Thursday, November 10, 2016
C.A. Rejects Claim That Officer’s Removal From SWAT Team Violated State Law
By KENNETH OFGANG, Staff Writer
A chief of police did not violate the Public Safety Officers Procedural Bill of Rights Act by removing an officer from a SWAT team and other assignments, even though the chief found after a hearing that the officer had not committed misconduct justifying termination, the Fourth District Court of Appeal has ruled.
Div. Three yesterday ordered publication of its Oct. 20 opinion affirming an Orange Superior Court judge’s ruling in favor of the City of Westminster in a suit brought by Officer Brian Perez. It was the second time the case, stemming from a November 2007 incident in which a bar patron claimed to have been struck by another officer, was before the court.
As part of the department’s investigation into the incident, Perez was interviewed by two supervisors, during which time he said he had not observed any officer strike the patron. He was then admonished that a videotape clearly showed an officer striking the patron while Perez was nearby.
A second interview took place a couple of weeks later, with an attorney present. Perez reiterated that he had not seen anyone strike the patron, but said that did not mean that such an act had not occurred.
Six weeks after that incident, the department served him with a notice of intended termination, finding that he had been intentionally dishonest in the interviews. Following an appeal, Chief of Police Andrew Hall found that there was insufficient evidence to sustain the charge of dishonesty.
The chief subsequently removed Perez from the SWAT team and a department honor guard. In addition, the department stopped sending officers to him for field training.
Perez brought a statutory claim against the city, to which the city did not respond. He filed suit in April 2009, claiming that the city violated his rights during the interviews, and that his removal from special assignments also violated the act.
The trial judge granted the city’s motion to strike under the anti-SLAPP law, finding that all of the alleged violations arose from protected activity and that Perez was unlikely to prevail on the merits. The Court of Appeal, in an unpublished 2011 opinion, reversed, saying the alleged violations did not arise from protected activity, and returned the case to the trial court to be heard on the merits.
On remand, Judge Ronald L. Bauer found that the only violations committed by the city consisted of failing to provide required warnings during the first interview. The judge determined that the violations were not malicious or done with intent to harm, so Perez received no monetary damages.
The only relief awarded was an injunction requiring the department to train its officers regarding proper interrogation procedures under the act.
As for the loss of his SWAT and other positions, the judge found that there was “no evidence” to support a claim that a violation of the Bill of Rights Act had occurred. He credited Hall’s testimony that the actions were not punitive, but were undertaken because the chief “had lost a great deal of confidence in” Perez.
Justice Richard Fybel, writing for the Court of Appeal, said there was “more than substantial” evidence to support Bauer’s ruling that Hall did not violate statutory rights by taking away Perez’s “collateral assignments.”
Removal from such an assignment, the justice explained, constituted “normal management of the department,” not punishment, and thus did not qualify for an exception to the usual rule that an action not resulting in loss of pay is not considered punitive.
He cited cases holding that loss of prestige, loss of the opportunity to earn future overtime compensation, and a transfer to another assignment with no change in pay were not punitive. Fybel distinguished cases cited by the plaintiff, which involved reduction in salary, transfer to a lower paying position, and a reassignment resulting in loss of pay.
The plaintiff, he said, did not rebut Hall’s testimony that his removal from the assignments was not undertaken in retaliation for his exercise of his rights under the Bill of Rights Act. He also noted that Perez could have initiated a grievance under his union contract, but didn’t.
The case is Perez v. City of Westminster, 16 S.O.S. 5646.
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