A California Court of Appeal recently found that the City and County of San Francisco’s disciplinary procedure for police officers is not compliant with the Public Safety Officers Procedural Bill of Rights Act (“POBRA”), which requires that all California law enforcement agencies provide officers with certain minimum procedural rights.  In Morgado v. City and County of San Francisco (13 Cal.App.5th 1), which was published on June 27, 2017, the Court of Appeal reiterated that officers are entitled to an administrative appeal of punitive action and determined that the City had not provided such an appeal.

Background Facts

In 2008, a private citizen filed a misconduct complaint against Officer Morgado with the City’s Office of Citizen Complaints (“OCC”), which is charged with investigating and making findings on civilian complaints of on-duty police officer misconduct.   The OCC investigated and forwarded its conclusions and recommendations to the police chief, who ultimately filed a disciplinary complaint against the officer with the Police Commission.  After further investigation and an evidentiary hearing, the Commission determined that the officer had engaged in misconduct, including use of unnecessary force.  He was terminated in 2011 as a result of these findings.  The decision of the Commission was final in that the City had no mechanism for an internal, administrative appeal of the termination.

Morgado sued the City, the OCC, the police chief, and the Commission in superior court.  In the course of discovery, the City admitted that the Commission’s decision to terminate him was “the only punitive action undertaken against him” and that he did not have the opportunity to file an administrative appeal challenging that decision.

The superior court ultimately ruled in favor of the officer, vacated his termination, ordered the City to give him the opportunity to appeal the Commission’s decision to terminate his employment, and enjoined the Commission from imposing any punitive action against him without first giving him the opportunity to lodge an administrative appeal of such action.

The Appellate Court’s Ruling

The central POBRA provision at issue in the Court of Appeal’s ruling is Government Code section 3304(b), which establishes that public safety officers must be provided the opportunity to appeal punitive actions.  The legislature created this appeal right so that officers can “establish a formal record of the circumstances” surrounding any punitive action and “attempt to convince the employing agency to reverse its decision[.]”

On appeal, the City took the position that the police chief’s disciplinary complaint to the Commission was the first punitive action against the officer and therefore the subsequent evidentiary hearing before the Commission fulfilled the City’s obligations under section 3304(b) to provide an appeal.  Morgado argued that the termination decision following the Commission hearing was the only punitive action against him, and the City violated POBRA by failing to provide him with an opportunity to appeal the termination.

The Court of Appeal acknowledged that the police chief’s disciplinary complaint could constitute punitive action under POBRA, but found that a public agency does not satisfy section 3304(b) by only allowing an appeal of this type of “interim step” in the disciplinary process.  The Court found that, even though the City provided an evidentiary hearing before the Commission, “Morgado had no opportunity to attempt to convince the City to reverse its decision to terminate him, because no further administrative proceedings occurred after the Commission made that decision.”

The Court of Appeal affirmed the superior court’s decision.

What Happens Now?

The City has indicated that it will comply with the appellate court’s ruling, but the City has not provided any details regarding the type of appeal it will provide or which City official or department will be responsible for hearing the appeal.

What Does this Ruling Mean for My Agency?

This case serves as an important reminder that the appeal right in section 3304(b) was created in order to ensure that public safety officers have the opportunity to convince the agency not to implement proposed discipline.  It follows that only allowing an officer to appeal an intermediate step in the disciplinary process, even if that step appears to constitute punitive action on its own, is not sufficient to satisfy POBRA.  LCW recommends that agencies take this opportunity to ensure that their disciplinary procedures for law enforcement officers are POBRA-compliant.