Opinion
B162486.
11-3-2003
DONALD LUMAN, Petitioner and Appellant, v. CITY COUNCIL OF THE CITY OF EL MONTE, et al., Respondents.
Lackie & Dammeier, Dieter C. Dammeier and Michael A. Morguess for Petitioner and Appellant. Jones & Mayer, Gregory P. Palmer for Respondents City Council of the City of El Monte and El Monte Police Department.
After the Chief of Police of El Monte terminated petitioner and appellant Donald Luman (Luman), Luman appealed that decision to the El Monte Appeals Commission. The appeals commission conducted a hearing, after which it found true only one of the four charges against Luman. The appeals commission recommended that Luman be reinstated in his job as a police officer. The chief of police rejected the recommendation, and the El Monte City Council then conducted, in a closed session, its own de novo review of the record developed before the appeals commission. The city council rejected the appeals commissions findings and conclusions and upheld the termination of Luman. The trial court denied Lumans petition for a writ of administrative mandate.
Luman contends on appeal that the city council did not have the authority to reject the appeals commissions findings and to conduct a de novo hearing. He asserts that the city councils role, if any, was to review the penalty and not the appeals commissions findings. Luman bases his contention on former El Monte Municipal Code section 2.72.230, which was in effect at the time of the proceedings and which provided as follows: "Within ten (10) days after concluding the hearing, the Appeals Commission shall certify its findings and recommendations to the Council or other official from whose action the appeal was taken. Said official may then affirm, revoke or modify the action taken, as in his or her judgment shall seem warranted. The findings and recommendations of the Appeals Commission and any action taken by the Council or other appointing power shall be final and conclusive and shall not be reviewable in any court." In addition to his contention that section 2.72.230 did not give the city council the power to terminate him, Luman raises various due process violations and contends that holding a closed session without giving him notice of his right to an open hearing violated the Ralph M. Brown Act (Gov. Code, § 54950 et. seq.).
All further undesignated statutory references are to the former El Monte Municipal Code.
We hold that section 2.72.230 did permit the El Monte City Council to conduct a de novo hearing, and that the hearing and action was in accordance with the law and did not violate Lumans due process rights. We also hold that by failing to raise before the trial court his contention under the Ralph M. Brown Act, Luman waived that contention. We therefore affirm the judgment.
BACKGROUND
The administrative proceedings
The City of El Monte Chief of Police terminated Luman in March 2001 based on four charges: (1) use of excessive force against Ernest Duran; (2) use of excessive force against Daniel Valenzuela; (3) making a false statement or report to a supervisor; and (4) improperly removing his firearm and pointing it at another city employee. Luman appealed his termination to the El Monte Appeals Commission, and a hearing was held before a three member panel on June 4, 5, 6, and 7, 2001. In a two-to-one vote, the appeals commission issued findings of fact and conclusions of law in which it found that the charges against Luman with respect to the Ernest Duran and Daniel Valenzuela incidents were unfounded and that Luman did not make a false statement to a supervisor. But it did find that Luman violated El Monte Rule and Regulation 2.8 by removing or displaying his firearm, although the appeals commission also concluded that the incident did not constitute conduct unbecoming an officer. The appeals commission "recommended to the City Council" that a written reprimand for this violation be sent to Luman, and that Luman be reinstated.
The chief of police filed an answer to the appeals commissions findings and conclusions in which he affirmed his decision to terminate Luman. The five members of the El Monte City Council held a closed session hearing on September 18, 2001 based on the record developed before the appeals commission, and it allowed the parties to give oral argument. There is no indication in the record that notice was given to Luman of his right to have an open hearing. The city council reviewed the transcript from the hearing before the appeals commission. The city council found that Luman deliberately and intentionally struck Ernest Duran, that he punched Daniel Valenzuela in the face while he was handcuffed and slammed him into doors, that he removed his duty firearm from its holster and pointed it at a city yard employee, and that he made false statements to a deputy district attorney.
In its written decision, the city council unanimously concluded, among other things, as follows: "Taken collectively and/or individually, the magnitude of the conduct upon which the charges against Donald Luman were based constituted serious misconduct for which termination is the only appropriate penalty. The nature of the charges do not require the City of El Monte to engage in progressive discipline and constitute cause for summary discharge in the first instance without even considering Lumans prior record. When analyzed in terms of the awesome power with which a police officer is cloaked in our community, the conduct upon which the charges against Donald Luman are based constitutes just cause for the termination of his employment."
Based on its findings, the city council passed a resolution rejecting the appeals commissions findings and conclusions and reinstating the chief of polices decision to terminate Luman. "A Resolution of the City Council of the City of El Monte Certifying Findings of Fact and Conclusions of Law of the City Council With Respect to the Appeal of Donald Luman from Termination As a Police Officer for the City of El Monte Police Department," provides that "[p]ursuant to Section 2.72.230 of the El Monte Municipal Code, the Commissions findings and conclusions are advisory to the City Council." The police chief in his "answers" also said that the Commissions "decision is advisory to the City Council for a final decision."
The trial court proceedings
Luman filed a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5 that requested the trial court to set aside the decision terminating him and to reinstate him, to remove any reference to the termination or any circumstances and actions giving rise to same from his personnel file, and to issue an order entitling him to back pay, benefits, and interest. Luman did not raise the issue of the alleged failure of the City of El Monte to give him notice of his right to have an open hearing. After briefing, the trial court denied the petition and held that the findings and recommendations of the appeals commission were not binding on the city council. The trial court also held that the evidence submitted in support of the charges against Luman in the hearing before the appeals commission justified his termination from employment.
This timely appeal followed.
DISCUSSION
1. Standard of review.
The standard of review on appeal of a trial courts determination on a writ seeking administrative mandamus is the substantial evidence test. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.) Pure legal issues are subject to independent appellate review. (Stermer v. Board of Dental Examiners (2002) 95 Cal.App.4th 128, 132-133.)
2. Section 2.72.230 permits the El Monte City Council to conduct a de novo hearing.
El Monte, a general law city, developed a personnel system under Government Code section 45000. (See generally City of Orange v. San Diego County Employees Retirement Assn. (2002) 103 Cal.App.4th 45, 52 [a general law city is organized under the general law of California whereas a chartered city is organized under a charter].) The legislative body of a general law city "may provide for the appointment of a civil service commission or personnel officer, to which it may delegate such powers and duties in relation to the system as it deems advisable." (Gov. Code, § 45004.) Under the Government Code, El Monte created an appeals commission having such powers as were "delegated to it under Section 2.72.220 and this chapter." (§ 2.72.020.) The appeals commission has the power, with respect to a dismissed employee who has requested a hearing, to "then investigate the case and conduct a hearing as provided by this chapter and by the rules." (§ 2.72.210.)
Government Code section 45000 provides as follows: "It is the intent of this chapter to enable the legislative body of any city to adopt such a personnel system, merit system, or civil service system as is adaptable to the size and type of the city. The system may consist of the mere establishment of minimum standards of employment and qualifications for the various classes of employment, or of a comprehensive civil service system, as the legislative body determines for the best interests of the public service."
Hearings may be informally conducted and the rules of evidence need not apply. (§ 2.72.220.) "Within ten (10) days after concluding the hearing, the Appeals Commission shall certify its findings and recommendations to the Council or other official from whose action the appeal was taken. Said official may then affirm, revoke or modify the action taken, as in his or her judgment shall seem warranted. The findings and recommendations of the Appeals Commission and any action taken by the Council or other appointing power shall be final and conclusive and shall not be reviewable in any court." (§ 2.72.230.) Here, the parties stipulated in the trial court that the last phrase in section 2.72.230, "and shall not be reviewable in any court," should be stricken, and that the section should be interpreted as if the last sentence ends with the word "conclusive."
Title 2, Chapter 2.72 of El Montes Municipal Code concerning the citys personnel system was amended in 2003. Section 2.72.140 now contains provisions concerning the appeals commission. Those provisions are identical to former section 2.72.230 except that the last sentence now provides, in conformity with the parties stipulation in the trial court, as follows: "The findings and recommendation of the Appeals Commission and any action taken by the Council or other appointing power shall be final and conclusive."
Luman contends that under section 2.72.230, as properly interpreted, the appeals commissions findings were final and conclusive and that provision does not provide for a de novo hearing before the city council. The interpretation of a statute or an ordinance and its applicability is a question of law. (Killian v. City and County of San Francisco (1978) 77 Cal.App.3d 1, 7-8; Cerini v. City of Cloverdale (1987) 191 Cal.App.3d 1471, 1476 (Cerini).) The rules of statutory construction applicable to statutes are also applicable to local ordinances. (Aptos Seascape Corp. v. County of Santa Cruz (1982) 138 Cal.App.3d 484, 497; C-Y Development Co. v. City of Redlands (1982) 137 Cal.App.3d 926, 929.) To interpret section 2.72.230, we determine the lawmakers intent by first turning to the words themselves and giving the words their usual and ordinary meaning. (People v. Knowles (1950) 35 Cal.2d 175, 182, disapproved on another ground in People v. Beamon (1973) 8 Cal.3d 625, 637, fn. 9, and superseded by statute on another ground as stated in People v. Tribble (1971) 4 Cal.3d 826, 831; Cerini, supra, 191 Cal.App.3d at p. 1479.) "If the language is clear and unambiguous, there is no need for construction. However, if the terms of the statute or ordinance provide no definitive answer, we resort to extrinsic sources, including the ostensible objects to be achieved according to the apparent intent of the Legislature. In so doing, we avoid an interpretation that would lead to absurd consequences." (Southern Cal. Underground Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 552.)
"While the ultimate interpretation of a statute is an exercise of the judicial power [citation], when an administrative agency is charged with enforcing a particular statute, its interpretation of the statute will be accorded great respect by the courts `and will be followed if not clearly erroneous. [Citation.]" (Judson Steel Corp. v. Workers Comp. Appeals Bd. (1978) 22 Cal.3d 658, 668-669; see also 6 McQuillin, Mun. Corp., § 20.44 (3d ed., revised, 1998).) "While the rules applicable to the construction of statutes may be applied to the construction of ordinances, the courts in many instances have held that ordinances are entitled to a more reasonable construction because they are usually less carefully expressed than other laws." (6 McQuillin, Mun. Corp., § 20.39, pp. 130-131 (3d ed. supp. 2002).)
In construing an ordinance, the Court of Appeal in Cerini, supra, 191 Cal.App.3d at pages 1478-1479, held that the decision of an appeals commission or board was binding because the ordinance at issue, when given its ordinary meaning and a sensible construction, expressly so provided. In Cerini, the City of Cloverdale enacted an ordinance, 301 N.S., which provided that the decision of an appeals board "shall be binding on the employee and the City." (Id. at p. 1479.) Cerini, a police officer who had been fired, requested a hearing before the appeals board. After a hearing, the appeals board recommended that Cerinis job be restored. (Id. at p. 1475.) Nevertheless, the Cloverdale City Council voted to uphold Cerinis firing. (Ibid.) The Court of Appeal held that the city council had delegated, under 301 N.S., its authority to the appeals board, a civil service commission created under Government section 45004, and that the appeals board had the binding authority, subject to judicial review, to decide whether an employee should be fired.
Here, however, section 2.72.230 does not confer such binding authority on the appeals commission. The first sentence of section 2.72.230 provides that the appeals commission has two functions: to make "findings" and to make "recommendations." The use of the word "recommendations" shows that the appeals commissions decision is not binding. The appeals commission then must "certify" its findings and recommendations to the city council or other official from whose action the appeal was taken. The "other official," or the city council, "may then affirm, revoke or modify the action taken, as in his or her judgment shall seem warranted." (§ 2.72.230.) In affirming, revoking or modifying the "action"—i.e. the disposition of the matter—the city council is not obligated to deal explicitly with the findings or recommendations of the appeals commission or make its own findings. As provided in the last sentence of section 2.72.230, "any action taken by the Council or other appointing power shall be final and conclusive." (Italics added.) Nothing in that sentence limits the "action taken" by the city council only to a review of the ultimate disposition. Only if the city council declines to take further action after the appeals commission has issued its findings and recommendation, the appeals commissions findings and recommendations are final and conclusive. But the last sentence gives the city council the option to conduct further proceedings after the appeals commission certifies its findings and recommendations to it, in which event "any action taken" by the city council is final and conclusive. This "action" supersedes the commissions findings and recommendations.
Although the language of the ordinance is ambiguous, the interpretation by the city, which promulgated the code provision, is not unreasonable. Lumans interpretation would lead to an unreasonable situation in which the city council would be bound by commission findings that would be inconsistent with the action the counsel determines to take. Accordingly, we hold that the respondents interpretation of the citys code is appropriate.
In Lumans case, after the commissions determination, the findings and recommendations went to the chief of police, who affirmed his decision to fire Luman and "urge[d]" the city council to uphold the termination. The city council conducted a de novo review of the record and held a hearing at which the parties were allowed to give oral argument. The city council then made its own findings and conclusions and reinstated the chief of polices termination of Luman. This is the type of "action" the city council may take pursuant to the last sentence of section 2.72.230. Its decision is "final and conclusive."
3. Lumans due process rights were not violated.
Luman contends that his due process rights were violated because section 2.72.230 permitted the chief of police "to make the final decision" and because he did not receive a hearing before the body making the final decision. We do not agree that Lumans due process rights were violated.
Due process requires the adjudication of a dispute to be made by an impartial decisionmaker. (Mennig v. City Council (1978) 86 Cal.App.3d 341, 351 (Mennig); Titus v. Civil Service Com. (1982) 130 Cal.App.3d 357, 362.) In Mennig, upon which Luman relies, the City Council of Culver City terminated its chief of police based in part on a public communication he made impugning councilmembers integrity. At the chiefs hearing before the civil service commission, all of the councilmembers testified against him. The commission found, among other things, that the chief should be reinstated in a demoted position. The city council adopted its own findings and terminated the chief. The Court of Appeal held that the councilmembers were so personally "embroiled" in the dispute so "as to disqualify them from acting to increase the degree of discipline imposed by the [] commission." (Mennig, supra, at p. 351.)
Unlike in Mennig, supra, 86 Cal.App. 3d 341, the chief of police here merely testified concerning what he reviewed before deciding to terminate Luman. He did not testify as a percipient witness to any of the charges against Luman. The chief of police also did not make the final decision as to whether Luman would be terminated. The city council made the final decision. We do not have to reach the issue of the propriety of the chief of police rendering the final decision, because that is not what occurred here. It appears that the City of El Monte did not interpret section 2.72.230 to give the chief of police the final power to affirm or modify a termination. We accord "great respect" to the way in which an administrative agency enforces and interprets a particular statute. (Judson Steel Corp. v. Workers Comp. Appeals Bd., supra, 22 Cal.3d at pp. 668-669, citation omitted.)
Lumans due process rights also were not violated by the de novo hearing the city council held. Indeed, a similar process is provided under the well-established Administrative Procedure Act. (See generally Gov. Code, § 11500 et seq; California Administrative Hearing Practice (Cont. Ed. Bar, 2d ed. 2003), §§ 8.32-8.48, pp. 419-426.) Under the Administrative Procedure Act, a contested case may be heard before an administrative law judge, who submits a proposed decision to the agency. The agency may, among other things, adopt the proposed decision; reduce or otherwise mitigate the proposed penalty and adopt the balance of the proposed decision; or reject the proposed decision and decide the case upon the record, including the transcript, with or without taking additional evidence. (Gov. Code, § 11517, subd. (c)(2)(A)-(E).) This process has been held to be in accord with due process and therefore constitutional. (Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 190; Cooper v. State Bd. of Medical Examiners (1950) 35 Cal.2d 242, 246 ["participation in a decision by a board member who has read and considered the evidence, or a transcript thereof, even though he was not physically present when the evidence was produced, does not violate the requirements of due process"]; see also Noguchi v. Civil Service Com. (1986) 187 Cal.App.3d 1521, 1537-1538 [even if commission did not review record developed before hearing officer before imposing stronger discipline than hearing officer recommended, any error was cured by superior courts independent review].)
4. If notice was not given to Luman under the Ralph M. Brown Act, the city councils action is null and void .
Under the Ralph M. Brown Act (Brown Act), the general rule is that meetings of the legislative body of a local agency shall be open and public. (Gov. Code, § 54953.) The exception to this rule is for personnel matters. Thus, under Government Code section 54957, subdivision (b)(1), a local agency may hold a closed session hearing "to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session." But "[a]s a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void." (Gov. Code, § 54957, subd. (b)(2).)
Under Government Code section 54957, "where the governing body of a public entity, in a case involving employee discipline, rejects its hearing officers findings of fact and engages in its own fact finding it is conducting a `hearing on the charges against the employee for purposes of section 54957 and the employee must be given notice of the right to have the hearing conducted in open session." (Morrison v. Housing Authority of the City of Los Angeles Bd. of Comrs. (2003) 107 Cal.App.4th 860, 876; see also Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672; cf. Bollinger v. San Diego Civil Service Com. (1999) 71 Cal.App.4th 568 [when a commission merely ratified a hearing officers findings and recommendations it could do so in a closed session and employee was not entitled to notice of right to a public session].)
Luman did not raise before the trial court any contention regarding a violation of Government Code section 54957 and therefore waived the point for purposes of appeal. (See In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.)
DISPOSITION
The judgment is affirmed. Each party shall bear his or its own costs.
GRIGNON, Acting P.J. ARMSTRONG, J. we concur.