CLIENT ALERT MEMORANDUM
September 20, 2001
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
COUNSELING MEMO CAN TRIGGER FULL BLOWN HEARING
Recently the California Court of Appeal, Second District, ruled in the case of Otto v. Los Angeles Unified School District, 89 Cal.App. 4th 985, that a written memorandum which documents a counseling session between a supervisor and a peace officer might qualify as punitive action thereby entitling the officer to an administrative appeal pursuant to the Public Safety Officer’s Procedural Bill of Rights Act (Government Code section 3304(b)). Furthermore, the court ruled that such an administrative appeal requires a full, trial type, evidentiary hearing to be held in front of a neutral. LAUSD peace officer Kevin Otto was counseled on the requirement that, when he returns to campus after a break, he must utilize the District’s voice mail system to report his return. Subsequent to that counseling session his supervisor reduced it to a writing entitled “Summary of Conference” and placed it in the officer’s personnel file. The memo indicated that “continued failure to (properly use the tracking system) could lead to future disciplinary action.” Because of the inclusion of the reference to possible “future disciplinary action” the court stated that “clearly this summary of conference was setting up a basis for future punitive action and, thus, fits within the statutory definition of punitive action as it has been interpreted and applied by case law.”
The court stated that “it is clear … that a summary of conference memorandum may or may not constitute a punitive action. It will depend entirely upon its content.” Furthermore, the court stated that “… the term “punitive action” is given a very broad interpretation.”
The Chief of the LAUSD police department testified that summaries of counseling sessions “are used merely to establish notice to an officer that a particular area has been discussed.” The Chief further testified that these summaries “have never been considered to be discipline by the Department or the Union in the course of negotiations. Nonetheless, the court concluded that “it is the the contents of the memorandum, not its title or the lack of a disciplinary intent, that determines the issue of punitive action.” (Emphasis in original).
It appears, therefore, that if the summary of the conference merely referenced the requirement that an officer use the district’s voice mail to report when he or she was going to be off campus and when the officer returned to campus, without any reference to possible future punitive action, the memorandum would not be considered punitive action. The court stated that “it is enough that the summary of conference will be considered in future personnel decisions affecting (Otto) and may lead to punitive action” which justifies the officer’s right to an administrative appeal.
The court does state that there is a difference between “punitive action” and adverse comments entered into a personnel file contained, for example, in a routine performance evaluation. Citing the case of Turturici v. City of Redwood City (1987) 190 Cal.App. 3d 1447, the court stated that “not every action taken by a law enforcement agency in reviewing, evaluating or commenting upon the performance of one of its peace officers constitutes punitive action. For example, a routine performance evaluation would not constitute punitive action, even though it contained negative comments.”
The court went on to point out that as to the issue of adverse comments contained in a “routine performance evaluation,” the officer merely has the right to respond and have that response attached to the adverse comment (G.C. sections 3305, 3306).
NATURE OF ADMINISTRATIVE APPEAL
Historically, it was believed that the 3304(b) administrative appeal was an informal process at which time the officer had a right to require the employer to establish a formal record articulating the basis for the punitive action. In 1999, however, the California Court of Appeal, in the case of Giuffre v. Sparks, 76 Cal.App. 4th 1322, held that the administrative appeal was much more elaborate. The Otto court, in citing to the Giuffre case, stated that “a peace officer is entitled to receive an evidentiary hearing before a neutral fact finder in which he or she may challenge any punitive action.” (Emphasis in original). G.C. 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.” The court went on to state that “the agency’s motive in taking any of such actions is irrelevant. They are each per se punitive without regard to the agency’s motivation.”
HOW THIS AFFECTS YOUR AGENCY
Various law firms which represent police and deputy sheriffs associations have already notified their members and, in some cases, management as well, that they will demand full, trial type, evidentiary hearings before personnel boards, civil service commissions, hearing officers and/or arbitrators (who are all considered neutrals) if a peace officer receives a memorandum which references the possibility of future disciplinary action arising from the circumstances referenced in that memo. The Otto court pointed out that if the memo on its face “appears to be nothing more than an educational reminder, not a criticism for fault,” such memo would not be considered evidence of punitive action and the administrative appeal would not be applicable.
It is imperative, therefore, that “counseling memos” – those documents intended to provide advice, guidance and/or educational insight – not make reference to any potential future disciplinary action. It is well known that employers have historically included the admonition regarding potential future adverse action in an effort to inform the employee of the importance of complying with department rules and regulations. It appears, as a result of the Otto case, that the adage “no good deed goes unpunished” applies under these circumstances. Remember, the court emphasized that “it is the contents of the memorandum, not its title or the lack of a disciplinary intent, that determines the issue of punitive action.” (Emphasis in original).
As always, before undertaking any legal action we urge that you confer with your department’s legal advisor to receive advice and guidance
As always we urge that before you take any legal action you confer with your designated legal advisor. If you wish to discuss the comments set forth above, please feel free to contact Martin Mayer at (714) 446-1400 or MJM@Jones-Mayer.com.
[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]