Principles for Public Safety Employment

concluded that, “While the meeting [with the city manager] is a necessary part of the appeal process, it is nevertheless insufficient to fulfill due process requirements.” Initially, Runyan was considered to be an aberration among cases determining the scope of an administrative appeal under the POBR pursuant to Section 3304(b). Indeed, the outcome in Runyan was largely determined by an earlier unpublished opinion of the Court of Appeal involving the City of Long Beach. Then, in Giuffre v. Sparks , 266 the Court of Appeal interpreted Runyan to stand for the proposition that “at a minimum Section 3304 [affords an officer the right to] an evidentiary hearing before a neutral fact finder. ” (Emphasis added.) In Giuffre , the County suspended a deputy sheriff from the SWAT team for six months after he threatened suicide during an argument with his girlfriend. Thereafter, he threatened to kill his ex-wife during an argument over child visitation rights and the County removed him from the SWAT team, with a resulting reduction in pay. Consistent with White and McManigal , the Court of Appeal determined that, under Section 3304(b), the deputy was entitled to an administrative appeal. But the Court of Appeal also held that the deputy sheriff was entitled to an “evidentiary hearing before a neutral fact finder.” Worse, in concluding its decision, the Court of Appeal stated, “[b]ecause the administrative appeal afforded to Giuffre did not provide him with a full evidentiary hearing , and according to the memorandum of understanding he could obtain such a hearing only before the Civil Service Commission, he has a right to an administrative appeal before that body.” 267 Giuffre is cited with regularity by officers who are removed from specialty pay assignments and who are seeking to be provided with a full evidentiary hearing as a result of their reassignments. It requires little imagination to comprehend the implications for law enforcement management, not the least of which is the cost, if every reassignment out of a specialty pay position, e.g., SWAT, K9, detectives, motors, results in a trial type evidentiary hearing, probably before a commission or an arbitrator. Fortunately, after the Giuffre decision, the Court of Appeal in James v. City of Coronado 268 held that a full evidentiary hearing, including the right of cross-examination, is not required in every instance where “punitive action” is imposed. Rather, the James Court stated that “the adequacy of the appeal procedure afforded must be measured according to constitutional due process principles.” Factors the James Court said should be considered are the officer’s “status” and the type of punitive action imposed. In James , officers employed by the City of Coronado received letters of counseling which would become part of the officers’ next annual performance evaluation. The Chief of Police stated in the counseling letters that they were not “discipline,” but did state that “[a]ny recurrence of this or similar conduct would require severe disciplinary action that could include termination.” The officers and their union requested a full evidentiary hearing to contest the counseling letters, but the City denied their request. The officers and their union then filed a petition for writ of mandate claiming that Section 3304(b) gave officers the right to a full evidentiary hearing, including the right of cross-examination. The trial court granted the petition. The Court of Appeal affirmed, holding that while the officers were entitled to an evidentiary hearing in which

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