The California Court of Appeal  recently issued a decision that has been certified for publication,  which discusses the right to an administrative appeal of a “transfer for purposes of punishment” under the Public Safety Officers’ Procedural Bill of Rights Act (“POBR”). The case is L.A. Police Protective League v. City of Los Angeles (CA 2/4 B250922 12/9/14) (“LAPPL”).

Most of the commentary we have seen thus far has, in our opinion, missed the point by focusing on the unremarkable fact that the transfer must be for “purposes of punishment”. It is not surprising, and it is entirely consistent with precedent, that the Court held that in order to be entitled to an administrative appeal of a transfer, the transfer must be for purposes of punishment (or there is a direct negative impact on compensation or other specified rights). Among other cases, Orange County Employees Assn. v. County of Orange, in 1988, and Benach v. County of Los Angeles, in 2007, both held that the transfer must be for purposes of punishment in order for the officer to have a right to an administrative appeal.

What is new in the LAPPL case which we believe to be lacking in earlier cases is  a clear statement that to obtain an administrative appeal, evidence is required—in other words, an employee cannot merely state a belief that the transfer was for the purpose of punishment. The argument that had been espoused by the officers in this case was that as long as the employee had a subjective belief that a transfer was made for purposes of punishment, an administrative hearing should be held and as part of the determination on the merits, the finder of fact could determine whether in fact the transfer was punitive. Not so, according to the Court of Appeal, which ruled that the burden is clearly and unequivocally on peace officers to put forth some evidence that the transfer was for purposes of punishment, otherwise the right to an administrative hearing is not triggered.

The upshot to all of this is that we anticipate seeing a slight drop in administrative appeals from transfers. But, we also anticipate seeing more litigation involving cases where the employer has denied the right to an administrative appeal of a transfer and the officers are forced to go to Court to demonstrate that the transfer was for purposes of punishment.

If you have any questions, please contact Jason Jasmine at jason@majlabor.com.