May 6, 2015
On April 15, 2015, the Supreme Court denied the Los Angeles Police Protective League’s request for depublication of a California Court of Appeal decision which held that the Public Safety Officers Procedural Bill of Rights Act (“POBRA”) (Cal. Gov. Code §§ 3300 et seq.) does not provide peace officers the right to an administrative appeal for a transfer of assignment, unless an officer can show that the transfer was “for purposes of punishment.” The Court reasoned that peace officers do not have such a right to appeal even though a transfer may lead to negative employment consequences or upon the officer’s belief to that effect. (Los Angeles Police Protective League v. City of Los Angeles (2014) 232 Cal.App.4th 136, 181 Cal.Rptr.3d 204.)
Appellants Felicia Hall (“Hall”) and Won Chu (“Chu”) worked as peace officers for defendant Los Angeles Police Department (“LAPD”). Hall worked as a Lieutenant with the Robbery/Homicide Division, while Chu worked as a detective with the Rampart Division. LAPD transferred each employee for separate and unrelated reasons. These transfers were involuntary, did not result in loss of pay, did not impact their position, and were non-disciplinary.
However, each officer maintained that the transfer was punitive, and resulted in adverse employment consequences. Hall claimed that her transfer minimized her overtime hours, deprived her of a department-issued take-home vehicle, and lessened her prospects for promotion to Captain. Chu maintained that his transfer resulted in monitoring, restrictive duty status, and a damaged reputation within LAPD.
Each appellant requested an administrative appeal under section 3304(b) of the Government Code. LAPD denied both requests. Consequently, the Los Angeles Police Protective League (“League”) filed for writ of mandate and a complaint for declaratory relief on behalf of Appellants and other similarly situated officers. The trial court denied the petition and denied declaratory relief. It held that a peace officer’s contention that a transfer is punitive alone is insufficient to warrant an administrative appeal hearing. The League appealed.
The Court’s Analysis
The Court of Appeal found substantial evidence supported the trial court’s denial of the writ of mandate and declaratory relief, and affirmed its decision. The Court first observed that each peace officer has the right to an administrative appeal of any punitive action under POBRA. (Cal. Gov. Code § 3304(b).) Punitive action includes a “transfer for purposes of punishment.” (Id. § 3303.)
The Court addressed various arguments made by the League attempting to establish the right to an administrative appeal under POBRA for Hall and Chu’s transfers. First, Appellants argued that employees need not provide evidence that an involuntary transfer occurred for purposes of punishment. Rather, they argued an administrative appeal should be provided upon demand. The court disagreed, holding that employees must show some evidence that the transfer was imposed for punishment purposes. POBRA does not provide an administrative appeal as a matter of right, and requires “more than the employee’s subjective belief” that the transfer was made to punish.
Second, Appellants insisted that LAPD intended to punish them for alleged deficient performance and/or improper conduct, and that this misconduct precipitated their transfers. The Court found that LAPD provided “substantial evidence” that the transfers were made to give Appellants a “fresh start” and not for the purpose of punishment. The Court noted that Hall had a heavily criticized (and documented) management style, while Chu’s performance as a detective suffered due to circulated allegations of misconduct. The Court concluded that the League did not provide ample evidence to support its position that the transfers were “punishment.”
Next, Appellants insisted that their transfers led to several adverse employment consequences. However, the court held that a transfer does not constitute punitive action solely because it may lead to any negative employment consequence. Further, Appellants failed to provide substantial evidence that their transfers actually resulted in adverse employment consequences. For instance, Hall noted that her transfer resulted in fewer overtime hours, and the loss of her LAPD-issued take-home vehicle. However, the court noted that Hall’s overtime hours were not guaranteed, nor was she entitled to a department vehicle. Additionally, both officers provided only speculation that their transfers would lead to a loss of promotional opportunities. However, neither officer provided evidence that their new assignments led to promotion less often. This speculative evidence was insufficient to establish that Appellants’ transfers lead to adverse consequences — or punitive action.
As a result of the strong precedent in favor of law enforcement agencies and management, the Los Angeles Protective League (“League”) filed a request to depublish the Court of Appeal’s decision with the California Supreme Court which was denied.
Effect on Police Departments
Employers should be aware that peace officers are not automatically entitled to an administrative appeal under POBRA for involuntary transfers. The Court of Appeal’s decision is strong precedent in favor of law enforcement agencies and their ability to manage and assign personnel as desired. In light of the Court of Appeal’s decision, law enforcement agencies would be well served to properly document the non-punitive reasons for involuntary transfers since transfers for non-punitive reasons do not trigger administrative appeal rights under POBRA.