Principles for Public Safety Employment

the City had the burden of proof, they had no right to cross-examine the City’s witnesses given the modest level of “punitive action” at issue. The Court of Appeal distinguished the Runyan and Giuffre decisions by noting that in each of those cases the “punitive action” at issue involved some loss of pay. What these cases teach us is that there is little clarity in the existing case law on this issue. While it is clear that officers have a right to a full evidentiary hearing, including the right of cross-examination, whenever the “punitive action” at issue involves any loss in pay, acts which do not involve loss of pay (e.g., letters of counseling or performance evaluations) could be processed under a more streamlined appeal procedure. What type of appeal an officer must be afforded for these lesser acts will depend on factors such as the level of “punitive action” at issue and which appellate court jurisdiction the public safety employer happens to be in. In Quintanar v. County of Riverside , 269 the Court of Appeal held, in interpreting an MOU that did not expressly state the hearing officer’s standard of review, that the hearing officer erred where he believed that he was only to determine if the discipline imposed was reasonable, rather than apply his own “independent judgment.” The court inferred that the MOU required application of the “independent judgment” standard for view from the MOU’s requirement that the hearing officer “conduct a full-scale evidentiary hearing” and that it allowed the hearing officer to “modify” the discipline imposed. b. A UTHORITY TO H EAR P ITCHESS M OTIONS The California Supreme Court decided in Riverside County Sheriff’s Department v. Stiglitz 270 that a hearing officer or arbitrator may hear and grant a Pitchess motion for discovery of peace officer personnel records. In addition to its statutory construction, the Court remarked that this conclusion is consistent with the purpose of the POBR, which is to provide peace officers an opportunity to administratively appeal an adverse employment decision. The court further stated that its ruling was in line with the Pitchess scheme of providing a balance of interests between a litigant’s discovery interest and an officer’s confidentiality interest.

The Stiglitz decision will make it easier for peace officers to challenge their discipline on grounds of disparate treatment, as they may be able to obtain other employees’ disciplinary records via administrative Pitchess motions rather than having to resort to the courts. Agencies should strive to be as consistent as possible in application of discipline.

LCW Practice Advisor

2. A DMINISTRATIVE A PPEALS U NDER THE FBOR Government Code section 3254.5 (a) states: “An administrative appeal instituted by a firefighter under this chapter shall be conducted in conformance with rules and procedures adopted by the employing department or licensing or certifying agency that are in accordance with [the Administrative Procedures Act,] Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2.”

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 91