Wednesday, December 10, 2014
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Peace Officer Not Entitled to Appeal Assignment Transfer—C.A.
By KENNETH OFGANG, Staff Writer
State law does not guarantee a peace officer the right to an administrative appeal of a nonpunitive assignment transfer that does not involve loss of tangible benefits, the Court of Appeal for this district ruled yesterday.
Div. Four affirmed Los Angeles Superior Court Judge James Chalfant’s denial of writ and declaratory relief sought by the Los Angeles Police Protective League on behalf of Felicia Hall and Won Chu.
“In this case we hold that the Public Safety Officers Procedural Bill of Rights Act (POBRA) (Gov. Code, §3300 et seq.) does not afford officers the right to an administrative appeal of a transfer of assignment, which does not affect compensation or other specified rights, solely because the transfer may lead to negative employment consequences, or upon the officer’s belief to that effect,” Presiding Justice Norman Epstein wrote. “Instead, as the statute specifically requires, the transfer must be ‘for purposes of punishment.’”
The union claimed that Hall and Chu were entitled to bring administrative appeals under the act.
Involuntary Transfer
Hall, a sworn member of the Los Angeles Police Department since 1985 and a lieutenant since 2003, challenged her 2011 transfer from the Robbery/Homicide Division, where she had headed the Sexual Assault Section, to the Juvenile Division.
The transfer came about after her superiors questioned whether she had the “interpersonal skills” needed in the previous assignment. They said the transfer was in the best interests of the department, and Hall did not lose pay or rank.
Hall, however, claimed that the transfer cost her overtime hours and the use of a department vehicle, was personally stigmatizing, and made it less likely she would be promoted to captain eventually.
Chu, a sworn officer since 1985 and a detective since 2000, had been assigned to Rampart Division until 2011, when it was determined that because of multiple accusations of misconduct, one of which had earlier resulted in a formal reprimand for making inappropriate remarks of a sexual nature, it would be in Chu’s and the department’s best interests if he were to make a “fresh start” in another assignment.
Chu was expressly notified that the transfer was non-disciplinary and given a choice as to where he would be assigned. He claimed, however, that as a result of the transfer, he was monitored by the LAPD risk management executive committee; placed on restrictive duty status, which prohibited him from carrying a gun; and suffered from a damaged reputation within the LAPD.
Not Punitive
Epstein, writing for the Court of Appeal, rejected the union’s arguments that the transfers of Hall and Chu were punitive in nature, despite being labeled to the contrary by the department.
“An agency may have many reasons, quite apart from punishment, for transferring an employee who is not performing at a satisfactory level in his or her particular assignment,” Epstein wrote. “Courts have noted the difference between a transfer to punish deficient performance and to compensate for the deficient performance.”
In this case, he elaborated, the department had presented substantial evidence that the transfers were not punitive. Hall, he noted, had a heavily criticized management style, while Chu’s superiors had legitimate concerns that because the misconduct allegations were widely known within the division, Chu’s effectiveness as a detective had been compromised.
He went on to say that there was no showing that any of the negative consequences alleged by Hall or Chu amounted to punishment.
Claim Rebutted
The department effectively rebutted Hall’s claim of lost overtime by pointing out that there are no guarantees of overtime, and that it was unlikely Hall would have had significant overtime opportunities had she remained in her former assignment, because the department has been cutting down on overtime in recent years, Epstein said.
Nor did Hall show that the loss of her department vehicle was punitive, as opposed to being based on the fact that she would not need the car in her new assignment, he explained.
In Chu’s case, Epstein wrote, the claimed injuries were speculative or not shown to have been caused by the transfer, the presiding justice said.
The case is Los Angeles Police Protective League v. City of Los Angeles, B250922.
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