Client Outcomes

September 2006
Police Officers' Union Defeats City's Attempt to Limit Disciplinary Appeals

For years, City of Oroville police officers who faced discipline could expect a fair and ordinary process in appealing such discipline. That was because the Memorandum of Understanding (MOU) between the police officers' union and the City contained common provisions establishing appeals under binding arbitration for disciplinary actions issued by the employer. In turn, as required by due process and as dictated by prevailing statutory and case law, the appeal before an arbitrator consisted of an evidentiary hearing in which the disciplined officer could challenge witnesses brought by the employer, and could bring his or her own witnesses and exhibits as evidence. After complying with this disciplinary appeal procedure for years, the City suddenly decided in 2005 that this was not the correct procedure for disciplinary appeals.

Represented by the law firm of Liebert Cassidy Whitmore, the City of Oroville suddenly decided in July of 2005 that its police officers who received discipline should only be afforded the opportunity on appeal to have the arbitrator decide if the City Administrator abused his discretion in issuing the discipline. Instead of having a hearing at which the arbitrator, based on the evidence established at hearing, decided if there was just cause for the discipline issued, and if not, which discipline (if any) was appropriate, the City now contended that its officers should only have an appellate-type standard applied by the arbitrator. As argued in both the City's Complaint for Declaratory Relief, and later in their Trial Brief, the discretion provided to the City Administrator to issue discipline meant that the arbitrator in the appeal process could not consider a new factual record, could not determine if there was just cause for the discipline, and could not decide on different discipline if there was not just cause. Rather, according to the City, the arbitrator could simply determine whether the City Administrator abused his discretion.

As represented by Attorney Tawni O. Parr from the law firm of Goyette & Associates, Inc., the Oroville Police Officers' Association (OPOA) argued against the City's declaratory relief action by citing to the basic components of Constitutional, statutory, and prevailing case law regarding disciplinary appeals for peace officers. OPOA argued that, based on the fundamental due process guaranteed to public employees as set forth in the California Constitution, and based on elementary statutory and prevailing case law, a disciplined officer must be provided with a de novo evidentiary hearing under the binding arbitration procedure which allows the employee to cross-examine the employer's witnesses and, in addition, allows the employee to bring his or her own witnesses and/or documentary exhibits as evidence. OPOA stressed that well-established case law stemming from the POBR statutory provisions, California Government Code §§ 3300, et seq., mandated that the evidentiary hearing must determine if just cause existed for the discipline issued. OPOA argued that such objective could not be met under the proposed 'abuse of discretion' standard requested by the City.

At the bench trial before Butte County Superior Court Judge Barbara L. Roberts, Richard C. Bolanos from the law firm of Liebert Cassidy Whitmore reiterated the City's arguments that the arbitrator should be limited to determining whether the City Administrator abused his discretion in issuing the discipline. Gary G. Goyette from Goyette & Associates, Inc. reiterated the OPOA arguments that such an appellate standard violated officers' due process and was contrary to established statutory and case law requiring a de novo evidentiary hearing to determine whether just cause existed for the discipline existed. Part way through the bench trial, when Mr. Bolanos apparently sensed the judge was not accepting the City's arguments, he changed the requested relief to the following: the City would agree that the arbitrator could conduct a de novo hearing regarding the factual basis for the discipline; however, the arbitrator should not be allowed to change the discipline issued by the City Administrator. Rather, Mr. Bolanos's newly-formed argument was that the arbitrator did not have the authority to alter the discipline issued, and that the matter must be remanded back to the City if the arbitrator found a different factual record than that relied upon by the City Manager.

In response, OPOA cited valid case law holding that unless specific limitations existed in an MOU stating that an arbitrator may not change the original level of discipline issued by the employer, the arbitrator has the freedom to determine the appropriate level of discipline based on just cause. OPOA alerted the judge to the fact that the MOU between the City and OPOA contain no such limitations on the arbitrator.

Ultimately, Judge Roberts rejected both the City's original argument and Mr. Bolanos's new request, finding that due process simply required disciplined officers have the opportunity for a de novo evidentiary hearing under binding arbitration in which the officer could present his or her own witnesses and documentary exhibits challenging whether just cause existed for the discipline issued. Further, Judge Roberts agreed that the arbitrator has the authority to decide the appropriate level of discipline based on the factual record established at the hearing.

The case represents an affirmation by the Courts that officers have a due process right to full evidentiary hearings to appeal discipline. Further, this case affirms the fact that, unless express limitations are present in an MOU stating that an arbitrator may not change the level of discipline issued, arbitrators in fact have the right to do just that. If a factual record established at the evidentiary hearing shows that just cause did not exist for the discipline issued by the employer, the arbitrator may appropriately decide that lesser discipline, or no discipline at all, should issue to the officer.

Tawni O. Parr, Esq.
Goyette & Associates, Inc.