Opinion
F061213
02-17-2012
J. MICHAEL REED et al., Appellants, v. CITY OF BAKERSFIELD, Respondent.
Berry Wilkinson Law Group and Allison Berry Wilkinson for Appellants. Clifford & Brown and John R. Szewczyk for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. S-1500-CV-264574)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Linda S. Etienne, Commissioner.
Berry Wilkinson Law Group and Allison Berry Wilkinson for Appellants.
Clifford & Brown and John R. Szewczyk for Respondent.
Appellants appeal from the denial of their petition for a writ of mandate. They sought a writ compelling the City of Bakersfield (the city) to reinstate a police officer to the position of police sergeant, from which he had been removed during his period of probation, and to award back wages and benefits to him on the ground the city failed to follow the proper procedures for removing him from the sergeant position during the probationary period. The trial court denied the petition, concluding appellants did not establish any failure to follow the appropriate procedures. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant, J. Michael Reed, is an officer with the Bakersfield Police Department. On January 5, 2007, he was promoted to sergeant, subject to a one-year probationary period. On January 4, 2008, Reed was advised that his appointment as a sergeant was terminated, he had not successfully completed his probationary period, and he was to return to his previous rank of detective. On July 14, 2008, Reed and appellant, Bakersfield Police Officers Association (BPOA), the organization representing employees of the police department, filed their petition seeking a writ of mandate commanding the city to set aside Reed's release from the probationary sergeant position and to reinstate him to that position with permanent status; they contended the city (1) failed to obtain the approval of the city manager before releasing Reed from the probationary promotion; (2) failed to afford Reed his right of administrative appeal pursuant to Government Code section 3304, subdivision (b); and (3) failed to afford him a "liberty interest hearing" in accordance with Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340 (Lubey).
On July 23, 2010, the trial court denied the petition for a writ of mandate. It found that, in accordance with the city charter and the civil service rules, Reed was both appointed to the police sergeant position and reduced to his previous rank by the chief of police, who was the appointing officer and was authorized to fill positions in the police department by appointment and to discharge candidates during the probationary period. The trial court also concluded appellants failed to meet their burden of proving that approval of the city manager was not given. Further, it concluded appellants failed to demonstrate Reed was entitled to an administrative hearing pursuant to either Government Code section 3304 or the Lubey case. Appellants appeal.
Charter of the City of Bakersfield (hereafter city charter or charter).
The Rules and Regulations of the Civil Service Board for the City of Bakersfield Police Department (hereafter civil service rules).
DISCUSSION
I. Standard of Review
To the extent we must interpret statutes, charter provisions, city ordinances, and rules and regulations of the civil service commission, we address questions of law which we resolve de novo. To the extent the issues raised involve disputed factual matters; we review to determine whether the trial court's factual findings are supported by substantial evidence. (Riveros v. City of Los Angeles (1996) 41 Cal.App.4th 1342, 1349-1350 (Riveros).)
II. Approval of City Manager
"Section 1085 of the Code of Civil Procedure authorizes a trial court to issue a writ of mandate to compel an act which the law specifically requires. A petitioner seeking a writ of mandate under this section is required to show the existence of two elements: a clear, present and usually ministerial duty upon the part of the respondent, and a clear, present and beneficial right belonging to the petitioner in the performance of that duty. [Citations.]" (Bergeron v. Department of Health Services (1999) 71 Cal.App.4th 17, 21-22.) In the first cause of action of their petition, appellants alleged the city had a clear, present and ministerial duty to follow the procedures set out in the city charter in order to end Reed's probationary promotion and return him to his previous rank. They asserted the city charter's procedures required the city to obtain the approval of the city manager in order to end Reed's promotion during the probationary period, but the city did not obtain that approval. They prayed for a writ of mandate compelling the city to set aside Reed's "unlawful release from probation" and to reinstate him to the position of police sergeant on a permanent basis.
The city charter, municipal code, and civil service rules for the police department all contain provisions relating to removal of an employee of the police department from a position during the probationary period. Appellants assert these provisions, taken together, required the approval of the city manager before Reed's probationary promotion could be ended and Reed could be reduced from sergeant back to detective. Appellants contend the city manager's approval was not given and, in the absence of that approval, the termination of his probationary promotion was invalid.
A city's charter is the supreme law of the city, subject only to conflicting provisions in the federal and state constitutions and to preemptive state law. It is the equivalent of a local constitution. (Creighton v. City of Santa Monica (1984) 160 Cal.App.3d 1011, 1017.) "[T]he provisions of a city charter respecting purely municipal affairs prevail over related state laws." (City and County of San Francisco v. Patterson (1988) 202 Cal.App.3d 95, 102.) "„[A]n ordinance must conform to, be subordinate to, not conflict with, and not exceed the [city's] charter, and can no more change or limit the effect of the charter than a legislative act can modify or supersede a provision of the constitution of the state.' [Citations.]" (Currieri v. Roseville (1970) 4 Cal.App.3d 997, 1001 (Currieri).)
The city charter sets out the duties of the city manager, which include: "[t]o appoint and remove, except as herein otherwise provided, all officers and subordinate officers and employees of the Department, in both the classified and unclassified service." (Charter, art. IV, § 36(6), italics added.) Addendum 3 to the charter establishes a civil service board for the police department, and provides that "[t]he Commissioners shall formulate rules and regulations governing the selection, promotion and discipline of employees in the Department" and "[a]ll officers and personnel shall belong to the classified service." (Charter, addendum 3, § (223)3.) When there is a position in the police department to be filled (other than chief of police), the chief of police must notify the civil service commission, which must certify the names of two or three candidates from the eligible list; the chief "shall fill such positions by appointment of one of the persons certified to him by the Commissioners." (Charter, addendum 3, §§ (227)7, (228)8.) The charter also requires the civil service commissioners to provide for promotion of officers by competitive examination, and to submit the names of eligible candidates to "the appointing power." (Charter, addendum 3, § (230)10.) Addendum 3, section (228)8 makes the chief of police the appointing power for all positions in the department except that of police chief. Thus, the city charter authorizes the chief of police to fill vacancies within the police department, other than the position of chief of police, either by appointing a new employee or promoting an existing employee.
The charter imposes a probationary period on all newly appointed employees. Sworn officers "shall be on probation for a period to be fixed by the rules of the Commissioners," not to exceed one year. (Charter, addendum 3, § (228)8.) "At or before the expiration of the period of probation, the Chief of Police may discharge a candidate. If a candidate is not discharged at or before the expiration of the period of probation his appointment shall be deemed complete." (Ibid.) Once an employee has successfully completed his period of probation, he shall not be "removed, demoted or discharged, except for cause, upon written charges, and after an opportunity to be heard in his own defense." (Charter, addendum 3, § (231)11.) Thus, the charter confers on the chief of police the authority to terminate a probationary employee during the period of probation without cause.
The civil service rules for the Bakersfield Police Department are consistent with the provisions of the city charter. They provide that applicants for initial employment and applicants for promotions must demonstrate their qualifications through examinations. (Civil service rules, rules 3, 4, 5.) Successful candidates are placed on an eligible list, which the civil service board certifies "to the appointing officer." "Appointing officer" is defined as "the Chief of Police or City Manager, as appropriate." (Civil service rules, rule 2.01(2).) The city charter authorizes the city manager to appoint the chief of police and authorizes the chief of police to appoint candidates to the other positions in the department. (Charter, addendum 3, §§ (228)8, (229)9.) Thus, the appropriate appointing officer for all positions other than the chief of police is the chief of police.
"All appointments from eligible lists shall be subject to a probationary period of one year." (Civil service rules, rule 13.02.) The probationary period is part of the examination process and "shall be used for ... the elimination of any probationary employee whose performance fails to meet the required standards of work or conduct." (Civil service rules, rule 13.01.) "A probationary employee may be discharged at any time during the probationary period by the authority of the appointing officer without right of appeal or hearing. Promotional appointees may be reduced to the last previously held rank during the probationary period by the authority of the appointing officer without right of appeal or hearing." (Civil service rules, rule 13.04.) "The permanent appointment of a probationary employee shall begin on the day following the end of the probationary period provided he has not been discharged at or before the expiration of the period of probation." (Civil service rules, rule 13.03.)
The chief of police made a promotional appointment of Reed to the position of police sergeant. Reed entered into a one-year probationary period. Within the probationary period, the chief of police issued a Special Order, dated January 4, 2008, which stated that Reed was "returning to the rank of Police Detective for failure to satisfactorily complete probation." Reed was notified of his reduction to his previous position on that date; he was given an evaluation form signed by Captain L.D. Martin containing that information. The chief of police terminated Reed's promotion to police sergeant during the probationary period, as authorized by the city charter and the civil service rules. (Charter, addendum 3, §§ (228)8, (231)11; civil service rules, rule 13.04.)
Appellants contend, however, that provisions of the Bakersfield Municipal Code (hereafter Municipal Code) required that the city manager approve Reed's reduction to his previous rank. Consistent with the city charter, the municipal code provides that "[a]ll appointments to a permanent position shall be tentative and subject to a probationary period." (Mun. Code, § 2.72.150.) The probationary period applies to all employees "changing from one class or position to a different class or position." (Mun. Code, § 2.72.210, subd. (B).) "During the probationary period, an employee may be terminated at any time by the appointive authority without cause or right of appeal." (Mun. Code, § 2.72.170.)
Appellants, however, rely on Municipal Code sections 2.72.110 and 2.72.210, which they contend impose a requirement that the city manager approve the reduction of a promoted employee back to his previous position during the probationary period applicable to the promotion. Municipal Code section 2.72.110 provides: "Appointment to all classes or positions, other than city manager and city attorney, and all personnel transactions shall be subject to approval of the city manager." Municipal Code section 2.72.210, subdivision (A), provides: "Promotions. In the event of a promotion to a higher grade during the probationary period within a division, the department head may reduce the employee to his former grade with the approval of the city manager."
The city charter supersedes all municipal laws or ordinances inconsistent with its provisions. (Stuart v. Civil Service Com. (1985) 174 Cal.App.3d 201, 206.) The city charter provides that, "except as herein otherwise provided," the city manager is to appoint and remove employees. (Charter, art. IV, § 36(6).) The charter then establishes a civil service system for the police department, requires "all applicants for places on the Police Department or for promotion" to be subjected to examination, and provides that vacancies in positions in the police department, with the exception of the position of chief of police, are to be filled by appointment by the chief of police from lists of eligible candidates certified by the civil service board on the basis of the examination results. (Charter, addendum 3, §§ (224)4, (227)7, (228)8.) When appointed to a position, a candidate is subject to a probationary period; during that period, the chief of police may discharge the candidate. (Charter, addendum 3, § (228)8.) After an employee successfully completes probation, he may only be removed, demoted, or discharged after a hearing before the civil service commission, although the chief of police or other authorized officer may suspend him pending the hearing. (Charter, addendum 3, § (231)11.) Thus, while the city charter authorizes the city manager to appoint and remove city employees in general, it "otherwise provide[s]" that employees of the police department are to be appointed and removed by the chief of police, with the assistance of the civil service commission. (Charter, art. IV, § 36(6).) The city charter itself effectively withdraws from the city manager the authority to appoint and remove employees of the police department. To the extent Municipal Code sections 2.72.110 and 2.72.210 purport to require the city manager to approve appointment of employees to the police department or removal of employees from positions with the police department, they impermissibly conflict with, and are superseded by, the provisions of the city charter.
In Currieri, two police officers challenged their discharge, contending they were permanent rather than probationary employees and therefore entitled to a hearing prior to discharge. They had been involved in an altercation in a bar while off duty, and the chief of police had extended their probationary period 120 days past the one-year period. During the extended time period, the officers were summarily discharged. (Currieri, supra, 4 Cal.App.3d at pp. 999-1000.) The city charter contained a comprehensive plan for the organization and administration of a city personnel system. It authorized the city council to enact rules governing city employment and providing '"[f]or a period of probation not to exceed one year ... before ... appointment is made permanent, during which time, in the case of an original appointment, the probationer may be discharged.'" (Id. at p. 1000, italics omitted.) The implication of this provision was "that the probationary employee, although he may be discharged summarily at any time during the probationary year, thereafter automatically attains a permanent status." (Id. at p. 1001.) The city ordinances that set out the personnel rules for the city, however, provided that, in order to transfer the appointee from probationary to permanent status at the end of the one-year probationary period, the appointive authority was required to file a written statement with the personnel officer, stating that the appointee's service was satisfactory and his retention was desired; otherwise employment ceased. (Id. at pp. 1000-1001.) Interpreting the language of the city charter in accordance with its plain meaning, the court concluded:
"'[Whatever] is necessarily implied in a statute is as much a part of it as that which is expressed.' [Citation.] The Roseville ordinance (i.e., code) which requires a specific formal action by the appointive authority in order to transfer the appointee from probationary to permanent status adds another condition to the charter provision and therefore exceeds the power granted by the charter." (Currieri, supra, 4 Cal.App.3d at p. 1001.)
Because the charter did not authorize extension of the one-year probationary period and made the employee's appointment permanent automatically at the end of that period (if the employee was not discharged earlier), the officers were permanent employees as of the end of the one-year probationary period. "As permanent police officers they were entitled to notice, a hearing and could only be discharged for cause." (Currieri, supra, 4 Cal.App.3d at p. 1001.)
Similarly, Municipal Code sections 2.72.110 and 2.72.210, to the extent they require approval of the city manager for personnel actions in the police department, add a condition to the charter provisions that is not included in or authorized by the charter. Rather, these sections of the municipal code conflict with the provisions of the charter and are void to that extent. Consequently, approval of the city manager was not required in order for the chief of police to end Reed's probationary promotion and return him to his prior position. Appellants failed to establish the purported procedural error in the city's termination of Reed's promotion during the probationary period. Accordingly, the trial court did not err in denying appellants' request for a writ of mandate based on the first cause of action alleged in the petition.
III. Administrative Appeal Pursuant to Government Code Section 3304, Subdivision (b)
The second and third causes of action of the petition allege the city had a clear, present and ministerial duty to afford Reed his rights under the Public Safety Officers Procedural Bill of Rights Act (the Act; Gov. Code, § 3300, et seq.), including the right to an administrative appeal of a denial of a promotion based on grounds other than merit and the right to an administrative appeal of the punitive action of terminating Reed's probationary promotion based on alleged misconduct. (§ 3304, subd. (b).) Appellants alleged the city failed to afford Reed these rights; therefore the termination of his promotion was unlawful and should be set aside. The trial court concluded Reed was not entitled to an administrative appeal under section 3304, subdivision (b), because the release from his promotion occurred during the probationary period and there was insufficient evidence of any improper reason for that release.
All further references are to the Government Code unless otherwise indicated.
"As the title suggests, the Public Safety Officers Procedural Bill of Rights Act provides a catalogue of basic rights and protections which must be afforded all peace officers by the public entities which employ them. [Citation.] The Act bespeaks the Legislature's determination that, because labor unrest and strikes produce consequences extending far beyond local boundaries, the maintenance of stable employment relations between peace officers and their employers is a matter of statewide concern. [Citations.]" (Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1805 (Binkley).) The Act contains the following provision, which is the basis of appellants' assertion that Reed was entitled to an administrative appeal:
"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." (§ 3304, subd. (b).)
Appellants argue that the city denied Reed a promotion on grounds other than merit—because of allegations of misconduct against him or because of his participation in the BPOA—and that its action was punitive; therefore, he was entitled to an administrative appeal under section 3304, subdivision (b). Appellants ignore crucial language in the statute.
"'The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context.' [Citations.] If the statutory language is unambiguous, 'we presume the Legislature meant what it said, and the plain meaning of the statute governs.' [Citations.]" (People v. Toney (2004) 32 Cal.4th 228, 232.) Section 3304, subdivision (b), applies to actions taken by the employing agency "against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency." (§ 3304, subd. (b).) Interpreting this unambiguous language according to its plain meaning, we conclude the administrative appeal requirement applies only to nonprobationary employees. "It is settled law that a probationary (or nontenured) civil service employee, at least ordinarily, may be dismissed without a hearing or judicially cognizable good cause. [Citations.]" (Lubey, supra, 98 Cal.App.3d at p. 345.) "'It is of the essence of a probationary employment that the employee is on trial for the probationary period. Observation of the employee during that period may disclose things about his character, personality and efficiency not discoverable at the time of [his] original employment. Those matters involve more than objectively provable acts of misconduct. They involve matters requiring expert evaluation by the employee's superior and supervisory officers.'" (Riveros, supra, 41 Cal.App.4th at p. 1356.) The Act was not intended to interfere with the employing agency's right to regulate peace officers' qualifications for employment or its discretion to dismiss a probationary employee from his or her position without cause. (Riveros, at p. 1359; Binkley, supra, 16 Cal.App.4th at p. 1806.)
Appellants argue that the term "probationary period" as used in section 3304, subdivision (b), refers only to the initial probationary period when an employee is first hired; they contend it does not include a later probationary period imposed in connection with a promotion to a higher position. In Guinn v. County of San Bernardino (2010) 184 Cal.App.4th 941 (Guinn), the court rejected that argument, concluding the statutory term applied to any probationary period, whether at the outset of an employee's employment or during the initial stage of a promotion. "[T]here is no linguistic reason that 'the probationary period that may be required' by the employing agency does not apply equally to probation imposed upon the initial hiring of a public safety officer and to probation imposed as a condition of a promotion. [Citation.]" (Id. at p. 948.) The court rejected the officers' suggestion that it should ignore the literal meaning of that language on the ground it was so inconsistent with the purpose of the statute or the statutory scheme that it would frustrate the manifest purpose of the Act as a whole or lead to absurd results. (Guinn, at p. 948.)
"The stated purpose of the Act is to maintain 'stable employer-employee relations ... between public safety employees and their employers' and thereby 'assure that effective services are provided to all people of the state' by establishing statewide procedural rights for public safety officers. [Citation.] The procedural protections the Act provides serve to '"balance the public interest in maintaining the efficiency and integrity"' of entities employing public safety officers '"with the ... officer's interest in receiving fair treatment." [Citation.]' [Citation.] This stated purpose is in no way frustrated by the imposition of a probationary period as a condition of a promotion or of a transfer to a new position. Nor is it frustrated by denial of an administrative appeal during any period of probation. Moreover, it is a long-established principle of public employment that because a probationary employee has no vested property interest in his or her employment, the employee has no due process right to a hearing prior to termination of the employment. [Citations.] Denial of a hearing upon
rejection on probation, promotional or otherwise, is consistent with that principle. In the absence of any explicit distinction between employees who are on probation as new hires and employees who are on probation as a condition of promotion, we conclude that the Legislature intended section 3304(b) to apply to both classes of employees." (Guinn, supra, 184 Cal.App.4th at p. 948.)
Applying the plain meaning of the language of section 3304, subdivision (b), we conclude a public safety officer may not be denied a promotion, once he or she has successfully completed the probationary period required by the employer for that promotion, without being given an opportunity for administrative appeal. In the absence of successful completion of the probationary period for the promotion, however, no opportunity for an administrative appeal is mandated.
The city charter and the civil service rules provide that each employee promoted by the police department must undergo a one-year period of probation and, during that period, the employee may be discharged from that position and returned to his or her prior rank without right of appeal or hearing. (Charter, addendum 3, § (228)8; civil service rules, rule 13.04.) There is no dispute that Reed was notified during the probationary period for his promotion to police sergeant that he had not successfully completed his probation and was being returned to his prior rank. Accordingly, by the express terms of section 3304, subdivision (b), the city was not required to afford Reed an opportunity for an administrative appeal of the termination of his promotion during the probationary period.
Citing Gray v. City of Gustine (1990) 224 Cal.App.3d 621 (Gray), appellants assert that reduction to a former position is "a punitive action triggering the procedural requirements of section 3304, subdivision (b), notwithstanding the employee's at-will status." Gray, however, was decided prior to the amendment of section 3304, subdivision (b), that took effect on January 1, 1999, which added the language "against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency" to that subdivision. (Stats. 1998, ch. 786, § 1.) Prior to 1999, the statute made no distinction between probationary, at will, and permanent employees; all employees were entitled to an administrative appeal when punitive action was taken against them. (Browning v. Block (1985) 175 Cal.App.3d 423, 428; Gray, supra, 224 Cal.App.3d at pp. 630-631.) For at will or probationary employees, however, the scope of that appeal was limited. "The limited purpose of an administrative appeal under section 3304 is to give the peace officer subjected to punitive action an opportunity 'to establish a formal record of the circumstance surrounding his termination' [citation] 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.' [Citation.]" (Binkley, supra, 16 Cal.App.4th at p. 1806.) "'Just because the ... Act provides certain procedural safeguards and allows a probationary employee to establish a formal record of the circumstance surrounding his termination does not mean City cannot terminate its probationary peace officers without cause.' [Citation.]" (Gray, supra, 224 Cal.App.3d at p. 630.)
Appellants also rely on Henneberque v. City of Culver City (1983) 147 Cal.App.3d 250 (Henneberque) to establish Reed's right to an administrative appeal. In Henneberque, the petitioner was a police officer who had been appointed to the probationary position of police sergeant. After he was elected president of the police officers' association that was the recognized employee organization for his department, Henneberque was demoted to the position of police officer for failure to satisfactorily perform his duties as police sergeant. (Id. at p. 252.) He was denied an administrative appeal, and petitioned for a writ of mandate compelling the city that employed him to provide him an administrative appeal pursuant to section 3304, subdivision (b), and to reinstate him to the position of probationary police sergeant; he then appealed from the denial of his petition for a writ of mandate.
The court concluded Henneberque's demotion was a punitive action, giving rise to a right to an administrative appeal. (Henneberque, supra, 147 Cal.App.3d at p. 254.) Like Gray, however, Henneberque was decided prior to the amendment of section 3304, subdivision (b), when the statute did not exempt probationary employees from the requirement of an administrative appeal. Therefore it is not authority under the current version of that section for requiring a public employer to afford an administrative appeal to a probationary employee.
The court also concluded Henneberque was entitled to an administrative appeal "because of alleged discrimination against him for exercise of his right to participate in the recognized employee organization"; such discrimination would violate the Meyers-Milias-Brown Act (MMBA; § 3500, et seq.). (Henneberque, supra, 147 Cal.App.3d at p. 254.) The MMBA provides public employees the right to join labor organizations and prohibits public agencies from interfering with the organizational representational rights of their employees. (Id. at p. 255.) Relying on Healdsburg Police Officers Assn. v. City of Healdsburg (1976) 57 Cal.App.3d 444 (Healdsburg), the Henneberque court found the officer was entitled to a hearing because he claimed he was demoted for exercising his statutory right to join and participate in the activities of an employee organization. (Henneberque, supra, 147 Cal.App.3d at p. 255.) The court stated:
Disapproved on another ground in Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 182, footnote 9.
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"In Healdsburg ..., the court held that the officer's discharge without a hearing violated the Meyers-Milias-Brown Act (Gov. Code, § 3502), providing public employees the right to join labor organizations and section 3506, prohibiting public agencies from interfering with the organizational representational rights of their employees. [Citation.] The court stated that: 'The right to a hearing must likewise be afforded when a public officer employed at will claims that he was dismissed because he exercised a statutory right to join and participate in the activities of an employee organization.' [Citation.] In the case before this court, appellant claims that the demotion occurred because of his participation in an employee organization. Thus, both appellant here and appellant in Healdsburg claimed that they lost their positions because they exercised their rights
under the Meyers-Milias-Brown Act. [Citation.] Accordingly, appellant herein, as the appellant in Healdsburg, is also entitled to a hearing." (Henneberque, supra, 147 Cal.App.3d at pp. 254-255, fn. omitted.)
The employees in Healdsburg, however, were not at will or probationary employees; the Healdsburg court found the employment manual governing their employment expressly provided that their employment was terminable only for cause and after a hearing. Further, the employees did not merely claim that they were discharged because they exercised their rights under the MMBA.
"[R]espondents properly alleged and adduced evidence at the trial showing that their discharge violated several provisions of the MMB Act which accords public employees the right to join labor organizations [citations] and prohibits public agencies from interfering with the exercise of the organizational and representational rights of their employees [citations]. While failing to make specific findings of fact to that effect, the trial court in its memorandum decision concluded that 'there was substantial evidence elicited at the hearing to support petitioners' contention that their dismissal resulted from their attempt to exercise such [organizational and representational] right.'" (Healdsburg, supra, 57 Cal.App.3d at pp. 451-452, fn. omitted.)
Thus, contrary to the implication in Henneberque, Healdsburg did not enforce a right to a hearing in favor of probationary officers based on a mere allegation that the employer violated the officers' rights under the MMBA. Healdsburg granted relief only after concluding that the officers were not probationary or at will employees and that they had adduced substantial evidence of violations of the MMBA.
Appellants assert section 3304, subdivision (b), "mandates a hearing to determine the basis of Reed's last-second release from probation ... because strong evidence indicates that the release was a penalty for Reed's work on behalf of the [BPOA]." The trial court's judgment is presumptively correct, and the appellant bears the burden of affirmatively demonstrating error. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557.) "[A]n appellant who challenges a factual determination ... must marshal all of the record evidence relevant to the point in question and affirmatively demonstrate its insufficiency to sustain the challenged finding." (Id. at p. 557.) Where the trier of fact finds that the party with the burden of proof failed to carry its burden, and that party appeals, the question on appeal is not whether substantial evidence supports the finding, but "whether the evidence compels a finding in favor of the appellant as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1528.) The trial court concluded appellants did not meet their burden of demonstrating Reed was entitled to an administrative appeal pursuant to section 3304, subdivision (b).
Appellants do not identify the "strong evidence" they contend supports their conclusion that the termination of Reed's probationary promotion was a punitive response to Reed's participation in activities of the BPOA. The petition, which was verified by Reed, alleges Reed was a member of the BPOA, serving on its board of directors, and his release from the promotional position was based on his superiors' perception that his BPOA activities conflicted with his duty of loyalty to the department. The exhibits attached to the petition included the evaluation form that informed Reed his appointment to the police sergeant position was terminated "for failure to satisfactorily complete probation." They also included a letter from an attorney, apparently representing the city, which denied that the termination of the probationary promotion was related to Reed's BPOA activities. The city's opposition papers included a declaration of the chief of police in which he unequivocally denied that his decision that Reed had not satisfactorily completed his probationary period as a police sergeant was motivated by Reed's involvement in the BPOA. In reply, Reed submitted a declaration in which he described his own perceptions that actions taken by the police department during the investigation of the December 2007 incidents of alleged misconduct were directed toward him because of his participation in the activities of the BPOA and that the termination of his appointment to the probationary position was a response to his BPOA activities.
The trial court found the evidence was insufficient to establish that Reed's probationary promotion was improperly terminated as a punitive response to his participation in BPOA activities. Appellants have not shown that their evidence compelled a finding in their favor on this issue as a matter of law. Because the city ended Reed's probationary promotion to police sergeant during the probationary period, and appellants failed to show any violation of Reed's statutory rights under the MMBA, appellants have not established any error in the trial court's determination that they failed to carry their burden of proving that the termination of Reed's promotion was invalid either because the city failed to afford Reed an administrative appeal under section 3304, subdivision (b), or because of a violation of Reed's statutory right to participate in an employee organization. IV. Lubey Hearing
The fourth cause of action of the petition asserts that, at the time Reed's probationary promotion was ended, he was under investigation for two incidents of alleged misconduct; the city had a duty to afford him a liberty interest hearing pursuant to Lubey (Lubey, supra, 98 Cal.App.3d 340); and he requested a liberty interest hearing, but the city denied that request. The trial court found Reed was not entitled to a Lubey hearing because "the impact, if any, of the pending investigations on Reed's reputation is a matter of conjecture." In other words, the trial court found appellants did not meet their burden of establishing that the prerequisites to a Lubey hearing were met.
Generally, an at will or probationary employee may be terminated without a hearing or judicially cognizable good cause. (Lubey, supra, 98 Cal.App.3d at p. 345.) "Such a dismissal does not deprive the employee of a vested, or property, right." (Ibid.) There is an exception to this rule based on the Fourteenth Amendment when "there is a deprival of the 'liberty' guaranteed all persons by that amendment's due process clause." (Lubey, at p. 346.) It applies when "the probationary employee's job termination, or dismissal, is based on charges of misconduct which 'stigmatize' his reputation, or 'seriously impair' his opportunity to earn a living [citation], or which 'might seriously damage his standing or associations in his community' [citation]." (Id. at p. 346, fn. omitted.) The remedy for this deprivation of a liberty interest is "'"an opportunity to refute the charge" [and] "to clear his name."' [Citation.]" (Id. at p. 346.) "The employee is entitled to notice and a hearing appropriate to the nature of the case. [Citations.]" (Holmes v. Hallinan (1998) 68 Cal.App.4th 1523, 1531.)
The Lubey court noted that, when a probationary employee does not deny the charges of misconduct, his claim of deprivation of due process will be rejected. (Lubey, supra, 98 Cal.App.3d at p. 346, fn. 2.) It added: "And ordinarily, the '"same conclusion applies to the discharge of a [probationary or otherwise nontenured] public employee ... when there is no public disclosure of the reasons for the discharge."' [Citation.]" (Ibid.) This suggests that, when an employer is entitled to discharge an employee without cause, and it discharges the employee without giving any reason for that action, no Lubey hearing is required because there is nothing to refute and no need to clear the employee's name.
The evidence did not indicate the termination of Reed's probationary promotion was "based on charges of misconduct." (Lubey, supra, 98 Cal.App.3d at p. 346.) The documents reflecting the termination of Reed's probationary promotion—the evaluation form provided to Reed and the special order issued by the chief of police—gave no reason for termination of the promotion other than a "failure to satisfactorily complete probation." The petition for writ of mandate did not allege that Reed's promotion was terminated based on charges of misconduct; it merely asserted Reed "was under investigation for two incidents involving allegations of misconduct" at the time the promotion was terminated, and "the pendency of these two investigations ... negatively impacted Reed's reputation." Appellants presented no evidence that Reed's personnel file, or any record available to potential employers or to the public, contained any mention of the investigations or the alleged misconduct, much less any information linking the allegations or investigations to the denial of a permanent promotion. Appellants presented no evidence of any public disclosure of reasons for the termination of Reed's probationary promotion that had the potential to besmirch his reputation or adversely affect his future employment. In short, appellants did not present sufficient evidence to compel a finding, as a matter of law, that the termination of Reed's probationary promotion was based on charges of misconduct, or that any such charges stigmatized his reputation, seriously impaired his job opportunities, or damaged his standing or associations in the community. Consequently, appellants have not demonstrated any error in the trial court's conclusion that they failed to meet their burden of establishing the prerequisites to entitlement to a Lubey hearing.
DISPOSITION
The judgment is affirmed. The city is entitled to its costs on appeal.
HILL, P. J. WE CONCUR: KANE, J. POOCHIGIAN, J.