Court Upholds Officer's Right to Administrative Appeal of Termination

In 2008, a citizen filed a complaint against San Francisco police officer Morgado. The office of citizen complaints investigated and recommended the Chief impose discipline. The Chief agreed and submitted a complaint against the officer to the City’s police commission. After a full evidentiary hearing which the officer participated in, the Commission decided to impose termination. The officer sued the City in Morgado v. City and County of San Francisco alleging that the City violated the Public Safety Officers’ Procedural Bill of Rights Act (“POBR”) by failing to give him an administrative appeal of the final termination. The trial court agreed with the officer and issued an injunction vacating the termination until he had been provided the opportunity for an administrative appeal of the termination decision. The City appealed.

On appeal, the City argued that the evidentiary hearing at the Commission level effectively served as an administrative appeal of the Chief’s decision to discipline. By providing this evidentiary hearing, the City argued it fulfilled the purposes of the administrative appeal provision of POBR. The Court found a distinction between the Chief’s decision to recommend discipline and the termination actually imposed by the commission. The Court found that while there may be a right for an administrative appeal of an interim-step towards discipline, such as the Chief’s recommendation, ultimately this was not the relevant issue in this case.

The issue here was the ability to appeal the “final” imposition of discipline by the Commission. While the Commission’s evidentiary hearing fulfilled most of the purposes of an administrative appeal, the Commission’s processes ended when it made the final determination to impose discipline. The Court ruled the City should have provided an additional opportunity for independent re-examination of the imposition of termination. The Court stated that such an administrative appeal does not require the same full-scale evidentiary hearing, but merely the re-examination by someone not involved in the initial determination who will make written factual findings.

The City argued alternatively that the administrative appeal provision of POBR was unconstitutional because it restricted the constitutionally granted “plenary authority” of the City over the removal of its officers. The Court found no constitutional conflict, noting POBR constituted only a slight impingement. POBR did not proscribe reasons an officer could be terminated, rather it sets forth minimal procedural rights. The court upheld the Constitutionality of  POBR finding it was narrowly tailored to the purpose of promoting labor relations and created no substantive restrictions on the City’s ability to terminate employees. The Court of Appeal upheld the injunction and affirmed the trial court’s decision.

Court Holds Punitive Transfer Does Not Require Administrative Appeal

In Perez v. City of Westminster, the Court of Appeal held that even if an officer is accused of misconduct by his department, loses overtime opportunities, is transferred from SWAT and honor guard, not assigned trainees despite being a FTO, does not get to appeal  his discipline.  The Court relied on a strained interpretation of "punitive" action, chipping away at POBR rights and the well-established right to a White hearing.  The decision creates a conflict in the courts that will likely have to be resolved by the Supreme Court.

Internal affairs interviewed Officer Perez regarding a citizen complaint of excessive force during an arrest. The complainant claimed another Westminster officer had hit him in the face. Perez stated that he did not see this happen. The investigators told Perez the video and other officers’ testimony suggested Perez did see it. Perez reaffirmed he did not see the alleged excessive force.

Then, the City served Perez with a Notice of Intent to fire him. After a Skelly hearing, the Chief of Police reversed the findings based on insufficient evidence to sustain them. However, the Chief removed Perez from the SWAT team and honor guard. In addition, he refused to assign Perez and trainees in the FTO program and Perez lost significant overtime opportunities.

Perez argued the transfer from SWAT and loss of overtime opportunities was “punitive action” under POBR and that he should get to appeal. At trial, the Chief testified he removed Perez from the SWAT team because he had "lost confidence" in Perez’s honesty and ability to work cooperatively with others. He also testified Perez was removed from the honor guard because he thought there “was compelling information he had not been truthful” in the investigation. Ultimately, the Chief admitted his “lack of confidence” stemmed from the interval affairs investigation that he was unable to sustain, but denied Perez the right to appeal and have a neutral person decide. 

However, the court held that the loss of overtime and prestige did not render the transfers punitive, and that the Chief’s testimony showed the transfer was not “punitive,” but based on his lack of confidence in Perez.

This decision chips away at POBR rights long-established since White v. Sacramento.  In 1982, the California Supreme Court held that it violated POBR to transfer an officer to a lower paid position without giving them an opportunity to rebut the allegations against them.  The Court emphasized why POBR and the right to appeal are so important, noting "Erroneous action can only foster disharmony, adversely affect discipline and morale in the workplace, and, thus, ultimately impair employer-employee relations and the effectiveness of law enforcement services."  David P. Mastagni represented Dep. White.

But here, the Court of Appeal permitted a Department to discipline an officer based only on the Chief's personal hunch and without any right to appeal.  As a result, it is likely the Supreme Court will have to resolve the conflict.    

Court of Appeal Denies Administrative Appeal for Officers' Involuntary Transfers

On December 9, 2014, the California Court of Appeal held the Public Safety Officers' Procedural Bill of Rights Act ("POBR") does not afford officers the right to an administrative appeal of a transfer of assignment solely because the transfer may lead to negative employment consequences. In Los Angeles Police Protective League v. City of Los Angeles, the Court of Appeal denied two peace officers an administrative appeal for their involuntary transfers of assignments.

In City of Los Angeles, two officers were involuntarily transferred to different assignments. The City based one transfer on the officer's negative performance in the areas of counseling, communication, and management skills toward subordinate employees. The City transferred another officer because a discipline investigation supposedly damaged the officer's relationships with his coworkers. The City claimed his transfer provided an opportunity for a "fresh start with new coworkers."

POBR affords officers an opportunity for administrative appeal of "transfers for purposes of punishment." The officers alleged their transfers were punitive. As evidence, one officer asserted that the transfer would not allow her to work as many overtime hours and she would lose her department-issued take-home vehicle. The other officer showed he was placed on restrictive duty status, which prohibited him from carrying a gun, and the transfer damaged his reputation. Both officers asserted the transfers would adversely affect their opportunities for promotion in the department.

The court held the transfers were not punitive and the officers were not entitled to an administrative appeal. The court held the loss of possible overtime did not result in a "reduction of salary" because the officers were not entitled to particular amount of overtime and it varied depending on departmental needs. The court also found officers were not entitled to take-home vehicles, and it did not result in any reduction of salary. In addition, the City presented evidence that involuntary transfers would not hurt the officers' chances of promotion. This is an unfortunate case for peace officer's appeal rights.