California Bill Of Rights Requires Personal Service Of Disciplinary Notice

Baron Earl, a parole officer, was disciplined by his employer, the California Department of Corrections and Rehabilitation, for conducting a purportedly unlawful search of a residence. When the discipline was upheld after an administrative hearing, Earl challenged the decision in the California Court of Appeals. Earl argued that the discipline should have been reversed because he was not provided proper notice under California’s Public Safety Officers Procedural Bill of Rights Act. Earl was served the notice of discipline by certified mail, not by personal service.

The Court agreed with Earl, and ordered the discipline overturned. The Court focused on Section 3304 (d)(1) of the Bill of Rights, which provides that “no 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.”

The Court found that the word “notify” as used in the statute means actual notification, not constructive notice, such as by mail: “Clearly the notification itself is required to occur within a year of the discovery of the misconduct. But what precisely did the Legislature mean by ‘notify the public safety officer’ in section 3304, subdivision (d)? We presume the Legislature is aware of judicial decisions. For many years an unbroken line of California courts have held that ‘a statute requiring that a notice shall be given, but which is silent as to the manner of giving such notice, contemplates personal service thereof.’ We presume the Legislature is aware of that rule, and therefore meant personally notify in subdivision (d). Thus actual notification must occur within the same year as the investigation.”

Because Earl had not been personally served with the notice of discipline within one year from the Department’s discovery of the complaint against him, the Court ordered the Department to rescind Earl’s discipline, and to pay Earl’s costs for the appeal.

Earl v. State Personnel Board, 2014 WL 5866894 (Cal. App. 2014).