No Hearing Required Under Bill Of Rights For Transfer Without Economic Harm

One of the rights afforded public safety officers under California’s Public Safety Procedural Bill of Rights is an administrative appeal of any punitive action or denial of promotion on grounds other than merit. The Bill of Rights defines “punitive action” as “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” In a recent case involving two members of the Los Angeles Police Department, the California Court of Appeals decided that a non-disciplinary transfer without definite economic consequences did not trigger the right-of-appeal provisions of the Bill of Rights.

In 2010, Lieutenant Felicia Hall’s supervisor in the Robbery/Homicide Division criticized her counseling, communication, and management skills toward her subordinate employees. Hall received a negative performance assessment in 2011, and the Department elected to transfer her to the Juvenile Division to “give her a fresh start in an environment better suited to her skills.”

Detective Won Chu worked at the Department’s Rampart Division. During his tenure, Chu had once been disciplined for making sexually inappropriate comments, and had been the subject of sexual harassment complaints. Chu’s commanding officer believed that the allegations against Chu resulted in “damaged relationships with co-workers and reduced Chu’s effectiveness in working at Rampart.” As a result, the Department transferred Chu out of the Division to afford him a “fresh start with new co-workers.”

The question for the Court was whether the transfers were, in the words of the Bill of Rights, “for purposes of punishment.” The Court held that “where there is no indication that the agency intends to punish the employee through a transfer, we cannot deem the transfer punitive solely because it was aimed at addressing an employee’s performance in a particular assignment.” The Court credited the testimony of Department officials that Hall and Chu were not transferred for the purposes of punishment but instead to give each of them a new start with new assignments.

Hall argued that she had suffered a “reduction in salary” through reduced overtime and the loss of her take-home vehicle, and thus was entitled to an appeal under the Bill of Rights. The Court disagreed, finding that no lieutenants in the Department had any guarantees of overtime pay. As to the car, the Court held that “the vehicle was issued to Hall as reasonably necessary to performing her duties as a lieutenant in the Robbery/Homicide Division, and a corresponding need did not exist at the Juvenile Division. Moreover, there is nothing in the record indicating that Hall was entitled to a department-issued take-home vehicle at the Robbery/Homicide Division.”

Chu argued that he was the subject of “punitive action” by virtue of being monitored, being placed on restricted duty, and having suffered from a damaged reputation. The Court disagreed, finding that “it is far more likely that these consequences flowed from his guilty plea to making inappropriate sexual remarks, not his job transfer. It is undisputed that Chu was found guilty of one count of making inappropriate sexual remarks to a coworker, and that his coworkers and supervisors knew of the allegations against him.”

The Court ultimately concluded that the transfers were not for the purposes of punishment and that neither Hall’s nor Chu’s previous positions were guaranteed to them. The Court also found that contrary to claims of harm, both Hall and Chu actually benefitted from the transfers.

Los Angeles Police Protective League v. City of Los Angeles, 181 Cal.Rptr.3d 204 (2014).