Filed 6/14/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                          DIVISION ONE


THOMAS L. CONGER,                        B288575

       Plaintiff and Appellant,          (Los Angeles County
                                         Super. Ct. No. BS165737)
       v.

COUNTY OF LOS ANGELES et al.,

       Defendants and Respondents.


     APPEAL from a judgment of the Superior Court of
Los Angeles, Amy D. Hogue, Judge. Affirmed.
     Hayes, Ortega & Sanchez, Dennis J. Hayes and
Tracy J. Jones for Plaintiff and Appellant.
     Hausman & Sosa, Jeffrey M. Hausman and
Larry D. Stratton for Defendants and Respondents.
                    _________________________
      The Los Angeles County Sheriff ’s Department (the
Department) rescinded appellant Thomas L. Conger’s
probationary promotion to lieutenant based on investigatory
findings that Conger had failed to report a use of force several
months before the Department promoted him to the probationary
position. After unsuccessfully pursuing administrative remedies,
Conger filed a petition for a writ of mandate in the trial court
claiming that rescinding his promotion based on alleged conduct
occurring before he was elevated to his probationary position
constituted a demotion or a “denial of promotion on grounds other
than merit,” thus entitling him to an administrative appeal
under Government Code1 section 3304, subdivision (b), a
provision of the Public Safety Officers Procedural Bill of Rights
Act (POBRA) (§ 3300 et seq.). Conger requested that the trial
court issue an order directing the County of Los Angeles (the
County), as well as its Civil Service Commission, Board of
Supervisors, and Chief Executive Officer (collectively,
respondents) to provide him that administrative appeal.
      The trial court denied the petition, ruling that the
Department properly could consider Conger’s pre-probationary
conduct in rescinding his probationary promotion, and that the
decision to rescind the promotion based on Conger’s failure to
report a use of force was merit-based.
      We agree with the trial court that the Department’s
decision to deny Conger a promotion was merit-based. We
further conclude that Conger has failed to show that the written
evaluation detailing his unreported use of force will impact his


     1Further unspecified statutory citations are to the
Government Code.




                                  2
career adversely in the future apart from the loss of his
probationary position. Accordingly, we affirm the judgment.

                        BACKGROUND
       Conger is a sergeant in the Department. On
November 1, 2015, the Department promoted Conger to the
rank of lieutenant, a position subject to a six-month probation
period.
       On April 18, 2016, the Department informed Conger he was
under investigation for events occurring on May 21, 2015, when
he was still a sergeant. Several days later, the Department
relieved Conger of duty and placed him on administrative leave.
On April 29, 2016, the Department served Conger with a letter
extending his probationary period indefinitely “due to [his]
Relieved of Duty status.”
       On May 20, 2016, the Department served Conger with a
letter notifying him that he was “released from [his] probationary
position of Lieutenant.” The letter stated the action was “based
upon the Unsatisfactory ‘Report on Probationer,’ which references
your failure to adhere to Department policies regarding a use of
force and/or reporting the use of force.” The letter cited an
“Internal Affairs Investigation.”
       The Department provided Conger with the “Report
on Probationer” referenced in the letter that attached a
“Performance Evaluation.” (Boldface and some capitalization
omitted.) The report listed the evaluation period as
November 1, 2015 to May 20, 2016. The evaluation described a
“use of force incident” on May 21, 2015, several months before the
listed evaluation period, in which Conger and two deputy sheriffs




                                   3
moved a resisting inmate from one cell into an adjacent cell.2
The evaluation stated that “[t]he investigation revealed
Lieutenant Conger failed to report a use of force by himself and
two of his subordinates. He also failed to document the incident
and did not direct his subordinates who used or witnessed force
to write the required memorandum. Lieutenant Conger also
failed to adhere to policy by completing the required use of force
report.”
       The evaluation concluded, “As a probationary employee,
this is the time to demonstrate the ability to adhere to policies,
good judgment and professionalism. Based on this incident,
Lieutenant Conger does not meet the standards for the position
of Lieutenant.” The evaluation “recommend[ed] that Lieutenant
Conger be released from his probationary lieutenant position and
be demoted to his previous rank of sergeant.”
       Conger filed a written appeal with the County’s human
resources office, arguing that it was improper for the Department
to release him from a probationary position based on events
occurring prior to the probationary period. The County denied
the appeal, finding that the Department “expected [Conger] to
have abided by the Use of Force Policy when [it] made the
decision to appoint him to Lieutenant. Had the Department been
aware of Sergeant Conger’s violation of the Use of Force Policy,
[it] would not have promoted him to the position of Lieutenant.”
       Conger also filed a request for a hearing pursuant to
section 3304, subdivision (b) with the County’s Civil Service


      2 Our characterization of the alleged incident is for
purposes of this appeal only and does not constitute a finding on
the merits.




                                   4
Commission. The Civil Service Commission denied the hearing
request.
       Conger then filed a petition for a writ of mandate in the
trial court. He argued that releasing him from his probationary
position based on alleged misconduct occurring before his
promotion constituted a “denial of promotion on grounds other
than merit” under section 3304, subdivision (b), thus entitling
him to an administrative appeal hearing. Conger requested a
declaratory judgment that respondents violated section 3304,
subdivision (b) by failing to grant him a hearing, as well as an
order directing respondents to provide that hearing. Conger also
requested reasonable attorney fees and civil penalties under
section 3309.5 and Code of Civil Procedure section 1021.5.
       Respondents opposed the petition, and filed a declaration
from Chief Warren Asmus, the Department official who made the
decision to return Conger to the rank of sergeant. Asmus stated,
“Lieutenants hold a high level supervisory position in the
Department. As such, good professional judgment is an
important job requirement going to the merits of that position.”
Asmus emphasized the importance of “the proper reporting of the
use of force” and that supervisory personnel must be “sensitive to
these issues, to ensure the proper functioning of the Department,
the accurate reporting of such incidents, the safety of personnel
and the public, and also for purposes of avoiding liability.”
       The trial court denied Conger’s writ petition. The
trial court ruled that the term “merit” in section 3304,
subdivision (b) was not “limited to the merits of an officer’s
performance during a probationary period,” and thus the
Department could deny Conger a promotion based on merit
factors arising prior to that period. The trial court found that




                                   5
section 3304, subdivision (b) “carv[ed] out an exception to the
requirement for administrative hearings for denials of
promotions because they involve an opportunity to advance
rather than an imposition of a penalty. Providing administrative
hearings for every officer who is denied a promotion would
require significantly greater time and resources.”
       In determining whether the Department had denied
Conger’s promotion on grounds other than merit, the trial court
cited the County’s Civil Service Rules, rule 25.01(a),3 to define
“ ‘non-merit factors’ ” as “ ‘those factors that relate exclusively to
a personal or social characteristic or trait and are not
substantially related to successful performance of the duties of
the position.’ ” The trial court found “no evidence that the
Department denied [Conger] a promotion based on any such
personal or social characteristics or traits,” and that the “grounds
for denying [Conger] a promotion were clearly merit-based factors
‘substantially related to successful performance of the duties of
the position.’ ”
       Conger timely appealed.

                    STANDARD OF REVIEW
      A writ of mandate under Code of Civil Procedure
section 1085 “ ‘may be issued by any court . . . to compel the
performance of an act which the law specially enjoins, as a
duty resulting from an office, trust, or station.’ ”
(Kavanaugh v. West Sonoma County Union High School Dist.
(2003) 29 Cal.4th 911, 916.) To prevail, Conger must show
respondents “ha[ve] a clear, present and ministerial duty” to

      3 Further unspecified rule citations are to the County’s
Civil Service Rules.




                                     6
provide an administrative appeal under section 3304, subdivision
(b). (See ibid.)
       The parties agree the relevant facts are not in dispute and
thus our review is de novo. (See Skulason v. California Bureau of
Real Estate (2017) 14 Cal.App.5th 562, 567.)

                         DISCUSSION
       POBRA “codif[ies] ‘a list of basic rights and protections
which must be afforded all peace officers . . . by the public
entities [that] employ them.’ ” (Bacilio v. City of Los Angeles
(2018) 28 Cal.App.5th 717, 723, ellipses and second alteration in
original.) POBRA’s goal is “to assure the ‘maintenance of stable
employer–employee relations,’ and thus to secure ‘effective
law enforcement . . . services’ for ‘all people of the state.’ ”
(White v. County of Sacramento (1982) 31 Cal.3d 676, 683 (White),
ellipses in original.) The parties do not dispute that Conger is a
“public safety officer” under POBRA. (See § 3301.)
       Section 3304, subdivision (b) provides that “[n]o punitive
action, nor denial of promotion on grounds other than merit, shall
be undertaken by any public agency against any public safety
officer who has successfully completed the probationary period
that may be required by his or her employing agency without
providing the public safety officer with an opportunity for
administrative appeal.” “[P]unitive action” is defined as “any
action that may lead to dismissal, demotion, suspension,
reduction in salary, written reprimand, or transfer for purposes
of punishment.” (§ 3303.)
       POBRA does not specify the procedural requirements for
the administrative appeal, but courts have held that public safety
officers are entitled to “ ‘an evidentiary hearing before a neutral




                                   7
fact finder.’ ” (Morgado v. City and County of San Francisco
(2017) 13 Cal.App.5th 1, 7.)
       The trial court concluded that Conger was ineligible for an
administrative appeal because the Department denied him a
promotion on merit-based grounds. (See § 3304, subd. (b) [officer
may administratively appeal denial of promotion only if “on
grounds other than merit”].) Respondents agree with that
conclusion, but argue in the alternative that Conger had not yet
“successfully completed the probation period” attendant to his
promotion (ibid.), and therefore was ineligible for an
administrative appeal on that basis as well. Because we conclude
the trial court correctly determined that the Department denied
Conger’s promotion on merit-based grounds, we do not reach
respondents’ alternative argument.4


      4  In 1998, two decades after POBRA’s initial enactment,
the Legislature amended section 3304, subdivision (b) to exclude
officers who had not yet successfully completed their
probationary period. (See Stats. 1998, ch. 786, § 1.) The
language of the exclusion does not distinguish between
probationary periods upon initial hiring and probationary
periods attendant to promotions, and the only published
authority to speak on the question has interpreted the exclusion
to apply to both. (Guinn v. County of San Bernardino (2010)
184 Cal.App.4th 941, 948–950 (Guinn).)
      This interpretation presents a conundrum in the case of
denials of promotion. Presumably any officer denied a promotion
will have yet to complete the probationary period attendant to
that promotion, either because the employer released the officer
from the position while the officer still was on probation or never
placed the officer in the probationary position in the first place.
Thus, assuming the probationary exclusion applies to officers
denied a promotion, arguably no officer denied a promotion on



                                    8
A.   The Department Denied Conger A Promotion
      Conger in his briefing alternatively describes his release
from his probationary position as a “denial of promotion” and a
“demotion.” The distinction matters: An employer may deny a
promotion without triggering the appeal right under section
3304, subdivision (b) so long as the denial is based on merit. In
contrast, a demotion, one of the listed punitive actions under
section 3303, triggers the administrative appeal right regardless
of whether it was based on merit or non-merit grounds. (See
White, supra, 31 Cal.3d at p. 683 [under POBRA, demotion is “per
se disciplinary in nature”].)
      We conclude that the Department’s decision to rescind
Conger’s probationary promotion and return him to his previous
rank constituted a denial of promotion and not a demotion.


grounds other than merit ever could administratively appeal.
This would seem to render meaningless section 3304, subdivision
(b)’s protection for officers denied promotions on grounds other
than merit.
       On the other hand, to interpret the probationary
exclusion not to apply to probationary periods attendant to
promotions would dissolve any distinction between probationary
and permanent promotions for purposes of section 3304,
subdivision (b), thus depriving employers of the benefit of a
probationary period in which they may evaluate promoted
officers without risk that returning them to their previous
positions might trigger an evidentiary hearing.
      Given our holding, post, that in the instant case the
Department denied Conger’s promotion on merit grounds, we
need not resolve this conundrum. We nonetheless note the issue,
which the Legislature may wish to address with a clarifying
amendment.




                                  9
Guinn held that “returning a permanent employee to his or her
previous position as [a] result of failure to perform adequately
while on promotional probation” constituted a non-punitive
denial of promotion, not a punitive demotion, even though
there was a concomitant loss of rank and pay. (Guinn, supra,
184 Cal.App.4th at pp. 946–947.) Guinn relied on Swift v. County
of Placer (1984) 153 Cal.App.3d 209 (Swift) and its analysis of
“ ‘rejection during probation’ ” under the State Civil Service Act
(§ 18500 et seq.). (Guinn, at p. 946.)
       Swift noted that “ ‘rejection during probation’ ” was not
listed as a “ ‘punitive action’ ” under section 3303 or “the
comparable provision of the State Civil Service Act,” which
“strongly suggest[ed]” that rejection during probation was not
punitive for purposes of triggering the administrative appeal
right under section 3304, subdivision (b). (Swift, supra, 153
Cal.App.3d at pp. 216–217 & fn. 7.) Thus, Swift held that an
officer dismissed during an initial probationary period had no
right to an administrative appeal.5 (Ibid.) Guinn found Swift’s
reasoning equally applicable to officers returned to their prior
rank during probationary periods attendant to promotions.
(Guinn, supra, 184 Cal.App.4th at p. 946.)
       Conger argues that Guinn is distinguishable because in
that case the officer lost his promotion based on “poor
performance during probation,” whereas Conger’s purported
misconduct occurred before he was on probation. (Italics

      5 The version of section 3304, subdivision (b) in effect at
the time of Swift did not contain the provision expressly
excluding officers serving probationary periods from the right to
an administrative appeal. (See former § 3304, subd. (b), enacted
by Stats. 1976, ch. 465, § 1; see also fn. 4, ante.)




                                   10
omitted.) In our view, however, Guinn’s distinction between
demotion and denial of promotion does not depend on when the
conduct underlying the adverse personnel action occurred. What
matters is that, in both Guinn and the instant case, the adverse
action took place during a period in which the promotion was not
yet permanent, and the employer was still evaluating whether
the officer deserved the higher position. As Guinn states,
“[d]enial of a hearing upon rejection on probation” is consistent
with the “long–established principle of public employment that
because a probationary employee has no vested property interest
in his or her employment, the employee has no due process right
to a hearing prior to termination of the employment.” (Guinn,
supra, 184 Cal.App.4th at p. 948.)
       Here, Conger had not completed his probationary period at
the time the Department returned him to his previous rank,
because the Department had extended the probationary period
indefinitely pending investigation into the alleged unreported use
of force. Conger does not dispute the Department’s authority to
extend his probationary period. Thus, Conger did not yet have
a “vested property interest” in his promoted position. (Guinn,
supra, 184 Cal.App.4th at p. 948.) Consistent with Guinn,
therefore, Conger’s rejection before he achieved permanent status
constituted a denial of promotion rather than a demotion.6



      6   Because we conclude in Part B of our Discussion, post,
that the Department denied Conger’s promotion on merit-based
grounds, we do not address whether an employee’s probationary
status would affect his or her right to administratively appeal a
denial of promotion “on grounds other than merit.” (§ 3304, subd.
(b); see fn. 4, ante.)




                                  11
       Conger argues that Henneberque v. City of Culver City
(1983) 147 Cal.App.3d 250 (Henneberque) supports his contention
that he was demoted or otherwise subjected to punitive action
entitling him to an administrative appeal. In Henneberque, a
police department returned an officer serving as a probationary
sergeant to his prior rank based on a purported “failure to
exercise his supervisorial judgment” while on probation.
(Id. at p. 252.) The officer sought an administrative appeal and
reinstatement to the higher rank, claiming the department had
discriminated against him because of “his position as president of
the recognized employee organization.” (Ibid.) Noting that the
officer had “received no unfavorable evaluations while serving” in
the probationary position, the Court of Appeal concluded the
employer had “summarily demoted” the officer and reduced
his salary and benefits, which constituted punitive action
triggering the administrative appeal right under section 3304,
subdivision (b). (Henneberque, at p. 254.) As an alternative
ground, the court held the officer also was entitled to an
administrative appeal because of the allegations of
discrimination against him for participating in the employee
organization. (Id. at p. 254.)
       Henneberque, which predated the amendment to
section 3304, subdivision (b) excluding probationary employees
from the administrative appeal right (see fn. 4, ante), placed no
weight in its analysis on the officer’s probationary status. As
discussed above, there is an important distinction between
demoting an officer from a vested, permanent position and
denying an officer permanent status in a position he or she holds
only on a probational basis while being evaluated by his or her
employer, a distinction Henneberque did not address.




                                   12
Henneberque also did not consider whether the personnel action
at issue in that case constituted a denial of promotion on merit
grounds as opposed to a demotion, nor did the opinion indicate
whether anyone raised that argument. Because Henneberque did
not address the particular issues raised in this case, its holdings
are not apt.
       Conger cites other cases in which courts held or parties
conceded that demotions or reductions in pay are punitive and
trigger the administrative appeal right under section 3304,
subdivision (b). (See White, supra, 31 Cal.3d at pp. 683–684;
Giuffre v. Sparks (1999) 76 Cal.App.4th 1322, 1325, 1328
(Giuffre).) These cases did not involve probationary promotions,
and are not instructive on that issue. (See White, at p. 678 [peace
officer demoted from position held for approximately seven
years]; Giuffre, at p. 1324 [peace officer removed from position
held for 11 years].)
       Conger notes that his evaluation form recommended that
he “be demoted to his previous rank of sergeant.” Conger cites no
authority suggesting that an employer’s characterization of a
personnel action supersedes contrary statutory language or case
law. Under Guinn, Conger’s release from his probationary
position constituted a denial of promotion for purposes of
POBRA, regardless of the language used by the Department.

B.    The Department Denied Conger’s Promotion On
      Merit-Based Grounds
      We next address whether Conger’s denial of promotion was
“on grounds other than merit.” (§ 3304, subd. (b).) POBRA does
not define what constitutes “grounds other than merit.” We thus
give the statutory language its “plain and commonsense
meaning.” (Coalition of Concerned Communities, Inc. v. City of



                                   13
Los Angeles (2004) 34 Cal.4th 733, 737.) We agree with the
trial court that, at minimum, factors constituting merit include
those “ ‘substantially related to successful performance of the
duties of the position.’ ”7 This is consistent with California’s
constitutional “merit principle,” under which candidates for civil
service positions are evaluated based on “ “ ‘education, training
and experience” ’ ” rather than factors unrelated to the job
such as political favoritism. (California Attorneys, etc. v.
Schwarzenegger (2009) 174 Cal.App.4th 424, 433–434; see
Cal. Const., art. VII, § 1(b) [“In the civil service permanent
appointment and promotion shall be made under a general
system based on merit ascertained by competitive examination”].)
       We further agree with the trial court that the Department’s
particular grounds for denying Conger’s promotion were merit-
based. Conger does not dispute Chief Asmus’s declaration that
lieutenants hold “high level supervisory positions in the
Department.” The ability to comply with department procedures
and ensure subordinates follow those procedures is substantially
related to successful performance in a supervisory position.
Conger did not demonstrate competence as a supervisor when he

      7  The trial court borrowed this language from the County’s
Civil Service Rules, rule 25.01(A), which prohibits discrimination
based on “non-merit” factors, defined as “factors that relate
exclusively to a personal or social characteristic or trait and are
not substantially related to successful performance of the duties
of the position.” While we agree with the trial court that the
plain and commonsense definition of merit-based factors includes
factors substantially related to successful performance of a
position, we express no opinion as to whether the definition of
non-merit factors in rule 25.01(A) applies for purposes of
section 3304, subdivision (b).




                                   14
failed to report a use of force per Department policy and failed to
direct his subordinates to do so.
       Conger argues that, even accepting the trial court’s
definition of “merit,” he received no negative evaluations of his
conduct during his time as a probationary lieutenant, thus
indicating that he could successfully perform the duties of that
position. He contends that denying him a promotion based
on alleged conduct occurring outside the probationary period,
as opposed to failure to perform adequately on probation, was
a denial on grounds other than merit. We agree with the
trial court, however, that “nothing in Section 3304(b) suggests
that the term ‘merits’ should be limited to the merits of an
officer’s performance during a probationary period.” An officer’s
ability to perform successfully in his or her current position is
clearly relevant in assessing the officer’s ability to perform
successfully at a higher position; an officer’s past job performance
speaks to his or her “merit” as much as his or her performance on
probation.
       Conger’s cited authority is unavailing. He analogizes to
Henneberque, which, in holding that the officer was entitled to an
administrative appeal, noted that the officer had not received any
unfavorable evaluations while on probation. (Henneberque,
supra, 147 Cal.App.3d at p. 254.) Conger also points to Guinn’s
conclusion that poor performance on probation constitutes
merit-based grounds to deny a promotion. (Guinn, supra,
184 Cal.App.4th at p. 946.)
       Henneberque’s statement that the officer did not receive
unfavorable evaluations on probation is confusing, because the
opinion also states that the employer in that case claimed it
returned the officer to his previous position based on “failure to




                                    15
exercise his supervisorial judgment” while on probation.
(Henneberque, supra, 147 Cal.App.3d at p. 252.) Henneberque
also did not address a circumstance like the instant case in which
an employee loses a promotion based on conduct outside the
probationary period, and is not instructive on that question. Nor,
as discussed previously, did Henneberque address what
constitutes a denial of promotion on grounds other than merit,
having concluded (incorrectly, in our view) that release from a
probationary promotion constituted demotion rather than denial
of promotion.
       As for Guinn, although it concluded under the
circumstances of that case that denial of promotion based on poor
performance during probation constituted merit-based grounds, it
did not address whether poor performance outside the
probationary period also could constitute merit-based grounds.
Thus, nothing in Guinn undercuts our conclusion.
       Conger suggests that the Department’s own policies limit
the relevant period for evaluating his performance to the
probationary period. He notes the stated evaluation period on his
negative “Report on Probationer” corresponded to the
probationary period, and cites Department documents he claims
limit the scope of a probationary evaluation to the probationary
period itself. To the extent Conger is claiming the Department
did not abide by its own policies and procedures, that is beyond
the scope of his writ request, which was based entirely on his
rights under section 3304, subdivision (b). As discussed, nothing
in that statutory section purports to limit what grounds
constitute “merit” based on when those grounds arose. While
Conger complains that the Department wrongly included
allegations regarding his performance as a sergeant in an




                                  16
evaluation of his performance as a probationary lieutenant, the
Department’s labeling of the documentation does not change the
fact that the decision not to promote him was merit-based.
       Conger contends the Department denied his promotion in
order to discipline him without allowing him the opportunity
for an administrative appeal. Even if this is so, section 3304,
subdivision (b) expressly permits an employer to deny a
promotion on merit grounds without triggering an administrative
appeal, regardless of the employer’s intent. While Conger denies
that he failed to document a use of force, he does not dispute that
the Department concluded otherwise and denied his promotion
for that reason. As we have discussed, that reason was merit-
based. Thus, under the language of the statute, Conger was not
entitled to an administrative appeal even if the Department
deliberately chose to deny his promotion as a substitute for
punitive action.

C.    Conger Fails To Show That His Negative Probation
      Evaluation Could Lead To Future Adverse
      Consequences Beyond Denial Of His Probationary
      Promotion
       Conger claims that he is entitled to an administrative
appeal under section 3304, subdivision (b) not only because he
lost his promotion, but also because his negative probation
evaluation is now in his personnel file “and may be relied upon in
future personnel decisions,” including denying him future
promotions. He cites cases holding that an officer’s
administrative appeal right under section 3304, subdivision (b)
may be triggered by findings of misconduct that could affect an
officer’s career negatively in the future, even if they do not result
in immediate discipline. We summarize them below.



                                    17
       In Hopson v. City of Los Angeles (1983) 139 Cal.App.3d 347
(Hopson), the Board of Police Commissioners, after an
investigation and series of public hearings regarding a highly
publicized police shooting incident, issued a public report
finding that the officers had violated policies concerning the
use of firearms and deadly force, even though the police
department had found otherwise and imposed no discipline.
(Id. at pp. 349–350.) The Court of Appeal concluded that the
report constituted “ ‘punitive action’ ” under sections 3303 and
3304, subdivision (b), given the source of the report (i.e., the
leaders of the police department), its contents, and the police
chief ’s testimony that placing the report in the officers’ files
would have “ramifications for [their] career opportunities,”
including promotions and employment with other law
enforcement agencies. (Hopson, at p. 352 & fn. 2.) Accordingly,
the court held that the officers were entitled to an administrative
appeal. (Id. at p. 354.)
       Similarly, Caloca v. County of San Diego (1999)
72 Cal.App.4th 1209 (Caloca) held that sheriff ’s deputies were
entitled to a hearing under section 3304, subdivision (b) to
contest a citizen review board’s findings of “serious misconduct,”
although the sheriff ’s department itself concluded there
was no misconduct and imposed no discipline, because the
findings would “be considered in future personnel decisions
affecting [the deputies] and may lead to punitive action.”
(Caloca, at pp. 1220–1223.) The findings of misconduct
involved, among other things, excessive force, illegal detentions,
and attempts to cover up these acts of misconduct. (Id. at
pp. 1215–1216.) The deputies provided an uncontested
declaration from the head of the sheriff ’s department’s human




                                   18
resource services bureau stating that “the department’s
promotion process is extremely competitive, and a single blemish
on a deputy’s career can prevent him or her from advancing in
the department.” (Id. at p. 1220.) The declaration further stated
that a report “sustaining findings of misconduct of a similar
nature and severity” as those in the citizen review board’s report
“would be given consideration in personnel decisions and
could have an ‘adverse impact’ on an officer’s career.” (Id. at
pp. 1220–1221.) The Court of Appeal held that the declaration
“constitutes evidence of punitive action for purposes of [POBRA].”
(Id. at pp. 1222–1223.)
       In Otto v. Los Angeles Unified School Dist. (2001)
89 Cal.App.4th 985 (Otto), an employer placed a memorandum in
a school police officer’s personnel file documenting a meeting in
which the officer’s supervisor warned him to use the police
department’s voice mail tracking system properly,8 and that
“ ‘continued failure to do so[ ] could lead to future disciplinary
action.’ ” (Id. at p. 991.) The Court of Appeal held that the officer
was entitled to an administrative appeal under section 3304,
subdivision (b). (Otto, at p. 998.) The court noted the
memorandum’s express reference to future discipline, as well as
declarations from veteran officers of the school district’s police
department and school police association stating that memoranda
like the one placed in the officer’s personnel file could be used for
future personnel decisions including discipline and eligibility
for promotions or transfer to specialized assignments. (Id.
at pp. 992, 998.) Quoting Caloca, the court stated that “[i]t is

      8  School police officers used the voice mail tracking system
to document when they left campus. (Otto, supra, 89 Cal.App.4th
at p. 991.)




                                    19
enough that the [memorandum] ‘will be considered in future
personnel decisions affecting [the officer] and may lead to
punitive action.’ ” (Otto, at p. 998.)
      To the extent Hopson, Caloca, and Otto may be read to
suggest that personnel actions that could lead to future denials of
promotion on merit grounds are punitive actions under POBRA,
we respectfully disagree with them. “In order for an employment
action to be considered punitive under section 3303, the negative
employment consequence must be one specified in the statute.”
(Los Angeles Police Protective League v. City of Los Angeles (2014)
232 Cal.App.4th 136, 146 (Los Angeles Police Protective League).)
“Denial of promotion” is not among the list of punitive actions
under section 3303, and a denial of promotion on merit
grounds does not trigger the administrative appeal right under
section 3304, subdivision (b). Thus, the mere fact that a
personnel action may lead to, or actually leads to, a denial of
promotion on merit grounds does not transform it into a punitive
action for purposes of POBRA. (See Los Angeles Police Protective
League, at p. 145 [rejecting argument that transfer constituted
punitive action because of potential “loss of promotional
opportunities,” when such loss was not included in list of punitive
actions under section 3303].)
      Hopson, Caloca, and Otto also are unavailing because
Conger, unlike the peace officers in those cases, has not put forth
any evidence that his negative evaluation will lead to punitive
action or impact his career in the future. The negative
evaluation itself does not recommend or refer to any
consequences apart from the release of Conger from his
probationary promotion on merit grounds, an action that
expressly does not trigger the administrative appeal right under




                                   20
section 3304, subdivision (b). Conger submitted no declarations
other than from himself and his attorney, both of which are silent
on the issue of future career impact. Conger cites a Department
policy concerning probationary evaluations, but it merely states
that evaluations are placed in an employee’s “Unit file” with
copies sent to “Personnel Administration,” with no suggestion as
to how the evaluation may be used in future personnel decisions.
In the absence of evidence that the evaluation will affect Conger’s
career beyond losing his probationary position, Hopson, Caloca,
and Otto are of no aid to Conger.9 (See Los Angeles Police
Protective League, supra, 232 Cal.App.4th at p. 146 [declining to
apply Hopson and Caloca when appellants presented insufficient
evidence that their “transfers would lead to adverse employment
consequences”].)
       At oral argument, Conger’s counsel contended that
no evidence of potential adverse impact was necessary because
Conger actually lost a promotion. Again, however, section 3304,
subdivision (b) expressly permits employers to deny promotions
on merit grounds without triggering the right to an
administrative appeal. Hopson, Caloca, and Otto cannot grant
Conger a right purportedly under a statute that expressly denies
him that right.
       Conger argues that to deny him an administrative appeal is
contrary to POBRA’s purpose of ensuring
“effective law enforcement” through “the maintenance of

      9  We note that, irrespective of any right to an
administrative appeal, POBRA requires that employers notify
officers of any adverse comments placed in their personnel files
and permit them to attach a written response. (See §§ 3305,
3306.)




                                   21
stable employer–employee relations.” (§ 3301.) We do not think
allowing employers to make merit-based promotion decisions
without the burden of an evidentiary hearing thwarts this
purpose. Regardless, the Legislature has made clear through its
statutory language that an officer denied a promotion on merit
grounds is not entitled to an administrative appeal, and policy
arguments cannot override that language. (See Coalition of
Concerned Communities, Inc. v. City of Los Angeles (2004)
34 Cal.4th 733, 737 [courts look to “statute’s purpose, legislative
history, and public policy” only when the “statutory language
permits more than one reasonable interpretation”].)

D.    We Do Not Reach Conger’s Request For Civil
      Penalties And Attorney Fees
       Conger acknowledges we must only address his request for
civil penalties and attorney fees under section 3309.5 and Code of
Civil Procedure section 1021.5 if we reverse the trial court.10
Given our holding, we do not reach the issue.




      10  Section 3309.5, subdivision (e) requires the trial court to
award civil penalties and reasonable attorney fees upon a finding
that an employer “maliciously violated any provision of [POBRA]
with the intent to injure the public safety officer.” Code of Civil
Procedure section 1021.5 allows a trial court to award attorney
fees “to a successful party . . . in any action which has resulted in
the enforcement of an important right affecting the public
interest,” subject to certain requirements.




                                    22
                        DISPOSITION
      The judgment is affirmed. Respondents are awarded their
costs on appeal.
      CERTIFIED FOR PUBLICATION.


                                         BENDIX, J.


We concur:



             JOHNSON, Acting P. J.



             WEINGART, J.*




     *  Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




                                  23
