By John V. Berry, Esq., www.berrylegal.com
The Court of Appeal for California, in Anderson v. City of Los Angeles, Super. Ct. No. BS120430 (Mar. 30, 2011), recently affirmed the decision of a trial court to reinstate a police officer with the Los Angeles Police Department (LAPD) who had been terminated for neglecting to request compensation for having worked overtime. The trial court in this case found that no other officers within LAPD had ever been disciplined for failing to seek payment for overtime that they had worked and ordered the officer reinstated.
On appeal, the LAPD argued that they should be permitted to re-evaluate the penalty to be assessed on the officer, instead of a blanket reinstatement and sought reversal. The Court of Appeal in this case disagreed, finding:
“Significantly, the gravamen of this charge is the failure to request compensation for working overtime, not working unauthorized overtime. In fact, the charging allegation did not differentiate between authorized and unauthorized overtime. Although Anderson did admit that she committed misconduct by working unauthorized overtime and that she did not ask to be paid for the overtime she worked, as the trial court found, defendants have failed to point to a statute, rule or regulation, in force at the time the alleged misconduct was committed, that makes it an act of misconduct for a police officer to work overtime, whether authorized or unauthorized, and not ask to be compensated for it. Although Order 20 issued September 3, 1999 does state that overtime is to be reported on a specified form, it does not advise employees that the failure to do so is misconduct or will subject them to discipline and possible termination.
The trial court determined that the conduct charged against Anderson in count 1 did not constitute misconduct in the first instance. It is for this reason it concluded that Anderson's guilty plea, along with her deposition testimony, did not support the Board of Right's finding of guilt on count 1. Because we conclude that substantial evidence supports the trial court's determination with regard to count 1, and defendants do not challenge the trial court's decision to grant writ relief as to counts 2 and 3, we have no basis for disturbing the judgment of the trial court.”
Id. 7- 9 (emphasis added).
The Anderson case illustrates the point that police departments that either invent new types of charges, or selectively prosecute administrative charges that have not been charged for similar conduct by others in the past, subject themselves to possible reversal in court, arbitration or before local merit systems review boards on appeal. Departments that seek to charge new types of misconduct should first develop new policies coverage these issues, bargain where appropriate with police unions, and then fully explain and train police officers on issues that could rise to charges of misconduct.