LOS ANGELES POLICE PROTECTIVE LEAGUE et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Respondents.
No. B250922
Second Dist., Div. Four.
Dec. 9, 2014
A petition for a rehearing was denied December 31, 2014.
136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150
COUNSEL
Michael N. Feuer, City Attorney, and Gregory P. Orland, Deputy City Attorney, for Defendants and Respondents.
OPINION
EPSTEIN, P. J.—In this case we hold that the Public Safety Officers Procedural Bill of Rights Act (POBRA) (
Appellants Los Angeles Police Protective League (League), Won Chu, and Felicia Hall appeal from a judgment denying their petition for writ of mandate and request for declaratory relief. Appellants Hall and Chu are public safety officers employed by respondent City of Los Angeles (City) and represented by the League.2 Appellants argue that the POBRA and the memorandum of understanding (MOU) between the City and the League entitle Chu and Hall to an administrative appeal of their involuntary transfers. We disagree and affirm the judgment.
Hall was hired as a peace officer for the Los Angeles Police Department (LAPD) in 1985 and was promoted to lieutenant in March 2003. On or about March 2008, she was assigned to the robbery/homicide division (Robbery/Homicide Division), where she served as the officer in charge of the sexual assault section. In October 2010, Hall‘s supervisor issued a comment sheet criticizing her counseling, communication, and management skills toward her subordinate employees. She received a negative standard-based assessment in April 2011. During this time, Hall‘s supervisors communicated with Hall about their concerns, but there was “no satisfactory resolution.” David R. Doan, the chief of detectives in charge of the Robbery/Homicide Division at the time, decided that “Hall‘s skills as a supervisor were not a good match for [the Robbery/Homicide Division‘s] Sexual Assault Section.” It was determined, after discussing the matter with Hall‘s supervisors, that “either Lieutenant Hall had to make significant changes to her interpersonal skills or a significant number of her subordinates would leave the section.”3 Doan and Hall‘s supervisors decided to transfer her to the juvenile division (Juvenile Division) to “give [Hall] a fresh start in an environment better suited to her skills” and because it served the “best interests of the Department.” Hall retained her rank and pay as a lieutenant. She was denied an administrative appeal of the transfer under
Chu was hired as a peace officer in 1985 and was assigned to the Rampart division as a detective in March 2000. In December 2010, he was administratively charged with three counts: creating a hostile work environment by sexually harassing a coworker, inappropriately touching her, and making “inappropriate remarks of a sexual nature.” He was temporarily relieved from duty effective January 2011 pending a hearing and decision on the charges. In May 2011, after a hearing, the board of rights found Chu not guilty of the first two counts but found him guilty on the third count. After receiving an
Appellants filed a petition for writ of mandate and a complaint for declaratory relief on behalf of Chu, Hall, and all officers belonging to the League. The trial court denied the petition and denied declaratory relief. It found that “[a]n officer‘s contention that a transfer is punitive is insufficient by itself to warrant an administrative appeal hearing.” The trial court also found Chu‘s and Hall‘s transfers were imposed for purposes other than punishment and would not lead to adverse employment consequences.
This timely appeal followed.
DISCUSSION
I
“In a petition for writ of mandate brought pursuant to
II
POBRA was enacted to “maintain stable employer-employee relations and thereby assure effective law enforcement. [Citation.]” (Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 826; see
Appellants argue an administrative appeal must be provided to the League‘s represented employees under
Appellants’ proposition is not supported by case law. In White v. County of Sacramento (1982) 31 Cal.3d 676, 681-682 (White), the Supreme Court stated that a transfer is “the only personnel action listed in
Besides reading the specific requirement that the transfer be for punishment purposes out of the statute, appellants’ position would seriously hobble administrative discretion to transfer employees to fit the needs of the LAPD. POBRA was enacted to “assure that stable relations are continued throughout the state” and “to further assure that effective services are provided to all people of the state.” (
The trial court was correct in denying appellants’ request for declaratory relief and petition for writ of mandate on this theory.
III
Appellants also argue Hall and Chu were entitled to an administrative appeal under
Appellants rely on Heyenga for the proposition that the court must “look beyond labels” provided by respondents in ascertaining their motive for the
By presenting the affidavits of 30 officers suggesting the punitive nature of the transfers, the appellants in Heyenga made an evidentiary showing. In this case, though bearing the burden of proof, appellants made no such showing. They submitted only their declarations recounting the events leading to their transfers and opined that the transfers were punitive. Unlike the appellants in Heyenga, they provided no evidence of any LAPD policy which would support their contention that the transfers were imposed for purposes of punishment.
Respondents, on the other hand, presented substantial evidence that the transfers were made to give Hall and Chu a fresh start. Doan, in his declaration, described the difficulties Hall was experiencing in effectively managing her subordinates. The situation escalated to the point that “a significant number of her subordinates” would leave the section unless Hall could improve her management skills. Hall‘s supervisors made an effort to address these concerns, to no avail. After concluding that Hall‘s supervisory style was not a “good match” for the Robbery/Homicide Division‘s sexual assault section, a decision was made to transfer her to another assignment to give her a “fresh start in an environment better suited to her skills.” This appears to have been the proper decision, since Hall‘s supervisor at her new assignment stated Hall has been a “good addition” to the Juvenile Division and “has performed her duties satisfactorily.” Finally, Doan noted “the Chief of Police may and often does transfer officers to assignments other than those they may prefer based on his belief that the transfer serves the best interests of the Department.” There was substantial evidence to support the trial court‘s finding that the LAPD‘s decision to transfer Hall was not for the purposes of punishment.
Chu contends he was transferred “as the consequence of the filing of two (2) personnel complaints against [him] arising from his co-workers alleging
IV
Appellants also argue that Hall‘s and Chu‘s transfers constitute punitive actions under
A. Hall‘s Diminished Overtime Hours and Loss of Take-home Vehicle
Hall argues she is working 175 fewer overtime hours per year as a result of her transfer, which constitutes per se punitive action as a “‘reduction[] in salary‘” under
B. Other Adverse Employment Consequences
Chu and Hall also claim that their transfers constituted punitive action because various adverse employment consequences may flow from them. First, they argue their transfers may result in a loss of promotional opportunities. Chu also claims his transfer resulted in his placement on restrictive duty status, monitoring by the RMEC, and damage to his reputation.
The plain language of
In Hopson, LAPD officers were involved in a shooting which resulted in a civilian death. (Hopson, supra, 139 Cal.App.3d at p. 349.) A series of public hearings were conducted and the board of commissioners issued a report concluding the officers violated LAPD policy. (Id. at p. 350.) Recognizing that the chief of police had previously determined that no discipline should be imposed on the officers, the report did not recommend instituting disciplinary proceedings. (Id. at pp. 351-352.) It did, however, instruct that a copy of the report should be placed in each officer‘s personnel file. (Id. at p. 352.) The officers argued that because the proposed entry of the report in their personnel files was punitive, they were entitled to an administrative appeal. (Id. at p. 349.) The chief of police testified that the placement of the report in
In Caloca, a citizens’ review board issued reports concerning allegations of misconduct against several deputy sheriffs. (Caloca, supra, 72 Cal.App.4th at p. 1215.) The reports sustained acts of misconduct by the deputies and made “general recommendations for policy changes to the sheriff‘s department” but were “silent as to recommendations of discipline.” (Id. at p. 1216.) An independent investigation was conducted by the sheriff‘s department, finding no misconduct by any of the deputies. (Ibid.) The deputies sought an administrative appeal, arguing the report issued by the citizens’ review board constituted punitive action. (Id. at p. 1220.) There was evidence that “the department‘s promotion process [was] extremely competitive, and a single blemish on a deputy‘s career [could] prevent him or her from advancing in the department.” (Ibid.) Further, the appellants provided evidence that a report of this nature would be given consideration in personnel decisions and “could have an ‘adverse impact’ on an officer‘s career.” (Id. at p. 1221.) Noting that the report was an action “which may lead to adverse employment consequences,” the court determined it was a punitive action within the meaning of the statute. (Id. at p. 1223.)
Hopson and Caloca do not control the case before us. Hopson and Caloca, as well as the cases relying on them, involve written documentation, akin to written reprimands, criticizing misbehavior or warning that such behavior will lead to future disciplinary action. (E.g., Otto v. Los Angeles Unified School Dist., supra, 89 Cal.App.4th 985; Gordon v. Horsley (2001) 86 Cal.App.4th 336.) To the extent Hopson or Caloca may be read to hold that transfers that may—i.e., could—lead to any “adverse career consequences” are punitive actions, we disagree. In order for an employment action to be considered punitive under
Even if Hopson and Caloca did control the case before us, appellants presented insufficient evidence to prove that Hall‘s and Chu‘s transfers would lead to adverse employment consequences.
Hall and Chu pointed to evidence in their declarations to show their transfers may lead to a loss of promotional opportunities. The trial court was not persuaded, and we find substantial evidence to support the finding.
Hall submitted a declaration stating her opinion that, “based upon [her] years at LAPD,” her “stigmatizing involuntary transfer” and the “practice of not promoting Lieutenants assigned to Juvenile Division to Captains” has and will impact her promotional opportunities. She also said she has been on the promotion list for captain but has not yet been promoted. It is her “belief” that her involuntary transfer “prejudiced [her] promotion.” She did not submit independent evidence to support her claim. In response to her declaration, Gardere stated, “at least five more candidates must be certified as eligible for promotion on each promotional list than there are vacant positions for that rank.” This means a lieutenant‘s placement on a promotional list does not guarantee a promotion; thus, the fact that Hall had not been promoted from the list is not proof that her transfer prejudiced her ability to be promoted. Gardere also noted the “failure to be selected for promotion from one list is not necessarily a negative reflection on that officer.” Gardere and Fabian Lizzaraga, the commanding officer of the Juvenile Division and Hall‘s supervisor at her new assignment, also stated that they are unaware of the existence of any practice that prevented Juvenile Division lieutenants from being promoted. Therefore, there was nothing to suggest that Hall‘s transfer to the Juvenile Division would hinder her ability to be promoted. As to Hall‘s and Chu‘s general assertions that a transfer would be looked upon negatively in future promotional assessments, Gardere stated, “Many officers have been involuntarily transferred to other assignments within the Department without any apparent prejudice to their ability to promote. That is, some officers who have been so transferred have been promoted at a later time.” Ruiz, Chu‘s commanding officer at the time, also stated, “I do not believe that an involuntary transfer necessarily has any negative impact on an officer‘s promotional opportunities. Many LAPD officers have been involuntarily transferred and many of those so transferred have later been promoted.”
We cannot assume, based only upon appellants’ speculative evidence, that Hall‘s and Chu‘s transfers may lead to a loss of future promotional opportunities. The appellants in Hopson and Caloca offered affirmative evidence to suggest the reports, containing findings of misconduct, might have an adverse impact on the appellants’ promotional opportunities in the future. (Caloca, supra, 72 Cal.App.4th at pp. 1220-1221 [head of the human resource services bureau stated that “findings of misconduct . . . would be given consideration in personnel decisions“]; Hopson, supra, 139 Cal.App.3d at p. 352 [chief of police testified “there would be ramifications for the career
2. Chu‘s Monitoring, Placement on Restrictive Duty Status, and Damage to Reputation
In their opening brief, appellants claim it was “undisputed” that it was Chu‘s transfer that led to his monitoring by the RMEC, his placement on restrictive duty status, and damage to his reputation within the LAPD. There is, however, nothing in the record to indicate it was his transfer that precipitated these events. The trial court found that “[i]t is far more likely that these consequences flowed from his guilty plea to making inappropriate sexual remarks . . . , not his job transfer.” It is undisputed that Chu was found guilty of one count of making inappropriate sexual remarks to a coworker, and that his coworkers and supervisors knew of the allegations against him. There was no evidence presented to create a causal link between Chu‘s transfer and the negative consequences alleged, and we agree with the trial court that the argument is “pure speculation.” Further, Ruiz refuted the claim that the transfer is what damaged Chu‘s reputation, stating he did not “believe that Department employees generally view an involuntary transfer alone in a negative light.” Doan‘s declaration added that “not all involuntary transfers are ‘stigmatizing,’ ” leading to a reasonable inference that the transfer alone was not the reason for Chu‘s monitoring by the RMEC and his placement on restrictive duty status. (See generally White, supra, 31 Cal.3d at pp. 682-683.) There was substantial evidence for the trial court to conclude Chu‘s transfer did not lead to the alleged adverse employment consequences.5
V
Appellants also contend they are entitled to a writ of mandate compelling respondents to perform their contractual duty, under article 9.1 of the MOU between the League and City, to provide administrative appeals to Hall, Chu, and those similarly situated to them. The relevant provision of the MOU contains identical language to
VI
Appellants contend their transfers violate their due process rights. They claim Chu‘s transfer was “repugnant to due process” because his transfer was precipitated by his coworkers’ awareness of the charges against him and he was not given an opportunity to “clear his name.” As to Hall, appellants argue the LAPD “tainted [Hall‘s] leadership record” without providing her an opportunity to prove otherwise.
An “interest in reputation alone is not a constitutionally protected liberty interest.” (Murden v. County of Sacramento (1984) 160 Cal.App.3d 302, 308.) Even “serious damage to reputation alone is insufficient to constitute deprivation of a constitutionally protected liberty or property interest . . . .” (Caloca, supra, 72 Cal.App.4th at p. 1218.) However, when the government infringes upon a protected interest, such as employment, due process requires an opportunity to refute the charge. (Ibid.) In Caloca, sheriff‘s deputies claimed that a citizens’ review board‘s findings of serious misconduct caused them to suffer reputational damage, thereby impairing their ability to advance within the law enforcement profession. (Id. at pp. 1217-1218.) The court rejected this claim. (Ibid.) While recognizing negative reports may cause the deputies some future harm, such as loss of a promotion, the court required the deputies show a “present impairment” and “actual loss” aside from reputational damage in order to raise a due process argument. (Id. at pp. 1218-1220.)
Similarly, neither Hall‘s nor Chu‘s transfers resulted in cognizable actual loss. To the extent Hall‘s reduced overtime hours and lack of a take-home vehicle would be considered a loss, appellants have not presented sufficient evidence to show her entitlement to those benefits in the first place. As to the negative employment actions taken against Chu, he has failed to prove they were the direct result of his transfer. Hall‘s and Chu‘s transfers did not violate due process.
The judgment is affirmed. Respondents are entitled to their costs on appeal.
Manella, J., and Collins, J., concurred.
A petition for a rehearing was denied December 31, 2014.