‘Not-Resolved’ Complaints Require Bill Of Rights Hearing

The Los Angeles Police Protective League (LAPPL) represents all police officers, detectives, sergeants, and lieutenants in the City of Los Angeles. The City is subject to California’s Public Safety Officers Procedural Bill of Rights, Section 3304 of which provides that any public safety officer who is denied a promotion on grounds other than merit or who received a “punitive action” is entitled to an administrative appeal. In turn, a “punitive action” is defined as “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.”

In the LAPD, an investigation of a complaint against an officer may result in a disposition of “Unfounded,” “Exonerated,” “Sustained,” “Sustained – No Penalties,” “Insufficient Evidence to Adjudicate,” or “Withdrawn by the Chief of Police.” If the investigation “discloses insufficient evidence to either prove or disprove clearly the allegations,” LAPD will categorize the allegations as “Not Resolved.”

LAPPL sued the City, contending that it was violating the Bill of Rights by not providing officers with administrative appeals before placing a “Not Resolved” resolution in their files. The California Court of Appeals agreed with LAPPL.

The Court found that “in our prior cases, the considerations were whether the allegedly punitive action could be considered in future personnel decisions and whether it could impact the officer negatively. The test was not one of actual harm. The evidence relied upon in each of these cases did not consist of an officer’s declaration that punitive action had been taken, but instead came from Department superiors who admitted that the action might be considered in the future. Thus it is not necessary to show that an action will result or has resulted in adverse consequences, only that a possibility exists that it could.

“Here, the ‘Not Resolved’ adjudications are labels without explanation which could have negative consequences or may be misinterpreted. What LAPPL seeks to prevent is the possibility that a ‘Not Resolved’ adjudication is viewed together with other ‘Not Resolved’ adjudications, creating the inference that there must be some truth to the allegations. We therefore do not agree with the City that the use of the classification can only be evaluated on an individual basis.

“It is incorrect that attempts do not constitute ‘punitive action, and do not trigger the right of administrative appeal. Section 3304 does not require the actual occurrence of an adverse employment action to allow police officers to administratively appeal the adjudication. ‘Punitive action’ under Section 3304 has been interpreted to mean ‘any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.’ In LAPD, ‘Not Resolved’ adjudications are used to establish a pattern of conduct by the police officers under scrutiny. Thus, ‘Not Resolved’ adjudications ‘may lead to’ consequences enumerated in section 3304. As such, ‘Not Resolved’ adjudications are ‘punitive actions,’ entitling police officers to appeal under the law.”

Los Angeles Police Protective League v. City of Los Angeles, 2013 WL 6073501 (Cal. App. 2013).