Clifton v. City of Dinuba CA5

Filed 5/2/16 Clifton v. City of Dinuba CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
RYAN CLIFTON,
F070582
Plaintiff and Respondent,
(Super. Ct. No. 254129)
v.
CITY OF DINUBA, OPINION
Defendant and Appellant
APPEAL from a judgment of the Superior Court of Tulare County. Lloyd L.
Hicks, Judge.
Tuttle & McCloskey, Daniel T. McCloskey and James F. McBrearty for
Defendant and Appellant.
Goyette & Associates and Gary G. Goyette for Plaintiff and Respondent.
-ooOoo-
Dinuba Police Officer Ryan Clifton was fired for cause because he drew and,
without anger or threat, pointed his service weapon at a police detective who had touched
Clifton’s gun and razzed him about being unable to draw the gun with his pepper spray in
the way.
Clifton appealed the termination and the matter was presented to a mutually
agreed arbitrator. During that proceeding, the City of Dinuba (City) dropped its
allegations that Clifton had violated Penal Code section 417 (brandishing a firearm) and a
policy manual provision addressing misdemeanor or felony statutes. The arbitrator ruled
some of the policy violations against Clifton had been proven and reduced the discipline
from a termination to a 30-day suspension. (Cf. Taylor v. Crane (1979) 24 Cal. 3d 442
[arbitration award that reduced termination of police officer to 30-day suspension was
confirmed] (Taylor).) Clifton filed a petition to confirm the award.
The trial court granted the petition to confirm the arbitration award, finding the
parties agreed to present the matter to a neutral arbitrator under the Dinuba Municipal
Code (Municipal Code) and agreed the decision would be binding. City appealed,
contending there was no agreement to arbitrate outside the procedures set forth in the
Municipal Code and those procedures only authorized judicial review by way of a writ
for administrative mandamus under Code of Civil Procedure section 1094.5.1 City
argues that Clifton’s petition to confirm was an unauthorized procedure because it was
not brought under section 1094.5.
On appeal, a fundamental question is whether there was an agreement to arbitrate
the dispute over Clifton’s termination. Applying the rules of law governing contract
formation, we conclude the parties agreed to an arbitration that would be final and
binding, except that either party could seek timely judicial review under section 1094.5.
The trial court correctly determined that judicial review of an arbitration award was not
the same thing as judicial confirmation of the award. Consequently, the trial court had
the necessary subject matter jurisdiction to confirm the arbitration award in accordance
with the provisions of the California Arbitration Act (§ 1280, et seq.).
We therefore affirm the judgment.
1 All unlabeled statutory references are to the Code of Civil Procedure.
2.
FACTS2
The Incident
Plaintiff Ryan Clifton was hired by City’s police department in January 2007. On
July 5, 2012, while assigned to the patrol bureau, Clifton was involved in an incident. He
was suspended pending investigation and then discharged on August 10, 2012. Prior to
the incident, Clifton had not received any discipline resulting in time off work.
The July 5, 2012, incident involved Clifton and Detective Jorge Quintero and
occurred in the records department of the police department while both were on duty.
Records clerk Lisa Esquivel was present. Clifton and Quintero were coworkers and
friends who saw each other off duty. For many months prior to the incident, Quintero
owed Clifton $15 for a hat Quintero bought from him and $5 on a bet Quintero lost about
who would shoot better during a firearms qualification. Clifton had asked for the $20 on
various occasions over a long time period, but Quintero had not paid. Clifton had never
seemed angry about not being paid, and the two had never argued about it. They
apparently talked about it in a joking manner.
On July 5, 2012, Clifton went in the records office to look in the files for a
citation. Quintero was there when Clifton entered and Clifton asked Quintero again for
the $20 he owed. Quintero said he did not have it. Clifton turned around and went to a
filing cabinet to look for the citation. Quintero then came up while Clifton was partly
turned around, touched the gun on Clifton’s belt, and asked how he could get his gun out
with the pepper spray canister there.3 Clifton turned around, unsnapped his holster, drew
2 Our description of events is taken from the “STATEMENT OF FACTS” (boldface
omitted) in the arbitrator’s 16-page written decision.
3 The three people present agreed that Quintero came up to Clifton when his back
was at least partially turned, touched the gun in some manner, and questioned how
Clifton could get it out with the pepper spray there. However, the testimony about the
touching differed. Quintero said that he touched the grip of Clifton’s gun and pepper
spray. Clifton stated that Quintero grabbed the butt of his gun and kind of shook it.
Esquivel said Quintero touched the gun.
3.
his gun, pointed it at Quintero’s stomach for about two to three seconds, said something
to the effect that see, he could get it out, and then put it back in his holster. Quintero then
told Clifton not to point his gun at him. Clifton replied by telling Quintero not to touch
his gun. Clifton walked away from Quintero to another part of the records office to look
for the citation. Quintero told Clifton a second time not to point his gun at him. Then
Quintero told Clifton a third time not to point his gun at him. Clifton turned around and
approached Quintero, and they spoke to each other in raised voices, with Quintero saying
something about them going to talk to someone. Clifton told Quintero again not to touch
his gun and turned his back again to look in the file cabinet. When Clifton finished with
the files, he left the records office.
Clifton testified that he was not angry when he pointed his gun at Quintero and he
did it to show he could draw his weapon in answer to Quintero’s question. Quintero
testified that Clifton was not aggressive when he drew the gun and pointed it. Quintero
also testified that he was not afraid, but surprised, and he did not believe Clifton intended
to harm him. Esquivel testified that Clifton and Quintero became loud and the incident
surprised and shocked her, but she was not afraid and did not believe Clifton and
Quintero were going to fight. She did not call anyone to intercede and did not report the
incident.
Quintero’s Report
Quintero left the records office after Clifton and immediately was approached by
his supervisor, Sergeant Iriarte, about another matter. Quintero had not planned to report
the incident to management, but he was upset and told Iriarte about it. Iriarte was about
to finish his shift, so he asked Sergeant and Range Master Ryan Robison to handle it.
Robison spoke to Quintero and sent a memorandum to Lieutenant Devon Popovich, who
was serving as acting chief while Police Chief James Olvera was on vacation.
4.
Quintero signed a non-prosecution form the day of the incident and decided not to
pursue criminal charges against Clifton. No one at the police department ever told
Quintero that he should pursue charges.
Management’s Reaction
Popovich intended to speak to Clifton the next morning and phoned Clifton to tell
Clifton to see him then. Popovich said nothing about taking Clifton off work at that time.
However, Popovich reported the incident to the city manager and it was decided
that Clifton would be put on administrative leave immediately. Popovich phoned Clifton
again and told Clifton he would come to his house that evening. Popovich and Robison
went to Clifton’s house, where Popovich informed Clifton that he was on administrative
leave and asked for Clifton’s gun, which Clifton gave to him.
By memorandum dated July 6, 2012, Popovich informed Clifton that he was under
investigation regarding his conduct on July 5 and would be on paid administrative leave
during the investigation. The memorandum stated that (1) Clifton allegedly pulled his
service pistol from the holster and pointed it at a detective; (2) these allegations were
serious, possibly criminal, and violations of City’s policies; and (3) assistance had been
sought from (a) the Tulare County Sheriff’s Department to investigate the alleged
criminal violation and (b) an independent investigator conducting an internal
investigation. The memorandum informed Clifton of his rights during the investigations.
The Investigations
The sheriff’s department investigator interviewed Quintero, Esquivel, and Robison
on July 10, 2012, and submitted a report of their statements. Clifton declined an
interview request. City filed a crime report against Clifton with the sheriff’s department
on July 12 alleging a misdemeanor.
Popovich informed Clifton in a memorandum dated July 16, 2012, that City had
retained Law & Associates Investigations (LAI) to conduct an internal affairs
investigation. The memo informed Clifton that he was scheduled for an interview with
5.
the investigator on July 20, 2012, and ordered him to cooperate fully. On July 24, 2012,
LAI issued a written report based on its interviews with Quintero, Esquivel, and Clifton.
The report concluded that Clifton had removed his gun from its holster and pointed it at
Quintero. The report stated Clifton was “adamant” that he did it in a joking manner after
Quintero touched his gun and joked that Clifton could not draw it because his pepper
spray was blocking it. The report concluded by listing three “possible” police department
policy section violations and one Penal Code violation.
Also in July 2012, City required Clifton to go to a fitness for duty examination
with a psychiatrist. The psychiatrist did not find that Clifton had any underlying issues
making him unfit for duty.
The Workplace Environment
While the incident was under investigation, Robison, the range master who is
responsible for training officers on firearm use, went to Olvera and suggested that the
incident be made a training issue for the entire department. Robison said he believed
Clifton deserved discipline, maybe counseling or some days off, but not discharge.
Olvera told Robison that the matter was out of his hands.4 Robison testified that, as
range master, he felt somewhat responsible if officers were not handling their guns
properly. Robison also testified that it is not normal for an officer to touch another
officer’s gun.
Sometimes, officers practiced “quick draw” in the police department’s briefing
room, where they joked and pointed their guns at each other. Some officers who testified
at the hearing had either witnessed quick draw or heard rumors about it. During the
investigation of the incident, Clifton asserted that practice of quick draws had been taking
place. Popovich asked Clifton for the names of officers involved, and Clifton provided
four names.
4 By February 2013, Olvera had retired and Popovich was police chief.
6.
Popovich interviewed the four officers and one admitted that he had engaged in
quick draw. No other witnesses were interviewed regarding that officer’s admission; no
evidence was presented that any further investigation was done or that the officer was
disciplined. The officer was not discharged. Two officers told Popovich that they had
seen a different officer engage in quick draw, but that officer denied it. Popovich
testified that he did not take the investigation further or discipline the officer because it
was two officers’ word against the other officer.
After the Clifton-Quintero incident, City’s police department sent out a safety
memorandum to officers with its policy on firearms attached.
Notice of Intent to Terminate
Police Chief Olvera gave Clifton a notice of intent to terminate dated July 31,
2012, that proposed Clifton’s termination by City no later than 10 working days from that
date, with Clifton remaining on administrative leave with pay. The proposed termination
was based on violations of (1) five provisions in the department’s policy and procedure
manual,5 (2) Penal Code section 417, (3) four provisions in chapter 13 of City’s
personnel policies and practices,6 and (4) City’s workplace violence policy No. 1996-01.
The notice stated Clifton’s conduct amounted to a criminal assault and could
expose him and City to liability. It also stated the proposed termination was based on the
above policies, the two investigations, and the criminal allegations. The notice informed
Clifton of his appeal rights.
5 The notice cited manual section 340.3.2(d)—engaging in horseplay with a
reasonable possibility of causing injury; section 340.3.2(k)—discourteous or disrespectful
treatment of a member of the department; section 340.3.5(z)—violating a felony or
misdemeanor statute; section 340.3.5(aa)—conduct unbecoming a member of the
department; and 340.3.6—violating departmental safety standards and safe working
practices.
6 The sections cited were B(4)—inexcusable neglect of duty; B(13)—discourteous
treatment of other employees; B(16)—misuse of public property or equipment; B(19)—
failure of good behavior during duty hours that causes discredit to City.
7.
Termination Notice
On August 7, 2012, a Skelly7 hearing was held where Clifton and his
representative met with Olvera to respond to the notice of intent to terminate. On August
10, 2012, Olvera issued a notice of termination effective that day. The grounds listed for
the termination, the factual conclusions, and the bases were the same as those in the
notice of intent to terminate. The notice informed Clifton of his appeal rights, including
the right to a formal hearing.
Administrative Appeal or Arbitration
The next steps taken by the parties were guided by Municipal Code section
2.36.830, which is labeled “Evidentiary hearing.” Municipal Code Section 2.36.830,
subdivision (A) states that a regular employee who has received notice of punitive action
and has gone through the grievance process shall be afforded an evidentiary hearing.
When the punitive action is termination, “the hearing officer shall be an arbitrator from
either the American Arbitrat[ion] Association[8] or from a list available from the State of
California, Department of Industrial Relations on grievances dealing with terminations.”9
(Mun. Code, § 2.36.830, subd. (B).) The Municipal Code states that both City and the
employee have the right to counsel, the right to call and examine witnesses for or against
them, and the procedural due process rights applicable to administrative proceedings.
7 In Skelly v. State Personnel Bd. (1975) 15 Cal. 3d 194 (Skelly), the California
Supreme Court held that public employees have a property interest in their continued
employment that is protected by the due process clause. (Id. at pp. 207-208.) A Skelly
hearing is an administrative hearing that gives the employee an opportunity to present his
or her version of the relevant events before termination.
8 We have not located, or ever heard of, the American Arbitrator Association.
Therefore, we read this provision of the Municipal Code as referring to the American
Arbitration Association.
9 The reference to “an arbitrator” identifies who is qualified to act as a hearing
officer in the administrative proceedings involving a terminated employee, not that the
proceeding conducted by that individual will be an arbitration.
8.
(Mun. Code, § 2.36.830, subd. (F).) The hearing officer is not bound by technical rules
of evidence and his or her decision shall not be invalidated by any informality in the
proceedings. (Mun. Code, § 2.36.830, subd. (E).) “The decision of the hearing officer
shall be in writing and shall be final and binding.” (Mun. Code, § 2.36.830, subd. (G).)
The parties selected Boren Chertkov as the person who would conduct the
proceedings. Chertkov was born in 1938, graduated from the University of Texas Law
School in 1963, and had a wide variety of experience in labor relations law at both the
federal and state level. For example, he worked for the National Labor Relations Board
in Washington, D.C. and served as general counsel to the California Agricultural Labor
Relations Board from 1978 to 1983.10
On February 13, 2013, the hearing before Chertkov was held in Dinuba. Portions
of the hearing transcript that address the parties’ stipulations about the nature of the
proceeding are quoted in part II.C.1, post and, consequently, are not set forth here. Near
the close of the hearing, counsel agreed to email briefs to Chertkov by March 15, 2013.
The parties were advised by letter dated April 24, 2013, that Chertkov had passed
away, but had completed a decision in the matter. The letter stated Chertkov’s decision
was not signed or dated and asked the parties how they wished to proceed. The parties
agreed to accept the unsigned decision, which they received on May 24, 2013.
The decision stated that Clifton’s grievance was granted in part and denied in part,
with the discharge being reduced to a 30-day suspension. The decision’s award directed
that Clifton be made whole for the losses suffered as a result of the discharge, including
immediate reinstatement with backpay (less 30 days), restoration of seniority, and
expungement of the discharge from Clifton’s employment records.
10 Chertkov died on April 15, 2013, about two months after the evidentiary hearing.
9.
PROCEEDINGS
On November 8, 2013, Clifton filed a petition to confirm a contractual arbitration
award. Clifton used the optional Judicial Council Form ADR-106 (new Jan. 1, 2004) and
completed the item addressing the terms of the arbitration agreement by attaching a copy
of Municipal Code section 2.36.830 (evidentiary hearing).
City’s response was twofold. First, on December 10, 2013, City filed a verified
petition for writ of administrative mandamus alleging the arbitrator (1) prejudicially
abused his discretion by reducing Clifton’s punishment, (2) proceeded without or in
excess of his jurisdiction, (3) made a decision not supported by his findings, and (4) made
incorrect findings not supported by substantial evidence.
Second, City filed a demurrer to Clifton’s petition and a request for judicial notice
of Municipal Code section 2.36.810 (appeal and grievance—judicial review).
Clifton opposed City’s demurrer and requested judicial notice of Municipal Code
section 2.36.830, the provision he had attached to his petition and which governs the
evidentiary hearing afforded employees aggrieved by disciplinary action. Clifton also
filed a demurrer to City’s writ petition.11
In January 2014, the trial court overruled City’s demurrer, as was proposed in its
tentative ruling. The tentative stated: “The parties hereto chose the forum of a neutral
arbitrator whose decision would be binding according to their own municipal code.[12] If
11 Clifton’s demurrer was sustained without leave to amend on March 13, 2014. The
trial court, citing section 1094.6, determined City’s petition was untimely because it was
filed more than 90 days after City’s receipt of the decision.
12 The trial court’s determination that the Municipal Code provided for binding
arbitration is consistent with the arguments presented by the parties. We conclude the
Municipal Code does not provide for arbitration and that the parties agreed to an
arbitration that tracked many (but not all) of the procedural steps set forth in the
Municipal Code for administrative hearings of employee terminations. (See pt. II.C.3,
post.) This slight disagreement with the trial court over interpretation of the Municipal
Code and the nature of the parties’ agreement does not automatically lead to a reversal.
Under California law, appellate courts are not concerned with the trial court’s reasoning,
10.
they wanted something other, they need to rewrite the code. Thus, [Clifton] has filed the
correct vehicle to obtain the relief requested, confirmation of the arbitration award under
Code of Civil Procedure section 1285, et seq.” The court went on to state that an
arbitrator’s award was not an administrative decision and, thus, not subject to the
Municipal Code provision authorizing a writ of mandate for review of an administrative
decision. We interpret the court’s decision as concluding that (1) arbitration was a
procedure available under the Municipal Code and (2) the parties chose to proceed with a
binding arbitration according to the Municipal Code.
In February 2014, Clifton set a hearing on his petition to confirm the arbitration
award. The parties submitted additional papers and, on March 13, 2014, the trial court
held a hearing on the petition. The court’s minute order stated City’s response was not
timely filed and, thus, need not be considered. Alternatively, the court stated that City
was time-barred from (1) seeking its own petition to correct or vacate the arbitration
award or (2) asserting such a request in its response to Clifton’s confirmation petition. In
addition, the court stated:
“The parties agreed to have this matter heard before a neutral arbitrator
whom they selected, and agreed that the decision would be binding.
Further, when the arbitrator died before signing the decision, the parties
agreed to accept the decision without a signature. The arbitrator’s decision
set forth the issues to be determined.”
In August 2014, the trial court entered a judgment in favor of Clifton stating that
his petition and the relief requested was granted in its entirety and the arbitration award
only with whether the final result was correct or incorrect. (Kaldenback v. Mutual of
Omaha Life Ins. Co. (2009) 178 Cal. App. 4th 830, 843; Cal. Const., art. VI, § 13
[judgments shall be set aside only if the error resulted in a miscarriage of justice].) As
described below, we conclude the final result—confirming the arbitration award—was
correct because the parties agreed to binding arbitration of the dispute over Clifton’s
termination and that agreement, which incorporated some procedures from the Municipal
Code, is the foundation for the arbitration award confirmed by the trial court under
authority granted by the California Arbitration Act.
11.
and the relief stated therein was confirmed. The judgment also directed City, within 30
days, to (1) pay Clifton’s back pay and related retirement contributions through July 31,
2014, and (2) reinstate Clifton to his former position in the police department with full
restoration of seniority and with expungement of his discharge from City’s records.
City filed a timely notice of appeal.
DISCUSSION
I. THE MUNICIPAL CODE AND ARBITRATION
The trial court determined that the parties agreed to arbitration in accordance with
the Municipal Code. Clifton’s appellate brief argues that he “demonstrated an
agreement to arbitrate based on the City’s [Municipal Code] so the arbitrator’s decision is
final and binding and not subject to judicial review.” (Full capitalization and boldface
omitted.) City’s opening brief contends that “there was never an agreement to arbitrate
outside the provisions of the [Municipal Code].”
The trial court’s determination and the parties’ contentions raise the fundamental
question of whether the Municipal Code actually provides for the arbitration of employee
terminations. (See fn. 12, ante.) For instance, City’s assertion that there was never an
agreement “outside” the Municipal Code presents the possibility that there was an
agreement to arbitrate “inside”—that is, pursuant to—the provisions of the Municipal
Code.
Part I of this opinion addresses whether the Municipal Code provides for
arbitration. We conclude it does not. Part II analyzes whether the parties entered into
(i.e., formed) an enforceable contract to arbitrate their dispute in lieu of the administrative
proceeding set forth in the Municipal Code. We conclude they formed such a contract.
12.
A. Construction of the Municipal Code
1. Standard of Review and Rules of Construction
The construction of a city charter or a municipal code is a question of law subject
to de novo review an appeal. (Hall-Villareal v. City of Fresno (2011) 196 Cal. App. 4th
24, 29.) As with statutory construction, our primary goal is to ascertain the intent of the
legislative body so as to effectuate the enactment’s purpose. (Honchariw v. County of
Stanislaus (2013) 218 Cal. App. 4th 1019, 1027.) Construing legislation begins by
scrutinizing the actual words in the code and giving them their usual, ordinary meaning.
(Ibid.) Aside from provisions from the city charter, no extrinsic materials were presented
to aid our construction of the Municipal Code.
2. Words Used in the Municipal Code
Chapter 2.36 of the Municipal Code addresses personnel policies and practices.
That chapter does not use the word “arbitrate.” However, the word “arbitrator” and
“arbitration” (see fns. 8 & 9, ante) appears in two provisions, both addressing the same
subject. Municipal Code section 2.36.800 describes the formal procedures for grievances
and appeals. Subdivision (C)(2)(b) of that section provides:
“Terminations. The hearing shall be heard and the final determination be
made by an arbitrator from either the American Arbitrat[ion] Association
or from a list available from the State of California, Department of
Industrial Relations.” (Italics added.)
This use of “arbitrator” and “arbitration” is repeated in Municipal Code section
2.36.830, which describes various aspects of the evidentiary hearing provided as the third
step in the formal procedures. Municipal Code section 2.36.830, subdivision (B) states
that “the hearing officer shall be an arbitrator from either the American Arbitrat[ion]
Association or from a list available from the State of California, Department of Industrial
Relations on grievances dealing with termination.” (Italics added.)
The statements that “the hearing officer shall be an arbitrator,” when read in
context of the Municipal Code’s other provisions that make no reference to arbitration or
13.
arbitration awards, are insufficient support for the inference that the proceeding
conducted under the Municipal Code is an arbitration. We interpret the references to “an
arbitrator” as identifying individuals qualified or eligible to act as a hearing officer in an
evidentiary hearing involving a terminated employee. We have located no language in
the other provisions of the Municipal Code that support the inference that the procedure
involving terminated employees is an arbitration. For instance, “[e]videntiary hearing” is
defined for purposes of chapter 2.36 of the Municipal Code as “an administrative hearing
for the purpose of discovery of evidence for proposed disciplinary actions and provides
affected employees [an] opportunity to rebut such reasons.” (Mun. Code, § 2.36.070,
subd. (30).) This description of the hearing as “administrative” and the absence of any
reference to arbitration supports the inference that the hearing is not part of an arbitration
proceeding. In addition, the many uses of the term “hearing officer” in the Municipal
Code reinforces the inference that the procedure authorized is an administrative hearing
and not an arbitration.
Therefore, we conclude that the uses of the word “arbitrator” were not intended to
mean the hearing officer selected would conduct an arbitration. Therefore, we interpret
the Municipal Code as providing terminated employees with an administrative hearing
conducted by a hearing officer (albeit one selected from a pool of arbitrators) who
renders an administrative decision, not an arbitration award.
B. Municipal Code as a Bar to Arbitration
Having determined that the Municipal Code does not expressly authorize
arbitration of dispute involving the termination of an employee, the next question is
whether the Municipal Code (or city charter) prohibits the parties from agreeing to
arbitrate their dispute. In other words, are the procedures set forth in the Municipal Code
mandatory such that any attempt to alter those procedures is void?
14.
This question is easily resolved by California Supreme Court precedent. In
Taylor, supra, 24 Cal.3d at p. 451, the court stated:
“It has long been recognized that a city may agree to arbitrate any matter
which could be the subject of civil suit. [Citation.] Discipline of a
permanent city employee is such a matter. [Citations.] Thus, unless the
charter expressly prohibits the city from agreeing to arbitrate whether [the
police officer’s] conduct was sufficient cause for his discharge, the city
retains the power to do so.”
Here, the City’s second request for judicial notice included provisions of its city
charter. The City has not cited, and our review has not located, a provision expressly
prohibiting the City from agreeing to arbitrate employment disputes. Therefore, the City
retained the power to do so. (Taylor, supra, 24 Cal.3d at p. 451.)13
C. Attorney Authority to Stipulate to Arbitration
The primary source of a potential agreement to arbitrate the dispute over Clifton’s
termination relates to the stipulations made by the parties’ attorneys, which were
recorded in the transcript of the proceedings conducted before Chertkov. Consequently,
another issue relating to the validity of any agreement to arbitrate is whether the attorneys
13 As background, we note that Taylor is similar to this case in that Taylor involved
(1) a police officer who was discharged, (2) an arbitration award that concluded the
discipline was too severe and directed the reinstatement of the officer after a 30-day
suspension, and (3) a lawsuit seeking judicial confirmation of the arbitration award.
(Taylor, supra, 24 Cal.3d at pp. 445-446.) The police officer’s employment was
terminated because he shot a suspected burglar during an off-duty foot pursuit. (Id. at p.
445.) The parties signed a written agreement for an arbitrator to decide whether the
officer was properly discharged and, if not, what the remedy should be. (Ibid.) The
arbitrator determined the officer’s conduct constituted sufficient cause for a disciplinary
suspension of 30 days, but otherwise reinstated him at the same rank with back pay. (Id.
at p. 446.) The arbitrator found it significant that the district attorney expressly
determined the officer’s actions did not warrant criminal prosecution. (Ibid.) After the
city refused to honor the arbitration award, the police association filed for judicial
confirmation of the award. (Ibid.) The Supreme Court reversed the trial court’s
judgment and directed it to confirm the arbitrator’s award. (Id. at p. 453.)
15.
were authorized by their clients to stipulate to binding arbitration. (See generally, 1
Witkin, Cal. Proc. (5th ed. 2008) Attorneys, § 252 [stipulating to binding arbitration].)
Whether the City expressly or impliedly authorized its attorneys to stipulate to an
arbitration and whether Clifton authorized Horton to stipulate to an arbitration are
questions of fact that were not litigated before the trial court. More specifically, the City
did not challenge Clifton’s petition to confirm a contractual arbitration award on the
ground that the City had not authorized its attorney to enter into a contract to arbitrate.
As a result, the City presented no evidence to establish the lack of authorization. In light
of this state of the record, we conclude the factual question of the attorney’s authority to
stipulate to arbitration cannot be resolved on appeal in favor of the City.
II. FORMATION OF A CONTRACT TO ARBITRATE
Based on our determinations that (1) the Municipal Code does not provide for
arbitration of employment disputes and (2) the Municipal Code and city charter do not
prohibit contractual arbitration as a means to resolve those types of disputes, the next
question is whether the parties entered into (i.e., formed) a contract to arbitrate the
dispute over Clifton’s termination. Our analysis of this question involves issues relating
to the formation of a contract and the identification of the terms of any such contract.
A. Rules Governing Contract Formation
1. Elements of a Contract
Under California law, a contract is formed when the following essential elements
are present: (1) parties capable of contracting, (2) the consent of those parties, (3) a
lawful object, and (4) adequate consideration. (Civ. Code, § 1550; see BAJI No. 10.55
[contract defined/elements].) “The consent of the parties to a contract must be: 1. Free;
[¶] 2. Mutual; and, [¶] 3. Communicated by each to the other.” (Civ. Code, § 1565.)
Mutual consent is determined under an objective standard applied to the outward
manifestations or expressions of the parties—that is, the reasonable meaning of their
16.
words and acts, and not their unexpressed intentions or expectations. (Alexander v.
Codemasters Group Limited (2002) 104 Cal. App. 4th 129, 141 (Codemasters).) The
existence of mutual consent presents a question of fact. (Ibid.)
The formation of an enforceable contract also requires the terms of the agreement
to be reasonably certain. (Codemasters, supra, 104 Cal.App.4th at p. 141.) The purpose
of the certainty requirement is to provide a basis for determining the existence of a breach
of the agreement and for giving an appropriate remedy. (Ibid.)
2. Standard of Review
Generally, whether undisputed facts establish a contract can be decided by an
appellate court as a matter of law. (Codemasters, supra, 104 Cal.App.4th at p. 141.)
Here, the parties do not contend that the transcript of the proceedings before Chertkov
inaccurately records the terms of their stipulations.
B. Contentions
1. City’s Contentions
City contends there was no agreement to arbitrate outside the provisions of the
Municipal Code. In the context of these issues relating to contract formation, City’s
contention can be interpreted in two ways. First, City might be arguing that no contract
was formed. Second and alternatively, City might be arguing that a contract was formed,
but its terms tracked or incorporated the provisions of the Municipal Code. Stated
another way, City may be arguing that, even though the parties could have agreed to
something else, they agreed their arbitration would be subject to the procedures and other
requirements that the Municipal Code imposes on administrative hearings and decisions.
As to standard of appellate review, City contends the facts are not in dispute and
this court must interpret the Municipal Code, which presents a question of law subject to
de novo review.
17.
2. Clifton’s Contentions
Clifton’s petition to confirm a contractual arbitration award necessarily was based
on the allegation that there was an agreement to arbitrate. He attached provisions from
the Municipal Code to support this allegation. Clifton opposed the City demurrer to his
petition by stating the City had failed “to adhere to the arbitration process set forth in its
own municipal code.” On appeal, Clifton contends, somewhat ambiguously, that he
“demonstrated an agreement to arbitrate based on the City’s [Municipal Code] so that the
arbitrator’s decision is final and binding and not subject to judicial review.” (Some
capitalization and boldface omitted.)
Like City’s contention, Clifton’s argument is subject to different interpretations.
First, he could be arguing that the parties simply agreed to abide by the arbitration
procedures set forth in the Municipal Code. We reject this argument based on our
conclusion that the Municipal Code does not provide for arbitration, but provides
terminated employees with an administrative hearing conducted by a hearing officer who
renders an administrative decision. (See pt. I.A, ante.) Second, Clifton might be arguing
that the parties agreed to an arbitration proceeding that would be subject to some or all of
the procedures set forth in the Municipal Code for administrative hearings. This is the
type of agreement we address below.
C. Formation of an Agreement to Arbitrate
1. Evidence Relating to Mutual Consent and the Terms
The evidence before this court includes the November 2013 declaration from Peter
Horton, the attorney who represented Clifton at the February 2013 hearing. The evidence
also includes a transcript of the February 2013 hearing, which sets forth the words used in
the stipulations made by counsel at that hearing.
Horton’s declaration stated that, prior to the arbitration hearing, he and the
attorney representing City stipulated that the grievance steps were completed or waived
and that the grievance was properly before the arbitrator. The declaration stated that the
18.
attorneys “mutually agreed that the Arbitrator would be Boren Chertkov” and that “[t]he
parties further understood and agreed that the arbitration would be final and binding.”14
We note that the declaration assumes the proceeding was an arbitration, rather that setting
forth the who, what, when, where and how relating to the communication of an offer to
arbitrate and its subsequent acceptance.
Horton’s declaration also addressed the agreement reached after the hearing in
which the parties resolved issues created by Chertkov’s death. Chertkov had prepared a
written decision, but had not dated, signed or issued it. The parties agreed to accept the
unsigned decision. Counsel for City sent Chertkov’s widow an email advising her of the
parties’ agreement and requesting her to send him the decision and the bill for Chertkov’s
services.
The transcript of the February 2013 proceedings before Chertkov is part of the
appellate record because we granted City’s request to augment the appellate record.
City made the request to support its argument that Horton inaccurately described the
parties’ stipulation. The transcript shows Chertkov began the proceedings with some
introductory remarks about the matter in dispute, the location of the hearing, the
recording of the proceedings, and then stated:
“All right. At this point, I’ll ask that the parties prepare to stipulate that the
grievance steps have been completed or waived and that the case is
properly at the arbitration stage.
14 The phrase “final and binding” echoes the sentence in Municipal Code section
2.36.830, subdivision (G) that “[t]he decision of the hearing officer shall be in writing
and shall be final and binding.” Thus, the use of the phrase may demonstrate (1) an
intent for the arbitration procedure to track the Municipal Code’s procedures for
administrative hearings, (2) an intent that the arbitration award would be “final and
binding” as that phrase is understood in case law addressing arbitration decision, or (3)
both. (See State Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal. 4th
512, 517 [an arbitrator’s decision that is “final and binding” is subject to judicial review
only on the limited grounds set forth in § 1286.2].)
19.
“MR. HORTON: That is my understanding.
“ARBITRATOR CHERTKOV: All right. And do the parties stipulate that
the arbitrator’s award in this case will be final and binding?
“MR. HORTON: Yes.
“MR. McBREARTY: Yes.
“ARBITRATOR CHERTKOV: I have not had an opportunity to read the
memorandum of understanding. Some of these in city and county
governments have an appeal process.
“MR. McBREARTY: It will be final and binding unless one of the parties
wanted to go to Superior Court on a writ. You can still do that.
“MR. HORTON: It’s a writ of mandate 1094.5 -- (INAUDIBLE)
“MR. McBREARTY: Writ of mandate.
“ARBITRATOR CHERTKOV: All right. I’ll recognize that and I’ll leave
room for that. Can the parties – or have the parties reached agreement on
what the issue is this morning?”
“MR. HORTON: Well, I believe, if I don’t speak out of turn, that issue is
whether there is just cause to terminate – just cause to prove the charges
against Officer Ryan Clifton and then secondarily, whether or not if those
charges are proven then what is the appropriate penalty.
“MR. McBREARTY: That’s correct.
“MR. HORTON: (Inaudible).
“ARBITRATOR CHERTKOV: All right. Do the parties stipulate that the
arbitrator will retain jurisdiction upon issuance of award in case there’s any
problem about implementation of that award?
“MR. McBREARTY: Yes.
“MR. HORTON: Yes, the parties stipulate.”
After this exchange, Chertkov addressed which party would present witness
testimony and documentary evidence first and the right to cross-examine witnesses.
20.
To summarize, the evidence before this court relevant to the formation and content
of an agreement is (1) Horton’s declaration, (2) the transcript of the February 2013
hearing, (3) the written communication exchanged after the hearing and before the award
was issued, and (4) the provisions of the Municipal Code relating to employee
termination.
2. Communicated Assent and Certainty of Terms
The evidence—specifically, the transcript of the February 2013 hearing and
Horton’s less detailed declaration—shows that counsel for the parties communicated their
assent to one another by entering into stipulations before Chertkov. Thus, it is clear the
parties formed an agreement, but they dispute its terms. One possibility is that the parties
agreed that the arbitration would proceed in accordance with the provisions of the
Municipal Code. Another possibility is that they agreed to an arbitration proceeding that
followed some, but not all, of the procedures applied to the administrative proceedings
under the Municipal Code. A third possibility is that they never agreed to any type of
arbitration.
Whether the parties mutually consented to a particular term (such as arbitration) is
determined under objective criteria, the test being what the outward manifestations of
consent would lead a reasonable person to believe. (Merced County Sheriff’s Employee’s
Assn. v. County of Merced (1987) 188 Cal. App. 3d 662, 670 (Merced Sheriff); Civ. Code,
§§ 1581 [communication of consent], 1636 [mutual intention at the time of contracting is
ascertained].) The first term of the parties’ agreement we address is whether they agreed
to an arbitration or, alternatively, simply agreed to proceed with an administrative
hearing in accordance with the provisions of the Municipal Code.
3. Ambiguity of Agreement to Arbitrate
The transcript of the hearing provides a record of the words used by the parties
and Chertkov to make their stipulations. Those words, however, do not provide an
21.
explicit, clear answer to the question of whether the parties agreed to an arbitration.
Instead, the words are ambiguous—that is, reasonably susceptible to more than one
interpretation. (See Crestview Cemetery Assn. v. Dieden (1960) 54 Cal. 2d 744, 747, 754
[parties to ambiguous oral agreement did not dispute the words used, but differed
materially as to what those words meant].)
California law provides a well-established framework for resolving contractual
ambiguities. The only place ambiguity is addressed in the appellate briefing is City’s
opening brief, which contends “the trial court ignores the plain language of the
[Municipal Code, its] context and that there is conflict and ambiguity based on [Clifton’s]
insistence that the substance of the agreement does not include the section [of the
Municipal Code] entitled ‘Appeals—Grievance.’” Notwithstanding the parties’ approach
to the ambiguity of the words they exchanged, we will address particular statements from
the transcript and discuss the inferences that can be drawn from those statements.
First, counsel agreed with Chertkov’s statement “that the case is properly at the
arbitration stage.” Neither attorney objected to the term “arbitration” or stated the
proceeding should be characterized as an evidentiary or administrative hearing. The use
of the word “arbitration” supports the inference that the parties agreed to an arbitration
and that Chertkov was there to act as an arbitrator, not simply a “hearing officer”
conducting an “administrative proceeding” and rendering a “administrative decision.”
(Mun. Code, § 2.36.830, subds. (B), (D), (E) & (G), § 2.36.810.)
Second, counsel answered “Yes” when asked, “do the parties stipulate that the
arbitrator’s award in this case will be final and binding?” The term “arbitrator’s award,”
like the earlier reference to “the arbitration stage,” provides some support for the
inference that the parties agreed to an arbitration. Also, the phrase “final and binding” is
consistent with arbitration because that phrase often appears in arbitration clauses. (E.g.,
Moncharsh v. Heily & Blase (1992) 3 Cal. 4th 1, 7, fn. 1; Butchers’ Union Local 229 v.
Cudahy Packing Co. (1967) 66 Cal. 2d 925, 940 [collecting bargaining agreement].)
22.
Third, when Chertkov asked about an appeal process, counsel for City stated, “It
will be final and binding unless one of the parties wanted to go to Superior Court on a
writ.” Counsel for Clifton confirmed this statement by saying, “It’s a writ of mandate
1094.5 -- (Inaudible).” This exchange is subject to conflicting interpretations on some
points. However, the exchange is clear on the agreement that either party could pursue a
writ in court. This is an important term of the agreement because it contradicts the
Municipal Code and, thus, demonstrates that the parties were agreeing to something other
than (i.e., outside) what the Municipal Code provided. Judicial review of administrative
decisions is addressed by the Municipal Code as follows:
“2.36.810 Appeal and grievance – Judicial review.
“A. See Resolution No. 91-36 on time limits on judicial review.
Employees seeking a judicial review of administrative decisions including
hearings, suspension, demotions, or terminations shall file a writ of
mandate (written authoritative order) no later than the ninetieth day
following the date on which the administrative decision becomes final.
“B. The city must, at the time the final administrative decision is made,
provide written notice to the employee and his/her representative of the
time limits set forth in the Code of Civil Procedure Section 1094.6 within
which judicial review must be sought. (Ord. 95-5 § 2; (Chapter 17(G)).”
(Italics added.)
Paragraph A of this provision expressly grants employees the right to seek judicial
review of an administrative decision relating to a termination. It does not grant City the
right to seek judicial review of its own administrative decision. This omission from the
Municipal Code is not unexpected because local governments and administrative
agencies typically do not seek judicial review of their own administrative decisions.
Doing so would be the equivalent of a local government saying, “we made the wrong
administrative decision and we need the courts to correct our decision for us.”
23.
Therefore, we conclude that when the parties agreed that either side could go to
court by filing a petition for writ of administrative mandamus under section 1094.5,15
they agreed to something other than the procedure set forth in the Municipal Code. This
specific part of their agreement supports the inference that they agreed to final and
binding arbitration because, if they were conducting the usual administrative proceeding,
there would be little reason for Clifton to expand City’s rights without receiving
something in return.
The parties’ explicit reference to section 1094.5 supports the inference that they
intended to have the agreed-upon judicial review of the arbitration decision subject to the
basic requirements governing administrative mandamus. Consequently, their silence as
to any deadline for going to court under a petition for writ of administrative mandamus
does not mean they intended for there to be no limit on the amount of time. Instead, we
infer the parties intended to be subject to the 90-day limitations period set forth in section
1094.6, subdivision (b): “Any such petition shall be filed not later than the 90th day
following the date on which the decision becomes final.” This 90-day limitations period
is jurisdictional. (Donnellan v. City of Novato (2001) 86 Cal. App. 4th 1097, 1103.) City
argues the 90-day limitations period was tolled or otherwise does not apply because no
notification was given pursuant to either Municipal Code section 2.36.810, subdivision
(B) or subdivision (f) of section 1094.6, which provides: “In making a final decision as
defined in subdivision (e), the local agency shall provide notice to the party that the time
within which judicial review must be sought is governed by this section.” (Italics added.)
We conclude this notification provision does not apply to the present case because the
15 City acknowledges that it agreed to this term. City’s reply brief refers to its
“assertion that the parties had previously agreed on the record that the matter would be
reviewable by either party by filing a petition for writ of mandamus.” Despite
acknowledging this specific term, City does not concede the term was part of an
agreement to arbitrate the dispute.
24.
arbitrator was the one “making a final decision,” not the local agency. Alternatively,
even if this specific notice provision applied to the arbitrator’s decision, it is not
objectively reasonable to infer the parties intended to incorporate it into their agreement
because doing so would have given City unilateral control over starting the 90-day
period, which would have allowed City to implement the short statute of limitations if the
decision was favorable to it and avoid the short statute of limitations if the decision was
unfavorable.
Based on the foregoing, we conclude that the 90-day period within which to file a
timely administrative mandamus petition began on May 24, 2013, when the parties
received Chertkov’s decision. Using that starting date, neither party came close to filing
a timely petition for administrative mandamus. City’s writ petition was filed on
December 10, 2013, more than six months after the final arbitration decision was
received. Clifton’s petition to confirm was filed on November 8, 2013, well after the 90-
day period for attacking the finality of the arbitration decision had expired.
Another aspect of the parties’ stipulation about judicial review is the lack of a
description of the scope or type of issues that could be raised in the administrative
mandamus proceeding. However, the reference to section 1094.5 demonstrates they
regarded judicial review of the arbitration award as something different from
confirmation of that award. Subdivision (f) of section 1094.5 clearly identifies the relief
that can be obtained by a petitioner: “The court shall enter judgment either commanding
respondent to set aside the order or decision, or denying the writ.” This mandatory
language does not include granting the writ and confirming or otherwise enforcing the
decision. Thus, the parties’ reference to section 1094.5 addresses the mechanism for
challenging the final and binding character of the arbitrator’s decision and does not
address how to confirm or enforce that decision once the time for challenges has elapsed.
Fourth, the parties entered into another stipulation that qualified their agreement
that the “arbitrator’s award in this case will be final and binding.” Counsel stipulated to
25.
Chertkov’s statement “that the arbitrator will retain jurisdiction upon issuance of award in
case there’s any problem about implementation of that award.”16 Chertkov’s reference to
himself as the “arbitrator” instead of the hearing officer supports the inference that the
parties intended to conduct an arbitration before an arbitrator, rather than an
administrative hearing before a hearing officer. The reservation of authority, which is not
part of the procedures specified in the Municipal Code, suggests that the parties agreed to
something else, such as an arbitration. There are, of course, conflicting inferences about
the exact nature of that proceeding. In other words, the additional stipulation does not
necessarily mean the proceeding was an arbitration, but that is one of the possible
inferences that can be drawn reasonably from the facts presented. (Hess v. Ford Motor
Co. (2002) 27 Cal. 4th 516, 527 [when the evidence is uncontroverted, the choice among
the conflicting inferences is solely a judicial function]; Parsons v. Bristol Development
Co. (1965) 62 Cal. 2d 861, 865 [same].)
Applying a de novo standard of review, we resolve the ambiguity in the words of
the parties’ stipulations to mean they agreed (1) the evidentiary hearing ordinarily
provided under the Municipal Code would be converted into an arbitration proceeding
and (2) the arbitration would be final and binding, except that each side could seek
judicial review of the arbitrator’s decision by way of a timely writ of administrative
mandamus under section 1094.5.17
16 For example, there might have been a problem with restoring Clifton’s seniority
because that action could affect the rights of third parties or with putting Clifton’s
retirement account in the condition it would have been if he had not been discharged.
17 Alternatively, even if there was no valid agreement to arbitrate and this matter
were governed exclusively by the provisions of the Municipal Code, the City would lose
this appeal. If Chertkov’s decision is regarded as an administrative decision by a hearing
officer, it would be final and binding upon the City pursuant to Municipal Code section
2.36.830, subdivision (G). The exception to finality created by the provision in
Municipal Code section 2.36.810, subdivision (A) for judicial review under section
1094.5 is available only for employees seeking judicial review. That provision does not
authorize the City to seek judicial review of its own administrative decisions.
26.
We recognize the possibility that, from a subjective perspective, City may not
have intended to provide Clifton with an arbitration hearing that deviated from the
procedures governing administrative proceedings under the Municipal Code. However,
the undisclosed subjective intent or expectation of a party is irrelevant to determining the
meaning to the language communicated. (Adams v. MHC Colony Park L.P. (2014) 224
Cal. App. 4th 601, 620, fn. 18.) A party is responsible for the objectively reasonable
expectations created by the words and actions communicated to the other party. (See
Merced Sheriff, supra, 188 Cal.App.3d at p. 670.) Here, an objectively reasonable
interpretation of the words and actions of the parties in light of the surrounding
circumstances leads to the conclusion that they agreed to an arbitration that would follow
some, but not all, of the procedures in the Municipal Code.
D. Trial Court’s Authority to Confirm the Arbitration Award
1. Statutory Authority to Confirm
Based on our conclusion that the parties entered into a valid arbitration agreement,
it follows that the trial court had the authority to enter an order confirming the arbitration
award. Section 1286 grants superior courts the authority to confirm arbitration awards in
accordance with the requirements of the California Arbitration Act (§ 1280, et seq.).
Pursuant to this statutory authority, the trial court could determine the parties entered into
an arbitration agreement and confirm the arbitrator’s award. (See § 1285 [petitions to
confirm arbitration award].)
The parties’ agreement did not deprive the trial court of its authority under the
California Arbitration Act. The agreement about going to court to seek a writ of
administrative mandamus was limited to the mechanism for challenging the award and
did not reach the question of how to confirm the arbitrator’s award. The agreement’s lack
of an explicit statement of the procedure for confirmation does not negate the trial court’s
statutory authority to confirm arbitration awards. Stated another way, California’s rules
27.
of contract law filled any gap in the agreement about enforcement procedures by
incorporating applicable law in existence when the contract was made. (See Alameda
County Flood Control & Water Conservation Dist. v. Department of Water Resources
(2013) 213 Cal. App. 4th 1163, 1181 [existing laws form part of the contract as if
expressly referred to and incorporated].) In this case, the applicable laws include the
California Arbitration Act.
2. Municipal Code Provision Limiting Judicial Review
City contends it has the power, under the California Constitution, the Government
Code, and its charter, to make laws governing city affairs. From this foundation, City
argues that Municipal Code section 2.36.810 provides the sole means of invoking judicial
review of the arbitrator’s decision. Based on this view, City contends Clifton’s petition
to confirm the award was the incorrect judicial procedure for enforcing the award and the
confirm order must be reversed.
First, City’s argument fails because the parties agreed to an arbitration that
modified the procedures set forth in the Municipal Code, including the judicial review
provisions of Municipal Code section 2.36.810. (See pt. II.C.3, ante.)
Second, the trial court interpreted the parties’ agreement and Municipal Code
section 2.36.810 as addressing judicial review, which it distinguished from judicial
confirmation of the arbitration award. We agree with this interpretation. The parties
agreed that the arbitrator’s award would “be final and binding unless one of the parties
wanted to go to Superior Court on a writ [of administrative mandate.]” The use of the
phrase “go to Superior Court” as an exception to the award being “final and binding”
demonstrates the purpose of going to court is to challenge the finality or the binding
nature of the award, not to enforce a final and binding award. The reference to section
1094.5 reinforces this intent because the judgments allowed under its subdivision (f) do
not include granting a petition and confirming the underlying decision. Therefore, we
28.
reject City’s argument that Municipal Code section 2.36.810 sets for the exclusive
method for enforcing the arbitrator’s award rendered pursuant to the parties’ agreement.
III. SUBSTITUTION OF JUDGMENT AND PUBLIC POLICY
City contends that the arbitrator improperly substituted his judgment as to
punishment. In City’s view, there was no showing that City abused its discretion in
terminating Clifton.
City’s arguments on appeal fail to take into account a change involving the
grounds for termination that occurred between the issuance of the notice of termination
and the hearing before the arbitrator. The notice of termination referred to the grounds
set forth in the notice of intent to terminate. The most serious grounds listed in the notice
of intent to terminate were (1) a violation of the department’s policy and procedure
manual section 340.3.5(z), violating a felony or misdemeanor statute, and (2) a violation
of Penal Code section 417, which addresses the drawing and exhibiting of a firearm.18
Footnote 6 of the arbitrator’s decision stated: “During the arbitration hearing, [City]
dropped the allegations of violation of Police Department Policy and Procedure Manual
Section 340.3.5(z), violating any misdemeanor or felony statute, and violation of Penal
Code 417.”
In effect, the arbitrator determined that punishment based on Clifton’s commission
of a misdemeanor or felony was no longer appropriate once Clifton established and City
18 Subdivision (a)(2) of Penal Code section 417 states: “Every person who, except in
self-defense, in the presence of any other person, draws or exhibits any firearm, whether
loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner,
unlawfully uses a firearm in any fight or quarrel is punishable as follows: [¶] (A) If the
violation occurs in a public place and the firearm is a pistol, revolver, or other firearm
capable of being concealed upon the person, by imprisonment in a county jail for not less
than three months and not more than one year, by a fine not to exceed one thousand
dollars ($1,000), or by both that fine and imprisonment. [¶] (B) In all cases other than
that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a
county jail for not less than three months.”
29.
conceded no crime had been committed. (Cf. Taylor, supra, 24 Cal.3d at p. 446
[arbitrator changed discipline of police officer from discharge to a 30-day suspension;
arbitrator found it significant that the district attorney expressly determined the officer’s
off-duty shooting of suspected burglar did not warrant criminal prosecution].) The record
before this court and the analysis adopted in Taylor shows the arbitrator could have
reasonably determined that the punishment was rendered arbitrary and capricious
(particularly in the workplace environment described earlier) because the most egregious
basis for the discipline—namely, drawing and pointing his firearm “in a rude, angry, or
threatening manner” (Pen. Code, § 417, subd. (a)(2))—was not supported by the
evidence.
In summary, Clifton was terminated for violating a Penal Code provision that
defined certain actions as a felony or misdemeanor. During the arbitration, the evidence
presented showed Clifton’s actions were not a crime and those grounds were withdrawn.
The withdrawal of those grounds was sufficient to establish that Clifton’s discharge was
out of proportion to the misconduct and justified the arbitrator’s reduction of the
discipline imposed.
DISPOSITION
The order confirming the arbitration award is affirmed. Respondent shall recover
his costs on appeal.
_____________________
FRANSON, J.
WE CONCUR:
_____________________
KANE, Acting P.J.
_____________________
POOCHIGIAN, J.
30.