Welcome news came last Wednesday evening for San Francisco Police Department officers who are facing termination for misconduct: These officers may now appeal their cases to an outside California agency.
The San Francisco Police Commission — the civilian oversight body that has traditionally been the sole arbiter of serious police discipline — no longer has final say over whether an officer receives “major discipline,” defined as a 10-day suspension up to termination.
The commission voted unanimously last Wednesday to approve the rule change, allowing officers to appeal the commission’s own disciplinary decisions. The buck will now stop with the California Office of Administrative hearings.
The quasi-judicial tribunal adjudicates administrative disputes, especially those in which agencies discipline a licensed professional. For example, all Medical Board of California physician disciplinary hearings are heard by a judge from the office.
Prior to this rule change, an officer’s only recourse to an unfavorable Police Commission decision was a lawsuit in San Francisco Superior Court — which could be a long and burdensome process.
The new process, on the other hand, makes it easier for officers to challenge a decision by the commission, as the process is built-in.
“Everyone will appeal — why wouldn’t they?” said one veteran SFPD officer who asked to remain anonymous.
Around 80 percent of San Francisco’s public employees are afforded a process to appeal a disciplinary decision, said Susan Gard, a spokeswoman with the city’s Department of Human Resources.
However, the police department — along with the fire department — is unique in that discipline is imposed by a board of appointed officials on the recommendation of the chief.
But these rule changes take the final decision out of the Police Commission’s hands.
This move by the commission to limit its own authority was a long time coming. It came under the mandate of a 2017 appellate ruling that upheld a lawsuit filed against the city by now-retired Officer Paul Morgado.
The saga began in 2011, when the Police Commission fired Morgado in connection with a case in which he used racist language and wantonly arrested a black Army veteran in March 2008.
Morgado, however, turned around and sued the city — including then-Chief Greg Suhr, the Police Commission and the Office of Citizen Complaints — for violating California’s Public Safety Officers Procedural Bill of Rights, which states that an officer is entitled to appeal a disciplinary decision.
A San Francisco Superior Court judge ruled in Morgado’s favor in 2014, and the city lost an appeal in 2017, leaving the city and the Police Commission to come up with a procedure by which officers can appeal its decisions.
That procedure was passed last Wednesday. Yet the so-called “Rules of Administrative Appeals” is only a stopgap measure until the commission can come up another process that keeps discipline within the city’s jurisdiction, said Police Commission President Bob Hirsch.
“The new process is intended as a short-term fix necessitated by the Morgado decision,” Hirsch said in a text message. “We are working on a more permanent fix which will require a charter amendment.”
That could take a long time, however; charter amendments require voter approval.
Moreover, it’s unclear to what extent the 2017 ruling and the passage of the new rules apply retroactively to officers disciplined in past years who now might wish to appeal.
City Attorney spokesman John Coté deferred to the Police Commission on this question, and Hirsch was unclear on that matter.
Morgado, who departed the SFPD in 2011, has worked as a mortgage broker in San Diego for the past seven years.
He did not answer Mission Local’s inquiries about whether he plans to appeal.