Evaluation Log Entry Not Discipline Under California Bill Of Rights

Scott Kansaku was a police officer with the City of Hermosa Beach, California. On May 2, 2008, Kansaku issued a citation to a citizen for having an open container of beer while standing outside a bar. That citizen’s sister, who apparently also received a citation for the same infraction, filed a complaint against Kansaku, asserting that he had “acted in a rude, angry, and derogatory manner toward [her sister] while issuing the citation.” The complaining citizen alleged that “Kansaku’s demeanor was unreasonably harsh for the situation, and he was insensitive when asking [about her sister’s] age and weight.”

The Department conducted an internal affairs investigation regarding the allegations in this citizen complaint. A lieutenant involved in the investigation listened to an audio recording that Kansaku made of the interaction with the citizens. On the recording, Kansaku could be heard exclaiming “bullshit!” after the citizens told him that they were not aware that they could not drink alcohol in public. During the investigation, Kansaku admitted that he said “bullshit,” but claimed that he did so “to lighten the situation while at the same time being sarcastic.”

The Police Chief concluded that Kansaku’s use of the word bullshit was “unreasonable under the circumstances,” decided not to impose discipline on Kansaku, but directed that a comment be entered in Kansaku’s evaluation log regarding Kansaku’s “use of profanity and sarcastic language when interacting with a citizen.” Kansaku eventually resigned from the Department, and then sued the Department, alleging that the performance log entry amounted to discipline under California’s Public Safety Officers Procedural Bill of Rights Act. Kansaku argued that the Department violated the Bill of Rights by not affording him an administrative appeal.

The California Court of Appeals rejected Kansaku’s appeal. The Court held that “the City’s action in entering a comment in Kansaku’s evaluation log based on a sustained allegation of misconduct does not constitute punitive action within the meaning of the Bill of Rights. The City did not impose any discipline on Kansaku for the rules violation. Nor did the City issue a written warning to Kansaku that discipline might be forthcoming if this type of behavior continued. The City did not place a letter, memorandum, report or any other documentation regarding the incident in Kansaku’s personnel file. The City entered a comment in Kansaku’s evaluation log to remind his supervisor of the behavior when it came time to complete Kansaku’s annual performance evaluation. We conclude that this comment does not constitute a written reprimand amounting to discipline within the meaning of the Bill of Rights.

“Kansaku has not pointed to evidence indicating that the sustained allegation of misconduct and the evaluation log entry based on the sustained allegation of misconduct might have led to adverse employment consequences, such as dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment. There is no evidence that the City planned to place documentation in his personnel file regarding the incident. The evidence shows that, at most, his performance evaluation might have addressed his use of profanity and sarcastic language during this one citizen interaction. Because he left his employment with the City, he did not receive his performance evaluation and the evaluation log entry was destroyed. As set forth above, a negative comment in a performance evaluation – or in this case the possibility of a negative comment in a performance evaluation – does not trigger appeal rights under the Bill of Rights.”

Kansaku v. v. City of Hermosa Beach, 2012 WL 1889392 (Cal. App. 2 Dist. 2012).