Hill v. City of Richmond CA1/1 ( 2021 )

Filed 6/30/21 Hill v. City of Richmond CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publi-
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
ANDRE HILL,
Petitioner and Appellant,
A159322
v.
CITY OF RICHMOND et al., (Contra Costa County
Super. Ct. No. N18-1677)
Respondent.
Appellant Andre Hill, formerly a lieutenant with the Richmond Police
Department, appeals from the denial of his petition for a writ of
administrative mandamus challenging the disciplinary action, dismissal,
taken against him for a “sexting” relationship with an 18-year old, Jasmin
Abuslin, that occurred over the course of four months via his personal cell
phone (the vast majority of which occurred off-duty) and engaging in one
sexual encounter with Abuslin (which also occurred off-duty).
The administrative investigator, the Police Chief, the Skelly hearing
officer, and the Administrative Law Judge (ALJ) all concluded Hill’s conduct
violated various provisions of the Police Department Policy Manual,
principally the provisions concerning the use of personal communication
devices and “conduct unbecoming” an officer. The Police Chief, the Skelly
hearing officer, and the ALJ also all concluded dismissal was not warranted
(the investigator did not make a recommendation as to discipline), given
1
Hill’s unblemished, 22-year career with the department, the short duration of
the misconduct, that nothing Hill did was unlawful, and that Hill ended the
relationship when he became aware Abuslin used illegal drugs. However, at
each step of the administrative process, the city manager overruled the
disciplinary recommendation, and eventually terminated Hill’s employment.
The trial court denied Hill’s writ petition. We affirm.
BACKGROUND
Administrative Investigation
In June 2016, Richmond Police Sergeant Stina Johanson conducted an
administrative investigation of five allegations against Hill: (1) that he
engaged in sexual text messaging (sexting) with Jasmine Abuslin between
December 26, 2015 and April 25, 2016, on-and off-duty, using his personal
cell phone; (2) that he engaged in this sexting with knowledge Abuslin was a
prostitute; (3) that he engaged in oral sex with Abuslin on March 24, 2016
while he was off-duty; (4) that he engaged in this act of oral sex knowing
Abuslin was a prostitute; and (5) he engaged in this conduct with Abuslin in
exchange for confidential police information, non-enforcement of prostitution
laws, and/ or other unauthorized police considerations.1
Sergeant Johanson found only the first and third allegations to be
sustained. As to the second and fourth allegations, she found Hill did not
know Abuslin was a prostitute, concluding the allegations were “[n]ot
1These allegations were made in the wake of an investigation by the
Oakland Police Department (Oakland PD) into relationships between Abuslin
and a number of Oakland police officers. During that investigation, the
messages between Abuslin and Hill came to light and were referred to the
Richmond Police Department.
2
[s]ustained.”2 As to the fifth allegation, she found Hill did not engage in
either the sexting or the oral sex in exchange for any confidential information
or special treatment by law enforcement, concluding this allegation was
“[u]nfounded.”3
As to the first allegation, of sexting, Sergeant Johanson found as
follows: Abuslin initiated communication with Hill. “She located him via
RPD Chief Allwyn Brown’s Facebook page,” and began communicating with
him by “private messenger.”4 “[S]hortly thereafter, they exchanged cell
phone numbers.” There were over 324 text messages between Hill and
Abuslin, “occurring both on and off duty.” The vast majority of these
communications occurred while Hill was off-duty. Johanson identified five
provisions of the Richmond Police Department Policy Manual (Policy Manual)
that were implicated.5
2 Sergeant Johanson credited Hill’s statement that he did not become
aware Abuslin was a prostitute until hearing news stories of the Oakland PD
investigation.
3 At the time of the events at issue, Hill was in his mid-forties and
single.
4 Abuslin explained she “would search under friends [on known police
officer’s Facebook pages] and locate other officers and then ‘friend’ them on
Facebook.”
5 These were:
Code of Ethics: “I will keep my private life unsullied as an example to
all and will behave in a manner that does not bring discredit to me or
to my agency.”
Section 340.3.2(u) Conduct Unbecoming: “Prohibits criminal,
dishonest, infamous or disgraceful conduct adversely affecting the
employee/employer relationship, whether on- or off-duty.”
Section 340.3.2 (ag) Conduct Unbecoming: “Prohibits any other on-duty
or off-duty conduct which an employee knows or reasonably should
know is unbecoming a member of the Department or which is contrary
3
As to the fourth allegation, Sergeant Johanson found: Following
numerous text messages, which included Abuslin “telling Hill what she could
do for him sexually,” Abuslin “eventually” asked Hill “to engage in sex with
her.” Hill agreed to do so about a week before the March 24th encounter.
That night, after Hill was off-duty, he drove to Abuslin’s house in his
personal vehicle, arriving at approximately 8:00 p.m. Hill insisted that
Abuslin produce proof confirming she was, as she claimed, 18 years old,
which she did. They engaged in oral copulation. Hill recalled the encounter
lasted about 15 minutes; Abuslin thought it lasted approximately an hour.
Abuslin and Hill both stated the encounter was consensual and no money
was exchanged.6 After the March 24th encounter, Abuslin became
“provocative and possessive” and Hill “backed off” communicating with her.
Abuslin then began to “harass” him with a barrage of sexually explicit texts.
In mid-April, Hill deleted Abuslin from his Facebook page and deleted all
to good order, efficiency or morale, or which tends to reflect unfavorably
upon the Department or its members.”
Section 702.6(c) Use of Personal Communication Devices: “A PCD may
not be used to conduct personal business while on-duty, except for brief
personal communications (e.g., informing family of extended hours).
Employees shall endeavor to limit their use of PCD’s to authorized
break times, unless an emergency exists.”
Section 702.6(g) Use of Personal Communication Devices: “Using PCD’s
to harass, threaten, coerce or otherwise engage in inappropriate
conduct with any third party is prohibited.”
6 Prior to this encounter, Abuslin told Hill to drive by her house,
stating she would stand at the window and “flash” her breasts. Hill did so; he
was again off-duty and in his private vehicle.
4
communications. Sergeant Johanson identified three provisions of the Policy
Manual that were implicated.7
Police Chief’s Disciplinary Recommendation
The Chief of Police, Allwyn Brown, reviewed Sergeant Johanson’s
investigative report, trusted the findings she made, and accepted them. He
considered a number of factors in making his disciplinary recommendation.
These included: 1) the nature and frequency of Hill’s interactions with
Abuslin (which were sporadic); 2) whether Hill had contact with Abuslin
before she turned 18 (he did not); 3) whether confidential information was
exchanged for sexual contact (it was not); 4) whether the sexual contact was
consensual (it was); 5) whether Hill was aware Abuslin was a prostitute (he
was not); 6) whether Hill was aware Abuslin used illegal drugs (he was not);
and 7) whether Hill had improperly run Abuslin’s name on the confidential
database (he had not). Brown also took into account that Hill met with
Abuslin on only one occasion, and after learning she was using drugs,
distanced himself from her. He did not give much weight to the text
messaging because it was done on Hill’s personal phone and mainly while off-
duty. “He tries not to get involved in officers’ personal lives.”
Brown also took into account that Hill “had a long history with the
Department as a reliable, dependable employee.” He did not believe the
evidence demonstrated any predatory behavior by Hill. “Based on his 33
years of experience, his knowledge of [Hill’s] history with the Department
and his review of the investigation report,” Brown recommended that Hill be
suspended for 120 hours without pay.
7 These were the Code of Ethics concerning private life (quoted above
in fn. 5) and the two section 340.3.2 conduct unbecoming provisions (also
quoted in fn. 5).
5
Notice of Proposed Action
Richmond’s Human Resources Management Department (HR
Department) thereafter issued a notice of proposed action to impose a 120-
hour suspension without pay. The notice recited that the proposed action
was based on the interview summaries and the two sustained allegations
recounted in the investigative report.
As to the first charge, sexting, the notice identified excerpts of a
December 26, 2015 off-duty exchange (that Sergeant Johanson had
highlighted), in which Hill started at 4:31 p.m. with “ ‘Hey’ ” and, about 19
minutes and 17 texts later lead to the following (after Abuslin altered the
tenor of the texting to sexting):
“[H]: ‘I wanna play with those titties’
“[A]: ‘U can play with my titties all u want. Lick them, fuck them, cum
on them’
“[H]: ‘I will. What else’
“[A]: ‘Anything u want I’m submissive’
“[H]: ‘Will I have to pick you up?’
“[A]: ‘I want to be your bitch’
“[H]: ‘I have to see ID and interview . . .”
“[H]: ‘Send a pic of your nippies’
“[A]: ‘WOW nice’
“[H]: ‘Call me when ur done . . . you sounded afraid, I don’t need
problems’
“[A]: ‘Hi daddy, last thing I need is problems, I’ve been 207nd
[kidnapped] 3 times in the past 4 years so I’m traumatized is all and
have kept it a public setting’
“[A]: ‘That’s why I stick to people in your profession.’ ”
The notice also identified a December 30th exchange while Hill was on
duty:
“[H]: ‘What time you want me to pick u up?’
“[A]: ‘When. I’m 4mo pregnant k.’
“[H]: ‘By who baby?’
“[A]: ‘Idk’
“[H]: ‘Really? How many guys you fuck?’ ”
6
The notice stated Hill’s “conduct, as described above and documented in
the attached materials, was disgraceful, unbecoming of a member of this
Department, contrary to the good order and morale of the Department,
adversely affected the employee/employer relationship”8 and violated each of
the four Policy Manual provisions Sergeant Johansen had identified. In
addition, under City Personnel Rule X, discipline could “ ‘be based on reasons
other than those specifically mentioned.’ ” In that regard, the notice stated,
“Engaging in sexually-charged text exchanges with an 18 year old while
assigned as the Youth Services Lieutenant, and having some of your
disgraceful conduct published in local newspaper articles that reflected
unfavorably on the Department and its members, constitute independent
causes for discipline under the City Personnel Rules.”
As to the second “charge,” engaging in oral sex on Match 24th, the
notice stated, “While the Youth Services Division Lieutenant, you engaged in
‘sexting’ exchanges over the course of approximately four months, which
ultimately resulted in engaging in oral sex with Ms. Abuslin. At [a]
minimum, you knew she was an 18-year old girl with a background of
traumatic incidents–an at-risk youth you were charged to protect, not exploit.
Your conduct was unbecoming a member of the Department and contrary to
good order, efficiency and morale of the Department and its members. The
behavior reflected unfavorably upon the Department and its members as
reflected in the published media reports referenced in charge One.” The
notice referenced each of the three Policy Manual provisions Sergeant
8 The notice pointed out that on or about June 30th, Hill had been
identified in media reports as one of a number of Richmond officers “who had
sex” with Abuslin. The text messages “arranging for” and after the “sexual
contact” on March 24th were also published. These articles “reflected
unfavorably upon the Department and its members.”
7
Johansen had identified. The notice further stated the conduct violated City
Personnel Rule X as “[c]onduct unbecoming an employee” and as “[i]mmoral
or disorderly conduct.” “Engaging in oral sex with a troubled 18 year old girl
while assigned as Youth Services Division Lieutenant constitutes
independent cause for discipline under the City Personnel Rules.”
The notice concluded by stating, “The public and Richmond Police
Department trusts that a police officer will protect and serve citizens with
honesty, integrity, and as a model of exemplary behavior-both on- and off
duty. Additionally, the Richmond Police Department trusts that, as a
supervisor, your actions will serve as an example to your subordinates. Your
conduct with Ms. Abuslin destroyed the public’s trust and the Department’s
trust in you. You participated in ‘sexting’ and oral sex with a troubled 18-
year old girl. Your conduct was publicized and embarrassed the Department
and its members. Only due to your commendable service during your 22-year
career was this recommended discipline no more severe. Please be advised
that any future similar conduct will result in your termination from
employment.”
The notice advised Hill of his right to a “Skelly” hearing,9 which Hill
chose not to exercise.
City Manager’s Rejection of Police Chief’s Recommended Discipline
The City Manager rejected the Police Chief’s disciplinary
recommendation, stating, in pertinent part:
“[A] 120-hour suspension without pay, is insufficient to address the
very serious and inappropriate behavior that Lieutenant Hill engaged
in with an 18-year old at-risk youth. . . . The behavior outlined in the
. . . Notice of Proposed Action, can only be described as predatory
behavior on the part of Lieutenant Hill. Lieutenant Hill was the
Lieutenant over the Youth Service Division. As such, he knew or
9 Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly).
8
should have known that Ms. Abuslin was an at-risk youth with drug
addiction issues, and was someone who had been and/or was currently
a sex worker. Instead of trying to provide assistance to Ms. Abuslin, as
a trained Lieutenant in the Youth Services Division should have done.
Lieutenant Hill began sending inappropriate, sexually explicit text[s] to
the 18-year old, and then engaged in a physical relationship with her of
a sexual nature. The full content of the inappropriate conduct is
outlined in the . . . Notice of Proposed Action.
“Based on Lieutenant Hill’s conduct, and the fact that he was the
Lieutenant over the Youth Services Division, I find his lack of
judgment, and his predatory behavior toward an 18-year [old] at-risk
drug addicted youth, cannot be properly addressed with a suspension.
The appropriate level of discipline should be termination.”
The HR Department issued a new notice of proposed action, dismissal,
advising Hill of his right to a Skelly hearing. Hill requested a hearing.
The Skelly Hearing
The hearing officer, Richmond Fire Chief Adrian Sheppard, reviewed,
inter alia, the investigative report, the text messages, the initial notice of
proposed action, the City Manager’s letter rejecting the recommended
disciplinary action, and heard comments by Hill and argument by counsel.
Chief Shepard agreed there was insufficient evidence to conclude Hill
knew Abuslin was a sex worker or had an addiction problem when he began
sexting with her. He also agreed Hill’s conduct could not be characterized as
“predatory.”
However, he concluded that “the text messages and investigative report
clearly supported a finding that [Hill] exercised indifferent judgment and
participated in sometimes graphic exchanges and oral sex with a troubled 18-
year old woman.” The “text exchange in which Abuslin described having
been kidnapped three time in the past four years and being traumatized
should have been enough to have stopped [Hill] in his tracks. Instead, [Hill]
9
continued and repeatedly asked Abuslin how old she was, then went to her
mother’s home to receive oral sex.” These actions ran “ ‘completely contrary
to the conduct expected of any public safety officer but are especially
egregious when a 22-year veteran supervisor assigned to the Youth Services
Division commits them.’ ”
Based on all the facts, including Hill’s “long and unblemished history
with the Department,” Chief Sheppard recommended that Hill’s employment
not be terminated, but he be demoted two ranks to the rank of police officer.
City Manager’s Rejection of Hearing Officer’s Recommended Discipline
The City Manager, citing to dictionary definitions of the terms,
reiterated his view that Hill both “exploited” Abuslin and acted in a
“predatory” manner. He also did not consider the sexual conduct
“consensual” because he felt Hill “took advantage of his inherently unequal
bargaining power in the relationship with Abuslin, a youth who was
incapable of exercising good judgment or making decisions for herself.” Hill
had ignored “numerous signs that Abuslin was an at-risk youth” and took
“advantage of her instead of following up on the troubling indications in order
to protect her.”
While the City Manager acknowledged three of the allegations against
Hill had not been sustained, he considered Hill’s conduct outside “ ‘anything
that should be considered appropriate or excusable conduct for a police
officer.’ ” He was particularly disturbed that Hill engaged in the conduct
while assigned to the Youth Services Division.
10
Administrative Law Judge’s Decision
Hill filed an administrative appeal, and in April 2018, the ALJ, sitting
in place of the City Personnel Board, issued a lengthy decision.
The ALJ found the facts pertinent to the two charges of misconduct to
be as follows:
“In the fall or winter of 2015, [Hill] was contacted by Abuslin through
Facebook. She asked to ‘friend’ him. [Hill] did not know Abuslin, but
noted that they had a number of mutual Facebook friends, including
Police Chief Allwyn Brown, other Richmond Police Department officers,
a member of the Richmond City council and a Richmond Deputy City
Attorney. . . . [Hill] accepted the friend request.
“On a date not established by the evidence, Abuslin contacted [Hill] via
Facebook private messenger. Initially, they engaged in general
conversation. The photographs of Abuslin posted on Facebook were
sexually suggestive and featured her in tight-fitting and low-cut
clothing. Their messenger communications escalated to provocative
subjects and Abuslin offered to send [Hill] nude photographs of herself,
which [Hill] accepted. As their relationship developed, they exchanged
cell phone numbers and began texting one another on December 26,
2015.
“Between December 26, 2015, and April 25, 2016, [Hill] and Abuslin
exchanged 324 text messages over [a total of] 15 days. [Hill] asked
Abuslin to be discreet about their relationship. All texting occurred on
[Hill’s] personal cell phone. . . . Of the 324 messages, 50 to 60 occurred
on five days while [Hill] was on duty. Unbeknownst to [Hill], Abuslin
engaged in this conduct with other police officers, including officers in
other cities and several others employed in Richmond.
“The messages contained sexually explicit innuendo and content,
commonly referred to as ‘sexting.’ . . . [The ALJ quoted part of the
‘ “play wit those titties” ’ exchange, beginning at 4:44 p.m. on December
26.] [¶] . . . [¶]
“At 6:18 p.m. on December 26 . . . , Abuslin sent a text message to [Hill]
stating: ‘I’ve just been 207nd 3 times in the past 4 years so I’m
traumatized is all and have kept it in a public setting since,’ and at 6:20
11
p.m. Abuslin sent a text stating, ‘That’s why I stick to people in your
profession.’ [Hill] responded, stating ‘Call me.’ [Hill] had interpreted
her text to be a reference to Penal Code 207 that defines punishment
for kidnapping. When [Hill] spoke to her about it later, Abuslin
laughed and downplayed the statement. Abuslin often joked and
giggled on the phone. [Hill] later sent her a text stating, ‘All good . . .
but don’t got time for games, or kidnaps.’
“[Hill] was aware that Abuslin’s mother was a police dispatcher with
the City of Oakland and thought Abuslin was citing Penal Code
references to impress him. Kidnappings are rare in Richmond and
[Hill] would very likely have been aware of it if a Richmond resident
had been kidnapped three times; he considered her statement to be far-
fetched and a joke.
“On December 30 . . . , around 4:00 p.m., [Hill] engaged in sexting with
Abuslin again. She sent a message to him at 4:22 p.m. stating that she
was four months pregnant. [Hill] again considered the statement to be
provocative banter and a joke.
“Abuslin next contacted [Hill] on January 21, 2016, initiating sexting.
Abuslin invited [Hill] to come to the home she shared with her mother,
but he was unavailable.
“On January 24 . . . , at 12:33 p.m., Abuslin contacted [Hill] stating that
she had just awakened after ‘they hit me with a 5150 sleeping shot.’
[Hill] understood Abuslin to be referring to Welfare and Institutions
Code section 5150, which allows for an involuntary commitment. . . .
[Hill] again believed Abuslin was joking, or trying to impress him.
“On January 26 . . . , Abuslin invited [Hill] over to see her. [Hill] asked
about identification; he wanted to confirm Abuslin was an adult. . . .
Abuslin assured him she was ‘legal’ stating she had lost her
identification in Puerto Rico, but had a passport to show him. They did
not meet.
“[Hill] and Abuslin next had brief contact on March 5. . . . On March 17
. . . [Hill] asked Abuslin if she had a fiancé based on a Facebook post.
Abuslin replied she was getting married the following day to someone
she had met the previous day. [Hill] again considered this to be
provocative banter. [¶] . . . [¶]
12
“On March 24 . . . , Abuslin contacted [Hill] at 5:23 p.m., inviting him
over because her mother was leaving. . . . [Hill] was off-duty. [Hill]
agreed and went to Abuslin’s residence. [Hill] asked Abuslin how old
she was and when she told him she was 18 years old, he demanded to
see her driver’s license; she showed him an identification card
confirming her age. [Hill] was satisfied Abuslin was an adult. Abuslin
performed oral copulation on [Hill] while he was in her home. He
estimates that he was in the home for approximately 15 minutes.
“When [Hill] was leaving, Abuslin advised him that she was using
‘powder.’ He counseled her to get off drugs and followed up with a text
message after he left. She replied by text, agreeing to flush the drugs
down the toilet. . . . After learning that Abuslin was using illegal
drugs, [Hill] decided to distance himself from her; he did not offer to
assist her in seeking help for drug use. [¶] . . . [¶]
“[Hill] did not have contact with Abuslin again until April 19 . . . , when
she sent him a text message stating, ‘So you were the weak link?!’
[Hill] did not understand the comment and responded asking, ‘When.’
Abuslin responded, ‘Why u did this to me,’ then ‘I was nothing but kind
and good to you andre.’ [Hill] responded by text stating: ‘Are you
kidding me? Are you serious?’ Abuslin replied, ‘My feelings are so hurt
andre’ and ‘I just want to know what u got out of it,’ ‘That is all,’ and
‘Or just for laughs.’ [Hill] responded asking, ‘Got out of what?’ [Hill]
did not know what Abuslin was referring to; this exchange occurred
around the time that Abuslin’s relationship with several Oakland police
officers was surfacing.
“Abuslin sent another 22 text messages to [Hill] between 12:18 a.m.
and 7:32 a.m. The messages continued to demand to know ‘why’ and
stated she hated [Hill]. [Hill] responded at 7:33 a.m. asking Abuslin if
she had ‘slept at all.’ Abuslin replied that she had not. [Hill] stated he
had to get ready for work and asked her to stop sending text messages
to him. Abuslin continued sending text messages accusing [Hill] of
being two-faced and talking about her. At 7:52 a.m., [Hill] sent a text
message to Abuslin stating, ‘Listen, I don’t know what you[‘re] talking
about and I don’t know anything to say about you. . . .’ Abuslin
continued to send text messages. At 9:21 a.m., [Hill] sent Abuslin a
text message stating he would call her when he was done with his
meeting. Abuslin sent another 25 text messages to [Hill] before he was
13
able to call her. [Hill] tried to calm her down, but eventually just
stopped responding.
“[Hill] received several additional text messages from Abuslin on April
25 . . . ; he did not respond. [¶] . . . [¶]
“Two to three weeks thereafter, journalists . . . reported that a young
woman (Abuslin) was claiming to have been sexually involved with a
number of police officers from the Oakland Police Department. . . .
“Abuslin disclosed to the media the names of Oakland police officers
with whom she claimed to have been involved sexually. The Oakland
Police Department opened an investigation. . . . In late May or early
June 2016, Abuslin named five officers in the Richmond Police
Department, including [Hill].
“Media outlets described Abuslin as having had a difficult upbringing
and being ‘a survivor of child sex trafficking.’ Abuslin was addicted to
heroin and was working as a prostitute, although there is no record of
her being arrested for or convicted of prostitution or any other criminal
offense.
“The media articles quoted text message exchanges between [Hill] and
Abuslin . . . ; the news coverage reflected unfavorably on the
Department. Members of the public, and the school authorities where
resource officers worked, contacted the Police Chief expressing outrage
and their concern about [Hill’s] misconduct.” (Fn. omitted.)
The ALJ found the evidence supported both of the charges—“sexting”
and oral sex with Abuslin on March 24—that had been sustained during the
administrative investigation. The ALJ identified and relied on the same
Policy Manual provisions as had the investigating officer Johanson.
The ALJ rejected Hill’s argument that he could not be disciplined on
the basis of private sexual practices that did not affect the workplace. While
“[c]ase law establishes that a police officer cannot be terminated on the basis
of private sexual practices that do not affect the workplace . . . [Hill] was
14
disciplined not because he engaged in private sexual practices, but because
he used poor judgment in pursuing a relationship with a troubled youth while
he was serving as the lieutenant of the Youth Services Division. Moreover,
the conduct did affect the workplace in that after the media reported on the
conduct members of the public lost trust in [Hill] and in the Department.”
“The suggestive photographs Abuslin posted on Facebook, the fact she had
recently turned 18, and her willingness to engage in sexting and sexual
contact with someone she had never met, were all signs that she was very
troubled.” Even assuming Hill considered some her comments to be
provocative banter, “her troubled behavior as a whole, especially in light of
his training and position, demonstrated a very serious lapse in judgment.”
The ALJ found, however, that while Hill “should have ignored [Abuslin]
entirely from the start, or attempted to help her when she demonstrated
troubled behavior,” the evidence did “not establish that [Hill] engaged in
predatory behavior.”
The ALJ further found, that while Hill’s “misconduct was very serious,”
it did not warrant dismissal. The conduct “occurred during a short period of
time during [Hill’s] 22 years at the Department,” he had “otherwise lived a
law abiding life and ha[d] given much to the people of Richmond,” and it “is
very unlikely that [Hill] will repeat his misconduct.” He “distanced himself
after meeting [Abuslin] in person and learning she was using illegal drugs.”
Hill’s conduct was not unlawful, and he acknowledged his conduct was wrong
and was genuinely remorseful. Weighing the factors pertinent to public
employee discipline set forth in Skelley, the ALJ concluded “termination is
excessive,” and recommended Hill be demoted to the rank of police officer.
15
City Manager’s Rejection of the ALJ’s Recommended Discipline
The City Manager reviewed the ALJ’s “findings and recommendations,
as well as some of the exhibits presented at the hearing.” He “agree[d] with
most of [the ALJ’s] factual findings,” but disagreed with her recommendation
that Hill be reinstated and demoted to the rank of police officer. In the city
manager’s “view, the facts [the ALJ] found to be true permanently precluded
[Hill] from working in any capacity” for the Richmond Police Department.
“[R[egardless of rank, [an officer] must demonstrate sound and ethical
judgment, must behave in a manner that does not discredit the officer or the
agency, and must always strive to uphold the public trust.”
He then stated in pertinent part:
“Your tenure at the Police Department, and any remorse you
expressed, do not overcome the egregious lapses in judgment you
demonstrated for several months while pursuing sex with an obviously
troubled 18 year-old girl while on and off duty. As a result of your
selfish and unethical actions, you discredited yourself and the
Richmond Police Department, and irrevocably damaged the public’s
trust, and my trust, in your commitment to serving and protecting the
City’s most vulnerable citizens. [¶] For these reasons, I cannot in good
conscience reinstate you to the position of Police Officer. I hereby
uphold my original decision that you remain terminated from
employment.”
Administrative Mandamus Proceeding
Hill filed an administrative mandamus proceeding challenging his
dismissal. After exercising its independent judgment based on the evidence,
and considering briefing and argument, the trial court denied the writ
petition.
The trial court’s findings were essentially the same as those of the ALJ.
Among other things, the court concluded there was ample basis for the view
that Abuslin was a “troubled and at-risk youth” that Hill “was charged to
16
protect.” The court also rejected Hill’s assertion he was unlawfully
disciplined for “private, off-duty sexual relations between consenting adults.”
As for the discipline imposed, dismissal, the trial court observed that
both the Police Chief and the Skelly hearing officer indicated dismissal was
within the realm of reasonable disciplinary options. The court concluded the
city manager’s choice of termination was not an “arbitrary, capricious or
patently abusive exercise of discretion.”
DISCUSSION
Grounds for Discipline
Standard of Review
Code of Civil Procedure section 1094.5, subdivision (b), provides that
“[t]he inquiry in [an administrative mandamus] case shall extend to the ques-
tions whether the respondent has proceeded without, or in excess of, jurisdic-
tion; whether there was a fair trial; and whether there was any prejudicial
abuse of discretion. Abuse of discretion is established if the respondent has
not proceeded in the manner required by law, the order or decision is not sup-
ported by the findings, or the findings are not supported by the evidence.”
(Italics added.) Code of Civil Procedure section 1094.5, subdivision (c), states:
“Where it is claimed that the findings are not supported by the evidence, in
cases in which the court is authorized by law to exercise its independent judg-
ment on the evidence, abuse of discretion is established if the court deter-
mines that the findings are not supported by the weight of the evidence.”
“If the decision of an administrative agency will substantially affect [a
fundamental vested] right, the trial court not only examines the administra-
tive record for errors of law but also exercises its independent judgment upon
the evidence disclosed in a limited trial de novo.” (Bixby v. Pierno (1971)
17
4 Cal.3d 130, 143 (Bixby), fn. omitted.) When applying the independent judg-
ment test to the evidence, “a trial court must accord a ‘ “strong presumption
of . . . correctness” ’ to administrative findings. . . .” (Fukuda v. City of Los
Angels (1999) 20 Cal.4th 805, 816-817 (Fukuda).) “[T]he ‘burden rests’ upon
the complaining party to show that the administrative ‘ “decision is contrary
to the weight of the evidence.” ’ ” (Ibid.) However, “[b]ecause 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 find-
ings.” (Id. at p. 818.)
“Where a superior court is required to make such an independent judg-
ment upon the record of an administrative proceeding, the scope of review on
appeal is limited.” (Pasadena Unified School District v. Commission on Pro-
fessional Competence (1977) 20 Cal.3d 309, 314 (Pasadena Unified).) “[T]the
standard of review on appeal of the trial court’s determination is the substan-
tial evidence test.” (Fukuda, supra, 20 Cal.4th at p. 824, italics added.) “[A]n
appellate court determines whether the independent ‘findings and judgment
of the [trial] court are supported by substantial, credible and competent evi-
dence’ in the administrative record.” (Paratransit, Inc. v. Unemployment Ins.
Appeals Bd. (2014) 59 Cal.4th 551, 562, italics added; see Bixby, supra,
4 Cal.3d at p. 143, fn. 10 [“After the trial court has exercised its independent
judgment upon the weight of the evidence, an appellate court need only re-
view the record to determine whether the trial court’s findings are supported
by substantial evidence.”].)
“In reviewing the evidence, an appellate court must resolve all conflicts
in favor of the party prevailing in the superior court and must give that party
the benefit of every reasonable inference in support of the judgment. When
18
more than one inference can be reasonably deduced from the facts, the appel-
late court cannot substitute its deductions for those of the superior court.”
(Pasadena Unified, supra, 20 Cal.3d at p. 314.) “ ‘Moreover, unless the testi-
mony is physically impossible or inherently improbable, testimony of a single
witness is sufficient to support a conviction.’ ” (People v. Brown (2014)
59 Cal.4th 86, 106.)
The appellate court reviews questions of law de novo. (See Anserv Ins.
Services, Inc. v. Kelso (2000) 83 Cal.App.4th 197, 204.)
Challenges to Trial Court’s Decision
Hill first advances a substantial evidence challenge to the trial court’s
finding that Abuslin was “a troubled and at-risk youth.”10
As we have recited, Abuslin was so described in the initial notice of
proposed action (120 hours of suspension without pay). Thereafter, she was
so described in the city manager’s rejection of the proposed suspension, in the
second notice of proposed action (dismissal), in the Skelly hearing officer’s
decision,11 in the city manager’s rejection of the hearing officer’s
recommended demotion, in the ALJ’s decision , and in the city manager’s
rejection of the ALJ’s recommended demotion and affirmation of Hill’s
dismissal.
Hill maintains no reasonable person could conclude he was aware, or
should have been aware, that Abuslin was “a troubled and at-risk youth.” He
10 Respondent asserts Hill has waived any substantial evidence
challenge to the trial court’s findings because he has cited to findings by the
ALJ and has not fairly set forth all the evidence. We have no difficulty,
however, in understanding that Hill is attacking the trial court’s finding, and
while he has certainly focused on the evidence that is helpful to him, we do
not think his briefing is so one-sided as to result in forfeiture of the issue.
11 The hearing officer referred to Abuslin as a “troubled 18-year old
woman.”
19
points out she was 18 years old and legally an adult. He also claims there
“were no red flags” that Abuslin was “troubled,” pointing out he did not
discover she had a drug problem until the March 24th sexual encounter, after
which he rapidly disassociated himself from her. He continues to maintain,
as he did during the administrative investigation, the Skelly hearing, and the
hearing before the ALJ, that the only reasonable conclusion that can be
drawn—given the context and manner in which Abuslin stated she had been
kidnapped three times, was pregnant, and had just been subject to a Welfare
and Intuitions Code section 5150 hold—is that Abuslin was joking and this
was all provocative banter.
Hill misses the forest for the trees. Regardless of whether Abuslin was
“legally” an adult, she was only 18 years old and could appropriately be
characterized as a “youth”12; she certainly was not a mature, adult woman.
And, as the ALJ observed, the “suggestive photographs Abuslin posted of
herself on Facebook, the fact she had recently turned 18, and her willingness
to engage in sexting and sexual contact with someone she had never met,
were all signs that she was very troubled.” In addition, Abuslin offered nude
photographs of herself to Hill (which he accepted) and repeatedly initiated the
sexting. Add to that that on the first day Abuslin and Hill engaged in texting
and sexting (December 26th), Abuslin claimed to have been kidnapped three
times, that four days later (on December 30th) she stated she was four
months pregnant, and that a month later (on January 24th) she claimed she
had been subject to a Welfare and Intuitions Code section 5150 hold—there
12 Youth is defined as, “The time when one is young; the early part or
period of life; more specifically, the period from puberty till the attainment of
full growth, between childhood and adult age.” (Oxford English Dictionary,
https://oed.com/view/Entry/232184?redirectedFrom=youth#eid [as of June 30,
2021].)
20
were abundant signs Abuslin was not an emotionally healthy 18 year old.
Even if Hill thought Abuslin was “joking” and engaging in provocative
“banter,” this was not the behavior of a solidly grounded 18-year old.
Hill next maintains he was terminated on an unlawful basis, namely a
“singular, lawful private sexual encounter with a consenting adult.” (Some
capitalization omitted.) As we have recited, Hill also advanced this argument
before the ALJ and the trial court, citing the same cases he cites on appeal.13
Hill is correct, as the ALJ and trial court both recognized, that police of-
ficers have privacy and associational rights with respect to intimate and sex-
ual off-duty relationships. (See Bautista v. County of Los Angeles (2010)
190 Cal.App.4th 869, 875-876 (Bautista); Perez v. City of Roseville (9th Cir.
2019) 926 F.3d 511, 519-523 (Perez).)
13 These include Morrison v. State Board of Education (1969) 1 Cal.3d
214, 218-220 [teacher could not be disciplined on basis of private, homosexual
relationship; allegations of “immoral” conduct must have some nexus to
employee’s ability to perform duties]; Warren v. State Personnel Bd. (1979)
94 Cal.App.3d 95, 105 [officer could not be dismissed because his sexual
preference was offensive to co-workers; “dismissal cannot be based on lawful,
sexual acts conducted in the privacy of a home which do not indicate
unfitness for a particular employment”]; Smith v. Price (5th Cir. 1980)
616 F.2d 1371, 1373-1375 [while officer’s off-duty extra-marital affair, alone,
was insufficient to warrant disciplinary action, other aspects of the
relationship, e.g., engaging in gunplay that resulted in injury and property
damage, on-duty visits to woman’s residence, lying to investigators about the
affair, and women taking officer’s gun and gun-belt from his private vehicle,
were proper bases for dismissal]; Shuman v. City of Philadelphia (E.D. Pa.
1979) 470 F.Supp. 449, 452, 459 [officer, who was in process of separating
from spouse and was also a university student, could not be dismissed for
affair with a fellow university student who was 18 years old and whose
parents claimed she had been “lured away” from her home and hounded the
police department to “ ‘press charges’ ” against the officer; “a police officer’s
private life and sexual behavior . . . are simply beyond the scope of any
reasonable investigation” where there is a “tenuous relationship between
such activity and the officer’s performance”].)
21
Nevertheless, law enforcement officers may be disciplined for off-duty
misconduct that undermines the public’s confidence in the agency or depart-
ment. (See Pasadena Police Officers Assn. v. City of Pasadena (1990)
51 Cal.3d 564, 571–572 [“[W]hile the off-duty conduct of employees is gener-
ally of no legal consequence to their employers, . . . [t]o maintain the public’s
confidence in its police force, a law enforcement agency must promptly, thor-
oughly, and fairly investigate allegations of officer misconduct; [and] if war-
ranted, it must institute disciplinary proceedings”]; Cranston v. City of Rich-
mond (1985) 40 Cal.3d 755, 760, 771 (Cranston) [upholding discharge of off-
duty police officer who led fellow police officers and highway patrol car on
high speed chase].)
This includes private conduct that is sexual in nature that brings “em-
barrassment and discredit to the law enforcement agency he served.” (Ander-
son v. State Personnel Bd. (1987) 194 Cal.App.3d 761, 764, 771-772 (Ander-
son) [upholding dismissal of off-duty highway patrol officer who several times
went naked in his house and yard, in full view of his neighbors]; Bautista, su-
pra, 190 Cal.App.4th at pp. 878-879 [upholding dismissal of deputy sheriff for
maintaining relationship with a known prostitute and heroin addict; deputy’s
open association “embarrassed the Department and undermined its reputa-
tion in both the law enforcement community and the public it is charged with
protecting”]; see Perez, supra, 926 F.3d at p. 521 [there is no per se protection
from discipline for sexual behavior “ ‘that is not purely private, that compro-
mises a police officer’s performance, and that threatens to undermine a police
department’s internal morale and community reputation,’ ” quoting Fugate v.
Phoenix Civil Service Board. (9th Cir. 1986) 791 F.2d 736, 741].)
22
Discipline for off-duty misconduct is justified if: “1) the misbehavior
[causes] discredit to the agency; and 2) there [is] a rational relationship be-
tween the misconduct and the person’s employment.” (Deegan v. City of
Mountain View (1999) 72 Cal.App.4th 37, 50 (Deegan).) “The nature of the
misbehavior and its effect on the public service rather than the time or place
of its occurrence should be the determinative factors. If the misconduct bears
some rational relationship to the employment and is of a character that can
reasonably result in the impairment or disruption of public service, it should
be no less a cause for discipline . . . simply because it occurred outside of duty
hours. In determining whether an employee should be disciplined, whatever
the cause, the overriding consideration is whether the conduct harms the
public service.” (Blake v. State Personnel Board (1972) 25 Cal.App.3d 541,
550-551.)
Hill was not found to have violated the Policy Manual Ethics Code and
its “conduct unbecoming” and “PCD use” provisions, and Personnel Rule X on
the basis of a “singular” private sexual encounter between consenting adults.
As the recitation of the facts as found by both the ALJ and the trial court
shows (facts that are supported by substantial evidence), there was much
more involved in the milieu here, leading to and the result of, the one-time
sexual encounter. Nor was this a consensual relationship between two
mature adults. While Abuslin may have been of “legal” age, her conduct from
virtually the outset of her seeking Hill out on Facebook, was not within the
norm for an emotionally healthy 18-year old. In addition, this relationship
spilled over into on-duty time; indeed, some of the texting (although by no
means all of it, or even the majority of it) took place while Hill was on-duty.
Finally, the relationship, which was beset with yellow flags from the outset,
became public and placed the Richmond Police Department in a poor light
23
and undermined public confidence in the Department and in Hill,
specifically.14
Finally, Hill asserts the trial court errored in ruling the city manager’s
final decision—the operative administrative decision—comported with the
requirements of a Topanga Assn. for a Scenic Community v. County of Los
Angeles (1974) 11 Cal.3d 506 (Topanga). Specifically, he claims the decision
is deficient because the city manager did not list the “specific facts”
supporting the termination decision, pointing out the city manager stated he
“agree[d] with most of [the ALJ’s] findings.” Hill maintains this is significant
because the ALJ found he “had no prior knowledge of Abuslin’s drug use and
terminated the relationship after learning about it,” but there is “no
indication” whether the city manager agreed or disagreed with this
assertedly “objective important finding.”
Topanga does not require an agency to make formal findings akin to
those made in a judicial proceeding. “ ‘ “[A]dministrative agency findings are
generally permitted considerable latitude with regard to their precision,
formality, and matters reasonably implied therein.” [Citation.] An agency’s
findings under Code of Civil Procedure section 1094.5 “do not need to be
14 That Hill never intended for the relationship to become public is be-
side the point. (See Orlandi v. State Personnel Board (1968) 263 Cal.App.2d
32, 37 [traffic officer dismissed for “ ‘fixing’ ” ticket; discipline could be im-
posed for “conduct which would reflect discredit on the employing agency or
the position held by the person engaging in such conduct, regardless of
whether publicized or not”]; cf. Seibert v. City of San Jose (2016)
247 Cal.App.4th 1027, 1029, 1050 (Seibert) [reversing dismissal of firefighter-
paramedic and remanding on several grounds, including that the depart-
ment’s disciplinary policies were not sufficiently specific to include sexting,
but observing “[i]t may well be that indiscriminate exchanges of salacious
messages with relative strangers on company time creates an undue risk of
embarrassment or even scandal” to a department].)
24
extensive or detailed.” [Citation.] “In addition, findings are to be liberally
construed to support rather than defeat the decision under review.”
[Citation.]’ (Young v. City of Coronado (2017) 10 Cal.App.5th 408, 421. . . ;
see also Topanga, supra, 11 Cal.3d. at p. 514 [‘the reviewing court must
resolve reasonable doubts in favor of the administrative findings and
decision’].)” (Alpha Nu Association of Theta Xi v. University of Southern
California (2021) 62 Cal.App.5th 383, 414; accord Environmental Protection
Information Center v. California Dept. of Forestry & Fire Protection (2008)
44 Cal.4th 459, 516.)
The key is whether we can “trace and examine the agency’s mode of
analysis.” (Topanga, supra, 11 Cal.3d. at p. 516; Oduyale v. California State
Bd. of Pharmacy (2019) 41 Cal.App.5th 101, 115.) The city manager’s
decision leaves no doubt as to his mode of analysis. Indeed, it is clear the city
manager did not take issue with any of the findings by the ALJ. Rather, he
stated “the facts [the ALJ] found to be true,” in his view, “permanently
preclude [Hill] from working in any capacity at the Richmond Police
Department.” The city manager then went on to explain why he held that
view—because all sworn officers, “regardless of rank, must demonstrate
sound and ethical judgment, must behave in a manner that does not discredit
the officer or the agency, and must always strive to uphold the public trust.”
He then described why Hill had, in his view, not done so.
Thus, not only did the city manager accept the ALJ’s finding that Hill
did not know until the March 24th sexual encounter that Abuslin used illegal
drugs, it is not the pivotal finding Hill makes it out to be, for all the reasons
we have discussed above. And while Hill asserts the city manager’s decision
was so deficient he faced “an impossible guessing game of what findings, if
25
any, to refute,” his briefing in the trial court and on appeal do not indicate he
was handicapped in any respect in presenting his case.
Discipline Imposed
Standard of Review
“ ‘[In] a mandamus proceeding to review an administrative order, the
determination of the penalty by the administrative body will not be disturbed
unless there has been an abuse of its discretion.’ ” (Skelly, supra, 15 Cal.3d
at p. 217; accord, County of Los Angeles v. Civil Service Com. of County of Los
Angeles (2019) 40 Cal.App.5th 871, 877 (County of Los Angeles).) “Neither an
appellate court nor a trial court is free to substitute its discretion for that of
the administrative agency concerning the degree of punishment imposed.”
(Barber v. State Personnel Board (1976) 18 Cal.3d 395, 404; accord, Bautista,
supra, 190 Cal.App.4th at p. 879; County of Los Angeles, at p. 877 [“The court
may not substitute its own judgment for that of the Commission, nor ‘disturb
the agency’s choice of penalty absent “ ‘an arbitrary, capricious or patently
abusive exercise of discretion’ ” by the administrative agency’ [citation], but
must uphold the penalty if there is any reasonable basis to sustain it.”].)
“The appellate court conducts a de novo review of the penalty assessed,
giving no deference to the trial court’s determination.” (Deegan, supra,
72 Cal.App.4th at p. 46; accord, Cate v. State Personnel Bd. (2012)
204 Cal.App.4th 270, 284.) “Only in an exceptional case will an abuse of
discretion be shown because reasonable minds cannot differ on the
appropriate penalty.” (County of Los Angeles, supra, 40 Cal.App.5th at
p. 877; accord, Bautista, supra, 190 Cal.App.4th at p. 879.)
“In considering whether . . . abuse occurred in the context of public
employee discipline, . . . the overriding consideration in these cases is the
extent to which the employee’s conduct resulted in, or if repeated is likely to
26
result in, ‘[harm] to the public service.’ ” (Skelly, supra, 15 Cal.3d at p. 218;
accord, County of Los Angeles, supra, 40 Cal.App.5th at p. 878 [same];
Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716,
721 (Kolender) [“ ‘The public is entitled to protection from unprofessional
employees whose conduct places people at risk of injury and the government
at risk of incurring liability.’ ”].) “Other relevant factors include the
circumstances surrounding the misconduct and the likelihood of its
recurrence.” (Skelly, at p. 218; accord, County of Los Angeles, at p. 877.)
“Whether an employee’s conduct has resulted or is likely to result in harm to
the public service if repeated requires consideration of the nature of the
employee’s profession, because ‘some occupations such as law enforcement,
carry responsibilities and limitations on personal freedom not imposed on
those in other fields.’ ” (County of Los Angeles, at p. 878; accord, Cate v. State
Personnel Bd., supra, 204 Cal.App.4th at p. 285.)
A police officer’s job “ ‘is a position of trust and the public has a right to
the highest standard of behavior from those they invest with the power and
authority of a law enforcement officer. Honesty, credibility and temperament
are crucial to the proper performance of an officer’s duties.’ ” (Kolender,
supra, 132 Cal.App.4th at p. 721; accord, County of Los Angeles, supra,
40 Cal.App.5th at p. 878 [“[p]eace officers specifically are held to higher
standards of conduct than civilian employees”].) Law enforcement officers
“ ‘are the guardians of the peace and security of the community, and the
efficiency of our whole system, designed for the purpose of maintaining law
and order, depends upon the extent to which such officers perform their
duties and are faithful to the trust reposed in them.’ ” (Hankla v. Long Beach
Civil Service Com. (1995) 34 Cal.App.4th 1216, 1224; accord, County of Los
Angeles, at p. 879.)
27
The appellate courts have, in a number of cases, upheld the discharge
of law enforcement officers where the officers’ conduct resulted in harm to
their departments and public service. (E.g., Cranston, supra, 40 Cal.3d at
pp. 772-773 [upholding dismissal of officer who, while off-duty and driving his
personal vehicle, led fellow officers on high speed chase]; County of Los
Angeles, supra, 40 Cal.App.5th at pp. 878-880 [commission abused its
discretion in reducing deputy sheriff’s discharge to 30-day suspension where
deputy failed to report fellow deputy’s use of force and lied during
investigation]; Bautista, supra, 190 Cal.App.4th at pp. 879-880 [upholding
dismissal of deputy sheriff for maintaining relationship with a known
prostitute and heroin addict]; Kolender, supra, 132 Cal.App.4th at pp. 718-
719, 721-722 [civil service commission abused its discretion in reducing
deputy sheriff’s penalty from dismissal to 90-day suspension where deputy
lied about another deputy’s physical abuse of an inmate]; Anderson, supra,
194 Cal.App.3d at pp. 766, 772. [upholding dismissal of highway patrolman
who had been warned to “take measures against being seen publicly nude”
but who again appeared nude in his backyard and house, visible to neighbors;
officer’s off-duty activity “harmed the reputation of the CHP and undermined
the effectiveness of his relations with other officers”]; Schmitt v. City of Rialto
(1985) 164 Cal.App.3d 494, 503-504 [upholding dismissal of officer who, as
instructor during firearm training session, aimed and fired a blank at a
fellow officer to illustrate importance of wearing bullet proof vest at all times;
while the misconduct “might reasonably be reviewed by some as relatively
innocuous,” it “could also reasonably by viewed, as it was by the city council,
as demonstrating a severe lack of good judgment and indifference to safety
and official regulations”]; cf. Seibert, supra, 247 Cal.App.4th at p. 1050
[reversing dismissal of firefighter-paramedic and remanding for further
28
proceedings; but noting court had “little doubt a firefighter-paramedic’s
exchange of sexually charged messages with a minor can expose the
Department to disrepute” and be a basis for discipline].)
Hill relies on Blake v. State Personnel Board (1972) 25 Cal.App.3d 541,
wherein the appellate court majority concluded dismissal was excessive
discipline for a single incident of inappropriate off-duty conduct. (Id. at
pp. 553-554.) In that case, a supervising deputy labor commissioner, who had
been issued a handgun, drew the gun on two labor department attorneys
after they approached the deputy, who had followed them in his car as they
walked back to their lodging at a state bar convention with other attorneys,
two of whom were women, following a late dinner. (Id. at pp. 545-547.) The
deputy had had a relationship with one of the women. (Id. at p. 554.) The
deputy, who remained seated in his car, told the two attorneys (who were
men) that “ ‘his boys’ ” had told him “ ‘a couple of “punks” ’ ” had been
bothering one of the women and he did not “ ‘want the attorney fooling
around’ ” with her. (Id. at 547.) While the panel majority concluded there
was a sufficient nexus between the misconduct and the deputy’s employment
to warrant disciplinary action (id. at p. 551), it concluded dismissal was
excessive. (Id. at pp. 553-554.)
The majority explained:
“Petitioner is 53 years of age and has been in state service since 1949.
During his entire civil service career he has never suffered disciplinary
action of any kind; his employment record is exemplary and is replete
with commendations for meritorious service; his outstanding qualities
have been recognized by his promotion to his position of supervising
deputy labor commissioner.
“In determining whether the misconduct warranted dismissal, consid-
eration should be given to the circumstances surrounding the misbe-
havior, the degree to which it affected the public service and the likeli-
hood of its recurrence. In the instant case while we have concluded
29
that a reasonable inference could be drawn from the evidence to sup-
port the Board’s finding of harm to the public service, there was no di-
rect testimony from the two male attorneys that their work relation-
ship with the female attorney was affected. . . . [W]hile the circum-
stances of its occurrence by no means excused petitioner’s reprehensi-
ble conduct, it must be recalled that it did occur after a social evening
during which the group had had several drinks during dinner and later
at a bar. The following morning petitioner called the two attorneys,
apologized, and acknowledged to them the fact that his conduct the
night before was unjustified and inexcusable and that it would not re-
cur. At the hearing petitioner testified that his relationship with the
female attorney had been terminated, that he had sold his gun and no
longer owned one and gave assurances that the incident would not re-
cur.
“We note also that the State Personnel Guide to Employee Discipline, a
copy of which was received in evidence, suggests penalties for a first of-
fense under subsection (m) of a ‘warning’ and a maximum of a ‘letter of
reprimand.’ While the manual does not circumscribe the agency’s dis-
cretion and penalties in excess of those suggested would not be unrea-
sonable as a matter of law, the manual is evidence of the Board’s policy
and may, therefore, be properly considered in determining whether the
penalty imposed in the instant case was excessive as a matter of law.”
(Blake v. State Personnel Board, supra, 25 Cal.App.3d at pp. 553-554.)
Thus, considering “all relevant factors,” the panel majority concluded
dismissal “was clearly excessive for [the] single incident,” and remanded for
reconsideration of the disciplinary penalty. (Blake v. State Personnel Board,
supra, 25 Cal.App.3d at p. 554.)
Hill, by contrast, was not involved in a single, late-night incident that
lasted only minutes, and the public fallout from his conduct was far greater
than interference with harmonious office relationships that occurred in
Blake.
We recognize Hill’s conduct did not involve any dishonesty and was not
as egregious as the conduct in many law enforcement discharge cases,
including most of the cases cited above. We also recognize Hill had an
30
unblemished 22-year service record, that his conduct was not unlawful, that
it involved only sporadic conduct over only a four-month period, and he
disengaged himself from the situation as soon as he became aware Abuslin
was involved in illegal drug use. But we are not “free to substitute [our]
discretion for that of the administrative agency concerning the degree of
punishment imposed.” (Barber v. State Personnel Bd., supra, 18 Cal.3d at
p. 404; accord, Bautista, supra, 190 Cal.App.4th at p. 879.) The city
manager’s assessment of Hill’s conduct and disciplinary choice was harsh.
However, both the Police Chief and the Skelly hearing officer (the Fire Chief)
recognized that dismissal was within the range of reasonable discipline. We
therefore must conclude, as did the trial court, that this is not an “exceptional
case” where “reasonable minds cannot differ on the appropriate penalty.”
(County of Los Angeles, supra, 40 Cal.App.5th at p. 877; accord, Bautista, at
p. 879.)
DISPOSITION
The judgment is AFFIRMED.
31
_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Sanchez, J.
A159322, Hill v. City of Richmond
32