Grievance Appeal To City Manager Not Necessarily Futile

Robert Velez, Kim Pavek, Raymond Lau, and Raymond Harer were former City of Ventura, California police officers and members of the Ventura Police Officers’ Association. Each of the four suffered a work-related injury or illness that prevented their return to work.

Under California law, in lieu of workers’ compensation benefits, police officers are allowed a paid leave of absence of up to one year.

At the end of the one-year leave of absence, the officers requested that the City allow them to use their accrued sick leave, vacation, holiday, and compensatory time off so that they could receive full pay instead of going on disability status. The City denied the request based upon its understanding of its personnel rules and a memorandum of understanding (MOU) between the City and the Association.

The officers filed a lawsuit, alleging that the City had violated both the MOU and the personnel rules and regulations. The City opposed the lawsuit on the grounds that the officers were required to exhaust their administrative remedies – the grievance procedure in the MOU.

The officers argued that since the grievance procedure culminated with the final and binding decision by the City Manager, it would be “futile” to require them to use the grievance procedure. The California Court of Appeals disagreed.

The Court concluded that “to countenance this view would break down the rule of exhaustion of remedies. In substance the contention is that if they learn upon hearsay or by analogy that the agency may take a certain action, the grievance procedure may be ignored and the agency’s action treated as already taken. One might attempt, for example, to bring an original suit in the Supreme Court on the theory that the local superior court judge was possessed of a particular opinion opposed to the views of the plaintiffs, but he would receive scant consideration. The whole argument rests upon an illogical and impractical basis, since it permits the party applying to the Court to assert without any conclusive proof, and without any possibility of successful challenge, the outcome of an appeal which the administrative body is not even been permitted to decide.”

Ventura Police Officers’ Association v. City of Ventura, 2005 WL 2284192 (Cal.App. 2005).

This article appears in the November 2005 issue