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Lawrence Neves v. California Department of Corrections and Rehabilitation

January 31, 2012

LAWRENCE NEVES, PETITIONER AND RESPONDENT,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. (Super. Ct. No. MCV051272)

The opinion of the court was delivered by: Franson, J.

CERTIFIED FOR PUBLICATION

OPINION

INTRODUCTION

Government Code section 3304, subdivision (f) (section 3304(f)), a provision of the Public Safety Officers Procedural Bill of Rights Act (POBRA) (Gov. Code, § 3300 et seq.)*fn1 states that when a public agency decides to discipline a public safety officer, "the public agency shall notify the public safety officer in writing of its decision to impose discipline, including the date that the discipline will be imposed, within 30 days of its decision, except if the public safety officer is unavailable for discipline." In this case, we hold that the public agency, appellant California Department of Corrections and Rehabilitation (the Department), satisfied section 3304(f), when its written notice of adverse action, dated January 27, 2010, was received by the public safety officer, appellant Lawrence Neves, on either February 1, or 2, 2010.

FACTUAL AND PROCEDURAL BACKGROUND

The Department caused Neves to be personally served on December 30, 2009, with a document entitled "SULIER NOTICE" (original emphasis). It advised Neves that the Department's investigation into allegations of misconduct by Neves had been completed. It further stated: "Pursuant to Sulier v. State Personnel [Bd.] (2004) 125 Cal.App.4th 2[1] [(Sulier)], you are hereby notified that a decision has been made to take disciplinary action against you. The recommended penalty is: Dismissal. [¶] You may anticipate formal adverse action papers to be served upon you [within] the next thirty (30) days."

A "NOTICE OF ADVERSE ACTION" (original emphasis) signed on January 27, 2010, by the warden of the Valley State Prison for Women advised Neves: "YOU ARE HEREBY NOTIFIED that ... adverse action is being taken against you as follows: [¶] ... [¶] You shall be dismissed from your position as a Correctional Officer with the (Department) at Valley State Prison for Women ("VSPW"). [¶] ... [¶] This dismissal shall be effective at the close of business February 12, 2010." It further advised Neves of the legal and factual reasons for the adverse action, his right to respond to the proposed action and his right to appeal to the State Personnel Board. Neves received a package containing the notice of adverse action on either February 1, or 2, 2010.

Neves filed a petition for writ of mandate in the superior court. He contended that because he did not receive the notice of adverse action within 30 days of December 30, 2009, the Department could not impose discipline on him without violating section 3304(f). The superior court agreed. It issued an order directing the issuance of a writ of mandate directing the Department to vacate the adverse action against Neves and to reinstate him to the position of correctional officer.

The Department appeals. We conclude that Neves failed to demonstrate any violation of section 3304(f), since the 30-day notification requirement of subdivision (f) was triggered by the date of the Department's final decision to impose discipline, which was its formal notice of adverse action dated January 27, 2010, not the December 30, 2009, "SULIER NOTICE." Neves presented no evidence that the Department notified him of its decision to dismiss him more than 30 days after the Department's decision to dismiss him was made.*fn2

We reverse the superior court's order granting Neves's petition for writ of mandate.

DISCUSSION

Initially enacted in 1976, POBRA sets forth a list of basic rights and protections afforded all public safety officers employed in California. (Baggett v. Gates (1982) 32 Cal.3d 128, 135.) POBRA "is concerned primarily with affording individual police officers certain procedural rights during the course of proceedings which might lead to the imposition of penalties against them." (White v. County of Sacramento (1982) 31 Cal.3d 676, 681.)

When POBRA was enacted, it included statutory provisions governing procedures to be used in investigating a public safety officer, but it included no limit on the length of time an investigation of an officer could last. In 1997, POBRA was amended (Stats. 1997, ch. 148, § 1) due to "a perceived lack of fairness caused by a drawn-out investigatory process." (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 324 (Mays).) The 1997 amendments added the provisions presently appearing at ...


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