In Hughes v. County of San Bernardino, one of two published decisions issued on January 28, 2016, and argued by Michael A. Morguess, the Fourth Appellate District pushed back on a series of cases out of Los Angeles that hold when an peace officer retires during the pendency of a civil service disciplinary appeal, he or she forfeits the appeal and the civil service body loses jurisdiction. Deputy Sheriff Robert Hughes filed an administrative appeal to the civil service commission from discipline. During the pendency of the appeal, he suffered a heart attack and retired for medical reasons before the hearing could be rescheduled. When Hughes sought to reschedule the hearing—post-retirement—the County civil service commission refused, ruling that it no longer had jurisdiction because Hughes had retired. Hughes file a petition for writ of mandate, seeking to compel the Commission the continue with the hearing both under the civil service rules since he had initiated the hearing prior to retirement, and based on due process. Relying on a series of cases from the Los Angeles appellate courts (Zuniga v. Los Angeles Civil Service Comm. and its progeny), the trial court held that Hughes should have postponed his retirement so the commission would not lose jurisdiction—in other words, risk his health.

The Law Office of Michael A. Morguess appealed on behalf of Hughes.  The Court of Appeal not only rejected the trial court’s ruling but also disagreed with current case law, creating a split of authority between the appellate districts. The Court held that when an employee properly initiates the administrative appeal process with the commission, and later retires during the pendency of the hearing, the Commission must continue to hear the appeal unless the civil service rules specifically provide that the commission loses jurisdiction to complete the administrative appeal. Presumably, this would apply to hearing bodies other than civil service commissions.

The Court also considered the practical effect of the County’s position: “An administrative appeal can stretch over a long period of time . . . . As this example demonstrates, a lot can happen to a peace officer during the long course of an administrative appeal, including age, illness, and on-the-job injuries. It seems to us quite inequitable to require, as the trial court explicitly did here, that an ill, injured or retirement-age employee put at risk his well-being by continuing to work in order to see to completion his administrative appeal of an adverse personnel action.” In other words, Hughes must be permitted to complete his administrative appeal even though he retired while it was pending. Although the Court did not need to reach the issue, due process requires an administrative appeal prior to being permanently deprived of salary and benefits, as well as the opportunity to clear one’s name of charges. The County, as well as the Los Angeles cases, unfairly propose that an employee either postpone retirement, or leave the money and reputation on the table and walk away. Thankfully, Hughes now has an opportunity to complete his appeal, clear his name and recover lost wages.

The case is Hughes v. County of San Bernardino (2016) —Cal. App. 4th —.