Vol. 22 No. 4- Transfers are not always “Punitive”

April 23, 2007

Last week the California Court of Appeal reiterated that the transfer of a peace officer is not, in and of itself, punitive action which violates the Public Safety Officers Procedural Bill of Rights Act (POBR).  In the case of Benach v. County of Los Angeles, 2007 DAR 5003, the court ruled that an involuntary transfer doesn’t necessarily violate POBR when it is not done based on misconduct and there is no loss of rank or pay to the officer.

The Benach case started in 1993 when he, a Los Angeles County deputy sheriff, was terminated for allegedly assaulting another deputy while both were on a Aero Bureau flight.  He was ordered reinstated by the Civil Service Commission and the Department challenged that order in court.  The matter was settled in 1998 and he was returned to service and to the Aero Bureau.

In 2000, based on complaints by other Aero Bureau members that Benach was, among other things, creating a “hostile work environment, “he was temporarily transferred out of the Bureau, pending an internal affairs investigation.  The investigation determined that there was a “less than harmonious working environment” at the Bureau but that Benach had not violated any policy. Nonetheless, his transfer was made permanent based on the determination that “…it was both expeditious and in the Department’s best interests…rather than to transfer numerous other employees to new posts.”  He did not suffer a downgrade of rank, nor in his rate of pay.

The court cited to a 20 year old case, Orange County Employees Assn. (OCEA) v, County of Orange (1988) 205 Cal App 3d 1289, where it had held that a transfer is a routine matter when it is not intended to be punishment or discipline.  The OCEA court ruled that deficiencies in performance are a fact of life. Using a sports metaphor, the court stated that, “switching Casey from shortstop to second base because he can’t throw to first as fast as Jones is not in and of itself a punitive transfer.”

In the instant case, the court ruled that “in OCEA, the court aptly observed that there is a difference between a transfer intended to punish for a deficiency in performance, versus one that is intended to compensate for deficient performance.”


As we have pointed out for years, and as the Benach court has reiterated, management has the right to transfer an individual without violating POBR, as long as the transfer is not for disciplinary reasons and the employee suffers no harm.  If one is in a “bonus” position, and the transfer is not based on misconduct and does not result in a loss of that bonus or loss of rank, the transfer itself is not considered punitive.

The fact that the original assignment may be more impressive or of a higher status, is irrelevant.  The court stated “notwithstanding Benach’s assertion that his work as a detective is less heroic than his job as a pilot, the record supports the trial court’s conclusion Benach suffered no punitive action.”

The courts have historically ruled that one doesn’t have a property right to an assignment – the employee’s property right is to his/her job.  As such, management can reassign an officer in the best interests of the agency but it must be able to prove it was not done for punitive or disciplinary reasons.

As always we urge that you confer with your agency’s legal advisor before taking such action in order to reduce the potential for liability.  If you wish to discuss this case in greater detail please feel free to contact Martin Mayer at mjm@jones-mayer.com or 714 – 446-1400.