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Newsletters
Appellate Court Expands
Officers Rights To Appeal
Adverse Materials Placed In Personnel Files
By Dieter C. Dammeier
LACKIE & DAMMEIER LLP
The Public Safety Officers Procedural Bill of Rights Act at Government Code §3304, provides a peace officer with a right to an administrative appeal from "punitive action" imposed. Section 3303 defines "punitive action" as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for the purposes of punishment." This means that a peace officer is entitled to receive an evidentiary hearing before a neutral fact finder in which he or she may challenge any punitive action. Giuffre v. Sparks (1999) 76 Cal.App.4th 1322, 1329.
In an effort to avoid providing officers with appeal rights, police management have renamed "written reprimands" to documents such as "Written Counseling", "Written Warnings", "Shift File Entries" and my favorite, "Verbal Warnings Reduced to Writing." One such Department is the Los Angeles School Police Department which issues a Summary of Conference in lieu of written reprimands. Because the Department's position was these documents were not discipline they refused officer's request to appeal such documents being placed in their personnel files. As time progressed, sergeants were handing out Summary of Conference Memos like candy, needlessly filling officers personnel files with negative materials. Kevin Otto, the vice-president of the school police association received such a Summary of Conference Memo for failing to log his return time from his lunch break.
Dieter C. Dammeier of LACKIE & DAMMEIER LLP filed a Petition for Writ of Mandate in the Los Angeles Superior Court requesting the Court to compel the police department to grant Officer Otto an administrative appeal hearing from this Summary of Conference. At the Superior Court level, the Judge declined to grant the Writ, siding with the School District that the Summary of Conference document was not disciplinary. The matter was immediately appealed.
In the Appellate Court, the School District argued that Summary of Conference documents should be treated as performance evaluations, which have been held to not constitute punitive action. Turturici v. City of Redwood City (1987) 190 Cal.App.3d 1447. That argument was countered with the fact that the Summary of Conference documents were not "routine evaluations" but were issued without routine and only upon alleged misconduct by officers. Because Summary of Conference documents were utilized by the Police Department and the School District in future personnel decisions, such as assignments, promotions and future discipline, the Court held that "the agency's motive in taking any such action is irrelevant. They are each per se punitive without regard to the agency's motivation." The Court focused on the word "may" in section 3303, citing that "punitive action" is "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment."
The Court further held that "a written reprimand need not be labeled as such in order to constitute punitive action." In its decision, the Court wrote "if the contents of the Memorandum to be inserted in an officer's personnel file fall within the scope of "punitive action" then the officer's administrative appeal rights under the statute are triggered whatever may be the title of the Memorandum or the disciplinary intent of the Superior officer preparing the Memorandum." Otto v. Los Angeles Unified School District (May 11, 2001) Case No. B141388 (Request for publication pending).
The Otto Court in supporting its analysis looked to another recent decision in which a deputy sheriff was placed on administrative leave with his peace officer powers suspended. Gordon v. Horsley (2001) 86 Cal.App.4th 336. In Gordon, the Sheriff placed a letter in the deputy's personnel file criticizing his actions in an off-duty incident and prohibited him from carrying a firearm and from exercising peace officer powers pending the investigation. The Appellate Court in Gordon held that the Sheriff's letter amounted to a "written reprimand" because it was a "criticism for a fault."
The Appellate Court in Officer Otto's case remanded the matter to the Superior Court with direction to order the School District to provide an administrative appeal hearing for Officer Otto. It appears clear from these cases that the Courts will not allow police managers to circumvent officer's rights when action is taken which will have an adverse effect an the officer's career.
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