Unsubstantiated Rumors Do Not Start Bill Of Rights Statute Of Limitations

Written on 01/05/2023
LRIS

Andrew Shouse was a captain with the Riverside County Sheriff’s Office in California. In April or May of 2016, Chief Lyndon Wood learned of a ru­mored intimate relationship involving Shouse and Deputy Karen Birchard. The rumors indicated Birchard was saving photographs or text messages on her cell phone, which Wood feared would be used in a legal action against the Department or that she was about to engage in conduct that would un­dermine Shouse’s authority, creating a conflict of interest.

In May 2016, Wood met Shouse for lunch and asked him if he was then or had ever had a sexual relationship with Birchard. Shouse told him he had in the past, from 2010 to 2015, while she was under Shouse’s chain of command.

Shortly thereafter, Wood also learned of an alleged relationship be­tween Shouse and Deputy Roxanne Salas from the Colorado River Station. Wood arranged to meet with Salas, who admitted she had had an intimate relationship with Shouse. In a result­ing investigation, the Department concluded that Shouse had engaged in improper sexual relationships with Birchard (2010-2015), Office Assistant II Miller (2014), Salas (2015) and im­proper sexting relationships with CSOs Herrera and Kabbara (2013-2016).

When the Department fired Shouse, he challenged his termination in the California Court of Appeals. The Court upheld Shouse’s termination.

Shouse’s argument was that his termination violated the Public Safety Officer’s Bill of Rights (POBRA) be­cause the investigation into his alleged improper conduct was not completed within one year of the discovery of his conduct. Shouse argued the Depart­ment violated the one-year limitations period because Chief Wood should have known of the improper conduct and initiated the investigation before May 2016 because Wood had heard rumors about Shouse’s relationships with female deputies before May 2016. Shouse argued that the investigation should have commenced – and con­cluded – earlier.

The Court disagreed, finding that “in the present case, there is no dis­pute that Chief Wood was the officer authorized to initiate an investigation. However, his testimony at the admin­istrative hearing reveals while he had heard rumors of sexual relationships between Shouse and female deputies, it could not be determined that these relationships were improper in viola­tion of Department polices.

“Sexual relationships with female deputies were not, per se, improper. As both Chief Wood and Undersher­iff Cleary each testified, the issue of Shouse having sexual relationships wasn’t the issue; it was Shouse’s fail­ure to report the relationships to the Department, and Shouse’s conduct in having sex with female deputies while on duty that was improper.

“Shouse argues ‘there were at least a half-dozen supervisors and senior of­ficers who were aware of allegations of misconduct involving Shouse prior to April 10, 2016, all of whom could have, like Chief Deputy Wood, initiated a complaint inquiry.’ The record shows there were rumors of Shouse having intimate relationships and drinking to excess, but Shouse fails to identify a single officer who was authorized to initiate an investigation or demonstrate that the public agency had determined that discipline should be taken prior to May 2016.

“We are certain Shouse does not wish to promote a policy of launching into the intimate relationships of pub­lic safety officers on the basis of mere rumors. Instead, an investigation into conduct that can have a devastating impact on the career of a public safety officer should only be initiated when the officer authorized to initiate an investigation knows or has reason to know that the conduct involves action­able misconduct. An officer authorized to initiate an investigation should not be required to do so on the basis of unsubstantiated rumors.”

Shouse v. County of Riverside, 2022 WL 16646827 (Cal. App. 2022).

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