APPELATE COURT ORDERS CITY
TO PROVIDE HEARING FOR TRANSFERRED MOTOR OFFICER
By Michael D. Lackie
LACKIE & DAMMEIER LLP
Monterey Park Police
Officer Rick Munder had been riding motors for nine years until he had
to put his bike down to avoid a collision. Although Munder was not
injured as a result of a properly-executed collision avoidance maneuver,
Chief of Police Sam Cross ordered him transferred from the traffic
bureau to patrol. Officers facing discipline, including punitive
transfers with loss of premium pay, are afforded an extensive
disciplinary appeal process culminating in an evidentiary hearing,
except Officer Munder.
The MOU between the POA
and the city contained an ancient provision for loss of specialty
assignments (such as motor officer), limiting an appeal of the transfer
to a non-adversarial, non-evidentiary meeting with the chief, whose
decision would be final. Munder, being a long-time POA board member and
staunch supporter, knew that the Public Safety Officers Procedural Bill
of Rights Act (the "Act") required that he be given something
more than a mere meeting with the chief. Nevertheless, Munder and his
attorney, this author, met with Cross who refused to debate --- or even
discuss --- the transfer. There was no Skelly package to review
and Munder was given no explanation for the transfer. Needless to say,
the meeting with Cross did not go well. Moments afterwards, Munder
received the chief’s decision in writing upholding his original
decision to make the transfer without setting forth any justification.
Munder’s attempts to
appeal beyond the informal meeting with Cross and to invoke the normal
disciplinary appeal process was refused by the city.
The case was taken to the
Legal Defense Fund board of trustees for affirmative relief. The trustee’s
authorized me to take the matter to the Los Angeles Superior Court on a
writ of mandate, seeking an order to the city to grant Munder an
evidentiary hearing comporting with the minimum due process required by
the Act and case law.
The city argued in court
that Munder was transferred for non-disciplinary reasons, he did not
lose any "base salary," and was given a "hearing" as
required by the MOU.
I argued that none of
this mattered because Munder lost pay when he was taken off motors and,
consequently, the transfer was per se "punitive". I further
told the court that the due process hearing required by the Act cannot
be limited or waived by the POA or city, even if mutually agreed-upon in
an MOU.
Unfortunately, Judge
Dzintra Janavs agreed with the city and denied the writ. Part of the
court’s reasoning was that police management must have some latitude
to move officers around when necessary and they can do so for
non-disciplinary reasons. The court essentially ignored the fact that
Munder lost pay as a result. Interestingly, the court was unable to cite
any cases in support of its decision.
Once again, Munder took
the matter to LDF and was granted permission to appeal from Judge Janavs’
decision to the Court of Appeal. A panel of three justices of the
California Court of Appeal in Los Angeles (2nd District) reversed the
Superior Court’s judgment and ordered that a writ issue granting
Munder his hearing.
In an unpublished
decision, the appellate court said, consistent with long-standing court
decisions, that a peace officer is entitled to an evidentiary hearing
when a loss of pay is involved. The court swept aside the city’s
contention that the pay loss was not part of the officer’s base salary
as irrelevant. Equally unimportant to the court was the city’s
disingenuous argument that the transfer was for non-disciplinary
reasons. However, the justices determined that a city and POA could come
up with an appeal hearing for non-disciplinary transfers which trigger
the Act’s requirement for an administrative hearing under Government
Code §3304, which would provide the required due process (an
adversarial, evidentiary hearing) but not necessarily the same
full-blown hearing available for disciplinary cases. The court
specifically held that an MOU cannot trump the Act’s due process
requirements and, accordingly, a meeting with the chief is insufficient
to meet minimum due process.
Moreover, the court
specifically held that whatever hearing might be available to Munder it
cannot be conducted by Chief Cross because he proposed the transfer in
the first instance. In Monterey Park, Officer Munder will be able to
take advantage of the regular disciplinary appeal proceeding because the
city has no alternative that meets the minimum requirements described by
the court.
This decision is
important for all law enforcement officers in California because it
wipes out the ability of agency heads to avoid the Act’s
administrative hearing requirement by claiming that a punitive transfer
or other disciplinary action was not disciplinary or to claim that such
positions are merely temporary to avoid triggering the Act. Thus, an
officer transferred for whatever reason with a resulting loss of pay
(other than overtime) must be granted an evidentiary hearing because the
transfer is "punitive" as a matter of law. Moreover, the court
reaffirmed prior case decisions that hold an MOU provision may not be
used to diminish an individual officer’s rights under the Act.
PORAC and Lackie &
Dammeier, LLP will petition the Court of Appeal to publish this
important decision so that it can be cited by law enforcement officers
in the future who face the same predicament as Officer Munder.
LDF Home Page | News
Article Index
