The City of South Gate and the South Gate Police Department have been ordered to reinstate a previously terminated "probationary" Police Officer to a non-probationary Police Officer position because his probationary period had been unlawfully extended "by contract."  A Superior Court Judge for the County of Los Angeles found that the South Gate Police Department (South Gate) unlawfully extended the probationary period of Officer Juan Cabral, and that the "contractual" extension was contrary to South Gate's Civil Service and personnel rules and contrary to established laws applicable to police officer employment. 

In June 2005, Officer Juan Cabral was hired as a Lateral-Entry Police Officer with the City of South Gate.  Officer Cabral had been a Police Officer with another California law enforcement agency and possessed a POST "Basic Certificate."  As a Lateral-Entry Police Officer with South Gate, Officer Cabral was required to serve a 12-month probationary period (June 2005 to June 2006) pursuant to South Gate's own Civil Service Rules.  Throughout Officer Cabral's probationary period, he received "meets standards" or "exceeds standards" performance evaluations.  Officer Cabral had not received any negative evaluations, notice, or other documentation indicating "needs improvement" or "unsatisfactory" performance.  Further, Officer Cabral had been involved in several critical incidents where he performed exceptionally. 

Nevertheless, just a matter of days before he was to complete his probationary period in June 2006, Officer Cabral was presented with an ultimatum by South Gate Police Department management -- face immediate termination for allegedly "not meeting standards" or sign an agreement to extend his probationary period for an additional year - until June 2007.  At this meeting, Officer Cabral was told not to discuss the extension agreement with anyone, and he was denied an opportunity for a representative or to consult with an attorney before deciding whether to "agree" to the ultimatum.  Officer Cabral was also barraged with profanities, insults, and false statements about his performance and his character.  Facing an immediate termination that was without facts to support a "not meeting standards" situation, Officer Cabral was compelled and coerced into signing the agreement to extend his probationary period and "waive any and all" appeal or legal rights.     

For the next year, Officer Cabral remained on probationary status, worked patrol assignments, performed well, received "meets" or "exceeds" standards evaluations, and served his community.  However, near the conclusion of the "extended" probationary period, Officer Cabral was confronted with another "agreement" to extend his probationary period for an additional year - until June 2008.  This agreement also included a catch-all waiver denying his rights "to file or pursue any legal, administrative or other claims, actions, grievances or lawsuits, including substantive due process claims or lawsuits, against the City, the Department, and any of its agents.... arising from the extension of Probationary Officer's probationary period."  Facing the same ultimatum as the previous year, Officer Cabral signed the agreement.  Nevertheless, a month later, and now after 25-months of probation, Officer Cabral was terminated for "not meeting standards."  As a coup de grâce, South Gate also included in the "not meeting standards" termination alleged facts that would "stigmatize" Officer Cabral's reputation or "seriously impair his opportunity to earn a living."  Officer Cabral timely appealed, but was denied his right to an administrative appeal hearing under the Public Safety Officers Procedural Bill of Rights Act.   

Officer Cabral then came to LDF and Lackie, Dammeier & McGill for assistance, and a writ of mandate under Cal. Code of Civil Procedure section 1085 was promptly filed in the Superior Court for the County of Los Angeles.  Lackie, Dammeier & McGill asserted that at the time of the termination, Officer Cabral was a permanent, non-probationary, Police Officer under South Gate's own Civil Service Rules and under statutory laws.  As such, the termination required sufficient "cause" because Officer Cabral had a property interest in continued employment.  Officer Cabral was also entitled to due process under the law, including rights under Skelly v State Personnel Board, Cal. Government Code sections 3300, et seq. (Public Safety Officers Procedural Bill of Rights Act), Cal. Penal Code, and the California Constitution. 

Although there are conditions when an officer's probationary period may be extended, the probation extension agreements involving Officer Cabral were clearly employment contracts that conflicted with peace officers' conditions of employment under statutory laws (Penal Code, Government Code, Civil Service Rules, Administrative Code (POST), etc.).  Civil Service employees (Police Officers) are statutorily employed, not contractually employed.  "The terms of public employment are set by statute, not by contract."  Jenkins v County of Riverside (2006) 138 Cal.App.4th 593, 604.  "The terms and conditions of civil service employment are fixed by statute and not by contract...the statutory provisions controlling the terms and conditions of civil service employment cannot be circumvented by purported contracts in conflict therewith."  Boren v State Personnel Board (1951) 37 Cal.2d 634, 641. Clearly, South Gate's "agreements" conflicted with Officer Cabral's statutory conditions of employment and were invalid.  Officer Cabral was required to successfully serve a 12-month probationary period (not 25-months) before becoming a permanent officer, which he did by "meeting or exceeding standards." 

South Gate opposed Officer Cabral's assertions and argued extensively that it had the authority to extend Officer Cabral's probation under its Civil Service Rules for City employees, and that the "agreements" were valid and entered into voluntarily.  South Gate claimed that two conflicting Civil Service Rules both applied to Officer Cabral, despite clear language to the contrary in a specific rule applicable to Lateral-Entry Police Officers.  South Gate also claimed that any relief given to Officer Cabral would be unjust because Officer Cabral was the one that "benefited" by the extended employment period.                 

However, the Court saw it differently and ruled in Officer Cabral's favor twice.  First, the Court overruled South Gate's demurrer to Officer Cabral's writ, and second, the Court subsequently granted Officer Cabral's request for a writ of mandate.  The Court ordered South Gate to vacate the decision to terminate Officer Cabral, to reinstate him to a non-probationary Police Officer position, and to compensate him for back pay and costs. 

ABOUT THE AUTHOR: Steven J. Brock is an attorney with Lackie, Dammeier & McGill APC, and represents police associations, officers, and public employees throughout California in labor, employment, and civil rights related civil litigation.