May 1, 2010
On May 17, 2010, the California Court of Appeal held that a public safety officer was not entitled to appeal his return to his prior position after his promotional probationary period was terminated based on merit.
In Guinn v. County of San Bernardino (Case No. E047532, 2010 WL 1951153 (Cal.App. 4 Dist.)), the Court of Appeal provided clarification of what appeal rights probationary public safety officers are entitled to under the Public Safety Officers Procedural Bill of Rights Act (“POBRA,” Gov. Code § 3300 et seq.). The plaintiff, Harold Guinn (“Guinn”), was a sworn public safety officer employed by the County of San Bernardino’s (“County”) probation department. The County promoted Guinn to a probation supervisor, subject to the successful completion of a nine-month probationary period established by the County’s personnel rules.
However, after Guinn failed to perform his supervisor duties satisfactorily during the probationary period, the County terminated the probationary period, and returned Guinn to his prior position. The County denied Guinn’s request for an administrative appeal to challenge this personnel action.
As a public safety officer, Guinn was subject to the protections of POBRA, which include the general right for non-probationary employees to appeal “punitive action.” Guinn filed a petition for a writ of mandate in the superior court to compel the County to provide him with an administrative appeal hearing to challenge the termination of his probation under Government Code section 3304(b). The superior court denied Guinn’s petition for a writ of mandate, and Guinn appealed the superior court’s decision.
On appeal, Guinn contended that he was “demoted” from his supervisory position which constituted a “punitive action” under POBRA and required an appeal hearing. Guinn argued that, because he had passed his initial probationary period when he was first hired with the County, Guinn was entitled to appeal his “demotion” regardless of the fact that he was subject to an additional probationary period after his promotion to supervisor.
In support for his contention, Guinn relied on Henneberque v. City of Culver City (1983) 147 Cal.App.3d 250 (“Henneberque”) which addressed a public safety officer’s appeal rights after he was “demoted” during his probationary period following a promotion. The Henneberque Court concluded that the failure on probation was “punitive” under POBRA because it resulted in a reduction of the officer’s salary and benefits. As a result, the officer in Henneberque was granted an appeal under Government Code section 3304(b) based on this punitive action.
The Guinn Court rejected the premise that Guinn was subject to “punitive action” that required an appeal under POBRA. Instead, the Court concluded that Guinn was simply denied a promotion because of his poor performance, rather than being punitively “demoted.” The Court reasoned that a “rejection of promotion” is not one of the designated “punitive” actions under POBRA that requires an appeal. The Court cited to the State Civil Service Act and the County’s personnel rules which indicated that a promoted employee’s return to his or her prior position during the promotional probationary period is not punitive in nature. The Court found that the loss of increased compensation that accompanies a promotion does not automatically transform the denial of that promotion into a punitive act. Accordingly, a newly promoted employee’s failure to pass probation because of poor performance is not deemed to be “punitive action” requiring an administrative appeal under POBRA.
The Court also rejected Guinn’s argument that, because he had passed his probationary period upon his initial hire with the County, he was not on “probation” after his promotion and thus entitled to the appeal rights under Government Code section 3304(b). The Court acknowledged that Government Code section 3304(b) did not explicitly distinguish between the probationary period of new hires and the probationary period after a promotion. Therefore, the Court held that Section 3304(b) applied to both classes of probationary periods and a public safety officer on either of the probationary periods did not have appeal rights under Section 3304(b).
Significantly, the Court held that Henneberque was not controlling. The Court noted that when Henneberque was decided, Section 3304(b) broadly established that no public safety officer could be subject to punitive action without the right to appeal such action. After Henneberque, however, Section 3304(b) was amended to include language that no administrative appeal need be given to probationary public safety officers. Therefore, the Henneberque Court’s analysis did not address the issue presented in Guinn -- how the probationary status of a public safety officer affects appeal rights. Accordingly, the Court found that Henneberque does not constitute broad precedent that any demotion during a probationary period requires an appeal hearing under POBRA.
IMPACT OF DECISION
The ruling clarifies that recently promoted public safety officers who fail their probationary periods for meritbased reasons are not entitled to an administrative appeal of that decision. Significantly, these employees can no longer cite to Henneberque as legitimate grounds for demanding an appeal merely because they have lost salary and benefits associated with their return to their previous positions.
As a practical matter, this case reinforces the importance of making timely assessments of a public safety officer’s performance during his or her probationary period. Such timely evaluations will permit the employer to return an employee to a prior position while the action can still be characterized as a “rejection of probation.” Regardless, employers should be aware that any local rules or memorandum of understanding provisions that provide additional appeal rights for employees who fail to satisfactorily complete their probationary periods are still valid and subject to compliance.