Notice of Proposed Discipline That Does Not Accurately Identify The Decision Maker Is Not A Violation Of The Peace Officers Bill Of Rights Act

In Benefield v. California Department of Corrections and Rehabilitation, (— CalRptr.3d —, Cal.App. 6 Dist, Jan. 23, 2009), a California Court of Appeal considered a case in which two correctional officers who had been terminated for misconduct asked to be reinstated on the grounds that their employer had violated the Peace Officers Bill of Rights Act (“POBRA”) when it sent them notification of the discipline without clearly and accurately identifying who made the decision to terminate them. The court ruled that POBRA does not require that a notice of discipline identify the decision maker, and that the officers were therefore not entitled to be reinstated to their jobs.

Facts

In February 2004, an employee of the California Department of Corrections and Rehabilitation (“CDCR”) reported an incident of misconduct in November 2003 by a group of correctional officers, including Ronald Sphar and Robert Martin. After a CDCR investigation, Cheryl Pliler, CDCR’s Deputy Director of Prison Field Operations, signed notices of adverse action against Sphar and Martin, which stated that the intended discipline would be a 10 percent pay cut. Subsequently, John Dovey, CDCR’s Chief Deputy Director, and Pliler’s superior, changed the proposed discipline to dismissal. Dovey left Pliler’s signature on the notices even though he had not consulted her about the changes.

Sphar, Martin and others filed suit claiming they had not been served timely notices of adverse action. (Benefield, the first name listed among the plaintiffs in this case, was another correctional officer who filed suit, but whose case did not reach the Court of Appeal.) The trial court ruled that Sphar and Martin had a procedural due process right to be judged by a designated and identifiable person or persons, and that the decision by Dovey over Pliler’s signature violated that right. The trial court ordered Sphar and Martin reinstated, and CDCR appealed.

Decision

Sphar and Martin sought relief under POBRA, but also cited Government Code Section 19574, which states that an adverse action against a state employee is valid only if a written notice is served on the employee in advance that includes: 1) the nature of the adverse action; 2) the effective date of the action; 3) the reasons for the action; 4) a statement advising the employee of the right to answer the notice orally or in writing; and 5) a statement of the time in which an appeal must be filed. Additionally, POBRA requires that any action taken against a peace officer occur within one year of the public agency’s discovery of the alleged misconduct.

But, the court noted, nowhere does Section 19574 require the notice to inform the employee of the identity of the person who decided upon the nature of the adverse action. Therefore, the fact that Sphar and Martin were notified of a decision made by Dovey over the signature of Pliler was immaterial, the court found. Consequently, they were given valid notice of the disciplinary action within one year of the department’s learning of their misconduct, and POBRA was not violated.

The trial court therefore erred in ordering Sphar and Martin reinstated, the court concluded, and the judgment was reversed.

Questions

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