Monterey Park Police Officer Rick Munder had been riding motors for nine years until he had to put his bike down to avoid a collision. Although Munder was not injured as a result of a properly-executed collision avoidance maneuver, Chief of Police Sam Cross ordered him transferred from the traffic bureau to patrol. Officers facing discipline, including punitive transfers with loss of premium pay, are afforded an extensive disciplinary appeal process culminating in an evidentiary hearing, except Officer Munder.
The MOU between the POA and the City contained an ancient provision for loss of specialty assignments (such as motor officer) limiting an appeal of the transfer to a non-adversarial, non-evidentiary meeting with the Chief, whose decision would be final. Munder, being a long-time POA board member and staunch supporter, knew that the Public Safety Officers Procedural Bill of Rights Act (the "Act") required that he be given something more than a mere meeting with the Chief. Nevertheless, Munder and his attorney, Michael Lackie of Lackie, Dammeier, McGill & Ethir APC, met with Chief Cross who refused to debate --- or even discuss --- the transfer. There was no Skelly package to review and Munder was given no explanation for the transfer. Needless to say, the meeting with Chief Cross did not go well. Moments afterwards, Munder received the Chief's decision in writing upholding his original decision to make the transfer without setting forth any justification.
Munder's attempts to appeal beyond the informal meeting with Chief Cross and to invoke the normal disciplinary appeal process was refused by the City.
The case was taken to the Legal Defense Fund Board of Trustees for affirmative relief. The trustee's authorized Mr. Lackie to take the matter to the Los Angeles Superior Court on a writ of mandate seeking an order to the City to grant Munder an evidentiary hearing comporting with the minimum due process required by the Act and case law.
The City argued in Court that Munder was transferred for non-disciplinary reasons, he did not lose any "base salary," and was given a "hearing" as required by the MOU.
Mr. Lackie argued that none of this mattered because Munder lost pay when he was taken off motors and, consequently, the transfer was per se "punitive". Mr. Lackie further told the Court that the due process hearing required by the Act cannot be limited or waived by the POA or City, even if mutually agreed-upon in a MOU.
Unfortunately, Judge Disentra Janev agreed with the City and denied the writ. Part of the Court's reasoning was that police management must have some latitude to move officers around when necessary and they can do so for non-disciplinary reasons. The Court essentially ignored the fact that Munder lost pay as a result. Interestingly, the Court was unable to cite any cases in support of its decision.
Once again, Munder took the matter to LDF and was granted permission to appeal from Judge Janav's decision to the Court of Appeal. A panel of three justices of the California Court of Appeal in Los Angeles (2nd District) reversed the Superior Court's judgment and ordered that a writ issue granting Munder his hearing.
In an unpublished decision, the appellate court said, consistent with long-standing court decisions, that a peace officer is entitled to an evidentiary hearing when a loss of pay is involved. The Court swept aside the City's contention that the pay loss was not part of the officer's base salary as irrelevant. Equally unimportant to the Court was the City's disingenuous argument that the transfer was for non-disciplinary reasons. However, the Justices determined that a city and POA could come up with a appeal hearing for non-disciplinary transfers which trigger the Acts requirement for an administrative hearing under Government Code §3304 which would provide the required due process (an adversarial, evidentiary hearing) but not necessarily the same full-blown hearing available for disciplinary cases. The Court specifically held that a MOU cannot trump the Act's due process requirements and, accordingly, a meeting with the Chief is insufficient to meet minimum due process.
Moreover, the Court specifically held that whatever hearing might be available to Officer Munder it cannot be conducted by Chief Cross because he proposed the transfer in the first instance. In Monterey Park, Officer Munder will be able to take advantage of the regular disciplinary appeal proceeding because the City has no alternative that meets the minimum requirements described by the Court.
This decision is important for all law enforcement officers in California because it wipes out the ability of agency heads to avoid the Acts administrative hearing requirement by claiming that a punitive transfer or other disciplinary action was not disciplinary or to claim that such positions are merely temporary to avoid triggering the Act. Thus, an officer transferred for whatever reason with a resulting loss of pay (other than overtime) must be granted an evidentiary hearing because the transfer is "punitive" as a matter of law. Moreover, the Court reaffirmed prior case decisions that hold a MOU provision may not be used to diminish an individual officer's rights under the Act.
PORAC and Lackie, Dammeier, McGill & Ethir APC will petition the Court of Appeal to publish this important decision so that it can be cited by law enforcement officers in the future who face the same predicament as Officer Munder.