Disciplinary Time Limits Tolled While Criminal Investigation Ongoing

Shiekh Iqbal is a parole agent for the California Department of Corrections and Rehabilitation. In the course of his job, he developed a close working relationship with the Union City Police Department and would often contact UCPD with work-related inquiries for criminal history information on subjects through the California Law Enforcement Telecommunications System or through the Alameda County Consolidated Records Information Management System.

On October 29, 2007, Iqbal contacted a UCPD dispatcher and asked her to check criminal history information regarding a personal acquaintance. The dispatcher accessed the system and relayed the results to Iqbal. On October 6, 2008, after the Department learned what had occurred, it assigned a special agent to conduct a criminal investigation.

On December 11, 2008, the special agent attempted to conduct an interview with Iqbal, but Iqbal invoked his Miranda rights and chose to remain silent. Eventually, when the local district attorney declined to prosecute because the one-year criminal statute of limitations had elapsed, the special agent closed the criminal investigation and opened an administrative investigation to determine whether discipline was warranted.

When Iqbal was interviewed as part of the administrative investigation, he admitted he violated Department policy by having UCPD dispatch run an inquiry on the third party. Iqbal stated he asked for the information because the third party had recently been elected vice-president of the East Bay Islamic Society, of which Iqbal was president. Several years earlier, the third party had said something suggesting he had a criminal history. Iqbal claimed he was concerned about the organization’s funds and that his employment as a parole agent might be jeopardized by association with a criminal.

The Department sustained a variety of charges against Iqbal, and reduced his salary by five percent for one year. Iqbal challenged the discipline on the basis that the Department’s investigation was not conducted in a timely fashion.

Section 3304 of California’s statutory Peace Officer Bill of Rights prohibits discipline from being imposed “if the investigation of the allegation is not completed within one year of the public agency’s discovery of the allegation of an act, omission, or other misconduct.” As the Department’s combined criminal/administrative investigation took one year and three days to complete, the question was whether the one-year statute of limitation was held in abeyance or “tolled” during the criminal investigation. The Bill of Rights does contain a “tolling” provision for criminal investigations, so the more narrow question was whether the tolling provision applies if the criminal and administrative investigations are conducted by the same agency.

The California Court of Appeals found that tolling provision applied, and upheld the Department’s right to discipline Iqbal. The Court held that “the plain language of Section 3304 imposes no restriction on who conducts the criminal investigation. The Bill of Rights itself deals only with law enforcement employers, which are presumably capable of conducting criminal investigations.

“Here, Iqbal tries to turn a factual issue into a legal one, by arguing that the Department’s use of the same investigator to conduct first the criminal investigation and then the administrative investigation, the latter of which used the information acquired during the former, proves [that] employers [can use] criminal investigations as a subterfuge to avoid the statute of limitations for disciplinary action. This is really a factual allegation of a sham investigation unsupported by evidence. To the contrary, the speculation that an employer might conduct a criminal investigation for the sole purpose of delay has no traction in this case, where the disciplinary notice was served a mere three days past the one-year limitations period.”

Department of Corrections and Rehabilitation, 2016 WL 3090996 (Cal. App. 2016).