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1. What is (and is not) a grievance?
   
   
2. I've received a notice of discipline from my department. What do I do next?
   
   
3. Who/what is the PORAC Legal Defense Fund and how do I contact them?
   
   
4. What is a Lybarger admonishment - and how does this landmark case affect law enforcement personnel?
   
   
5. What is a Skelly hearing?
   
   
6. What is the difference between "liberty interest" and "property interest" as it relates to my employment as a law enforcement officer?
   
   
7. What does "exhausting my administrative remedies" mean?
   
   
8. What is a "writ of mandamus"?
   
   

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1. What is (and is not) a grievance?

     Generally speaking, a grievance is a claim or charge of misunderstanding, or difference in interpretation, or violation of provisions of the rules that govern your particular agency including, but not limited to, any Memorandum of Understanding, policies, regulations, etc. which affect wages, hours or other terms and conditions of employment.  Usually, if you believe that you are being harmed or treated unfairly, but have some other route of appeal or complaint, you do not have a viable grievance.  However, it is important to review your agency's particular grievance policy before determining whether you have a viable grievance.

     In order to find a grievable offense, one must usually first isolate a particular rule, departmental policy, or MOU provision as violated. It is important to realize that merely because a supervisor is mistreating you, it probably does not give rights to a grievance. The term "hostile work environment" is not a term used in grievances. This term is specifically reserved for use in harassment cases. As long as a supervisor is not creating a "hostile work environment" because of your affiliation with a protected class, such as your race, gender, sexual orientation, religious affiliation, disability, etc., your supervisor can usually treat you as poorly as he/she chooses.

     Although each agency/department has its own grievance procedures, members of a police officer association should consult with their P.O.A. to assist them in determining whether a grievable issue exists.

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2. I've received a notice of discipline from my department. What do I do next?

     If you are a member of the San Diego Police Officers Association or the San Diego County Deputy Sheriffs Association, you are authorized to contact our office directly to arrange for legal assistance.

     If you are covered by the PORAC Legal Defense Plan through your union or association, contact PORAC at (800) 255-5610.  Once you obtain LDF authorization, contact our office directly.

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3. Who/what is the PORAC Legal Defense Fund and how do I contact them?

The Peace Officers Research Association of California (PORAC) Legal Defense Fund is available to peace officers who are members of an association which holds membership in PORAC, or someone in whose name an association makes contributions to the Legal Defense Fund.  There are currently 7 levels of coverage available to member associations.  You should contact your association to determine the level and the associated services to which you are entitled under the plan.

IMPORTANT! If you resign from your employment, you may lose your LDF coverage.

Some of the San Diego & Imperial County agencies who participate in the PORAC Legal Defense Fund are the Brawley PSEA, Chula Vista POA, Coronado POA, District Attorney Investigators Association, El Cajon POA, Imperial County Sheriffs Association, La Mesa POA, National City POA, and the Transit Enforcement Officers Association, among many others.

The PORAC Legal Defense Fund can be reached at (800) 255-5610.

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4. What is a Lybarger admonishment - and how does this landmark case affect law enforcement personnel?

A Lybarger admonishment derives its name from Lybarger v. City of Los Angeles, 40 Cal. 3d 822, 829, 221 Cal. Rptr. 529, 533 (1985). In interpreting Government Code Section 3303(e) and (h) the California Supreme Court determined that whenever the employer initiates interrogation of a peace officer and (a) it appears that the officer may be charged with a criminal offense as a result of his misconduct, or (b) the officer refuses to answer questions on the ground that the answers may be self-incriminating, the questioning must be preceded by a "Lybarger admonishment". The peace officer must be told,

"Among other things, that although he had the right to remain silent and not incriminate himself, (1) his silence could be deemed insubordination, leading to administrative discipline, and (2) any statement made under the compulsion of the threat of such discipline could not be used against him in any subsequent criminal proceeding." (See also Garrity v. New Jersey (1967) 385 U.S. 493, 500, 17 L.Ed. 2d 562, 567, 87 S.Ct. 616)

If the peace officer continues to stand on his Fifth Amendment right to remain silent in the face of the above admonition, he risks disciplinary action for his refusal to answer. If the peace officer agrees to answer questions after the above admonition, his answers can be used by the department for administrative purposes - not criminal prosecution.

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A Skelly hearing derives its name from Skelly v. State Personnel Board, 15 Cal. 3d 194, 124 Cal. Rptr. 14 (1975).  Skelly, a public employee, was terminated from his employment with the State of California.  The California Court of Appeal determined, among other things, that he was deprived of his due process right to pre-disciplinary discovery - the "materials upon which the action is based".   A Skelly hearing allows the officer to respond to the allegations prior to the imposition of any actual disciplinary action.

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A "liberty interest" in employment arises when a government charge seriously damages one's standing and associations in the community.  When one's good name, reputation, or integrity is at stake or when the government stigmatizes a person, foreclosing his or her freedom to pursue other employment opportunities, then the allegations damage standing and association."  Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701 (1972).  The employee must claim that the stigmatizing information is false.  Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882 (1977).

To have a "property interest" in a benefit [i.e. your employment], one must clearly have more than an abstract need or desire for it.  One must have more than a unilateral expectation of it.  One must, instead, have a legitimate claim of entitlement to it.  It is a purpose of the ancient institution of property to protect those claims on which people rely in their daily lives, reliance that must not be arbitrarily undermined.  Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701 (1972).  California public employees who have completed their probationary period ordinarily have a legitimate claim of entitlement, and thus a property right, to continued employment.  Skelly v. State Personnel Board, 15 Cal. 3d 194, 124 Cal. Rptr. 14 (1975).  Even a probationary employee may have a property interest, if he or she can point to applicable laws or personnel rules that restrict the grounds on which he or she may be discharged.  Brady v. Gebbie, 859 F. 2d 1543 (9th Cir. 1988), cert. denied, 109 S.Ct. 1577 (1989).

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7. What does "exhausting my administrative remedies" mean?

It is a legal doctrine that requires a party bringing a legal action to first utilize a public entity's available grievance, claims, and hearing procedures before filing suit in court.  In the absence of "exhaustion" of these remedies, a court generally will dismiss the lawsuit unless the party  bringing the action can show that the administrative remedies are futile or that there is a statutory exception to the exhaustion doctrine, such as that provided by Government Code Section 3309.5(b).

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8. What is a "writ of mandamus"?

Also referred to as a writ of mandate, it is a court proceeding challenging an administrative hearing.  We would file a writ of mandate on behalf of an officer who has exhausted his or her appeal of discipline imposed by the local agency and/or governmental entity.  For our purposes, the final reviewing entity is usually the city or county civil service commission.  When filed pursuant to Code of Civil Procedure ¤ 1085, the writ requests an inquiry into "whether the agency or commission proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.  Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." 

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