Lucio v. City of Los Angeles (Labor and Employment Law)

Filed December 23, 2008

Second District, Division 3

Cite as 2008 SOS 6935

Tolling Provision in Administrative Case Against Erring Cop Upheld

The issue stemmed from a case involving Jerry Lucio, a discharged Los Angeles Police Department (LAPD) officer and the city of Los Angeles (city). Lucio filed for a petition for writ of mandate in an administrative complaint filed against him.

Lucio was discharged from the police force as a result of a case filed against him arising from his relationship with two women Lucio met Jenna K. when he was still a policeman while Debra H. is his girlfriend and mother of her three-year old son.

In September 2004, Lucio and Jenna K. began an intimate relationship but less than a year later, on March 2005, Jenna reported Lucio to police Internal Affairs, complaining that Lucio threatened to kill her and leave the country. However, on August 2005, the police told Jenna K that there was no prima facie criminal case against Lucio.

Meanwhile, on June 2005, Lucio and her girlfriend, Debra H, got into an argument regarding the care of their son, in which Lucio told Debra H that he would go to court to get custody of the boy. Lucio took their son away and went to a hotel. Debra H reported the matter to the police, concerned of the safety of the boy. A police sergeant talked to Lucio and advised him to return the boy.

On March 22, 2006, slightly more than one year after the March 10, 2005 date of discovery, Lucio was personally served with a “complaint and relief from duty, suspension or demotion.” The personnel complaint advised Lucio he was being temporarily relieved of duty on March 23, 2006, pending a hearing and decision by a Board of Rights (Board) on the charges relating to his relationship with Jenna K.

On May 30, 2006, Lucio was personally served with another personnel complaint, advising Lucio he was additionally charged with threatening Debra H. A Board convened on July 25, 2006 to hear the charges.

Lucio moved to strike all the charges related to Jenna K. on the ground they were barred by the one-year limitations provision of Charter section 1070(c)(1).2. Lucio argued the Department was barred from invoking the tolling provision of Charter section 1070(c)(1) because the matter was never presented to the District Attorney’s office for possible criminal prosecution. The log contains an entry that there was “lack of criminal prima facie to present” to a prosecutor.

The Department, in turn, held that the internal criminal investigation did not end until it was determined there was not enough to file the case as a criminal threat. Therefore, the Department urged the Board to find the matter was tolled until August 23, 2005.

After consulting with the City Attorney’s office, the Board found the matter was tolled during the internal criminal investigation pursuant to Charter section 1070(c), and therefore the personnel complaint was timely.

The Board proceeded to find Lucio guilty on four of the six charges against him, namely, counts one, two three, and six.3 On July 27, 2006, the Board issued a decision recommending that Lucio be removed from service. On August 25, 2006, William Bratton, LAPD Chief, adopted the recommended penalty and discharged Lucio from the service.

The essential issue presented is whether certain aspects of the City’s disciplinary action against Lucio, namely, counts one, two and three, were barred by the one-year limitations period of Los Angeles City Charter (Charter) section 1070(c).

On July 2007, the trial court denied the petition for writ of mandate.

Lucio filed an appeal from the judgment denying his petition for writ of administrative mandate. Lucio contended that counts one, two and three, relating to Jenna K., are barred by the one-year limitations provision of Charter section 1070(c)4.

During appeal, the Second District Court of Appeal concluded that the city satisfied the one-year limitations provisions of Charter section 1070(c) because the matter was tolled in excess of 13 days, while the Department conducted a months-long internal criminal investigation into Lucio’s conduct. [Charter section 1070(c)(1)].

Further, the appeals court further concluded the following

• that although count one (converting official on-duty contact into social relationship with Jenna K.)


• that count three (conducting personal business while on duty), unlike count two (inappropriately threatening Jenna K.), did not allege criminal wrongdoing by Lucio, the criminal investigation related to the entire relationship between Lucio and Jenna K


• that it included the same conduct which was in issue in the administrative disciplinary proceedings

Therefore, the tolling provision of Charter section 1070(c)(1) applies with equal force to counts one and three.

Still further, the court held that the City’s disciplinary action against Lucio satisfied the limitations period of Charter section 1070(c), which is preempted by Government Code section 3304, subdivision (d), or any other issues.

The Second District court of appeal therefore affirmed the judgment.