Courtesy of James R. Touchstone, Esq.
In June 2019, the California Second District Court of Appeal held, in Conger v. Cty. of L.A., that a police department’s decision to deny an officer a promotion was merit based. The officer had failed to report a use of force several months before his promotion to a probationary lieutenant position. The Court further concluded that the officer had failed to show that the written evaluation detailing his unreported use of force would impact his future career adversely except for the loss of his probationary position.
In November 2015, the Los Angeles County (“County”) Sheriff’s Department (the “Department”) promoted Sergeant Thomas L. Conger to the rank of lieutenant, a position subject to a six-month probation period. In mid-April 2016, the Department told Conger he was being investigated for a use of force incident that occurred several months before Conger’s probationary promotion. Later in April 2016, the Department relieved Conger of duty, placed him on administrative leave, and served him a letter extending his probationary period indefinitely due to his relieved status.
In May 2016, the Department notified Conger by letter that he was “released from
probationary position of Lieutenant” due to his “failure to adhere to Department policies regarding a use of force and/or reporting the use of force” and cited an Internal Affairs Investigation. The Department gave Conger a report on the matter which listed the evaluation period as November 1, 2015, to May 20, 2016. The Department also provided a “Performance Evaluation” that described a May 21, 2015 “use of force incident” in which Conger and two deputy sheriffs moved a resisting inmate from one cell into an adjacent cell. The evaluation stated that Conger failed to report a use of force by himself and two of his subordinates; failed to document the incident and did not direct his subordinates who used or witnessed force to write the required memorandum; and failed to adhere to policy by completing the required use of force report.
The evaluation concluded, “As a probationary employee, this is the time to demonstrate the ability to adhere to policies, good judgment and professionalism. Based on this incident, Lieutenant Conger does not meet the standards for the position of Lieutenant.” The evaluation “recommend[ed] that Lieutenant Conger be released from his probationary lieutenant position and be demoted to his previous rank of sergeant.”
Conger appealed to the County’s human resources office, arguing that he should not be released from a probationary position based on events that occurred before the probationary period began. The County denied Conger’s appeal. Conger’s request for a hearing to the County’s civil service commission was also denied.
Conger then filed a petition for a writ of mandate in the trial court, arguing that the Department’s rescission based on alleged misconduct that happened before he was promoted to his probationary position constituted a “denial of promotion on grounds other than merit” under Government Code section 3304(b), a provision of the Public Safety Officers Procedural Bill of Rights Act (“POBRA”) (Government Code section 3300 et seq.). Conger argued he was thus entitled to an administrative appeal hearing under these provisions. Conger requested that the trial court issue an order directing the County, as well as its civil service commission, board of supervisors, and chief executive officer (collectively, respondents) to provide him that administrative appeal.
The trial court denied Conger’s petition, concluding that the Department could deny Conger a promotion based on merit factors arising prior to the probationary period because Section 3304(b)’s time frame was not limited to the duration of the probation itself. The trial court also found the Department’s decision to rescind the promotion based on Conger’s failure to report a use of force was merit based. Conger appealed.
Reviewing the statutory provisions at issue, the California Second District Court of Appeal explained that POBRA “codif[ies] ‘a list of basic rights and protections which must be afforded all peace officers … by the public entities [that] employ them.’” POBRA’s goal is “to assure the ‘maintenance of stable employer-employee relations,’ and thus to secure ‘effective law enforcement … services’ for ‘all people of the state.’” (White v. County of Sacramento (1982) 31 Cal.3d 676, 683.)
Section 3304(b) declares 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.” “[P]unitive action” is defined as “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” (Section 3303.)
The Court observed that an employer may deny a promotion without triggering the right to appeal under Section 3304(b) so long as the denial is based on merit. On the other hand, a “demotion” – one of the listed punitive actions under Section 3303 – triggers the administrative appeal right regardless of whether it was based on merit or nonmerit grounds. (See White, supra, 31 Cal.3d at p. 683 [under POBRA, demotion is “per se disciplinary in nature”].)
The Second District noted that Guinn v. County of San Bernardino held that “returning a permanent employee to his or her previous positionas
result of failure to perform adequately while on promotional probation” constituted a nonpunitive denial of promotion, not a punitive demotion, even though there was an associated loss of rank and pay. (Guinn, supra, 184 Cal.App.4th at pp. 946–947.) Guinn relied on Swift v. County of Placer, which considered a similar “‘rejection during probation’” situation in the context of the State Civil Service Act (Government Code section 18500 et seq.).Swift observed that “‘rejection during probation’” was not listed as a “‘punitive action’” under Section 3303 or “the comparable provision of the State Civil Service Act,” which “strongly suggest[ed]” that rejection during probation was not punitive for purposes of triggering the administrative appeal right under Section 3304 (b). (Swift, supra, 153 Cal.App.3d at pp. 216–217 & fn. 7.) Consequently, Swift held that an officer dismissed during an initial probationary period had no right to an administrative appeal. Guinn determined that Swift’s reasoning applied in the same manner to officers who were returned to their previous rank during probationary periods associated with promotions. (Guinn, supra, 184 Cal.App.4th at p. 946.)
The Second District determined that Guinn’s distinction between demotion and denial of promotion did not depend on when the conduct underlying the adverse personnel action occurred, as Conger argued in his attempt to distinguish Guinn. The Court explained that the critical factor, common to both Guinn and the instant case, was that the adverse action took place during a period in which the promotion was not yet permanent, and the employer was still assessing whether the officer deserved the higher position. The Second District 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 pending investigation into the alleged unreported use of force.
Conger noted that the Department’s evaluation form recommended that he “be demoted” to his previous rank of sergeant. The Court explained that the particular language the Department used did not supersede contrary POBRA language or case law. Applying Guinn, the Court concluded that Conger’s release from his probationary position before he achieved permanent status constituted a “denial of promotion” for POBRA purposes, and not a “demotion.”
The Court of Appeal next considered whether Conger’s denial of promotion was based “on grounds other than merit,” as per Section 3304(b). Acknowledging that POBRA did not define this phrase, the Court explained that “at minimum,” factors constituting merit include those substantially related to successful performance of the position’s duties. The Court added that this view was in accordance with California’s constitutional merit principle, under which candidates for civil service positions are evaluated based on education, training and experience rather than factors unrelated to the job such as political favoritism.
Here, the Court noted that Chief Warren Asmus, the Department official who made the decision to return Conger to the rank of sergeant, explained, “Lieutenants hold a high level supervisory position in the Department.” Successful performance in a supervisory position, the Court explained, requires the ability to comply with department procedures and to ensure that subordinates follow those procedures. The Court concluded that Conger did not demonstrate competence as a supervisor when he failed to report a use of force per Department policy and failed to direct his subordinates to do so in the May 2015 incident.
Conger also argued that because he received no negative evaluations of his conduct during his time as a probationary lieutenant, the Department’s denial of his promotion based on misconduct prior to his probationary period was a denial on grounds other than merit. However, the Court explained that nothing in Section 3304(b) suggested that the term “merits” must be restricted to the merits of an officer’s performance during a probationary period, adding “an officer’s past job performance speaks to his or her ‘merit’ as much as his or her performance on probation.” Thus, the Second District held the Department denied Conger’s promotion on merit-based grounds.
The Court also concluded that Conger failed to show any viable precedent or reasoning supporting his contention that the written evaluation detailing his unreported use of force would impact his career adversely in the future apart from the loss of his probationary position.
In sum, the Second District Court of Appeal concluded that the Department’s decision was a “denial of promotion” under Section 3304(b), not a demotion, and that denial was on merit-based grounds. Accordingly, the Second District affirmed.
HOW THIS AFFECTS YOUR AGENCY
Agencies should note the Court’s distinction between a “denial of promotion” and “demotion,” as the Court delineated here, as well as Guinn and other precedents. The Court considered the differences for POBRA purposes between demoting an officer from a “vested, permanent position” and denying an officer permanent status in a position while on a probational term being evaluated by his or her employer. The Court emphasized that pre-probationary period conduct is a legitimate factor in evaluating whether a denial of promotion is based on merit.
Agencies should also observe the Court did not address the County’s argument in the alternative regarding the issue of whether Conger was ineligible for an administrative appeal because he had not yet “successfully completed” the probationary period attendant to his promotion.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at email@example.com.
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 2019 Cal. App. LEXIS 547 (2nd Dist. June 14, 2019).
 Bacilio v. City of Los Angeles, (2nd Dist. 2018).
 184 Cal.App.4th 941, 948–950 (4th Dist. 2010).
 153 Cal.App.3d 209 (3rd Dist. 1984).
 Guinn, at p. 946.
 California Attorneys, etc. v. Schwarzenegger, 174 Cal.App.4th 424, 433–434 (3rd Dist. 2009).