Conger v. Cnty. of L. A.

• Decision Date: 14 June 2019
• Docket Number: B288575
• Citation: 248 Cal.Rptr.3d 394,36 Cal.App.5th 262
• Court: California Court of Appeals Court of Appeals
• Parties: Thomas L. CONGER, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

36 Cal.App.5th 262

248 Cal.Rptr.3d 394

Thomas L. CONGER, Plaintiff and Appellant,

v.COUNTY OF LOS ANGELES et al., Defendants and Respondents.

B288575

Court of Appeal, Second District, Division 1, California.

Filed June 14, 2019

Hayes, Ortega & Sanchez, Dennis J. Hayes and Tracy J. Jones, San Diego, for Plaintiff and Appellant.

Hausman & Sosa, Jeffrey M. Hausman and Larry D. Stratton, Woodland Hills, for Defendants and Respondents.

BENDIX, J.

The Los Angeles County Sheriff's Department (the Department) rescinded appellant Thomas L. Conger's probationary promotion to lieutenant based on investigatory findings that Conger had failed to report a use of force several months before the Department promoted him to the probationary position. After unsuccessfully pursuing administrative remedies, Conger filed a petition for a writ of mandate in the trial court claiming that rescinding his promotion based on alleged conduct occurring before he was elevated to his probationary position constituted a demotion or a "denial of promotion on grounds other than merit," thus entitling him to an administrative appeal under Government Code¹ section 3304, subdivision (b), a provision of the Public Safety Officers Procedural Bill of Rights Act (POBRA) (§ 3300 et seq.). Conger requested that the trial court issue an order directing the County of Los Angeles (the County), as well as its Civil Service Commission, Board of Supervisors, and Chief Executive Officer (collectively, respondents) to provide him that administrative appeal.

The trial court denied the petition, ruling that the Department properly could consider Conger's pre-probationary conduct in rescinding his probationary promotion, and that the decision to rescind the promotion based on Conger's failure to report a use of force was merit-based.

We agree with the trial court that the Department's decision to deny Conger a promotion was merit-based. We further conclude that Conger has failed to show that the written evaluation detailing his unreported use of force will impact his career adversely in the future apart from the loss of his probationary position. Accordingly, we affirm the judgment.

BACKGROUND

Conger is a sergeant in the Department. On November 1, 2015, the Department promoted Conger to the rank of lieutenant, a position subject to a six-month probation period.

On April 18, 2016, the Department informed Conger he was under investigation for events occurring on May 21, 2015, when he was still a sergeant. Several days later, the Department relieved Conger of duty and placed him on administrative leave. On April 29, 2016, the Department served Conger with a letter extending his probationary period indefinitely "due to [his] Relieved of Duty status."

On May 20, 2016, the Department served Conger with a letter notifying him that he was "released from [his] probationary position of Lieutenant." The letter stated the action was "based upon the Unsatisfactory ‘Report on Probationer,’ which references your failure to adhere to Department policies regarding a use of force and/or reporting the use of force." The letter cited an "Internal Affairs Investigation."

The Department provided Conger with the "Report on Probationer" referenced in the letter that attached a "Performance Evaluation." (Boldface and some capitalization omitted.) The report listed the evaluation period as November 1, 2015 to May 20, 2016. The evaluation described a "use of force incident" on May 21, 2015, several months before the listed evaluation period, in which Conger and two deputy sheriffs moved a resisting inmate from one cell into an adjacent cell.² The evaluation stated that "[t]he investigation revealed Lieutenant Conger failed to report a use of force by himself and two of his subordinates. He also failed to document the incident and did not direct his subordinates who used or witnessed force to write the required memorandum. Lieutenant Conger also failed to adhere to policy by completing the required use of force report."

The evaluation concluded, "As a probationary employee, this is the time to demonstrate the ability to adhere to policies, good judgment and professionalism. Based on this incident, Lieutenant Conger does not meet the standards for the position of Lieutenant." The evaluation "recommend[ed] that Lieutenant Conger be released from his probationary lieutenant position and be demoted to his previous rank of sergeant."

Conger filed a written appeal with the County's human resources office, arguing that it was improper for the Department to release him from a probationary position based on events occurring prior to the probationary period. The County denied the appeal, finding that the Department "expected [Conger] to have abided by the Use of Force Policy when [it] made the decision to appoint him to Lieutenant. Had the Department been aware of Sergeant Conger's violation of the Use of Force Policy, [it] would not have promoted him to the position of Lieutenant."

Conger also filed a request for a hearing pursuant to section 3304, subdivision (b) with the County's Civil Service Commission. The Civil Service Commission denied the hearing request.

Conger then filed a petition for a writ of mandate in the trial court. He argued that releasing him from his probationary position based on alleged misconduct occurring before his promotion constituted a "denial of promotion on grounds other than merit" under section 3304, subdivision (b), thus entitling him to an administrative appeal hearing. Conger requested a declaratory judgment that respondents violated section 3304, subdivision (b) by failing to grant him a hearing, as well as an order directing respondents to provide that hearing. Conger also requested reasonable attorney fees and civil penalties under section 3309.5 and Code of Civil Procedure section 1021.5.

Respondents opposed the petition, and filed a declaration from Chief Warren Asmus, the Department official who made the decision to return Conger to the rank of sergeant. Asmus stated, "Lieutenants hold a high level supervisory position in the Department. As such, good professional judgment is an important job requirement going to the merits of that position." Asmus emphasized the importance of "the proper reporting of the use of force" and that supervisory personnel must be "sensitive to these issues, to ensure the proper functioning of the Department, the accurate reporting of such incidents, the safety of personnel and the public, and also for purposes of avoiding liability."

The trial court denied Conger's writ petition. The trial court ruled that the term "merit" in section 3304, subdivision (b) was not "limited to the merits of an officer's performance during a probationary period," and thus the Department could deny Conger a promotion based on merit factors arising prior to that period. The trial court found that section 3304, subdivision (b)"carv[ed] out an exception to the requirement for administrative hearings for denials of promotions because they involve an opportunity to advance rather than an imposition of a penalty. Providing administrative hearings for every officer who is denied a promotion would require significantly greater time and resources."

In determining whether the Department had denied Conger's promotion on grounds other than merit, the trial court cited the County's Civil Service Rules, rule 25.01(a),³ to define " ‘non-merit factors’ " as " ‘those factors that relate exclusively to a personal or social characteristic or trait and are not substantially related to successful performance of the duties of the position.’ " The trial court found "no evidence that the Department denied [Conger] a promotion based on any such personal or social characteristics or traits," and that the "grounds for denying [Conger] a promotion were clearly merit-based factors ‘substantially related to successful performance of the duties of the position.’ "

Conger timely appealed.

STANDARD OF REVIEW

A writ of mandate under Code of Civil Procedure section 1085" ‘may be issued by any court ... to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station.’ " ( Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916, 129 Cal.Rptr.2d 811, 62 P.3d 54.) To prevail, Conger must show respondents "ha[ve] a clear, present and ministerial duty" to provide an administrative appeal under section 3304, subdivision (b). (See ibid. )

The parties agree the relevant facts are not in dispute and thus our review is de novo. (See Skulason v. California Bureau of Real Estate (2017) 14 Cal.App.5th 562, 567, 223 Cal.Rptr.3d 7.)

DISCUSSION

POBRA "codif[ies] ‘a list of basic rights and protections which must be afforded all peace officers ... by the public entities [that] employ them.’ " ( Bacilio v. City of Los Angeles (2018) 28 Cal.App.5th 717, 723, 239 Cal.Rptr.3d 445, ellipses and second alteration in original.) POBRA's goal is "to assure the ‘maintenance of stable employer–employee relations,’ and thus to secure ‘effective law enforcement ... services’ for ‘all people of the state.’ " ( White v. County of Sacramento (1982) 31 Cal.3d 676, 683, 183 Cal.Rptr. 520, 646 P.2d 191 ( White ), ellipses in original.) The parties do not dispute that Conger is a "public safety officer" under POBRA. (See § 3301.)

Section 3304, subdivision (b) provides that "[n]o 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." "[P]unitive action" is defined as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment." (§ 3303.)

POBRA does not specify the procedural requirements for the...