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.

Fifth Circuit Rules Against Officer's Privacy Rights

Recently, in Coker v. Whittington, No. 16-30679 (May 23, 2017), the United States Court of Appeals, Fifth Circuit, ruled that Bossier Parish, Louisiana, did not violate the constitutional rights of two sheriff's deputies when it terminated them for violating the local Sheriff's Code of Conduct by moving in with each other's wives before getting divorced from their current wives. This ruling has troubling implications for the constitutional rights of law enforcement officers.

The decision, which was short on analysis and long on bias, ruled that the decisions in Obergefell and Lawrence did not apply to the facts of this case to protect the sheriff's deputies. The court held that public employees "necessarily shed some of their constitutional rights as a legitimate exchange for the privilege of their positions." The court also ruled that the Constitution does not protect "sexually inappropriate" conduct which would "mock marriage." 

Unusually, the court did not perform an analysis of whether the deputies' conduct had a nexus to employment. The court simply concluded that because officers' duties include preventing crimes like human trafficking and spousal abuse, the sheriff's deputies' conduct had the potential to "besmirch the reputation of the Sheriff's department and hinder its ability to maintain public credibility." The court did not explain how the crimes of human trafficking and spousal abuse related to the deputies' conduct as consenting adults. 

Interestingly, it is likely this case would have been decided differently in California. The Ninth Circuit has long held that questioning officers about their sex life and/or rendering employment decisions about their sex life violate privacy and associational rights interests and subject the agency to liability unde 42 U.S.C.A. § 1983. Thorne v. City of El Segundo (9th Cir. 1983) 726 F.2d 459, 471.

California's Constitution and state law provides heightened protection for privacy rights and a different view of what is "related to employment." Particularly, California courts have ruled that the critical question is not whether the officer's conduct violated the mores of the public or of the employing agency, but whether such conduct indicates an unfitness for employment with the agency (Warren v. State Pers. Bd., (1979) 94 Cal. App. 3d 95, 104, 156). Further, Yancey v. State Pers. Bd., ((1985) 167 Cal. App. 3d 478), held that “the overriding consideration is the extent to which the employee's conduct results in harm to the public service” (Id. at p. 487), and that "the Legislature did not intend to endow the employing agency with the power to dismiss any employee whose personal, private conduct incurred its disapproval” (Id. at 483.)" 

It is unclear whether the sheriff's deputies intend to appeal the decision at this time. Given the suspect nature of this ruling and Circuit split, the Supreme Court may decide the extent to which an Agency's inquiry into off-duty relationship of police officers exceed scope of state's legitimate interests and violated officer's constitutional rights.  Even if the Fifth Circuit's holding was adopted by the U.S. Supreme Court, such inquiries would still likely be deemed to violate California privacy rights.

PERB Petitions the California Supreme Court for Review of San Diego Initiative to Reduce Pensions

In June 2012 the voters of City of San Diego approved a citizen-sponsored initiative, the "Citizens Pension Reform Initiative" ("CPRI"), amended the City Charter to reduce pension benefits for certain employees of the City.  Unions successfully challenged the measure in PERB as an unfair labor practice.  The Fourth District Court of Appeal reversed the PERB's ruling in Boling v. City of San Diego.   Now the unions and PERB have petitioned for review in the Supreme Court.

Under the MMBA, ballot measures approved by local governing bodies and then by the voters are subject to meet-and-confer requirements. (People ex re. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591.) No published opinion had determined whether Seal Beach applies to citizen initiatives.  

The unions challenged the claim that the initiative was “citizen-sponsored” by arguing that the mayor had aided in the initiative's development and had campaigned for it. The unions also argued that the mayor was attempting to circumvent the MMBA by publicizing and campaigning for the initiative with the public in an attempt to cause them to take up the initiative. Accordingly, the unions argued that because the Mayor was the true driving force behind the CPRI, the ballot was transformed into a "governing-body-sponsored" ballot proposal. This would trigger the “meet and confer” provisions of the MMBA. 

PERB concluded that Seal Beach should apply in the present case based on the mayor’s statutory role in labor relations and common law agency rules supporting a conclusion that his support for the proposition was rendered in his official capacity.  PERB cited the fact that several people occupying elected and non-elected positions in San Diego's government provided support for the CPRI, and were essentially the driving force behind publicizing and writing its provisions. 

The appellate court disagreed holding there was no evidence the CPRI was ever approved by City's governing body (i.e. the City Council), which it cited as a requirement for the measure to be "governing-body-sponsored." The court explained that although the mayor and other City employees had drafted the “proposal”, the citizens ultimately led to it being placed on the ballot. The court further ruled that under the facts of this case, the mayor could not be found to be acting on behalf of the City Council under any agency theory. 

PERB and the unions filed a petition for review with the California Supreme Court.  If review is granted the Supreme Court will determine whether elected official and public agency personnel can circumvent the MMBA requirements to bargain over measures reducing pensions by obtaining voter signatures rather a  city council vote to get on the ballot.

CalPERS Changes Eligibility Rules for Industrial Disability Retirement

The California Public Employees’ Retirement System (CalPERS) posted Circular Letter 200-018-17 on March 30, 2017. Among other things, this Letter addresses changes to the eligibility determinations for certain local safety members applying for industrial disability retirement. 


In the past, CalPERS relied on the employer’s recommendation to verify eligibility of any member for industrial disability retirement. However, CalPERS will now independently evaluate whether certain members are eligible. The employer must obtain CalPERS’ determination of a member’s eligibility to apply for disability retirement before the employer starts the process of a disability determination for any of the following circumstances:

• Disciplinary process underway prior to the member’s separation from employment.

• The member was terminated for cause.

• The member resigned in lieu of termination.

• The member signed an agreement to waive his or her reinstatement right as part of a legal settlement (i.e., Employment Reinstatement Waiver).

• The member has been convicted of or is being investigated for a work-related felony.

The Letter also imposes a requirement for local agencies to re-evaluate eligibility determinations for disability retirees under the voluntary service retirement age. The purpose is to verify whether the recipient remains physically or mentally disabled from the position which they disability retired for the condition(s) that they were approved for.

The Letter requires employers to provide all relevant personnel documents and medical records to CalPERS. This information will be used to conduct the second evaluation of a member’s medical incapacity and employment status.  However, providing such information to CalPERS creates a conflict for safety employers. For example, Penal Code section 832.7 prohibits employers from disclosing peace officer personnel records without the peace officer’s written consent or a Pitchess motion. Employers are also prohibited from disclosing medical information without written authorization from the employee.

Martindale-Hubbell Recognizes Mastagni Holstedt Attorney John Bakhit with Highest Honor

Martindale-Hubbell has recognized John Bakhit with its highest honor, an AV Preeminent rating, indicating a peer review for the highest level of professional excellence.  John is the Managing Attorney of Mastagni Holstedt's Ontario office.

Mr. Bakhit's practice centers on labor and employment law, where he handles complex claims arising out of the Public Safety Officers' Procedural Bill of Rights, the Firefighters’ Procedural Bill of Rights, the California Labor Code, the Meyers-Milias-Brown Act, complex contract negotiations with City, County, and State agencies, and other statutes protecting the rights of employees.

Prior to  law school, Mr. Bakhit served as an Oakland Police Officer working in Patrol and the Crime Prevention Unit, where he regularly wrote and served search warrants, worked undercover, and testified as an expert witness in court.