A California Court of Appeal has ordered the City of Calexico to reinstate a police officer, reversing a superior court decision ordering his termination.  Shaun Sundahl was a police sergeant for the City of Calexico.  His department did not think he was cutting it as a sergeant, so the Chief of Police proposed his demotion.  Although this was disappointing in its own right, the City Manager then increased the level of discipline to termination. His discipline related to issues of competency as a sergeant and supervisor.

Sundahl appealed his termination.  Following a hearing before the Calexico Personnel Commission, the Commission upheld the allegations, but determined the appropriate discipline was a demotion—the City never pointed to any similar misconduct as a rank and file officer, prior to being demoted to sergeant.  So, the demotion, rather than termination, made some sense in this case.

The City of Calexico petitioned the trial court for a writ of administrative mandate on only one issue—the level of discipline imposed by the Calexico Personnel Commission.    The City did not challenge the findings.  Instead, the City argued that the Commission’s failure to terminate Sergeant Sundahl—instead of demoting him because it found he did not have the aptitude to be in a supervisory position—was an abuse of discretion.  In other words, argued the City, the Commission had to terminate Sundahl, and could not demote him.  The superior court agreed and granted the petition, ordering the Commission to instead terminate Sundahl.   The Law Office of Michael A. Morguess appealed that decision on Sundahl’s behalf.

Sundahl was a police officer for the City of Calexico.  He was promoted to Sergeant in 2007.  In 2009, the City gave him a Notice of Intended Disciplinary Action. The recommendation was that he be demoted from sergeant, back to police officer. The misconduct alleged was that with regard to three separate incidents and in his capacity as a supervisor and sergeant, he “failed to supervise and take control of [each] incident” and “demonstrated unprofessional and excessive conduct resulting from [his] position as a Police Sergeant.” Sundahl appeared before the City Manager for a hearing pursuant to Skelly v. State Personnel Board.  Based upon the same charges, and in an unusual move, the City Manager actually increased the penalty to termination.

Sundahl appealed his termination to the Calexico Personnel Commission. The Commission upheld the allegations in the charging documents, but determined that “the penalty of termination is not appropriate in this case.  Clearly, Sundahl demonstrated a lack of leadership and the inability to properly supervise a situation.  The Personnel Commission does not find, however, that he lacks the ability or veracity to be a productive police officer.  The Personnel Commission also is mindful that police management had proposed discipline less than termination, but the city manager increased the penalty to termination.”

The Commission determined that Sundahl should be “restored to the last non-supervisory position he held prior to his promotion to sergeant.” The City filed a petition for writ of administrative mandate.

The superior court determined that the Commission’s findings were not supported by substantial evidence.   For example, where the Commission stated “we do not find that [Sundahl] lacks the ability of veracity to be a productive police officer,” the superior court was troubled that the Commission did not cite any evidence for its finding.  But the City did not challenge the Commission’s findings, a strategic move that would later haunt it.  It merely challenged the level of discipline.    Yet, the trial court felt the burden was on Sundahl to justify the demotion, rather than on the City as the petitioning party to prove that a demotion, instead of termination, was an abuse of discretion.

This is where it is important to understand the technical and procedural nuances of administrative mandate, which is something the superior court failed to appreciate.  Indeed, in this author’s experience, the typical superior court judge does not fully grasp mandate proceedings.

Anyone reading this article knows of some peace officer terminated for what seems like more than innocuous, but less than egregious, conduct.  When he or she petitions the superior court for a writ of administrative mandate, they may have a very strong argument for why termination is harsh, if not excessive.  Maybe other officers were not terminated for similar misconduct; or maybe, while there was misconduct, everything turned out all right—a sort of no harm no foul argument.  And still, much to the frustration of the officer, the termination was upheld by the superior court.

This is because a superior court judge looking at the level of discipline is not permitted to substitute his or her judgment for that of the agency’s; the judge is not permitted to increase or decrease the level of discipline based on what he or she would have done.  Rather, the judge is limited to asking only whether the level of discipline is an “abuse of discretion.”  That means the court asks, given the facts before it (i.e., the sustained findings of misconduct), is the level of discipline within the acceptable range of options?  One way to phrase this inquiry is whether reasonable minds could differ on the level of the penalty.  If they can, then the discipline imposed is usually determined to not be an abuse of discretion.  The discipline has to be so out of balance to the misconduct before it may be declared an abuse of discretion.

This test applies whether the petitioning party is the employee or the employer.  In Sundahl’s case, the superior court judge made the mistake of substituting his own judgment for that of the Personnel Commission.  The judge failed to appreciate the limited task before him:  given the findings by the Commission that the misconduct was the result of the exercise of supervisory and leadership functions, and the absence of any discipline prior Sundahl’s promotion, did the Commission abuse its discretion in imposing a demotion back down to officer.  The Court of Appeal, in undertaking its similarly limited task, correctly held that the demotion was not an abuse of discretion, reversed the trial court judgment, and ordered Sundahl reinstated.

(December 2013)

I specialize in labor and employment litigation with a particular emphasis on writs and appeals.   My typical clients are either public employees who have faced an adverse employment decision as a result of discipline, retaliation or discrimination; and public employee unions facing labor issues with their public employer.

I’m sort of a law geek:  I love learning, thinking about, discussing and arguing the law.  Arguing in court is actually pretty thrilling to me, even more so when I win.  There’s nothing like telling a client they’re going back to work.  I also litigate in the federal and state courts of appeal, and am certified by the California State Bar as an appellate specialist.  Appellate law is particularly gratifying because as an attorney, I get to be a part of shaping the law through case decisions, and if I can do it through reversing a bad trial court decision, that’s even better.  Here is a link to a list of published appellate cases I either briefed and argued, or just briefed.

I also try to be straightforward with clients.  I won’t tell you you have a great case if you don’t, and you’re unlikely to ever hear me say you have a slam dunk.  If you did, you probably wouldn’t need an attorney in the first place.  And even a great case can fall into the hands of a judge or jury who renders a bad decision.  It happens.

I do my best to make sure client expectations are realistic, and I will tell you the strengths and weaknesses in your case as I see them.  Every case has a mixture of both and it’s the attorney’s job to recognize and deal with them.  I should warn you that when we first meet about your case and you enthusiastically tell me your story and why you think you have a good case, I will be skeptical.  It’s not you, it’s me:  I have to be skeptical.  The only way I can generate the same level of enthusiasm about your case is to get there on my own through analysis of the good and bad facts, and the relevant law.

I believe all of these qualities make me a good attorney, and they have earned me the respect of clients, colleagues, opposing counsel, and the bench.  I hope I can help you.