Filed 12/9/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
LOS ANGELES POLICE PROTECTIVE B250922
LEAGUE et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BS136895)
v.
CITY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles Country, James
C. Chalfant, Judge. Affirmed.
Silver, Hadden, Silver, Wexler & Levine, Richard A. Levine and Jacob A.
Kalinski, for Plaintiffs and Appellants.
Michael N. Feuer, City Attorney, Gregory P. Orland, Managing Deputy City
Attorney, for Defendants and Respondents.
______________________________
In this case we hold that the Public Safety Officers Procedural Bill of Rights Act
1
(POBRA) (Gov. Code, § 3300 et seq.) does not afford officers the right to an
administrative appeal of a transfer of assignment, which does not affect compensation or
other specified rights, solely because the transfer may lead to negative employment
consequences, or upon the officer’s belief to that effect. Instead, as the statute
specifically requires, the transfer must be “for purposes of punishment.”
Appellants Los Angeles Police Protective League (League), Won Chu, and Felicia
Hall appeal from a judgment denying their petition for writ of mandate and request for
declaratory relief. Appellants Hall and Chu are public safety officers employed by
2
respondent City of Los Angeles (City) and represented by the League. Appellants argue
that the POBRA and the memorandum of understanding (MOU) between the City and the
League entitle Chu and Hall to an administrative appeal of their involuntary transfers.
We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Hall was hired as a peace officer for the Los Angeles Police Department (LAPD)
in 1985 and was promoted to lieutenant in March 2003. On or about March 2008, she
was assigned to the Robbery/Homicide Division, where she served as the officer in
charge of the sexual assault section. In October 2010, Hall’s supervisor issued a
comment sheet criticizing her counseling, communication, and management skills toward
her subordinate employees. She received a negative standard based assessment in April
2011. During this time, Hall’s supervisors communicated with Hall about their concerns,
but there was “no satisfactory resolution.” David R. Doan, the chief of detectives in
charge of the Robbery/Homicide Division at the time, decided that “Hall’s skills as a
supervisor were not a good match for [the Robbery/Homicide Division’s] Sexual Assault
1
Subsequent statutory references are to the Government Code, unless otherwise
indicated.
2
Respondents are City of Los Angeles and Charles Beck, Chief of Police of the
City of Los Angeles.
2
Section.” It was determined, after discussing the matter with Hall’s supervisors, that
“either Lieutenant Hall had to make significant changes to her interpersonal skills or a
3
significant number of her subordinates would leave the section.” Doan and Hall’s
supervisors decided to transfer her to the Juvenile Division to “give [Hall] a fresh start in
an environment better suited to her skills” and because it served the “best interests of the
Department.” Hall retained her rank and pay as a lieutenant. She was denied an
administrative appeal of the transfer under section 3304, subdivision (b). According to
Doan, the morale and performance of the sexual assault section improved; Hall’s
supervisor at the Juvenile Division stated Hall had been a “good addition” to the division
and had been performing her duties satisfactorily. However, Hall claims that, as a result
of the transfer, she has not been able to work as many overtime hours and is no longer
entitled to a department-issued take-home vehicle, which was available at her prior
assignment. She also stated her opinion that her “stigmatizing involuntary transfer” and
the “practice of not promoting Lieutenants assigned to Juvenile Division to Captains”
will adversely affect her future promotional opportunities.
Chu was hired as a peace officer in 1985 and was assigned to the Rampart
Division as a detective in March 2000. In December 2010, he was administratively
charged with three counts: creating a hostile work environment by sexually harassing a
coworker, inappropriately touching her, and making “inappropriate remarks of a sexual
nature.” He was temporarily relieved from duty effective January 2011 pending a
hearing and decision on the charges. In May 2011, after a hearing, the board of rights
found Chu not guilty of the first two counts but found him guilty on the third count.
After receiving an official reprimand, Chu was restored to his position as detective in the
Rampart Division. Chu was again relieved from duty in June 2011 when another
complaint alleging sexual harassment and inappropriate communications was lodged
3
In his declaration, Doan clarified that Hall’s inability to tailor her supervisory style
to the sexual assault section was not misconduct, “any more than is separating two
partners who do not perform as well when they work together as when they work with
others.”
3
against him. Because the complainant refused to cooperate, the LAPD closed the file and
did not seek further disciplinary proceedings. Steven Ruiz, Chu’s commanding officer at
the time, stated in his declaration that during Chu’s pending board actions, many of the
Rampart employees learned of the allegations against Chu. This resulted in what Ruiz
perceived to be “damaged relationships with co-workers and reduced [Chu’s]
effectiveness in working at Rampart.” Ruiz discussed the matter with Lieutenant
Losorelli, Chu’s superior, and they agreed it would be in the “best interests of Detective
Chu and the Department” to transfer Chu to another division, where he would be afforded
a “fresh start with new co-workers.” The transfer, according to Ruiz, was not intended as
punishment for Chu’s alleged misconduct. Chu was permitted to choose the division to
which he wished to be transferred. He requested an administrative appeal pursuant to
section 3304, subdivision (b), but the request was denied. Chu claims that, as a result of
his transfer, he was monitored by the LAPD risk management executive committee
(RMEC), placed on restrictive duty status, which prohibited him from carrying a gun, and
suffered from a damaged reputation within the LAPD.
Appellants filed a petition for writ of mandate and a complaint for declaratory
relief on behalf of Chu, Hall, and all officers belonging to the League. The trial court
denied the petition and denied declaratory relief. It found that “[a]n officer’s contention
that a transfer is punitive is insufficient by itself to warrant an administrative appeal
hearing.” The trial court also found Chu’s and Hall’s transfers were imposed for
purposes other than punishment and would not lead to adverse employment
consequences.
This timely appeal followed.
DISCUSSION
I
“In a petition for writ of mandate brought pursuant to Code of Civil Procedure
section 1085, . . . the petitioner bears the burden of pleading and proving the facts on
which the claim for relief is based. [Citations.]” (California Correctional Peace Officers
Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1153.) In reviewing the trial court’s
4
ruling on a writ of mandate, we ordinarily are confined to an inquiry of whether the
findings and judgment of the trial court are supported by substantial evidence. (Saathoff
v. City of San Diego (1995) 35 Cal.App.4th 697, 700.) In doing so, we view the evidence
in the light most favorable to the prevailing party. (Orange County Employees Assn. v.
County of Orange (1988) 205 Cal.App.3d 1289, 1293.) We do not substitute our
deductions for those made by the trial court. (Id. at p. 1294.) Any issue of statutory
interpretation or question of law when the facts are undisputed is reviewed de novo.
(Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 619; Saathoff v.
City of San Diego, supra, at p. 700.)
II
POBRA was enacted to “maintain stable employer-employee relations and thereby
assure effective law enforcement. [Citation.]” (Lybarger v. City of Los Angeles (1985)
40 Cal.3d 822, 826; § 3301.) One of the rights afforded to a public safety officer is the
right to an administrative appeal of any punitive action or denial of promotion on grounds
other than merit. (§ 3304, subd. (b).) Punitive 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, italics added.)
Appellants argue an administrative appeal must be provided to the League’s
represented employees under section 3304, subdivision (b) when an employee contends
an involuntary transfer was imposed for purposes of punishment, even without evidence
to support the contention. They assert that public policy favors the exhaustion of
administrative remedies before seeking court intervention because it “bolster[s]
administrative autonomy,” “permit[s] the agency to resolve factual issues,” “mitigat[es]
damages,” and “promot[es] judicial economy.” (Grant v. Comp USA, Inc. (2003)
109 Cal.App.4th 637, 644.)
Appellants’ proposition is not supported by case law. In White v. County of
Sacramento (1982) 31 Cal.3d 676, 681-682 (White), the Supreme Court stated that a
transfer is “the only personnel action listed in section 3303 which is not intrinsically
disadvantageous to an officer. Each of the other personnel actions . . . by definition result
5
in disadvantage, loss or hardship. They are by nature penalties . . . . [But a] transfer need
not be.” Recognizing this, courts have required employees to show some evidence that
their transfers were imposed for punishment purposes. (See, e.g., Benach v. County of
Los Angeles (2007) 149 Cal.App.4th 836, 843-845 (Benach) [affirming summary
adjudication in favor of LAPD because “[t]he record . . . reveal[ed] the transfer was not
imposed for a punitive purpose”]; Orange County Employees Assn. v. County of Orange,
supra, 205 Cal.App.3d at pp. 1293-1295 [noting “several undisputed facts” leading to
inference that transfer was not punitive and agreeing with trial court’s assessment that
there was no satisfactory showing of a punitive transfer by petitioner].) Accepting
appellants’ argument would improperly shift the focus from evaluating the agency’s
actual motivation in ordering the transfer to what the employee believes to be the
agency’s motivation for the transfer. (See Otto v. Los Angeles Unified School Dist.
(2001) 89 Cal.App.4th 985, 996 [distinguishing transfers from other forms of punitive
action under section 3303 because inquiry must be made into agency’s motivation for
initiating transfer].)
Besides reading the specific requirement that the transfer be for punishment
purposes out of the statute, appellants’ position would seriously hobble administrative
discretion to transfer employees to fit the needs of the LAPD. POBRA was enacted to
“assure that stable relations are continued throughout the state” and “to further assure that
effective services are provided to all people of the state.” (§ 3301.) Those purposes
would be frustrated if an administrative appeal could be taken as a matter of right based
on nothing more than the employee’s subjective belief that a transfer was made for
purposes of punishment.
The trial court was correct in denying appellants’ request for declaratory relief and
petition for writ of mandate on this theory.
III
Appellants also argue Hall and Chu were entitled to an administrative appeal
under section 3304, subdivision (b) because their transfers were “precipitated by alleged
deficient performance and/or alleged improper conduct.” As we have discussed, to be
6
considered punitive in nature, a transfer must be “for purposes of punishment.” (§ 3303.)
An agency may have many reasons, quite apart from punishment, for transferring an
employee who is not performing at a satisfactory level in his or her particular assignment.
Courts have noted the difference between a transfer to punish deficient performance and
to compensate for the deficient performance. (See, e.g., Benach, supra, 149 Cal.App.4th
at pp. 844-845; Orange County Employees Assn. v. County of Orange, supra, 205
Cal.App.3d at p. 1294.) Appellants argue, and we agree, that the court must “[l]ook[]
through form to substance” in determining the agency’s motivation in initiating an
involuntary transfer. (Heyenga v. City of San Diego (1979) 94 Cal.App.3d 756, 759
(Heyenga).) However, where there is no indication that the agency intends to punish the
employee through a transfer, we cannot deem the transfer punitive solely because it was
aimed at addressing an employee’s performance in a particular assignment.
Appellants rely on Heyenga for the proposition that the court must “look beyond
labels” provided by the respondents in ascertaining their motive for the transfers. In
Heyenga, two off-duty officers became involved in an incident at a local pub and, as a
result, they were ordered to be transferred to from the northern division to the central
division. (Ibid.) In arguing the transfers constituted punitive action, they submitted thirty
affidavits by officers in the northern division providing strong circumstantial evidence
that the transfers were ordered as punishment. (Ibid.) They stated that no patrolman had
been involuntarily transferred from the northern division, and that the officers’ transfers
did not follow the standard transfer procedures of the department. (Ibid.) The
department denied that the transfers were imposed for a punitive purpose. (Id. at p. 759.)
Despite the department’s denial, the court found that, “[l]ooking through form to
substance,” the officers made a showing that the transfers were ordered for purposes of
punishment.
By presenting the affidavits of thirty officers suggesting the punitive nature of the
transfers, appellants in Heyenga made an evidentiary showing. In this case, though
bearing the burden of proof, appellants made no such showing. They submitted only
their declarations recounting the events leading to their transfers and opined that the
7
transfers were punitive. Unlike the appellants in Heyenga, they provided no evidence of
any LAPD policy which would support their contention that the transfers were imposed
for purposes of punishment.
Respondents, on the other hand, presented substantial evidence that the transfers
were made to give Hall and Chu a fresh start. Doan, in his declaration, described the
difficulties Hall was experiencing in effectively managing her subordinates. The
situation escalated to the point that “a significant number of her subordinates” would
leave the section unless Hall could improve her management skills. Hall’s supervisors
made an effort to address these concerns, to no avail. After concluding that Hall’s
supervisory style was not a “good match” for the Robbery/Homicide Division’s Sexual
Assault Section, a decision was made to transfer her to another assignment to give her a
“fresh start in an environment better suited to her skills.” This appears to have been the
proper decision, since Hall’s supervisor at her new assignment stated Hall has been a
“good addition” to the Juvenile Division and “has performed her duties satisfactorily.”
Finally, Doan noted “the Chief of Police may and often does transfer officers to
assignments other than those they may prefer based on his belief that the transfer serves
the best interests of the Department.” There was substantial evidence to support the trial
court’s finding that the LAPD’s decision to transfer Hall was not for the purposes of
punishment.
Chu contends he was transferred “as the consequence of the filing of two (2)
personnel complaints against [him] arising from his co-workers alleging sexual
harassment/hostile work environment.” This mischaracterizes the evidence. While
charges of sexual harassment were pending against Chu, many of his coworkers at the
Rampart Division discovered the nature of the allegations. The discovery of these
allegations, regardless of their outcome, resulted in “damaged relationships” and
“reduced [Chu’s] effectiveness in working at Rampart.” According to Ruiz, this was the
reason for Chu’s transfer: to provide Chu with a “fresh start with new co-workers.” The
transfer was “definitely not for the purpose of punishing Chu for his alleged misconduct.”
There was substantial evidence for the trial court to conclude Chu’s transfer was not for
8
purposes of punishment.
IV
Appellants also argue that Hall’s and Chu’s transfers constitute punitive actions
under section 3303 because the transfers led or may lead to adverse employment
consequences. Specifically, Hall alleges a reduction in her salary occurred as a result of
her transfer to the Juvenile Division, and Chu alleges his transfer resulted in his
placement on restrictive duty status, monitoring by the RMEC, and damage to his
reputation. Appellants also allege a loss in future promotional opportunities as a result of
their transfers.
A. Hall’s Diminished Overtime Hours and Loss of Take-Home Vehicle
Hall argues she is working 175 fewer overtime hours per year as a result of her
transfer, which constitutes per se punitive action as a “‘reduction[] in salary’” under
section 3303. (White, supra, 31 Cal.3d at p. 683.) Hall did not show she was entitled to
any particular amount of overtime hours at the Robbery/Homicide Division. (Cf.
4
Benach, supra, 149 Cal.App.4th at p. 844, fn. 4.) The evidence indicates otherwise.
Francois Gardere, police administrator for the LAPD and commanding officer of the
personnel division, stated in his declaration that “[o]vertime pay is not guaranteed for any
Lieutenant assignment, especially during the past few years, when the Department has
placed stringent limits on working overtime.” Doan also noted “there is no guarantee of
overtime to Lieutenants” and he encourages captains to limit lieutenant overtime to
“those that [are] critical to the needs of the Department.” Substantial evidence supports
the conclusion that Hall’s diminished overtime hours did not result in a reduction in her
salary.
4
It is true, as the appellants contend, that Benach did not hold that, as a matter of
law, loss of overtime hours cannot provide the basis for a loss of pay as a result of a
transfer. But the burden of proof lies with the appellants. (California Correctional
Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th at p. 1153-1154.) Without
proof that Hall was entitled to the overtime hours she received at the Robbery/Homicide
Division, she cannot prevail on the claim that her transfer resulted in a reduction in
salary.
9
Hall also argues a reduction in salary occurred because she previously had the use
of a take-home vehicle for commuting purposes at the Robbery/Homicide Division, and a
vehicle was not available at the Juvenile Division. But Hall’s contention is not supported
by the record. Absent evidence to the contrary, we presume the vehicle was issued to
Hall as reasonably necessary to performing her duties as a lieutenant in the
Robbery/Homicide Division, and a corresponding need did not exist at the Juvenile
Division. Moreover, there is nothing in the record indicating that Hall was entitled to a
department-issued take-home vehicle at the Robbery/Homicide Division. Since no
evidence indicates Hall’s “loss” of the take-home vehicle resulted in a reduction in her
salary, she cannot prevail on this claim.
B. Other Adverse Employment Consequences
Chu and Hall also claim that their transfers constituted punitive action because
various adverse employment consequences may flow from them. First, they argue their
transfers may result in a loss of promotional opportunities. Chu also claims his transfer
resulted in his placement on restrictive duty status, monitoring by the RMEC, and
damage to his reputation.
The plain language of section 3303, however, specifically identifies the types of
negative employment consequences that fall within the definition of punitive action.
(§ 3303 [“[P]unitive action means any action that may lead to dismissal, demotion,
suspension, reduction in salary, written reprimand, or transfer for purposes of
punishment.”].) The possible consequences alleged by the appellants are not reflected on
this list. To support a broader reading of the statute, appellants point to Hopson v. City of
Los Angeles (1983) 139 Cal.App.3d 347 (Hopson) and Caloca v. County of San Diego
(1999) 72 Cal.App.4th 1209, 1223 (Caloca), as holding that an agency’s action which
may lead to any “adverse employment consequences” is a punitive action under POBRA.
(Caloca, at p. 1223.)
In Hopson, LAPD officers were involved in a shooting which resulted in a civilian
death. (Hopson, supra, 139 Cal.App.3d at p. 349.) A series of public hearings were
conducted and the Board of Commissioners issued a report concluding the officers
10
violated LAPD policy. (Id. at p. 350.) Recognizing that the chief of police had
previously determined that no discipline should be imposed on the officers, the report did
not recommend instituting disciplinary proceedings. (Id. at pp. 351-352.) It did,
however, instruct that a copy of the report should be placed in each officer’s personnel
file. (Id. at p. 352.) The officers argued that because the proposed entry of the report in
their personnel files was punitive, they were entitled to an administrative appeal. (Id. at
p. 349.) The chief of police testified that the placement of the report in the officers’
personnel files would have “ramifications for the[ir] career opportunities.” (Id. at p.
352.) Noting this was a “significant feature[]” in support of our conclusion, we held the
appellants were entitled to an opportunity for administrative appeal. (Id. at p. 353.) On
review, we found this reasoning “consistent with the mandate of White v. County of
Sacramento . . . , since placing this Report into the personnel files will result in
disadvantage, harm, loss or hardship.” (Id. at p. 354.)
In Caloca, a citizens’ review board issued reports concerning allegations of
misconduct against several deputy sheriffs. (Caloca, supra, 72 Cal.App.4th at p. 1215.)
The reports sustained acts of misconduct by the deputies and made “general
recommendations for policy changes to the sheriff’s department” but were “silent as to
recommendations of discipline.” (Id. at p. 1216.) An independent investigation was
conducted by the sheriff’s department, finding no misconduct by any of the deputies.
(Ibid.) The deputies sought an administrative appeal, arguing the report issued by the
citizens’ review board constituted punitive action. (Id. at p. 1220.) There was evidence
that “the department’s promotion process [was] extremely competitive, and a single
blemish on a deputy’s career [could] prevent him or her from advancing in the
department.” (Ibid.) Further, appellants provided evidence that a report of this nature
would be given consideration in personnel decisions and “could have an ‘adverse impact’
on an officer’s career.” (Id. at p. 1221.) Noting that the report was an action “which may
lead to adverse employment consequences,” the court determined it was a punitive action
within the meaning of the statute. (Id. at p. 1223.)
Hopson and Caloca do not control the case before us. Hopson and Caloca, as well
11
as the cases relying on them, involve written documentation, akin to written reprimands,
criticizing misbehavior or warning that such behavior will lead to future disciplinary
action. (E.g., Otto v. Los Angeles Unified School Dist., supra, 89 Cal.App.4th 985;
Gordon v. Horsley (2001) 86 Cal.App.4th 336.) To the extent Hopson or Caloca may be
read to hold that transfers that may—i.e., could—lead to any “adverse career
consequences” are punitive actions, we disagree. In order for an employment action to be
considered punitive under section 3303, the negative employment consequence must be
one specified in the statute; in the case of a transfer, there must be a showing that it was
made for purposes of punishment. The record in this case shows appellants did not meet
this standard.
Even if Hopson and Caloca did control the case before us, appellants presented
insufficient evidence to prove that Hall’s and Chu’s transfers would lead to adverse
employment consequences.
1. Loss of Promotional Opportunities
Hall and Chu pointed to evidence in their declarations to show their transfers may
lead to a loss of promotional opportunities. The trial court was not persuaded, and we
find substantial evidence to support the finding.
Hall submitted a declaration stating her opinion that, “based upon [her] years at
LAPD,” her “stigmatizing involuntary transfer” and the “practice of not promoting
Lieutenants assigned to Juvenile Division to Captains” has and will impact her
promotional opportunities. She also said she has been on the promotion list for captain
but has not yet been promoted. It is her “belief” that her involuntary transfer “prejudiced
[her] promotion.” She did not submit independent evidence to support her claim. In
response to her declaration, Gardere stated, “at least five more candidates must be
certified as eligible for promotion on each promotional list than there are vacant positions
for that rank.” This means a lieutenant’s placement on a promotional list does not
guarantee a promotion; thus, the fact that Hall had not been promoted from the list is not
proof that her transfer prejudiced her ability to be promoted. Gardere also noted the
“failure to be selected for promotion from one list is not necessarily a negative reflection
12
on that officer.” Gardere and Fabian Lizzaraga, the commanding officer of the Juvenile
Division and Hall’s supervisor at her new assignment, also stated that they are unaware
of the existence of any practice that prevented Juvenile Division lieutenants from being
promoted. Therefore, there was nothing to suggest that Hall’s transfer to the Juvenile
Division would hinder her ability to be promoted. As to Hall’s and Chu’s general
assertion that a transfer would be looked upon negatively in future promotional
assessments, Gardere stated, “Many officers have been involuntarily transferred to other
assignments within the Department without any apparent prejudice to their ability to
promote. That is, some officers who have been so transferred have been promoted at a
later time.” Ruiz, Chu’s commanding officer at the time, also stated, “I do not believe
that an involuntary transfer necessarily has any negative impact on an officer’s
promotional opportunities. Many LAPD officers have been involuntarily transferred and
many of those so transferred have later been promoted.”
We cannot assume, based only upon appellants’ speculative evidence, that Hall’s
and Chu’s transfers may lead to a loss of future promotional opportunities. Appellants in
Hopson and Caloca offered affirmative evidence to suggest the reports, containing
findings of misconduct, might have an adverse impact on appellants’ promotional
opportunities in the future. (Caloca, supra, 72 Cal.App.4th at pp. 1220-1221 [head of the
human resource services bureau stated that “findings of misconduct . . . would be given
consideration in personnel decisions”]; Hopson, supra, 139 Cal.App.3d at p. 352 [chief of
police testified “there would be ramifications for the career opportunities of the officers”
if the report at issue was placed in their personnel files].) Hall and Chu made no such
showing.
2. Chu’s Monitoring, Placement on Restrictive Duty Status, and
Damage to Reputation
In their opening brief, appellants claim it was “undisputed” that it was Chu’s
transfer that led to his monitoring by the RMEC, his placement on restrictive duty status,
and damage to his reputation within the LAPD. There is, however, nothing in the record
to indicate it was his transfer that precipitated these events. The trial court found that
13
“[i]t is far more likely that these consequences flowed from his guilty plea to making
inappropriate sexual remarks . . . , not his job transfer.” It is undisputed that Chu was
found guilty of one count of making inappropriate sexual remarks to a coworker, and that
his coworkers and supervisors knew of the allegations against him. There was no
evidence presented to create a causal link between Chu’s transfer and the negative
consequences alleged, and we agree with the trial court that the argument is “pure
speculation.” Further, Ruiz refuted the claim that the transfer is what damaged Chu’s
reputation, stating he did not “believe that Department employees generally view an
involuntary transfer alone in a negative light.” Doan’s declaration added that “not all
involuntary transfers are ‘stigmatizing,’” leading to a reasonable inference that the
transfer alone was not the reason for Chu’s monitoring by the RMEC and his placement
on restrictive duty status. (See generally White, supra, 31 Cal.3d at pp. 682-683.) There
was substantial evidence for the trial court to conclude Chu’s transfer did not lead to the
5
alleged adverse employment consequences.
V
Appellants also contend they are entitled to a writ of mandate compelling
respondents to perform their contractual duty, under Article 9.1 of the MOU between the
League and City, to provide administrative appeals to Hall, Chu, and those similarly
situated to them. The relevant provision of the MOU contains identical language to
section 3304, subdivision (b): a Department-initiated “transfer for purposes of
punishment” entitles the employee to an administrative appeal. We agree with
respondents that the right afforded to the employees is no greater than the right to an
administrative appeal under section 3304, subdivision (b). Thus, our analysis under
Article 9.1 of the MOU does not differ from our analysis under the statute. Appellants
cite to no authority compelling us to hold otherwise. The trial court properly denied
5
Because we hold respondents have not violated any provision of POBRA, we do
not reach appellants’ claim for damages under section 3309.5, subdivision (e).
14
6
appellants’ petition for writ of mandate and request for declaratory relief.
VI
Appellants contend their transfers violate their due process rights. They claim
Chu’s transfer was “repugnant to due process” because his transfer was precipitated by
his coworkers’ awareness of the charges against him and he was not given an opportunity
to “clear his name.” As to Hall, appellants argue the LAPD “tainted [Hall’s] leadership
record” without providing her an opportunity to prove otherwise.
An “interest in reputation alone is not a constitutionally protected liberty interest.”
(Murden v. County of Sacramento (1984) 160 Cal.App.3d 302, 308.) Even “serious
damage to reputation alone is insufficient to constitute deprivation of a constitutionally
protected liberty or property interest.” (Caloca, supra, 72 Cal.App.4th at p. 1218.)
However, when the government infringes upon a protected interest, such as employment,
due process requires an opportunity to refute the charge. (Ibid.) In Caloca, sheriff’s
deputies claimed that a citizen review board’s findings of serious misconduct caused
them to suffer reputational damage, thereby impairing their ability to advance within the
law enforcement profession. (Id. at pp. 1217-1218.) The court rejected this claim.
(Ibid.) While recognizing negative reports may cause the deputies some future harm,
such as loss of a promotion, the court required the deputies show a “present impairment”
and “actual loss” aside from reputational damage in order to raise a due process
argument. (Id. at pp. 1218-1220.)
Similarly, neither Hall’s nor Chu’s transfer resulted in cognizable “actual loss.”
To the extent Hall’s reduced overtime hours and lack of a take-home vehicle would be
considered a “loss,” appellants have not presented sufficient evidence to show her
6
Appellants claim the trial court erroneously construed the plain language of
Article 9.1 of the MOU so as to limit the opportunity to appeal to only those transfers
which are “actually” punitive. However, the trial court correctly noted that the MOU
“track[ed]” the statute and applied identical reasoning to the two claims. Furthermore,
the trial court corrected itself in a subsequent hearing by stating “actual punishment and
any action which may lead to punishment . . . both warrant an administrative appeal
hearing.”
15
entitlement to those benefits in the first place. As to the negative employment actions
taken against Chu, he has failed to prove they were the direct result of his transfer.
Hall’s and Chu’s transfers did not violate due process.
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal.
CERTIFIED FOR PUBLICATION.
EPSTEIN, P. J.
We concur:
MANELLA, J.
COLLINS, J.
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