SHAW v. CITY OF FORTUNA (1984)

 The City of Fortuna appeals from a judgment granting a peremptory writ of mandate commanding it to grant a hearing pursuant to Government Code section 3304, subdivision (b),¹ to Robert Wayne Shaw, a former police officer terminated during his probationary period of employment.   We hold that the Public Safety Officers Procedural Bill of Rights Act (Act) ( Gov.Code, § 3300 et seq.) entitles probationary peace officers to a hearing prior to termination, and affirm.

While serving his initial probationary period as a police officer for the City, Shaw was terminated for “unsatisfactory performance.”   Shaw's petition, which is not refuted by the record provided us, reflects that his “Performance Evaluation Reports” by the City rate him as a satisfactory employee.   He is described therein as a “highly capable individual” and one who “should prove to be an outstanding officer.”   Upon receiving notice of his termination he requested a hearing pursuant to section 3304, subdivision (b), but was denied.

Section 3304, subdivision (b), is part of the Act, and provides:  “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.”

The City contends the right to a hearing under the foregoing section is dependent upon punitive or disciplinary action, that the dismissal herein was not punitive or disciplinary, and that as a consequence no right to a hearing exists.

The City's contentions cannot be sustained.   First, the Act applies to probationary employees.  (Barnes v. Personnel Department (1978) 87 Cal.App.3d 502, 151 Cal.Rptr. 94.)   Second, section 3303 specifically defines punitive action as, inter alia, “any action which may lead to dismissal.”   Any doubt that a dismissal invokes the protection of the Act is eliminated by the decision of our Supreme Court in White v. County of Sacramento (1982) 31 Cal.3d 676, 183 Cal.Rptr. 520, 646 P.2d 191.  White stands for the obvious principle that a dismissal is punitive per se, and entitles an employee covered by the Act to its procedural protections.

 The City also contends that since a probationary employee is terminable at will, the application of section 3304, subdivision (b), will result in a needless act.   We disagree.   Although probationary public employees serving at the will of the appointing authority may be subject to termination without cause, that rule is not without its exceptions.   For example, the appointing authority may not act capriciously and terminate employment for reasons of race, ethnic origin, religion or sex.  (Gov.Code, § 12900 et seq.)   Nor can it terminate for the exercise by the employee of constitutionally protected rights.  (Healdsburg Police Officers Assn. v. City of Healdsburg (1976) 57 Cal.App.3d 444, 129 Cal.Rptr. 216.)   Shaw contends that one of the reasons for his termination was his affiliation with the local police officers organization, a protected activity.  (Ibid.;  Meyers-Milias-Brown Act, Gov.Code, §§ 3500–3510.)   A hearing will establish the reason for his discharge and also provide a record for judicial review.

 In his appeal, Shaw seeks back pay and attorneys' fees which were denied by the trial court.   Shaw did not cross-appeal as required by rule 3, subdivision (c), California Rules of Court, and cannot now contest those rulings on this appeal.  (Puritan Leasing Co. v. August (1976) 16 Cal.3d 451, 128 Cal.Rptr. 175, 546 P.2d 679.)

The judgment is affirmed.

FOOTNOTES

1.   All statutory references are to the Government Code unless otherwise specified.

HANING, Associate Justice.

LOW, P.J., and KING, J., concur.