1 At oral argument, petitioner asserted we misrepresented his argument, and that the issue was the limitations period was exceeded because the investigator did know of misconduct. The record does not support this assertion, where, as we point out, sexual relationships with female deputies were not, per se, improper. 8
officers to prepare a fair defense on the merits and marshal facts while memories and
evidence are still fresh. (Jackson, supra, at p. 909.)
To this end, Government Code section 3304 provides in pertinent part: “Except as
provided in this subdivision and subdivision (g), no punitive action, nor denial of
promotion on grounds other than merit, 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. This one-year
limitation period shall apply only if the act, omission, or other misconduct occurred on or
after January 1, 1998. 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.” (Govt. Code, § 3304,
subd. (d)(1).)
Government Code section 3304, subdivision (d)2, therefore functions as a statute
of limitations. (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 323.) “The ‘one-year
limitation period’ begins to tick once a ‘person authorized to initiate an investigation’
[citation] ‘discovers, or through the use of reasonable diligence should have discovered’
2 Government Code section 3304, subdivision (d) was amended effective January 1, 2010. (Stats. 2009, ch. 494, § 1; Squire v. County of Los Angeles (2018) 22 Cal.App.5th 16, 23) 9
the act, omission, or other allegation of misconduct. [Citation.]” (Bacilio v. City of Los
Angeles (2018) 28 Cal.App.5th 717, 724.) However, before this limitations period is
triggered, the public agency must first have determined that “discipline may be taken.”
(Gov. Code, § 3304, subd. (d)(1).)
In the present case, there is no dispute that Chief Wood was the officer
“authorized to initiate an investigation.” However, his testimony at the administrative
hearing reveals while he had heard rumors of sexual relationships between petitioner and
female deputies, it could not be determined that these relationships were “improper” in
violation of Department polices. As both Chief Wood and Undersheriff Cleary each
testified, the issue of petitioner having sexual relationships wasn’t the issue; it was
petitioner’s failure to report the relationships to the Department, and petitioner’s conduct
in having sex with female deputies while on duty that was improper. Thus, while he may
have been aware of certain conduct, it was premature to initiate an investigations of
misconduct unless and until he learned that petitioner was engaged in misconduct.
Petitioner argues “there were at least a half-dozen supervisors and senior officers
who were aware of allegations of misconduct involving Shouse prior to April 10, 2016,
all of whom could have, like Chief Deputy Wood, initiated a complaint inquiry.” The
administrative record shows there were rumors of petitioner having intimate relationships
and drinking to excess, but petitioner omits to identify a single officer who was
“authorized to initiate” an investigation or demonstrate that the public agency had
determined that discipline should be taken prior to May 2016.
10
Petitioner also fails to consider that Chief Wood did not assume his command
until December 2015.3 When he assumed this position, Wood “heard” from a number of
sources about “alcohol-related concerns” regarding petitioner. Thereafter, at some
undisclosed time, Wood learned of rumors from Captain Trevino about a relationship
petitioner had with a female employee, who was showing pictures and text messages to
others and stating she was saving these items. However, rumors of sexual relationships
are not a sufficient basis to trigger the duty of investigation of misconduct leading to
discipline.
At that point Chief Wood relayed his concerns to a superior but because he was
just taking over the station, he did not know what the status of the female deputy was, so
he did not know whether any Department policy had been violated. But he was also
concerned the female deputy might be preparing action against the Department. The
Assistant Sheriff directed Wood to ask petitioner directly about the relationship, which
Wood did the next day, in May 2016. Petitioner admitted he had had a sexual
relationship with one of his subordinate deputies. This information was obtained within
the one-year limitations period. Prior to petitioner’s admission, Wood did not know, and
3 In cross-examining Chief Wood during the administrative hearing, petitioner’s counsel tried unsuccessfully to get Wood to testify that he knew of the improper relationship in December 2015 by asking if matters were “brought to [Wood’s] attention” at the end of 2015. Wood responded that would be “highly unlikely” because he had not been promoted until Christmas Eve 2015. Instead, he became aware of the rumors from Captain Trevino in early 2016, probably February or March or April 2016. And he learned that Deputy Birchard was the female deputy with whom the rumored relationship had taken place in April or early May 2016. Thus, petitioner misstates the evidence in arguing that Wood knew or should have known of the improper relationship as early as December 2015. 11
had no reason to know that petitioner committed misconduct. Once petitioner admitted
the relationship, which had not been reported according to departmental directives, Wood
knew or should have known of misconduct within the statute of limitations.
In the meantime, Wood learned of another relationship with a different female
deputy, who informed Wood she felt petitioner was stalking her, and she relayed
information about a shoving match between petitioner and the female deputy’s boyfriend.
At this point, Wood informed the Assistant Sheriff that an investigation was required, and
the investigation began at that point.
Relationships between employees of the Department are not prohibited pursuant to
Department Directive No. 09-024, which states: “While the Department will not prohibit
personal or business relationships between employees, the following reasonable