Removal from SWAT Team and Honor Guard Assignments Was Not Punitive Action Under POBRA
On October 20, the California Court of Appeal issued a ruling against a police officer who was removed from assignments to the SWAT team and honor guard and was not assigned trainees. The court held that the officer did not suffer punitive action under the Public Safety Officer’s Procedural Bill of Rights Act ("POBRA"), Cal. Gov. Code §§ 3300 et seq. because the assignments were "collateral" and did not impact the officer’s compensation or full-time duties. Perez v. City of Westminster, _ Cal.App.4th _ [2016 WL 6609753].
Brian Perez worked as a police officer for the City of Westminster Police Department ("Department"). In November 2007, Perez and several other Department officers responded to a disorderly conduct call. The suspect later complained that an officer other than Perez had used excessive force. The Department’s Internal Affairs unit investigated the complaint, interviewing Perez twice. Both times, Perez said he had not observed anyone striking the suspect or using excessive force.
In January 2008, the Department terminated Perez for knowingly making false or misleading statements during an internal affairs investigation and failing to report improper activities by other police personnel. Perez appealed his termination to the Department’s Chief of Police ("Chief"). The Chief determined there was insufficient evidence to sustain Perez’ termination, and reinstated him. However, the Chief stated he lacked confidence in Perez and ordered him excluded from the honor guard and the SWAT team. In addition, although Perez remained a field training officer, he was not assigned any trainees.
Perez filed a complaint with the Orange County Superior Court, alleging that the Department’s actions violated POBRA. The court found the removal of Perez from the SWAT team and the honor guard, as well as the failure to assign trainees to him, did not violate POBRA. Perez appealed.
Court of Appeal Decision
The California Court of Appeal affirmed the trial court’s decision. It acknowledged that POBRA procedural safeguards must be provided when an officer is under investigation and subjected to interrogation that could lead to "punitive action." POBRA defines "punitive action" as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment." The court stated that the SWAT team and honor guard were "collateral," rather than "full-time," assignments. Consequently, their removal did not constitute discipline, but merely "the chief of police’s normal management of the department." The court also noted that the parties’ labor agreement provided that the non-assignment of trainees to a field training offer did not qualify as discipline or punitive action. Further, the removal of Perez’s collateral duties did not result in a reduction of his salary, which is normally required for a court to find punitive action. Rather, the Department’s actions simply caused Perez to lose prestige and opportunities to earn overtime, injuries which did not qualify as punitive action under POBRA. Indeed, the court noted that Perez received a scheduled pay raise two months after the Chief reinstated him to his position.
Finally, the court emphasized that the Department removed Perez from these "collateral" duties "not as punishment, but because [the Chief] had lost confidence in Perez’s honesty and ability to work cooperatively with others." The court also noted that the City had not placed the notice of intent to terminate, the Chief’s administrative appeal finding, or a written record of his removal from the SWAT team and honor guard in Perez’s personnel file.
Consequently, the court found "more than substantial" evidence to support the trial court’s finding that Perez’s removal from his collateral duties did not constitute punitive action under POBRA.