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Guinn v. County of San Bernardino

May 17, 2010


APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco, Judge. Affirmed in part; reversed in part with directions. (Super.Ct.No. SCVSS147871)

The opinion of the court was delivered by: McKinster Acting P.J.




Plaintiffs Harold Guinn and the San Bernardino County Safety Employees' Benefit Association appeal a judgment denying their petition for writ of mandate and complaint for declaratory relief. In their petition, they alleged that Guinn, who is a sworn peace officer employed by the county's probation department and a public safety officer within the meaning of the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq., hereafter sometimes referred to as the Act), was entitled to an administrative appeal to contest his demotion from a supervisory position during a "promotional" probationary period.*fn1 In the alternative, they sought declaratory relief as to the parties' rights and responsibilities under the Act. The trial court denied the petition and the complaint for declaratory relief, and judgment was entered for the county.

The principal issue raised in this appeal is whether Government Code section 3304, subdivision (b) (hereafter section 3304(b); all further statutory citations refer to the Government Code unless another code is specified) mandates an administrative hearing under the circumstances of this case. We conclude that it does not. Accordingly, we affirm the judgment denying the petition for writ of mandate. However, we will reverse the judgment denying the request for declaratory relief.


The following facts appear to be undisputed: Guinn, a permanent employee employed as a probation corrections officer, had been promoted to a probation supervisor in May 2005, subject to a nine-month period of probation, as provided for in the county's personnel rules applicable to his position. His probationary period was extended by three months following unsatisfactory performance reviews. In May 2006, his probation was terminated and he was demoted to his previous position because of unsatisfactory performance in the supervisory position. Guinn was never offered any formal hearing.



Section 3304(b) provides, "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(b), emphasis added.) Plaintiffs contend that as used in section 3304(b), "the probationary period" refers solely to the probationary period imposed at the time of hiring, and does not refer to any probationary period imposed as a condition of promotion. They contend that because Guinn had successfully passed his initial probationary period, he was entitled to an administrative hearing upon what they refer to as his "demotion." They contend that any action which results in a "demotion" or a reduction in salary constitutes punitive action for purposes of section 3304(b). The county appears to accept this premise; it does not argue to the contrary. We conclude, however, that plaintiffs' premise is faulty: Guinn was not demoted; rather, he was denied promotion because his performance during his probationary period was unsatisfactory. Consequently, as we discuss below, he was not entitled to an administrative appeal.

This is a question of statutory interpretation, which we decide de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) In interpreting statutes, we follow the Legislature's intent, as exhibited by the plain meaning of the actual words of the law. (People v. Loeun (1997) 17 Cal.4th 1, 9.) Where 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.) If the language does not clearly express the Legislature's intent, we must interpret the statutory language in the context of any statutory scheme of which it is a part. We must also construe similar statutes, "i.e., those in pari materia, to 'achieve a uniform and consistent legislative purpose.' [Citations.]" (Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 200.)

Denial of promotion is not a punitive action within the meaning of section 3304(b). That section provides that "[n]o punitive action, nor denial of promotion on grounds other than merit" may be undertaken without an administrative appeal. Section 3303 defines "punitive action" as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment." Notably, denial of promotion on grounds related to merit is not included in that definition. In Swift v. County of Placer (1984) 153 Cal.App.3d 209 (Swift), the court noted that in the State Civil Service Act (§ 18500 et seq.), "rejection during probation" is treated as a "discrete variety of personnel action" which is not punitive in nature. (Swift, at p. 216; see § 19173.) The State Civil Service Act is recognized as an analogous or parallel statutory scheme which is "particularly germane" to questions of interpretation of the Public Safety Officers Bill of Rights Act. (White v. County of Sacramento (1982) 31 Cal.3d 676, 682 (White); see Swift, at p. 217, fn. 7.) Accordingly, the court in Swift concluded that the absence of "rejection during probation" from the types of personnel actions listed as "punitive" in section 3303 "strongly suggests" that the right to an administrative appeal provided by section 3304(b) does not apply to a public safety officer who is rejected on grounds of merit during his or her initial probationary period. (Swift, at pp. 216-217.) We agree, and based on the same reasoning, we conclude that a denial of promotion which is based on merit, i.e., on the employee's poor performance on probation, is not a punitive action which requires a hearing.

Plaintiffs rely on Henneberque v. City of Culver City (1983) 147 Cal.App.3d 250 (Henneberque), for the premise that returning a permanent employee to his previous position for inadequate performance during a promotional probationary period does constitute punitive action within the meaning of the Act. There, the court held that what it called a "demotion," with a concomitant reduction in pay, during a period of probation imposed as a condition of promotion (sometimes referred to as "promotional probation") is necessarily a punitive action. (Henneberque, at p. 254.) In reaching that conclusion, the court relied on White, supra, 31 Cal.3d 676. (Henneberque, at p. 254.) In White, however, the officer was not denied a promotion, or "demoted," during a period of promotional probation. Rather, the officer, a permanent, non-probationary employee, was reassigned to a lower-paying position on the basis of deficient performance. (White, at pp. 678-679.) The California Supreme Court held that a demotion in rank or a reduction in salary is per se a punitive action within the meaning of sections 3303 and 3304(b). (White, at pp. 683-684.) Because White was not on probation, however, the court did not address the question whether an administrative appeal is required when an employee is denied a promotion based on poor performance during the ...

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