The trial court denied the petition, ruling that the Department properly could consider Conger's pre-probationary conduct in rescinding his probationary promotion, and that the decision to rescind the promotion based on Conger's failure to report a use of force was merit-based.
We agree with the trial court that the Department's decision to deny Conger a promotion was merit-based. We further conclude that Conger has failed to show that the written evaluation detailing his unreported use of force will impact his career adversely in the future apart from the loss of his probationary position. Accordingly, we affirm the judgment.
BACKGROUND
Conger is a sergeant in the Department. On November 1, 2015, the Department promoted Conger to the rank of lieutenant, a position subject to a six-month probation period.
On April 18, 2016, the Department informed Conger he was under investigation for events occurring on May 21, 2015, when he was still a sergeant. Several days later, the Department relieved Conger of duty and placed him on administrative leave. On April 29, 2016, the Department served Conger with a letter extending his probationary period indefinitely "due to [his] Relieved of Duty status."
On May 20, 2016, the Department served Conger with a letter notifying him that he was "released from [his] probationary position of Lieutenant." The letter stated the action was "based upon the Unsatisfactory 'Report on Probationer,' which references your failure to adhere to Department policies regarding a use of
The Department provided Conger with the "Report on Probationer" referenced in the letter that attached a "Performance Evaluation." (Boldface and some capitalization omitted.) The report listed the evaluation period as
The evaluation concluded, "As a probationary employee, this is the time to demonstrate the ability to adhere to policies, good judgment and professionalism. Based on this incident, Lieutenant Conger does not meet the standards for the position of Lieutenant." The evaluation "recommend[ed] that Lieutenant Conger be released from his probationary lieutenant position and be demoted to his previous rank of sergeant."
Conger filed a written appeal with the County's human resources office, arguing that it was improper for the Department to release him from a probationary position based on events occurring prior to the probationary period. The County denied the appeal, finding that the Department "expected [Conger] to have abided by the Use of Force Policy when [it] made the decision to appoint him to Lieutenant. Had the Department been aware of Sergeant Conger's violation of the Use of Force Policy, [it] would not have promoted him to the position of Lieutenant."
Conger also filed a request for a hearing pursuant to section 3304, subdivision (b) with the County's Civil Service Commission. The Civil Service Commission denied the hearing request.
Conger then filed a petition for a writ of mandate in the trial court. He argued that releasing him from his probationary position based on alleged misconduct occurring before his promotion constituted a "denial of promotion on grounds other than merit" under section 3304, subdivision (b), thus entitling him to an administrative appeal hearing. Conger requested a declaratory judgment that respondents violated section 3304, subdivision (b) by failing to grant him a hearing, as well as an order directing respondents to provide that hearing. Conger also requested reasonable attorney fees and civil penalties under section 3309.5 and Code of Civil Procedure section 1021.5.
Respondents opposed the petition, and filed a declaration from Chief Warren Asmus, the Department official who made the decision to return
The trial court denied Conger's writ petition. The trial court ruled that the term "merit" in section 3304, subdivision (b) was not "limited to the merits of an officer's performance during a probationary period," and thus the Department could deny Conger a promotion based on merit factors arising prior to that period. The trial court found that section 3304, subdivision (b)"carv[ed] out an exception to the requirement for administrative hearings for denials of promotions because they involve an opportunity to advance rather than an imposition of a penalty. Providing administrative hearings for every officer who is denied a promotion would require significantly greater time and resources."
In determining whether the Department had denied Conger's promotion on grounds other than merit, the trial court cited the County's Civil Service Rules, rule 25.01(a),
Conger timely appealed.
STANDARD OF REVIEW
A writ of mandate under Code of Civil Procedure section 1085" 'may be issued by any court ... to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station.' " ( Kavanaugh v. West Sonoma County Union High School Dist. (2003)
DISCUSSION
POBRA "codif[ies] 'a list of basic rights and protections which must be afforded all peace officers ... by the public entities [that] employ them.' " ( Bacilio v. City of Los Angeles (2018)
Section 3304, subdivision (b) provides that "[n]o punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal." "[P]unitive action"
POBRA does not specify the procedural requirements for the administrative appeal, but courts have held that public safety officers are entitled to " 'an evidentiary hearing before a neutral fact finder.' " ( Morgado v. City and County of San Francisco (2017)
The trial court concluded that Conger was ineligible for an administrative appeal because the Department denied him a promotion on merit-based grounds. (See § 3304, subd. (b) [officer may administratively appeal denial of promotion only if "on grounds other than merit"].) Respondents agree with that conclusion, but argue in the alternative that Conger had not yet "successfully completed the probation period" attendant to his promotion (ibid. ), and therefore was ineligible for an administrative appeal on that basis as well. Because we conclude the trial court correctly determined that the Department denied Conger's promotion on merit-based grounds, we do not reach respondents' alternative argument.
Conger in his briefing alternatively describes his release from his probationary position as a "denial of promotion" and a "demotion." The distinction matters: An employer may deny a promotion without triggering the appeal right under section 3304, subdivision (b) so long as the denial is based on merit. In contrast, a demotion, one of the listed punitive actions under section 3303, triggers the administrative appeal right regardless of whether it was based on merit or non-merit grounds. (See White , supra ,
We conclude that the Department's decision to rescind Conger's probationary
Swift noted that " 'rejection during probation' " was not listed as a " 'punitive action' " under section 3303 or "the comparable provision of the State Civil Service Act," which "strongly suggest[ed]" that rejection during probation was not punitive for purposes of triggering the administrative appeal right under section 3304, subdivision (b). (
Conger argues that Guinn is distinguishable because in that case the officer lost his promotion based on "poor performance during probation," whereas Conger's purported misconduct occurred before he was on probation. (Italics omitted.) In our view, however, Guinn 's distinction between demotion and denial of promotion does not depend on when the conduct underlying the adverse personnel action occurred. What matters is that, in both Guinn and the instant case, the adverse action took place during a period in which the promotion was not yet permanent, and the employer was still evaluating whether the officer deserved the higher position. As Guinn states, "[d]enial of a hearing upon rejection on probation" is consistent with the "long-established principle of public employment that because a probationary employee has no vested property interest in his or her employment, the employee has no due process right to a hearing prior to termination of the employment." ( Guinn , supra ,
Here, Conger had not completed his probationary period at the time the Department returned him to his previous rank, because the Department had extended the probationary period indefinitely pending investigation into the alleged unreported use of force. Conger does not dispute the Department's authority to extend his probationary period. Thus, Conger did not yet have a "vested property interest" in his promoted position. ( Guinn , supra ,
Henneberque , which predated the amendment to section 3304, subdivision (b) excluding probationary employees from the administrative appeal right (see fn. 4, ante ), placed no weight in its analysis on the officer's probationary status. As discussed above, there is an important distinction between demoting an officer from a vested, permanent position and denying an officer permanent status in a position he or she holds only on a probational basis while being evaluated by his or her employer, a distinction Henneberque did not address. Henneberque also did not consider whether the personnel action at issue in that case constituted a denial of promotion on merit grounds as opposed to a demotion, nor did the opinion indicate whether anyone raised that argument. Because Henneberque did not address the particular issues raised in this case, its holdings are not apt.
Conger cites other cases in which courts held or parties conceded that demotions or reductions in pay are punitive and trigger the administrative appeal right under section 3304, subdivision (b). (See White , supra , 31 Cal.3d at pp. 683-684,
Conger notes that his evaluation form recommended that he "be demoted to his previous rank of sergeant." Conger cites no authority suggesting that an employer's characterization of a personnel action supersedes contrary statutory language or case law. Under Guinn , Conger's release from his probationary position constituted a denial of promotion for purposes of POBRA, regardless of the language used by the Department.
B. The Department Denied Conger's Promotion On Merit-Based Grounds
We next address whether Conger's denial of promotion was "on grounds
We further agree with the trial court that the Department's particular grounds for denying Conger's promotion were merit-based. Conger does not dispute Chief Asmus's declaration that lieutenants hold "high level supervisory positions in the Department." The ability to comply with department procedures and ensure subordinates follow those procedures is substantially related to successful performance in a supervisory position. Conger did not demonstrate competence as a supervisor when he failed to report a use of force per Department policy and failed to direct his subordinates to do so.
Conger argues that, even accepting the trial court's definition of "merit," he received no negative evaluations of his conduct during his time as a probationary lieutenant, thus indicating that he could successfully perform the duties of that position. He contends that denying him a promotion based on alleged conduct occurring outside the probationary period, as opposed to failure to perform adequately on probation, was a denial on grounds other than merit. We agree with the trial court, however, that "nothing in Section 3304(b) suggests that the term 'merits' should be limited to the merits of an officer's performance during a probationary period." An officer's ability to perform successfully in his or her current position is clearly relevant in assessing the officer's ability to perform successfully at a higher position; an officer's past job performance speaks to his or her "merit" as much as his or her performance on probation.
Henneberque 's statement that the officer did not receive unfavorable evaluations
As for Guinn , although it concluded under the circumstances of that case that denial of promotion based on poor performance during probation constituted merit-based grounds, it did not address whether poor performance outside the probationary period also could constitute merit-based grounds. Thus, nothing in Guinn undercuts our conclusion.
Conger suggests that the Department's own policies limit the relevant period for evaluating his performance to the probationary period. He notes the stated evaluation period on his negative "Report on Probationer" corresponded to the probationary period, and cites Department documents he claims limit the scope of a probationary evaluation to the probationary period itself. To the extent Conger is claiming the Department did not abide by its own policies and procedures, that is beyond the scope of his writ request, which was based entirely on his rights under section 3304, subdivision (b). As discussed, nothing in that statutory section purports to limit what grounds constitute "merit" based on when those grounds arose. While Conger complains that the Department wrongly included allegations regarding his performance as a sergeant in an evaluation of his performance as a probationary lieutenant, the Department's labeling of the documentation does not change the fact that the decision not to promote him was merit-based.
Conger contends the Department denied his promotion in order to discipline him without allowing him the opportunity for an administrative appeal. Even if this is so, section 3304, subdivision (b) expressly permits an
C. Conger Fails To Show That His Negative Probation Evaluation Could Lead To Future Adverse Consequences Beyond Denial Of His Probationary Promotion
Conger claims that he is entitled to an administrative appeal under section 3304, subdivision (b) not only because he lost his promotion, but also because his negative probation evaluation is now in his personnel file "and may be relied upon in future personnel decisions," including denying him future promotions. He cites cases holding that an officer's administrative appeal right under section 3304, subdivision (b) may be triggered by findings of misconduct that could affect an officer's career negatively in the future, even if
In Hopson v. City of Los Angeles (1983)
Similarly, Caloca v. County of San Diego (1999)
In Otto v. Los Angeles Unified School Dist. (2001)
To the extent Hopson , Caloca , and Otto may be read to suggest that personnel actions that could lead to future denials of promotion on merit grounds are punitive actions under POBRA, we respectfully disagree with them. "In order for an employment action to be considered punitive under section 3303, the negative employment consequence must be one specified in the statute." ( Los Angeles Police Protective League v. City of Los Angeles (2014)
Hopson , Caloca , and Otto also are unavailing because Conger, unlike the peace officers in those cases, has not put forth any evidence that his negative evaluation will lead to punitive action or impact his career in the future. The negative evaluation itself does not recommend or refer to any consequences apart from the release of Conger from his probationary promotion on merit grounds, an action that expressly does not trigger the administrative appeal right under section 3304, subdivision (b). Conger submitted no declarations other than from himself and his attorney, both of which are silent on the issue of future career impact. Conger cites a Department policy concerning probationary evaluations, but it merely states that evaluations are placed in an employee's "Unit file" with copies sent to "Personnel Administration," with no suggestion as to how the evaluation may be used in future personnel decisions. In the absence of evidence that the evaluation will affect Conger's career beyond losing his probationary position, Hopson , Caloca , and Otto are of no aid to Conger.
At oral argument, Conger's counsel contended that no evidence of potential adverse impact was necessary because Conger actually lost a promotion. Again, however, section 3304, subdivision (b) expressly permits employers to deny promotions on merit grounds without triggering the right to an administrative appeal. Hopson , Caloca , and Otto cannot grant Conger a right purportedly under a statute that expressly denies him that right.
Conger argues that to deny him an administrative appeal is contrary to POBRA's
D. We Do Not Reach Conger's Request For Civil Penalties And Attorney Fees
Conger acknowledges we must only address his request for civil penalties and attorney fees under section 3309.5 and Code of Civil Procedure section 1021.5 if we reverse the trial court.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur:
JOHNSON, Acting P. J.
WEINGART, J.
Notes
Further unspecified statutory citations are to the Government Code.
Our characterization of the alleged incident is for purposes of this appeal only and does not constitute a finding on the merits.
Further unspecified rule citations are to the County's Civil Service Rules.
In 1998, two decades after POBRA's initial enactment, the Legislature amended section 3304, subdivision (b) to exclude officers who had not yet successfully completed their probationary period. (See Stats. 1998, ch. 786, § 1.) The language of the exclusion does not distinguish between probationary periods upon initial hiring and probationary periods attendant to promotions, and the only published authority to speak on the question has interpreted the exclusion to apply to both. (Guinn v. County of San Bernardino (2010)
This interpretation presents a conundrum in the case of denials of promotion. Presumably any officer denied a promotion will have yet to complete the probationary period attendant to that promotion, either because the employer released the officer from the position while the officer still was on probation or never placed the officer in the probationary position in the first place. Thus, assuming the probationary exclusion applies to officers denied a promotion, arguably no officer denied a promotion on grounds other than merit ever could administratively appeal. This would seem to render meaningless section 3304, subdivision (b)'s protection for officers denied promotions on grounds other than merit.
On the other hand, to interpret the probationary exclusion not to apply to probationary periods attendant to promotions would dissolve any distinction between probationary and permanent promotions for purposes of section 3304, subdivision (b), thus depriving employers of the benefit of a probationary period in which they may evaluate promoted officers without risk that returning them to their previous positions might trigger an evidentiary hearing.
Given our holding, post , that in the instant case the Department denied Conger's promotion on merit grounds, we need not resolve this conundrum. We nonetheless note the issue, which the Legislature may wish to address with a clarifying amendment.
The version of section 3304, subdivision (b) in effect at the time of Swift did not contain the provision expressly excluding officers serving probationary periods from the right to an administrative appeal. (See former § 3304, subd. (b), enacted by Stats. 1976, ch. 465, § 1; see also fn. 4, ante. )
Because we conclude in Part B of our Discussion, post , that the Department denied Conger's promotion on merit-based grounds, we do not address whether an employee's probationary status would affect his or her right to administratively appeal a denial of promotion "on grounds other than merit." (§ 3304, subd. (b) ; see fn. 4, ante. )
The trial court borrowed this language from the County's Civil Service Rules, rule 25.01(A), which prohibits discrimination based on "non-merit" factors, defined as "factors that relate exclusively to a personal or social characteristic or trait and are not substantially related to successful performance of the duties of the position." While we agree with the trial court that the plain and commonsense definition of merit -based factors includes factors substantially related to successful performance of a position, we express no opinion as to whether the definition of non -merit factors in rule 25.01(A) applies for purposes of section 3304, subdivision (b).
School police officers used the voice mail tracking system to document when they left campus. (Otto, supra ,
We note that, irrespective of any right to an administrative appeal, POBRA requires that employers notify officers of any adverse comments placed in their personnel files and permit them to attach a written response. (See §§ 3305, 3306.)
Section 3309.5, subdivision (e) requires the trial court to award civil penalties and reasonable attorney fees upon a finding that an employer "maliciously violated any provision of [POBRA] with the intent to injure the public safety officer." Code of Civil Procedure section 1021.5 allows a trial court to award attorney fees "to a successful party ... in any action which has resulted in the enforcement of an important right affecting the public interest," subject to certain requirements.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.