Court of Appeal Denies Peace Officer’s Challenge to Denial of Promotion

Friday, September 20, 2002

Page 4

Court of Appeal Denies Peace Officer’s Challenge to Denial of Promotion

By a MetNews Staff Writer

The Los Angeles County Civil Service Commission has no jurisdiction to hear a peace officer’s claim that he was denied promotion in violation of the Public Safety Officers Procedural Bill of Rights Act, the Court of Appeal for this district ruled yesterday.

Div. Four overturned Los Angeles Superior Court Judge Dzintra Janavs’ order directing the commission to hear an appeal by a Los Angeles district attorney’s investigator, Thomas Hunter.

The court did not question Hunter’s right to a full evidentiary hearing to review denial of his application to become a supervising investigator. But Justice Norman Epstein, writing for the appeals court, said the commission is not the proper forum.

“A civil service commission created by charter has only the special limited jurisdiction expressly authorized by the charter,” Epstein said.

Hunter, an acting supervising investigator at the District Attorney’s office, failed to be promoted to supervising investigator even though he was placed at the top of the eligibility list for the position. He claimed the promotion decision was punitive and not based on merit.

The act says that when a “punitive action” or a “denial of promotion on grounds other that merit” is undertaken by a public agency, the employing agency must provide an opportunity for administrative appeal. Under the court’s broad interpretation of the term “punitive action” as used in the statute, an officer can make a claim that almost any management decision is punitive, Rick Brouwer, a senior deputy county counsel, said.

Neither the act nor the charter specifies who will hear the appeals. “Commission jurisdiction must be based on express authority in the charter, not on the absence of any other designated forum,” Epstein said.

A principal deputy county counsel, Les Tolnai, said, “I think that’s a correct holding.”

Under the act it is the responsibility of the public agency employer, in this case the county, to create an appeal procedure. To this point no procedure exists, nor has a forum been designated to hear these appeals.

This is due in large part to intense negotiations between the Association for Los Angeles Deputy Sheriffs and the county, Brouwer said. The rank-and-file deputy sheriff’s union is involved in this process because the establishment of an appeal procedure affects employment conditions.

The potential breadth of the act’s application to administrative decisions “could jeopardize law enforcement’s ability to function,” said Brouwer, if an appropriate procedure is not established and the appeals are not heard by a suitable body.

Brouwer said he hopes that an interim forum where these appeals can be brought will soon be established while the union and the county develop an appropriate procedure.

“If we delay any significant amount of time the union should or would go into court arguing that there was bad faith on the part of the department in implementing this statutory requirement,” Brouwer said.

The county’s outside lawyers on the appeal, Debra L. Bray and Mark Meyerhoff of Liebert Cassidy Whitmore, and Hunter’s lawyer, Helen L. Schwab of Green & Shinee, did not return calls for comment.

The case is Hunter v. Los Angeles County Civil Service Commission, B153508.