California Court of Appeal Confirms that Under the Public Safety Officers Procedural Bill of Rights Act, Administrative Appeal Must Be Provided After Decision to Impose Discipline Is Implemented
On June 27, 2017, the California Court of Appeal published Morgado v. City and County of San Francisco, holding that under the Public Safety Officers Procedural Bill of Rights Act (POBRA), an officer is entitled to an administrative appeal once a decision to impose punitive action has been implemented.
Background of Case
The City and County of San Francisco ("City") has a Police Commission, which shares responsibility with the Police Chief in imposing disciplinary action against police officers. Specifically, the City’s Charter provides that the Police Chief can impose discipline up to a 10-day suspension, or file a complaint with the Police Commission to seek a higher form of discipline (including termination).
In 2008, a citizen filed a complaint against Police Officer Paulo Morgado ("Morgado"). After an investigation determined that Morgado had engaged in misconduct, the Police Chief filed a disciplinary complaint with the Police Commission. The Commission conducted a full evidentiary hearing on the disciplinary complaint. Subsequently, it issued a decision to terminate Morgado’s employment. Morgado was not provided with any opportunity to appeal this decision.
The City took the position that the evidentiary hearing before the Police Commission was the "appeal" required by the POBRA at Government Code section 3304(b). In essence, the City maintained that the Police Chief’s disciplinary complaint was "punitive action" and that Morgado was provided with a hearing before the Police Commission. However, Morgado and his union argued that the action by the Commission to terminate him was the first "punitive action" imposed against him, and that he should have received a further opportunity to appeal following the Commission’s action.
During discovery, the City admitted that as a factual matter, the only punitive action taken against Morgado was the Commission’s decision to terminate his employment, and that it did not provide Morgado with an "administrative appeal" of that decision.
In finding for Morgado, the trial court enjoined the Commission from taking any punitive action against Morgado pursuant to the complaint without first providing Morgado with an opportunity for an administrative appeal. The court vacated Morgado’s termination. The City appealed.
The Appellate Court’s Reasoning
The California Court of Appeal focused on Government Code section 3304(b)’s requirement that public safety officers be allowed to appeal punitive actions. The court noted that the purpose of the requirement is to ensure that a peace officer subjected to a punitive action has the opportunity to establish a formal record of the circumstances surrounding his termination and to attempt to convince the employer to reverse its decision.
In addition, the court discussed Section 3304.5, which provides that an administrative appeal instituted by a public safety officer under the POBRA must be in conformance with the rules and procedures adopted by the public agency; and Section 3303, which defines "punitive action" as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment."
On appeal, the City argued that Morgado was afforded an administrative appeal under the POBRA when he participated in the Commission proceeding, and that the first punitive action against Morgado was not the decision to terminate, but, rather, the Chief’s complaint against him. The court, however, did not agree with the City’s position. It noted that even if the Chief’s complaint constituted a punitive action, Morgado’s termination was indeed also a punitive action that must be followed with "an opportunity for administrative appeal." Accordingly, the Commission proceeding fell short in satisfying the requirement for an opportunity for administrative appeal in this matter because Morgado was not afforded the opportunity to convince the City to reverse its decision to terminate him, as the proceedings ended as soon as the decision to terminate was made.
The court summed up its position succinctly in a footnote, stating, "We do not hold a municipality must provide multiple administrative appeals during a single disciplinary proceeding against an officer. We hold only that the provision of a hearing that could be considered an administrative appeal, in the middle of the disciplinary proceeding, does not excuse the municipality from providing the officer an opportunity to administratively appeal the ultimate disciplinary decision at the end of it."
What the Case Means for Employers
While the City has a unique system of sharing authority and responsibility for imposing discipline against officers between the Police Chief and the Police Commission, the Morgado case does confirm important principles for all public safety agencies. Specifically, agencies must be mindful that any due process or other "appeal" procedures that are provided in the middle of a disciplinary process do not satisfy the appeal requirement once a final decision to impose punitive action is implemented. Indeed, a post-disciplinary appeal must be afforded following the decision to implement punitive action.
If you or your agency have any questions on how the Morgado case may apply to existing POBRA policies, please contact our Firm.