Placement On Sick Leave Does Not Trigger Bill Of Rights

California's Public Safety Officers Procedural Bill Of Rights Act provides that “no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer…without providing the public safety officer with an opportunity for an administrative appeal.” The California Court of Appeals recently had to decide whether the involuntary placement of a police officer on sick leave triggers the right to hearing described in the Bill of Rights.

The case involved Christopher Yanke, a police officer with the City of Oakland. When Yanke's physician diagnosed him as suffering from a stress disability, Yanke was off work or on limited duty for more than two years. The City eventually ordered him to participate in a fitness-for-duty evaluation.

During the evaluation, Yanke failed to answer 32 questions on the MMPI 2, a psychological test. The failure to answer 30 or more questions on the MMPI renders the test questionable. The physician conducting Yanke's examination stated that “a good rule of thumb regarding police officers is that when a police officer refuses to answer more than 30 questions on the MMPI, it means he is trying to hide something and usually that has to deal with issues relating to his job or of aggression. Yanke is not capable of performing the essential functions of the job as a police officer for the City of Oakland with or without reasonable accommodations.”

The City then placed Yanke on paid sick leave status until he obtained a medical release from his personal treating physician. Yanke's sick leave status resulted in a loss of income because of limitations in the City's sick leave benefit. Yanke's attorney responded by demanding a hearing. When the City rejected the demand, it set the stage for the Court's decision on the scope of the Bill of Rights.

The Court found that placement on sick leave did not trigger the hearing requirement in the Bill of Rights. The Court reasoned that “the purpose of the Bill of Rights is to provide the right of administrative appeal to a peace officer who was subjected to disciplinary or other punitive action. There is nothing in the record here suggesting anything punitive or disciplinary about the City's actions. Thus, the administrative appeal right provided in the Bill of Rights did not apply, notwithstanding the loss of pay.

“[Prior court decisions] do not stand for the proposition that placing an individual on sick leave when that person's physician has indicated that the individual is unable to perform the essential duties of his position constitutes a reduction in salary or any other type of punitive action that would trigger the appeal provisions of the Bill of Rights. In contrast with other police officers in our cases, the record here clearly establishes that Yanke's placement on sick leave was not a disciplinary sanction. As importantly, placing Yanke on sick leave did not 'reduce his salary.' Yanke's salary remains the same and upon his return to work, his salary will be no less than before.”

Yanke v. City of Oakland, 2009 WL 4264337 (Cal. App. 1 Dist. 2009).

This article appears in the March 2010 issue