Watson v. Long Beach Civil Service Com. CA2/1 ( 2021 )

Filed 9/30/21 Watson v. Long Beach Civil Service Com. CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
MAURY WATSON, B307558
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCP00126)
v.
LONG BEACH CIVIL SERVICE
COMMISSION,
Defendant and Respondent;
CITY OF LONG BEACH et al.,
Real Parties in Interest and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mitchell L. Beckloff, Judge. Affirmed.
Robert Lucas Law, Robert W. Lucas; Phillips & Rickards
and Wendell Phillips, for Plaintiff and Appellant.
Charles Parkin, City Attorney, Gary J. Anderson, Principal
Deputy City Attorney, and Monica J. Kilaita, Deputy City
Attorney, for Defendant, Real Parties in Interest, and
Respondents.
____________________________
Real party in interest and respondent City of Long Beach
(the City) employed plaintiff and appellant Maury Watson
(Watson) as a refuse operator. While on duty on March 10, 2017,
Watson struck the windshield of another refuse truck with his
hand after he became upset at a coworker, thereby cracking the
windshield. The coworker reported the incident to City officials,
and an investigator employed by the City interviewed the
coworker regarding the incident on March 13, 2017.
Later that day, the City summarily suspended Watson in a
letter signed by real party in interest and respondent Diko
Melkonian, manager of the Environmental Services Bureau for
the City (Melkonian). In so doing, the City invoked a rule
authorizing it to suspend an employee for an accusation involving
“substantiated, job-related, extraordinary conduct requiring
immediate removal of the employee from the workplace” pending
an investigation for a period not to exceed 30 business days. The
rule provided that if the City did not file charges against the
employee within that 30-business-day-period, the summary
suspension had to be with pay.
On the last day of the suspension period authorized by that
rule—i.e., April 24, 2017—the City served on Watson a letter
signed by Melkonian and Russ Ficker, personnel officer for the
City’s Department of Public Works (Ficker), which notified him
the City intended to terminate his employment based on certain
charges of misconduct, including his behavior during the
2
March 10, 2017 incident. The letter advised Watson that he may
attend a hearing at which he could respond to the charges and
explain why he should not be discharged. At the hearing held on
May 31, 2017, Melkonian, Ficker, and another City official were
members of the hearing panel. Shortly after the hearing, the
City discharged Watson from his employment in a letter signed
by real party in interest and respondent Patrick H. West, city
manager (West). The termination was deemed effective as of
March 14, 2017, meaning that Watson was not paid from that
date onward. Watson appealed the decision to defendant and
respondent Long Beach Civil Service Commission (the
Commission), which ultimately upheld the dismissal.1
Watson filed a petition for administrative writ of mandate,
claiming that the rule the City used to suspend him was
unconstitutional on its face and as applied to him because it
did not afford him with sufficient predeprivation notice and an
opportunity to heard, and that Ficker’s and Melkonian’s
participation in the May 31, 2017 hearing violated Watson’s right
to due process. The trial court denied the petition.
On appeal of the trial court’s ruling, Watson once again
raises facial and as-applied challenges to the suspension rule and
complains of Ficker’s and Melkonian’s involvement in the hearing
preceding his discharge from employment. He also claims that
the rule is unconstitutionally vague.
We conclude that Watson’s vagueness challenge fails
because when the suspension rule is read in conjunction with the
dictionary definition of “substantiated” and the City’s policy
1
We refer to the City, Melkonian, West, and the
Commission collectively as “respondents.”
3
prohibiting threats of violence, it is apparent the rule authorized
Watson’s summary suspension.
Watson’s facial due process challenge fails because he
does not rebut the trial court’s presumptively correct reasoning
for rejecting that claim, and he otherwise fails to demonstrate the
rule is unconstitutional in the generality or great majority of
cases.
His as-applied challenge fails because Watson did not
(1) develop adequately the factual basis for his claim that he was
deprived of sufficient process for 12 weeks; (2) show the City was
obligated to hire an independent third-party to investigate the
March 10, 2017 incident before suspending him; or (3) establish
that due process required the City to place him on paid leave
during its investigation.
Finally, Ficker’s and Melkonian’s involvement in the
initiation of the disciplinary process, without more, does not
establish they lacked impartiality.
Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
We summarize only those facts that are relevant to this
appeal.
Watson was employed by the City as a refuse operator I for
the City’s Department of Environmental Services Bureau. On
February 1, 2017, Watson got into an argument with a coworker.
2 Our factual and procedural background is derived in part
from undisputed aspects of the trial court’s ruling on Watson’s
writ petition. (See Baxter v. State Teachers’ Retirement System
(2017) 18 Cal.App.5th 340, 349, fn. 2 [utilizing the summary of
facts provided in the trial court’s ruling].)
4
During the argument, Watson allegedly “ ‘grabbed his genitalia
and made discourteous remarks to other employees instructing
them to look at his genitalia.’ ” On Friday, March 10, 2017,
Watson struck the windshield of a City refuse truck with his
hand after he became upset with a coworker, thereby cracking
the windshield.
On Monday, March 13, 2017, the City’s investigator,
Thomas Marshall (Marshall), conducted an initial investigation
into the March 10th incident. During that initial investigation,
Marshall interviewed the coworker “who was the focus of
[Watson’s] anger,” and prepared an incident investigation form.
Later that day, through a letter signed by Melkonian, the City
summarily suspended Watson from his position without pay,
effective immediately, pending an investigation of Watson’s
alleged violation of the City’s Workplace Threats and Violence
Policy.3
Melkonian’s letter stated the City suspended Watson
pursuant to article VII, section 87 of the Civil Service Rules and
Regulations (Section 87), which provides: “Pending an
investigation by the appointing authority of accusations against
an employee involving misappropriation of City property and/or
City funds, drug addiction, brutality or cruelty to a person in
custody, acts which would constitute a felony, or a misdemeanor
involving moral turpitude, or substantiated, job-related,
extraordinary conduct requiring immediate removal of the
employee from the workplace; the appointing authority may
impose a summary suspension for a period not to exceed
3Because “the City fully paid [Watson] through his partial
workday on March 13, 2017,” his “first day of suspension was
Tuesday, March 14, 2017.”
5
30 days.[4] Any summary suspension may be terminated by the
appointing authority by giving 48 hours notice in writing to the
employee. The summary suspension period shall be used by the
appointing authority to expeditiously complete an administrative
investigation of the incident and/or circumstances which caused
the disciplinary action to be taken. If the appointing authority
does not file charges against the employee on or before the
expiration date of the summary suspension then the summary
suspension shall be with pay. However, if charges are filed
against the employee on or before the summary suspension is
terminated, the effective date of the discipline may be made
retroactive to any date on or after the date the employee was
summarily suspended. Time served or salary lost under a
summary suspension may be considered in any final penalty
assessed against the employee.” (Italics added.)
At some point after the City summarily suspended Watson,
but prior to the filing of charges against him, the City hired an
independent investigator to conduct an investigation of the
March 10, 2017 event.
In a signed letter dated April 20, 2017, Melkonian and
Ficker advised Watson that the City was considering terminating
Watson’s employment. After failed attempts at personal service,
the City caused the notice to be delivered to Watson on April 24,
2017 by certified mail. The notice alleged eight charges of
misconduct by Watson arising out of the February 1, 2017 and
March 10, 2017 incidents, including a violation of the City’s
Workplace Threats and Violence Policy. The notice advised
4 The City’s civil service rules, including Section 87, define
“days” as business days and not calendar days.
6
Watson that he would be provided with an opportunity to respond
fully to the charges and explain why the City should not
terminate his employment.
On May 31, 2017, the City conducted a Skelly hearing.5
Melkonian; Ficker; and Malcolm Oscarson, manager of the City’s
Business Operations Bureau; acted as members of the Skelly
hearing panel. In a letter dated June 7, 2017 that was signed by
West, the City discharged Watson from his position. In the
letter, the City deemed Watson’s discharge to be “effective
March 14, 2017.”
On June 18, 2017, Watson appealed his termination to the
Commission. On September 12 and 19, and October 3, 2018, the
Commission heard Watson’s discharge matter. During the
Commission hearing, Watson filed a motion asserting that the
City violated his due process rights by summarily suspending
him without pay and by not having a reasonably impartial Skelly
hearing panel. At the conclusion of the hearing on
October 3, 2018, the Commission denied Watson’s motion and
upheld his termination after sustaining six of the eight
misconduct charges made against Watson.6
5 As explained in greater detail in Discussion, part C, post,
a Skelly hearing is an administrative procedure in which a public
employee has an opportunity to respond to charges leveled
against him or her.
6 The Commission did not sustain two charges against
Watson that alleged he was “dishonest” in certain respects during
his April 7, 2017 interview with the independent investigator.
The Commission sustained the remainder of the charges against
Watson concerning the February 1, 2017 and March 10, 2017
incidents, including the allegation that on March 10, 2017,
Watson “displayed loud and angry behavior toward another
7
On January 9, 2019, Watson initiated the trial court
proceedings by filing a petition for writ of mandate. On
February 28, 2019, Watson filed the operative first amended
petition for writ of administrative mandamus and complaint for
injunctive relief, declaratory relief, and “[v]iolation of 42 U.S.C.
§ 1983” against respondents. Simply summarized, Watson
“challenge[d] the decision of [the City] . . . to summarily suspend
[Watson] without pay (1) prior to giving him an opportunity to be
heard and thereafter (2) conducting [the] Skelly hearing before
biased adjudicators—individuals involved in ‘factual
determinations leading to [Watson’s] summary suspension so
that they were not reasonably impartial’ ”—i.e., Ficker and
Melkonian. (Fn. omitted.) Watson did not challenge the
Commission’s decision on the merits of the charges during the
writ proceedings, and he does not do so on appeal.
After the parties submitted briefing on Watson’s writ
petition, the trial court heard the petition on July 15, 2020. At
the hearing, the trial court accepted the parties’ concession that if
the court were to deny Watson’s writ petition, then all of
Watson’s other claims would fail because they are derivative of
that cause of action.7
On July 16, 2020, the trial court issued a ruling denying
the petition for writ of mandate. As an initial matter, the court
agreed with Watson that his unpaid suspension constituted a
deprivation of a property interest that entitled him to due
process. The trial court rejected Watson’s argument that
employee . . . by striking the windshield of [a City] vehicle [the
other employee] was operating, causing the windshield to crack.”
7 Watson does not retract that concession on appeal.
8
Section 87, on its face, violates state and federal guarantees to
due process of law by failing to provide adequate notice and an
opportunity to be heard before authorizing a suspension without
pay. The court reasoned Section 87 “strikes an appropriate
balance between the employee[’s] property right to his/her
livelihood and the City’s need to protect other employees in the
workplace, the public and its property under certain emergent
conditions.”
The court further concluded that Watson failed to show
that the City unconstitutionally applied Section 87 to him. The
court observed that Watson’s as-applied challenge rested solely
on three assertions, each of which the court rejected—Watson
was “entitled to a full and complete report of the allegations of his
misconduct prior to his immediate suspension[, the] facts did not
support a summary suspension under Section 87,” and the City
violated Section 87 by suspending Watson for longer than 30 days
before filing charges against him.8 Lastly, the court rejected
Watson’s claim that inclusion of Melkonian and Ficker on the
Skelly panel deprived him of reasonably impartial, noninvolved
decision-makers.
On July 31, 2020, the trial court entered judgment denying
Watson’s writ petition pursuant to the July 16, 2020 ruling.
Watson timely appealed the judgment.
8 On appeal, Watson explicitly abandons his argument
that the City violated Section 87 by “waiting too long after the
summary suspension to institute termination proceedings.”
Specifically, Watson states he “does not pursue that argument on
appeal because he concedes the City’s point that the rules only
require the counting of business days, excluding weekends and
holidays, not calendar days . . . .”
9
STANDARD OF REVIEW
“[I]n mandamus proceedings arising from public
employment administrative hearings[,] . . . [¶] ‘[t]he trial court
[is] required to exercise its independent judgment of the evidence
before the [agency]. [Citation.] In so acting the trial court ha[s]
the power to make credibility findings. . . . [¶] . . . [¶] “The trial
court should . . . beg[in] with a strong presumption that the
[agency’s] decision was correct, and place[ ] on [appellant] the
burden of proof to show that the decision was against the weight
of the evidence. [Citation.]” ’ ” (See Thornbrough v. Western
Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 179
(Thornbrough).) “ ‘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. . . . [T]here is no inconsistency in a rule
requiring that a trial court begin its review with a presumption of
the correctness of administrative findings, and then, after
affording the respect due to these findings, exercise independent
judgment in making its own findings.’ [Citation.]” (San Diego
Unified School Dist. v. Commission on Professional Competence
(2013) 214 Cal.App.4th 1120, 1141 (San Diego Unified School
Dist.).)
On appeal from a judgment denying a petition for writ of
mandate, “ ‘[w]e must sustain the trial court’s findings if they are
supported by substantial evidence. [Citation.] In reviewing the
evidence, we resolve all conflicts in favor of the party prevailing
at the trial court level and must give that party the benefit of
every reasonable inference in support of the judgment.’ ” (See
San Diego Unified School Dist., supra, 214 Cal.App.4th at
pp. 1142–1143.) “However, ‘we make an independent review of
10
any questions of law necessary to the resolution of this matter on
appeal’ [citation], including the interpretation of rules of law, and
whether the procedures comported with due process [citation].”
(Thornbrough, supra, 223 Cal.App.4th at p. 179.) Further, “the
trial court’s judgment is presumed correct” and “the appellant
bears the burden to affirmatively demonstrate error . . . .” (See
Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500,
512–514 (Shenouda).) The appellant bears the burden of
rebutting this presumption of correctness, regardless of the
applicable standard of review. (See Reyes v. Kosha (1998)
65 Cal.App.4th 451, 466, fn. 6.)
DISCUSSION
“A constitutional challenge to a statute, ordinance or policy
may be facial or as-applied.” (Sturgeon v. Bratton (2009)
174 Cal.App.4th 1407, 1418.) “We evaluate the merits of a facial
challenge by considering ‘only the text of the measure itself, not
its application to the particular circumstances of an individual.’
[Citation.]” (Zuckerman v. State Bd. of Chiropractic Examiners
(2002) 29 Cal.4th 32, 38–39 (Zuckerman).) To prevail on a facial
challenge, the party contesting the provision must at the very
least “establish that [it] is unconstitutional ‘ “in the generality
or great majority of cases.” [Citations.]’ [Citations.]”
(See 420 Caregivers, LLC v. City of Los Angeles (2012)
219 Cal.App.4th 1316, 1334–1335 (420 Caregivers, LLC); ibid.[noting that our Supreme Court has articulated two different
tests governing facial challenges, and that the aforementioned
“ ‘ “in the generality or great majority of cases” ’ ” test is “the
more lenient” of the two].) “Unlike a facial challenge to the
constitutional validity of a rule that considers only the text of the
measure itself, an applied challenge looks to the particular
11
circumstances of its application to a specific individual” to
determine “ ‘whether . . . the application deprived the individual
to whom it was applied of a protected right.’ [Citation.]” (See
Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1328–
1329 (Lammers).)
Watson contends that Section 87 is unconstitutional on its
face because its terms are too vague. Watson also levels facial
and as-applied procedural due process challenges to Section 87,
because Section 87 does not require the City to provide notice and
an opportunity to be heard before suspending a permanent
employee, and the City violated Watson’s procedural due process
rights in the manner in which it summarily suspended him.
Lastly, Watson maintains the City violated his procedural due
process rights by allowing Ficker and Melkonian to serve as
decision-makers at Watson’s Skelly hearing. Each of these claims
fails.
A. We Reject Watson’s Vagueness Claim Because the
Dictionary and the City’s Written Policy on
Workplace Threats and Violence Demonstrate that
Section 87 Readily Applies to the Instant Case
“Because the constitutional guarantee of due process
generally secures the right to notice and the opportunity to be
heard [citation], a law is unconstitutionally vague only [if it] fails
to ‘ “give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited” ’ or to know ‘what
conduct on [his or her] part will render [him or her] liable to [the
law’s] penalties.’ [Citations.]” (Diaz v. Grill Concepts Services,
Inc. (2018) 23 Cal.App.5th 859, 870 (Diaz), second bracketed
insertion added.) “This prohibition against vagueness has been
held to extend to administrative regulations affecting conditions
12
of governmental employment. [Citation.]” (Arellanes v. Civil
Serv. Com. (1995) 41 Cal.App.4th 1208, 1216 (Arellanes).) A
vagueness challenge will fail if the meaning of the language at
issue “can be fairly ascertained by reference to other sources,
such as dictionary definitions, similar statutes, the common law,
judicial decisions” (see Ivory Education Institute v. Department of
Fish & Wildlife (2018) 28 Cal.App.5th 975, 982), “regulations,
legislative history, . . . legal treatises, [or] legal dictionaries . . . .”
(See Diaz, supra, 23 Cal.App.5th at pp. 870–871.) The touchstone
of a vagueness inquiry is whether “ ‘ “any reasonable and
practical construction can be given [to the] language.” ’
[Citation.]” (See Ivory Education Institute, at p. 982.)
Watson contends that Section 87 is unconstitutionally
vague because “[n]either the civil service rules themselves nor
the City provide any working definition of ‘substantiated,’
‘immediate’ or ‘extraordinary job-related conduct.’ ” As a
consequence, Watson maintains that the portion of Section 87
allowing for summary suspension based on “ ‘substantiated, job-
related, extraordinary conduct requiring immediate removal of
the employee from the workplace’ ” “is so vague and amorphous
as to make it unintelligible and subject to the whim of the City.”
“ ‘ “[V]agueness challenges . . . which do not involve First
Amendment freedoms must be examined in the light of the facts
of the case at hand.” [Citations.]’ [Citation.]” (See Arellanes,
supra, 41 Cal.App.4th at p. 1217.) Under this approach, a facial
vagueness challenge will fail if “the bulk of the alleged conduct
‘readily f[alls]’ within the scope” of the regulation, even if the
application of the provision in question to such conduct is not
“perfectly clear . . . .” (See People v. Superior Court (J.C. Penney
Corp., Inc.) (2019) 34 Cal.App.5th 376, 385–386, 401–402
13
(J.C. Penney Corp., Inc.).) Because Watson does not contend that
Section 87 implicates First Amendment freedoms, his vagueness
challenge cannot succeed if his alleged misconduct readily falls
within the scope of Section 87.
As respondents point out, the term “substantiated” is
defined by Merriam-Webster’s Dictionary as “to establish by proof
or competent evidence.” (“Substantiated,” Merriam-Webster.com
Dictionary, Merriam-Webster, https://www.merriam-
webster.com/dictionary/substantiated (as of Sept. 27, 2021),
archived at .)9 Furthermore,
although respondents do not claim the City’s policies explicitly
define “job-related, extraordinary conduct requiring immediate
removal of the employee from the workplace,” they do assert “the
City has other policies which discuss types of behavior that
will not be tolerated in the workplace . . . .”
Specifically, the City’s Workplace Threats and Violence
Policy No. 7.9 (Policy No. 7.9) provides that “[t]hreats,
threatening behavior, or acts of violence against employees . . . by
anyone on City property will not be tolerated” and “[v]iolations of
this policy by City employees will lead to disciplinary action, up
to and including termination . . . .” (Italics added.) The policy
further defines “threats and violent behavior” as, inter alia, “[t]he
actual or implied threat of harm to an individual”; “[l]oud,
disruptive or angry behavior or language which is clearly not part
of the typical work environment”; “[w]illful destruction of City . . .
9 We, sua sponte, take judicial notice of this dictionary
definition of “substantiated.” (See Golden Security Thrift & Loan
Assn. v. First American Title Ins. Co. (1997) 53 Cal.App.4th 250,
256 [indicating an appellate court may take judicial notice of
“various dictionary definitions” of a term].)
14
property”; and “[a]ny other act that a reasonable person would
perceive as constituting a threat of violence.”
Because the City has declared it will not tolerate an
employee’s threatening behavior or acts of violence while on duty,
a “ ‘ “person of ordinary intelligence” ’ ” would understand that a
violation of Policy No. 7.9 constitutes job-related, extraordinary
conduct requiring immediate removal from the workplace. (See
Diaz, supra, 23 Cal.App.5th at p. 870.) We have no difficulty
concluding the City accused Watson of misconduct proscribed by
Policy No. 7.9. The administrative record shows that a coworker
reported to the City that Watson yelled at the coworker “and hit
[the] truck windshield [of the cabin of a City vehicle containing
the coworker] with the hand and broke it,” and that the coworker
“turned [his] face to [his] left side because [he] thought [that
Watson] was going to hit [the coworker] . . . .” (Some
capitalization omitted.) This misconduct amounts to “[l]oud,
disruptive, or angry behavior which is clearly not part of the
typical work environment”; “[w]illful destruction of City . . .
property”; and behavior that “a reasonable person would perceive
as constituting a threat of violence.”
Furthermore, the City substantiated this alleged job-
related extraordinary conduct before it suspended Watson. The
trial court found that on March 13, 2017, “Marshall[ ] began and
completed his initial investigation into the March 10
incident . . . .” The court found that in undertaking this initial
investigation, Marshall “interviewed the employee who was the
focus of [Watson’s] anger,” and prepared an incident investigation
form indicating the coworker reiterated his account of the
March 10, 2017 incident during that interview. The lower court
observed that Marshall conducted this initial investigation
15
“before [Watson] was summarily suspended pursuant to
Section 87.”
Notwithstanding the trial court’s findings, Watson appears
to argue that at the time the City summarily suspended him, his
alleged violation of Policy No. 7.9 had not been “substantiated.”
Watson asserts that Ficker decided to suspend him summarily
based on an e-mail Ficker received on March 13, 2017 from the
general superintendent for refuse operations, which indicated
that “someone had claimed Watson had cracked a windshield.”
Yet, in the excerpt of Ficker’s testimony cited by Watson
regarding this e-mail, Ficker stated he did not recall whether the
incident investigation form or any photographs depicting the
windshield were attached to the e-mail, nor did he recall the
specific contents of the e-mail. Moreover, Watson does not direct
us to any part of the record containing the e-mail, nor is it
apparent that this e-mail is in the voluminous appellate record.
Thus, Watson has failed to overcome the presumption of
correctness afforded to the trial court’s finding that the City
interviewed the coworker and relied upon that individual’s
statements when it decided to summarily suspend Watson. (See
Yu v. University of La Verne (2011) 196 Cal.App.4th 779, 787
[“ ‘ “A judgment or order of the lower court is presumed correct.
All intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be
affirmatively shown. This is not only a general principle of
appellate practice but an ingredient of the constitutional doctrine
of reversible error.” ’ [Citation.]”].) Furthermore, Watson
does not argue that Marshall’s investigation fell short of
substantiating the allegations against Watson concerning the
March 10, 2017 incident.
16
In sum, because we conclude that this case “ ‘readily f[alls]’
within the scope” of Section 87, Watson cannot “ ‘ “successfully
challenge it for vagueness.” ’ ”10 (See J.C. Penney Corp., Inc.,
supra, 34 Cal.App.5th at p. 401; Arellanes, supra, 41 Cal.App.4th
at p. 1217.)
B. We Reject Watson’s Facial and As-Applied
Procedural Due Process Challenges to Section 87
“Both the federal and state Constitutions compel the
government to afford persons due process before depriving them
of any property interest. [Citations.] In light of the virtually
identical language of the federal and state guarantees, we have
looked to the United States Supreme Court’s precedents for
guidance in interpreting the contours of our own due process
clause and have treated the state clause’s prescriptions as
substantially overlapping those of the federal Constitution.
[Citation.]” (Today’s Fresh Start, Inc. v. Los Angeles County
Office of Education (2013) 57 Cal.4th 197, 212 (Today’s Fresh
Start, Inc.), citing, inter alia, U.S. Const., 14th Amend. & Cal.
Const., art. I, § 7, subd. (a).)
“ ‘The first inquiry in every due process challenge is
whether the plaintiff has been deprived of a protected interest in
“property” or “liberty.” [Citations.] Only after finding the
deprivation of a protected interest do we look to see if the
State’s procedures comport with due process.’ [Citations.]”
(Today’s Fresh Start, Inc., supra, 57 Cal.4th at p. 214.) The
10 Given our disposition of Watson’s vagueness challenge
on the merits, we do not address the City’s argument that
Watson waived this claim by failing to raise it in his mandamus
petition.
17
parties do not challenge the trial court’s conclusion that Watson’s
“unpaid suspension constitutes a government deprivation of his
property interest which entitled him to due process.” Because
“ ‘it [has been] determined that the Due Process Clause applies,
“the question remains what process is due.” ’ [Citations.]” (See
Today’s Fresh Start, Inc., supra, 57 Cal.4th at p. 214.)
“ ‘The essence of due process is the requirement that “a
person in jeopardy of serious loss [be given] notice of the case
against him and opportunity to meet it.” ’ [Citations.] The
opportunity to be heard must be afforded ‘at a meaningful time
and in a meaningful manner.’ [Citations.]” . . . [¶] . . . “ ‘ “Because
of the broad spectrum of concerns to which the term [due process]
must apply, flexibility is necessary to gear the process to the
particular need; the quantum and quality of the process due in a
particular situation depend upon the need to serve the purpose of
minimizing the risk of error.” ’ [Citation.]” (Today’s Fresh Start,
Inc., supra, 57 Cal.4th at pp. 212–213.)
Our high court has “adopted the Mathews[v. Eldridge
(1976) 424 U.S. 319] balancing test as the default framework for
analyzing challenges to the sufficiency of proceedings under our
own due process clause.” (See Today’s Fresh Start, Inc., supra,
57 Cal.4th at p. 213.) Under that framework, we “balanc[e] three
considerations: ‘First, the private interest that will be affected by
the official action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards;
and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.’ [Citations.]” (Today’s Fresh Start, Inc., at p. 213, quoting
18
Mathews, supra, 424 U.S. at p. 335.) “In addition, we may also
consider a fourth factor, ‘ “the dignitary interest in informing
individuals of the nature, grounds, and consequences of the
action and in enabling them to present their side of the story
before a responsible government official.” ’ [Citations.]”
(Today’s Fresh Start, Inc., at p. 213.) That factor focuses on
whether the government has “ ‘ “treat[ed an individual] as a
nonperson, an object, rather than a respected, participating
citizen.” [Citation.]’ ”11 (See Today’s Fresh Start, Inc., at p. 213.)
First, we turn to Watson’s assertion that Section 87 is
unconstitutional on its face because it does not afford sufficient
process to employees suspended under that rule. Next, we assess
Watson’s claim that as applied to his case, Section 87 violated his
due process rights.
1. Watson fails to overcome the presumption of
correctness accorded to the trial court’s rejection of his
facial due process challenge to Section 87
Watson contends that Section 87 “violates due process
rights of permanent employees” because it “allows the City to
remove a permanent employee from its payroll without even
notifying the employee of the allegations and allowing the
employee to present [that person’s] side of the story.”
11 Watson discusses this “dignitary interest” consideration
only in connection with his as-applied challenge to Section 87.
We thus do not address whether this factor supports his facial
challenge to the rule. (See Cahill v. San Diego Gas & Electric Co.
(2011) 194 Cal.App.4th 939, 956 [“ ‘We are not bound to develop
appellants’ arguments for them. [Citation.] The absence of
cogent legal argument or citation to authority allows this court to
treat the contention as waived.’ [Citations.]”].)
19
Gilbert v. Homar (1997) 520 U.S. 924, is instructive, given
that it considered “whether a State violates the Due Process
Clause of the Fourteenth Amendment by failing to provide notice
and a hearing before suspending a tenured public employee
without pay.” (See id. at p. 926.) There, a public university
summarily suspended one of its police officers upon being notified
that he had been arrested and charged with possession of
marijuana, possession with the intent to deliver, and criminal
conspiracy to violate the controlled substance law, which was a
felony. (See id. at pp. 926–927.) Approximately three weeks
after the suspension began and about two and half weeks after
the criminal charges were dismissed, university officials “met
with [the officer] to give him an opportunity to tell his side of the
story.” (See id. at p. 927.) About five days after that meeting, the
university notified the police officer in a letter that he was being
demoted to the position of groundskeeper effective the next day
and that he would receive backpay at the rate of pay of a
groundskeeper, although he later secured backpay at the rate of
pay for a police officer. (See ibid.) The officer filed suit under
title 42 United States Code section 1983 against university
officials, asserting that their “failure to provide him with notice
and an opportunity to be heard before suspending him without
pay violated due process.” (Gilbert, at p. 928.)
Gilbert observed that the high court had previously
“ ‘rejected the proposition that [due process] always requires the
State to provide a hearing prior to the initial deprivation of
property[,]’ ” and acknowledged that “where a State must act
quickly, or where it would be impractical to provide
predeprivation process, postdeprivation process satisfies the
requirements of the Due Process Clause.” (See Gilbert, supra,
20
520 U.S. at p. 930.) Gilbert noted that in a prior case, the high
court stated: “ ‘An important government interest, accompanied
by a substantial assurance that the deprivation is not baseless or
unwarranted, may in limited cases demanding prompt action
justify postponing the opportunity to be heard until after the
initial deprivation.’ [Citation.]” (See id. at pp. 930–931, quoting
FDIC v. Mallen (1988) 486 U.S. 230, 240 (Mallen).)
The Gilbert court then utilized the Mathews test to
determine whether the federal due process clause obligated
university officials to provide the officer with notice and an
opportunity to be heard before they suspended him. (See Gilbert,
supra, 520 U.S. at pp. 926, 931–935.) In assessing the officer’s
private interest, the Gilbert court stated, “[A]ccount must be
taken of ‘the length’ and ‘finality of the deprivation,’ ” and the
court held that “[s]o long as the suspended employee receives a
sufficiently prompt postsuspension hearing, the lost income is
relatively insubstantial (compared with termination), and fringe
benefits such as health and life insurance are often not affected
at all . . . .”12 (See Gilbert, at p. 932.)
The high court found that “[o]n the other side of the
balance, the State has a significant interest in immediately
suspending, when felony charges are filed against them,
12 The Gilbert court did not resolve “[w]hether [the officer]
was provided an adequately prompt post-suspension
hearing . . . .” (See Gilbert, supra, 520 U.S. at pp. 935–936.) The
high court found that this question was “separate” from whether
university officials were obligated to provide the officer with a
presuspension notice and opportunity to be heard, and remanded
the case to allow the circuit court of appeals to examine the
adequacy of the postsuspension process in the first instance. (See
id. at pp. 926, 935–936.)
21
employees who occupy positions of great public trust and high
public visibility, such as police officers.” (See Gilbert, supra,520 U.S. at 932.) Gilbert also held that “the government does not
have to give an employee charged with a felony a paid leave at
taxpayer expense,” and that “the Constitution does not require
the government to bear the added expense of hiring a
replacement while still paying [an employee charged with a
felony].” (See ibid.) Lastly, the court concluded that “the risk of
erroneous deprivation and the likely value of additional
procedures” factor did not require any predeprivation process.
(See id. at pp. 933–934.) Specifically, Gilbert reasoned that “the
purpose of any pre-suspension hearing would be to assure that
there are reasonable grounds to support the suspension without
pay,” and “the arrest and the filing of charges” had “already . . .
assured” such reasonable grounds existed because “an
independent third party has determined that there is probable
cause to believe the employee committed a serious crime.” (See
ibid.)
During the proceedings below, the trial court held that
under Gilbert’s reasoning, Section 87 survived Watson’s facial
due process challenge. With regard to the private interest at
stake, the trial court found that although “Section 87 interferes
with a public employee’s ‘uninterrupted receipt of his paycheck,’ ”
the rule “minimizes the impact on an employee’s property
interest” “as also was the case in Gilbert v. Homar . . . .” The
trial court explained that Section 87 limits the summary
suspension to 30 business days, and provides that if “the City has
not filed charges against the employee” by the end of that limited
investigative period, “the employee receives backpay for the time
he/she was suspended.” Accordingly, the court found that “the
22
City may only temporarily and briefly suspend an employee
without filing charges against the employee.”
The trial court also stated that Section 87 promotes the
City’s “very strong and significant” countervailing “interest in
ensuring a safe workplace for other employees as well as the
public,” along with the City’s “strong interest in protecting its
public property and minimizing its liability to others.” It
reasoned that Section 87 “limits the City’s ability to immediately
suspend a public employee” to the following “categories of alleged
misconduct—misappropriation of City property, drug addi[c]tion,
cruelty to a person in custody, acts constituting a felony or a
misdemeanor involving moral turpitude or ‘substantiated, job-
related extraordinary conduct requiring immediate removal of
the employee from the workplace . . . .’ [Citation.]” The court
found that “[u]nder these limited circumstances,” Gilbert
authorized an employee’s immediate suspension without pay
because the City has an “urgent need [to] protect[ ] . . . its other
employees, the public and its property . . . .”
The trial court further concluded that “Section 87’s risk of
erroneous deprivation is minimal because the City is required to
fully investigate allegations of misconduct during the brief 30-day
suspension period.” According to the trial court, “[t]he
investigation ensures there are ‘reasonable grounds to support
the suspension without pay.’ ” (Quoting Gilbert, supra, 520 U.S.
at p. 933.) The trial court stated, “Section 87 requires the City to
make some initial assessment of exigency ‘requiring’ immediate
removal from the workplace based upon the employee’s job-
related conduct where the employee’s misconduct is not
23
specifically set forth in Section 87.”13 In response to Watson’s
argument that “this initial determination . . . ought to be made by
someone independent of the City,” the court stated such a
requirement would be “impractical” because “it effectively
undermines the City’s purpose behind Section 87—the need to
swiftly protect other employees in the workplace, City property
and the public from an employee’s job-related extraordinary
conduct.”
Upon applying the Mathews factors to Section 87, the trial
court concluded that “[t]he emergent need related to the
circumstances enumerated in Section 87, coupled with workplace
safety provides a substantial justification for interruption of
[Watson’s] interest in an uninterrupted paycheck.” Put
differently, the court opined that “Section 87 with its procedural
safeguards strikes an appropriate balance between the
employee[’s] property right to his/her livelihood and the City’s
need to protect other employees in the workplace, the public and
its property under certain emergent conditions.” Accordingly, the
trial court denied Watson’s mandamus petition insofar as it
alleged that Section 87 was facially unconstitutional.
Curiously, Watson does not explicitly refute—or even
address—the trial court’s use of the Mathews test and/or Gilbert’s
reasoning to reject his facial challenge to Section 87. The closest
Watson comes to doing so is when he intimates in his opening
brief that the trial court undervalued the gravity of the private
interest at stake. He argues that Section 87 could allow the City
13 As we explained in Discussion, part A, ante, Section 87
applies to accusations involving “job-related, extraordinary
conduct requiring immediate removal of the employee from the
workplace” that have been “substantiated.”
24
to suspend an employee without pay for 42 calendar days14 before
filing charges against that individual, and that “[e]ven if exigent
circumstances exist, a 6 week period without pay and a chance to
challenge the unpaid leave simply cannot meet constitutional due
process requirements.”
In advancing this argument, Watson overlooks the fact that
Section 87 authorizes “a summary suspension for a period not to
exceed 30 [business] days,” which “shall be used by [the City] to
expeditiously complete an administrative investigation,” and that
this period of suspension can be terminated by the City prior to
the expiration of 30 business days. (Italics added.) Thus, the
text of Section 87 does not demonstrate that the City uses the
rule to suspend employees for 42 calendar days in the generality
or great majority of cases. For that reason alone, Watson’s
attempt at resuscitating his facial due process claim fails.15
Furthermore, Watson’s categorical assertion that a 6-week
period of suspension without pay per se violates an employee’s
right to due process is belied by the fact that “the United States
Supreme Court has rejected absolute rules” for this type of claim
because “the precise dictates of due process are flexible and vary
according to context.” (See Today’s Fresh Start, Inc., supra,
57 Cal.4th at pp. 212–213.) As a matter of fact, the Supreme
14 (See fn. 4, ante.)
15 (See Zuckerman, supra, 29 Cal.4th at pp. 38–39
[“We evaluate the merits of a facial challenge by considering ‘only
the text of the measure itself . . . .’ [Citation.]”]; 420 Caregivers,
LLC, supra, 219 Cal.App.4th at p. 1335 [“Under the more lenient
test [for facial constitutional challenges], the challenging party
must establish that the statute is unconstitutional ‘ “in the
generality or great majority of cases.” [Citations.]’ [Citations.]”].)
25
Court stated that a 90-day delay between the date a bank official
requests a hearing on the FDIC’s suspension of that official and
the government’s decision thereon would not necessarily violate
due process,16 and that a nine-month delay in obtaining a
decision on an administrative appeal of a public employee’s
termination would not be “unconstitutionally lengthy per se.”17
Additionally, Watson cites—with minimal supporting
analysis—multiple decisions he claims demonstrate that
Section 87 is unconstitutional on its face because it does not
provide employees with any presuspension notice and
opportunity to be heard. With one exception, the excerpts of the
authorities Watson cites, however, address either the process due
prior to (a) termination from employment or (b) the issuance of
an order requiring a litigant to pay restitution.18 (See
16 (See Mallen, supra, 486 U.S. at pp. 231–232, 237–239,
242–243 [“[E]ven though there is a point at which an unjustified
delay in completing a post-deprivation proceeding ‘would become
a constitutional violation,’ [citation], the significance of such a
delay cannot be evaluated in a vacuum. . . . [¶] . . . [¶] . . . We . . .
conclude that the 90-day period is not so long that it will always
violate due process.”].)
17 (See Cleveland Board of Education v. Loudermill (1985)
470 U.S. 532, 535–536, 546–547, & fn. 11 (Loudermill) [“[The
employee] offers no indication that his wait was unreasonably
prolonged other than the fact that it took nine months. The
chronology of the proceedings set out in the complaint, coupled
with the assertion that nine months is too long to wait [for a
decision on the employee’s posttermination appeal], does not
state a claim of constitutional deprivation.”].)
18 The exception is Linney v. Turpen (1996)
42 Cal.App.4th 763, which concerned the six-month suspension of
an airport police officer as a form of discipline following a formal
26
Loudermill, supra, 470 U.S. at pp. 542, 547–548 [discussing the
process due prior to termination]; Clements v. Airport Auth.
(9th Cir. 1995) 69 F.3d 321, 331–332 [same]; Skelly v. State
Personnel Bd. (1975) 15 Cal.3d 194, 212, 215–216 [same];
Townsel v. San Diego Metropolitan Transit Development Bd.
(1998) 65 Cal.App.4th 940, 947 [same]; Titus v. Civil Service
Com. (1982) 130 Cal.App.3d 357, 362 [same]; Gilbert v. City of
Sunnyvale (2005) 130 Cal.App.4th 1264, 1278 [same]; Koshak v.
Malek (2011) 200 Cal.App.4th 1540, 1547 [discussing the process
due preceding the issuance of a restitution order].) Thus, it is not
apparent that these decisions undermine the trial court’s
reasoning for rejecting his facial due process claim, and Watson
has not shown otherwise. (See Hodjat v. State Farm Mutual
Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10 (Hodjat) [“[A]n
appellant is required to not only cite to valid legal authority, but
also explain how it applies in his case.”].)
For the foregoing reasons, we conclude Watson has not
overcome the presumption of correctness accorded to the trial
court’s rejection of his facial due process challenge.19
hearing. (See id. at p. 765.) Linney decided whether the manner
in which the hearing officer was selected violated due process.
(See id. at p. 768.) Linney had no occasion to consider whether
the summary suspension of a public employee pending an
investigation would offend the employee’s due process rights.
(See id. at pp. 765, 768.)
19 In connection with his facial due process challenge,
Watson also attempts to rebut an argument respondents made
below that Section 87 survives constitutional scrutiny because it
was modeled on Government Code section 19574.5. We need not
reach this argument because Watson has not overcome the
presumption of correctness accorded to the trial court’s reasoning
27
2. Watson’s as-applied challenge fails because he has not
demonstrated that the City’s application of Section 87
violated his procedural due process rights
Relying on the Mathews test, Watson contends that the
City violated his due process rights in the course of suspending
him without pay pursuant to Section 87. His as-applied
challenge to Section 87 relies upon three premises: (1) “Watson’s
summary suspension without pay for over 12 weeks and the
attendant stigma were so significant that they called for a
predeprivation right to respond”; (2) Gilbert and Mallen establish
that “the determination for immediate removal from the payroll
needed some element of independent vetting”; and (3) if the City
insisted on suspending Watson without predeprivation notice and
an opportunity to be heard, then Loudermill required the City to
safeguard its interests by placing Watson on paid leave. Watson
has failed to support adequately any of these premises.20
The first premise rests on the implicit assumption the City
did not afford Watson constitutionally sufficient notice and an
opportunity to be heard during the approximately 12-week period
starting when he was summarily suspended on March 13, 2017
and ending on the date the City terminated him on June 7, 2017.
for denying relief on his facial due process claim, which is
independent of whether Government Code section 19574.5
comports with due process and whether Section 87 is sufficiently
analogous to that statute to survive a constitutional challenge.
20 Watson further contends that “the City relied on little
more than an unsubstantiated allegation in an email to Ficker
that claimed Watson cracked a windshield in a truck.” That
factual assertion fails as we have explained in our Discussion,
part A, ante.
28
(See Today’s Fresh Start, Inc., supra, 57 Cal.4th at p. 212 [“ ‘The
essence of due process is the requirement that “a person in
jeopardy of serious loss [be given] notice of the case against him
and opportunity to meet it,” ’ ” italics added].) Aside from his
argument that the Skelly hearing lacked reasonably impartial,
noninvolved decision-makers (see Discussion, part C, post),
Watson fails to support his first premise.
The trial court found “the City hired an independent
investigator to conduct an investigation of the March 10, 2017
event.” The Commission found that this independent
investigator interviewed Watson on April 7, 2017 regarding the
February 1, 2017 and March 10, 2017 incidents. Furthermore,
during the hearing before the Commission, Watson’s counsel
represented that on the date of Watson’s April 7, 2017 interview,
counsel provided the investigator with a copy of a statement
prepared by Watson in which he described his account of the
March 10, 2017 incident (the March 19, 2017 statement).
We also note that although there is a memorandum dated
April 19, 2017 from Ficker to Melkonian that claims an
“administrative investigation report” prepared by the
independent investigator was attached thereto, the
administrative investigation report is not enclosed with the copy
of the memorandum included in the administrative record.
Additionally, Watson concedes that Ficker reviewed the findings
of this investigation before he prepared charges against Watson.
(See Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2
[“ ‘[B]riefs and argument . . . are reliable indications of a party’s
position on the facts as well as the law, and a reviewing court
may make use of statements therein as admissions against the
party. [Citations.]’ [Citations.]”].)
29
In some circumstances, “oral or written notice of the
charges[,] . . . an explanation of the employer’s evidence, and an
opportunity to present [the employee’s] side of the story” may be
all the process that is due before the employer deprives an
employee of a property interest. (See, e.g., Loudermill, supra,
470 U.S. at p. 546; ibid. [holding that the federal due process
clause requires states to offer these procedures before they can
terminate tenured public employees].) It is possible that
Watson’s April 7, 2017 interview with the independent
investigator afforded Watson such notice and opportunity to
present his side of the story, and Watson has failed to supply us
with enough information to rule out that possibility. (See Gilbert,
supra, 520 U.S. at p. 932 [“So long as the suspended employee
receives a sufficiently prompt postsuspension hearing, the lost
income is relatively insubstantial (compared with termination),
and fringe benefits such as health and life insurance are often not
affected at all . . . .”].) Oddly, Watson does not discuss this
interview in his briefing, explain why the interview fell short of
the City’s obligation to afford Watson with due process of law, or
provide a detailed chronology of the investigator’s and/or the
City’s conduct in the 12-week period in which Watson claims he
purportedly was deprived of due process.
Consequently, Watson has not discharged his obligation of
adequately developing the factual basis of this aspect of his as-
applied challenge, thereby preventing us from assessing the
private interest affected by his summary suspension. (See
Lammers, supra, 83 Cal.App.4th at p. 1328 [“[A]n applied
challenge looks to the particular circumstances of [a rule’s]
application to a specific individual,” italics added].)
30
Watson’s second premise fares no better. Gilbert concluded
the fact the police officer therein was “arrested and then formally
charged with a felony . . . . serve[d] to assure that the state
employer’s decision to suspend the employee [was] not ‘baseless
or unwarranted,’ [citation], in that an independent third party
ha[d] determined that there [was] probable cause to believe the
employee committed a serious crime.” (See Gilbert, supra,
520 U.S. at p. 934.) Similarly, Mallen found that the indictment
of an official of a federally-insured bank for making false
statements to the FDIC established “there [was] little likelihood”
that the suspension of that official was “without basis” in part
because “the finding of probable cause by an independent body
demonstrate[d] that the suspension [was] not arbitrary.” (See
Mallen, supra, 486 U.S. at pp. 231–232, 236–238, 244–245.)
Neither Gilbert nor Mallen considered whether a public
employer’s suspension of an employee without pay would run
afoul of due process if it were not preceded by an independent
third-party’s finding of probable cause. (See Gilbert, supra,
520 U.S. at p. 934; Mallen, at pp. 244–245; see also Kim v. Reins
International California, Inc. (2020) 9 Cal.5th 73, 85, fn. 4
[“ ‘[C]ases are not authority for propositions that are not
considered.’ [Citation.]”].) Indeed, on at least one prior occasion,
the high court held that a state agency could temporarily deprive
an individual of his property interest based on the agency’s own
findings. (See Barry v. Barchi (1979) 443 U.S. 55, 57–61, 63–66,
68 [holding that the state agency did not violate due process
when it suspended a horse trainer’s license without a
predeprivation hearing based on the agency’s expert’s finding
that the horse had drugs in its system; stating that “[a]t the
interim suspension stage, an expert’s affirmance, although
31
untested and not beyond error, would appear sufficiently reliable
to satisfy constitutional requirements”; but also holding that the
statute authorizing the suspension violated the trainer’s due
process rights because it did not “assure[ ] a prompt
postsuspension hearing”].)
Gilbert counsels against the adoption of “categorical
prohibition[s]” or “absolute rule[s]” in the procedural due process
context, and recognizes there are “occasions . . . where a State
must act quickly, or . . . it would be impractical to provide
predeprivation process . . . .” (See Gilbert, 520 U.S. at p. 930.)
Given that Watson does not contest the trial court’s finding that
“[a]ssessment by a third-party in the face of an exigency” covered
by Section 87 would be “impractical,” Gilbert did not require the
City to hire an independent investigator to verify the allegations
against Watson before it suspended him.21
Lastly, we find unavailing Watson’s assertion that due
process required the City to place him on leave with pay if it
chose to summarily suspend him. Admittedly, Loudermill did
state that, “in those situations where the employer perceives a
significant hazard in keeping the employee on the job, it can
avoid the problem by suspending with pay.” (See Loudermill,
supra, 470 U.S. at pp. 544–545, fn. omitted.) Nevertheless, the
Gilbert court later dismissed this passage from Loudermill as
21 Watson also suggests that Bostean v. Los Angeles
Unified School Dist. (1998) 63 Cal.App.4th 95, required the City
to enlist a third-party investigator before suspending him.
Because Watson provides no analysis on this point, we do not
address it further. (See Hodjat, supra, 211 Cal.App.4th at p. 10
[“[A]n appellant is required to not only cite to valid legal
authority, but also explain how it applies in his case.”].)
32
dictum. (See Gilbert, supra, 520 U.S. at pp. 929–931.) Thus,
Loudermill does not hold that Watson had to be paid during the
City’s investigation into his alleged misconduct.
In sum, Watson’s as-applied due process challenge fails.
3. Watson cannot salvage his as-applied challenge by
belatedly invoking his dignitary interest in being
heard
Watson claims that his “dignitary interest in being heard”
counsels in favor of a finding that the City applied Section 87 in a
manner that violated his due process rights. Specifically, Watson
contends in his opening brief that “[t]he City treated Watson as ‘a
nonperson, an object, rather than a respected, participating
citizen’ ” in the course of summarily suspending him. In support
of this argument, he cites the March 19, 2017 statement noted in
our Discussion, part B.2, ante, for the proposition that on
March 13, 2017, “Melkonian simply told Watson [the City was]
investigating, did not let him have union representation, and
handed him the summary suspension letter.”
Respondents counter in their appellate briefing that
Watson did not invoke this “dignitary interest” during the trial
court proceedings. In his reply brief, Watson does not dispute—
and thus impliedly concedes—that he failed to raise explicitly
this contention below. (See Rudick v. State Bd. of Optometry
(2019) 41 Cal.App.5th 77, 89–90 [concluding that the appellants
made an implicit concession by “failing to respond in their reply
brief to the [respondent’s] argument on th[at] point”].) Rather, he
attempts to minimize the impact of his omission by insisting that
he “now frames the argument slightly differently on appeal,” the
dignitary interest factor “can rightly . . . be viewed as a subset of
Watson’s private interest,” and asserting that below he stated he
33
was stigmatized by the decision to suspend him summarily for
12 weeks without pay or a predeprivation opportunity to respond
to the allegations against him.
“ ‘ “Points not raised in the trial court will not be considered
on appeal. [Citation.] ‘Even a constitutional right must be raised
at the trial level to preserve the issue on appeal [citation].’
[Citation.]” ’ ” (Gruber v. Yelp Inc. (2020) 55 Cal.App.5th 591,
611, fn. 11.) Although we acknowledge that “exceptions [to this
rule] are made in rare case[s] for purely legal issues” (see ibid.),
this is not such a case. As we noted above, Watson’s invocation of
a dignitary interest relies upon his account of Melkonian’s
interaction with him on March 13, 2017. By failing to raise this
contention below, Watson denied the trial court the opportunity
to undertake an analysis that falls exclusively within that court’s
purview—i.e., assessing the credibility and veracity of the March
19, 2017 statement. (See San Diego Unified School Dist., supra,
214 Cal.App.4th at pp. 1140–1142 [“ ‘Under the independent
review standard, the trial court may weigh the credibility of
witnesses.’ ” [Citation.] . . . [¶] . . . [¶] “ ‘[On appeal, w]e do not
reweigh the evidence.’ ”].) Accordingly, we disregard Watson’s
untimely invocation of his dignitary interest.
C. Watson Fails to Establish that His Skelly Hearing
Lacked Reasonably Impartial, Noninvolved Decision-
Makers
“In Skelly, supra, 15 Cal.3d 194, the California Supreme
Court held that in order to satisfy due process, an agency
considering disciplinary action against a public employee must
accord the employee certain ‘preremoval safeguards,’ including
notice of the proposed action, the reasons therefor, a copy of the
charges and materials upon which the action is based, and the
34
right to respond, either orally or in writing, to the authority
initially imposing discipline.’ [Citation.] The Supreme Court’s
directive gave rise to an administrative procedure known as a
Skelly hearing, in which an employee has the opportunity to
respond to the charges upon which the proposed discipline is
based.” (Flippin v. Los Angeles City Bd. of Civil Service
Commissioners (2007) 148 Cal.App.4th 272, 280 (Flippin).) An
“employee’s right to respond” at a Skelly hearing “ ‘implies an
opportunity for the employee to present an explanation or version
of whatever events or circumstances led to the potential dismissal
“before a reasonably impartial, noninvolved reviewer . . . .”
[Citation.]’ ” (See ibid.)
“[M]ere involvement in ongoing disciplinary proceedings
does not, per se, violate due process principles. Those principles
are violated, conversely, if the official or officials who take part in
the [administrative] proceedings are demonstrably biased or if, in
the least, circumstances such as personal or financial interest
strongly suggest a lack of impartiality.” (See Burrell v. City of
Los Angeles (1989) 209 Cal.App.3d 568, 582 (Burrell).)
Watson argues that the City “violated Watson’s procedural
due process rights by having Melkonian and Ficker[,] who were
intimately involved in Watson’s summary suspension and
removal from the payroll—a punitive action—as two of the three
members of his Skelly panel.” First, Watson contends that Ficker
“pre-judged the case from the outset” by “determin[ing] an
‘urgency’ existed constituting ‘substantiated, job-related
extraordinary conduct’ warranting summary suspension under
[Section] 87,” and “Melkonian showed that he would play along
with the punitive action” by summarily suspending Watson.
Second, Watson claims “Ficker and Melkonian had a specific
35
interest in upholding the termination because, had they not done
so, the City would have owed Watson back pay and benefits—a
result that surely Ficker and Melkonian did not want since they
involved themselves in prejudging the case and removing Watson
without pay.” In support of Watson’s assertion that Ficker
prejudged the case, he maintains that “before the Skelly
hearing[,] Ficker not only drafted the charges, but also made
credibility determinations, investigatory conclusions and
convinced himself the charges he drafted were accurate.” For the
reasons discussed below, we conclude Watson has failed to
establish the City deprived him of a reasonably impartial,
noninvolved reviewer at his Skelly hearing.
Flippin rejected a public employee’s claim that his
employer violated his due process rights by allowing a manager
to serve in a “dual role as the Skelly hearing officer and the
person who initially recommended [the employee’s] discharge.”
(See Flippin, supra, 148 Cal.App.4th at pp. 276, 280–283.) The
manager’s “involvement consisted of” drafting the charges
against the employee; “investigating the charges of misconduct;
recommending [the employee’s] discharge; and conducting the
Skelly hearing at which [the employee] had the opportunity to
respond to the charges and recommendation.” (See id. at pp. 276,
283.)
Flippin reasoned “[t]here is no authority that precludes an
officer from performing such a dual function,” “having the same
official who initiates an employee disciplinary proceeding also
conduct the Skelly hearing” is “apparently [a] common practice,”
and the employee was entitled to seek further administrative
review of the dismissal, “including a full evidentiary hearing
36
before a neutral hearing examiner.”22 (See Flippin, supra,
148 Cal.App.4th at pp. 281–283.)
Ficker’s and Melkonian’s involvement in Watson’s
disciplinary proceeding was no more extensive than was the
manager’s in Flippin. Just as the manager in Flippin drafted the
charges against the employee and recommended dismissal upon
reviewing evidence concerning the charges, so too did Ficker.
(See Flippin, supra, 148 Cal.App.4th at pp. 276, 283.)
Admittedly, there is no indication the manager suspended the
employee in Flippin (see id. at pp. 276–277), whereas Ficker, in
consultation with a human resources officer, decided to suspend
Watson summarily, and Melkonian signed the letter imposing the
suspension. This distinction is immaterial, however, because
Ficker’s conduct simply indicates he believed that an accusation
that Watson engaged in job related, extraordinary conduct
requiring immediate removal from the workplace had been
substantiated (see Discussion, part A, ante), a conclusion akin to
the manager’s recommendation to dismiss the employee in
22 Watson claims that the portion of the Flippin decision
addressing the manager’s dual role is dictum because earlier in
the opinion, the Court of Appeal had already decided the
employee waived his right to a Skelly hearing. Yet, the Flippin
court indicated that its discussion of the “dual role” issue was an
alternative basis for its conclusion that the employee failed to
establish a due process violation. (See Flippin, supra,
148 Cal.App.4th at p. 281 [“Even absent any forfeiture, no due
process violation occurred,” italics added].) Thus, this aspect of
the Flippin opinion is not dictum. (See People v. Mendoza (2020)
44 Cal.App.5th 1044, 1056, fn. 5 [“ ‘It is well settled that where
two independent reasons are given for a decision, neither one is
to be considered mere dictum . . . .’ [Citations.]”].)
37
Flippin. (See Flippin, at p. 276.) Furthermore, just as the
employee in Flippin was entitled to an administrative appeal of
his discharge before a neutral decision-maker (see id. at p. 283),
Watson had the right to appeal his termination to the
Commission.23
Watson’s contention that “Ficker and Melkonian had a
specific interest in upholding the termination” is also without
merit. To support this argument, Watson cites a portion of
Ficker’s testimony from the administrative proceedings in which
he stated that prior to the Skelly hearing, he was “convinced that
the charges were accurate.” Drawing all reasonable inferences in
favor of the trial court’s judgment as the substantial evidence
standard of review requires (see San Diego Unified School Dist.,
supra, 214 Cal.App.4th at p. 1142), we conclude this testimony
merely indicates Ficker believed the charges had evidentiary
support, and not that Ficker was unable to be impartial during
the Skelly hearing.
Moreover, the trial court found that “[n]o evidence suggests
Ficker and/or Melkonian would have been subject to any kind of
scrutiny by the City if the City did not move forward with its
intentions to terminate [Watson] thereby requiring the City to
pay a few months of back pay to [Watson].” The court also found
that “Ficker and M[e]lkonian would not be personally liable for
[Watson’s] back pay.” Because Watson does not contest either of
these findings, we presume they are correct. (See Shenouda,
supra, 27 Cal.App.5th at pp. 512–514.) Under these
circumstances, Watson has not established that Ficker or
23
Watson does not challenge the impartiality of the
members of the Commission.
38
Melkonian were “demonstrably biased” or had any “personal or
financial interest strongly suggest[ing] a lack of impartiality.”
(See Burrell, supra, 209 Cal.App.3d at p. 582.)
Lastly, Watson argues that Gray v. City of Gustine (1990)
224 Cal.App.3d 621, supports his claim that Ficker and
Melkonian should not have been panel members at the Skelly
hearing. In Gray, a city manager demoted a police chief to the
rank of lieutenant. (Gray, at pp. 624, 628.) When the former
police chief sought an administrative appeal of that decision, the
city manager offered to conduct the administrative hearing and
make a recommendation concerning the former police chief’s
reinstatement to the city council. (Id. at p. 625.) On appeal of
the trial court’s denial of the former police chief’s mandamus
petition seeking an administrative appeal before a neutral
decision-maker, the Gray court held that “[t]he administrative
appeal offered by the city manager was clearly inadequate and
failed to comport with the fair hearing aspect of due process.”
(See id. at pp. 625, 631.) The panel reasoned that “[t]he city
manager exercised the punitive action against [the former police
chief] and was embroiled in the controversy,” and “[d]ue process
requires that the hearing judge or judges be impartial.” (See id.
at p. 631.)
Gray does not undermine our conclusion that Ficker and
Melkonian could serve on Watson’s Skelly panel. Flippin
explained that an administrative appeal occurs after discipline is
imposed at a Skelly hearing, and “ ‘[a] right to appeal, in common
understanding, occurs after final discipline is invoked and implies
a further review by another, presumably neutral authority.’ ”
(See Flippin, supra, 148 Cal.App.4th at p. 282.) Consequently,
allowing “ ‘the same person who originally imposed the discipline
39
[to] also review the decision raises grave doubts as to the fairness
of the appeal. [Citations.]’ [Citation.]” (See ibid.) Those doubts
are absent when, as here, the official initiating discipline serves
as a Skelly hearing officer prior to the formal imposition of
discipline. (See id. at pp. 281–283.)
For the foregoing reasons, Watson has failed to show the
trial court erred in rejecting his claim that the City violated his
due process rights by permitting Ficker and Melkonian to serve
as decision-makers at Watson’s Skelly hearing.
DISPOSITION
The judgment is affirmed. Respondents are awarded their
costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
CRANDALL, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
40