Bill Of Rights Requires Administrative Appeal After Final Disciplinary Decision Made

On or about March 1, 2008, a citizen with whom Paulo Morgado interacted filed a complaint against him with the Office of Citizen Complaints of the San Francisco Police Department (OCC). Pursuant to its powers granted by the City Charter, the OCC investigated the alleged misconduct and shared its findings and disciplinary recommendations with the Police Chief. After further investigation by the Department’s internal affairs division, the Chief filed a disciplinary complaint against Morgado with the City’s Police Commission.

The Commission assigned one of its seven members to investigate the complaint, first on August 28, 2009, and then, after that Commissioner stepped down, another on June 8, 2010. That Commissioner held a full evidentiary hearing on August 2 and 3, 2010, in which Morgado participated. Later, on March 30, 2011, Morgado, represented by counsel, participated in a hearing before the full Commission, at the conclusion of which the Commission sustained four of the six counts against him and decided to terminate his employment.

Morgado sued the City, the OCC, the Chief, and the Commission, seeking his reinstatement. Responding to a discovery request by Morgado, the City admitted that the “only punitive action undertaken against him” was the Commission’s decision “to terminate his employment.” The City further admitted it did not provide Morgado with an “administrative appeal” from the Commission’s decision to terminate his employment.

A trial court judge ruled in favor of Morgado, finding that Morgado was entitled to an administrative appeal under California’s Public Safety Officers Procedural Bill of Rights Act. The City challenged the trial court’s ruling in the California Court of Appeals.

The Appeals Court also ruled in Morgado’s favor. The Court concluded that “the purpose of the administrative appeal requirement in the Bill of Rights is to ensure a peace officer subjected to punitive action has the opportunity to establish a formal record of the circumstance surrounding his termination” and to attempt to convince the employing agency to reverse its decision, either by demonstrating the falsity of charges which led to punitive action, or through proof of mitigating circumstances. Courts have concluded that, at minimum, Section 3304 of the Bill of Rights requires that a peace officer receive an evidentiary hearing before a neutral fact finder to challenge the punitive action.

“The City argues the proceedings against Morgado complied with the law because the Commission proceeding is the appeal that Bill of Rights requires the City to make available before ‘undertaking’ the disciplinary action sought by the Chief and/or the OCC. And, the City argues, the first punitive action was not, as the trial court found, the Commission’s decision to terminate Morgado’s employment, but rather was the Chief’s complaint.

“We have no quarrel with the general proposition that, when an action taken by an officer’s employer is not one of the sanctions listed in Section 3303 but may lead in the future to one of the consequences specified in that statute, that action is a punitive action triggering an officer’s right to an administrative appeal under Section 3304. But in our view, it does not necessarily follow that, where an interim step in a disciplinary proceeding against an officer (such as a recommendation that further proceedings be conducted) may lead to discipline at the end of that proceeding, a public entity satisfies Section 3304 by permitting the officer to administratively challenge only the interim step and providing him or her no opportunity to challenge the discipline that is ultimately imposed.

“Thus, although we agree with the City that an action portending future discipline may constitute a punitive action triggering an officer’s appeal rights, we do not agree with its conclusion that therefore an officer need not be given an opportunity to administratively appeal a subsequent decision to impose discipline (reached here by the Commission). Even if the Chief’s complaint constituted a punitive action, Morgado’s termination was itself a punitive action under the statute, from which he has the right to an opportunity for administrative appeal.”

Morgado v. City and County of San Francisco, 2017 WL 2791413 (Cal. App. 2017).