Court of Appeals Says Police Officer’s Promotion Can Be Rescinded Based on Pre-Promotion Misconduct
On June 14, 2019, the California Court of Appeals, Second District, published a decision affirming the denial of a police officer’s request for administrative appeal from rescission of a probationary promotion based on findings of pre-probationary period misconduct. After administrative appeals were unsuccessful, the officer filed a writ in court against the County of Los Angeles (“County”) seeking declaratory judgment that the County violated the Public Safety Officers Procedural Bill of Rights Act (“POBRA”) when it failed to grant an administrative hearing on the rescission, and an order to provide that hearing. The appellate court affirmed the trial court’s decision, finding no violation of POBRA rights because the officer was denied a promotion on merit-based grounds, and failed to establish future adverse consequences on the officer’s career beyond denial of the probationary promotion.
Facts of the Case
The facts of the case were not in dispute. Thomas Conger (“Conger”) was employed as a sergeant by the Los Angeles County Sheriff’s Department (“Department”). On November 1, 2015, Conger was promoted to lieutenant, a position subject to a six month probationary period. In April of 2016, the Department noticed Conger of an investigation into allegations of unreported use of force on May 21, 2015. The Department also extended Conger’s probationary period indefinitely. The investigation resulted in the following sustained findings of misconduct: (1) On May 21, 2015, Conger failed to adhere to Department policy; (2) He failed to report use his own use of force and that of two subordinates; and (3) Conger failed to direct his subordinates to document their use and witness of use of force from the same incident. Based on the investigation, Conger received a negative probationary evaluation concluding that he did not meet the standards for the position of lieutenant, and recommending the Department release Conger from his probationary lieutenant position. Based on the evaluation, the Department adopted the recommendation and released Conger on May 20, 2016, citing the investigation.
Conger’s written appeal of the release to the County’s human resources office, and request for administrative hearing to the Civil Service Commission, were both denied. As a result, Conger filed a writ seeking declaratory judgment and an order directing the County to provide him an administrative hearing outlined in POBRA. (Gov. Code § 3304(b).)
The trial court denied Conger’s writ petition, ruling that the term “merit” – as used in the Government Code Section 3304(b) exception to the requirement for administrative hearings for denial of promotions – is not limited to the merits of an officer’s probationary performance, and that Conger was not entitled to an administrative hearing on the denial of his promotion because the Department’s grounds were clearly merit-based. The appellate court affirmed.
Administrative Hearings under Government Code Section 3304(b)
POBRA codifies basic rights and protections afforded to all peace officers. Government Code Section 3304(b) provides that officers who successfully completed their probationary period are entitled to administrative appeal of: (1) Punitive actions; and (2) Denials of promotion on grounds other than merit. “Punitive action” is defined in Government Code Section 3303 as “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” Additionally, some case law suggests that the right to administrative appeal is triggered by findings of misconduct that could negatively affect an officer’s career in the future.
- Punitive Action
Conger at times referred to his release from his probationary position as a ‘demotion.’ If accurate, Conger would be entitled to administrative appeal. The Court disagreed with the characterization, and held that there is no demotion where the officer is released while still in a probationary period, as the employer is still evaluating whether or not the officer deserved the higher position. Because the County indefinitely extended Conger’s lieutenant probationary period, and Conger did not dispute the County’s authority to do so, Conger had not completed probation at the time the County returned him to his previous rank. Thus, Conger was denied a promotion, not demoted.
- Denial of Promotion on Grounds Other than Merit
Peace officers are entitled to administrative appeal if denied a promotion on grounds other than merit. (Government Code Section 3304(b).) “Grounds other than merit” is not statutorily defined. However, the Court affirmed the trial court’s ruling that at minimum, factors constituting merit include those substantially related to proper performance of the position’s duties. The Court thus affirmed the trial court’s ruling that the Department denied Conger’s promotion on merit-based grounds. Lieutenants occupy a high supervisory position, thus a lieutenant’s ability to comply with department procedures and ensure subordinates follow the same is substantially related to proper performance of a lieutenant’s duties. Conger’s failure to report use of force per Department policy, and failure to direct his subordinates to do the same, constituted incompetence as a supervisor. Therefore, the Department’s rescission of Conger’s promotion based on the findings of the investigation was merit-based.
Conger argued that because the alleged conduct occurred prior to the probationary period, the Department denied his promotion on grounds other than merit. The Court disagreed, finding that Government Code Section 3304(b) does not include a limitation that “merit” be evaluated solely during the probationary period. Past performance, the court reasoned, is just as indicative of ability to succeed at a higher position as performance during probation. Thus, the Department’s merit considerations properly included Conger’s pre-probationary period performance.
- Findings of Misconduct that Negatively Affect an Officer’s Future Career
Conger also argued that, because the negative evaluation was placed in his personnel file and may be relied upon in future personnel decisions, he is entitled to administrative appeal. The Court disagreed, and clarified that the mere fact a personnel action could or does lead to denial of promotion on merit grounds does not entitle the employee to administrative appeal of that action. Moreover, the Court held that placement of a negative evaluation in the officer’s personnel file, and assertion of a present adverse impact that does not trigger the right to administrative appeal, is insufficient to establish a negative effect on the officer’s future career. Because Conger failed to submit additional evidence to link the negative evaluation to future adverse consequences, the Court found no negative impact on his future career.
The Court defined “merit,” as applied to Government Code Section 3304(b), to mean, substantially related to proper performance of the position’s duties. Law enforcement agencies should take note of this definition and model employment decisions to comply with the same.
The Conger decision also limits the scope of officers’ right to administrative appeal in two important ways. First, evaluations of performance outside the probationary period may be considered in release from probationary position without triggering the right to administrative appeal. Law enforcement agencies should be aware they may continue to initiate investigations into misconduct, and rely on the findings to decide whether an employee’s promotion should be permanent, even after an officer has been promoted to a position subject to a probationary period. Second, officers must provide evidence linking the personnel action to a future adverse career impact in order to assert a right to administrative appeal by virtue of a negative effect on their career. Accordingly, negative evaluations or recommendations must be carefully written to avoid language that suggests future adverse impact beyond placement in the officer’s personnel file.
Special thanks to Natalee Jung, Law Clerk, for her assistance in preparing this Alert.