CASE UPDATES

By: Martin J. Mayer

PROBATIONARY OFFICER GAINS TENURE IF TERMINATION NOTICE IS RECEIVED BY CIVIL SERVICE COMMISSION AFTER PROBATIONARY PERIOD ENDS

ZERON v. CITY OF LOS ANGELES 67 Cal.App.4th 639 (1998)

Carlos Zeron was a police officer with the city of Los Angles whose probation was to end April 30, 1997. Prior to acceptance for employment, Zeron completed a pre-investigation questionnaire which asked whether Zeron had ever had sexual intercourse with someone under 18. Zeron answered "no." In November 1996 a female police officer who was Zeron's sister in law informed the department that she had sexual intercourse with Zeron when she was 14 and he was 21.

After the department investigated, Zeron was issued a written notice of termination effective April 25, 1997. The personnel department of the Los Angeles Civil Service Commission did not receive the notice of termination until May 8, 1997, eight days after Zeron's probationary period expired. A "liberty interest" hearing was held in July 1997 and the hearing officer found the charges against Zeron true, recommending the termination be upheld. Chief Parks adopted the recommendation and subsequently the superior court denied Zeron's petition for a writ of mandate.

The California Court of Appeal Second Appellate District reversed and remanded, ruling that a police officer attained tenured status if a decision to terminate was not communicated to the civil service commission until after his probationary period expired. The Los Angeles City Charter required the department to notify the commission in writing of termination decisions, and provided that unless a probationary employee was terminated before the end of the probationary period, the probation was "deemed complete."

Although Zeron had received the notice of termination within the probationary period the termination was not complete until the commission was notified, and this occurred eight days after the probationary period ended.

/ What does this mean for your agency?

Although this case dealt with the Los Angeles City Charter, your entity may have similar personnel rules which require notification of a Civil Service Commission, Personnel Director, City Manager, etc., before a termination is considered effective. If this is the case, each notice should contain a carbon copy ("cc") to the appropriate person or body and be delivered at or after the time the employee is served.

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NO WORKERS COMPENSATION WHERE THERE IS A REFUSAL TO RETURN TO WORK AFTER DISCIPLINARY ACTION

HAYWOOD v. AMERICAN RIVER FIRE PROTECTION DISTRICT 67 Cal.App.4th 1292 (1998)

Anthony Haywood's employment with American River Fire Protection District was terminated for cause following a series of increasingly serious disciplinary actions against him. After termination he applied for disability retirement claiming that stress from the disciplinary actions caused him to suffer a major depression which rendered him incapable of performing his usual duties.

Evidence presented at the administrative hearing on the application for disability retirement established that, by the time of the hearing, Haywood had recovered from his depression and was fully capable of performing the duties of his former job or for any other fire department. Nonetheless, Haywood claimed he was entitled to disability retirement because, if he were to return to work for the District under the current administration, which he believed had treated him unfairly, he would likely suffer additional depression that would make him unable to perform his usual duties.

The District denied the application for disability retirement based on the administrative law judge's finding that Haywood had "failed to demonstrate by competent medical evidence that he is incapacitated physically or mentally from the performance of his duties." The superior court issued a peremptory writ of mandate.

The California Court of Appeal Third Appellate District reversed and held, in the published portion of their opinion, that an employee terminated for cause following increasingly serious disciplinary actions against him was not able to collect disability retirement benefits due to a fear of future depression. A distinction exists between an employee who has become medically unable to work and one who is unwilling to do so. The disability retirement laws address only those employees that are unable to work.

Disability retirement laws are not intended to allow unwilling employees to retire early and thus discharge their obligation of faithful performance of duty. An employee's unwillingness to faithfully discharge his duties is ample cause to terminate employment. No evidence presented by Haywood supported his claim that his termination for cause was due to behavior caused by a physical or mental condition. Termination rendered Haywood ineligible for disability retirement.

/ What does this mean for your agency?

With the advent of ADA, and the abuse of it by some, it is important to be able to prove that an employee is disciplined for justifiable, non-discriminatory reasons, if challenged in this fashion.

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TERMINATION DURING EXTENDED PROBATION DOES NOT REQUIRE DUE PROCESS

CILDERMAN v. CITY OF LOS ANGELES 67 Cal.App.4th 1466 (1998)

Jan Cilderman was appointed as a police officer on April 17, 1995 and began serving an 18-month probationary period. On March 22, 1996, the department filed a request to extend Cilderman's probationary period for 19 days, based on sick leave and restricted duty. Cilderman was terminated based on reports of substandard performance nine days after the originally scheduled end of his probationary period, but within the extension period.

Cilderman filed a petition for writ of mandate, claiming the City of Los Angeles and the Chief of Police abused their discretion by not proceeding as if he were a tenured employee as required by law. The superior court granted the petition. The California Court of Appeal Second Appellate District reversed ruling that a probationary police officer who was terminated during his extended probationary period due to substandard performance was not entitled to receive removal procedures of a tenured officer. The court found that the Los Angeles Civil Service Commission rules proved that a probationary period could be extended if the employee was absent from duty in excess of seven calendar days except for specific reasons.

Cilderman argued that he was treated in a discriminatory manner and was able to show that of the 125 officers eligible to have their probation extended, probation was extended for only 34. No evidence however was presented that the disparity was the result of intentional or purposeful discrimination. The fact that there were a significant number of new officers whose probation could have been extended, but were not, was insufficient to demonstrate intentional discrimination.

Application of statutes or rules in an unequal manner to people entitled to be treated the same is not a denial of equal protection "unless it is demonstrated that an element of intentional or purposeful discrimination is present. Unequal treatment, which results simply from laxity of enforcement or which reflects a non arbitrary basis for selective enforcement of a statue, does not deny equal protection and is not constitutionally prohibited discriminatory enforcement.

/ What does this mean for your agency?

Where personnel rules allow for an employee's probationary period to be extended, termination during the extension period will not require compliance with the due process rights afforded a tenured employee.

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ACTUAL BIAS MUST BE DEMONSTRATED TO REMOVE PERSONNEL COMMISSIONER FROM TERMINATION HEARING

GAI v. CITY OF SELMA 68 Cal.App.4th 213 (1998)

Officer Dennis Z. Gai was terminated from employment as a peace officer and appealed the decision to the Selma Personnel Commission. The Commission is charged with the responsibility of conducting evidentiary hearings on appeals by city employees from disciplinary actions.

On the first day of the administrative hearing, Gai brought a motion to disqualify David Helm from sitting on his case. A written motion, supported by Gai's affidavit, was filed with the Commission, alleging Helm was "financially and/or personally interested" in the outcome of the hearing and was therefore biased. Gai alleged a member of Helm's family was a suspected unlawful drug user who had received special protection from Mike Del Puppo, the Selma detective who conducted the internal affairs investigation against Gai. Gai claimed Helm had a long-time, personal relationship with Del Puppo and was privy to confidential information about the operations of the Selma Police Department. Gai alleged Helm had business contracts with the City of Selma to supply fuel and towing services and that Helm made large donations to the police department.

The motion was denied and the Commission affirmed Gai's termination. The City Council reviewed and adopted the Commission's recommendation to terminate and Gai filed a petition for writ of mandamus. The trial court found no abuse of discretion and denied Gai's petition.

The California Court of Appeal Fifth Appellate District affirmed and held that absent a showing of actual bias, a terminated police officer could not have a personnel commissioner removed from an administrative hearing based upon the commissioner's alleged financial interest in the proceedings.

A party seeking to show bias on the part of an administrative decision maker must prove actual bias with "concrete facts." A unilateral perception of an appearance of bias cannot be grounds for disqualification. Helm's many friends in the police department and his city contract for towing services, while raising an "appearance of impropriety" did not rise to the level of actual bias.

/ What does this mean for your agency?

The standards used for judicial disqualification are not applied to members of an administrative hearing body. The mere perception of an appearance of bias is, in an of itself, insufficient for removing an administrative hearing officer.

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REINSTATED OFFICER ENTITLED TO INTEREST ON BACK PAY

SAN DIEGO CO. DEPUTY SHERIFFS ASSOC. v. SAN DIEGO CO. SHERIFFS DEPT. 98 DAR 13001

In early 1997 Deputy Sheriffs Chris Volmer and Barri Woods filed administrative appeals of termination orders. The appeals were heard before hearing officers and in June 1997, the San Diego County Civil Service Commission adopted the hearing officers' recommendations and reversed the termination orders, reinstated the deputies and restored their back pay.

Deputies Volmer and Woods requested the Commission pay interest on the back pay awards and their request was deferred. The deputies then filed for a writ of mandate and the trial court concluded that absent an express statutory authorization an administrative agency has no authority to award interest, denying the writ.

The California Court of Appeal Fourth Appellate District reversed and remanded. Civil Code, section 3287(a) "authorizes the recovery of interest on damages which are certain or capable of being made certain by calculation, where the right to recover has vested on a particular day." The court found that when the initial determination was made that Volmer and Woods should be reinstated the Civil Service Commission basically conceded that their wages were wrongfully withheld. Interest would be proper when wages the employees' were entitled to were wrongfully delayed and it was improper to deny Volmer and Woods' request for interest on their back pay.

/ What does this mean for your agency?

It is quite clear that back pay awarded on reinstatement carries with it the right of interest from the date compensation ceased. When analyzing the impact of having a suspension or termination overturned, this must be included. Great care should be exercised in deciding on disciplinary action - but a decision such as this should not immobilize management from taking appropriate action.

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As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel, or your police legal advisor. As always, if you have any questions, please do not hesitate to call Martin J. Mayer at (562) 590-8280.

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