Opinion
H049856
05-05-2023
COUNTY OF SANTA CRUZ et al., Plaintiffs and Respondents, v. SANTA CRUZ COUNTY CIVIL SERVICE COMMISSION et al., Defendants; KELLY KENT, Real Party in Interest and Appellant.
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. 21CV00287
DANNER, J.
While working as a lieutenant for the Santa Cruz County Sheriff's Office (Sheriff), appellant Kelly Kent failed to act on information regarding a correctional officer's sexual misconduct against an inmate at the Santa Cruz County Jail. The Sheriff demoted Kent from lieutenant to sergeant. Kent appealed the demotion to the Santa Cruz County Civil Service Commission (Commission). The Commission held a hearing and decided that the demotion was excessive, reinstated Kent as a lieutenant, and suspended him for three days. The County of Santa Cruz (County) and the Sheriff jointly challenged the Commission's decision by filing a petition for writ of administrative mandate in the trial court. The trial court found the Commission had abused its discretion and ordered it to set aside its decision, issue a new decision "consistent with the evidence," and "focus on the evidence . . . that is consistent with demotion."
In their mandamus action, the County and Sheriff were represented by the Santa Cruz County Counsel. Unless otherwise specified, when we refer to the County, we include both the County and the Sheriff.
On appeal, Kent contends the trial court failed to apply the correct legal standards in its review of the Commission's decision. Kent maintains that the Commission's decision was reasonable and supported by substantial evidence, and the trial court improperly ordered the Commission to impose a specific penalty on reconsideration.The County counters that the trial court's decision should be affirmed because the Commission's decision involved an abuse of discretion.
The Commission did not file a notice of appeal in the trial court and has not filed any briefing in this court.
For the reasons explained below, we agree with Kent that the trial court erred in its directions to the Commission to focus on the evidence consistent with demotion. We will therefore reverse the trial court's decision. Nevertheless, we agree with the County that the Commission committed a prejudicial abuse of discretion in rendering its original decision. Consequently, we remand the matter to the trial court with directions to enter a new judgment granting the County's writ petition and directing the Commission to set aside its original decision and conduct further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL BACKGROUND
The factual background recounted here is drawn from the evidence presented at the Commission's September 2018 hearing on Kent's appeal of his demotion (hearing). In the trial court, the County lodged the Commission's administrative record under seal, pursuant to Penal Code section 832.7, which governs peace and custodial officer personnel records. (See also Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1286-1299.) Thereafter, the County filed its pleadings under seal. Kent, however, filed his opposition openly, and in it extensively discussed information contained within the administrative record. The trial court, too, filed its statement of decision openly and described evidence in the administrative record. In this court, Kent and the County have openly filed briefs that discuss information from the administrative record. Under these circumstances, we infer from Kent's actions that he does not consider the administrative record to be confidential and understand him to have waived any applicable confidentiality protections as to the administrative record. (See Berkeley Police Assn. v. City of Berkeley (2008) 167 Cal.App.4th 385, 406, fn. 22 [an "officer who is the subject of a [Police Review Commission] proceeding may, of course, choose to waive the confidentiality protection of [Penal Code] section 832.7"]; see also People v. Coddington (2000) 23 Cal.4th 529, 617, fn. 38 [overruled on unrelated grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13]; Cal. Rules of Court, rules 8.46(g)(1), 8.47(c)(1)].)
A. Factual Background Regarding Kent's Demotion
Kent began working for the Sheriff as a detention officer in 1991. After a few years, he became a deputy sheriff. Eventually, the Sheriff promoted Kent to sergeant and then lieutenant. By the summer of 2017, Kent had been working at the jail for about a year and a half and was the jail's commander. The Sheriff had not previously disciplined Kent for his job performance.
In July 2017, an inmate (Jane Doe 2) asked to speak to Correctional Officer J.B. and reported an incident involving a cellmate (Jane Doe 1) that implicated the Prison Rape Elimination Act (PREA). The allegation concerned impermissible sexual conduct of another named correctional officer against Jane Doe 1. A few minutes after receiving the report, J.B. went to Kent's office. Kent "was on his computer" at the time.
According to testimony at the hearing, the PREA is federal legislation requiring "a reporting mechanism for sexual assault as well as preventative measures and investigative procedures or suggestions to investigate cases of sexual assault in a custodial setting." The parties referred to the two inmates involved in this incident as Jane Doe 1 and Jane Doe 2. We do the same. (See Cal. Rules of Court, rule 8.90(b)(10).) In addition, we refer to the correctional officer who received the report from Jane Doe 2 by her initials to protect her privacy interests. (Ibid.)
According to a Sheriff's investigative report, when J.B. was interviewed in April 2018 about her July 2017 interaction with Kent, she said that "she immediately reported [the sexual misconduct] allegation to Lieutenant Kent that same day.... [S]he did not give Lieutenant Kent specific details but did report sexual contact between [the named correctional officer] and [Jane Doe 1]. This meeting lasted approximately ten minutes and no one else was present.... Kent directed [J.B.] to write him an email to him about this allegation."
Later, at the Commission's hearing in September 2018, J.B. described her July 2017 interaction with Kent as follows: "I think I told him something about, I'm sorry, but that I needed to talk to him. [¶] . . . [¶] I told him that Jane Doe 2 had requested to speak to me and that I took her up to booking. And that when we were in booking, she had made the allegations that I -- after I wrote in my e-mail. And that I wasn't really sure -- that I had talked to her before, but I wasn't really sure how to present -- how to take the information and that's why I was going to him." J.B. testified further that "[a]t some point in the conversation [Kent] turned around and looked at [her] and he acknowledged that he heard [her]." Kent then asked J.B. to write a memo about the situation prior to the end of her shift and send it to him. Kent also mentioned to J.B. that the "conversation was between us, obviously because of the sensitivity of the matter, [and] that he didn't want [J.B.] to go tell anybody else about it."
On cross-examination at the hearing, J.B. said the following: "I didn't give [Kent] specific details maybe when I spoke with him directly, but it was in my e-mail." J.B. also said, "I don't recall a hundred percent exactly what I said that day. It was over a year ago. I do recall that the e-mail was the specific details. So I don't recall exactly what I told him."
At the hearing, J.B. further explained that she conveyed the allegation to Kent (rather than to her direct supervisor) because, "[b]ased on the nature of this, [she] felt more comfortable telling [Kent]." J.B. also said that due to family connections, she had known Kent her "whole life" and agreed that he had encouraged her in her career and was an efficient and effective supervisor in the jail.
After speaking with Kent on that day in July 2017, J.B. went to her office and began drafting two separate memos. The first was a "smuggle alert" memo (based on some information Jane Doe 2 had provided about a drug smuggling plot) and the second described the PREA violation allegation. J.B. e-mailed the smuggle alert memo to Kent first, at 4:44 p.m. on July 17, 2017, followed by the memo about the PREA violation allegation at 5:42 p.m. The first e-mail had the word "smuggle" in its subject line and, in its body, asked Kent if he could "[p]lease review [the] alert and advice [sic] if clear to send out." The attached smuggle alert memo identified three people who might try to bring drugs into the jail. The second e-mail J.B. sent to Kent stated in its subject line, "Memo you requested," and, in its body, "Attached is the memo you requested. [¶] Sorry [unhappy-face emoji]" followed by J.B.'s name. The attachment bore the file name "confidential.docx."
J.B.'s one and one-half page memo regarding the PREA violation allegation reiterated that she had drafted it "per Lt. Kent's request." The memo first described how J.B. had received the information about a drug smuggling plot involving Jane Doe 1 and Jane Doe 2. The memo then relayed Jane Doe 2's report that two days earlier, Jane Doe 2 had witnessed the named correctional officer" 'fingering'" Jane Doe 1 and "messing around with his 'zipper.'" Near the end of her memo, J.B. wrote, "Due to the nature of the topic, I reported this immediately to Lt. Kent and I will not speak about it to anyone else."
The next day, at 12:27 p.m., Kent responded to J.B.'s first e-mail by e-mailing her and asking if she could provide additional information regarding the drug smuggling plot. Kent, however, never discussed J.B.'s second e-mail or the memo describing the potential PREA violation with her. J.B. assumed Kent had acted on the information she provided.
Later, in December 2017, J.B. told a sergeant about the July 2017 sexual misconduct allegation that J.B. had described five months earlier in the PREA memo to Kent. J.B. and the sergeant then informed a lieutenant. The Sheriff opened a criminal investigation.
During that investigation, J.B. told a detective that she may have previously reported the allegation to Kent or her immediate supervisor, "however she wasn't sure at [the] time of the interview with [the detective]." When an investigator later asked Kent and J.B.'s supervisor about J.B.'s possible report, both Kent and the supervisor "denied having received such a report."
On January 9, 2018, Kent received his employee performance evaluation from a chief deputy for the period January 12, 2017, to January 12, 2018. The chief deputy rated Kent's overall performance as "[e]xceeds job standards" and rated Kent as needing improvement only in the area of "[o]rganizational skills." The latter rating generally resulted from Kent's failure to perform certain tasks on schedule. The evaluation also noted, inter alia, that Kent "takes on a large amount of work - both through his own initiative on special projects or when he recognizes deficiencies in the corrections system. . . . During the rating period, [Kent] took on the most work over that of his peer group."
In addition to conducting a criminal investigation, the Sheriff opened an administrative (internal affairs) investigation into J.B.'s and Kent's apparent failure to report and investigate the sexual misconduct allegation when J.B. had first learned of it in July 2017. On March 22, 2018, J.B.'s attorney told an investigator that J.B. had sent an e-mail to Kent about the allegation on July 17, 2017.
During an administrative interview conducted by a Sheriff's lieutenant in April 2018, Kent said that he had not previously seen J.B.'s second July 17, 2017 e-mail.Kent also said that he did not recall having a conversation with J.B. and that if J.B. had informed him of a sexual misconduct allegation involving an officer, he "would have taken 'immediate action.'" Kent explained that July 17, 2017, was his first day back from a 20-day vacation, he "returned to over 500 work related emails to catch up on," and he "just didn't see" J.B.'s e-mail. Kent stated further that J.B." 'comes in all the time to talk about all kinds of things'" and their many conversations" 'almost blend together.' " Kent was adamant that he would have remembered and immediately acted on any report of sexual misconduct involving a correctional officer. Kent also acknowledged that he did not respond to J.B.'s 5:42 p.m. e-mail-although he had received an e-mail from another colleague (a chief deputy), sent at 5:46 p.m. that day, and responded to it at 6:06 p.m. Kent stated that he takes inmate safety and his responsibility as a mandated PREA reporter very seriously and noted that he had previously authored a memorandum on the safety of transgender inmates.
The Sheriff's Information Services Department (ISD) confirmed that J.B.'s second e-mail had been sent to Kent's e-mail inbox, but ISD could not determine whether the e-mail had been opened, deleted, or forwarded by Kent.
The Sheriff's administrative investigation found that Kent had been informed by J.B. of the sexual misconduct allegation and had failed to follow up on it. The investigation also found that Kent had neglected his duty and performed his work unsatisfactorily by failing to read and respond to J.B.'s e-mail, which in turn resulted in a months-long failure to investigate an allegation that was ultimately determined to involve criminal activity by the named correctional officer.
After the Sheriff served Kent with a notice of intent to demote him from lieutenant to sergeant, Kent requested a Skelly hearing. At that hearing, Kent "accepted responsibility for missing the email and understood the seriousness of the oversight." Thereafter, the Skelly officer (an undersheriff) met with the Sheriff (Jim Hart) and a chief deputy to discuss the matter. Hart ultimately decided to demote Kent.
Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly).
In a May 2018 notice of demotion (authored by the Skelly officer), the Sheriff informed Kent of his demotion from lieutenant to sergeant for violating the Sheriff's corrections policy concerning staff-on-inmate sexual abuse or sexual harassment (Policy 606.8) and the Sheriff's policy regarding efficiency/neglect of duty/unsatisfactory work performance (Policy 319.5.7).
The notice of demotion noted that J.B.'s e-mail made it clear that she had had a conversation with Kent and, although Kent claimed not to remember the substance of that conversation, he (Kent) had felt it important enough to direct J.B. to document in a memo the circumstances she described to him. The notice of demotion also stated that Kent had "failed to follow up with either the conversation or [J.B.'s] memo" and that "failure to follow through contributed to the possibility that [the named correctional officer's] actions could have continued during the five-month period before they were reported again to management. This possibility jeopardized the safety of the inmates in our care and custody by potentially exposing them to predatory behavior by an employee."
The notice of demotion concluded, inter alia, "Sheriff's Lieutenants are expected to fully understand Sheriff's Office policy and procedure, and the law, and to ensure compliance with those policies, procedures and laws. Inmate safety and security is a high priority. Lieutenants are required to be organized, and review memos, email and other documents for content and to promptly report information to Sheriff's Office executive management in accordance with Office policies and priorities. [¶] Vital information related to a potential crime being committed by a staff member was reported to [Kent] by an officer. The officer provided [Kent] documentation of the incident at [Kent's] direction, but [Kent] never followed up on that information. The officer's account was later found to be accurate, resulting in the arrest of a Corrections Officer."
B. Civil Service Commission Hearing
Kent appealed his demotion to the Commission. At a hearing held in September 2018, the Commission admitted documentary evidence detailing the Sheriff's investigation, the demotion, and Kent's job performance. The documents included the notice of intent to demote, the notice of demotion, the Sheriff's administrative investigation/internal affairs report, Kent's performance evaluation, a July 2018 report of the Sheriff's Serious Incident Review Board concerning the prevention and response to sexual abuse in the jails, and Kent's February 2018 memo regarding the treatment of transgender/intersex/nonbinary inmates.
Additionally, the Commission heard testimony from seven witnesses on the Sheriff's behalf, including Sheriff Hart, Correctional Officer J.B., and five other Sheriff's personnel who were involved in the supervision of Kent, the investigation, or the disciplinary process. Kent testified on his own behalf and also called two Sheriff's lieutenants as witnesses.
A chief deputy who had supervised J.B. testified that, in his experience, J.B. was a "distraction to" daily staff meetings at the jail. He did not want her at those meetings because of "the manner" in which she provided information. J.B.'s distracting manner included "her voice level, the material that she was providing, the style [in] which she would present the information, and then on occasion she would . . . go down different paths as opposed to staying focused on the path that she started on." The chief deputy acknowledged that he occasionally found J.B. difficult to track as she spoke. The chief deputy further explained that J.B. provided "valid" information "80, 90 percent" of the time, but he would have to "parse out and decipher what [J.B.] was trying to say." The chief deputy said he would not characterize J.B. as dishonest. The chief deputy also acknowledged having said that he believed this situation involved "an oversight [of J.B.'s e-mail by Kent] versus [Kent] intentionally trying to cover something up."
A lieutenant testified that Kent, among other things, had "an outstanding work ethic" and was a hard worker. The lieutenant acknowledged that he himself had inadvertently missed e-mails at work, but he had never missed an e-mail reporting a crime or a rape of an inmate. He said that the person he knew Kent to be would have acted on a report like that in this case.
A detective who investigated the reported sexual misconduct testified that Jane Doe 1 had provided information concerning a digital penetration committed by the named correctional officer and some other subsequent inappropriate touching (although the latter was never corroborated). The detective also learned of other sex-related interactions between the correctional officer and two other inmates that occurred after the July 2017 incident involving Jane Doe 1.
Sheriff Hart testified that he had "weighed everything from suspension to termination" when deciding the appropriate discipline for Kent. Hart explained his decision to demote Kent as follows: "I felt like termination was going to be too harsh and I felt like a suspension based on this case -- my confidence, unfortunately, in [Kent] is broken. I don't have confidence that [Kent] will handle a significant case if it comes up or if there's a concern that it could not be acted on. [¶] And the way that I saw him try to place blame on others like Correctional Officer [J.B.], instead of taking responsibility for it, just - I'm concerned that he's been compromised as a manager. And so ultimately I settled on the demotion." Hart explained further that he relies on his nine, well-paid lieutenants "to be good risk managers and make sure that these facilities are running properly." In addition, Hart said that in making his decision he had accounted for the fact that Kent had had no prior discipline.
That Kent had claimed he did not intentionally neglect J.B.'s e-mail did not make a difference to Sheriff Hart because Hart relied on Kent "to be aware of situations like this," regardless of his workload. Hart explained that "when you find out a correctional officer is having sex with an inmate, those are the circumstances where you drop everything you have that you're doing and you take immediate action to make sure that the inmate's protected and that there's separation and that the case is properly investigated." Hart described this as a "very, very critical case that was ignored for a lengthy period of time. And it cost us. It cost us with credibility with our own line staff who had reported and [was] wondering what the administration was going to do, it's cost us with the community and the Justice in Gender Task Force and a lot of advocacy groups that work with women in custody. And it's really reduced their confidence in our ability to make sure that women are safe in our custody facilities. [¶] This is . . . much more than a missed e-mail.... [I]t's not about a missed e-mail. [Kent] missed the whole thing. He missed the conversation, he missed the e-mail. This ultimately led to a woman being victimized more over the next six months. [¶] . . . There's a lot of things that should have happened that didn't. [¶] . . . I don't know why [Kent] ignored it, but he missed this one, and it[']s had a significant impact on many people."
When a commissioner asked Sheriff Hart if he believed that Kent was "intentionally trying to deceive" him, his command staff, or the investigation, Hart said: "I think [Kent] is crafting a story to fit his narrative for this. And he started out initially not knowing anything about it, and then it went on to, well, maybe I received it, . . . but I missed it, I was super busy, I had a whole bunch of e-mails, I was on vacation for 20 days, 500 e-mails piled up. And then it went to blaming others. And so there's . . . been an overall sort of a changing of the story."
The chief deputy who was involved in the discussion about Kent's discipline testified similarly to Sheriff Hart. The chief deputy said that the executive management team considered "all kinds of potential discipline" and "wanted to select an option that would ensure that something like this wouldn't happen again, [and] that Lieutenant Kent wouldn't be in a position to miss something of such critical importance or fail to act on it because the stakes were so high." The chief deputy explained: "[W]e're aware of progressive discipline, and there are times when progressive discipline fits and there's time when . . . it doesn't fit. There [are] times when the act or fail[ure] to act is so significant that it doesn't apply. And we felt that this was one of those." The chief deputy further explained: "[I]f this was an event that didn't result in subsequent sexual acts from a correctional officer to an inmate and the loss of credibility to our community and exposure to claims, yeah, we wouldn't demote.... If it was something not as significant, yeah, we wouldn't be here today because people make mistakes."
The two lieutenants called by Kent testified about the overwhelming workload of the jail lieutenants and the large number of e-mails they received each week. The lieutenants also variously described their interactions with J.B. For example, one of the lieutenants testified that there were times that J.B. "[came] up with really good information," but there were "other times where [J.B.] seem[ed] to get involved in [] the rumor mill." The lieutenant also said that he "had to wade through [] the information" J.B. provided, and "there were times where she would inundate [the lieutenant with information] in the morning."
The other lieutenant described J.B. as "a person that's hard to follow. She has a lot of information.... So you have to take your time in listening to her and try to get the information that's relevant to what you're trying to glean from her conversation." At times the lieutenant "would just tune [J.B.] out," and the chief deputy had directed him "not to have [J.B.] at [their] morning meetings" "[b]ecause of all the information that she had."
Both lieutenants described Kent as a hard worker who cared about the Sheriff's office, its staff, and the inmates. The lieutenants believed that Kent would have acted on an allegation of sexual misconduct had he been aware of it. They also believed that incidents of inappropriate sexual contact between jail staff and inmates had occurred previously at the jail.
Kent testified about his work on various projects during his time as a jail lieutenant, including an on-demand hot water project, an inmate computer tablet program, a hepatitis-A-reduction initiative, a ban on the use of "disciplinary meatloaf," a facility renovation project, an effort to increase the use of cameras in the jail, an effort to reduce escapes from the jail's kitchen, a real-time electronic inmate-monitoring system, and a transgender, intersex, or non-binary inmate housing plan. Kent said that in working on some of these projects, he was trying to "forecast risk to the Sheriff's Office," "give some dignity to some of the jail population," make the jail safer, and reduce the number of incident reports.
Kent testified that the jail was short one lieutenant in the summer of 2017, and he had worked 162 extra hours that year because he "was concerned about the jail . . . [and] the inmates." When Kent told the chief deputy that he and the two other jail lieutenants were "underwater," the chief deputy responded by saying, "Make do." Kent said he used to receive 200 to 300 "or more" e-mails per week and, given the volume and his lack of time, it was likely that he would miss e-mails. He acknowledged on cross-examination that about one quarter of his e-mails required his attention and response and, if he received "an e-mail from a member of the Sheriff's Office staff, that would be something [he]'d want to look at." Kent also acknowledged that the subject lines of J.B.'s two emails would have commanded his attention, but he would have prioritized the first e-mail because it had the word" 'smuggle'" in the subject line.
Kent stated that he had been surprised by the chief deputy's evaluation of his organizational skills as needing improvement. Kent believed that that rating was "more a reflection of the amount of work" he had to complete and his "time constraints." Kent said that after his performance evaluation, the chief deputy gave him additional projects and tasks.
Kent testified that he had advocated for J.B. professionally. In addition, Kent said he found it "hard to track what [J.B.] says" and "exactly where she was going with all her information sometimes."
Kent testified that he "d[id]n't remember a conversation with [J.B.] about" inappropriate touching between the named correctional officer and an inmate at the jail. According to Kent, if J.B. had provided such information to him, he "wouldn't have just said 'write a memo,' and then go[ne] on home." Kent testified further, "As the jail lieutenant, I have a responsibility to act quickly and notify the chief, . . . preserve [the] crime scene, . . . [and] make sure the victim is safe [and] there's medical attention for the victim. There's a whole litany of things that I have responsibility to do. And I wouldn't have just said," 'Hey, write me a memo and I'll deal with it later' if I heard it." He acknowledged that he likely would have told J.B. to write a memo if she was "rambling" and he "couldn't make out what she was saying once again."
Kent testified that he "d[id]n't remember ever opening a memo or an e-mail about" inappropriate conduct by the named correctional officer. If he had read an e-mail about that, he would have acted on it immediately. Kent said that after he found out about J.B.'s memo, he apologized to the chief deputy and acknowledged dropping the ball. Later, after Kent was demoted, he apologized to J.B. and told her that she "did everything right" and it was his fault. Kent described his mistake as "missing the information from [J.B.] and missing the e-mail." He explained, "I was overwhelmed with work .... [I]t wasn't that I heard her, it was that I didn't hear her. I would have acted. I cared about the inmates [at the jail]. I cared about my job. I loved my job [at the jail], you know? So at the end of the day, I'll accept responsibility for what I did."
Kent testified further, "I don't think it's just a missed e-mail. I don't think that at all.... I knew what my responsibility was [at the jail]; I care a great deal about it .... I tried to help everybody [at the jail]." Kent said he believed he could still be a good lieutenant. He also conceded that "receiving and responding to information regarding critical incidents" was "an important part of being a sheriff's lieutenant" and he had failed in that respect.
C. Civil Service Commission Decision
In a written decision dated September 28, 2018 (September 2018 decision or original decision), the three-person Commission found unanimously, based on a preponderance of evidence, that: "1. There is no doubt that [Kent] failed in his duties as the 'Jail Commander' relative to his oversight of pertinent and critical information regarding potential criminal conduct by one of his subordinates. [¶] 2. The disciplinary action (demotion) imposed was improperly based on the consequences of the failures rather than the failures themselves. [¶] 3. Under the concept of progressive discipline and the facts of this case, the demotion was excessive and a lower level of discipline is appropriate." The Commission did not detail the "fail[ures]" that it believed Kent had committed in his duties as jail commander.
The Commission ordered that Kent be reinstated to his previous position of Sheriff's lieutenant without back pay and serve a three-day suspension without pay.
Thereafter, the Sheriff requested that the Commission reconsider its September 2018 decision, arguing that the Commission had exceeded its authority because its findings were not supported by the evidence. Kent opposed the Sheriff's request. In December 2018, the Commission issued a "reconsideration decision" (capitalization omitted) in which two commissioners reaffirmed their prior findings. A dissenting commissioner, however, found that "[t]here is just cause to demote Mr. Kent and the evidence supports the level of discipline."
As a result of this second, non-unanimous vote, the Commission ordered that the Sheriff's original disciplinary action of demotion "stands" and its September 2018 decision was superseded. Kent requested reconsideration of the Commission's reconsideration decision, but the Commission did not consider Kent's request.
D. Trial Court Proceedings on Kent's Administrative Mandate Petition
In May 2019, Kent challenged the Commission's reconsideration decision in a mandamus proceeding in the Santa Cruz County Superior Court (No. 19CV01471). In December 2020, the superior court granted Kent's petition for a writ of mandate and ordered that the Commission's reconsideration decision be set aside. The superior court concluded that the Commission had exceeded its authority by granting the County's request for reconsideration and reconsidering the September 2018 decision on an issue not specified in the County's personnel regulations.
In accordance with the superior court's order, on April 23, 2021, the Commission set aside its reconsideration decision and directed that its "September 28, 2018 decision reinstating Kelly Kent to a Sheriff's Lieutenant stands."
E. Trial Court Proceedings on the County's Administrative Mandate Petition
In February 2021, the County filed a petition for writ of administrative mandate in the trial court under Code of Civil Procedure section 1094.5 (petition). The County asked the trial court to direct the Commission to set aside its original September 2018 decision and "issue a new [d]ecision with new findings consistent with the evidence presented in the administrative hearing and effectuate Kent's demotion from Lieutenant to Sergeant."
Unspecified statutory references are to the Code of Civil Procedure.
The petition alleged that the Commission's September 2018 decision "represents a manifest abuse of discretion because it is not supported by the findings; the findings make conclusions that are not supported by substantial evidence; it represents a disregard for the importance of Sheriff's Lieutenants to fully understand Sheriff's Office policy and procedure, and the law, and to ensure compliance with those policies, procedures and laws; and for other reasons as set forth herein; and it disregards a Lieutenant's responsibility to protect inmates' safety and security."
The County noted that Sheriff Hart had testified about his loss of confidence in Kent as a manager and that Kent's compromised position "directly impact[s] the public's trust." The County further asserted that there was "no direct evidence to support the finding that the demotion was 'improperly based on the consequences of the failures rather than the failures themselves.'" The County also asserted the Commission's statement regarding the demotion being excessive "is not supported by evidence or the law," and the order to reinstate Kent "as a lieutenant is [an] abuse of discretion as a matter of law."
Kent, as real party in interest, answered the petition. After the County lodged the administrative record in the trial court, the County and Kent filed briefing in support of their respective positions.
The Commission joined Kent in requesting that the September 2018 decision be upheld but did not file any pleadings in the trial court.
On November 12, 2021, the trial court heard oral argument on the petition. That same day, the trial court generated a minute order issuing a peremptory writ of administrative mandamus and ordering the Commission to "set aside and nullify its September 2018 Decision and issue a new ruling with a focus on the evidence presented at the administrative hearing." In addition, the minute order stated: "The Court finds that a demotion is more appropriate than a suspension and orders a stay in the implementation of the Commission's reinstatement of Kelly Kent."
Kent requested that the trial court issue a written statement of decision. In response, on January 21, 2022, the County submitted a proposed statement of decision.
On February 1, 2022, the trial court adopted the County's proposed statement of decision as its final decision (statement of decision), noting that it had not otherwise received any objection or response.
In its statement of decision, the trial court states, inter alia: "As to whether the Commission abused its discretion in finding that the demotion imposed was improperly based on the consequences of the failures rather than the failures themselves, the Court holds that this finding is not supported by substantial evidence in the record." The court also said it "believes that the Commission did not consider all of the evidence that was presented." "As to the findings under the facts of this case that the demotion was excessive and a lower level of discipline is appropriate, the Court believes these findings are not supported by substantial evidence in the record and that a reasonable person could disagree with the Commission's finding."
The trial court ultimately concluded: "For the reasons set forth above, the Commission is found to have abused its discretion. The Commission is ordered to set aside, nullify and render invalid its Decision dated September 28, 2018 and to issue a new decision consistent with the evidence that was actually presented at the hearing and focus on the evidence presented regarding this incident that is consistent with demotion." In addition, the court ordered the Commission to pay costs and stay implementation of its decision reinstating Kent. The court also denied "Kent's request to amend the record to include evidence of misconduct of [J.B.] which came after the Commission's September 2018 decision was made."
On February 4, 2022, Kent objected to the trial court's adoption of the County's proposed statement of decision without first affording him the full 15 days to file any objections under California Rules of Court, rule 3.1590(g). Kent also filed his written objections.
On March 4, 2022, Kent filed a notice of appeal from a "[j]udgment after court trial" entered on February 1, 2022 (the date of the statement of decision).
The County had served Kent and the Commission, by mail, a notice of entry of judgment or order on February 2, 2022. That notice attached a copy of the statement of decision.
On March 25, 2022, the trial court held a hearing on Kent's objections to the statement of decision. Although the court conceded that it had prematurely issued its statement of decision, it decided to eschew consideration of Kent's objections and let the matter proceed on appeal. The trial court did not modify its statement of decision.
Kent does not make any argument in this appeal challenging the trial court's failure to address his objections to the statement of decision.
II. DISCUSSION
Kent asserts three reasons why we should reverse the trial court and let the Commission's September 2018 decision stand. Kent contends the trial court applied an incorrect legal standard when finding "that 'a reasonable person could disagree with the Commission's'" finding that his demotion was excessive. He further contends the Commission did not abuse its discretion when it reduced his demotion to a three-day suspension. Kent lastly asserts that the trial court improperly ordered the Commission to impose a specific penalty when ordering the Commission to issue a new decision and" 'focus on the evidence . . . that is consistent with demotion.'" (Italics omitted.)
We are satisfied we have jurisdiction over this appeal, notwithstanding that the trial court ordered the Commission to reconsider Kent's appeal of his demotion and issue a new decision. "The existence of an appealable judgment is a jurisdictional prerequisite to an appeal." (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) Having independently reviewed the record on appeal, we are satisfied that the trial court's February 1, 2022 statement of decision determined the rights of the parties and disposed of all issues in this case, constituting a final and appealable judgment. (See Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1115; Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698; § 904.1, subd. (a); cf. County of Los Angeles v. Los Angeles County Civil Service Com. (2018) 22 Cal.App.5th 174, 185-188.)
The County counters that the trial court did not abuse its discretion when it granted the County's petition and ordered the Commission to issue a new decision with a focus on the evidence presented at the hearing. The County asserts further that the Commission's September 2018 decision was an exceptional abuse of discretion and no reasonable mind can determine that the reduction from a demotion to a suspension was proper.
After reviewing the parties briefing, we requested supplemental letter briefs addressing the following question: "If any of the findings stated in the Santa Cruz County Civil Service Commission's September 28, 2018 decision reflects a misunderstanding of the correct legal standard, would that error amount to a prejudicial abuse of discretion by the Commission under Code of Civil Procedure section 1094.5, such that the appropriate remedy would be reversal of the Commission's decision and remand for reconsideration of all findings and orders?"
Having received and reviewed the parties' supplemental briefs, we consider the issues before us.
A. Standard of Review and Relevant Legal Principles
We begin by addressing our standard of review in this appeal by Kent (the employee) from a trial court order granting the County's petition under section 1094.5 and setting aside a Commission decision that favored Kent. As discussed ante (see pt. I.D), in the trial court, the County challenged the Commission's findings that Kent's demotion was improperly based on the consequences of his failures rather than the failures themselves and that the punishment was excessive given the facts. The trial court agreed with the County, concluding that both of the Commission's findings were not supported by substantial evidence and thus amounted to an abuse of discretion.
In its decision, the Commission made three findings. In its first finding, the Commission broadly described Kent as having "failed in his duties as the 'Jail Commander' relative to his oversight of pertinent and critical information regarding potential criminal conduct by one of his subordinates." Neither party makes any specific argument on appeal directed at this finding. In its second finding, the Commission decided that the Sherriff's decision to demote Kent was "improperly based on the consequences of the failures rather than the failures themselves." The Commission's third finding was that the "demotion was excessive and a lower level of discipline is appropriate." Only the latter two findings are directly at issue in this appeal.
When considering a public employer's petition for administrative mandamus challenging an administrative body's decision regarding employee discipline, a court applies a substantial evidence standard of review to findings of fact. (Kolender v. San Diego County Civil Service Com. (2007) 149 Cal.App.4th 464, 470-471 (Kolender II).) "At the trial court level, the petitioner in an administrative mandamus proceeding has the burden of proving that the agency's decision was invalid and should be set aside, because it is presumed that the agency regularly performed its official duty." (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 335.)
Although administrative mandate proceedings require an independent judgment standard of review by the trial court if the administrative decision involves a fundamental vested right (see Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 926; Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313-314, 318), the independent judgment standard does not apply in a case like this one where the petition was filed in the trial court by the employer (i.e., the County) rather than the employee."' "It is well-established that an employer's right to discipline or manage its employees . . . is not a fundamental vested right entitling the employer to have a trial court exercise its independent judgment on the evidence." '" (Kolender II, supra, 149 Cal.App.4th at p. 470.)
"Regardless of the nature of the right involved or the standard of judicial review applied in the trial court, an appellate court reviewing the superior court's administrative mandamus decision always applies a substantial evidence standard. [Citations.] But depending on whether the trial court exercised independent judgment or applied the substantial evidence test, the appellate court will review the record to determine whether either the trial court's judgment or the agency's findings, respectively, are supported by substantial evidence. [Citation.] If a fundamental vested right was involved and the trial court therefore exercised independent judgment, it is the trial court's judgment that is the subject of appellate court review. [Citations.] On the other hand, if the superior court properly applied substantial evidence review because no fundamental vested right was involved, then the appellate court's function is identical to that of the trial court. It reviews the administrative record to determine whether the agency's findings were supported by substantial evidence, resolving all conflicts in the evidence and drawing all inferences in support of them." (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1058.)
In a case such as this one, "[o]n appeal, we do not 'undertak[e] a review of the trial court's findings or conclusions. Instead, "we review the matter without reference to the trial court's actions. In mandamus actions, the trial court and appellate court perform the same function." '" (Jefferson Street Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175, 1197 (Jefferson).) Hence, "[w]here . . . a trial court's review is limited to examining the administrative record to determine if an agency's decision is supported by substantial evidence, 'the appellate court's function is identical to that of the superior court: It will review the administrative record to determine whether the agency findings were supported by substantial evidence, rather than limiting review to the trial court findings." (San Diego County Water Authority v. Metropolitan Water Dist. of Southern California (2017) 12 Cal.App.5th 1124, 1145 (San Diego); see also County of Santa Clara v. Willis (1986) 179 Cal.App.3d 1240, 1250 (Willis).)
"Under the substantial evidence rule, reasonable doubts on conflicting evidence must be resolved in favor of the factual resolution by the Commission." (Lowe v. Civil Service Com. (1985) 164 Cal.App.3d 667, 676 (Lowe).)"' "[A]n appellate court must uphold administrative findings unless the findings are so lacking in evidentiary support as to render them unreasonable. [Citations.] A reviewing court will not uphold a finding based on evidence which is inherently improbable [citation], or a finding based upon evidence which is irrelevant to the issues. [Citations.]" [Citation.] The reviewing court, like the trial court, may not reweigh the evidence, and is "bound to consider the facts in the light most favorable to the [Commission], giving it every reasonable inference and resolving all conflicts in its favor." '" (Hoitt v. Department of Rehabilitation (2012) 207 Cal.App.4th 513, 522.)
There is a presumption that the Commission's findings are supported by substantial evidence, and the County here has the burden of demonstrating otherwise. (See City of Hesperia v. Lake Arrowhead Community Services Dist. (2019) 37 Cal.App.5th 734, 761 [explaining that the plaintiff-respondent city "must establish that the administrative record does not contain substantial evidence to support the Board's finding"]; id. at p. 762 [and recognizing the difficulty of "prov[ing] a negative-namely, that the record does not contain substantial evidence"].)
In addition to any substantial evidence review, "[a]n appellate court independently determines whether the agency prejudicially abused its discretion by failing to proceed in the manner required by law, such as by failing to comply with required procedures, applying an incorrect legal standard, or committing some other error of law." (Pedro v. City of Los Angeles (2014) 229 Cal.App.4th 87, 99; see also Willis, supra, 179 Cal.App.3d at p. 1251.)
" '" 'The penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated.... Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed.'" '" (Cate v. State Personnel Bd. (2012) 204 Cal.App.4th 270, 283-284 (Cate).) "If reasonable minds may differ as to the propriety of the penalty imposed, there has been no abuse of discretion. [Citation.] It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown." (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 46-47.) In conducting our review of "the administrative agency's determination of penalty," we give "no deference to the trial court's decision on the issue" and focus exclusively on the Commission's decision. (Cate, at p. 284; see also Deegan, at p. 46.)
"While an administrative agency has broad discretion in the imposition of penalty or discipline, that discretion is not unlimited. In considering whether an abuse of discretion occurred in the discipline of a public employee, the overriding consideration is the extent to which the employee's conduct resulted in, or if repeated is likely to result in, harm to the public service. Other factors include the circumstances surrounding the misconduct and the likelihood of its recurrence." (Warren v. State Personnel Bd. (1979) 94 Cal.App.3d 95, 107-108 (Warren).)
B. Analysis
Kent argues that the trial court applied an incorrect legal standard when considering the disciplinary penalty imposed by the Commission. He argues that when the court said in its statement of decision that it believed" 'a reasonable person could disagree with the Commission's'" finding regarding the excessive nature of his demotion and the appropriateness of a lesser discipline, it meant "that reasonable minds could have made the same determination as the unanimous Commission." We need not address this argument because the statement that Kent challenges is not pertinent to our consideration of this appeal. As explained ante (pt. II.A), irrespective of whether the trial court applied an incorrect legal standard when finding that the Commission had abused its discretion, in this appeal we do not" 'undertak[e] a review of the trial court's findings or conclusions.'" (Jefferson, supra, 236 Cal.App.4th at p. 1197.) Thus, any error by the trial court regarding the applicable legal standard is not relevant to our own review of the administrative record.
As to the question whether the County has demonstrated that the Commission's findings are not supported by substantial evidence or involve legal error, we first examine the Commission's finding that the Sheriff's demotion of Kent "was improperly based on the consequences of the failures rather than the failures themselves." As a threshold matter, we note that the County frames this question as one that involves an appellate determination of whether the trial court abused its discretion by concluding that the Commission's finding was not supported by substantial evidence. The County's description of the question before us misses the mark.
As explained ante (pt. II.A), our task in this appeal is to review the administrative record to determine whether the Commission's findings are supported by substantial evidence or the Commission applied an incorrect legal standard. We do not otherwise decide whether the trial court may have abused its discretion when making its decision on the County's petition. (See San Diego, supra, 12 Cal.App.5th at p. 1145.)
Nevertheless, we agree with the County that the Commission applied an incorrect legal standard in finding that Kent's demotion was" 'improper[]'" because it was based on the" 'consequences of [Kent's] failures'" rather than his" 'failures themselves.'" The Sheriff was legally entitled to consider the consequences of Kent's failures as well as his failures themselves in reaching his decision to demote Kent.
Precedent makes clear that it is appropriate for an employer to consider "the extent to which the employee's conduct resulted in, or if repeated is likely to result in, harm to the public service." (Warren, supra, 94 Cal.App.3d at p. 108; Skelly, supra, 15 Cal.3d at p. 218.) In addition, "[c]ase law . . . establish[es] that peace officers may be held to higher standards of conduct than civilian employees." (Cate, supra, 204 Cal.App.4th at p. 285.) Thus, Sheriff Hart could rightly rely on the harm that followed in the wake of Kent's failure "to [] overs[ee] pertinent and critical information regarding potential criminal conduct by one of his subordinates."
"The safety and physical integrity of inmates is one of the [Sheriff's] office's paramount responsibilities." (Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 722.) By failing to discern and act on the information J.B. provided, Kent fell short in his duty to protect an inmate from victimization and, in Sheriff Hart's opinion, rendered Kent "compromised as a manager." "The public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability." (County of Santa Cruz v. Civil Service Commission of Santa Cruz (2009) 171 Cal.App.4th 1577, 1582; see also County of Los Angeles v. Civil Service Com. of County of Los Angeles (2019) 40 Cal.App.5th 871, 880.)
For these reasons, we conclude that the Commission's finding that the Sheriff's demotion decision "was improperly based on the consequences" of Kent's failures misstates the law, and the Commission thus abused its discretion.
Having decided that the Commission committed legal error in rendering this finding, we must determine whether that error amounts to a prejudicial abuse of discretion under section 1094.5. For this court to order that the Commission's September 2018 decision be set aside given the error in rendering this finding, the County must demonstrate that there is a reasonable probability of a different outcome in the absence of that error. (See Li v. Superior Court (2021) 69 Cal.App.5th 836, 865; see also Fisher v. State Personnel Bd. (2018) 25 Cal.App.5th 1, 20 ["Reversible error requires demonstration of prejudice arising from the reasonable probability the party 'would have obtained a better outcome' in the absence of the error"]; Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 270, fn. 32.)
In its supplemental briefing, the County contends that the Commission's misunderstanding of the correct legal standard requires a reversal of the Commission's decision and a remand for reconsideration of all the evidence. The County asserts that "it appears that the Commission either did not consider or simply disregarded the fact that Kent's actions harmed the public service. The Commission would not have reinstated Kent if it took into account the public's welfare and the Sheriff's obligation to preserve the public's trust."
On the other hand, Kent contends that any misunderstanding of the correct legal standard by the Commission does not amount to a prejudicial abuse of discretion. He argues that the record demonstrates the Commission's decision that his demotion was excessive "does not amount to 'a manifest abuse of discretion'" and the Commission's finding that the demotion was excessive under" 'the concept of progressive discipline and the facts of this case'" "stands on its own, unaffected by any imprecise articulation of the correct legal standard." Kent asserts further that "even assuming arguendo that the Commission's . . . finding imprecisely articulates the correct legal standard by separating the misconduct from what followed, it is not reasonably probable that the Commission's ultimate decision would be different."
Under the circumstances of this case, we are persuaded that there is a reasonable probability of a different outcome more favorable to the County if the Commission had considered that Kent's demotion could properly be based on both his "failures themselves" and "the consequences of [his] failures." The record demonstrates that the consequences of Kent's failure were significant and included the continued victimization of inmates and the impairment of Kent's ability to perform in a managerial role as a lieutenant going forward (see pt. I.A. &B, ante). Contrary to Kent's argument, the Commission's finding about excessive punishment does not stand alone from its (legally incorrect) finding that "[t]he disciplinary action (demotion) imposed was improperly based on the consequences of the failures rather than the failures themselves." The finding on punishment references "the facts of this case" as a reason for deciding that Kent's demotion was excessive. By stating that the demotion "was improperly based on the consequences of the failures rather than the failures themselves," the Commission impliedly expressed that "the facts" it considered in making its finding on excessiveness did not necessarily include the facts in the record regarding such consequences. That the disregarded consequences were significant heightens the reasonable probability of a different outcome had the Commission considered them.
We are mindful that the Commission generally has "broad discretion in the imposition of penalty or discipline." (Warren, supra, 94 Cal.App.3d at p. 107.) Moreover, we acknowledge that the Commission's finding on Kent's misconduct does not specify the actions or omissions that the Commission believed showed-without "doubt"-that Kent "failed in his duties as the 'Jail Commander.'" We also acknowledge that, in this appeal, the parties dispute whether the administrative record supports that J.B., in fact, orally reported the sexual misconduct allegation to Kent when she visited his office in July 2017. Kent contends his misconduct was limited to failing to respond to J.B.'s second e-mail; the County argues that it encompasses his failure to react appropriately both to J.B.'s oral report of the sexual abuse and her follow-up e-mail.
Regardless of the exact breadth of Kent's failures, his failures and their significant consequences are so interwoven that we decide there is a reasonable probability of a different outcome had the Commission properly considered those consequences.
In reaching our conclusion, we do not express any opinion on whether substantial evidence in this record supports the Commission's finding that Kent's demotion was excessive and a lower level of discipline is appropriate. We decide only that the Commission committed a prejudicial abuse of discretion in rendering its finding that the "[t]he disciplinary action (demotion) imposed was improperly based on the consequences of the failures rather than the failures themselves" and that that error requires us to direct the trial court to order the Commission to set aside its decision and issue a new one.
Because our conclusion compels the Commission to reconsider this case, we must also consider Kent's claim that the trial court improperly ordered the Commission to impose a specific penalty on reconsideration by directing the Commission to" 'focus on the evidence presented regarding this incident that is consistent with demotion.'" (Italics omitted.)
Section 1094.5, subdivision (f), provides guidance to courts regarding the scope of any reconsideration order: "The court shall enter judgment either commanding respondent to set aside the order or decision, or denying the writ. Where the judgment commands that the order or decision be set aside, it may order the reconsideration of the case in light of the court's opinion and judgment and may order respondent to take such further action as is specially enjoined upon it by law, but the judgment shall not limit or control in any way the discretion legally vested in the respondent." (§ 1094.5, subd. (f).)
As one Court of Appeal has explained, a reconsideration order must be constrained: "An administrative agency has very broad discretion in determining the proper discipline or penalty to be imposed. Judicial review of such determinations is very limited. [Citation.] The administrative agency also presumably has expertise in such matters, and if permitted to exercise its discretion fully, may well impose a discipline or penalty which would be imaginative and workable and which would not constitute an abuse of discretion upon subsequent review under the applicable standard of judicial review. We tend to agree . . . therefore that it is bad practice for a trial court in remanding a matter to the administrative agency for reconsideration in light of the sustaining of only a portion of the agency's findings, to attempt to specify in advance that the court would consider certain penalties or discipline to be an abuse of discretion. Such a short-circuiting of normal procedures could, as a practical matter, inhibit the agency from fully applying its expertise to the issue. There is also a great danger that in attempting to spell out the limits of discretion in advance, the court may define that discretion too narrowly and thus encroach on agency discretion. Thus under normal circumstances, when the court remands the matter to the administrative agency, the less said the better." (Kirkpatrick v. Civil Service Com. (1981) 116 Cal.App.3d 930, 933934; see also Richardson v. Board of Supervisors (1988) 203 Cal.App.3d 486, 495.)
The County makes no argument that the trial court properly ordered the Commission to "focus on the evidence . . . that is consistent with demotion" when issuing a new decision. Instead, the County generally urges us to "find that the trial court did not abuse its discretion [when] remanding the action back to the Commission to consider all of the evidence."
Under these circumstances, based on section 1094.5, subdivision (f), and Kirkpatrick, we conclude that the trial court erred by ordering the Commission to "focus on the evidence presented regarding this incident that is consistent with demotion." Accordingly, in our disposition, we reverse the trial court's judgment. We will also direct the trial court to enter a new judgment ordering the Santa Cruz County Civil Service Commission to conduct further proceedings in this matter consistent with this opinion.
III. DISPOSITION
The judgment of the trial court granting the petition for writ of administrative mandate is reversed insofar as it directed the Santa Cruz County Civil Service Commission to "focus on the evidence presented regarding this incident that is consistent with demotion" when the Commission issues a new decision. We remand the matter and direct the trial court to enter a new, modified judgment granting the writ petition and directing the Santa Cruz County Civil Service Commission to set aside its September 28, 2018 decision and conduct further proceedings in a manner consistent with this opinion. In all other respects, including the award of costs and a stay, the judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
WE CONCUR: Bamattre-Manoukian, Acting P.J., Wilson, J.