Officers Were Not Entitled to Administrative Appeal of Transfers That Were Not For Purposes of Punishment

Category: Client Update
Date: Jan 23, 2015 01:03 PM

Won Chu and Felicia Hall are public safety officers employed by the City of Los Angeles and represented by the Los Angeles Police Protective League (League).  Hall, a police officer hired by the Los Angeles Police Department (LAPD) in 1985, was promoted to lieutenant in 2003 and assigned to the Robbery/Homicide Division in 2008.  In 2010, Hall's supervisor issued a comment criticizing her counseling, communication, and management skills.  The Chief of Detectives in charge of the Robbery/Homicide Division decided that Hall's supervisory skills were not a good match for the Robbery/Homicide Division's sexual assault section.  Accordingly, it was decided that it served the best interests of the Department to transfer Hall to the Juvenile Division "to give [Hall] a fresh start in an environment better suited to her skills."  Morale and performance improved after Hall left the sexual assault section, and Hall's new supervisor called her a "good addition" to the Juvenile Division.  However, Hall claims the transfer prevented her from working as many overtime hours, no longer entitled her to a department-issued take-home vehicle and stigmatized her, thus adversely affecting her future promotional opportunities.  

Chu was also hired by the LAPD in 1985.  In 2000, he was assigned to the Rampart Division as a detective.  In 2010, he was charged with creating a hostile work environment, inappropriately touching a woman, and making inappropriate sexual remarks.  Chu was eventually found to have made inappropriate sexual remarks.  Shortly thereafter, the LAPD received another complaint about Chu alleging sexual harassment and inappropriate communications.  The LAPD closed the file without taking action after the complainant refused to cooperate.  While these actions were pending, many of the Rampart employees learned of the allegations against Chu, which, in the opinion of Chu's commanding officer, damaged Chu's relationships with his co-workers and made Chu less effective.  Chu's commanding officer and his superior agreed that it would be in the best interests of Chu and the LAPD to transfer Chu to another division, where he would have a fresh start with his new co-workers.  Chu was allowed to choose the new division in which he would work.  Chu claimed, among other things, that the transfer damaged his reputation and prevented him from carrying a gun. 

Hall and Chu requested administrative appeals of their transfers pursuant to the Public Safety Officers Procedural Bill of Rights Act (POBRA), but the City denied the requests.  The League, Chu, and Hall (Appellants) filed a petition for writ of mandate and a complaint for declaratory relief in superior court, but the court denied the requested relief.  Appellants appealed, and the Court of Appeal affirmed. 

The POBRA provides public safety officers the right to administratively appeal any punitive action or denial of promotion on grounds other than merit.  Punitive action is defined as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment." 

Appellants argued that the POBRA requires that an administrative appeal be provided when an employee contends that an involuntary transfer was imposed for purposes of punishment, even without evidence to support that conclusion.  The Court of Appeal noted that in order to be entitled to an administrative appeal, courts have required employees to show some evidence that their transfers were imposed for punishment purposes.  If the Court accepted Appellants' argument, the focus would shift from evaluating the agency's actual motivation for the transfer to what the employee believes to be the agency's motivation.  Further, Appellants' position would frustrate the LAPD's administrative discretion to transfer employees to fit the needs of the Department.  Therefore, the Court of Appeal held that the trial court was correct to deny Appellants' petition and request for declaratory relief on that theory.

Appellants also argued that they were entitled to an appeal because their transfers were "precipitated by alleged deficient performance and/or alleged improper conduct."  The Court of Appeal reiterated that in order to qualify for an appeal, the transfer must be "for purposes of punishment," and noted that courts have acknowledged a difference between transferring to punish deficient performance and to compensate for the deficient performance.  An agency may have many reasons for transferring an employee who is not performing at a satisfactory level in his or her assignment, none of which are punishment.  In this case, Appellants failed to produce any evidence that the LAPD intended to punish them, and the Court declined to find that the transfers were punitive in nature solely because they were aimed at addressing Chu and Hall's performance.   The LAPD presented substantial evidence that the transfers were made to give Chu and Hall a fresh start.  Therefore, the trial court did not err when it found that the transfers were not punitive in nature. 

Appellants also argued that the transfers were punitive because they led or may lead to adverse employment consequences.  Specifically, Hall argued that as a result of her transfer, she is working 175 fewer overtime hours per year, and that this reduction in salary is per se punitive action.  However, Hall failed to present evidence that she was entitled to any amount of overtime hours in the Robbery/Homicide Division.  The LAPD presented evidence that overtime is not guaranteed for any lieutenant assignments.  Hall also argued that she suffered another reduction in salary because in her new assignment, she does not have use of a take-home vehicle for commuting purposes.  However, there was no evidence that Hall was entitled to use a department-issued take-home vehicle at the Robbery/Homicide Division, and the Court presumed that the LAPD assigns a vehicle when it is reasonably necessary to perform one's duties.  Therefore, Hall did not suffer a reduction in salary.

Chu and Hall argued that their transfers were punitive action because various adverse employment actions may flow from them, such as the loss of promotional opportunities.  However, the POBRA specifically identifies the types of negative employment consequences that qualify as punitive action, and the loss of promotional opportunities is not on that list. In order for Hall and Chu's transfers to qualify as punitive action, they were required to show that the transfers were for purposes of punishment, and they failed to make that showing. Further, even if the loss of promotional opportunities was a punitive action, Hall and Chu did not present any evidence aside from their own beliefs, as stated in their declarations, that their opportunities for advancement had been diminished.  Chu also argued that his transfer led to other consequences, including being monitored and his placement on restrictive duty status.  However, the evidence demonstrated that these actions flowed not from his transfer, but from being found guilty of making inappropriate sexual remarks. 

Finally, Appellants argued that their transfers violated their due process rights.  However, an "interest in reputation alone is not a constitutionally protected liberty interest," and Appellants failed to show that they suffered any cognizable loss from their transfers. 

Note: 

This decision relies heavily on Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836 which was handled by Scott Tiedemann, LCW Managing Partner.  As in Benach, the Court held that an officer seeking an administrative appeal because of a transfer has the burden to prove that the transfer was for a punitive reason.  Transfers that are made to better fit the needs of a public safety organization will not trigger the right to an administrative appeal unless the employee can show that the agency's motivation was punitive.  This decision will also apply to Fire Departments pursuant to the Firefighters Procedural Bill of Rights Act. 

Los Angeles Police Protective League v. City of Los Angeles (2014) __ Cal.App.4th ____ [2014 WL 7343770].

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