Evidentiary Hearing Prior to Punitive Action Does Not Satisfy POBR Requirement for Administrative Appeal

Category: Briefing Room
Date: Aug 31, 2017 04:01 PM

In Morgado v. City and County of San Francisco, a California Court of Appeal found that the City and County of San Francisco’s disciplinary procedures for police officers did not comply with the Public Safety Officers Procedural Bill of Rights Act (“POBR”). 

In 2008, a private citizen filed a misconduct complaint against Officer Morgado with the City’s Office of Citizen Complaints (“OCC”).   The OCC investigated and forwarded its conclusions and recommendations to the police chief, who ultimately filed a disciplinary complaint against the officer with the Police Commission.  After further investigation and an evidentiary hearing, the Commission determined that the officer had engaged in misconduct.  As a result, he was terminated.  The decision of the Commission was final in that the City had no mechanism for an internal, administrative appeal of the termination.

Morgado sued the City, the OCC, the police chief, and the Commission in superior court.  In the course of discovery, the City admitted that the Commission’s termination decision regarding Morgado was “the only punitive action undertaken against him” and that Morgado did not have the opportunity to file an administrative appeal challenging that decision. 

The superior court ultimately ruled in favor of the officer, vacated his termination, ordered the City to give him the opportunity to appeal the Commission’s decision to terminate his employment, and enjoined the Commission from imposing any punitive action against him without first giving him the opportunity to lodge an administrative appeal of such action.

The central POBR provision at issue in the Court of Appeal’s ruling was Government Code section 3304(b), which establishes that public safety officers must be provided the opportunity to appeal punitive actions.  The Legislature created this appeal right so that officers can “establish a formal record of the circumstances” surrounding any punitive action and “attempt to convince the employing agency to reverse its decision[.]” 

On appeal, the City took the position that the police chief’s disciplinary complaint to the Commission was the first punitive action against the officer and therefore the subsequent evidentiary hearing before the Commission fulfilled the City’s obligations under section 3304(b) to provide an appeal.  Morgado argued that the termination decision following the Commission hearing was the only punitive action against him and that the City violated the POBR by failing to provide him with an opportunity to appeal the termination. 

The Court of Appeal acknowledged that the police chief’s disciplinary complaint could constitute punitive action under the POBR, but found that a public agency does not satisfy section 3304(b) by only allowing an appeal of this type of “interim step” in the disciplinary process.  The Court found that, even though the City provided an evidentiary hearing before the Commission, “Morgado had no opportunity to attempt to convince the City to reverse its decision to terminate him because no further administrative proceedings occurred after the Commission made that decision.”

Morgado v. City and County of San Francisco (2017) 13 Cal.App.5th 1.

Note:

This case serves as an important reminder that the right of appeal provided in section 3304(b) was established in order to give public safety officers the opportunity to appeal an agency’s disciplinary decision.  It follows that only allowing an officer to appeal an intermediate step in the disciplinary process, even if that step appears to constitute punitive action on its own, is not sufficient to satisfy Government Code 3304(b).  LCW recommends that agencies take this opportunity to ensure that their disciplinary procedures for law enforcement officers are POBR-compliant.  

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