Principles for Public Safety Employment

paying position is per se punitive and entitles the officer to an administrative appeal. In this case, the officer lost pay and was, therefore, entitled to an administrative appeal. In Gordon v. Horsley , a deputy sheriff pointed his firearm at a motorist who cut him off on a highway. Subsequently, the County placed a letter of reprimand in his file and barred him from carrying a concealed firearm or making arrests while off-duty. The deputy appealed the restrictions, but the County refused to hold an administrative appeal. In holding that the deputy was entitled to an administrative appeal, the court reasoned that the restrictions placed on the deputy were punitive in nature. The court stated that by restricting the deputy’s peace officer powers, which are afforded to other peace officers, and by placing a letter in the deputy’s personnel file, the County had made a decision which entitled the deputy to an administrative hearing. 256 In Otto v. Los Angeles Unified School District , 257 an officer had a “summary of conference” memorandum placed in his personnel file. The issue was whether the placing of this type of document in a personnel file was sufficient to trigger the right to an administrative appeal. The court held that the answer to this question depends on the contents of such memorandum and needs to be resolved on a case-by-case basis. In Otto’s case, he received a memo from his supervisor advising him that he would be subject to discipline if he did not utilize the department’s communication system properly when logging off and on for Code 7. The court reasoned that the memo was a potential basis for future punitive action, and therefore he was entitled to an administrative appeal. b. A CTIONS THAT ARE N OT C ONSIDERED P UNITIVE In Conger v. County of Los Angeles , 258 the Court of Appeal held that the rescission of a probationary promotion, thereby returning the newly promoted lieutenant back to sergeant, was not punitive where the decision was based on merit. Importantly, the court held that a rejection during probation was a “denial of promotion” and not a “demotion”: while a demotion is necessarily a punitive action, a denial of promotion is only a punitive action if it was “on grounds other than merit.” The officer was therefore not entitled to an administrative appeal. In Benach v. County of Los Angeles 259 , the Court of Appeal held that a transfer out of a flight division where his presence had “coincided” with (and appeared to cause) a less-than harmonious working environment was not punitive and did not entitle the employee to an administrative appeal where it was stressed to the employee that the transfer was not punitive and he would continue to receive the same rate of pay. The Court acknowledged that management had to make decisions about how to best utilize its personnel, and that transfers for this reason were not necessarily punitive. The Court of Appeal in Los Angeles Police Protective League v. City of Los Angeles 260 held that transfers for the stated purpose of giving the officers a “fresh start” after incidents that could have, but did not, lead to punitive action was not punitive even where the transfers resulted in fewer overtime hours, the loss of entitlement to a take-home vehicle, and a stigma in one officer’s case and the loss of a weapon and reputational damage to the other. The Court noted

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