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Officer is Entitled to Administrative Hearing Over Loss of Longevity Pay As Result of Below Standard Evaluation

Posted on Monday, September 01, 2003 at 12:00PM

An arbitrator recently ruled that Officer Christine O’Keefe, of the Redwood City Police Department was entitled to an administrative appeal of her loss of longevity pay. The loss of longevity pay had resulted from a single below standard rating in O’Keefe’s six monthly evaluation. Under the Memorandum of Understanding, a below standard rating automatically resulted in a loss of any longevity premium, without any provision for an administrative appeal.

O’Keefe filed a grievance seeking to challenge the loss of longevity pay. The city argued that the issue was non-grievable since, it claimed, (1) negative evaluations were not grievable, and (2) O’Keefe had made an untimely grievance.

Arbitrator Franklin Silver heard the arbitrability dispute earlier this year. Arbitrator Silver accepted the association’s arguments that the loss of longevity pay was arbitrable and also that the grievance had been timely filed. The arbitrator recognized that a punitive action under the Public Safety Officers’ Procedural Bill of Rights Act does not include negative comments in a performance evaluation. Nevertheless, he recognized White v. County of Sacramento, 31 Cal. 3d 676 (1982), and its recognition that an action leading to a reduction in salary based upon alleged deficient performance does constitute a “punitive action” for which the right to an administrative appeal attaches. As to the city’s timeliness argument, the arbitrator found that the city’s own paperwork and witnesses showed that the action had not become final until weeks after that claimed by the city. The city had contended that the action was final when the negative evaluation was first shown to O’Keefe. Silver concluded that a more appropriate date for the personnel action was when that form passed through the chain of command and city bureaucracy and was finalized.

O’Keefe was represented in her action by Gregg Adam of Carroll, Burdick & McDonough.

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