Principles for Public Safety Employment

that prior cases had acknowledged the difference between transferring an employee to punish deficient performance and transferring the employee to compensate for deficient performance. Similarly in Perez v. City of Westminster , 261 the Court of Appeal held that it was not “punitive action” to remove an officer from the collateral assignments to SWAT and Honor Guard, or to refuse to place a trainee with him as a Field Training Officer. Instead, these acts were part of the Chief’s “normal management of the department.” The Court emphasized that in order to be considered punitive action under the PBOR, an officer must be subjected to a reduction in salary, and the loss of potential overtime is not sufficient to implicate the POBR. B. W HAT IS THE P ROCEDURAL S COPE OF AN A DMINISTRATIVE A PPEAL ? Once it is determined that a public safety employee is entitled to an administrative appeal hearing because he or she has suffered a punitive action, the issue becomes the scope of the administrative appeal that he or she is entitled to receive. Agencies must adopt specific rules for the administrative appeal hearings. And these procedures are subject to the meet and confer requirement under the Meyers-Milias-Brown Act. The POBR does not provide for specific administrative appeals procedures, so case law dictates the scope of the appeals procedures. In contrast, the FBOR specifically incorporates the Administrative Procedures Act to set forth the required procedures. We will discuss the appropriate administrative appeals processes for peace officers and firefighters in turn. a. R EVIEW OF D ISCIPLINE The POBR does not specifically define the parameters of the administrative appeal that must be provided to an officer. Section 3304.5, enacted in 1998, merely states, “[a]n administrative appeal instituted by a public safety officer under this chapter shall be conducted in conformance with the rules and procedures adopted by the local public agency.” At first, it appeared that the courts considered the procedural requirements of an administrative appeal under Section 3304(b) to correspond generally with the constitutional due process requirements relating to whether or not a property interest was at stake. In general, an employee’s due process rights are greater where the employee is deprived of a property interest, such as when an employee has a reasonable expectation of continuing employment but for a showing of cause. 262 Where due process rights were not implicated (i.e., a property or liberty interest was not at stake), it appeared that the courts interpreted Section 3304(b) as affording an officer the right to an informal hearing similar to a Skelly 263 hearing or a Lubey hearing. 264 But, in Runyan v. Ellis , 265 a police officer was temporarily reassigned and subjected to a reduction in pay as discipline for deficient performance. The City afforded the officer the opportunity for an informal hearing before the City Manager. The officer argued that he was entitled to a full evidentiary hearing before the Civil Service Commission. The Court of Appeal 1. A DMINISTRATIVE A PPEALS U NDER THE POBR

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