Howitt v. County of Imperial
JOHN R. HOWITT, Plaintiff and Appellant, v. COUNTY OF IMPERIAL Et Al., Defendants and Respondents
- Proceeding
- appeal
- Trial court
- Superior Court of Imperial County
- Trial judge
- L. Harold Chaille
- Outcome
- other — D007349. Fourth Dist., Div. One.
- Area
- civil
- Panel
- Don R. Work (author)
Analysis
The trial court denied Howitt's petition for a writ of mandate seeking an administrative appeal of his denial of a merit salary increase. The Court of Appeal affirmed, holding that the denial of an unearned merit increase does not constitute a 'punitive action' under the Public Safety Officers Procedural Bill of Rights Act.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of writ of mandate to compel administrative appeal for denial of merit salary increase“We hold Howitt has not suffered a punitive action as required by the Act and, thus, is not entitled to an administrative appeal.” | de novo | correct | agree with court The court correctly applied the statutory definition of 'punitive action' (Gov. Code, § 3303) and distinguished between a reduction in salary (punitive) and the denial of a non-automatic merit increase (non-punitive). The reliance on the county ordinance establishing that increases are contingent on satisfactory performance supports the conclusion that no vested right was violated, and the analogy to the statutory exclusion for merit-based promotion denials is logically sound. |
Authorities
- relied: Turturici v. City of Redwood City (1987) 190 Cal.App.3d 1447 — Negative comments contained within a job performance evaluation do not constitute a 'punitive action' requiring an administrative appeal.
- relied: White v. County of Sacramento (1982) 31 Cal.3d 676 — A reduction in salary can constitute a punitive action entitling a public safety officer to an administrative appeal.
The appellate opinion: sound — The opinion is sound because it correctly interprets the statutory definition of 'punitive action' and distinguishes the denial of a prospective, non-automatic merit increase from an actual reduction in compensation. It effectively uses the statutory exclusion for merit-based promotions to support the broader principle that merit-based salary decisions are discretionary and not subject to mandatory administrative appeal.
The Imperial County Superior Court denied Deputy Sheriff Howitt's petition for a writ of mandate seeking an administrative appeal under the Public Safety Officers Procedural Bill of Rights Act from the denial of a merit step salary increase, and denied his motion for new trial. The Court of Appeal affirmed, holding that neither an unfavorable performance evaluation nor the resulting denial of a merit pay increase is a 'punitive action' under Government Code section 3303, so no administrative appeal was required under section 3304, subdivision (b).
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of writ of mandate insofar as Howitt claimed the unfavorable performance evaluation itself triggered a right to administrative appeal“Clearly, the unfavorable review in itself was not punitive.” | de novo | correct | agree with court The question is one of statutory construction, which the court treated as a pure legal issue without stating a standard. Turturici v. City of Redwood City squarely held negative comments in a performance evaluation are not 'punitive action' under section 3303, and the opinion applies that holding directly to an indistinguishable fact pattern. |
Denial of writ of mandate on the claim that denial of a merit step salary increase is a 'reduction in salary' or otherwise a punitive action under section 3303 requiring an administrative appeal under section 3304, subdivision (b)“but denying Howitt an increase in pay which he has not earned does not reduce his compensation.” | de novo | correct | agree with court The court reasonably read 'reduction in salary' as not encompassing the withholding of an increase that, under County Ordinance section 24305, is conditioned on a satisfactory performance rating rather than longevity; White v. County of Sacramento involved an actual salary reduction and is properly distinguished. The court's analogy to the statutory carve-out for merit-based promotion denials is less secure, since section 3304(b) does require an appeal for promotion denials on grounds other than merit and Howitt alleged the denial was punitive in fact, and the court did not engage with the 'any action which may lead to' language of section 3303; but on this record the result is defensible and I can point to no authority the court misapplied. |
Denial of Howitt's motion for new trial“The court denied the writ, and a later motion for new trial.” | unclear | not reached | unsure The opinion notes the new trial denial but does not separately analyze it; footnote 5 states that in light of the punitive-action holding the court need not address other issues. Affirmance of the judgment necessarily subsumes it. |
Authorities
- relied: Turturici v. City of Redwood City (1987) 190 Cal.App.3d 1447 — 'Punitive action' under Government Code section 3303 does not include negative comments contained in a job performance evaluation, so an officer receiving such an evaluation is not entitled to an administrative appeal under section 3304.
- relied: White v. County of Sacramento (1982) 31 Cal.3d 676 — A reduction in a public safety officer's salary can constitute punitive action under section 3303 entitling the officer to an administrative appeal; cited for the proposition that an actual salary reduction would be punitive, then distinguished because Howitt's salary was never reduced.
The appellate opinion: sound with gaps — The opinion correctly applies Turturici to the evaluation and reasonably reads the county ordinance to make the merit increase conditional on satisfactory performance, so withholding it is not a 'reduction in salary.' It does not, however, grapple with section 3303's broad 'any action which may lead to' phrasing or with Howitt's argument that the rating was itself a pretext for punishment, disposing of the 'punitive in fact' contention by an analogy to the promotion carve-out that arguably cuts both ways.
Opinion — Work
Opinion
WORK, Acting P. J.John R. Howitt appeals the denial of a writ of mandate to compel the County of Imperial and Oren R. Fox, the Sheriff-Coroner of Imperial County, to provide him an administrative appeal from the decision denying him a merit step salary increase. Howitt contends he is entitled to this appeal under the Public Safety Officers Procedural Bill of Rights Act (Act). (Gov. Code, 1 § 3300 et seq.) We hold Howitt has not suffered a punitive action as required by the Act and, thus, is not entitled to an administrative appeal.
Factual and Procedural Background
After being denied an annual merit pay increase in his job because of an unfavorable review of his performance, Howitt filed an employee grievance seeking reevaluation and the salary boost. Although the grievance was not filed within the required time, Sheriff Fox reviewed the evaluation, recommended one minor change and denied the pay increase. Howitt was not allowed to participate in a formal appeal of the review.
Howitt then sought mandate in the superior court, asking for an appellate hearing into the denial of the pay increase. 2 His petition was based on *314 sections 3300 et seq., which require an administrative appeal for all public safety officers who have been subjected to punishment. The court denied the writ, and a later motion for new trial.
Discussion
Denial of a Merit Increase Is Not Punitive Action
Section 3304, subdivision (b) gives any “public safety officer” subjected to punitive action the right to an administrative appeal. 3 The term “punitive action” is defined in section 3303: “For the purpose of this chapter, punitive action is defined as any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.”
Clearly, the unfavorable review in itself was not punitive. In Turturici v. City of Redwood City (1987) 190 Cal.App.3d 1447 [236 Cal.Rptr. 53], the court stated: “We conclude that ‘punitive action’ does not include negative comments contained within a job performance evaluation. Hence, plaintiff was not entitled to an administrative appeal.” (Id. at p. 1451, fn. omitted.) Similarly, the unfavorable review placed in Howitt’s file did not in itself require an administrative appeal.
We next consider whether denying Howitt a salary step increase based on this unfavorable evaluation is a punitive action. Howitt contends that although his salary was never actually reduced, denying him the increase in salary was the equivalent of a reduction in salary, and any reduction in salary is a punitive act requiring an administrative appeal. We agree a reduction in Howitt’s salary could constitute a punitive action entitling him to an administrative appeal (White v. County of Sacramento (1982) 31 Cal.3d 676, 681-682 [183 Cal.Rptr. 520, 646 P.2d 191]), but denying Howitt an increase in pay which he has not earned does not reduce his compensation. Although Howitt claims the only requirement for a merit step pay increase is longevity in the rank of deputy sheriff, this contention is clearly contradicted by the county ordinance governing salary step increases. The ordinance states, “Salary step increases are not automatic, but shall be given *315 only for performance of satisfactory service. ...” (County of Imperial Ord., § 24305, par. (1).) The following paragraph of the ordinance goes on to state, in part, “the department head shall advise the Personnel Director in writing on the appropriate form whether he wishes to grant or deny the salary increase, supplementing his recommendation by a performance rating. . . .” (County of Imperial Ord., § 24305, par. (2).) Howitt’s expectation of a merit increase was limited to his receiving a satisfactory performance rating. He did not obtain that favorable rating and did not fulfill the condition precedent required by the salary ordinance. Even so, his salary was not reduced and no punitive action was taken.
Howitt meritlessly contends that even if being denied a grade increase in salary is not punitive per se, it is punitive in fact. The applicable statute states that no administrative appeal is required when the public safety officer is denied a promotion on the basis of merit. (§ 3304, subd. (b).) Although a merit salary increase is not, technically speaking, a promotion, the same rationale applies. Howitt was denied an increase in salary based on merit. The employer should have discretion to give promotions and salary increases based on merit, without being required to justify each such decision at an appellate hearing. If there is any distinction between a promotion and a salary increase, the promotion would be the more important to the employee and entitled to greater protection.
We conclude the acts of which Howitt complains are not punitive. His salary was not reduced and the acts do not fall under any other category listed as punitive. 4 The statute Howitt relies upon requires an administrative hearing only where the officer has suffered a punitive action. 5
Judgment affirmed.
Benke, J., and Nares, J., concurred.
All statutory references are to the Government Code unless otherwise specified.
Howitt’s original motion requested the writ of mandate to compel the Sheriff and Imperial County to grant him the merit pay increase, both retroactively and prospectively, and to *314 grant him a meaningful name-clearing hearing. At trial, Howitt’s counsel stated, “we are asking only that Deputy Howitt be given an appellate hearing into the denial of the pay increase because of punitive reasons.”
“No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency without providing the public safety officer with an opportunity for administrative appeal.” (§ 3304, subd. (b).) The term “public safety officer” refers to peace officers. (See § 3301.) There is no disagreement that Howitt, as a deputy sheriff, falls within this category.
Dismissal, demotion, suspension, written reprimand, and transfer for purposes of punishment are the other actions defined by the statute as punitive. (§ 3303.)
In light of this conclusion, we need not address the other issues presented.
Cites, in this corpus
- Turturici v. City of Redwood City A032019 · 1987-04-08
- White v. County of Sacramento S.F. 24394 · 1982-06-21
Cited by
- Caloca v. County of San Diego No. D029663 · 1999-06-09
- Haight v. City of San Diego D011387 · 1991-02-25