Vol. 26 No. 29 – A Police Chief Cannot Be Removed Without Notice and an Appeal

A Police Chief Cannot Be “Removed” Without Notice and an Appeal

On December 27 2011, the California Court of Appeal, Fifth District, ruled in the case of Robinson v. City of Chowchilla, that, among other things, the city breached its statutory obligations, under the Public Safety Officers’ Procedural Bill of Rights Act (POBR), when it removed the police chief from office without notice, a statement of reasons and an opportunity for an administrative appeal as required by Gov. Code section 3304, subdivision (c).

The court also determined that the police chief’s employment agreement automatically renewed for an additional three-year term in 2003; that the city failed to provide him proper notice, pursuant to his employment contract, that they were not renewing the contract; that “removal” can occur even if the chief’s salary continues; and that the city breached the agreement when it dismissed the chief in September 2003.

The Facts

The court noted that “on September 29, 1997, Robinson and City entered an employment agreement under which City retained Robinson’s services as chief of police. The parties agreed Robinson was employed as chief of police pursuant to a written contract for an initial three-year term, with a 12-month probationary period.”

“The employment agreement addressed Robinson’s duties, salary, vacation, automobile, health insurance and life insurance. It also addressed renewal of the agreement, suspension, disciplinary action, termination, severance pay, and disability. In this appeal, the provisions concerning the automatic renewal of the agreement and notice are in dispute.”

There were other legal issues presented and argued by both sides, as to whether notice was given in accordance with the agreement and, if so, how notice was given (was a written notice handed to chief or left on his desk when he was not present).
The city claimed that “[i]n late March 2003, Robinson and [city administrator] Red had a conversation in which she indicated that the city council wanted to renegotiate his employment agreement and would not let it renew automatically. Red testified that she prepared a letter dated March 26, 2003, to confirm their conversation and to notify Robinson that his contract would not automatically be renewed. Red testified that on Thursday, March 27, 2003, she put the letter in an envelope and took it to the police department. She stated that she either gave it to Robinson directly or put it on his desk because he was not in the office.

Robinson testified that “he received no written notice in March 2003 and that the first time he saw the letter dated March 26, 2003, was on June 6, 2003, when he met with Red in her office. While in Red’s office, Robinson wrote “Rcvd 6-6-03 1600 hrs” on the upper right-hand corner of the letter.”

“During the afternoon of Friday, September 5, 2003, . . . Robinson was notified that his employment would terminate effective September 29, 2003, and was directed to remove his belongings and himself from the police department immediately. Also on September 5, 2003, City named an acting chief of police to replace Robinson effective immediately.”

The Law

The Court of Appeal concluded that Robinson’s rights under his employment contract, and under POBR, had been violated.  POBR (Government Code sections 3300 – 3313) applies to chartered, as well as general law cities and counties.  It sets forth numerous procedural protections for peace officers, which do not exist for other general public sector employees.  [Note: As of 1/1/10, there is a Firefighter’s Procedural Bill of Rights Act (Gov Code 3250 – 3262) which is taken, almost verbatim, from POBR.]

In addition to providing procedural protections for all peace officers, there is a provision which applies exclusively to chiefs of police; that is Government Code Section 3304, subdivision (c) which states, in full:

“No chief of police may be removed by a public agency, or appointing authority, without providing the chief of police with written notice and the reason or reasons therefore and an opportunity for administrative appeal.

“For purposes of this subdivision, the removal of a chief of police by a public agency or appointing authority, for the purpose of implementing the goals or policies, or both, of the public agency or appointing authority, for reasons including, but not limited to, incompatibility of management styles or as a result of a change in administration, shall be sufficient to constitute `reason or reasons.’

“Nothing in this subdivision shall be construed to create a property interest, where one does not exist by rule or law, in the job of Chief of Police.”

Based on its interpretation of the third sentence, the city argued that “the notice and appeal provisions apply only if a trial court first determines that a police chief has a protected property or liberty interest. Second, defendants contend that a police chief is not “removed” for purposes of the statute so long as the city keeps paying his or her salary through the expiration date of the employment contract.”

The court disagreed, stating that the “Legislature included the third sentence so that the notice and administrative appeal protections given to police chiefs earlier in subdivision (c) of section 3304 would not be used to infer that police chiefs had a property interest in their job. Such an inference might be drawn because of the well-established principle that procedural due process requires notice and an opportunity to be heard before the government may deprive a person of a protected property interest.”

As to the second argument by the Defendants, the court stated that they    “contend that the ordinary and generally accepted meaning of “removed” is “discharged” or “terminated.” They also contend “removed” means “to force out of” employment, position or office. In defendants’ view, Robinson was not “terminated” because City continued to pay him until the employment agreement expired in accordance with its own terms on September 29, 2003.”

The court disagreed again, stating that the “question whether Robinson remained in office, or had been removed from office for the three-and-a-half week period in September 2003, requires the consideration of factors besides payment of salary and benefits because holding the office of chief of police involves more than receiving compensation.”

“On September 5, 2003, defendants directed Robinson to pick up his belongings and leave the police department immediately. City then appointed an acting chief of police in his place. These acts took away Robinson’s authority to exercise the powers residing in the office of police chief as well as forced him to leave the physical office space within the police department’s building. After September 5, 2003, Robinson no longer held the office of police chief because the authority and responsibilities of the police chief were no longer his.”

The court concluded that “the acts of forcing Robinson to leave the physical office, taking the authority of police chief away from him, and giving both the physical office and the authority of police chief to someone else constitute a removal from office.”

The court also said that, “[i]f we were to interpret “removed” to mean that a police chief could be deprived of the authority of office and his or her successor installed so long as a city continued to pay the police chief’s salary, then city councils could effectively end the chief’s ability to enforce laws in a manner contrary to their interests and bypass the notice and statement of reasons requirement contained in section 3304, subdivision (c). In that situation, the city council would not have to take a public stand and subject its statement of reasons to the scrutiny of the electorate, which would undermine the protections given to police chiefs and allow the “whimsical pressures” referenced by the legislation’s sponsor to affect law enforcement.”

“In summary, the trial court correctly interpreted and applied the statute when it determined that Robinson had been removed as police chief on September 5, 2003″ – without providing him with proper notice or the opportunity for an administrative appeal.

We all need to learn from, and profit by, the mistakes of others.  To not do so means
repeating mistakes already made.  This case is a perfect example of “let’s learn.”

There are, as noted above, several legal issues and/or legal mistakes raised by the plaintiff in this case.   The court addresses the deliberate or negligent “attempt” at notice (a theory the court held lacked credibility); misreading of contract language; the breach of a contract obligation; and the breach of a statutory duty – all issues of significance.

There are a substantial number of published decisions involving alleged violations of an officer’s POBR rights.  It is rare, however, to find decisions regarding POBR rights of the chiefs of police.  The court, in this case, focuses on whether it was a failure on the part of the city to not provide proper notice to the chief of the non-renewal of his contract, nor to provide an opportunity to be heard.

It should be noted that, if the chief had been given such an appeal, it would not have changed the decision to not renew his contract, since the POBR appellate process has no decision making authority.  The POBR  appeal does  not  “save” an officer’s job, nor would it save the chief’s; it merely provides the  officer (or the chief) with an opportunity to be heard.

The question which must first be asked is whether it is really beneficial to “fight this fight?”  As the saying goes: “discretion is the better part of valor;” and it is, consistently, our advice to our clients that it is usually better to make error on the side of caution.

As stated above, the courts have reviewed and analyzed the provisions of POBR since it was created almost forty (40) years ago. In virtually all of them, the courts have ensured that these rights are provided to peace officers.  The question isn’t “whether” POBR protections are provided by the employer; the questions which will be litigated will be, “can you prove that you provided them,” and “was it done correctly?”

Violations of POBR can be very expensive.  The Act originally provided for injunctive relief only but then money damages and attorney fees were added to the law.  The most recent court of appeal decision arising out of a POBR violation, Jaramillo v. County of Orange, involved a claim by an at-will assistant sheriff that he was denied an administrative appeal under 3304(b).   The court ruled for Jaramillo and awarded him $700,000 in damages and attorney fees.

It is imperative for cities and counties to seek advice and guidance from their legal advisers on matters as sensitive and complex as these.  If you wish to discuss this case in greater detail, please don’t hesitate to contact me at (714) 446 -1400 or via e-mail at mjm@jones-mayer.com.

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