distinction between discovery of the misconduct and an allegation of misconduct would have no bearing on the outcome of this case. We leave this issue, if indeed it is an issue, for another case.
The judgment is affirmed.
We concur: BUTZ ,J. MURRAY , J.
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