Monday, June 4, 2012

Court Finds Note in "Evaluation Log" Not Punitive Action Under POBR

     In an unpublished decision, the Court of Appeal held a note in an “evaluation log" is not a “punitive action” within the meaning of POBR.  Scott Kansaku v. City of Hermosa Beach et al. started after an IA investigation into citizen complaint.  After the investigation, the local police chief decided to enter a note into the officer’s evaluation log about the incident.  The officer then requested an administrative appeal and the department denied the request.  The officer filed a claim in superior court alleging the city violated POBR by denying him the administrative appeal and not allowing him access to the evaluation log.

     The Court found the city’s action of entering the comment in the evaluation log did not constitute a punitive action under Government Code section 3304. The Court stated there was no discipline imposed nor was there a written warning that future discipline would occur if the behavior continued.  Rather, the court viewed the comment as a reminder when it came time for the officer’s performance review.  The department claimed supervisors use log notes assist to complete employees’ annual performance reviews and to facilitate communication between supervisors and subordinates.  Indeed, the court stressed there was no evidence the evaluation log was used for any purpose other than preparing performance evaluations.  The court also decided the officer did not show sufficient facts to prove he was denied access to the comments because he signed a document indicated he knew the charge was sustained.