Greigo v. City of Barstow

Filed 1/30/23 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JESSE GRIEGO, B322638
San Bernardino County
Plaintiff and Respondent, Super. Ct. No. CIVDS1936454
ORDER MODIFYING
v. OPINION AND DENYING
PETITION FOR
REHEARING
CITY OF BARSTOW,
[NO CHANGE IN
JUDGMENT]
Defendant and Appellant.
THE COURT:
IT IS ORDERED that the opinion in the above-entitled
matter filed on January 3, 2023, be modified as follows:
On page 2, the second paragraph of part I is deleted and is
replaced with the following paragraph:
In 2007, the Fire District issued a memorandum to
its captains directing personnel not to attend sporting
events while on duty. Later the District reprimanded
Griego, in writing, for an “intentional violation of a Verbal
Directive, and a written Memorandum . . . .” Griego’s
violations were for coaching sports while on duty. After
that, the District once again reprimanded Griego for
coaching on duty. The reason was “taxpayers don’t pay us
to coach softball.” Later he was seen taking a fire engine to
a sports event and coaching while on duty. The District
reprimanded Griego a third time: “[T]here is no coaching
on duty in any capacity. Do not take the
engine. Period.” During his third reprimand, Griego was
defensive and argumentative and expressed no regret.
The petition for rehearing filed by Respondent Jesse Griego
is denied.
There is no change in the judgment.
____________________________________________________________
STRATTON, P. J. WILEY, J.
I would grant this petition for rehearing.
_______________________
HARUTUNIAN, J. 1
1 Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
2
Filed 1/3/23 (unmodified opinion; see concurring & dissenting opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JESSE GRIEGO, B322638
Plaintiff and Respondent, San Bernardino County
Super. Ct. No. CIVDS1936454
v.
CITY OF BARSTOW,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San
Bernardino County, Donald R. Alvarez, Judge. Reversed with
directions.
Best Best & Krieger, Thomas M. O’Connell, B. Allison
Borkenheim and Pokuaa M. Enin; Buchalter, Thomas M.
O’Connell for Defendant and Appellant.
Rain Lucia Stern St. Phalle & Silver and Michael A.
Morguess for Plaintiff and Respondent.
____________________
Jesse Griego was a captain in the Barstow Fire Protection
District. The City of Barstow fired him for criminal and
perjurious acts, for willful refusal to comply with official orders,
and for setting a poor professional example for his subordinates,
as well as for other charges no longer at issue. The trial court
erred by remanding this case for the City to reconsider Griego’s
discipline. There is no real doubt the City would terminate
Griego, so there is no reason to remand the case. (See Byrd v.
Savage (1963) 219 Cal.App.2d 396, 402–403 (Byrd).) We reverse
the trial court and affirm the City’s decision.
I
Griego worked for the Fire District from 1997 to 2018. He
also coached children’s sports teams, including the girls’ softball
team at Barstow High School.
In 2007, the Fire District issued a memorandum to its
captains directing personnel not to attend sporting events while
on duty. On March 23, 2017, a fire chief verbally reprimanded
Griego for coaching on duty. Griego was defensive and
argumentative. The fire chief told him, “[T]here is no coaching on
duty in any capacity. Do not take the engine. Period.” Griego
expressed no regret, and later was seen again attending a
sporting event while on duty. On March 29, 2017, the chief
issued a written reprimand.
Also in early 2017, a safety officer at Barstow High School
reported she suspected an inappropriate relationship between
Griego and a 15-year-old student, H.S. The officer saw Griego
bring H.S. lunch during school hours and H.S. drive Griego’s car.
She heard students saying H.S. was wearing Griego’s shirt, the
two had adopted a cat together, and they had visited a theme
park together.
2
The Barstow Police Department opened a criminal
investigation into Griego for suspected statutory rape (Pen. Code,
§ 261.5). The City placed Griego on paid administrative leave,
and Barstow High School told him to end contact with the girls’
softball team. Nonetheless, Griego continued to attend practices
and games and to communicate with coaches and players,
including H.S. The investigative detectives reported they
believed Griego had continued his inappropriate relationship
with H.S. despite the criminal probe, but the San Bernardino
County District Attorney’s Office ultimately did not prosecute.
The City launched its own investigation into whether
Griego had violated the Fire District’s Personnel Rules and
Regulations, rule 6, section 10.3. This section gives examples of
grounds for disciplinary action which include dishonesty,
insubordination, violation of rules or a supervisor’s orders, or
“[o]ther acts which are incompatible with service to the public”
including “any conduct or behavior, either on or off duty, which
causes discredit or would reasonably tend to cause discredit to
fall upon the City, its officers, agents or departments.”
The City’s investigator sustained 19 allegations against
Griego. These allegations included, among others, that Griego
(1) sought an “intimate dating relationship” with minor H.S.;
(2) defied specific directions not to coach while on duty despite
multiple warnings; (3) carried a concealed handgun outside his
home without a permit; and (4) filed a false court document
under penalty of perjury.
The handgun allegation referred to November 2017, when
Griego carried a concealed gun to investigate suspicious people
outside his home. A police officer arrived and asked Griego if he
had a gun; Griego said yes and showed it to him. The officer
3
asked if he had a concealed carry permit; Griego did not. Penal
Code section 25400 prohibits carrying a concealed gun in public
without a permit.
As for the perjury, in 2017 Griego’s ex-wife applied for a
domestic violence restraining order against him. A temporary
restraining order issued in July 2017 included a direction to store
any firearms with the police department or a licensed gun dealer.
Yet in August 2017, Griego signed and filed a response that
declared, “I do not own or have any guns or firearms.” Griego
later admitted he had owned guns for about two years.
Regarding the false court filing, he said, “I probably didn’t even
read that and pay attention to that.”
Following the investigative report, the fire chief issued
Griego a notice of intent to terminate. This notice explained why
Griego’s conduct violated the Fire District’s personnel policies
and listed the sustained allegations, the specific rules violated,
and prior incidents of discipline. It advised Griego of his right to
respond pursuant to Skelly v. State Personnel Board (1975) 15
Cal.3d 194 (Skelly). Following Griego’s Skelly hearing, the fire
chief issued Griego a notice of termination based on 18 of the 19
allegations. The fire chief wrote Griego’s on- and off-duty conduct
was “disgraceful” and had brought discredit upon the Fire
District.
Griego appealed through nonbinding advisory arbitration.
The parties introduced evidence and heard witness testimony
over the course of 11 days. The arbitrator concluded there was
sufficient evidence to sustain six of the 18 allegations against
Griego. He found insufficient evidence supported the charge of
an inappropriate relationship, however, as H.S. and her family
testified nothing untoward had happened. The arbitrator noted
4
the only witness who claimed to have seen sexual activity
between the two—Griego’s ex-wife—was not credible. He said
Griego had “demonstrated a certain disregard for directives and
instructions” and “exhibited a somewhat cavalier attitude to the
expectations of his position,” but found the penalty of termination
no longer appropriate because the “major part” of the allegations
was not sustained. He advised reducing the penalty to a 30-day
suspension.
The arbitrator sent his recommendation to the city
manager. Pursuant to a memorandum of understanding between
the City, the Fire District, and the union, the city manager had
the right to amend, modify, or revoke the arbitrator’s
recommendation. The city manager’s decision would be final and
binding.
The city manager disagreed with the arbitrator and
concluded the evidence demonstrated Griego indeed had pursued
an intimate dating relationship with H.S. The manager noted
both Griego and the arbitrator focused on the scant evidence the
relationship was sexual. She found the relationship was
inappropriate for a fire captain regardless of sexual contact. She
reversed the arbitrator’s finding on this one allegation: Griego’s
relationship with H.S.
The city manager affirmed the arbitrator’s findings as to
the other allegations. She “identified a pattern of inconsistent
statements and disregard of operational directives and orders” by
Griego. She noted the record was “fraught with examples” of
Griego disobeying express orders, giving conflicted explanations,
and failing to demonstrate any remorse or understanding. His
overall conduct, she said, was inconsistent with that expected of
an experienced fire captain. The city manager upheld the fire
5
chief’s decision to terminate based on the now-remaining seven
sustained allegations.
Griego filed a petition for writ of administrative mandate in
the superior court. The superior court, exercising its independent
judgment as to the City’s findings of misconduct, granted the writ
in part and denied it in part. It found there was sufficient
evidence to sustain only three allegations: coaching on duty,
carrying a concealed handgun without a permit, and filing a false
court document. The superior court held termination was not
appropriate based on these three allegations and remanded the
matter for reconsideration of Griego’s discipline.
The City appealed the trial court’s decisions (1) that the
City abused its discretion by firing Griego based on the three
sustained allegations and (2) that the case was remanded to the
City to redetermine Griego’s discipline.
II
After outlining the standards of review, we reverse two
erroneous rulings by the trial court: that the City could not fire
Griego based on the three sustained allegations, and that remand
was appropriate.
A
Trial courts generally review petitions for writs of
administrative mandate to see if the respondent agency abused
its discretion. An agency abuses discretion if it does not proceed
as required by law, its decision is not supported by the findings,
or its findings are not supported by the evidence. (Code Civ.
Proc., § 1094.5, subd. (b).) Trial courts exercise independent
judgment when reviewing administrative decisions affecting a
right that is vested and fundamental. (Strumsky v. San Diego
County Employees Retirement Assn. (1974) 11 Cal.3d 28, 44.)
6
Permanent employees have a vested interest in their
employment. (Brush v. City of Los Angeles (1975) 45 Cal.App.3d
120, 123.) When such a petitioner claims the findings are not
supported by the evidence, there is an abuse of discretion if the
weight of the evidence does not support the findings. (§ 1094.5,
subd. (c).)
Despite this independent judgment about the agency’s
findings, trial courts must not disturb a penalty absent an abuse
of discretion. The trial court is not free to substitute its
discretion for that of the agency concerning the degree of
punishment. (Nightingale v. State Personnel Bd. (1972) 7 Cal.3d
507, 515.) Agencies have a wide latitude of discretion, and courts
defer to their expertise unless the penalty is “arbitrary,
capricious or patently abusive.” (Cassidy v. Cal. Bd. of
Accountancy (2013) 220 Cal.App.4th 620, 627–628; see also id. at
p. 633.) Put another way, trial courts may overturn a penalty
when it “exceeds the bounds of reason.” (Kolender v. San Diego
County Civil Service Com. (2005) 132 Cal.App.4th 716, 721.) If
reasonable minds may differ, there is no abuse of discretion.
(Lake v. Civil Service Com. (1975) 47 Cal.App.3d 224, 228.)
On appeal, we also review the administrative decision—not
the trial court’s—for abuse of discretion. (Deegan v. City of
Mountain View (1999) 72 Cal.App.4th 37 (Deegan) [no deference
to trial court’s determination of penalty assessed]; see also
8 Witkin, Cal. Procedure (6th ed. 2022) Writs, § 293.) Because
the City’s appeal is limited to whether the superior court erred in
overturning its decision to terminate Griego, we consider only the
findings on the sustained allegations in our review of its penalty.
7
B
Based on the three sustained allegations, termination was
well within the City’s broad discretion. The City did not abuse its
discretion.
The city manager’s letter explained her decision to uphold
Griego’s termination. About half of this letter addresses Griego’s
inappropriate relationship with H.S.; the other half explains
other reasons Griego “failed to conduct himself in a manner
consistent with the expectations of a Fire Captain.” In the
manager’s words, “Griego’s lack of credibility, inconsistent
statements, inappropriate actions with [H.S.] and his conscious
disregard for District policy” justified termination.
We disregard one of these four stated reasons for
termination—Griego’s relationship with H.S. The other three
reasons apply to conduct described in the three sustained
allegations, namely: refusing to follow an express directive,
issued multiple times, not to coach softball while on duty;
carrying a concealed handgun without a permit; and lying under
penalty of perjury about possessing firearms. These actions
demonstrate a lack of credibility, reliability, and trustworthiness
and were a reasonable basis for the City’s decision to sustain
termination.
C
The trial court erroneously remanded Griego’s case.
The law on this issue is in Miller v. Eisenhower (1980) 27
Cal.3d 614 (Miller). We review Miller.
Dr. Donald Miller applied to join a hospital staff, but the
hospital rejected his application because he supposedly lacked an
“ability to work with others.” (Miller, supra, 27 Cal.3d at pp. 620-
621, 627.) The evidence was Miller was “flamboyant,” “a little
8
impetuous,” and “a controversial person” who expressed himself
“forcefully and vigorously.” (Id. at pp. 621, 631.) Other evidence
was that Miller created “dissension” and that he had “relatively
few friends in the community.” (Id. at p. 622.) The Supreme
Court clarified the proper decisional standard and remanded the
case to the hospital for it to determine whether Miller’s
“characteristics of personality which other staff members or
administrators find personally disagreeable or annoying” would
be detrimental to patient care. (Id. at pp. 631–632.)
As the City explains, Miller’s facts are at a considerable
remove from this case. The City penalized Griego, not for a
“controversial” personality, but for criminal and perjurious
actions and for insubordination that “displayed a poor
professional example to [his] subordinates.” It wrote to him,
simply, “You cannot be trusted to perform your duties.”
The trial court relied upon Miller, but the City rightly
critiques that citation as factually inapposite. Griego does not
defend the trial court’s reliance on Miller: his brief omits
mention of Miller.
Although Miller’s precise holding and its facts do not
resemble Griego’s situation, Miller did survey precedent and
formulate a general rule. We turn to that general rule and to its
exception.
The Miller opinion stated that it is “well settled, of course,
in cases involving the imposition of a penalty by an
administrative body, that when it appears that some of the
charges are not sustained by the evidence, the matter will be
returned to the body for redetermination in all cases in which
there is a ‘real doubt’ as to whether the same action would have
9
been taken upon a proper assessment of the evidence.” (Miller,
supra, 27 Cal.3d at p. 635.)
After stating this general rule, Miller cited 10 precedents to
illustrate its source and proper application. (See Miller, supra,
27 Cal.3d at p. 635.) Of these 10 cited cases, none is completely
on point, but the closest is Byrd, supra, 219 Cal.App.2d 396. We
recount Byrd, explain its pertinence, and apply this law, which
our Supreme Court specifically has approved. (Miller, supra, 27
Cal.3d at p. 635.)
Floyd Byrd held a “restricted real estate license.” (Byrd,
supra, 219 Cal.App.2d at p. 398.) This type of license is the “sort
issued to one who has already violated the licensing law.” (Id. at
p. 402.) Byrd had, “in effect, probationary status.” (Ibid.)
California’s Real Estate Commissioner considered three
charges against Byrd.
One was that realtor Byrd had violated a statute providing
for license suspension or revocation if the license holder
committed “fraud or dishonest dealing.” (Byrd, supra, 219
Cal.App.2d at p. 398 & fn. *.) The basis for this accusation was
that Byrd had stated “falsely that a certain piece of property to be
used as security for a loan was free and clear of all
encumbrances.” (Id. at p. 398.)
The second charge was that Byrd had failed to register as a
“real property loan broker.” (Byrd, supra, 219 Cal.App.2d at p.
398.)
The third charge related to Byrd’s “pleading guilty to
violation of a city ordinance (drunk in or about an automobile).”
(Byrd, supra, 219 Cal.App.2d at p. 398.)
10
The Real Estate Commissioner sustained the first and
third counts but rejected the second—the one about registering as
a loan broker. The Commissioner revoked Byrd’s license.
The superior court reviewed the matter, sustained the
charge about “fraud or dishonest dealing,” dismissed the charge
about alcohol, and affirmed the license revocation.
The Court of Appeal affirmed the trial court’s judgment.
The pertinent section of this opinion analyzed whether Byrd’s
case should be remanded to the Real Estate Commissioner. The
court decided remand was unnecessary.
“As a general rule, where one of several charges of
misconduct is reversed by the trial court, the case should be
remanded to the administrative agency to reconsider the penalty.
[Citation.] Here, although the trial court found insufficient
evidence to support one of the charges, all relief was denied.”
(Byrd, supra, 219 Cal.App.2d at p. 402.)
The Byrd decision explained why the court was rejecting
remand and thus was following an exception to the general rule.
“In view of the seriousness of the charge sustained by the trial
court, the comparatively minor character of the charge which was
reversed, and in view of petitioner's prior record as indicated by
his restricted license, there is no real doubt that the license
would and should be revoked. There is no reason to remand the
case for reconsideration of the penalty.” (Byrd, supra, 219
Cal.App.2d at p. 403.)
Byrd resembles this case because it involved a serious
employment decision. The Commissioner effectively barred Byrd
from work as a realtor, just as the City fired Griego from his job.
But Byrd does not squarely control this case. No precedent
does.
11
This case differs from Byrd because the accusation that
Griego had an inappropriate relationship with a minor was not
“comparatively minor.” (Byrd, supra, 219 Cal.App.2d at p. 403.)
Another difference is that Griego’s employment was not
probationary. Rather, Griego was a fire captain with long tenure
and supervisory responsibilities. This difference, however, is
more aggravating rather than exonerating: an experienced but
defiantly insubordinate supervisor sets an intolerable example by
repeatedly flouting direct commands from his superior.
By the same token, Griego’s sustained misconduct was
more serious than Byrd’s false statement about property.
Griego’s mendacity constituted a pattern that included perjury;
he was unapologetically insubordinate; and he had violated the
Penal Code’s gun laws. Griego’s sustained misconduct “would
reasonably tend to cause discredit to fall upon the City, its
officers, agents or departments.” His repeated and varied
misconduct harmed the Fire District. (See Skelly, supra, 15
Cal.3d at p. 218 [in determining abuse of discretion, courts
consider harm to public service, circumstances surrounding
misconduct, and likelihood of its recurrence].)
Following Byrd, there is no real doubt the City would
terminate Griego. There is no reason for remand.
///
12
DISPOSITION
We reverse the judgment of the superior court with
directions to deny Griego’s petition for writ of administrative
mandate and to enter judgment for the City of Barstow. We
award costs to the City.
WILEY, J.
I concur:
STRATTON, P. J.
13
HARUTUNIAN, J., Concurring and Dissenting:
I concur in part and respectfully dissent in part. I fully
agree with the majority’s conclusion that the trial court erred in
ruling that the City could not fire Griego based on the three
sustained allegations. I agree that the three sustained
allegations brought termination within the City’s broad
discretion. But I cannot join the decision to overturn the trial
court’s order to remand the case for reconsideration by the City of
its level of punishment. The City’s decision to terminate Griego
was based in part on the extremely serious “suspected statutory
rape” 2 allegation. The fire chief relied on that charge in deciding
to terminate Griego. So did the city manager.
The City has not appealed the trial court’s ruling that
termination must be justified by the three sustained allegations,
not including the “unsustained” statutory rape allegation. The
majority concludes that if we were to remand the case, the City is
sure to conclude termination is warranted. Perhaps. But how
can we conclude that when there have already been two decisions
that termination is not warranted when “statutory rape” is not
considered? The first is when the arbitrator found that
“statutory rape” was not established, and that the penalty
justified by Griego’s other conduct was a 30-day suspension, not
termination. The second is when the trial court reviewed the city
manager’s termination decision, found insufficient evidence to
sustain the “statutory rape” allegation, and concluded
termination was not warranted based on the sustained
allegations. The City was never faced with deciding whether to
2 References to “statutory rape” are simply a short-hand for
the “intimate dating relationship with a minor” allegation.
1
terminate Griego when “statutory rape” cannot be factored into
the decision in any way. He should be allowed to present his
arguments with the limitations that now exist. The city manager
decided to terminate based on seven sustained allegations,
including “statutory rape.” The decision now would be based on
only three sustained allegations that are arguably far less serious
than the sexual misconduct charge.
I express no opinion about whether Griego should be
terminated. I simply feel he is entitled to “make his case” to the
City based only on the permissible charges. As the majority
recognizes, this is the “well settled” general rule. (Miller v.
Eisenhower Medical Center (1980) 27 Cal.3d 614, 635.) The
distinctions in the case relied on by the majority, Byrd v. Savage
(1963) 219 Cal.App.2d 396, (comparatively minor accusation, and
probationary licensee) render it inapplicable in my view.
We should remand the case to the City to reconsider the
penalty, considering only the three sustained allegations.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
2