Heyenga v. City of San Diego

Opinion

BUTTERMORE, J.

*

Appellants William Dickson Heyenga and Raymond Pulsipher, police officers for respondent, City of San Diego, appeal an order denying a preliminary injunction which would have prevented their transfer from the northern to the central division of the police department. They alleged the transfer constituted a violation of their freedom of association rights guaranteed by the First Amendment of the federal Constitution and article I, section 3 of the state Constitution. They

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asserted the transfer was proposed because they had invoked their procedural rights under the Public Safety Officers Procedural Bill of Rights (Gov. Code, § 3300 et seq.) and, as such, was a “punitive transfer” which is forbidden under that law. They now urge the trial court abused its discretion by denying the preliminary injunction.

We need not decide whether the recently enacted “Bill of Rights” for public safety officers is binding on a chartered city. For our purposes, we treat the statute as binding on the City of San Diego because its terms were incorporated into the collective bargaining

agreement

covering the relevant period herein.

While off duty, appellants became involved in a minor incident at a local pub. An internal investigation by the police department exonerated Heyenga. The investigation of Pulsipher was pending when the transfer order was issued.

The hearing on appellants’ application for a preliminary injunction included an offer of proof and numerous affidavits which generated a disputed issue of fact as to whether the transfer of appellants from northern to central was a “transfer for purposes of punishment.”

Government Code section 3304, subdivision (b), provides: “No punitive action . . . shall be undertaken by any public agency without providing the public safety officer with an opportunity for administrative appeal.”

Government Code section 3303, in part provides: “For the purpose of this chapter, punitive action is defined as any action which may lead to dismissal, demotion, suspension, reduction in salaiy, written reprimand, or transfer for purposes of punishment.”