Court of Appeals Clarifies that Denial of Promotion Based on Behavior Occurring Prior to a Probationary Promotion Does Not Trigger Appeal Rights Under POBRA.

A recently published case from the Second District Court of Appeals, clarifies when a probationary employees is entitled to appeal rights under the Public Safety Officers Procedural Bill of Rights (“POBRA”). In Conger v. County of Los Angeles, the Los Angeles County Sheriff’s Department rescinded Thomas Conger’s probationary promotion to lieutenant based on investigatory findings that he had failed to report a use of force occurring several months before his probationary promotion.

Conger argued that rescinding his promotion based on alleged conduct occurring before he was elevated to his probationary position constituted a demotion or a “denial of promotion on grounds other than merit,” thus entitling him to an administrative appeal under POBRA.  However, the appellate court disagreed. It held that the Department’s decision to deny him a promotion was in fact “merit-based.” Specifically, the court noted that Conger did not dispute that the Department concluded he had failed to document a use of force. For that reason, the Court found that the reason was in fact “merit-based.” Thus, under the language of the statute, Conger was not entitled to an administrative appeal even if the Department deliberately chose to deny his promotion as a substitute for punitive action. Here it is also important to note that the Court clarified that Conger did not yet have a “vested property interest” in his promoted position, thus POBRA’s appeal rights would also not apply.

Lastly, the Court made a specific finding that Conger has failed to show that the written evaluation detailing his unreported use of force would impact his career adversely in the future apart from the loss of his probationary position.

The entire case can be read here.