In Guinn v. County of San Bernardino, (— Cal.Rptr.3d —-, Cal.App. 4 Dist., May 17, 2010), a California Court of Appeal considered whether a public safety officer was entitled to an administrative appeal after he was denied a promotion because he failed to satisfactorily perform during a period of probation. The Court of Appeal held the officer was not entitled to an administrative appeal.
Harold Guinn (“Guinn”) is employed by the County of San Bernardino (“County”). While Guinn was a permanent employee he received a promotion to probation supervisor, subject to a nine-month probationary period. The promotion occurred in May 2005. Guinn’s probationary period had to be extended by three months because he received unsatisfactory performance reviews. In May 2006, Guinn’s probation was terminated because of unsatisfactory performance and he was demoted to his previous position.
County never offered Guinn a formal hearing. Guinn and the San Bernardino County Safety Employees’ Benefit Association (“Association”) filed a lawsuit alleging that Guinn, who is a sworn peace officer and a public safety officer, is entitled to an administrative appeal to contest his demotion. The trial court found in favor of County.
The Court of Appeal held the trial court did not err in concluding that Guinn was not entitled to an administrative appeal. The question before the court was whether the Public Safety Officers Procedural Bill of Rights Act, specifically Government Code section 3304, subdivision (b), mandates that an administrative hearing be held when an officer is demoted after a probationary promotion period. The court held that it does not.
Section 3304(b) states, “No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.” Guinn and Association argued that because Guinn had successfully passed his initial probationary period when he began working as a probation officer, he was entitled to an administrative hearing when he was, as he describes it, demoted.
The court concluded Guinn was not demoted but rather was denied a promotion because he did not satisfactorily perform during his probationary period. “Denial of promotion is not a punitive action within the meaning of section 3304(b).” A “punitive action” is defined by Government Code section 3303 as “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” Merit-related denial of promotion is not included in the definition of punitive action. The court concluded “a denial of promotion which is based on merit, i.e., on the employee’s poor performance on probation, is not a punitive action which requires a hearing.”
Both the State Civil Service Act and County’s personnel rules provide that “an employee who is returned to his or her prior position during a period of promotional probation is not ‘demoted’; rather, if his or her performance during the probationary period is not satisfactory, the employee is denied the promotion.” Furthermore, the fact that the employee may lose a pay increase that he or she received along with the promotion does not transform a denial of promotion into a punitive act or demotion within the meaning of section 3304(b).
Guinn and Association also argued that the “probationary period” referred to in section 3304(b) only applies to the probation on initial hiring and should not be applied to promotional probation. Again, the court disagreed. The period of probation required by County for promotion falls within the meaning of the terms “probationary period” as used in section 3304(b). The Legislature intended section 3304(b) to apply to new hires and also employees who are on probation as a condition of promotion.
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