Joseph v. City of Atwater

Filed 2/9/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
SAMUEL JOSEPH,
F080711
Plaintiff and Appellant,
(Super. Ct. No. 18CV-04981)
v.
CITY OF ATWATER, OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Merced County. Brian L.
McCabe, Judge.
Rains Lucia Stern St. Phalle & Silver, Michael L. Rains and Johnathan R. Murphy
for Plaintiff and Appellant.
Churchwell White, Douglas L. White and Erin M. Dervin for Defendant and
Respondent.
-ooOoo-
Plaintiff Samuel Joseph filed a petition for writ of mandate after defendant City of
Atwater (City) terminated his employment as chief of police. Plaintiff alleged City
violated the Public Safety Officers Procedural Bill of Rights Act (POBRA; Gov. Code,
§ 3300 et seq.).1 Section 3304, subdivision (c) provides that no chief of police may be
removed from office without being provided written notice of the reasons “and an
1 Undesignated statutory references are the Government Code.
opportunity for administrative appeal.” Plaintiff alleges City failed to provide him with
the type of hearing necessary to afford him “an opportunity for administrative appeal”
because the hearing offered by City (1) was not mutually scheduled, (2) was not before a
mutually selected neutral hearing officer, (3) did not require City to bear the burden of
proof as to just cause for his termination, and (4) did not require City to present witnesses
and allow them to be cross-examined.
The trial court denied plaintiff’s petition for writ of mandate, concluding plaintiff
was an at-will employee pursuant to the terms of his employment contract and the
hearing offered by City satisfied the statutory requirement of providing “an opportunity
for administrative appeal.” (§ 3304, subd. (c).) Plaintiff contends the trial court erred in
characterizing him as an at-will employee for all purposes and then determining the
hearing offered by City was adequate for such an employee.
Plaintiff’s employment agreement stated he could be removed as police chief for
any reason and, if the removal was not for willful misconduct, he had the option of
continuing his employment by returning to the position of police lieutenant. Based on
our de novo interpretation of the employment agreement, we conclude plaintiff (1) was
an at-will employee only in the capacity of police chief and (2) had rights to employment
as a lieutenant that could be terminated only for cause. Thus, plaintiff’s employment as a
lieutenant was not at-will. Consequently, before City could terminate his right to
employment as a lieutenant, it was required by POBRA to provide him with the type of
administrative appeal afforded public safety officers who are terminable only for cause.
City did not offer plaintiff that type of administrative appeal, which includes a full
evidentiary hearing before a neutral fact finder. Thus, a writ of mandate should have
been issued directing City to offer plaintiff such a hearing.
We therefore reverse the judgment.
2.
FACTS
On November 17, 2016, plaintiff and City entered into a “CHIEF OF POLICE
EMPLOYMENT AGREEMENT” specifying the terms, benefits, and requirements
regarding City’s employment of plaintiff as its chief of police. It was signed by plaintiff
and Frank Pietro, city manager, and attested to by the city clerk. Section 2.2 addressed
City’s removal of plaintiff from his employment as chief of police by stating:
“Joseph shall be designated an ‘at-will’ employee. Accordingly, the City
Manager may terminate this [Chief of Police] Employment Agreement and
remove Joseph from the position of Police Chief at any time, for any
reason, with or without cause. If the City Manager removes Joseph from
the position of Police Chief for any reason other than willful misconduct in
office or conviction of a crime of moral turpitude, Joseph shall be given the
option to either:
“2.2.1 Return to his previous position of Police Lieutenant, where
his compensation will be based on Step 6 of Range 315 of the Salary
Schedule for Police Lieutenant; or
“2.2.2 Terminate his employment with the City and receive four (4)
months wage continuation pay, with such pay to be computed at the highest
base salary received by Joseph during his service with the City. This
Section 2.2.2 shall not apply in the event of a ‘Resignation’ as defined [in]
Section 2.1.”
On September 28, 2018, Lori Waterman, in her capacity as city manager, sent
plaintiff and his attorney a notice of intended discipline along with a final copy of the
investigation report and supporting exhibits relating to the allegations against plaintiff.
The notice informed plaintiff of the city manager’s “intention to terminate [plaintiff’s]
employment as Police Chief with the City for willful and other misconduct.” The notice
listed violations of five policies and three Penal Code sections, described four types of
willful misconduct, and set forth four other mismanagement issues.
The notice of intended discipline described plaintiff’s right to appeal the
termination decision. It stated that, in accordance with section 3304, subdivision (c),
plaintiff was “entitled to present any testimony or documentary evidence [he] believe[d]
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should be considered regarding [his] termination … to a neutral arbitrator at the City’s
expense.” Plaintiff also was informed that (1) he could submit testimony in person or in
writing; (2) he could bring representation to the hearing; (3) the hearing would not be “a
full evidentiary hearing in that you are not entitled to cross-examine witnesses and the
City is not obligated to call any witnesses or present any evidence beyond this Notice and
its attachments;” (4) the hearing officer would make a recommendation on the proposed
termination to the city manager; and (5) the city manager would make the final, binding
decision.
The notice of intended discipline stated that if plaintiff wished to appeal the
proposed termination, he should inform the city manager by October 10, 2018; the
hearing would occur no later than 60 days after his request, unless the parties agreed to a
continuance; the neutral hearing officer would be chosen and paid by City; and plaintiff
would remain on the payroll until the city manager made a final decision.
On October 4, 2018, plaintiff’s attorney sent City a letter stating plaintiff was
appealing the proposed termination and was objecting to the appeal procedure offered by
City. The letter asserted plaintiff was “entitled to a hearing before a ‘truly neutral
arbitrator’ (not one selected by the City at the City’s expense), at which the City will be
required to bear the burden of proving the charges, be required to call witnesses in
support of the charges, and [plaintiff] will be afforded the opportunity to cross-examine
those witnesses, and present witnesses to testify on his behalf.”
On October 15, 2018, City sent plaintiff’s attorney a letter stating a retired justice
of the Court of Appeal had been chosen as the hearing officer and proposing dates for the
hearing. The letter requested a response identifying hearing dates acceptable to plaintiff.
Plaintiff did not respond to the request for acceptable dates before the deadline set
in the letter. A few days after the deadline, City sent plaintiff’s attorney a letter noting
the lack of a response and stating hearing dates of December 5, 6, and 7, 2018, had been
chosen based on the hearing officer’s availability.
4.
Plaintiff’s attorney responded with a letter setting forth objections to City’s
conduct and the proposed procedures for the hearing. The letter concluded by stating:
“In the event the City does not wish to hold a hearing in accordance with
the process required by existing case and statutory law, or insists on having
the hearing conducted by the hearing officer it has unilaterally selected and
paid for, we will proceed to Superior Court to challenge the City’s
proposed hearing procedure and the selection of its hearing officer, and will
seek both fees and costs for having to do so.”
In November 2018, the parties exchanged further correspondence. Ultimately,
they were unable to agree on the type of hearing required by section 3304. Plaintiff
refused to participate in a hearing that did not comply with his interpretation of POBRA
and, as a result, no hearing was held. On November 15, 2018, the city manager issued a
“Final Notice of Termination” stating plaintiff’s employment was being terminated,
effective immediately, for willful and other misconduct.
PROCEEDINGS
In December 2018, plaintiff filed a verified petition for writ of mandate against
City. In January 2019, plaintiff filed a first amended verified petition for writ of
mandate. City filed a verified answer, dated February 13, 2019, setting forth its
disagreement with plaintiff’s interpretation of section 3304’s requirement that plaintiff be
given an opportunity for an administrative appeal.
In December 2019, after the parties had briefed the merits of the petition, the trial
court held a hearing and took the matter under submission. Two days later, the court
filed its written order denying plaintiff’s petition for writ of mandate and entered
judgment in favor of City. Plaintiff appealed.
DISCUSSION
I. TERMS OF EMPLOYMENT
An important issue in this appeal is how to characterize plaintiff’s employment
with City. City and the trial court characterized him as an at-will employee. Plaintiff
contends (1) he had the contractual right to be returned to the position of lieutenant if his
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termination as police chief was without cause; (2) City’s decision to terminate his
employment for willful misconduct deprived him of his right to employment as a
lieutenant; and (3) the termination for cause created a situation where he was entitled to
the same procedural rights as other public safety officers terminated or disciplined for
cause, regardless of the existence or nonexistence of a property interest in that
employment.
A. Legal Principles
Labor Code section 2922 sets forth the general presumption that “[a]n
employment, having no specified term, may be terminated at the will of either party on
notice to the other.” This presumption of at-will employment, while strong, is limited by
the fundamental freedom of contract. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 335 (Guz).) Thus, an employer and employee may agree to any limit, otherwise
lawful, on the employer’s right to terminate the employment relationship for any or no
reason. (Id. at p. 336.) Pursuant to these general principles, we conclude the
employment agreement signed by the parties must be examined to determine whether the
parties have contractually limited City’s right to terminate plaintiff’s employment for no
reason.
The interpretation of the employment agreement is guided by the following
principle: “It is solely a judicial function to interpret a written contract unless the
interpretation turns upon the credibility of extrinsic evidence, even when conflicting
inferences may be drawn from uncontroverted evidence.” (Garcia v. Truck Ins.
Exchange (1984) 36 Cal.3d 426, 439.) Here, the parties presented no extrinsic evidence
addressing the agreement’s meaning. Therefore, the interpretation of the employment
agreement poses questions of law subject to our independent review. (Parsons v. Bristol
Development Co. (1965) 62 Cal.2d 861, 865.)
The threshold question when interpreting a written contract is whether its text is
ambiguous—that is, reasonably susceptible to more than one interpretation. (Smith v.
6.
Adventist Health System/West (2010) 182 Cal.App.4th 729, 754–755.) Whether
contractual text is ambiguous presents a question of law subject to our independent
review on appeal. (Id. at p. 755; see Silverstein, The Contract Interpretation Policy
Debate: A Primer (2021) 26 Stan. J.L. Bus. & Fin. 222, 228–230 [initial stage of both
textualist and contextualist approach to contract interpretation is whether an ambiguity
exists].)
B. Contractual Provisions Addressing Termination
The contractual text addressing City’s right to terminate plaintiff’s employment is
contained in section 2.2 of the agreement, which begins by stating that plaintiff “shall be
designated an ‘at-will’ employee. Accordingly, the City Manager may terminate this
Agreement and remove [plaintiff] from the position of Police Chief at any time, for any
reason, with or without cause.” (Italics added.) Next, section 2.2 limits City’s right to
terminate plaintiff’s employment for any reason by stating: “If the City Manager
removes [plaintiff] from the position of Police Chief for any reason other than willful
misconduct in office or conviction of a crime of moral turpitude, [plaintiff] shall be given
the option to either” return to his previous position as a lieutenant or receive four months
of continuation pay.
Based on the trial court’s ruling and District’s arguments, we consider whether the
employment agreement is reasonably susceptible to the interpretation that plaintiff is an
at-will employee in all capacities. The first sentence of section 2.2 of the employment
agreement stating plaintiff “shall be designated an ‘at-will’ employee.” Reading this
sentence in isolation, one might conclude that plaintiff is an at-will employee in all
capacities. However, reading a sentence in isolation is not reasonable because California
law requires contracts to be interpreted as a whole. (See Waller v. Truck Ins. Exchange,
Inc. (1995) 11 Cal.4th 1, 18–19, [“language in a contract must be interpreted as a whole,
and in the circumstances of the case, and cannot be found to be ambiguous in the
abstract”].)
7.
The second sentence of section 2.2 addresses the extent to which plaintiff is an at-
will employee by providing that the city manager may “remove [plaintiff] from the
position of Police Chief at any time, for any reason, with or without cause.” (Italics
added.) The plain meaning of this sentence is that plaintiff’s employment as police chief
may be terminated at any time for any reasons and, therefore, his employment in that
position is properly characterized as at-will. (See Guz, supra, 24 Cal.4th at p. 335
[definition of at-will employment].)
The remainder of section 2.2 places a limitation on City’s right to terminate
plaintiff’s employment for any reason. It provides that if plaintiff’s employment as
police chief is terminated for reasons other than “willful misconduct in office or
conviction of a crime of moral turpitude,” plaintiff has a right to continued employment
as a lieutenant or a payment of four months’ salary, at his option. Thus, section 2.2
necessarily implies that City’s right to terminate plaintiff’s employment as a lieutenant is
limited to the specified reasons—that is, willful misconduct or conviction of a crime of
moral turpitude, which necessitate certain procedural protections. This contractual
limitation on City’s right to terminate plaintiff’s overall employment is more specific
than the sentence stating plaintiff is an at-will employee and, therefore, must be given
effect. (See Code Civ. Proc., § 1859 [if a general provision in a contract conflicts with a
specific provision, the specific provision controls].)
Consequently, we conclude that when section 2.2 is read as a whole, it is not
reasonably susceptible to the interpretation that all of plaintiff’s rights to employment
were at-will. Instead, the employment agreement unambiguously created a hybrid
employment relationship between City and plaintiff. First, plaintiff’s employment as
chief of police was at-will. Second, plaintiff’s employment as a lieutenant was not at-will
because it could be terminated only on the grounds specified in the agreement.
Interpreting the agreement otherwise would deprive plaintiff of the job security for which
he bargained.
8.
II. OPPORTUNITY FOR AN ADMINISTRATIVE APPEAL
The parties agree plaintiff has a statutory right under section 3304, subdivision (b)
to “an opportunity for administrative appeal” and disagree about the procedural
protections that apply to the administrative appeal. Their disagreement about the
procedural protections is based, to a large degree, on the different ways they
characterized plaintiff’s employment rights. As a result, our determination that plaintiff
had a hybrid employment relationship in which his employment as chief of police was at-
will and his employment as a lieutenant could be terminated only as specified in the
employment agreement provides the foundation for our analysis of the procedural
protections that must be applied to his administrative appeal.
A. Statutory Text
In 1976, the Legislature enacted POBRA to set forth a list of basic rights and
protections that public entities must provide to the peace officers they employ. (Oakland
Police Officers’ Assn. v. City of Oakland (2021) 63 Cal.App.5th 503, 512.) One of those
protections was “an opportunity for administrative appeal,” which is referred to twice in
the current version of section 3304:
“(b) No punitive action, nor denial of promotion on grounds other than
merit, shall be undertaken by any public agency against any public safety
officer who has successfully completed the probationary period that may be
required by his or her employing agency without providing the public
safety officer with an opportunity for administrative appeal.
“(c) No chief of police may be removed by a public agency, or appointing
authority, without providing the chief of police with written notice and the
reason or reasons therefor and an opportunity for administrative appeal.
“For purposes of this subdivision, the removal of a chief of police by
a public agency or appointing authority, for the purpose of
implementing the goals or policies, or both, of the public agency or
appointing authority, for reasons including, but not limited to,
incompatibility of management styles or as a result of a change in
administration, shall be sufficient to constitute ‘reason or reasons.’
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“Nothing in this subdivision shall be construed to create a property
interest, where one does not exist by rule or law, in the job of Chief
of Police.” (Italics added.)
We note that POBRA does not define “administrative appeal” or the phrase
“opportunity for an administrative appeal.” Before 1998, courts acknowledged that
POBRA “does not specify how the appeal process is to be implemented” and concluded
that “[t]he details of administrative appeal under section 3304 … are left to be formulated
by the local agency.” (Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1806
(Binkley); Browning v. Block (1985) 175 Cal.App.3d 423, 429.) In 1998, the same year
the Legislature added subdivision (c) to section 3304, it also enacted section 3304.5.
(Stats. 1998, ch. 263, § 1 [Sen. Bill No. 1662].) Section 3304.5 provides: “An
administrative appeal instituted by a public safety officer under this chapter shall be
conducted in conformance with rules and procedures adopted by the local public
agency.” (See § 14 [“ ‘Shall’ is mandatory”].)
B. Absence of Local Rules and Procedures
The record on appeal, as acknowledged by the parties at oral argument, does not
contain any rules and procedures for the conduct of administrative appeals adopted by
City in accordance with section 3304.5. Our independent research of City’s municipal
code did not locate any rules or procedures that might apply to an administrative appeal
required by POBRA.
Counsel’s responses to questions during oral argument suggested that if a police
lieutenant were to seek an administrative appeal after being terminated for cause, the
lieutenant’s appeal would be governed by provisions in a memorandum of understanding.
Such a memorandum of understanding is not included in the appellate record.2 In the
2 We note the possibility that procedures set forth in a memorandum of
understanding might qualify as “procedures adopted by” City for purposes of section
3304.5 and, as a result, might govern plaintiff’s administrative appeal challenging the for-
cause termination of his right to employment as a lieutenant. Given the record before us,
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absence of rules and procedures adopted by City pursuant to section 3304.5, we address
the procedural protections that must be applied to the hybrid situation presented in this
case to satisfy POBRA and due process.
C. Application of POBRA to Hybrid Employment Relationship
The parties’ briefing did not identify the hybrid nature of plaintiff’s employment.
Instead, the parties treated plaintiff’s employment rights as governed solely by
subdivision (c) of section 3304. We disagree with this approach.
We conclude that plaintiff’s rights to employment as chief of police are governed
by subdivision (c) of section 3304. That provision addresses removal of a chief of police
from office and clearly applies to the removal of plaintiff from that office. However,
subdivision (c) does not cover plaintiff’s rights to employment as a lieutenant. We
conclude those rights are governed by subdivision (b) of section 3304, which applies to
punitive action against a public safety officer.
Section 3301 defines a public safety officer to mean all peace officers specified in
certain provisions of the Penal Code. Those provisions include Penal Code section 830.1,
which states that “a police officer … is a peace officer.” (Pen. Code, § 830.1, subd. (a).)
We conclude that a lieutenant is a police officer and therefore a public safety officer for
purposes of section 3304, subdivision (b).
POBRA defines “punitive action” as including “any action that may lead to
dismissal.” We conclude that the termination of plaintiff’s right to employment as a
lieutenant qualifies as punitive action for purposes of POBRA. (See Trejo v. County of
Los Angeles (2020) 50 Cal.App.5th 129, 135, fn. 2 [right of administrative appeal
provided by § 3304, subd. (b) is an important pre-termination safeguard, on any punitive
action, guaranteed by POBRA]; Gonzalez v. City of Los Angeles (2019) 42 Cal.App.5th
1034, 1043 [purpose of administrative appeal is to give officer an opportunity to establish
these issues must be resolved on remand, either by the agreement of the parties or by the
trial court.
11.
a formal record of the circumstance surrounding his termination].) Therefore, we
conclude the termination of plaintiff’s right to employment as a lieutenant entitled him to
an administrative appeal pursuant to subdivision (b) of section 3304.
D. Procedural Protections
The analysis of the parties’ arguments is relatively straightforward because we
have rejected the foundation for City’s argument—namely, that plaintiff was an at-will
employee for all purposes. The employment agreement established plaintiff’s right to
employment as a lieutenant could be terminated only for “willful misconduct in office or
conviction of a crime of moral turpitude.” Consequently, plaintiff’s right to employment
as a lieutenant is entitled to the procedural protections afforded other public safety
officers whose employment can be terminated only for cause. (See Parker v. City of
Fountain Valley (1981) 127 Cal.App.3d 99, 106 [police sergeant’s position described as
permanent and tenured because he would be removed from his position only for cause].)
District’s arguments, like the trial court’s decision, relies heavily on Holmes v.
Hallinan (1998) 68 Cal.App.4th 1523 (Holmes) and Binkley to define the extent of
procedural protections necessary to satisfy POBRA. We conclude those cases are
distinguishable because they did not involve employment rights that could be terminated
only for cause. (See Giuffre v. Sparks (1999) 76 Cal.App.4th 1322, 1330 [only where
peace officer is an at-will employee have courts found no absolute right to a full
evidentiary hearing].)
In Holmes, supra, 68 Cal.App.4th 1523, the parties agreed the peace officer “was
an at-will employee, terminable without cause.” (Id. at p. 1530.) Similarly, in Binkley,
supra, 16 Cal.App.4th 1795, the chief of police served at the pleasure of the city manager
and, unlike plaintiff, did not retain a right to continued employment if removed as chief
of police. (Id. at p. 1807.) Therefore, the lesser procedural protection approved in
Holmes and Binkley do not satisfy the requirements of section 3304, subdivision (b)
applicable to plaintiff’s rights to employment as a lieutenant.
12.
Many courts addressing the procedural requirements for an administrative appeal
have stated that public safety officers are entitled to an evidentiary hearing before a
neutral fact finder. (Gonzalez v. City of Los Angeles, supra, 42 Cal.App.5th at p. 1043;
Conger v. County of Los Angeles (2019) 36 Cal.App.5th 262, 269; Morgado v. City and
County of San Francisco (2017) 13 Cal.App.5th 1, 7.) The more extensive procedural
protections applicable to public safety officers who may be terminated only for cause are
addressed in Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209 (Caloca I) and
Caloca v. County of San Diego (2002) 102 Cal.App.4th 433 (Caloca II). We conclude
that those procedural protections are the minimum applicable to the administrative appeal
in which plaintiff challenges the termination for willful misconduct of his rights to
employment as a lieutenant. Based on the freedom of contract applicable to California
employment relationships, we conclude the parties’ agreement that plaintiff was an at-
will police chief means a lower level of procedural protections applies to his removal
from that position. (See Holmes, supra, 68 Cal.App.4th at p. 1530; Binkley, supra, 16
Cal.App.4th 1807.)
In Caloca I, four sheriff’s deputies filed a petition for writ of mandate to compel
the county and its civil service commission to conduct liberty interest hearings or,
alternatively, an administrative appeal of a civilian law enforcement review board’s
findings of misconduct by the deputies. (Caloca I, supra, 72 Cal.App.4th at p. 1212.)
The appellate court concluded the deputies were not entitled to a liberty interest hearing
because there was no evidence that they suffered an actual loss of a government benefit
as a result of the board’s adverse findings. (Id. at p. 1220.) However, the court also
concluded the deputies were entitled to an opportunity for an administrative appeal under
section 3304, subdivision (b) because the board’s findings constituted punitive action
under POBRA and remanded for the issuance of a writ directing the civil service
commission to conduct an administrative appeal. (Caloca I, supra, at p. 1223.) The
court noted that the procedural details for implementing an administrative appeal are to
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be formulated by the local agency and, therefore, did not impose specific procedural
requirements. (Ibid.)
In Caloca II, three sheriff’s deputies filed a petition for writ of mandate
challenging the procedures applied to the administrative appeal of the board’s findings of
misconduct. (Caloca II, supra, 102 Cal.App.4th at p. 436.) The trial court granted the
petition based on its conclusions “that the burden of proof could not be placed on a
deputy and that without the consent of a deputy an administrative hearing could not be
closed to the public.” (Ibid.) The appellate court affirmed, stating:
“At a minimum an administrative appeal requires independent fact finding
in a de novo proceeding. In such a proceeding the proponent of any fact
bears the burden of establishing it. Thus the commission could not place on
officers the burden of refuting the civilian review board’s misconduct
findings. Moreover, the commission has not shown any substantial need to
close its hearings over the objection of a deputy who is challenging an
adverse finding.” (Caloca II, supra, 102 Cal.App.4th at pp. 436–437.)
As in Caloca I, the Fourth District stated that the precise details of the procedures
required by section 3304, subdivision (b) are left to local law enforcement agencies.
(Caloca II, supra, 102 Cal.App.4th at p. 443.) Nonetheless, the court concluded the law
clearly recognized some minimum procedural protections necessary to satisfy POBRA’s
requirement for an administrative appeal. A compliant administrative appeal required (1)
an independent reexamination of the decision, (2) the reexamination be conducted by
someone who was not involved in the initial determination, (3) the independent
administrative decision maker to set forth findings to bridge the analytical gap between
the raw evidence and the ultimate decision, (4) the hearing to “be treated as a de novo
proceeding at which no facts are taken as established” and (5) the proponent of a
particular fact to bear the burden of establishing it. (Caloca II, supra, 102 Cal.App.4th at
pp. 443–444.) The court also concluded the hearing could not be closed over the
officer’s objection. (Id. at p. 446, fn. 3.)
14.
We conclude the foregoing minimum procedural protections must be provided to
plaintiff in the administrative appeal provided to him in connection with the termination
of his rights to employment as a lieutenant. The hearing offered by City did not satisfy
these requirements and, therefore, did not comply with section 3304, subdivision (b). For
example, the retention of final authority by the city manager did not provide plaintiff with
a hearing by an independent decision maker as required by Caloca II and other case law
because the city manager was involved in the initial decision to terminate plaintiff’s
employment. (See Giuffre v. Sparks, supra, 76 Cal.App.4th at p. 1330 [sheriff’s deputy
was entitled to a full evidentiary hearing before a neutral fact finder to satisfy due process
and § 3304]; Runyan v. Ellis (1995) 40 Cal.App.4th 961, 967 [meeting between police
officer and city manager was not sufficient to satisfy administrative appeal requirements
of § 3304; officer was entitled to administrative appeal before civil service commission].)
Also, City’s proposed hearing did not provide plaintiff with a full evidentiary hearing
where he had the right to cross-examine witnesses and the burden of proving a particular
fact was placed on its proponent.
E. Specific Procedural Details
Plaintiff’s arguments about two procedural aspects of the administrative appeal
raise issues that cannot be definitively resolved at this stage of the proceedings. All the
circumstances relevant to determining the appropriate procedures for selecting a hearing
officer and for selecting hearing dates are not contained in the appellate record and will
not be known until other aspects of the administrative appeal are established.
1. Selection of a Hearing Officer
Plaintiff contends that City cannot unilaterally select and pay for the hearing
officer and cites Haas v. County of San Bernadino (2002) 27 Cal.4th 1017 (Haas) as
support. In Haas, the Supreme Court considered “whether a temporary administrative
hearing officer has a pecuniary interest requiring disqualification when the government
unilaterally selects and pays the officer on an ad hoc basis and the officer’s income from
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future adjudicative work depends entirely on the government’s goodwill.” (Id. at p.
1024.) The court concluded “the answer is yes.” (Ibid.) This conclusion cannot be
applied to the hearing officer who might preside over the administrative hearing on
remand because it is unclear whether City will hire a hearing officer, who the
compensated or uncompensated hearing officer might be, and the terms under which a
compensated hearing officer might be paid.
For example, the administrative appeal might be heard by the city council with a
member of the council acting as the hearing officer. In Gray, supra, 224 Cal.App.3d 621,
the police chief alleged the city council was prejudiced against him and could not conduct
the impartial hearing required by section 3304. (Gray, at p. 632.) This court concluded
that the police chief “has thus far failed to establish good cause to recuse the city
council.” (Ibid.; see Dole v. City of Chino (1981) 117 Cal.App.3d 673, 682–684 [city
council was appropriate body to hearing police chief’s appeal].) Similarly, on the record
presented in this appeal, we cannot conclude the city council is a biased decision maker
unable to provide an impartial hearing of the administrative appeal. In addition, we
cannot categorically declare that any hearing officer chosen and paid by City is biased
because, under Haas, that determination depends on the terms of employment, the
prospects for future employment, and other circumstances yet to be established in this
case. Consequently, we will not direct the superior court to issue a writ of mandate
prohibiting City from selecting and paying a hearing officer. In some circumstances such
an arrangement might undermine the impartiality and independence of the hearing officer
or final decision maker and in other circumstances it would not.
2. Selection of Hearing Dates
Plaintiff also contends City cannot unilaterally set dates for the administrative
hearing. We cannot issue a blanket directive that the dates of the hearing must be the
result of the parties’ mutual agreement. Ultimately, City retains the authority to set the
date of the hearing in the event the parties, acting reasonably and in good faith, are not
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able to agree on dates, and City’s exercise of that authority is subject to the general
restrictions inherent in the concept of a fair hearing. At this stage, we cannot predict that
every instance in which City might set hearing dates without plaintiff’s consent renders
the hearing unfair. As a result, we will not direct the superior court to issue a writ of
mandate prohibiting City from setting the hearing dates if the parties, acting reasonably
and in good faith, cannot agree on dates.
F. Just Cause Standard
Plaintiff argues that subdivision (c) of section 3304 contains a just cause standard
that applies to all chiefs of police. Plaintiff bases this argument on a description of the
sponsor of the amendment set forth in an Assembly Public Safety Committee analysis
that this court quoted in an earlier decision. (See Robinson v. City of Chowchilla (2011)
202 Cal.App.4th 368, 379–380 (Robinson); Assem. Com. on Public Safety, Analysis of
Sen. Bill No. 2215 (1997-1998 Reg. Sess.) as amended May 19, 1998, p. 3 (Committee
Analysis).) Plaintiff contends the Committee Analysis “makes it clear that the
[L]egislature enacted this law to provide a Police Chief with the same ‘just cause’
standard governing permanent employee discipline appeals.” Plaintiff also contends that
if a police chief has no more rights in appealing a termination than a probationary
employee, then subdivision (c) of section 3304 is wholly meaningless. We reject
plaintiff’s interpretation.
Nowhere does section 3304 state that just cause is required to discipline a chief of
police. Instead, subdivision (c) of section 3304 plainly states that no chief of police may
be removed without written notice that includes the reasons for removal and “an
opportunity for administrative appeal.” It also states the reasons for removal include
“incompatibility of management styles or as a result of a change in administration.”
(§ 3304, subd. (c).)
Also, a Senate Floor analysis of Senate Bill No. 2215 (1997-1998 Reg. Sess.),
which added subdivision (c) to section 3304, provides a description of the sponsor’s
17.
statement that are materially different from those in the Committee Analysis. (See Sen.
Rules Com., Off. of Sen. Floor Analysis, Unfinished Business Analysis of Sen. Bill No.
2215 (1997-1998 Reg. Sess.) as amended July 7, 1998, pp. 4–5 (Senate Floor Analysis).)
It set forth arguments in support of the amendments as follows:
“The sponsors of the bill indicate, ‘Senate Bill 2215 is a very simple bill. It
provides that a Chief of Police may [not] be disciplined without written
notice and the reasons therefor. Historically, California law enforcement
has been the finest in the nation precisely because the Legislature has seen
the wisdom of separating police organizations from the political process.
This is why peace officers, once they pass probationary status, are protected
from termination except for just cause.
“ ‘Ironically, a Chief of Police, who has reached the apex of his or her law
enforcement career, reverts to the status of a mere probationary employee.
In other words, a Chief of Police may be dismissed for any reason. Senate
Bill 2215 does not guarantee that police chiefs cannot be fired. If a chief
fails to perform as expected, fails to follow the policy direction of the city[]
council, or fails to properly lead the department, they can, and should be
terminated or otherwise disciplined by the city council. What Senate Bill
2215 does is try to protect chiefs to some degree from whimsical pressures
that diminish the professionalism of the law enforcement mission.’ ”
(Senate Floor Analysis, supra, at pp. 4–5.)
The italicized text in this quote denotes language that is different from that
included in the earlier Committee Analysis quoted in Robinson. The Committee Analysis
described the bill’s sponsor as stating the bill “provides that the Chief of Police may not
be disciplined without just cause” (Committee Analysis, supra, at p. 3, italics added),
rather than stating “that a Chief of Police may [not] be disciplined without written notice
and the reasons therefor.” (Senate Floor Analysis, supra, at p. 4.) Also, the Committee
Analysis did not include the phrase “to some degree.” We conclude the later issued
Senate Floor Analysis more accurately describes the contents of subdivision (c) of section
3304 than the sponsor’s statement included in the Committee Analysis. Consequently,
plaintiff’s argument about a “just cause” standard does not accurately describe the
version of section 3304, subdivision (c) actually enacted by the Legislature.
18.
DISPOSITION
The order denying the petition for writ of mandate is reversed and the matter
remanded for further proceedings. The superior court is directed to (1) vacate that order,
(2) enter a new order granting the petition for writ of mandate, and (3) issue a writ of
mandate directing City to (a) set aside its “Final Notice of Termination” dated November
15, 2018, and (b) provide plaintiff with an opportunity for an administrative appeal that,
at a minimum, includes procedural protections that are consistent with this opinion.
On remand, if the parties are unable to agree on the specific procedures for the
administrative appeal, the superior court has the authority to resolve that dispute upon
application by one or both parties before the administrative hearing is held.
The superior court may, pursuant to the discretion granted by Code of Civil
Procedure section 1108, require City to file a return describing the action taken to comply
with section 3304 and satisfy the writ’s requirements.
Plaintiff shall recover his costs on appeal.
FRANSON, ACTING P. J.
WE CONCUR:
PEÑA, J.
SMITH, J.
19.