Client Outcomes

February 2006
Association Takes Stand Against Erosion of Peace Officer Rights

A performance record is extremely important to a peace officer's career, more so than most other careers. An officer's personnel file and its contents are of such importance to an officer, that statutory provisions exist to protect the integrity of that file. Additionally, because of the potential for retaliation against an officer who speaks up and asserts his right to protect his reputation and respond to adverse comments in his personnel file, the legislature has included statutory provisions and penalties to deter such conduct.  

Recognizing that a practice within Turlock Police Department had potential for retaliation and erosion of officers' rights, Turlock Associated Police Officers ("TAPO") took a stand and initiated litigation against the Department to prevent the practice of using performance evaluations against officers who exercise their right to write a rebuttal to an adverse comment in a performance evaluation.

The Turlock Police Department utilizes a system whereby performance of its officers is evaluated on an annual basis. In 2002 - 2003 the Department authorized the use of a "summary" evaluation to enable supervisors to catch up on a backlog of overdue evaluations for police officers. The summary evaluation was designed to give supervisors an expedited means to evaluate employees who "met or exceeded standards", who did not have any significant issues during the rating period and who were not up for a step increase.   Having met and exceeded standards for the prior year, J.D. McWilliams, a patrol officer with the Department received a summary evaluation which contained the overall rating of "exceeds position requirements".   However, the evaluation referenced a counseling memorandum and stated that the McWilliams had exhibited "improper demeanor" to a citizen.  

The summary evaluation was presented to Officer McWilliams as required by Department policy and Govt. Code 3305 before being placed in his file. McWilliams signed the summary evaluation. But, as permitted by Govt. Code 3305 and 3306, he chose to submit a response rebutting the adverse comment regarding the citizen and the memo.

Interestingly, after McWilliams had signed the summary evaluation and submitted his response, the Department decided to revoke the summary evaluation and issue a full evaluation instead. The full evaluation marked him as "needed improvement" in areas concerning professional appearance and "attitude", and lowered his overall rating from "exceeds position requirements" to "achieves position requirements." Again McWilliams signed the full evaluation as required but indicated that he wanted to speak with someone other than the rating supervisor.   He requested that the summary evaluation be returned and the full evaluation removed on the grounds that the revocation of the summary evaluation was done in retaliation for his response and violated his Peace Officer Procedural Bill of Rights.   He was told the original summary evaluation had "been destroyed" and the Department took the position that it could revoke an evaluation although it had been presented to him as a document that would go in his file and to which he had the right to respond. The Department's procedure was such that the officer would sign the evaluation, it would then proceed up the chain of command for final signature where it could, in theory, be changed despite it being signed off by officer who understood it to be complete.

A grievance ensued. Through the grievance procedure, officer McWilliams sought to have the full evaluation revoked and also have the performance evaluation process revised in a manner that would prevent the Department from revoking an evaluation and issue a harsher evaluation once an officer has signed off or responded to it.

The matter did not resolve through the grievance procedure and TAPO chose to bring a civil lawsuit through its attorneys, Goyette & Associates, Inc. seeking injunctive and declaratory relief, damages and penalties for retaliation and violations of POBR.   After judicial arbitration, the parties settled the lawsuit which included agreement by the Department to change the performance evaluation process and restore the original summary evaluation (which appeared during litigation) to McWilliams' file.

The bottom line is that peace officers rely on the integrity of their personnel files to protect their reputation and law enforcement careers. A Department that issues a performance evaluation only to revoke it upon an officer's response sets a dangerous precedent and effectively "chills" all officers' right to respond. Fortunately, officer McWilliams and TAPO took a strong position on this principle and were proactive in taking the steps necessary to protect against the erosion of the rights of TAPO members.

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