APPEAL from a judgment of the Superior Court of Imperial County, Donal B. Donnelly, Judge. (Imperial County Super. Ct. No. ECU06619)
The opinion of the court was delivered by: Mcconnell, P. J.
CERTIFIED FOR PUBLICATION
In this case, we consider whether the Public Safety Officers Procedural Bill of Rights Act (the Act) (Gov. Code,*fn1 § 3300 et seq.) excepts internal workers' compensation fraud investigations from the one-year limitations period established in section 3304, subdivision (d)(1). We conclude it does and affirm the judgment.
The parties do not dispute the relevant facts of this case. On August 8, 2008, Stephanie Tapia, the return-to-work coordinator at Centinela State Prison (prison), sent the prison's warden, Michael A. Smelosky, a memo requesting corrections sergeant Moises Moya be investigated for workers' compensation fraud. In the memo, Tapia stated Moya had filed a workers' compensation claim on May 5, 2008, indicating he injured his right wrist at work when a co-worker inadvertently closed it in a door. Two days later, a doctor at an industrial healthcare center evaluated Moya and diagnosed him with a right wrist contusion. On June 12, 2008, a hand specialist evaluated Moya and diagnosed him with a fractured right wrist. As of a result of the injury, Moya was unable to work. However, someone subsequently informed Tapia that Moya was seen working out at a gym and riding around town on his motorcycle in violation of his work restrictions.
Accompanying the memo was an anonymous letter alleging Moya had actually injured his wrist in an off-duty fight rather than at work. The letter stated Moya attended an off-duty event called "Battle of the Badges." His ex-girlfriend came to the event with a male friend. Enraged, Moya started a parking lot brawl with the man. Moya injured his hand during the fight, but did not seek medical attention. Instead, he waited for an incident to happen at work so he could file a workers' compensation claim for his hand injury.
Approximately a month after receiving Tapia's memo, Smelosky requested the Internal Affairs Office (IA Office) of the Department of Corrections and Rehabilitation (Department) investigate the allegations. In November 2008 the IA Office started a criminal investigation into whether Moya had committed workers' compensation fraud. Investigators reviewed hundreds of documents and interviewed numerous witnesses, including the hand specialist who evaluated Moya. The hand specialist told investigators Moya's injury was more consistent with a fight than with a work injury.
A little over a year later, in December 2009, the IA Office submitted a report of its investigation to the Imperial County District Attorney's Office, which declined to prosecute. Two months later, in February 2010, the IA Office submitted the report to the San Diego County District Attorney's Office. The San Diego County District Attorney's Office requested additional investigation, which the IA Office completed and provided in June 2010. In July 2010 the San Diego County District Attorney's Office also declined to prosecute the matter.
Meanwhile, in January 2010, the IA Office opened an administrative investigation. As part of the administrative investigation, investigators interviewed Moya in April 2010 about his workers' compensation claim and how he injured his wrist.
On August 3, 2010, approximately two years after Tapia requested the fraud investigation, the Department served Moya with a notice of adverse action (notice) dismissing him from his position for, among other causes, dishonesty under section 19572, subdivision (f). As support for the dishonesty charge, the notice alleged Moya: (1) submitted a workers' compensation claim and other documents falsely stating he injured his hand and wrist at work; (2) lied to the hand specialist about how he injured his wrist; and (3) lied during his interview with investigators about how he injured his wrist.
Moya appealed his dismissal to the State Personnel Board (Board). He then filed a motion to dismiss the notice, arguing it was barred by the Act's one-year statute of limitations contained in section 3304, subdivision (d). The Department countered by arguing section 3304, subdivision (d)(2)(H), of the Act provides an exception to the limitations period for investigations into allegations of workers' compensation fraud. Additionally, the Department argued the portion of the notice involving the allegation Moya lied during his interview with the IA Office was timely. The Department also argued the statute of limitations was tolled under section 3304, subdivision (d)(2)(A), because Moya's conduct was the subject of a criminal investigation.
In January 2011 the Board issued an order directing the Department to provide evidence the limitations period should be tolled under section 3304, subdivision (d)(2)(H). The Department submitted two declarations showing it had conducted a criminal ...