Filed 7/31/17 Andres v. State Personnel Bd. CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)
----




ALVIN ANDRES,

Plaintiff and Respondent,

v.

STATE PERSONNEL BOARD et al,

Defendants;

DEPARTMENT OF CORRECTIONS AND REHABILITATION et al.,

Real Parties in Interest and Appellants.

C082026

(Super. Ct. No. 34201580002131CUWMGDS)


The sole issue presented by this appeal is whether the Department of Corrections and Rehabilitation’s notice of adverse action to plaintiff Alvin Andres 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 conclude the notice of adverse action was served “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” and thus reverse the trial court’s judgment granting plaintiff’s petition for a writ of mandate. (Gov. Code, § 3304, subd. (d)(1).)
FACTUAL AND PROCEDURAL BACKGROUND
On Saturday, August 17, 2013, plaintiff was a relief sergeant employed by the Department of Corrections and Rehabilitation (the department) at Pelican Bay State Prison in the correctional treatment center unit. During his shift, plaintiff used force against a prisoner. Following the incident, plaintiff prepared an incident report relating the circumstances of the incident. He submitted the report to Lieutenant David Strain, the incident commander, on that same day.
Lieutenant Strain reviewed plaintiff’s incident report and reports submitted by witnesses to the incident. He then notified all appropriate administrative staff, including the administrative officer of the day. Lieutenant Strain prepared an “Incident Commander’s Review” and determined that plaintiff did not violate any policy during the incident, except that he failed to activate the unit alarm as required by his training. Lieutenant Strain submitted his review on August 17, 2013.
Captain C. Parry completed a “Manager’s Review - First Level” on September 24, 2013. He found plaintiff’s use of force appropriate, but noted plaintiff failed to activate the unit alarm as required by his training. Associate Warden T. M. Cherry completed a “Manager’s Review - Second Level” on October 2, 2013. She also found plaintiff’s use of force appropriate, but also noted that he failed to activate the unit alarm as required by his training.
The package of reviews was then submitted to Carrie Schmidke, the use of force coordinator. The use of force coordinator keeps track of all use of force incidents to ensure that the incidents get reviewed by the institutional executive review committee (the committee). When Schmidke receives a review package, she analyzes the reports and then presents the package to the committee with a recommendation, which can include an allegation of misconduct. The committee’s chairman is generally the warden or the chief deputy warden. All review packages documenting use of force incidents must go through the committee and be approved by the warden. When the committee determines that further administrative review is warranted because misconduct occurred, the incident is referred to the investigative services unit, which then, after further review, submits the case for investigation to the office of internal affairs.
Plaintiff’s case was first reviewed by the committee on September 13, 2013, because of an internal policy requiring every incident to be reviewed by the committee within 30 days of its occurrence. The review package, however, was not complete at that time, and the committee could only review an initial copy of the review package, which included plaintiff’s incident report. When a review package is incomplete, the committee does not consider whether the use of force articulated in the incident report was appropriate.
The committee ultimately reviewed plaintiff’s use of force incident on April 25, 2014. Schmidke recommended, and the committee approved, that plaintiff’s case be referred for further administrative review because plaintiff committed misconduct during the use of force incident. This process resulted in an official reprimand, which plaintiff was served with on August 18, 2014 -- a year and one day after the incident.
Plaintiff appealed the adverse action to the State Personnel Board (the board). As part of his appeal, plaintiff brought a motion to dismiss the notice of adverse action on the ground that the department violated the one-year statute of limitation in Government Code section 3304, subdivision (d)(1) when it served him on August 18, 2014. Plaintiff argued that both Lieutenant Strain and the administrative officer of the day had the authority to initiate an investigation, and because they knew of the use of force incident on August 17, 2013, the one-year statute of limitations expired on August 17, 2014. The department opposed the motion and argued the statute of limitations did not start running until April 25, 2014, when the committee determined plaintiff’s use of force constituted misconduct and referred the case to the investigative services unit.
The board denied plaintiff’s motion to dismiss. The board reasoned that because plaintiff alleged the affirmative defense of the statute of limitations, he carried the burden of showing through some policy or procedure that either Lieutenant Strain or the administrative officer of the day was “a ‘person authorized to initiate an investigation.’ ” Because plaintiff failed to make this showing, he did not prove that the statute of limitations expired before he was served with the notice of adverse action on August 18, 2014. The board also sustained the adverse action against plaintiff.
In his petition for writ of administrative mandamus pursuant to section 1094.5 of the Code of Civil Procedure, plaintiff asserted that the board erred when it found he did not prove that the department violated the statute of limitations and when it sustained the adverse action against him. Reviewing the board’s decision de novo, the trial court granted plaintiff’s petition on the ground that the adverse action was barred by the statute of limitations. The court reasoned that the administrative officer of the day was acting as the warden in the warden’s absence and because “[the department] appears to acknowledge that the Warden would be an individual with authority to initiate an investigation, the [administrative officer of the day], as the Warden’s administrative stand-in would also have such authority with regard to this incident.” The department appealed the trial court’s ruling.
DISCUSSION
The department contends substantial evidence supported the board’s decision that neither Lieutenant Strain nor the administrative officer of the day were “ ‘person[s] authorized to initiate an investigation.’ ” (Bolding omitted.) Plaintiff counters that the board erred as a matter of law when it improperly relied on Benefield v. Department of Corrections & Rehabilitation (2009) 171 Cal.App.4th 469 (Benefield) to find that Lieutenant Strain was not authorized to initiate an investigation.
As we explain more fully below, we agree with the department. The board did not rely on Benefield to find Lieutenant Strain was not authorized to initiate an investigation; instead, the board relied on the evidence submitted by the parties. After reviewing the department operations manual (the manual) and the testimony, the board found that plaintiff did not prove the notice of adverse action was untimely because he did not show that either Lieutenant Strain or the administrative officer of the day had the authority to initiate an investigation. Because the two individuals who knew on August 17, 2013, of the acts constituting plaintiff’s misconduct did not have the authority to initiate an investigation, the board found the notice of adverse action was timely served on August 18, 2014. We conclude substantial evidence supported the board’s finding.
As we noted, Government Code section 3304, subdivision (d)(1) provides “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.” Here, the board found that the manual did not give Lieutenant Strain or the administrative officer of the day the authority to initiate an investigation. This was a factual finding based on the evidence submitted by the parties at the administrative hearing. (See Benefield, supra, 171 Cal.App.4th at p. 476.)
“Because the State Personnel Board derives its adjudicatory authority from the state Constitution rather than from a legislative enactment, a superior court considering a petition for administrative mandate must defer to the board’s factual findings if they are supported by substantial evidence.” (State Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512, 522.) The board’s factual determinations are not subject to independent review by the trial court even if fundamental vested rights are involved. (Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1125-1126; Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 35.)
“In applying the substantial evidence test to such a decision, a court must examine all relevant evidence in the entire record, considering both the evidence that supports the board’s decision and the evidence against it, in order to determine whether that decision is supported by substantial evidence. [Citation.] This does not mean, however, that a court is to reweigh the evidence. Rather, all presumptions are indulged and conflicts resolved in favor of the board’s decision.” (Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 742.)
On appeal, we independently determine whether substantial evidence supports the board’s factual findings. (Department of Corrections & Rehabilitation v. State Personnel Bd. (2016) 247 Cal.App.4th 700, 707.)
Here, the board relied on the manual and testimony when finding Lieutenant Strain was not authorized to initiate an investigation into alleged misconduct. Neither Lieutenant Strain nor any other witness testified that Lieutenant Strain was authorized to initiate an investigation into plaintiff’s conduct. Lieutenant Strain testified that he was required to prepare an “Incident Commander’s Review,” which he did on the day of the incident.


This testimony and the board’s finding that Lieutenant Strain was not authorized to initiate an investigation were supported by the manual. The manual lays out a procedure for review of all use of force incidents occurring within a correctional institution. In cases where nondeadly force was used and no injuries could have resulted, the incident commander is tasked with compiling the initial incident report package, reviewing all incident reports, preparing his own report, and submitting the incident report package to the warden’s office, the use of force coordinator, and the first level manager. “In the event the Incident Commander believes an investigation may be necessary, the Incident Commander shall suspend review and recommend that the case be referred for investigation.” (Italics added.) The duty to report and the authority to recommend for referral vested in the incident commander is not synonymous with the authority to initiate an investigation. (Benefield, supra, 17 Cal.App.4th at pp. 476-477.)
The next steps in the review process for use of force incidents are for the first level and then second level managers to review the incident. Both of these managers are vested with the same authority as the incident commander -- to “recommend that the case be referred for investigation.” The committee then reviews the completed review package, which includes the report from the person who is the subject of the incident, the incident commander’s review, and the first and second level managers’ review. The manual vests the committee with the power to “recommend[ ] the initiation of training, corrective action or disciplinary action.” The committee is also authorized to determine whether the use of force incident “warrant[s] investigation by the [deadly force investigation teams], the [office of internal affairs], or any other outside investigating agency.” Thus, the authority to initiate an investigation during the use of force incident review process lies with the committee and not the incident commander. Accordingly, substantial evidence supported the board’s finding that Lieutenant Strain did not have the authority to initiate an investigation into plaintiff’s conduct.
Plaintiff, however, argues the administrative officer of the day acts as the warden during nonbusiness hours and thus has the authority to initiate an investigation. He reasons that because Lieutenant Strain told the administrative officer of the day about the use of force incident, a person with authority to initiate an investigation discovered the acts of misconduct on August 17, 2013. Substantial evidence, however, supports the board’s finding to the contrary. Although Lieutenant Strain testified that the administrative officer of the day acts as the warden during nonbusiness hours, the manual did not support this testimony. The manual specifies that the administrative officer of the day has the authority only to make administrative decisions and to disseminate information. The manual further specifies that the only time the administrative officer of the day contacts the warden is regarding “incidents of a serious nature.” Neither the manual nor the testimony support a conclusion that the initiation of an investigation is an administrative decision or that plaintiff’s conduct constituted an “incident of a serious nature” warranting notification of the warden. Further, the manual specifies that the administrative officer of the day is the equivalent to a first level manager for the purposes of the use of force incident review process. A first level manager may only “recommend the case be referred for investigation.” This is not the same as initiating an investigation. (Benefield, supra, 17 Cal.App.4th at pp. 476-477.) Thus, substantial evidence supported the board’s finding that the administrative officer of the day did not have the authority to initiate an investigation.
Because substantial evidence supported the board’s finding that neither Lieutenant Strain nor the administrative officer of the day had the authority to initiate an investigation, plaintiff was timely served with the notice of adverse action on August 18, 2014.


DISPOSITION
The judgment granting plaintiff’s petition is reversed.





/s/
Robie, J.



We concur:



/s/
Blease, Acting P.J.



/s/
Renner, J.