The Third District Court of Appeal recently struck down CDCR’s common practice of serving disciplinary notices by mail as violating the Public Safety Officers Procedural Bill of Rights Act (“POBR”). In Earl v. State Personnel Board, 2014 DJDAR 15208 (November 13, 2014), a CDCR parole agent was served a “Letter of Intent” by certified mail, notifying him that the allegations against him were sustained. The parole agent argued that he was entitled to actual notice of the Letter within one year of the date of discovery under the procedural protections of POBR (Gov. Code §3304(d)(1)) and that service by mail did not comply with this provision. However, the State Personnel Board upheld his discipline and the trial court denied his petition for writ of mandate.

Government Code section 3304(d)(1) provides that in the event an agency decides to discipline a public safety officer, “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 …” within one year of the date of discovery of the alleged misconduct. (Emphasis added.) On appeal, the Court agreed with the parole agent’s position that the word “notify” means actual notification, not constructive notice, such as by mail. This means that an agency is required to provide personal service of its intent to discipline an employee and must do so within the one-year period from the date of discovery of the alleged misconduct.

Comment: The Earl holding is important because by using service by mail, CDCR has been able to essentially blindside its employees with disciplinary notices. CDCR tends to like to use as much of its one-year investigatory period as it possibly can and, frequently, the notice is served well after the internal affairs interview. With personal service, the employee generally must be called to, usually, the ERO’s office, and at least has some warning that something is coming. An internal affairs investigation is very stressful for an employee; at least now, CDCR cannot hide behind service by mail for its disciplinary notices.

If you have any questions, please contact Lina Balciunas Cockrell at lina@majlabor.com.