Ramirez v. City of Indio CA4/1 ( 2024 )

Filed 9/13/24; Certified for Publication 10/10/24 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SERGIO RAMIREZ, D082997
Plaintiff and Appellant,
v. (Super. Ct. No. CVPS2201660)
CITY OF INDIO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Riverside County,
Chad W. Firetag, Judge. Affirmed.
Rain Lucia Stern St. Phalle & Silver and Michael A. Morguess for
Plaintiff and Appellant.
Richards, Watson & Gershon, T. Peter Pierce, Jennifer Petrusis and
Garen N. Bostanian for Defendants and Respondents.
Former police officer Sergio Ramirez (Ramirez) administratively
appealed the decision of the City of Indio Police Department (City) to
terminate his employment at the conclusion of the “Appeals Procedure” set
forth in the Memorandum of Understanding (MOU) between the City of Indio
and the Indio Police Officers’ Association. After a full evidentiary hearing,
the arbitrator recommended the reinstatement of Ramirez with full back pay
and benefits, but the City Manager upheld the decision of the Chief of Police
(Chief) to terminate Ramirez.
After unsuccessfully petitioning the superior court for writ of mandate
(Code Civ. Proc., 1 §§ 1085, 1094.5), Ramirez appeals to this court and asserts
the superior court erroneously interpreted the arbitrator’s role in the MOU’s
administrative appeal procedure. Although he acknowledges that the MOU
vests the City Manager with power to revoke the arbitrator’s advisory
findings and recommendations, Ramirez contends the MOU and due process
considerations required the City Manager to defer to the arbitrator’s
determinations of the weight and credibility of testimony and evidence
presented at the hearing.
We reject Ramirez’s proposed interpretation of the MOU’s
administrative appeal procedure and affirm.
I.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Ramirez had been employed as a police officer in the City since 2005.
In August 2016, Ramirez was charged with rape and two additional counts of
sexual assault of V., his 18-year-old niece. The City placed Ramirez on
administrative leave, asked him to turn in his work cell phone, and initiated
an internal affairs (IA) investigation.
In June 2018, a jury acquitted Ramirez of all criminal charges.
The City’s IA investigation resulted in two conflicting reports. In a
November 2018 Memorandum to the Chief, the sergeant who conducted the
initial investigation concluded Ramirez had violated multiple standards of
conduct set forth in the Indio Police Department Policy Manual, including
1 All statutory references are to the Code of Civil Procedure unless
otherwise specified.
2
340.5.8(a) (misrepresenting material facts), 340.5.9(h) (dishonest or
disgraceful off-duty conduct affecting the officer’s relationship with the
department), and 340.5.9(m) (conduct reflecting unfavorably on the
department). After further investigation, a different sergeant concluded in a
March 2019 Memorandum that the previously identified policy violations
were “not sustained.”
In June 2019, the Chief issued a Notice of Intent to Terminate Ramirez
and conducted a pre-disciplinary conference in September, which provided
Ramirez an opportunity to orally respond. On October 23, 2019, the Chief
issued a Notice of Termination based on Ramirez’s violations of the
Department’s Standards of Conduct, Expectations of Behavior, and Code of
Ethics. The Chief explained: “Based on [your] admission that you drove
under the influence of alcohol alone I would terminate your employment, but
the preponderance of the evidence establishes that you also engaged in
dishonest behavior and showed poor judgment that embarrassed the City and
the Indio Police Department.”
Ramirez administratively appealed the Chief’s decision under the
MOU’s “Appeals Procedure” by requesting an “Evidentiary Appeal to
Advisory Arbitration.” The mutually agreed upon arbitrator conducted a
three-day virtual evidentiary hearing, where the parties presented
arguments, testimony and documentary evidence 2 in support of their
respective positions.
2 A copy of Ramirez’s trial testimony was admitted as an exhibit at the
hearing. V. did not testify at the hearing, nor did the parties submit the
transcript of her testimony at the criminal trial.
3
Arbitrator’s findings
The arbitrator issued his written statement of advisory findings and
recommendations on September 23, 2021, recommending the Chief’s decision
to terminate Ramirez “be overturned and that Ramirez be reinstated and
made whole with full back pay and benefits.” The arbitrator concluded
Ramirez “failed to prove that his Skelly 3 rights were violated,” and the City
failed to carry its burden to establish “three claims: that Ramirez drove
under the influence of alcohol, that Ramirez reset his Department-issued cell
phone with an intent to destroy evidence and then lied about his actions, and
that Ramirez made inconsistent statements during his IA interviews and at
trial with an intent to lie or misrepresent his actions.”
In his enumerated “Findings of Fact,” the arbitrator specifically found
the City failed to prove Ramirez drove under the influence of alcohol “as
alleged in the Notice of Termination”; Ramirez presented “credible and
uncontradicted evidence” that police officers turning in their department-
issued cell phones were routinely allowed and routinely instructed to reset
their phones, and “[t]he fact that Ramirez was under investigation at the
time does not support an inference of an attempt to interfere with any
investigation sufficient to sustain the Department’s burden of proof on that
issue”; and Ramirez “credibly testified” that the differences between his trial
testimony and his IA interviews were “the product of the forum in which the
questions were asked, the specific language used in the questions, the context
in which the questions were asked, or understandable flaws in his ability to
accurately and fully recall information at the time the questions were posed,”
3 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215.
4
and the Chief’s contrary conclusions were “based on speculation,
assumptions, and on what appears to be the Chief’s predisposition to believe
that Ramirez was dishonest.”
Recognizing “the Notice of Termination recites Ramirez’s arrest on
charges of sexual assault and the adverse publicity that resulted from
Ramirez’s sexual encounter with [V.] and his prosecution,” the arbitrator
purported to limit his written statement to the “three claims” as the only
basis for the termination because “the Chief expressly testified that
Ramirez’s discipline was not based on his sexual encounter with [V.].” 4
Ultimately, the arbitrator included the following enumerated findings:
“11. The evidence adduced at the hearing also
suggests that the Chief’s decision in this case might
have been motivated by the embarrassment suffered
by the Department that were the product of
Ramirez’s engaging in sexual conduct with [V.]
“12. Because the Notice of Termination and [the
Chief] made it clear Ramirez’s sexual conduct with
[V.] was not a basis for the decision to terminate [his]
employment, it would be improper for the Chief to
base any disciplinary decision in this matter on that
apparently consensual sexual activity.”
The City Manager’s Final Decision to Terminate Ramirez
After carefully reviewing the arbitrator’s written statement of advisory
findings and recommendations, the MOU, the Chief’s Notice of Intent to
Terminate and Notice of Termination and associated attachments, the City’s
4 In the “Statement of Facts” section of his written statement, the
arbitrator more specifically states: “Chief Washburn expressly testified that
the termination was not based, by itself, on Ramirez’s sexual encounter with
[V.]: [¶] Q. In your notice of termination, is there anything in there that says
Mr. Ramirez’s discipline was based on his sexual encounter itself? [¶] A. No,
there is not. [¶] (T. 136.)” (Original italics, emphasis added.)])
5
policies, the Indio Police Department’s policies and standards, the IA
investigation documents and investigation transcripts, transcripts of criminal
trial, and transcripts from the arbitration hearing and associated motions,
responses, briefs, and exhibits, the City Manager issued a detailed final
written decision on December 14, 2021, rejecting the arbitrator’s advisory
findings and recommendation and affirming the termination of Ramirez’s
employment.
The City Manager explained his decision was “based on [Ramirez’s]
poor judgment and conduct unbecoming an officer that [he] exhibited on the
evening of August 5, 2016 and the following days. [Ramirez] admitted to
using alcohol (‘five to six beers over three and a half hours’) and subsequently
driving home while feeling the effects of the alcohol. That poor judgment led
[Ramirez] to . . . engage in sexual acts with a young woman who had just
turned 18 years old, resulting in her filing a police report against [him] for
sexual assault. This young woman was related to [Ramirez] by marriage, and
she considered [him] a father or uncle figure in her life. [Ramirez] violated
her trust and the trust placed in [him] by the community as a sworn police
officer. [Ramirez] subsequently demonstrated dishonesty in [his] statements
and behaviors as the matter was investigated and tried. [Ramirez’s] actions
violated City policies, Department policies, and Standards of Conduct as
noted in the Notice of Termination dated October 23, 2019.”
The City Manager also specifically addressed the three claims
identified by the arbitrator, concluding the City had demonstrated, by a
preponderance of evidence, that Ramirez drove under the influence, 5 reset
his department­issued cell phone with the intention to prevent the discovery
5 The City Manager noted the arbitrator “erroneously use[d] a criminal
prosecution standard of ‘beyond a reasonable doubt.’ ”
6
of incriminating information, and made dishonest and/or inconsistent
statements during the investigations and trial regarding the alleged rape and
sexual assault in violation of the Standards of Conduct, including policies
340.4 (General Standards), 340.5 (Causes for Discipline), 340.58 (Conduct,
Law Enforcement Code of Ethics, and Expectations of Behavior). He further
explained “[Ramirez’s] conduct in driving while under the influence of
alcohol, resetting [his] Department-issued cellular phone during an active
investigation, and [his] numerous inconsistent and dishonest statements
demonstrate [his] lack of credibility and integrity. [Ramirez’s] actions show
that [he] [is] unfit to be a police officer and . . . brought discredit and
embarrassment upon the City.”
Petition for Writ of Mandate
On April 26, 2022, Ramirez challenged the City Manager’s final
administrative decision by petitioning the superior court for writ of mandate
pursuant to sections 1085 and 1094.5. On May 30, 2023, the court issued a
detailed Statement of Decision denying the writ petition. The court rejected
Ramirez’s argument that the City Manager failed to defer to the arbitrator’s
findings and concluded “[t]he MOU is clear—the City Manager has the final
authority to make the determinations, and the Court finds that the City
Manager did not exceed his authority provided under the MOU in this
respect.”
The court also found the City Manager’s findings that Ramirez drove
while intoxicated, improperly reset his cell phone, and made
dishonest/inconsistent statements were supported by sufficient evidence.
While the court determined some of Ramirez’s statements were not
inconsistent, it found “many of the inconsistent statements amount to
dishonest[y], specifically in the context of the issue of whether [V.] consented
7
to the sexual contact. The issue of consent was the crux of [Ramirez’s] defense
at his criminal trial, and those are the statements that the Court finds are
most relevant when determining Petitioner’s honesty.” The court concluded
termination was the appropriate penalty “[g]iven the high standard that
police officers are held to, and the position of trust that they have in our
communities.”
Formal judgment was entered on July 31, 2023, after Ramirez filed his
notice of appeal. 6
II.
DISCUSSION
A. Applicable Law and Standards of Review
On appeal from an administrative mandamus judgment, we perform
the same function as the trial court. (Jefferson Street Ventures, LLC v. City of
Indio (2015) 236 Cal.App.4th 1175, 1197.) “Abuse of discretion is established
if the respondent has not proceeded in the manner required by law, the order
or decision is not supported by the findings, or the findings are not supported
by the evidence.” (§ 1094.5, subd. (b).) As Ramirez does not argue the
superior court’s factual findings were not supported by substantial evidence,
our review is limited to whether Respondents failed to “proceed[ ] in the
manner required by law.” (Ibid.)
Police officers have a statutory right to an administrative appeal of any
punitive action under section 3304, subdivision (b) of the Public Safety
Officers Procedural Bill of Rights Act (POBRA). (Gov. Code, § 3300 et seq.)
The administrative appeal “shall be conducted in conformance with rules and
procedures adopted by the local public agency,” (id., § 3304.5.) which in this
6 We treat Ramirez’s notice of appeal “as filed immediately after entry of
judgment.” (Cal. Rules of Court, rule 8.104(d)(2).)
8
case are set forth in the MOU’s “Appeals Procedure.” (MOU, Article 19.) In
the absence of extrinsic evidence, we review de novo the interpretation of an
MOU. (See Santa Clara County Correctional Peace Officers’ Assn., Inc. v.
County of Santa Clara (2014) 224 Cal.App.4th 1016, 1027.)
Our interpretation of the MOU is guided by the well-settled rules of
contract interpretation. (National City Police Officers’ Assn. v. City of
National City (2001) 87 Cal.App.4th 1274, 1279 (National City).) The
language of the MOU, if clear and explicit, governs our interpretation. (Ibid.)
We view the language as a whole; we do not “use a ‘disjointed, single-
paragraph, strict construction approach,’ ” and we give effect to every
provision and avoid an interpretation that renders a part of the MOU to be
surplusage. (Ibid.) If the language is susceptible to two interpretations, we
apply “the construction that will make the instrument lawful, operative,
definite, reasonable and capable of being carried into effect and avoid an
interpretation which will make the instrument extraordinary, harsh, unjust,
inequitable or which would result in absurdity.” (Ibid.) We endeavor “to
effectuate the mutual intent of the parties as it existed at the time of
contracting insofar as it is ascertainable and lawful.” (Ibid.)
In addition to complying with POBRA and the terms of the MOU, “a
public entity must accord constitutional procedural due process before
depriving an officer of any significant property interest in his or her
employment.” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 321, fn. 6.)
We review a challenge to the procedural fairness of the administrative
hearing de novo on appeal “since the ultimate question of procedural fairness
amounts to a question of law.” (Anserv Ins. Servs. v. Kelso (2000)
83 Cal.App.4th 197, 205.)
9
B. MOU’s Appeals Procedure
Article 19 of the MOU, entitled “Appeals Procedure,” was “designed to
provide an appeal system for the fair and just resolution of any dispute, real
or imagined, regarding proposed disciplinary action between the City of Indio
and an employee.” The parties to the MOU expressly intended “[t]o provide a
procedure allowing for the right of appeal for disputes regarding proposed
disciplinary action which could potentially result in an employee’s loss of
wages and/or benefits” and “[t]o provide an orderly procedure to handle the
appeal through each level of supervision, if necessary, with final decision
being vested in the City Manager.” (MOU, Art. 19, italics added.)
The “orderly procedure” begins with section 19.1 of the MOU, which
sets forth the preliminary steps in the process that ensure employees “have
the right to notice and the opportunity to respond” prior to discharge
“[p]ursuant to Skelly[, supra,] 15 Cal.3d 194.” Section 19.2 is entitled
“Evidentiary Appeal to Advisory Arbitration” and provides for the selection of
an arbitrator and the scheduling of the “[a]ppeal [h]earing.”
Section 19.3 governs the “Conduct of the Appeal Hearing” and includes
multiple subsections. The third subsection, entitled “Arbitrator’s Jurisdiction
and Authority During the Hearing” (italics added), explains “[t]he Arbitrator
has the authority to control the conduct of the hearing and to affirm, modify,
or revoke the discipline imposed by the Appointing Authority or his/her
designee,” and the fourth subsection entitled “Conduct of the Hearing,”
delineates specific rules and procedures governing the admissibility of
evidence during the hearing. Section 19.3 includes the one sentence
underpinning Ramirez’s argument—“The Arbitrator shall determine
relevancy, weight and credibility of testimony and evidence.”
10
Section 19.4, entitled “Written Advisory Findings and
Recommendations” directs the arbitrator to “render a written statement of
advisory findings and recommendations.” Section 19.5, entitled “Final
Decision on Appeal by City Manager,” reiterates “[t]he Arbitrator’s findings
and conclusions will be advisory to the City Manager” but requires the City
Manager to “review the Arbitrator’s findings and recommendations.” As the
final decision maker, the City Manager is authorized to “affirm, revoke, or
modify the findings, recommendations, or disciplinary action taken, as
appears warranted to the City Manager.”
C. Ramirez’s Proposed Interpretation of the MOU is Unsupported
Although Ramirez acknowledges the MOU authorizes the City
Manager to make the final decision, he argues the MOU must be interpreted
to constrain the City Manager’s authority by requiring him to defer to the
arbitrator’s determinations of the relevancy, weight and credibility of
testimony and evidence during the hearing or at a minimum affording them
“great weight.” Ramirez’s suggested interpretation ignores the rules of
contractual interpretation by disregarding the MOU’s express language and
framework.
By extracting one sentence from the “Conduct of the Hearing”
subsection in section 19.3 of the MOU’s Appeals Process that directs the
arbitrator to “determine relevancy, weight and credibility of testimony and
evidence,” Ramirez advocates a proscribed “ ‘ “ ‘disjointed, single-paragraph,
strict construction approach’ ” ’ ” (National City, supra, 87 Cal.App.4th at
p. 1279) that would render the City Manager’s express power to “affirm,
revoke, or modify” the arbitrator’s “advisory” findings in section 19.5 a
surplusage. (Ibid. [“An interpretation which renders part of the instrument
to be surplusage should be avoided.”].) Ramirez’s attempt to redefine the role
11
of the arbitrator also directly contradicts the express limitation of the
arbitrator’s jurisdiction and authority to the hearing itself in the subsection
entitled “Arbitrator’s Jurisdiction and Authority During the Hearing” (italics
added), which immediately precedes the “Conduct of the Hearing” subsection
upon which he relies.
As unequivocally stated in sections 19.3 and 19.4, the arbitrator had
the authority to control the conduct of the appeal hearing, and to provide
“advisory” findings and recommendations “to affirm, modify, or revoke the
discipline imposed by the Appointing Authority or his/her designee.” The
City Manager’s authority is further reflected in section 19.6, which provides
“the City Manager’s written findings and decision will be the City’s final
administrative decision on the employee’s appeal” and informs employees of
their right to timely petition the court for a writ of administrative mandate.
Nothing in the MOU’s language or framework suggests any intent to
extend the arbitrator’s authority beyond the hearing itself or to require the
City Manager to defer to the arbitrator’s relevancy, weight and credibility
findings. Nor does the City Manager’s ability to affirm, revoke, or modify the
arbitrator’s findings “as appears warranted to the City Manager” give the
City Manager unfettered discretion that would lead to “absurd results and
mischief” as Ramirez contends. We must interpret this language to avoid an
absurdity and “to effectuate the mutual intent of the parties as it existed at
the time of contracting insofar as it is ascertainable and lawful.” (National
City, supra, 87 Cal.App.4th 1279.) An administrative appeal must “be
conducted in conformance with rules and procedures adopted by the local
public agency” (POBRA, §3304.5), and the MOU properly places the burden of
proof on the City. (See Caloca v. County of San Diego (2002) 102 Cal.App.4th
433, 444–445 (Caloca II).) The City Manager remains obligated to proceed in
12
“the manner required by law” (§ 1094.5, subd. (b)), and section 19.6 informs
employees of their right to challenge the final administrative decision by
petitioning the court for a writ of mandate.
In addition to circumventing POBRA’s requirement that the appeals
procedure “be conducted in conformance with rules and procedures adopted
by the local public agency” (Gov. Code, § 3304.5), Ramirez’s proposed
interpretation would fundamentally and unilaterally alter the negotiated
MOU. (National City, supra, 87 Cal.App.4th at p. 1278 [once adopted, an
MOU becomes a binding agreement that cannot be unilaterally altered]; see
also Glendale City Employees’ Assn. v. City of Glendale (1975) 15 Cal.3d 328,
336 (Glendale) [“Why negotiate an agreement if either party can disregard its
provisions? What point would there be in reducing it to writing, if the terms
of the contract were of no legal consequence? Why submit the agreement to
the governing body for determination, if its approval were without
significance?”].) Ramirez’s interpretation would transmute the “Advisory
Arbitration” into a binding arbitration that would strip the City Manager of
his express power. (See American Federation of State, County & Municipal
Employees v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 259 [“A
hearing officer’s decision [in an administrative appeal procedure under an
MOU] is not final and binding where it is reviewable by a trial court
under Code of Civil Procedure section 1094.5.”].)
We find Ramirez’s additional argument that his proposed
interpretation is “compelled by the procedure typical in administrative and
judicial forums where a subordinate hearing officer renders an otherwise
nonbinding recommended decision to an ultimate decisionmaker” unavailing.
Ramirez points to caselaw addressing inapplicable statutes in yet another
attempt to circumvent POBRA and the intent of the parties to the MOU.
13
(See Universal Camera Corp. v. NLRB (1951) 340 U.S. 474 [considering the
Administrative Procedures Act (APA) (5 U.S.C.S. § 1001 et seq.) and the Taft-
Hartley Act (29 U.S.C.S. § 160 (e)), the Supreme Court held a Labor Board
decision must be supported by substantial evidence]; Garza v. Workers’
Comp. Appeals Bd. (1970) 3 Cal.3d 312 [the California Supreme Court
annulled an appeal’s board decision that was contrary to the referee’s finding,
noting the board’s authority to reject the referee’s findings on credibility
matters if substantial evidence supports a contrary finding and “the
established legislative policy . . . that the Workmen’s Compensation Act must
be liberally construed in the employee’s favor (Lab. Code, § 3202)”]; Absmeier
v. Simi Valley Unified School District (2011) 196 Cal.App.4th 311 [the Court
of Appeal reversed the denial of Absmeier’s challenge to a school district’s
decision to terminate his employment under the Education Code where the
district failed to follow the hearing procedures]; and California Youth
Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575 [section
11425.50, subdivision (b) of California’s APA (Gov. Code, §§ 11340–11529)
required deference to the administrative law judge’s credibility findings only
to the extent the administrative law judge identifies observed demeanor,
manner or attitude of the witnesses].) Inapplicable statutes cannot guide our
analysis in the face of POBRA, and by extension the MOU’s “Appeals
Procedure” that, unlike the APA, expressly permits the City Manager to
reject the arbitrator’s “advisory” findings. (See Gov. Code, § 11415.20 [“A
state statute . . . applicable to a particular agency or decision prevails over a
conflicting or inconsistent provision of [the APA].”) 7
7 Even assuming, hypothetically, that the APA applied here in some
fashion, Ramirez does not contend the arbitrator’s written statement
identified any “specific evidence of observed demeanor, manner, or attitude”
14
We are also mindful that the negotiated MOU’s “Appeals Procedure”
was intended “to provide an appeal system for the fair and just resolution
of . . . dispute[s].” (Italics added.) As the City Manager’s final decision is
subject to judicial review, we are loathe to adopt an interpretation that could
limit the ability to revoke or modify advisory findings that are legally or
factually unsupported. In this case, the arbitrator failed to consider
Ramirez’s sexual conduct with V. as a potential basis for his termination 8
and concluded the City failed to prove Ramirez drove while intoxicated by
apparently holding the City to an incorrect, higher burden of proof.
We decline to adopt Ramirez’s proposed interpretation and conclude
that under POBRA and the unambiguous language and framework of the
MOU’s “Appeals Procedure,” the City Manager was not required to defer to
the arbitrator’s relevancy, weight and credibility findings. Nor did Ramirez
establish any violation of the MOU’s “Appeals Procedure” by the City or the
City Manager that could otherwise warrant reversal. Before exercising his
authority to revoke the arbitrator’s findings and recommendations, the City
Manager fulfilled his duty under section 19.5 of the MOU to “review the
Arbitrator’s findings and recommendations” by performing “a complete and
through review of [Ramirez’s] appeal, including a review of the Hearing
Officer’s Advisory Findings and Recommendation.” The City Manager went
that would require the court to afford “great weight” under Government Code
section 11425.50, subdivision (b) the APA.
8 The arbitrator concluded “it would be improper for the Chief to base
any disciplinary decision in this matter on th[e] apparently consensual sexual
activity” based on a statement, contrary to the record, that “the Notice of
Termination and [the Chief’s testimony] made it clear [Ramirez’s] sexual
conduct with [V.] was not a basis for the decision to terminate [his]
employment.”
15
further by reviewing additional relevant documents and the transcripts and
providing a detailed analysis supporting his conclusion that the City had
successfully shouldered its burden of proof to show “justifiable cause for
termination” by a preponderance of the evidence.
D. Ramirez was afforded due process
The MOU’s “Appeals Procedure” also satisfies due process
requirements. Police officers who are disciplined by their departments are
entitled to procedural due process protections beyond POBRA’s statutory
requirement that no punitive action may be taken without an opportunity for
administrative appeal. (See Gov. Code, § 3304, subd. (b); see also
Vitek v. Jones (1980) 445 U.S. 480, 491 (1980) [minimum procedural
requirements are a matter of federal law and “are not diminished by the fact
that the State may have specified its own procedures that it may deem
adequate for determining the preconditions to adverse official action”].)
“[D]ue process is flexible and calls for such procedural protections as
the particular situation demands,” (Morrissey v. Brewer (1972) 408 U.S. 471,
481) while ensuring the right to notice and a meaningful opportunity to be
heard. (Lachance v. Erickson (1998) 522 U.S. 262, 266.) The amount of
process required is determined by balancing “the private interest in retaining
employment, the governmental interest in the expeditious removal of
unsatisfactory employees and the avoidance of administrative burdens, and
the risk of an erroneous termination.” (Cleveland Bd. of Educ. v. Loudermill
(1985) 470 U.S. 532, 542–543, 545 (Cleveland Bd. of Educ.); Mathews v.
Eldridge (1976) 424 U.S. 319, 334–335 (Mathews).)
Prior to discharge, a permanent employee of a public agency must be
given notice of the proposed termination, the reasons and the materials upon
which the proposed termination is based, and the right to respond, either
16
orally or in writing, to the authority initially imposing discipline. (Skelly,
supra, 15 Cal.3d at p. 215.) Due process does not require a full trial-type
evidentiary hearing. (Ibid.) Although necessary, the pre-termination
hearing “need not be elaborate.” (Cleveland Bd. of Educ., supra, 470 U.S. at
p. 545.) An employee is entitled to “oral or written notice of the charges
against him, an explanation of the employer’s evidence, and an opportunity to
present his side of the story.” (Id. at p. 546.) In the context of an
administrative appeal from a decision to terminate a police officer, the agency
must carry the burden of proof and burden of production, and an independent
decision maker “who has not been involved in the initial determination” must
“bridge the analytic gap between the raw evidence and ultimate decision” and
permit that ultimate decision to be reviewed by administrative mandate
under section 1094.5. (Caloca II, supra, 102 Cal.App.4th at p. 444.)
The MOU’s “Appeals Procedure” more than satisfied these due process
requirements. After the Chief provided Ramirez with a Notice of
Termination that included the specific reasons and materials upon which the
proposed termination was based, Ramirez had an opportunity to respond to
the Chief in writing (Skelly, supra, 15 Cal.3d at p. 215), and, at the appeal
hearing before the arbitrator, the City maintained the burden of proof while
Ramirez was given a meaningful opportunity to present his side of the story
by presenting evidence and cross-examining witnesses. An independent
arbitrator conducted a “de novo” re-examination of the chief’s decision to
terminate Ramirez and did not consider the chief’s underlying findings as
established. In addition to the advisory findings and recommendations of the
arbitrator, the City Manager, who was similarly not involved in the decision
to terminate Ramirez, conducted yet another independent re-examination of
the Chief’s decision and bridged the analytical gap between the raw evidence
17
and the ultimate decision upholding the termination. (See Joseph v. City of
Atwater (2022) 74 Cal.App.5th 974, 988 citing Caloca II, supra, 102
Cal.App.4th at p. 444.)
We will not disturb a negotiated MOU that sufficiently protected
Ramirez’s due process rights. To require more “would intrude to an
unwarranted extent on the government’s interest in quickly removing an
unsatisfactory employee.” (Cleveland Bd. of Educ., supra, 470 U.S. at p. 546.)
“[W]hile it is imperative that courts retain the power to compel agencies to
use decisionmaking procedures that provide a constitutionally adequate level
of protection . . ., judges should be cautious in exercising that power. In the
vast bulk of circumstances, the procedures chosen by the legislature or by the
agency are likely to be based on application of a Mathews-type cost-benefit
test by an institution positioned better than a court to identify and quantify
social costs and benefits. A court should give serious consideration to second-
guessing a legislative or agency choice of procedures only when it has
indications that the agency or legislature chose its procedures in bad faith or
without considering the implications of its choice of procedures.” (Mohilef v.
Janovici (1996) 51 Cal.App.4th 267, 288–289.)
The City and the City Manager “proceeded in the manner required by
law.” (§ 1094.5, subd. (b).) There was no abuse of discretion.
18
III.
DISPOSITION
The superior court’s judgment is affirmed. Respondents are entitled to
costs on appeal.
KELETY, J.
WE CONCUR:
McCONNELL, P. J.
RUBIN, J.
19
Filed 10/10/24
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SERGIO RAMIREZ, D082997
Plaintiff and Appellant,
v. (Super. Ct. No. CVPS2201660)
CITY OF INDIO et al., ORDER CERTIFYING
OPINION FOR PUBLICATION
Defendants and Respondents.
THE COURT:
The opinion in this case filed on September 13, 2024, was not certified for
publication. On October 2, 2024, Respondents filed a request for publication, and on
October 4, 2024, Appellant filed opposition. It appearing the opinion meets the standards
for publication specified in California Rules of Court, rule 8.1105(c), the request pursuant
to rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words “Not to Be Published in the Official Reports”
appearing on page one of said opinion be deleted and the opinion herein be published in
the Official Reports.
McCONNELL, P. J.
cc: All parties