Principles for Public Safety Employment

a. Informal Hearing Procedure The APA provides that the informal hearing procedure is appropriate for a disciplinary sanction that does not involve discharge from employment, demotion, or suspension for more than five days. 279 Thus, this procedure can be used for punitive actions, such as written reprimands and suspensions of five days or less. The APA informal hearing procedure does not involve pre-hearing discovery or cross examination of witnesses. 280 Decisions made through the informal process are not subject to appeal through the courts. 281 The APA informal hearing procedure is similar to that described in a POBR case. In applying the POBR, the Court of Appeal in James v. City of Coronado 282 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, however, the city denied their request. The officers and their union then filed a petition for writ of mandate claiming that the POBR gave officers the right to a full evidentiary hearing, including the right of cross-examination. The trial court granted the petition and ruled that the officers were entitled to an administrative hearing in which the city had the burden of proof, however, they had no right to cross-examine witnesses given the “punitive action” did not involve loss of pay or a suspension. The Court of Appeal distinguished other POBR cases that required a full evidentiary hearing by noting that in each of those cases the “punitive action” at issue involved some loss of pay. The James Court then affirmed the trial court and held that while the officers were entitled to an evidentiary hearing in which 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. Thus, in light of cases decided under the POBR, appeals from punitive actions which do not involve loss of pay can be processed under a more streamlined appeal procedure than a full evidentiary hearing. What type of appeal a firefighter must be afforded for these lesser acts will depend on factors such as the level of “punitive action” at issue. b. Formal Hearing Procedure The following is a basic description of the general formal hearing procedures to be followed upon notice by the firefighter that he or she intends to appeal the punitive action. This workbook does not describe the actual hearing procedures.

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 93