The Nye County Law Enforcement Association voted to affiliate with COPS in Nevada at a general membership meeting held November 6, 2007. At the meeting held at the Pahrump library, LEA President Travis Higgins told the membership “we have checked all of the various organizations out there, and no one else even comes close to providing the representation COPS does.” The association was previously being represented by the Fraternal Order of Police.

“This is a period in their history where they need a union that can come in and help change the culture.”

“This is a period in their history where they need a union that can come in and help change the culture.” Higgins told the membership he received rave reviews of COPS' representation from Henderson Police Officers Association President Darrell Wade. “He basically said they were extremely happy with COPS and has no idea how they ever got along without COPS.” Nye County LEA Vice President Trevor Meade also called Elko Police Officers Protective Association President Ty Trouten to ask about COPS' service. Trouten told Meade they have received more representation from COPS in the last 12 months than they received from PORAN in the previous several years.

“We are ecstatic at the opportunity to serve the Nye County Deputy Sheriffs” said COPS Executive Director Monty Holden. “COPS continues to grow as more law enforcement organizations hear about the top-notch service we provide to our members.”

Termination Rejected for L.A. Cop

A Los Angeles Police Officer was improperly fired for misusing his department computer, the Second District Court of Appeal held, because the board of rights based its decision on misconduct that occurred outside the two-year statute of Limitation period prescribed by the city charter. The board erroneously determined that the office's actions were criminal in nature, and therefore subject to a three year limitations period.

The factual backdrop in this case involved allegations that a Los Angeles police officer had physically assaulted a woman he was dating. During an internal affairs investigation into those charges, the department discovered that the officer had used his computer to search the records of celebrities and his ex-girlfriend while on duty. Most of the evidence in support of these allegations dated back to 1994, but other examples were more current.

On March 28, 2001, the department served a 52-count administrative complaint on the officer. The majority of the accusations that concerned domestic violence charges were later withdrawn, but the department added three counts targetting the officer's misuse of the department's computers.The gist of these charges was that the officer had conducted searches using department computers and that he had no legitimate work reason to do so.

Following a board of rights hearing, the department found the officer quilty of these three charges and recommended termonation. The department accepted that recommendation and fired the officer in October 2003. The officer unsuccesfully challanged the dismissal and then appealed.

The court first determined that the officer's misconduct was not criminal activity covered by the three-year statute of limitations.

The court rejected the department's contention that the officer had violated Penal Code Section 502 C (7), which describes as a criminal offense unauthorized “access” to a computer system or network. The court determined that “access” refers to “hacking,” and is defined in the statute as entry gained to “instruct, or communicate with the logical,arithmetical, or memory function resources of a computer.” This is different than using a computer without permission, which is misconduct addressed in Section 502 C (3). Relying on rules of statutory construction, the court felt compelled to give different meanings to the words “use” and “access,” and concluded that the officer's improper computer inquiries about celebrities and friends were misconduct because he had no legitimate purpose for securing that information, but it was not hacking.

Next, the court considered Penal Code Section 502 (h), which prohibits criminal prosecution for acts committed by a person within the scope of his lawful employment. Even if the computer misuse was seen as criminal under subdivision (C), said the court, subdivision (h) removed the officer's conduct from threat of criminal prosecution. It is undisputed, said the court, that the officer was on duty when he misused the department's computers. But that fact does not mean he was acting outside the scope of his employment. “Showing that an employee violated an employer's rules does not determine whether the employee acted within the scope of employment,” said the court. Citing Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, the court commented, “Tortious conduct that violates an employee's official duties or disregards the employer's express orders may nonetheless be within the scope of employment.” The court concluded:

[A]n employer's disapproval of an employee's conduct does not cast the conduct outside the scope of employment. If the employer's disapproval were the measure, then virtually any misstep, mistake, or misconduct by an employee involving an employer's computer would, by respondents' reasoning, be criminal. For example, if an employer prohibited employees from logging on to the internet to check their personal emails, resopndents' definitions of scope of employement would make reading of one's email on company time a crime even where the employee read the email on a computer regularly assigned to that employee. Surely, that was not the Legislature's intent in enacting subvision C (7).

The court also examined a city charter provision which prohibited consideration of the officer's conduct that predated the department's administrative complaint by more than two years when setting the appropriate punishment. In one of the three counts of misconduct, half of the exhibits referred to computer inquiries that were more than two years old. All of the evidence in support of the second count was outside the two-year limitations period. Evidence in support of the third count referred to events that were within the statutory period.

In justifying the officer's termination, the board found that these three counts “individually and/or collectively” would h a v e r e s u l t e d i n t h e b o a r d ' s recommendation of removal. Because nothing in the record indicated that the department tried to separate misconduct less than two years old from older misconduct, the court could not discern what the board would have recommended had it known that the officer's punishable misconduct was substantially less than it believed. On this basis, the Court of Appeal sent the case back to the department to determine the appropriate penalty for those acts of computer misconduct that the officer committed within two years of the department's filing of the administrative complaint. (Chrisman v. City of Los Angeles [9-12-07] B184689 [2d Dist.] _Cal.App.4th_, 2007 DJDAR14264.).