Credibility determinations are often at the heart of administrative hearings, with the trier of fact being an arbitrator, or a commission. However, as discussed below, on a petition for writ of administrative mandate, a superior court judge steps into that role, often reassessing those credibility determinations. A recent example of such a judicial reassessment occurred when a Superior Court judge ordered the City of San Bernardino to set aside its disciplinary findings against police officer Edward Andrade and to “reverse and set aside its decision” terminating him from the Department.

In early 2015, the City of San Bernardino terminated Officer Andrade, after an off-duty argument with his girlfriend.  The San Diego Sheriff’s Department conducted an investigation and forwarded its findings to the San Diego District Attorney’s Office for evaluation of a possible misdemeanor. Less than a week after the incident, the District Attorney rejected the filing, finding the “alleged victim . . . initiated the violence.”

Despite all this, the Department relied on the impressions of the arresting sheriff’s deputies and their reports. Andrade was terminated. He appealed the termination to the City’s Personnel Commission. Testimony during the administrative hearing showed that he was not the cause of any injuries observed on his girlfriend.  The Department presented evidence of an investigator who concluded that Andrade “must have” caused the injuries.  But the only testimony to support this was the conclusions of one of the Department’s Professional Standards investigators, and his conclusion was simply based upon his reading of the reports prepared by internal affairs and the deputy’s reports, but none supported that conclusion.  Finally, the reports, while admissible, still constituted hearsay and in administrative proceedings, hearsay alone may not support an administrative finding. (Gill v. Mercy Hosp. (1988) 199 Cal. App. 3d 889, 910.)

The Department argued that Andrade and the girlfriend concocted a story after the events. But as Andrade’s counsel pointed out, the girlfriend was interviewed while Andrade was still in custody and the two never would have had a chance to coordinate their statements. Regardless, the Commission upheld the investigative findings and Andrade’s termination.

Castillo Harper, APC sought judicial review by filing a petition for writ of administrative mandate (Cal. Civ. Proc. §1094.5) challenging the termination.  The Superior Court overturned the findings and discipline.  Because this case involved credibility determinations, it was important the Court understand its function.  Public employers often emphasize and overstate the deference a superior court must accord a personnel commission’s findings, and often assume they have a lock on the case because of it.  This case was no different.  However, the court sits as the trier of fact and indeed independently weighs the evidence and makes factual determinations, to determine if the charges are supported by the weight of the evidence.  (San Dieguito Union High School District v. Commission on Professional Competence, (1985) 174 Cal.App.3d 1176, 1180.) While the superior court must afford a strong presumption of correctness to the administrative findings, those findings are merely the “starting point” for review. (Fukuda v. City of Angels (1999) 20 Cal. 4^th 805, 817.)  “Because the trial court ultimately must exercise its own independent judgment, that court is free to substitute its own findings after first giving due respect to the agency’s findings.” (Id. at p. 818.) Indeed, as to resolving credibility issues – often the most critical challenge in writs of mandate – the “independent judgment” standard requires the judge to reweigh the evidence and resolve any conflicting testimony in his or her own mind.  (Bogart v. Board of Medical Examiners (1951) 105 Cal. App. 2d 250, 253)  Therefore, it was important the Superior Court be convinced of the weakness of the deputies’ reports and testimony – notably their inconsistencies and that they were merely based on hearsay statements – and the professional standards investigator’s conclusions, which were based on the same reports.

The Court noted that there was “no direct evidence” that Andrade caused the injuries he was accused of causing.  The Court further noted that the deputies’ conclusions in their reports were “based on speculation” and that it was “difficult to imagine” how he could have caused the injuries as described.  “All three witnesses testified the force used . . . was light to moderate.” The court noted “[n]o evidence was presented contradicting [their] testimony.”  The Department argued that Andrade had been drinking and was intoxicated enough to be arrested for public intoxication; however, he was neither charged with nor disciplined for that and more importantly, both responding deputies testified that in fact he “did not meet the requirements for public intoxication.”  The court also noted inconsistencies in the reports, and that the Professional Standards Unit investigator “was not an eyewitness and was testifying based upon the reports prepared by other individuals” including the deputies.  The Court found these reports “contain[ed] inconsistencies and [their] accuracy [was] . . . questionable.”

Here, the Court granted the Petition in full, ordering the City to reverse and set aside its decision. The Department presented its case as if the Court must uphold its decision if any evidence supports the findings; however, the Court correctly understood its task was to determine whether the findings were supported by the weight of the evidence.  Clearly, they were not.

Lessons to be Learned from this Case:

Despite this outcome – here the judge understood the Court’s obligation to exercise its independent judgment and reweigh issues such as credibility – courts are often reluctant to set aside credibility findings, perhaps believing that the hearing officer or commission who viewed the witnesses is in the best position to evaluate credibility.  While in many judicial situations this is a generally a sound approach to such issues (and in some cases it’s required), it is up to the LDF attorney to educate the Court on its obligation to reweigh the evidence, and in particular credibility, in an administrative mandate petition, and help it overcome its inclination to defer to the administrative agency on credibility findings. This is done by having a clear understanding of the applicable law as discussed above and below – not many judges are familiar with administrative mandate – providing a clear path to justify, in the judge’s mind, setting aside the credibility findings against the petitioning employee.  That usually entails a combination of reciting the competing evidence; identifying the inconsistencies in testimony and reports; focusing in on the reasons, if articulated, that the hearing officer, commission, or council, believed one witness over another; and the equities of the case.  But a thorough understanding of the particularized law in administrative mandate is crucial because the judge looks to the attorney to explain why he or she should cast aside the agency’s credibility determination.

In some circumstances, you can use the judge’s tendencies to defer on credibility to great advantage. One obvious situation is where the employer lost the administrative appeal and is now the petitioning party.  In that situation, the Court is required to defer to the administrative agency’s credibility and factual findings, if they are supported by substantial evidence; the Court does not reweigh the findings when the employer seeks judicial review.  However, that particular circumstance is beyond the scope of this article (and perhaps deserves its own treatment).

A common situation is where a hearing officer renders an advisory decision in favor of the employee police officer, overturns the allegations, and finds it is you – the employee – who testified credibly. Many of us know the heartbreak of having a winning advisory decision overturned by a city council impenetrable to the idea that a neutral third party is recommending reinstatement over the chief’s decision to terminate, even if it’s the right thing to do.  But what happens?  The arbitrator or hearing officer’s advisory decision gets overturned, the council finds everybody is credible except you, and the notice of termination is basically republished as the council’s decision.

Here, case law is helpful to argue in a writ of mandate petition that a council or other quasi-adjudicatory body is not free, merely based on a conflict in the evidence, to set aside the Hearing Officer’s credibility and factual findings.

In Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951), the United States Supreme Court discussed the import of a hearing officer’s advisory decision within the record where a court reviews the findings of the National Labor Relations Board “on the record.” (340 U.S. at 493.) The Court considered in reviewing the record that “[s]urely the [hearing officer’s] report is as much a part of the record as the complaint or the testimony . . .” (Id.)  The Court stated that the Board, as the final decisionmaker, should “give to the [hearing officer’s] report such probative force as it intrinsically commands” because of the high standards and competence of hearing officers, requiring them to issue “a proposed report, together with a recommended order.’[citation]” (Id. at 495.)  Such requirements evince a purpose “to increase the importance of the role of examiners in the administrative process.” (Id.)

The Supreme Court stated the hearing officer’s report “’would be of consequence, for example, to the extent that material facts in any case depend on the determination of credibility of witnesses as shown by their demeanor or conduct at the hearing.’[citation]” (Id. at 496.)  Importantly, the Court held that “evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s than when he has reached the same conclusion. The findings of the examiner are to be considered” and its significance will depend largely on the importance of credibility to the particular case. (Univ. Cam. Corp., supra, 340 U.S. at 496, emphasis added.)

Similarly, when an arbitrator or hearing officer makes credibility determinations favorable to an employee, a city council or personnel commission should be disinclined to overturn them – though it happens often.  Any findings made by the council or commission that contradict the hearing officer’s findings should be somewhat suspect and the evidence cited by, and credibility findings made by, the council or commission should be given less weight by a court in a petition for writ of administrative mandate when those determinations conflict with the hearing officer’s findings.  Indeed, the hearing officer or arbitrator’s advisory decision, after a hearing, is itself evidence that may weigh against the council’s findings.

California has adopted a similar view concerning cases under California Government Code Section 11425.50 of its Administrative Procedures Act (“APA”) and the role of credibility findings rendered by a hearing officer. In California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4^th 575, the Court observed that Section 11425.50(b) provides that “if the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review the court shall give great weight to the determination to the extent [it] identifies the observed demeanor, manner, or attitude . . .” (California Youth Authority (“CYA”), supra, 104 Cal. App. 4^th at 587)  This statute “’adopts the rule of Universal Camera Corp [citations] requiring that the reviewing court weigh more heavily findings by the trier of fact (the presiding officer in an administrative adjudication) based on observation of witnesses than findings based on other evidence.’ [citations]” (Id. at 587-588) The Court noted the extent to which agencies must defer to hearing officer findings: “’[f]indings based substantially on credibility of a witness must be identified by the presiding officer . . . . However, the presiding officer’s identification of such findings is not binding on the agency or the courts, which may make their own determinations whether a particular finding is based substantially on credibility of a witness.  [The determination is only entitled to great weight] to the extent the determination derives from the presiding officer’s observation of the demeanor, manner, or attitude of the witness.’ [citation]” (Id. at 588.)  Nothing, however, precludes an agency from overturning a credibility determination “after giving the observational elements of the credibility determination great weight.” (Id., citing Cal. Evid. Code section 780.)

Although the proceedings before an arbitrator or hearing officer, and the city council or commission, are not constrained by the APA, its purposes are logically extended to it in determining, for example, whether a trial was fair. (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal. App. 4^th 81, 91.)  The need for such constraints are more urgent when a disciplinary matter is held before a local agency: for example, a body such as the State Personnel Board (SPB) and NLRB are independent bodies and thus less likely to disregard a hearing officer’s findings when those findings are against the employing agency’s interest; they have no stake in the outcome.  However, a city council is usually not only the appellate body reviewing a hearing officer’s decision; it is also the employer of the disciplined employee.  Though in theory a council is presumed to be impartial, it still has an interest in seeing that an employee who the chief of police or fire chief thinks should be terminated, does not return to work. Not only does this call into question its impartiality, but the proof is in the pudding: when an employee prevails in an advisory decision, the city council usually overturns the advisory officer’s findings and upholds the discipline.

Moreover, when a competent and experienced hearing officer is used to view the witnesses and testimony, and prepare factual findings and recommendations on the penalty, he or she is the only neutral person to view the witnesses and is in a position to render credibility findings based on viewing the witnesses through both direct and cross examination, and his or her own examination. There is no reason a hearing officer’s credibility determinations should be entitled to any less weight than an IA investigator’s findings.  Indeed, the investigator is not bound, as is a hearing officer, by judicial or other ethical considerations pertaining to impartiality; the hearing officer’s determinations are thus entitled to greater weight because of the manner in which they are reached.

Otherwise, the hearing officer merely serves as a delegate to do the hard work and give the cover of an appearance of a fair hearing.  City councils and other local agencies are therefore not free to so easily cast aside credibility and factual findings made by an advisory hearing officer when they are against the city’s interest.  While there may be circumstances under which that is justified, the above principles hold that contrary findings by a council or local agency should be viewed by a court with great skepticism; moreover, the advisory decision is itself evidence, in addition to any testimonial and documentary evidence, that a savvy party should use to show an agency’s adverse credibility and factual findings are against the weight of the evidence.

Michael A. Morguess is an attorney with Castillo Harper APC. His practice focuses on petitions for writ of mandate and appellate matters.  He is certified by the California State Bar as an Appellate Specialist. He is licensed in California, Oregon, and Washington.

A San Bernardino County Superior Court has found that a Civil Service Commission’s findings upholding a termination were against the weight of the evidence presented at the administrative hearing; that the Department violated pre-disciplinary due process rights (i.e. Skelly rights) by failing to provide audio recordings of critical complaining witness statements; and ordered retroactive reinstatement with backpay, benefits, and interest calculated back to the date of termination.

Deputy Donna Williams had been a deputy sheriff for seven years, nine months with the San Bernardino County Sheriff’s Department at the High Desert Detention Center, where she worked in the jail.  During the 2013 holiday season, Williams attended the High Desert Detention Center Christmas Party. She left the party around 11:15 p.m. and then went to a friend’s after-party. From there, Deputy Williams and her boyfriend drove to Del Taco on their way home.

They arrived at the Del Taco drive-thru at approximately 4:00 a.m. They received their food, pulled past the drive-thru window to leave, and noticed there was a car stopped, blocking the driveway exiting the drive through window.  Shelton, the driver of the other vehicle, got out and approached the drive-thru window. Deputy Williams politely requested that Ms. Shelton move her car.  Shelton told Williams to “shut up” and added some racial epithets.  Deputy Williams and her boyfriend were shocked at this response.  Shelton came back around the passenger side of Williams’ car and went up to the drive-thru window. This time, Williams’ boyfriend got out and asked “Ma’am, could you please move your car? There are parking spots right there,” pointing them out.  By now, there were five cars lining up behind Williams’ car.  Shelton similarly responded to him.

Shelton’s passenger then exited the vehicle and came up behind the boyfriend and pushed him; this was followed by chaos, screaming, yelling, and name-calling.  When Deputy Williams witnessed the passenger push her boyfriend, she got out of the car and tried to deescalate the situation. Williams identified herself as an off-duty deputy sheriff and immediately told everyone to get back to their car.

Instead, the two women threatened Williams. Deputy Williams went up to the Del Taco window to speak with the attendant, identified herself as an off-duty deputy sheriff and requested she call 9-1-1.  Shelton started taking down Williams’ license plate number, and Williams’ boyfriend then began taking pictures of Shelton’s license plate, and then started to video record with his cell phone.  According to testimony, Williams was surrounded, with the driver in the back and the passenger in the front, with nowhere to go.

The passenger began punching Deputy Williams in the head and face several times with a closed fist. Indeed, she even admitted to hitting Williams three to four times in her interview with deputies who responded to the scene, and admitted Williams did not hit her, but only “brushed against her.”

Shortly after that, deputies arrived. They interviewed all four, including Del Taco employees who were working the drive-thru window at the time of the incident.  Williams voluntarily provided statements and cooperated with their investigation.

The driver and passenger filed a lawsuit against Williams and the Sheriff’s Department, alleging Williams used racial slurs against them. The Department settled the case for a nominal amount.  But it was only once the lawsuit was filed that the Department investigated the incident.

Deputy Williams was interviewed and denied using the alleged racial slurs.  Williams was terminated, effective July 1, 2014.

The allegations that formed the basis of the termination included using poor judgment in engaging in a confrontation; using a racial slur, and lying to investigators when she denied using the racial slurs attributed to her.  Williams appealed the discipline to the County of San Bernardino Civil Service Commission.

Partner Kasey Castillo represented Williams in the administrative hearing.  The Commission appointed hearing officer Joseph Gentile to hear the case.  The driver and passenger of the other vehicle refused to testify at the hearing; they also would not submit to interviews by the Internal Affairs department.

Following the hearing, the Hearing Officer found that Williams used good judgment when she tried to calm the situation, by identifying herself as an off-duty deputy sheriff, and again when she left the altercation and asked Del Taco to call law enforcement.  However, he found Williams did not use good judgment when she became involved in the altercation, and used a racial slur.  The hearing officer also found that Williams was dishonest when she denied using the racial slur.

During the hearing, Williams also raised a due process violation in the pre-disciplinary Skelly proceedings.  In Skelly v. State Personnel Bd. (Skelly) (1975) 15 Cal. 3d 194, the California Supreme Court determined that the minimum procedural due process protections required before disciplinary action can become effective includes “notice of the proposed action, the reasons therefor, a copy of the charges and material upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Skelly v. State Personnel Bd., supra, 15 Cal. 3d at 215.)

Williams argued that her Skelly rights were violated because, among others, the Sergeant who conducted the administrative investigation obtained and listened to audio recordings of interviews of the alleged “victims,” taken by the deputies who had responded to the scene. He never disclosed the existence of the recordings or that he listened to them in his investigative summary and report, and under cross-examination Castillo was able to elicit from him an admission that he should have disclosed it. In the audio recordings, the passenger admitted to hitting Williams three to four times, and stated Williams did not actually hit her, but “brushed against her.”  Internal affairs never had an opportunity to interview the driver or passenger, so the Sergeant relied on the interviews they had for the criminal investigation.

Without much analysis, the hearing officer determined there was no Skelly violation. The Commission adopted and approved the Hearing Officer’s Decision as the final administrative decision of the County.   Williams filed a Petition for Writ of Administrative Mandate (Cal. Civ. Proc. § 1094.5) in San Bernardino County Superior Court.  Castillo Harper attorney Michael A. Morguess represented Williams in the writ proceedings.

Morguess argued the Commission’s finding that Williams used poor judgment by becoming involved in a confrontation was belied by the Commission’s own findings that a) Williams affirmatively exercised “’good judgment’ when she entered the argument” to calm things down and b) affirmatively used “’good judgment’ when she left the altercation” and asked the Del Taco employee to call law enforcement.  Williams tried to intervene and de-escalate the situation.   Instead, the passenger began punching her in the head and face several times with a closed fist, and in her interviews with deputy sheriffs that night admitted to doing so and acknowledged Williams only “brushed against her.” At no time did she exercise poor judgment.

With regard to the dishonesty about making racial slurs, it was argued that on a cell phone video Williams’ boyfriend took and turned over to exonerate her, there is barely audible background noise.  The Department claimed one could hear Williams, in her own voice, make the racial slur.  However, when the Hearing Officer himself tried to listen to the same audio played, he could not hear Williams use that word.  The department produced a supposed transcription of the audio portion of the cell phone video, attributing certain statements to Williams. But even the person who assisted in transcribing it had only spoken with Williams twice in his life.  The Hearing Officer listened to the same audio, and did not hear Williams’ voice, nor any such words.  Williams argued she was not dishonest in her internal affairs interviews and the evidence did not support a finding that she was.

Morguess also continued to press the argument that the Department violated Williams’ Skelly rights by failing to provide her with the audio recordings of the driver and passenger, taken at the scene, and that formed part of the “material upon which the action is based.”  Even though Williams lost the administrative hearing, the proper remedy for a Skelly violation is “the amount of back pay due therefore begins at the time discipline is actually imposed and ends on the date the board files its decision.” (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 403)

The Department argued Williams was only entitled to the materials the Skelly officer reviewed, and not the materials on which the initial decision – before it ever gets to a Skelly – was based.  The Department also argued Williams was required to ask for those materials – even though she was unaware of them and thus was unable to demand to be provided such documents. Castillo Harper responded with a hypothetical: What if the Skelly officer who reviews the initial proposal for discipline only relies on a one-page summary of the entire investigation, while the initial decision-maker relied on 250 pages of investigatory materials?  Did the County seriously contend the employee is only entitled to the one-page summary because that is all the Skelly officer eventually relied upon?  The court eventually shared this view.

At the hearing, the judge asked in disbelief how the County could argue straight-faced that the only recorded statements of the complaining witnesses were not part of the materials relied upon, particularly when the County did provide the police reports upon which those statements were based.  From there, it went downhill for the County.  The Court took the matter under submission.

On May 3, 2017, the Court issued its ruling, overturning all of the charges as against the weight of the evidence, and finding that termination was an abuse of discretion.  Although the findings rendered the Skelly violation essentially moot, the Court made a point of finding that “[b]y failing to provide petitioner with critical complaining witness statements in conjunction with her rights to a pre-disciplinary due process response to the proposed discipline . . . Williams’ due process rights were thereunder violated.”  In its judgment, the Court ordered the County to set aside the disciplinary decision, reinstate Williams retroactively to the date of termination with back pay, benefits of the value thereof, and interest.

 

Michael A. Morguess is an associate with Castillo Harper APC. His practice focuses on petitions for writ of mandate and appellate matters.  He is certified by the California State Bar as an Appellate Specialist. He is licensed in California and Oregon.

In Ellins v. City of Sierra Madre, the second of two published decisions issued on January 28, 2016 that were filed and argued by the Law Office of Michael A. Morguess, the Second Appellate District clarified interrogation rights under the Public Safety Officers Procedural Bill of Rights Act. Under Government Code section 3303(c), a public safety officer under investigation “shall be informed of the nature of the investigation prior to any interrogation.” The Court confronted for the first time the question of how much time “prior to” an interrogation must the officer be told of the nature of the investigation. Ellins was notified of an interrogation but was not told of the nature of the investigation until he arrived at the interrogation; however, he was accompanied by his attorney representative. Ellins was also notified, when he arrived, that the City held out on the nature of the investigation because it was concerned for the safety of the complainant, although the Chief specifically told Ellins that although she was not ordering him not to contact the complainant, she advised him it was in his best interest not to do so—an odd admonition given that officers are routinely ordered not to discuss the matter with any one related to the investigation. Ellins and his attorney conferred and then requested that the interrogation be rescheduled because the attorney believed that on such short notice, she could no advise Ellins concerning the matter. The City refused and Ellins departed. The City charged him with insubordination.

The City argued that under existing case law (Heinrichs v. County of Orange), so long as the notice temporally preceded the interrogation, even if at the last minute, it has given sufficient notice. The City also argued that there is no specific right to consult with a representative or attorney prior to any such questioning, only that the representative or attorney be present during the interrogation. Ellins argued that under relevant National Labor Relations Act law and the language of the Bill of Rights Act, the notice of the nature of the investigation must be sufficient so as to allow the peace officer to determine whether he or she needs a representative or attorney, to allow time to secure that representative or attorney if he or she has not yet done so, and to allow time for meaningful consultation with the representative prior to the interrogation. Additionally, since under Section 3303(i) the representative cannot be someone who is also subject to the same investigation, Ellins argued that without advance notice of the nature of the investigation, the peace officer will not be able to determine whether his or her representative is subject to the same investigation. Finally, Ellins argued that if not notified of the nature of the interrogation he or she would not know if a representative was needed, and a game would ensue where the peace officer could just arrive at the interrogation unrepresented; once notified of the nature of the investigation the peace officer could halt the interrogation and claim the right to a representative, which would force an agency to reschedule the interrogation anyway to allow the officer a reasonable time to secure a representative of his or her choice.

Siding with Ellins on the law, the Court of Appeal rejected the City’s literal and inflexible interpretation of the notification and consultation rights. The Court stated:

“We hold that section 3303, subdivision (c) requires an officer be informed of the nature of the investigation “reasonably prior to” the interrogation—that is, with enough time for the officer to meaningfully consult with any representative he elects to have present. The time necessary to do so may depend upon whether the officer has already retained a representative (or instead needs time to secure one) and upon the nature of the allegations; their complexity; and, if they are unrelated, their number. However, an employing department with reason to believe that providing this information might risk the safety of interested parties or the integrity of evidence in the officer’s control may delay the notice until the time scheduled for interrogation as long as it thereafter grants sufficient time for consultation.”

The Court determined that under the specific facts here, the City met the notification requirements, and only because Ellins happened to arrive ready with an attorney representative and was afforded sufficient time to consult with his counsel. However, the Court cautioned that absent some urgent need, a public safety department cannot wait until the officer arrives to notify him or her of the nature to the investigation. This will also prevent a common occurrence during interrogations: in the middle of an interrogation, the investigator may ask questions about subjects for which the officer has not been notified. Frequently the investigator demands, under threat of insubordination, a preliminary response before permitting the peace officer to consult with his or her representative. This case has shut the door on such mischief.  This is a long overdue decision on this issue.

The case is Ellins v. City of Sierra Madre, (2016)—Cal. App. 4th —.

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 —.

On July 10, 2015, the Court of Appeal for the Fifth Appellate District published a case explaining the proper way to calculate the ending of a probationary period. Although it would seem obvious, the California Department of Corrections argued otherwise. Joseph McCauley was promoted to Correctional Sergeant on December 2, 2008. On December 2, 2009, CDCR served a notice extending the probationary period so that it could timely reject McCauley from his promotional probationary Sergeant’s position. However, the applicable statutes and rules required extensions of probations to be served prior to the conclusion of probation.

CDCR argued that pursuant to the California Code of Civil Procedure and Government Code, one must exclude the first day (December 2, 2008) and start counting the year the following day, so that the last day of probation would be December 2, 2009. That way, its notice extending probation would be deemed timely. (CDCR did serve a Notice of Rejection on December 1, however the notice stated that it was deemed effective beyond the probationary period; thus CDCR had to extend the probationary period to make the rejection timely).

A judge of the Fresno Superior Court agreed with CDCR and set aside a State Personnel Board in McCauley’s favor. The Law Office of Michael A. Morguess appealed on behalf of McCauley. The Court of Appeal reversed, finding that McCauley gets credit for his first day of probation and thus the last day of probation was December 1, 2009, so that when he woke up on December 2, 2009, he was already a permanent Correctional Sergeant and could not be rejected from probation.

Although this seems like an obvious result, no appellate decision had squarely addressed this issue. Thus the decision was published by the Court. It also reaffirms the requirement that civil service employees are entitled to strict compliance and dismissal statutes.

The case is California Department of Corrections v. State Personnel Board (McCauley).

Earlier this year I was interviewed by “I am the Law,” a weekly podcast produced by nonprofit legal education policy organization Law School Transparency. The article, and interview, are linked here:

http://www.usnews.com/education/i-am-the-law-where-law-school-leads/2015/09/24/helping-former-government-employees-fuels-litigator

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.