Sheriff’s Sergeant Not Entitled To An Administrative Appeal For Release From Probationary Promotion

Category: Fire Watch
Date: Jun 24, 2019 04:37 PM

On November 1, 2015, the Los Angeles County Sheriff’s Department (Department) promoted Thomas Conger from sergeant to lieutenant, subject to a six-month probation period. A few months later, the Department informed Conger that he was under investigation for events occurring before his promotion. Shortly thereafter, the Department relieved Conger of duty, placed him on administrative leave, and extended his probationary period indefinitely due to his “relieved of duty” status.

On May 20, 2016, the Department notified Conger that it was releasing him from his probationary position of lieutenant based on investigatory findings that Conger had failed to report a use of force while he was still a sergeant. The Department provided Conger with a “Report on Probationer” (Report), which indicated that on May 21, 2015, Conger and two deputy sheriffs moved a resisting inmate from one cell into an adjacent cell. The Report said that Conger violated Department policy by failing: to report the use of force; to document the incident, and to direct his subordinates who used or witnessed the use of force to write the required memorandum. The Report concluded that Conger did not meet the standards for the position of lieutenant, and recommended Conger’s release from probation and demotion back to the sergeant.

Subsequently, Conger filed a written appeal with the County’s human resources office and a request for a hearing pursuant to the Public Safety Officers’ Procedural Bill of Rights Act, at Government Code section 3304 subdivision (b), with the County’s Civil Service Commission. Section 3304, subdivision (b) provides that “[n]o punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.”  Section 3303 defines “punitive action” as “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.”

After both the human resources office and the Civil Service Commission denied Conger’s requests, Conger petitioned the trial court for an order directing the County to provide him with an administrative appeal. Conger argued that releasing him from his probation based on alleged pre-promotion misconduct constituted a “denial of promotion on grounds other than merit” under section 3304, subdivision (b), and entitled him to an administrative appeal. The trial court denied the petition, ruling that the Department could properly consider Conger’s pre-probationary conduct in rescinding his promotion and that the decision to rescind was merit-based due to Conger’s failure to report a use of force. Conger appealed.

The Court of Appeal affirmed. First, the court determined whether Conger’s release from his probationary promotion was a “denial of promotion” or a “demotion.” The court noted that this was an important distinction because under section 3304, subdivision (b), an employer can deny a promotion without triggering the appeal right, so long as the denial is based on merit. The court concluded that the Department’s decision was indeed a denial of a promotion. The court noted that Conger had not completed his probationary period at the time the Department returned him to his previous rank because the Department had extended the probationary period indefinitely. Therefore, Conger did not yet have a vested property interest in the lieutenant position. Because Conger lacked permanent status as a lieutenant, his release from his probationary promotion constituted a denial of promotion rather than a demotion.

Next, the Court of Appeal considered whether the Department denied Conger’s promotion on merit-based grounds. The court noted that because lieutenants are high-level supervisors in the Department, complying with Department procedures and ensuring that subordinates do so as well is substantially related to successful performance in that position. The court reasoned that Conger did not demonstrate competence as a supervisor when he failed to report a use of force or instruct his subordinates to do so. Further, the court noted that nothing in section 3304, subdivision (b) suggests that the term “merit” should be limited to the merit of an officer’s performance during the probationary period. Thus, the court concluded that the Department’s grounds for denying Conger’s promotion were merit-based.

Finally, the court evaluated whether Conger was entitled to an administrative appeal because the Report could lead to future adverse consequences. Conger argued that he was entitled to an administrative appeal because the Department placed the Report in his personnel file and could rely on it in future personnel decisions that could lead to punitive action. The court said that the mere fact that a personnel action may lead to a denial of promotion on merit grounds does not transform it into a punitive action for purposes of section 3304. Moreover, Conger did not provide any evidence that the Report would lead to punitive action or affect his career because the only action the Report recommended was release from the promotion.

For these reasons, the court found that the Department was not required to provide Conger with an administrative appeal for his release from his probationary promotion.

Conger v. County of Los Angeles, 2019 WL 2482400 (2019).


While this case concerns protections afforded to peace officers by Government Code sections 3303 and 3304 under the Peace Officers’ Procedural Bill of Rights Act (“POBRA”), firefighters receive similar protections regarding punitive actions and administrative appeals pursuant to Government Code sections 3251(c) and 3254 of the Firefighters Procedural Bill of Rights Act (“FBOR”) with some key distinctions. For example, the FBOR does not apply to a firefighter who has not yet successfully completed a probationary period (Government Code section 3251(a)). LCW attorneys are experts at advising agencies about their obligations under the FBOR.

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