Public Sector Case Notes
| Citation | Vol. 33 No. 5 |
| Publication year | 2019 |
| Author | By Scott Tiedemann and Kaylee Feick |
By Scott Tiedemann and Kaylee Feick
Scott Tiedemann is the Managing Partner of Liebert Cassidy Whitmore, California's largest public sector labor, employment and education law firm. He is the author of the CPER Pocket Guide to the Firefighters Procedural Bill of Rights, as well as a chapter on that topic in California Public Sector Employment Law. Kaylee Feick is an Associate in Liebert Cassidy Whitmore's Los Angeles office, where she provides representation and counsel to clients in all matters pertaining to labor, employment, and education law. She provides support in litigation claims for discrimination, harassment, retaliation, wage and hour disputes, and other employment matters. Kaylee can be reached at (310) 981-2735 or kfeick@lcwlegal.com.
On November 1, 2015, the Los Angeles County Sheriff's Department (Department) promoted Thomas Conger from sergeant to lieutenant, subject to a six-month probationary period. A few months later, the Department informed Conger that he was under investigation for events occurring before his promotion. Shortly thereafter, the Department relieved Conger of duty, placed him on administrative leave, and extended his probationary period indefinitely due to his "relieved of duty" status.
On May 20, 2016, the Department notified Conger that it was releasing him from his probationary position of lieutenant based on investigatory findings that Conger had failed to report a use of force while he was still a sergeant. The Department provided Conger with a "Report on Probationer" (Report), which indicated that on May 21, 2015, Conger and two deputy sheriffs moved a resisting inmate from one cell into an adjacent cell. The Report said that Conger violated Department policy by failing: to report the use of force; to document the incident; and to direct his subordinates who used or witnessed the use of force to write the required memorandum. The Report concluded that Conger did not meet the standards for the position of lieutenant, and recommended Conger's release from probation and demotion back to sergeant.
Subsequently, Conger filed a written appeal with the Los Angeles County's (County) human resources office and a request for a hearing with the County's Civil Service Commission pursuant to the Public Safety Officers' Procedural Bill of Rights Act at Government Code § 3304(b). That section provides that "[n]o punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal."1 Section 3303 defines "punitive action" as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment."2
After both the human resources office and the Civil Service Commission denied Conger's requests, Conger petitioned the trial court for an order directing the County to provide him with an administrative appeal. Conger argued that releasing him from his probation based on alleged pre-promotion misconduct constituted a "denial of promotion on grounds other than merit" under Government Code § 3304(b), and entitled him to an administrative appeal. The trial court denied the petition, ruling that the Department could properly consider Conger's pre-probationary conduct in rescinding his promotion, and that the decision to rescind was merit-based due to Conger's failure to report a use of force. Conger appealed.
The court of appeal affirmed. First, the court determined whether Conger's release from his probationary promotion was a "denial of promotion" or a "demotion." The court noted that this was an important distinction because under § 3304(b), an employer can deny a promotion without triggering the appeal right, so long as the denial is based on merit. The court concluded that the Department's decision was indeed a denial of promotion. The court noted that Conger had not completed his probationary period at the time the...
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