Turturici v. City of Redwood City

• Decision Date: 08 April 1987
• Citation: 236 Cal.Rptr. 53,190 Cal.App.3d 1447
• Court: California Court of Appeals Court of Appeals
• Parties: Michael TURTURICI et al., Plaintiffs and Appellants, v. CITY OF REDWOOD CITY et al., Defendants and Respondents. A0 32019.

Page 53

236 Cal.Rptr. 53

190 Cal.App.3d 1447

Michael TURTURICI et al., Plaintiffs and Appellants, v. CITY OF REDWOOD CITY et al., Defendants and Respondents.

A0 32019.

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

April 8, 1987.

Review Denied July 1, 1987.

Christopher D. Burdick, Gary M. Messing, Elizabeth A. Reifler, Carroll, Burdick & McDonough, San Francisco, for plaintiffs and appellants.

David E. Schricker, City Atty., Susan W. Case, Sr. Asst. City Atty., Dick A. Schouten, Asst. City Atty., Redwood City, for defendants and respondents.

RACANELLI, Presiding Justice.

The question in this appeal is whether a supervisor's negative comments in an employee's performance evaluation constitute "punitive action" so as to trigger the employee's rights to an administrative appeal. We conclude they do not, and we affirm the judgment.

FACTS

Plaintiff Michael Turturici is a sergeant on the Redwood City police force. In January 1984, plaintiff's supervisor, Lieutenant Granucci, prepared a "performance appraisal" which contained some critical comments on plaintiff's job performance.

At the conclusion of the performance appraisal in the "Recommendations" section, Lieutenant Granucci wrote:

"He must bring his performance up to a satisfactory level during the next evaluation period. If he fails to perform satisfactorly, [sic] I recommend disciplinary action be taken which could result in a reduction in pay or termination of service."

(Emphasis added.)

Plaintiff received a copy of the appraisal and indicated he would respond. But he did not do so. Instead his attorneys asked for an administrative appeal. The chief of police denied the request.

Thereafter, plaintiff filed the present lawsuit for mandamus and declaratory relief seeking a declaration that his adverse performance appraisal entitled him to an administrative appeal and further seeking to compel the city and the chief of police to provide plaintiff with an administrative appeal of his performance appraisal.

The trial court concluded that a negative personnel evaluation is not punitive action, and thus the city was not required to provide plaintiff an appeal. Accordingly, the court denied the petition for a writ of mandate. Plaintiff now appeals.

DISCUSSION

Plaintiff's claim to an administrative appeal of his performance appraisal rests primarily on the Public Safety Officers Procedural Bill of Rights Act (Gov.Code, § 3300 et seq.). That act entitles public safety officers to an administrative appeal whenever "punitive action" is undertaken. ¹ (See generally White v. County of Sacramento (1982) 31 Cal.3d 676, 183 Cal.Rptr. 520, 646 P.2d 191.) "Punitive action" is defined as "any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment." (Gov.Code, § 3303.)

Plaintiff argues that the negative comments contained within his performance appraisal, especially the recommendation that future discipline be imposed, amount to punitive action for which an administrative appeal must be afforded. Plaintiff reasons there is no difference between a letter of reprimand and the comments contained in his performance appraisal.

The argument is not convincing. First of all, the Supreme Court has interpreted the statute to mean that the right of administrative appeal is provided whenever "disciplinary action is taken." (White v. County of Sacramento, supra, 31 Cal.3d at p. 683, 183 Cal.Rptr. 520, 646 P.2d 191 [reassignment to lower paying position was disciplinary in nature and hence "punitive action"].) Stated another way, the question is "whether there was a detriment to the officer." (McManigal v. City of Seal Beach (1985) 166 Cal.App.3d 975, 981, 212 Cal.Rptr. 733.) Here, plaintiff's performance evaluation is not detrimental to the officer. It does not impose discipline, and it does not subject plaintiff to any punishment. The performance appraisal merely recommends discipline as a future conditional event: if plaintiff's performance does not improve.

Moreover, the nature of an employee evaluation is such that negative comments may be expected. Certainly, the Legislature did not contemplate an administrative appeal every time an employee receives an adverse evaluation. Indeed, the Legislature has obviously drawn a distinction between "punitive action" and adverse comments entered in a personnel file. As to the former, an administrative appeal is mandated (Gov.Code, § 3304, subd. (b)), but as to the latter, the officer merely has the right to notice and to respond (Gov.Code, §§ 3305, 3306). ² The city fulfilled its duties under the latter sections. Plaintiff was given a copy of his performance appraisal and was invited to respond. Indeed, even after the 30 days had elapsed, the chief of police invited plaintiff to submit a response. He chose not to do so.

Plaintiff relies on Hopson v. City of Los Angeles (1983) 139 Cal.App.3d 347, 352-353, 188 Cal.Rptr. 689, in which the court held that placing a derogatory police commission report in the personnel files of two police officers amounted to punitive action. But Hopson is distinguishable. There, the commission report was prepared in the aftermath of a highly publicized police shooting of a private citizen. The commission acted after the chief of police had decided no discipline should be imposed on the officers. The commission concluded that the two police officers made serious errors in judgment and violated departmental policy concerning the use of firearms and deadly force. But the commission also concluded any attempt to impose discipline upon the officers after the chief's decision was final would violate due process. Accordingly, the commission directed that a copy of the report be placed in the officers' personnel files. Under such circumstances, the court held that the placing...