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 violation of a contract, 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 find a violation of a particular rule, departmental policy, or contract. 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 typically 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 association to assist them in determining whether a grievable issue exists.
If you are a member of the San Diego Police Officers Association or the Deputy Sheriffs Association of San Diego County, you are authorized to contact our office directly to arrange for legal assistance.
If you are covered by the PORAC Legal Defense Fund through your union or association, contact PORAC at (800) 255-5610. Once you obtain LDF authorization, contact our office directly.
A Lybarger admonishment derives its name from Lybarger v. City of Los Angeles (1985) 40 Cal. 3d 822. 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 the following:
"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.)
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.
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 (1972) 408 U.S. 564. The employee must claim that the stigmatizing information is false. Codd v. Velger (1977) 429 U.S. 624.
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. California public employees who have completed their probationary period ordinarily have a legitimate claim of entitlement, and thus a property right, to continued employment. 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 (9th Cir. 1988) 859 F. 2d 1543.
Copyright © 2017 Bobbitt, Pinckard & Fields, A.P.C. All Rights Reserved.