WHITE v. COUNTY OF SACRAMENTO (1981)

Plaintiff appeals from a judgment denying his petition for a writ of mandate. (Code Civ.Proc., s 1085.) Plaintiff sought to compel the Sacramento County Civil Service Commission (commission) to grant him a hearing to contest his reassignment from the detective division to the patrol division of the Sacramento County Sheriff's Department. We affirm the judgment.

FACTS

Plaintiff has been employed by the Sacramento County Sheriff's Department in the civil service classification of deputy sheriff since April 1, 1965.

In January of 1972 he was assigned as a field training officer within the patrol division of the sheriff's department to supervise the training of new recruits. Subsequently, by virtue of such assignment, he was given the working title of corporal and a five percent special pay allowance.

In 1975 he was assigned as a detective to the detective division of the sheriff's department. The assignment also carried with it a five percent special pay allowance.

The positions of corporal and detective are not civil service classifications and no competitive examination is required for assignment to them.

In December of 1979 plaintiff was reassigned to the patrol division on the ground that his performance as a detective was deficient. He thereby lost his position as a detective and the accompanying special pay allowance.

Plaintiff sought and was denied an administrative hearing at which to contest his reassignment. This action followed.

DISCUSSION

I

Plaintiff first claims a hearing right under the County of Sacramento Civil Service Rules. We disagree.

Civil service rule 11.1 provides for an administrative hearing for all actions which are “personnel action(s).” The rule defines “ ‘personnel action’ ” as any “reduction of pay step in class, suspension, demotion, or dismissal.”

The loss of the five percent special pay allowance does not count as a “reduction of pay step in class.” The standard salary schedule provides for five pay steps within each civil service class. The special pay allowance is not a “pay step.” Rather, it is additional pay which attaches, not to the civil service classification, but to certain specialized assignments within the classification.

Plaintiff was at the highest pay step in the class of deputy sheriff when he was made a detective. When he was reassigned to the patrol division, he still received the highest pay step salary in the class of deputy sheriff.

Additionally, plaintiff was not the subject of a demotion, as he claims.

A “demotion” is defined as “(a) change in status of a permanent employee from a position in one class to a position in a lower class, defined as one having a lower maximum salary rate.” (Rule 15.20, County of Sacramento Civil Service Rules.) Here, plaintiff's reassignment was not an inter-class transfer but merely an intra-class assignment to a different position.

II

Plaintiff also seeks a hearing right under the Public Safety Officers Procedural Bill of Rights Act. (Gov.Code, s 3300 et seq.) His contention here, as below, is a narrow one. He claims that his reassignment was a demotion and his loss of special pay allowance a reduction in salary which, he says, are, per se, punitive actions giving rise to a right of appeal under Government Code section 3304.¹ We do not agree.

Plaintiff relies on section 3304, which states: “(b) No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency without providing the public safety officer with an opportunity for administrative appeal.” “Punitive action” is defined in section 3303 as “any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” (Emphasis added.)

Plaintiff misreads the statute. The terms “demotion” and “reduction in salary” do not constitute punitive actions as such. They are qualified by the phrase “for purposes of punishment.” This reading is made clear by the legislative history of section 3304. The Public Safety Officers Bill of Rights Act was enacted through the vehicle of Assembly Bill No. 301 of the 1976 Regular Session. Just prior to its adoption, it provided, in section 3304, subdivision (b), that a demotion or dismissal or denial of a promotion, without more, was subject to an administrative appeal. But in the last amended version of Assembly Bill No. 301 the Legislature replaced that language with the present language, tying the right to an administrative appeal to “punitive action” and defining the phrase in section 3303. The amendments² show a deliberate rejection of the notion that a demotion or reduction in salary is per se punitive. Obviously, some measure of latitude must be allowed those charged with the duty of promoting efficiency in the various departments of government to assign personnel within the same class to positions best suited to individual talents. Such a reassignment is not synonymous with punishment.

Plaintiff makes no claim here (and did not below), and there is nothing in the record which demonstrates that his reassignment was made for the purpose of punishment. No charges of misconduct were filed nor was the reassignment intended as discipline for acts of misconduct. (Cf. Doyle v. City of Chino (1981) 117 Cal.App.3d 673, 677, 172 Cal.Rptr. 844.) To the contrary, the record shows that plaintiff's assignment as detective was contingent upon efficient performance and that his reassignment was an administrative response to a deficient performance.

Plaintiff's reliance on Heyenga v. City of San Diego (1979) 94 Cal.App.3d 756, 156 Cal.Rptr. 496, is misplaced. In Heyenga, the officers' transfer to a different position was based upon charges of misconduct brought against them. (Id., at p. 759, 156 Cal.Rptr. 496.)

Plaintiff also makes a constitutional claim of entitlement to a hearing (Board of Regents v. Roth (1972) 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548) predicated upon the statutory rights in the Government Code. But the claim is no sounder than the statutory claim upon which it rests and plaintiff makes no other.³

The judgment is affirmed.

FOOTNOTES

1.  For purposes of this discussion, we assume, but do not determine, that plaintiff was demoted and did suffer a reduction in salary within the meaning of sections 3303 and 3304 and that such meanings are not limited by the civil service rules of the county.

2.  The relevant portions of sections 3304 and 3303, as amended to their present forms, are set forth below. (Assem. Bill No. 301 (1975-1976 Reg.Sess.), amended in conference Aug. 12, 1976.) Italicized language shows additions and strikeout type shows deletions:Section 3304, subdivision (b): “No dismissal or demotion punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency without providing the public safety officer with an opportunity for administrative appeal.”Section 3303: “When for any reason any public safety officer is under investigation or and subjected to interrogation by his commanding officer, or any other member of a police the employing public safety department, which could lead to disciplinary punitive action, demotion, dismissal, transfer or administrative charges, such investigation or such interrogation shall be conducted under the following conditions: conditions. For the purpose of this chapter, punitive action is defined as any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.”

3.  Because plaintiff's reassignment was not “punitive action,” he is not protected by the provisions of section 3304. Accordingly, section 3304 confers upon him no property interest which entitles him to an administrative hearing. Plaintiff has not raised here or below, and we therefore do not consider, the claim that expectations generated by the special duties, ranking and pay of a detective rise to the level of a protectable property interest.

BLEASE, Associate Justice.

REYNOSO, Acting P. J., and CARR, J., concur.