Counting the days
Doing nothing can have severe consequences. One of the many inquiries we get at the League concerns the various appeals available to officers’ when the Department takes some kind of adverse action against them. All too often, by the time the question is asked, it is too late to do anything about it. So what are the time limits on your appeal rights?
How to count
There are two rules about counting the number of days until a time limit, or statute, expires. The first rule is that you start counting on the next day after being served a document, and it ends on the last day. The second rule is that if the last day ends up on a weekend, or holiday, the time is extended until the next business day. As an example, if the time limit is five days and you are served on Tuesday, then day number 1 is Wednesday; day number 2 is Th ursday; day number 3 is Friday, day number 4 is Saturday and day number 5 is Sunday. Then the second rule kicks in because Sunday is a weekend and the last day is extended to Monday. By the way, these are calendar days, not business days. Business days only come into play if the calendar days are not on a weekend, or holiday. Th e amount of time that you have to appeal depends on the nature of the appeal that you are seeking. Different appeal processes have different time limits. Let’s go through them one at a time. It is also valuable to review what can be appealed and what that appeal entails.
Not resolved personnel complaints
Because the League won a lawsuit over this issue, not resolved allegations can now be appealed. The Department was using not resolved adjudications against officers, therefore, the court said they are punitive. And if they are punitive, the Public Safety Offi cers Procedural Bill of Rights Act says that an offi cer is entitled to an appeal. Th e exact nature of the appeal is being negotiated as I write this, but an interim agreement between the Department and the League gives the offi cer the right to an Administrative Appeal hearing. Th e time limit for filing the appeal is 20 days a fter notice of the not resolved adjudication. The appeals are handled by the Offi cer Representation Section (ORS) and fi led at the Internal Affairs Advocate section. The hearing o fficer’s adjudication is not binding on the Chief.
Paper penalties such as admonishments and official reprimands
Sometimes allegations of misconduct are adjudicated as sustained and the officer receives an admonishment or an o fficial reprimand. These are paper penalties and an o fficer is entitled to an Administrative Appeal. Other paper penalties are also possible, such as sustained-actions could have been different, or sustained-no misconduct, which can also be appealed. Th e time limit for filing the appeal is 20 days a fter service of the adjudication. Again, the appeals are handled by ORS. A request for a hearing must be filed before the expiration of that time period with the Internal Affairs Advocate section. Th e hearing offi cer’s adjudication is not binding on the Chief.
Administrative disapprovals
Administrative disapprovals for categorical uses of force can have penalties ranging from extensive retraining all the way to termination. An administrative disapproval need not necessarily be a personnel complaint or even an admonishment. It is possible to get an administrative disapproval-extensive retraining. Th e classifi cation of administrative disapproval cannot be challenged because it originates from the Police Commission. However, an offi cer can still challenge the extensive retraining through an Administrative Appeal hearing. If successful, the o fficer’s TEAMS will show “Administrative Disapproval-Not Guilty.” Th e appeals are handled through the Officer Representation Section. They must be led within 20 days of the service of the adjudication. Th e hearing o fficer’s adjudication is not binding on the Chief.
Grievance
The violation of a work rule or MOU provision can result in a grievance. Grievances must be initiated by first informing your immediate supervisor about your intention to grieve some act by the Department. The supervisor must be informed within 20 days of the occurrence of the grievable act. The supervisor then has 20 days to decide if he or she is going to solve the grievance. If the offi cer is advised that no action will be taken, the o fficer then has 20 days following that information to file a formal written grievance with the commanding o fficer of the offi cer’s division. (If there is no answer in 20 days, the offi cer can proceed with the next level of the grievance process.) Formal grievances are normally filed by the League Director assigned to the offi cer’s division. A fter several levels of review, arbitration is ultimately held, which is binding on the Department. Th ere are time limits imposed between each level of review, so consult section 8 of the MOU for details.
Comment cards
A negative comment card cannot be appealed. However, you can still have your say. Section 3306 of the Public Safety O fficers Procedural Bill of Rights Act provides that “a written response to any adverse comment” entered into an o fficer’s personnel file may be led by an o fficer and must be attached to the adverse comment. In other words, you can respond to the negative comment card and your written response must be attached to the comment card so that whoever is reading the comment card will also be able to read your response. The time limit for submitting this response is 30 calendar days. This process should not be confused with the Skelly process. The law does not require the Department to consider the response. It is more in the nature of being able to attach your side of the story to an adverse comment.
Skelly response
A Skelly response is based on Skelly v. State Personnel Board. The purpose of the Skelly response is to give a public employee the opportunity to respond to charges prior to the implementation of discipline. Th ere is no specifi c time limit for a Skelly response. “Reasonable time” is the standard. That may vary with the size oft he investigation, statute of limitations issues and the availability of the offi cer. If an o fficer is responding to a paper penalty, the Offi cer Representation Section will assist with writing a Skelly response. If an o fficer is responding to a penalty of one suspension day or more, and is a member of the League’s Legal Plan, a panel attorney will be assigned to assist with the Skelly.
Downgrades
Downgrades and demotions are different. A downgrade is from PIII to PII or from DII to DI. A demotion is from a civil service classi fication such as a sergeant to a police o fficer. Demotions are handled through the Board of Rights system. Downgrades, however, are Administrative Appeals. They are challenged by ling a request with Employee Relations Group (ERG). the appeals are handled and led by the Offi cer Representation Section. Th e appeal must be filed within 20 days aft er the transfer order is published, or 20 days aft er the effective date of the demotion, whichever is later. Th e hearing offi cer’s ruling is not binding on the Chief and can be overruled.
Appealing a suspension penalty
It is possible to appeal the number of suspension days imposed by the Chief without going to a Board of Rights. If an o fficer, for example, is given a 10-day suspension by the Chief, an officer could opt for a Board of Rights if he or she believes the penalty is too severe. Once having done that, however, the 10-day suspension is o the table. the Board can increase the penalty, even up to termination. There is, however, a way to challenge the severity of the penalty without risking a heavier hit. An Administrative Appeal challenging the penalty can be had. It requires admitting guilt and then challenging the severity of the penalty. Th e penalty cannot be increased. Th e appeal is handled and led by the Offi cer Representation Section and must be filed within 20 days of being served with the Complaint and Relief from Duty from the Chief. Th e hearing o fficer’s ruling is only advisory on the Chief and can be overturned.
Opted Board of Rights
The Chief can punish an o fficer up to 22 suspension days. is this done by serving a Complaint and Relief from Duty, Form 1.61, on the o fficer with the charges listed and the number of suspension days to be administered. An offi cer has fi ve calendar days to appear at the Internal Affairs Advocate Section and draw a Board of Rights or the suspension days go into effect. When you draw a Board of Rights, the number of suspension days recommended by the Chief is off the table. The Board can recommend adjudication from not guilty to termination. The Chief can reduce, but not increase the penalty recommended by the Board. Contact the League Claims Unit if you are served with a Complaint and Relief from Duty immediately.
Mandatory Board of Rights
If the Chief thinks that an o fficer’s penalty should be more than 22 suspension days, or termination, he orders the o fficer to a Board of Rights. The recommendation is almost always termination. An o fficer has five calendar days a fter being served the Complaint and Relief from Duty to appear at the Internal Affairs Advocate Section to draw a Board of Rights. If the o fficer fails to do this, the Chief will draw a Board for the offi cer and the Board will proceed with those members. The Chief can reduce, but not increase, the penalty recommended by the Board. Again, contact the League Claims Unit if you are served the Complaint and Relief from Duty immediately.
Conclusion
Be aware of the time limitations. Th ere are some extenuating circumstances that are beyond the scope of this article. So even if the days have passed, contact the League, but don’t count on some exception being found. For the most part, the time limits are adhered to and are backed up by the courts. Act within the time limits.
Waiting until the last minute is also problematic. Representatives need time to do the paperwork, so don’t put them in a bind. Time passes relentlessly. Don’t let it extinguish your appeal rights. Call the League Legal Department at (213) LAPPL4U, or the Officer Representation Section at (213) 486-4750.
Be legally careful out there
