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Newsletters
Sergeant Reinstated
By Michael A. Morguess
LACKIE & DAMMEIER LLP
San Jacinto Officer Ken Southern was promoted from Corporal to Sergeant on July 1, 2000. Pursuant to City Rules, promoted employees serve a six-month probation. As such, his probation as a sergeant was to end December 31, 2000. Eleven days before the end of his probationary period he received his performance evaluation report summary from his supervisor. In it, his supervisor gave Sergeant Southern an overall performance rating of competent, yet, also recommended that probation be extended for three months.
The City of San Jacinto Personnel Policies and Procedures §3.2 provide that a probationary period may be extended for a maximum of six months if the employee's performance during the probationary period is "marginal," and such extension is subject to the "approval of the Personnel Officer." Therefore, Southern's probation could not be extended because his overall performance rating was competent and not marginal.
This became apparent to the City and on February 1, 2001, Southern's supervisor prepared a memorandum disguised as an "evaluation addendum" for the sole purpose of reducing the overall rating performance to unsatisfactory, thereby justifying the recommendation for an extension of probation. Clearly, the City attempted to retroactively extend probation long after probation had ended and Southern had became a permanent sergeant.
Not surprisingly, before the end of the "extended" probationary period, Southern was rejected from the sergeant position and returned to the rank of corporal.
A number of cases hold that probationers are entitled to have a statutory procedure for rejection from probation strictly followed. That proposition applies with equal force under the City of San Jacinto's Personnel Policies and Procedures concerning extension of probation. The City could not show that Southern's probation was extended properly before the end of the original probationary period. His performance was not marginal so as to even trigger the authority to extend the probation. Furthermore, when the City produced the Personnel Action Form purporting to extend the probationary period, it was not even signed by the Personnel Officer until March 6, 2001, more than two months after the end of the original probationary period. Therefore, the City failed to follow its own rules by not having the extension of probation approved by the Personnel Officer before the end of the original probationary period.
Further damaging to the City's attempt to retroactively extend Southern's probation was its complete failure to give Southern notice of its purported extension of probation. Without being informed of the action extending his probation, Southern was entitled to assume that expiration of the probationary period was equal to having satisfactorily performed on probation. Being told otherwise long after probation was set to end is fundamentally unfair and "to say the least, a rather shocking event with a profound negative effect on the employee's moral and the potential for resultant lessoning of morale on others in the department." O'Dell v. City of San Diego (1989) 207 Cal.App.3d 882, 886.
After Southern and attorney Michael A. Morguess of LACKIE & DAMMEIER LLP met with San Jacinto Chief of Police Stuart Heller and the City's attorney, and upon realizing its failure to properly extend Southern's probation, Southern received notice of reinstatement to his sergeant's position retroactive with full back pay. By attempting to extend Southern's probation, the police department was free to reject Southern during that probation and return him to the rank of corporal without providing cause or a full evidentiary hearing supporting such action. While Southern's recent reinstatement to the position of sergeant does not prevent him from being demoted in and of itself, the City must now provide cause to support any attempted demotion and provide a full evidentiary hearing before a neutral fact finder. Such right is supported by the Public Safety Officers Procedural Bill of Rights Act at Government Code §3304(b) and due process.
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