Terminating the Employment Relationship

Government Code sections 3254 and 3304 mandate that firefighters and law enforcement officers who have passed probation and are subjected to “punitive action,” as that term is defined in the FBOR and POBR, receive an administrative appeal. Thus, firefighters and peace officers have an additional legal basis to claim a right to a post-disciplinary appeal.

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The hearing officer can be an arbitrator, administrative law judge, personnel commission, civil service commission, or other third party neutral, depending upon an agency’s rules, charter or municipal code, and/or its memorandum of understanding with the employee’s union. The evidentiary hearing officer must not be personally involved in the discipline process nor unilaterally selected and paid for solely by the agency, with the possibility of being hired again as a hearing officer by the agency. Depending on an agency’s rules, the hearing officer or body will decide: (1) whether the evidence supports the finding(s) that the employee committed the misconduct alleged; and (2) whether the level of discipline is appropriate under the circumstances. At the conclusion of the hearing, or shortly thereafter, the hearing officer or body will typically issue a detailed written decision explaining its findings. Be sure to adhere to, or have the employee waive, any timelines for issuing the decision imposed by personnel rules, MOU, or other authority.

A hearing officer/body, when it issues its final decision, must notify the employee being disciplined that judicial review of its decision is governed by California Code of Civil Procedure section 1094.6. Specifically, the hearing officer/body must notify the employee that any legal action must be filed within 90 days following the date on which the decision became final. If the hearing officer/body’s final decision does not contain this statement, the employee may have additional time to seek judicial review. Be familiar with all applicable rules and timelines set forth in personnel rules, MOUs, municipal codes, etc. Some agency rules permit more than one appeal following the imposition of termination. For instance, some agency rules permit the employee to first appeal to an individual employed by the agency (e.g., City Manager) and then to appeal that person’s decision to an unbiased hearing officer, commission or board.

LCW Practice Advisor

LCW Practice Advisor

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 23