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Merced Police Detective Prevails on POBR Violation

Posted on Thursday, May 01, 2003 at 12:00PM

After 21 years of dedicated service to the citizens of Merced, city of Merced police officer John Fister recently endured his first negative employment interaction with his employer, the Merced Police Department. After two years as a detective in the police department’s investigation division, Fister was summarily removed from the position causing him to suffer a 7.5% reduction in his salary. No other officer who challenged the removal had been removed involuntarily from a detective assignment probably because of a provision of the POA’s Memorandum of Understanding (MOU) with the city, which purported to allow the police chief to remove officers from the assignment at his discretion.

The case began in February 2002, when Fister received notice that he was the subject of an internal affairs investigation. The investigation concerned allegations that Fister was not current with his follow-up (supplemental) reports. Following the investigation, Fister received a written reprimand for failing to complete follow-up investigations in a timely manner. This was the very first punitive action Fister received as a member of the department.

Soon thereafter, Fister received an inter-office memorandum from the deputy chief ordering his involuntary transfer from the investigation division to the patrol division. Fister was further directed to update all of his pending investigations to a satisfactory level prior to the transfer. After receiving the notice, Fister arranged a meeting with the police chief in an effort to talk him out of the transfer. Fister explained to the police chief that in addition to being the detective predominantly responsible for auto theft investigations, he was saddled with numerous other investigations. Fister’s active caseload exceeded that of any other detective by 164 cases. Despite Fister’s explanation, the police chief transferred Fister to patrol causing him to suffer the reduction in his base monthly salary.

When Fister’s LDF panel attorney, Gary Messing, from the Sacramento office of Carroll, Burdick & McDonough LLP, asserted Fister’s right to an administrative appeal to challenge the punitive transfer as required by the Peace Officers Procedural Bill of Rights (POBR), the police chief admitted the transfer was involuntary, but intimated that the transfer was not punitive. The police chief cited the MOU provision stating that “the subsequent movement of an officer from investigative (detective) to police officer shall not be considered punitive action”. Messing subsequently explained to the police chief that a transfer undertaken for the purposes of punishment accompanied by a reduction in salary is punitive action per se under the POBR and mandates an opportunity for appeal to a full evidentiary hearing. The chief refused to grant such an appeal.

Messing and his partner Tim Talbot, also an LDF panel attorney, filed a Petition for Writ of Mandate in the Superior Court. Citing to Otto v. Los Angles Unified School District, 89 Cal.App.4th 985 (2001) and Guiffre v. Sparks, 76 Cal.App.4th 1322, 1329-1330 (1999), Messing and Talbot asserted that Fister was entitled to an administrative hearing before a neutral fact finder to challenge the transfer.

Upon receipt of the Petition for Writ of Mandate, attorneys representing the city of Merced offered to resolve the case by reinstating Fister to his detective position with full back pay and benefits. The parties’ agreement to settle the dispute resulted in the superior court entering a stipulated judgment on behalf of Fister. The chief of police has subsequently agreed to resolve any remaining issues and will retain Fister in the investigations division.

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