No ‘Involuntary Disability Exception’ To Bill Of Rights

California’s Public Safety Officers Procedural Bill of Rights Act provides that “no punitive action” shall be undertaken against a public safety officer “without providing the public safety officer with an opportunity for administrative appeal.” The California Court of Appeals recently had to resolve whether the requirement for a hearing applies even to placement on involuntary disability status.

The case involved Leisha Fauth, a peace officer with Riverside County, California. Fauth’s removal from her job occurred after her husband, Ronald Fauth, sent a 16-page rambling letter dated June 3, 2006, to the Sheriff’s Office, complaining that Fauth was being sexually harassed at work. The Department’s response was to require Fauth to participate in a fitness-for-duty evaluation. The evaluation concluded that Fauth was not fit for duty and should not be permitted to carry a gun since she did not meet the minimum qualification of psychological fitness for peace officers in California.

When Fauth protested that she was not disabled, the County terminated the paid administrative leave on which she had been placed. The County eventually sought and obtained a ruling that Fauth should be placed on involuntary disability retirement. Fauth sued, contending she had a right to a hearing under the Bill of Rights.

The County’s argument in court was that the Bill of Rights was inapplicable because the County gave Fauth a disability retirement, and that Fauth’s removal from her job was not disciplinary or punitive. The Court rejected the County’s argument, and ruled for Fauth.

The Court noted that “the Legislature intended in the Bill of Rights to provide the right of administrative appeal to a police officer against whom disciplinary action is taken, and the Legislature viewed dismissals, demotions, suspensions, reductions in salary, and written reprimands to be per se disciplinary in nature. It matters not in the least whether the reason for the punitive action is misconduct or incompetency or inefficiency.
“Here, the County argues that a hearing is not necessary on the ground that Fauth’s termination was not punitive. Under prior cases, Fauth’s termination was per se punitive. The County’s rejection of Fauth’s request for an appeal hearing constitutes a violation of the Bill of Rights.”

Riverside Sheriffs’ Association v. County of Riverside, 92 Cal.Rptr.3d 832 (Cal. App. 2009).

This article appears in the August 2009 issue