Blanco v. McLaughlin

Filed 9/29/06 Blanco v. McLaughlin CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

California Highway Patrol (CHP) officer Edward Blanco received a memorandum from a superior officer stating he had been observed participating in a Hell’s Angels sponsored event. The memorandum warned that the CHP might seek to impose discipline if he were to engage in similar activities in the future. Blanco claimed he was entitled to an administrative appeal and filed a petition for a writ of mandate in the trial court directing the CHP to afford him such an appeal to challenge the memorandum. The trial court granted the petition, finding that Blanco was entitled to an evidentiary hearing before a neutral finder of fact.

In this appeal, the CHP and Blanco’s superior officer, Lieutenant Charles McLaughlin (collectively, appellants), seek to overturn the trial court’s judgment, arguing that the memorandum did not constitute “punitive action“ affording Blanco the right to seek an administrative appeal. We agree and, accordingly, reverse the judgment.

Factual and Procedural Background

Blanco has been a CHP officer since 1991. On July 6, 2004, Blanco’s superior officer, Lieutenant Charles McLaughlin, presented him with a “memorandum of direction“ entitled “Inconsistent and Incompatible Activities--Association with Hell’s Angels Motorcycle Club.” McLaughlin authored the memorandum of direction, which recounted that on June 27, 2004, an estimated 230 motorcyclists participated in a Hell’s Angels sponsored “Poker Run” event designed to raise defense funds for suspects being tried for the murder of a rival motorcycle gang member. About 25 to 30 full members wearing colors of the Hell’s Angels participated. McLaughlin wrote that he and about 15 other CHP personnel who were monitoring the event saw Blanco dressed in leather riding gear standing next to his motorcycle in front of a bar where the event concluded. According to McLaughlin, Blanco had “obviously participated“ in the event.

The memorandum of direction informed Blanco that CHP guidelines direct employees to avoid “any association with groups or individuals that might impair their independence as peace officers, cause a conflict of interest, or bring embarrassment to the Department.” Blanco was advised that “participation and association with any event sponsored by any known individual or criminal organization, such as the Hell’s Angles [sic], is incompatible with your employment as an officer with the California Highway Patrol. Your association with such an organization reflects extremely poor judgment and will not be allowed or tolerated by this Department.”

The memorandum of direction cautioned Blanco that “[a]ny further association may be cause for administrative action being taken against you.” It further warned: “Your conduct on this occasion was unacceptable and will not be tolerated by this Department. If you engage in similar conduct in the future, progressive discipline may be utilized and kept on file so the Department may take Adverse Action against you based on the incident cited in this documentation as well as any future incidents.” McLaughlin concluded the memorandum of direction by expressing hope “that the actions described in this memorandum will negate the need to take more formal action against you.”

McLaughlin advised Blanco that his only recourse if he wished to contest the memorandum of direction was to file a rebuttal within 30 days. Blanco was also instructed that his commander, Captain Morehen, wanted to see him. Blanco met with Morehen, who later memorialized their meeting in a September 27, 2004, memorandum. Morehen wrote that he had discussed the memorandum of direction with Blanco, and he indicated that the “substance of the memo was to provide guidance to [Blanco] with respect to the Department’s policy on Inconsistent and Incompatible Activities.”

Blanco submitted a rebuttal, which stated in essence that he and his wife were out riding their motorcycle when they saw the Hell’s Angels Poker Ride group in Point Reyes. He stated that they waited for the Poker Ride group to leave Point Reyes before continuing on to Tomales, where they again encountered the group near the bar where the event concluded. Blanco claimed he was not a participant in the Poker Ride event, was not dressed in leather riding gear, did not associate in any way with any Hell’s Angels club member, and did not identify himself as a CHP officer during his encounters with the Poker Ride group. Captain Morehen’s September 2004 memorandum confirms that the CHP received Blanco’s rebuttal and placed it in his file.

Blanco retained his present counsel, who sent a letter to various officials within the CHP indicating that Blanco wished to proceed with an immediate administrative appeal of the memorandum of direction. According to Blanco’s counsel, none of the letter’s recipients responded. Blanco thereafter filed a petition in the Marin County Superior Court seeking a writ of mandate directing the CHP to convene an administrative appeal before a neutral fact-finder. Lieutenant McLaughlin and the CHP were named as respondent and real party in interest, respectively, in the petition. Blanco alleged that the memorandum of direction was part of his personnel file and affected his employment in a negative fashion. He also asserted the memorandum of direction is a “first strike“ that may be used against him should further issues arise, and he alleged it is subject to discovery based upon a Pitchess[1] motion.

There is no evidence in the record indicating that Blanco has been fired, suspended, transferred, or suffered a reduction in pay as a consequence of the memorandum of direction, and Blanco offered no evidence that the CHP has considered or may consider a memorandum of direction in future personnel decisions. According to the CHP’s Internal Affairs Commander, corrective interviews with supporting documentation, such as a memorandum of direction, are not considered adverse action.[2] A memorandum of direction does not affect an officer’s employment status or abridge the officer’s rights and privileges, and it is not filed with the State Personnel Board. A memorandum of direction is maintained for three years and is not provided to promotional interview panels. By its own terms, the memorandum of direction alone cannot serve as the basis for discipline--the documentation would only be used in connection with progressive discipline in the event of “future similar conduct.”

In opposition to the writ petition, appellants submitted declarations purporting to show that an officer who is the subject of a negative performance document, such as a memorandum of direction, not only has the right to file a rebuttal but also may utilize a meet and confer process established in a 1988 agreement between the California Association of Highway Patrolmen (CAHP) and the CHP. The meet and confer process allegedly allows officers to address their concerns with their commander. If an officer does not agree with the commander’s decision, the officer may then address the issue with the division commander. If still not satisfied, the officer may finally raise the issue at the commissioner’s level. Documentation submitted by the CHP indicates that the meet and confer process is intended to be between the officer’s CAHP representative and commanding officer; the affected officer may participate only at the commanding officer’s discretion.

Responding to appellants’ assertion that he could have pursued a meet and confer process to challenge the memorandum of direction, Blanco submitted a declaration from the person who acted as his CAHP representative in this matter. She claimed to be unaware of any meet and confer process applicable to memoranda of direction. She stated that after she requested that the memorandum of direction be removed from Blanco’s file, Captain Morehen responded by stating that the matter was closed and that the memorandum would remain in Blanco’s file. Captain Morehen never advised the CAHP representative that Blanco could appeal the memorandum of direction to a higher level. The CAHP representative reviewed the current Memorandum of Understanding as well as the Highway Patrol Manual and could not find any reference to the meet and confer process described by appellants. Blanco, as well as past and present CAHP representatives, submitted declarations to the effect they were unaware of a meet and confer process relating to memoranda of direction and that the only available recourse known to them was to file a rebuttal.

The trial court granted the petition for a writ of mandate, reasoning that the contents of the memorandum of direction show it was a “punitive action” triggering appeal rights. In support of this finding, the trial court relied exclusively on the memorandum of direction itself, which the court stated “ ‘[set] up a basis for future punitive action.’ “ The trial court also found that Blanco had provided substantial evidence that the CHP had no “customary agency practice” giving officers the right to request a hearing on a memorandum of direction. The court further found that any purported meet and confer process did not give an aggrieved officer the right to personally appear, present evidence, and argue his case. Although the court concluded that Blanco was entitled to a hearing, it found he was not entitled to all rights involved in a full evidentiary hearing because the memorandum of direction did not directly affect his pay or benefits. The court ruled that Blanco was entitled to a hearing before a neutral finder of fact at which he would be permitted to appear with counsel, present evidence, cross-examine witnesses, and set forth argument on his behalf. Appellants filed a timely notice of appeal from the trial court’s judgment.

Discussion

Appellants contend that the memorandum of direction issued to Blanco was not punitive and therefore did not trigger a right to an administrative appeal. Alternatively, appellants argue that even if the memorandum were considered punitive, the informal meet and confer process available to Blanco provided a sufficient degree of administrative review because he was allowed to appear, present evidence, and set forth arguments on his behalf.

Where the facts are undisputed, a de novo standard of review applies to an appeal from a trial court’s ruling on a petition for a writ of mandate. (Seligsohn v. Day (2004) 121 Cal.App.4th 518, 522.) Where the facts are in dispute, a substantial evidence standard of review applies. (See Otto v. Los Angeles Unified School Dist. (2001) 89 Cal.App.4th 985, 995 (Otto).) With respect to the availability and scope of an administrative appeal from a memorandum of direction, including whether and to what extent a meet and confer process was available to Blanco, the evidence was plainly in dispute. However, with regard to whether the memorandum of direction constituted punitive action, the evidence was largely undisputed. That evidence consisted of the memorandum of direction and a declaration from the CHP’s Internal Affairs Commander, who described the purpose and maintenance of such documentation. Blanco presented no evidence of his own concerning the use or effect of the memorandum of direction. Accordingly, because the relevant facts are undisputed, we employ the de novo standard of review in considering whether the memorandum of direction was a punitive action entitling Blanco to an administrative appeal. (See Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209, 1217 [appeal presents question of law where effect of challenged document is undisputed].)

Protection of peace officers from abusive or arbitrary treatment in their employment is the essence of the Public Safety Officers Procedural Bill of Rights Act (the “Act”), codified at sections 3300 to 3313 of the Government Code.[3] The Act sets forth “a catalogue of basic rights and protections” that a public entity must afford to all peace officers[4] it employs, reflecting a legislative determination that “the maintenance of stable employment relations between peace officers and their employers is a matter of statewide concern. [Citations.]” (Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1805.) One of these protections is the right to administratively appeal certain adverse employment actions. (Otto, supra, 89 Cal.App.4th at pp. 995-996.) The limited purpose of allowing an appeal is to give a peace officer who is subjected to punitive action an opportunity to establish a formal record of the underlying circumstances and to attempt to convince the employing agency to reverse its decision. (Binkley v. City of Long Beach, supra, 16 Cal.App.4th at p. 1806.)

The Act provides that peace officers must be afforded an opportunity to respond to negative comments placed in their personnel files. (See generally §§ 3305, 3306.) Thus, a peace officer has the right to read and acknowledge any comment adverse to the officer’s interest that is placed in the officer’s personnel file or any other file used for personnel purposes by the employer. (§ 3305.) An officer then has 30 days in which to submit a rebuttal, which remains in the personnel file along with the negative comment. (§ 3306.) An officer may also request, in writing, that any material mistakenly or unlawfully placed in the file be corrected or deleted. (§ 3306.5, subd. (c).)

The Act draws a distinction between adverse comments entered into a personnel file and “punitive action.” (Turturici v. City of Redwood City (1987) 190 Cal.App.3d 1447, 1450 (Turturici).) As to the former, the officer merely has the right to notice and to respond (§§ 3305, 3306), but as to the latter, an administrative appeal is mandated (§ 3304, subd. (b)). (Turturici, supra, 190 Cal.App.3d at p. 1450.) Specifically, the Act establishes that “[no] punitive action . . . shall be undertaken by any public agency against any public safety officer . . . without providing the public safety officer with an opportunity for administrative appeal.” (§ 3304, subd. (b).) 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.”

In Turturici, a peace officer protested negative comments in his performance appraisal and sought to compel his employer to provide him with an administrative appeal. (Turturici, supra, 190 Cal.App.3d at pp. 1448-1449.) In the appraisal, the officer’s superior criticized his performance and stated that if the officer failed to perform satisfactorily, disciplinary action could be taken possibly resulting in a reduction in pay or termination. (Id. at p. 1448.) The Court of Appeal held that the peace officer was not entitled to an administrative appeal, concluding that “ ‘punitive action’ does not include negative comments contained within a job performance evaluation.” (Id. at p. 1451.) The appellate court pointed out that the appraisal did not impose discipline or subject the officer to any punishment. (Id. at p. 1449.) Instead, the “performance appraisal merely recommend[ed] discipline as a future conditional event: if plaintiff’s performance does not improve.” (Id. at p. 1449.) “The object was not to impose punishment but to assist the employee in avoiding it.” (Id. at p. 1451.)

Likewise, the memorandum of direction here did not impose punishment but instead warned Blanco that discipline could result if he engaged in similar conduct in the future. The purpose of the memorandum was not to impose punishment but to assist Blanco in avoiding it.

The trial court distinguished Turturici, reasoning that a memorandum of direction is unlike a regularly scheduled employee evaluation. While it is certainly relevant whether a negative comment appears in a periodic evaluation (in which negative comments may be expected) or in a document arising from a specific event, we fail to see any meaningful distinction in this case. If the negative comments contained in the memorandum of direction had been transmitted to Blanco in a regularly scheduled evaluation, they would not have constituted punitive action under the analysis in Turturici. The mere fact those same comments were transmitted to Blanco in a memorandum triggered by a specific event does not, by itself, transform them into punitive action. The relevant inquiry is whether the comments may lead to the consequences listed in section 3303--dismissal, demotion, suspension, salary reduction, written reprimand, or transfer for purposes of punishment.

In Gordon v. Horsley (2001) 86 Cal.App.4th 336, 346-350 (Gordon), a panel of this court held that a letter written by a sheriff and placed in a deputy’s personnel file constituted punitive action affording the right to an administrative appeal. The court distinguished Turturici, writing that “this case does not involve a routine performance evaluation where negative comments may be expected.” (Gordon, supra, 86 Cal.App.4th at p. 350.) The mere fact the negative comments were contained in a letter instead of a periodic evaluation, however, was not the distinguishing feature of the case. Rather, the court concluded that the sheriff’s letter constituted punitive action because it was a “written reprimand” relating to an instance of misconduct that imposed “specific restrictions on the peace officer’s powers as a result of that misconduct.” (Ibid.) The letter not only criticized the officer but also removed privileges afforded to other peace officers, including being issued a duty firearm, the right to carry a concealed firearm, and the exercise of peace officer powers during off duty hours. (Id. at p. 342.) By contrast, in this case the memorandum of direction did not place any restrictions on Blanco’s rights or privileges as a peace officer. While he was admonished not to associate with members of the Hell’s Angels, such a restriction applies to all CHP officers.[5]

Blanco contends the memorandum of direction is a written reprimand related to a specific instance of misconduct. Under the Act, a written reprimand is per se punitive without regard to the motivation for the action. (White v. County of Sacramento (1982) 31 Cal.3d 676, 682-683; see also Gordon, supra, 86 Cal.App.4th at p. 347.) It is not the case, however, that all documents critical of an officer and placed in the officer’s personnel file are considered “written reprimands.” As the court noted in Gordon, a reprimand is a “severe or formal reproof,” with reproof defined to mean “criticism for a fault.” (Gordon, supra, 86 Cal.App.4th at p. 347 fn. 8.) Not every criticism for a fault is a reprimand; it must be “severe” or “formal.” In Gordon, the sheriff’s letter criticizing a deputy for off-duty behavior not only constituted a criticism for a fault, but it also carried with it negative consequences, including a restriction on the deputy’s privileges as a peace officer. (See id. at p. 348 [“the letter went beyond criticizing Gordon; it specifically removed privileges that are accorded other peace officers”].) Here, by contrast, the memorandum of direction itself had no negative consequences, which could result only if Blanco were to disregard CHP policy in the future and associate with members of the Hell’s Angels or similar groups. Thus, the consequence of the memorandum was not “severe.” Also, unlike a formal written reprimand, which is provided to promotional interview panels, a memorandum of direction is not provided to bodies such as the State Personnel Board or promotional interview panels. There is no evidence a memorandum of direction has any impact on advancement or salary opportunities. Given the limited distribution and function of the memorandum of direction, it is less like a “formal” reprimand and more akin to an internal performance evaluation known only to a select number of colleagues. (See Caloca v. County of San Diego, supra, 72 Cal.App.4th at p. 1222.)

Blanco relies on Otto, supra, 89 Cal.App.4th 985, for the proposition that the memorandum of direction is punitive action because it may “ ‘lead to future disciplinary action.’ “ The trial court, too, relied heavily on Otto, reasoning that because the memorandum of direction warned Blanco that engaging in future similar acts could lead to disciplinary action, it was “ ‘setting up a basis for future punitive action.’ “ Otto is distinguishable.

In Otto, two school district police officers petitioned for the right to administratively appeal written memoranda placed in their personnel files. (Otto, supra, 89 Cal.App.4th at pp. 987-988.) The challenged documents were “summary of conference” memoranda that documented meetings between an officer and the officer’s superior. (Id. at pp. 988, 991.) In the case of one of the officers, the summary of conference criticized the officer for failing to use the department’s voice mail tracking system properly and warned the officer that the “ ‘continued failure to do so . . . could lead to future disciplinary action.’ “ (Id. at p. 991.) While the summary of conference memorandum was not designated as a written reprimand, the appellate court nevertheless found that it came within the statutory definition of “punitive action” because it contained “adverse comments that may lead to punitive action” against the officer. (Id. at p. 998.) The court reasoned that “[t]he statute does not require a showing that an adverse employment consequence has occurred or is likely to occur. It is sufficient if the report’s issuance and delivery to officials ‘may lead’ to such consequences in the future. [Citation.]” (Id. at p. 997.)

Relying on Otto, Blanco argues that the memorandum of direction was punitive because it states on its face that it may lead to future disciplinary action. The argument ignores the fact that Blanco could suffer future disciplinary action only if he again violated departmental policy by associating with members of the Hell’s Angels or similar organizations. Thus, the memorandum of direction, by itself, could not be the basis for punitive action or other adverse employment consequences. By contrast, in Otto, the trial court heard evidence that the written summary of conference was actually a written reprimand in disguise that could serve as the basis for punitive action. More specifically, after the police officers’ union and the school district agreed to a binding arbitration procedure for officers to appeal written reprimands, the school district stopped using written reprimands and used “summaries of conference“ instead. (Otto, supra, 89 Cal.App.4th at p. 992.) Officers testified that the “summaries” were part of an officer’s permanent file and had been utilized for personnel decisions such as performance evaluations and determining discipline, lateral transfers, promotions, and transfers to specialized assignments. (Id. at pp. 992-993.) The summaries were also used to enhance discipline in unrelated matters and were provided to promotional boards. (Id. at p. 993.) Based in part on this evidence, the Court of Appeal in Otto concluded “[i]t is enough that the summary of conference ‘will be considered in future personnel decisions affecting [Otto] and may lead to punitive action.’ [Citation.]” (Id. at p. 998.)

The record here is devoid of evidence that the memorandum of direction has the effect of a formal written reprimand. On the contrary, the record establishes that the memorandum of direction does not have the potentially adverse consequences established by the evidence in Otto.[6] Blanco offered no evidence that the memorandum of direction is part of his permanent file or that such memoranda may be considered by the CHP in future personnel decisions. Thus, we have no reason to believe that the memorandum of direction “may lead” to adverse consequences.

This conclusion is unchanged by the memorandum of direction’s warning that Blanco may be the subject of progressive discipline “based on the incident“ cited in the memorandum as well as any future incidents. The warning is contingent on a future conditional event--Blanco must engage in such conduct in the future before any adverse action may be taken. Unlike the facts in Otto, there is no evidence that Blanco may suffer adverse employment consequences from the memorandum of direction without first being afforded a right to correct the record through an administrative appeal.[7]

Blanco also relies on Seligsohn v. Day, supra, 121 Cal.App.4th 518, for the proposition that an officer’s appeal rights are triggered by the entry of an adverse comment in an officer’s personnel file. Seligsohn is unhelpful to Blanco. There, the officers merely sought the rights under sections 3305 and 3306 to review and respond to negative comments--rights that Blanco exercised in this case by reviewing and filing a rebuttal to the memorandum of direction. (Seligsohn v. Day, supra, 121 Cal.App.4th at pp. 523, 531-532.) Seligsohn does not establish that adverse comments placed in an officer’s personnel file necessarily constitute punitive action entitling that officer to an administrative appeal.

We conclude that the memorandum of direction was not “punitive action“ under the Act and that Blanco is therefore not entitled to seek an administrative appeal. We do not suggest that a memorandum of direction may never constitute punitive action, but in light of the facts before the trial court here, there is no evidence to support a conclusion that Blanco may suffer any adverse consequences from the memorandum, which merely warned that Blanco could be disciplined if he engaged in similar conduct in the future. We need not reach the issue of whether Blanco was entitled to an evidentiary hearing before a neutral finder of fact.

Disposition

The judgment is reversed. The trial court is directed to enter a new and different judgment denying the petition for a writ of mandate. Appellants shall recover their costs on appeal.

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McGuiness, P.J.

We concur:

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Parrilli, J.

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Siggins, J.

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[1] Pitchess v. Superior Court (1974) 11 Cal.3d 531, superseded by statute as stated in City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 51. See also Pen. Code, §§ 832.7, 832.8; Evid. Code, §§ 1043, 1045.

[2] At the hearing before the trial court, Blanco’s counsel objected to the court’s consideration of issues raised by the CHP in a “supplemental memorandum of points and authorities,” which was filed along with the declaration from the CHP’s Internal Affairs Commander regarding the purpose and effect of a memorandum of direction. Blanco’s counsel claimed the documents were filed belatedly and in violation of the Code of Civil Procedure. Although the trial court did not expressly rule on Blanco’s objection at the hearing, it necessarily considered appellant’s supplemental filing because it is referenced in the court’s order granting the petition for a writ of mandate. On appeal, Blanco appears to concede that the trial court considered the declaration submitted by the CHP’s Internal Affairs Commander in reaching its decision. Blanco does not suggest that this court must disregard the declaration.

[3] All further statutory references are to the Government Code unless otherwise specified.

[4] The Act defines “public safety officer” to mean all peace officers specified in certain sections of the Penal Code. (§ 3301.) It is undisputed that Blanco is a peace officer entitled to the protections of the Act.

[5] Blanco does not suggest that the prohibition against his associating with members of the Hell’s Angels and similar groups constituted punitive action giving rise to a right of administrative appeal.

[6] Similarly, in other cases in which appellate courts have found documents critical of officers to constitute punitive action, the affected officers have offered evidence that the type of document challenged had ramifications for future personnel decisions, including career advancement. (Caloca v. County of San Diego, supra, 72 Cal.App.4th at pp. 1220-1221; Hopson v. City of Los Angeles (1983) 139 Cal.App.3d 347, 352-353.) Blanco presented no such evidence here.

[7] In the trial court, Blanco complained that the memorandum of direction could be made public through a Pitchess motion, placing him in a false light. He appears to have abandoned this argument on appeal. In any event, we fail to see how the mere possibility that a document containing criticisms of an officer may become public through a Pitchess motion transforms the criticisms into punitive action.