California Court of Appeal Rules that Return to a Former Position from Promotional Probation Does Not Trigger POBRA Appeal Rights

By Katy A. Suttorp

Although quite broad, the scope of personnel actions covered under the Public Safety Officers Procedural Bill of Rights Act (“POBRA”) does have some statutory limits.  At issue in Conger v. County of Los Angeles was the exclusion in Section 3304(b) of “denial of promotion on grounds other than merit” from the types of actions for which an employer must provide an administrative appeal (__ Cal.Rptr.___; 2019 WL 2482400).  As explained further below, the Court of Appeal determined that whether or not an officer meets job-related standards to pass promotional probation is a question of “merit,” and failure to pass probation for merit-based reasons constitutes a “denial of promotion.”  Accordingly, the Court of Appeal ruled that officers who are returned to their former positions from promotional probation are not entitled to an administrative appeal of that decision.

Background and Trial Court Ruling

Thomas Conger was promoted from the rank of sergeant to lieutenant in the LA County Sheriffs’ Department and began a promotional probationary period. Five months later, Conger was placed on administrative leave and had his probation extended while the Department investigated an incident involving Conger that had occurred prior to his promotion.  The investigation findings sustained misconduct by then-Sergeant Conger involving his failure to report or document a use of force incident and failure to ensure that his subordinates fulfilled their obligations.  The Department issued a probationary evaluation documenting these findings and notified Conger that he “does not meet the standards for the position” based on those findings.  The notice recommended that Conger be released from his promotional probation and be “demoted’ to his prior rank of sergeant.

Conger submitted an appeal to the County’s human resources office and a request for hearing to the County’s Civil Service Commission.  After both were denied, Conger sought a writ of mandate in the trial court, as well as declaratory judgment and attorney’s fees.  Conger argued that relying on pre-promotional conduct meant that he had been rejected from promotion on grounds “other than merit,” thus entitling him to an administrative appeal under Section 3304(b).

The trial court denied Conger’s petition, determining that the carve-out based on “merit” under Section 3304(b) was not limited to conduct during the promotional probationary period.  In particular, the court noted the rules contained a definition of “non-merit factors” which “relate exclusively to a personal or social characteristic or trait and are not substantially related to successful performance of the duties of the position.”  The Department had also submitted declarations emphasizing the importance of a lieutenant’s use of good professional judgment and appropriate reporting of incidents.  Overall, the trial court found that “the grounds for denying [Conger] a promotion were clearly merit-based factors substantially related to successful performance of the duties of the position.” As such, Conger was not entitled to an administrative appeal.

Judgment Affirmed by the Court of Appeal

Conger appealed to the Court of Appeal, which examined each of the components of the Section 3304(b) carve-out carefully before affirming the trial court’s judgment.

To begin with, the Court of Appeal emphasized that the Department’s action did not constitute a “demotion,” based on a similar ruling in Guinn v. County of San Bernardino. (See (2010) 184 Cal.App.4th 941, 946-947, citing, Swift v. County of Placer (1984) 153 Cal.App.3d 209).  The Court of Appeal was not persuaded by Conger’s attempt to distinguish Guinn because that officer’s poor performance had occurred during the promotional probationary period, not before.  According to the Court of Appeal, the key consideration in both cases was that “the adverse action took place during a period when promotion was not yet permanent, and the employer was still evaluating whether the officer deserved the higher position.”  The Court noted that such a view was consistent with basic principles of due process under which a rejected probationary employee, such as Conger, has no right to a hearing due to the lack of a vested property interest.  Conger had raised numerous other cases, which the Court of Appeal found inapposite, including Henneberque v. City of Culver City, which had pre-dated the exclusion of probationary officers under Section 3304(b).

Next, the Court of Appeal considered whether the denial of promotion to Conger was “on grounds other than merit.”  In that regard, the Court of Appeal observed:

The ability to comply with department procedures and ensure subordinates follow those procedures is substantially related to successful performance in a supervisory position.  Conger did not demonstrate competence as a supervisor when he failed to report a use of force per Department policy and failed to direct his subordinates to do so.

The Court of Appeal also squarely rejected Conger’s attempt to limit evidence of “merit” to conduct during the probationary period and reasoned that “an officer’s past performance speaks to his or her ‘merit’ as much as his or her performance on probation.”  As such, the Court of Appeal found it irrelevant that Conger had not received any negative evaluations regarding actions he took during the probationary period.  The Court also concluded that the “merit-based” statutory carve-out was absolute and would not trigger an appeal right for Conger, “even if the Department deliberately chose to deny his promotion as a substitute for punitive action.”

Finally, the Court of Appeal rejected Conger’s effort to characterize the “negative” probationary evaluation as a “punitive action” because it was included in his personnel file and would affect his future employment opportunities.  The Court first considered Conger’s proffered authority in some depth, specifically Hopson v. City of Los Angeles (1983) Cal.App.3d 347; Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209;  and Otto v. Los Angeles Unified School District (2001) 89 Cal.App.4th 985.  Ultimately, the Court of Appeal concluded:

To the extent that [those decisions] may be read to suggest that personnel actions that could lead to future denials of promotion on merit grounds are punitive actions under POBRA, we respectfully disagree with them.

Further, unlike each of those decisions, the Court noted that Conger had not produced any evidence that his evaluation would lead to punitive action or affect his future career opportunities.

As a final note, because the Court of Appeal’s found the carve-out under Section 3304(b) in depth dispositive regarding Conger’s claims, it expressly declined to consider the County’s alternate argument that Conger was not eligible for administrative appeal under Section 3304(b) because he had “not yet successfully completed the probationary period.”  The Court also declined to consider Conger’s argument, raised for the first time on appeal, that the Department’s own policies prevented it from considering conduct outside of the probationary period when evaluating a probationary employee.

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