Barnes v. Personnel Department

[504]

Opinion

BROWN (Gerald), P. J.

Scott T. Barnes appeals the denial of his petition for a writ of mandate to direct the Personnel Department of the City of El Cajon (Department) to set aside its order dismissing him from the police force.

Barnes was a probationary officer with the City of El Cajon (City) when he arrested Brant Hokanen. Hokanen sued City for false arrest. After investigation Barnes was dismissed. On appeal he claims he was denied procedural due process because the investigation preceding his dismissal did not comply with the Public Safety Officers Procedural Bill of Rights Act (Officers’ Act) (Gov. Code, § 3300 et seq.).

The parties agree Barnes was a probationary employee. Under El Cajon Municipal Code section 2.72.100 a probationary employee may be terminated without the right to a hearing or an appeal. Barnes contends the Officers’ Act, which mandates a hearing, applies to all peace officers and supersedes the city’s ordinance. Government Code section 3301 defines the scope of the act. “For purposes of this chapter, the term public safety officer means all peace officers, as defined in Section 830.1 and subdivisions (a) and (b) of Section 830.2 of the Penal Code, including peace officers who are employees of a charter city or county.” Peace officers under the named Penal Code sections include “any policeman . . . regularly employed and paid as such . . . .” (Pen. Code, § 830.1.) A probationary police officer is regularly employed and paid as a police officer. Under the statutory definition probationary employees are covered by the Officers’ Act.

Government Code section 3300 et seq. set out the procedural details of the hearing required when punitive action against a peace officer is contemplated. Barnes claims City violated these procedures by: failing to make a complete tape recording of an interview held January 21, 1977 (Gov. Code, § 3303, subd. (f)); denying Barnes access to the tape of the January 21 interview; coercing Barnes into taking a polygraph (Gov. Code, § 3307) and threatening him with punitive action if he did not sign a waiver form (Gov. Code, § 3303, subd. (c)); denying Barnes access to a tape of the polygraph; holding the January 21st interview during Barnes’ sleeping hours; not paying him for the time spent in the January 21st hearing (Gov. Code, § 3303, subd. (a)); withholding the nature of the investigation from him (Gov. Code, § 3303, subd. (c)); failing to inform Barnes of his constitutional rights (Gov. Code, § 3303, subd. (g)); failing