Principles for Public Safety Employment

Agencies should closely review all applicable rules and procedures in determining whether a peace officer employee achieved permanent status because courts tend to narrowly interpret rules related to extending probationary periods. For example, in Trejo v. County of Los Angeles , the County of Appeal affirmed a trial court’s order to set aside a deputy sheriff’s dismissal because his probationary period expired before the dismissal. 93 In Trejo , a deputy sheriff was placed on administrative duties pending an investigation regarding potential violation of use of force policies. The County’s civil service rules (the “Rules”) provided that deputy sheriffs serve 12-month probationary periods before promotion into a permanent position, based on the employee’s performance of the essential duties of the position. The Rules also provided that a probationary period shall not last more than 12 months from the date of appointment. However, Rules permitted the County to stop the 12 month clock if the employee is absent from duty. The Rules allowed the County to then recalculate the length of time remaining on probation “on the basis of actual service exclusive of the time away.” The Rules defined “actual service” as “time engaged in the performance of the duties of a position or positions including absences with pay.” During his assignment to administrative duties, the deputy did not perform all essential duties and the County attempted to extend his probationary period, before releasing the deputy. The Court of Appeal examined the rules’ plain language and held that that the time the deputy spent on administrative duty was “actual service.” Thus, the deputy became a permanent employee 12 months after his probationary period began. The Court stated that Trejo’s circumstances were different from those who are entirely relieved of duty and placed on paid administrative leave. LCW Practice Advisor In contrast, probationary officers are not excluded from the protections enunciated in Government Code section 3303, the interrogation statute. 95 Thus, probationary officers have the same rights as “permanent” officers when it comes to administrative interrogations, e.g., the right to representation, etc. c. Arson Investigators An arson investigator is a peace officer protected by the POBR if his or her primary duty is the detection and apprehension of persons who have violated any fire law or committed insurance fraud. A peace officer protected by the POBR is not protected by the FBOR. 96 d. Police Chiefs Police chiefs are entitled to protection under the POBR. 97 The POBR states that a police chief cannot be removed without affording him or her written notice, the reason(s) for removal, and an opportunity for administrative appeal. The POBR provides that the following is a non exhaustive list of satisfactory reasons a police chief may be removed: 1) implementation of the CAUTION: If a probationary officer is discharged because of a specific act of misconduct, he or she may be entitled to a hearing pursuant to constitutional due process principles. In such cases, the officer is probably only entitled to a limited “name-clearing” hearing before the authority imposing the discipline. 94

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 35