A Police Officer’s Appeal Rights

On June 27, 2017, the California Court of Appeals held in Paulo Morgado v. City and County of San Francisco, et al., that under the Public Safety Officers Procedural Bill of Rights Act (“POBRA”), a police officer is entitled to an administrative appeal following any final disciplinary or punitive action.

The POBRA

The POBRA, which was enacted over 40 years ago and is codified in Government Code section 3300 et seq., requires law enforcement agencies to provide minimal procedural rights to their peace officer employees.  Section 3304 (b) provides that “no punitive action…shall be undertaken by any public agency against any public safety officer… without providing the public safety officer with an opportunity for administrative appeal.”  In other words, an employee must be allowed to challenge any discipline.

While the details of the administrative appeal requirement are left to the local agency, at the minimum, “section 3304 requires that a peace officer receive an evidentiary hearing before a neutral fact finder to challenge the punitive action.”[1]

Case Background

In 2008, a citizen filed a complaint against Officer Morgado.  The Department investigated the allegation and recommended disciplinary action.  As a result, the Chief filed a disciplinary complaint with the City’s Police Commission.[2]  The Commission held a full evidentiary hearing and Officer Morgado was represented by legal counsel.  At the conclusion of the hearing, the Commission decided to terminate Officer Morgado’s employment.  Officer Morgado was not permitted to appeal the Commission’s termination decision.

Unhappy with his termination, Officer Morgado filed a lawsuit seeking reinstatement.  The City argued that the Chief’s disciplinary complaint with the Commission was the “punitive action” and that Officer Morgado was afforded the required “administrative appeal” under POBRA when the Commission held its evidentiary hearing. Therefore, the City asserted that it had complied with the POBRA and no additional steps were needed.

The Ruling

The trial court disagreed with the City and sided with Officer Morgado.  The trial court held that the “punitive action” was the termination decision and that Officer Morgado should have been afforded an opportunity to appeal the Commission’s decision.

In affirming the trial court, the Court of Appeals held that the decision to terminate Officer Morgado’s employment was the “punitive action” and that an independent re-examination of that decision was required under POBRA so that Officer Morgado had an opportunity “to convince the employing agency to reverse its decision.”  The Court, however, noted that its decision does not mean a “municipality must provide multiple administrative appeals during a single disciplinary proceeding against an officer,” but that the municipality must provide the officer “an opportunity to administratively appeal the ultimate disciplinary decision at the end of it.”

The Effect

Both police officers and the municipalities that employ them must now be mindful that regardless of the type and extent of the administrative review afforded to officers during any disciplinary proceeding, the officer must have an opportunity to appeal the final decision of any disciplinary or punitive action.

[1] Gordon v. Horsley (2001) 86 Cal. App. 4th 336, 347.

[2] The City and County of San Francisco has a Police Commission that shares responsibility with the Police Chief in imposing police officer discipline.  The Chief has authority to impose up to a 10-day suspension but must file a complaint with the Commission to seek a higher form of discipline, including termination.