Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Super. Ct. No. INC058313, H. Morgan Dougherty, Judge.
Jackson, De Marco, Tidus, Petersen, Peckenpaugh, and Robert W. Krause for Appellant.
Meyers, Nave, Riback, Silver & Wilson, Joseph M. Quinn, Ariana Mohit, and Ruben Duran, City Attorney, for Respondents.
OPINION
McKINSTER J.
Appellant David Gallardo, formerly a police sergeant for respondent, City of Desert Hot Springs, petitioned for review of an administrative decision terminating him from his employment. The trial court denied the petition for administrative mandamus, and he now appeals. We affirm.
FACTS AND PROCEDURAL HISTORY
On the afternoon of April 23, 2003, two off-duty City of Desert Hot Springs police officers, Norman “Skip” Lindstrom and Larry Essex, were in Lindstrom’s garage working on their motorcycles. They intended to ride their motorcycles on a trip the following day. During the afternoon, both Lindstrom and Essex were drinking from an 18-pack of beer. Between 2:00 and 5:30 p.m., Lindstrom drank four to five beers. He did not recall whether he drank any rum. Essex had six or seven beers and a sip of rum.
At some point, a third friend, Al Wagner, also arrived. The three motorcyclists mounted their machines and went to get gasoline.
At approximately 5:30 p.m., Debra Pauley was driving home from work when she saw three motorcycles coming toward her. Two motorcycles were in the lead and the third was further back. The two front motorcycles slowed down and moved to their right; Pauley also moved to her right. The third motorcyclist, Lindstrom, was driving much faster than the other two, and stayed near the center of the unmarked roadway. Pauley pulled over almost to the curb on her right and stopped. At the last instant, Lindstrom’s motorcycle side-swiped Pauley’s car on the driver’s side. The motorcycle and the rider flew up into the air and crashed in the road behind Pauley’s car. Pauley’s car was damaged on the driver’s side fender, bumper, tire, door and windshield. Pauley immediately dialed 911.
Officer Million of the Desert Hot Springs Police Department (DHSPD) arrived on the scene first. Million did not ask Lindstrom for his license, because he said he could easily look it up in the DHSPD records. It was standard operating procedure for officers investigating a vehicle accident to check the license and insurance of all drivers. In this case, however, Million and Gallardo checked only Pauley’s license and insurance information. No one checked Lindstrom’s license or insurance information at the scene, even though Pauley specifically requested it. As it turned out, Lindstrom was neither properly licensed to drive a motorcycle nor insured.
Gallardo, who was Million’s supervisor, arrived soon after Million. Million checked Pauley’s license and insurance while Gallardo checked on Lindstrom, who was sitting by the side of the road. Lindstrom was scraped and bleeding.
Gallardo had been at the DHSPD office when the radio call came in concerning the motorcycle and car accident. At that time, Gallardo did not know that any off-duty officers of DHSPD were involved in the accident. On his way to the scene, however, he heard radio traffic that alerted him that Lindstrom was involved. He arrived at the scene and saw Lindstrom’s motorcycle in the middle of the street. It “looked pretty bad.” Lindstrom was scraped and bleeding, and complained of pain in his leg. Gallardo testified that he did not need anyone to report to him that Lindstrom had been hurt: “Absolutely not. That was apparent.”
According to policy for this type of accident, Gallardo notified the lieutenant, James Steimer. Gallardo had forgotten his own mobile phone, and borrowed Essex’s phone to call Steimer at home. Gallardo testified that, at the time he made this telephone call, he had not yet noticed alcohol on Lindstrom, nor had Million told him about smelling alcohol on Lindstrom’s breath, so Gallardo did not mention anything about alcohol to Steimer. Gallardo and Steimer agreed that DHSPD would handle the matter without calling the California Highway Patrol (CHP). The decision not to call in the CHP for an independent investigation was Gallardo’s.
Pauley was “concerned that something was going on.” No one told her that off-duty police officers were involved, yet she saw the sergeant, Gallardo, borrow the phone of one of the motorcyclists. When she asked Million if he knew the motorcyclists, he concealed from her that they were police officers.
After calling Steimer, Gallardo approached Lindstrom. This time, Gallardo smelled alcohol; the odor was detectable from two feet away. Nevertheless, Gallardo did not ask Lindstrom how much he had had to drink. Instead, Gallardo left the decision whether to conduct field sobriety tests to Million. Million told Gallardo that Lindstrom had been drinking, but “he’s okay, he’s HBD [had/has been drinking] but not deuce [driving under the influence, or DUI].” Gallardo agreed with Million’s assessment and told Million to “check [Lindstrom] out,” but did not specifically direct any tests or other measures.
Lindstrom himself believed that he was not field-tested for sobriety because he was a police officer. Essex also believed that no DUI investigation was conducted because Million and Gallardo did not want to arrest “one of their own.”
Steimer testified that if Gallardo had informed him that he had smelled alcohol on Lindstrom, he would have called in the CHP. Gallardo acknowledged to the district attorney investigators later that the CHP should have come out and investigated the accident.
Lindstrom was examined by paramedics at the scene but refused treatment or transportation to the hospital. The administrative hearing officer concluded that Lindstrom had refused treatment because he was concerned that his blood-alcohol level would be checked. Lindstrom walked home, a short distance away, and immediately drank another beer and two shots of whisky, waited 15 minutes, and then went to the hospital. His drinking upon his return home served two purposes: (1) self-treatment for pain, and (2) a plausible reason for elevated blood-alcohol level if he were tested at the hospital. At the hospital, Lindstrom found that he had broken a finger.
Four or five days after the accident, Lindstrom told Gallardo that he needed a copy of the accident report for insurance purposes. Gallardo got a copy of the unfinished report from Million and dropped it off at Lindstrom’s home. Lindstrom called back and complained about some alleged errors in the report; Gallardo returned the report to Million, telling him to correct the same errors that Lindstrom had pointed out. Gallardo had never before given an unfinished report to a party involved in an accident, but he made an exception in this case because Lindstrom was a fellow officer.
Four days after the accident, on April 27, 2003, Million changed the report from a “901T” injury crash to a “902N” noninjury accident. On April 30, Steimer changed the designation to a “902T,” a traffic collision with unknown injuries. On May 6, Million restored the noninjury designation and delivered the report back to Lindstrom.
At the administrative hearing below, only a single surviving copy of the accident report was admitted; this copy was taken from Lindstrom’s house during a search. The report had not been lodged with any court or sent to the CHP. Lindstrom was listed in the report as “party one.” By custom, the party at fault is generally listed in the report as “party one.” The box for “had been drinking” was not marked. Lindstrom’s class of license was marked as a “C.” A class “M” license is required to drive a motorcycle. The box “complaint of pain” was marked, but not the box for “injury.” The narrative described injuries such as “scrapes on legs, arms and hands,” and indicated the injuries were “minor,” but stated there was only “one” minor injury, and only “one” party injured.
Gallardo approved Million’s final report on May 5, 2003. At that time, the report stated the accident was an “injury” accident. The next day, however, Million logged onto the reporting system and changed the designation to “non-injury” accident. Million took another copy of the revised report to Lindstrom, and Lindstrom faxed it to his insurance company.
On May 9, Steimer asked Gallardo to follow up on obtaining Lindstrom’s insurance and motorcycle licensing information. Gallardo went to Lindstrom’s house and picked up a proof-of-insurance form showing that the motorcycle was insured on the date of the accident. Steimer did not instruct Gallardo to do anything further, and Gallardo did not make any further inquiries.
In fact, Lindstrom had purchased the motorcycle in June 2002 and purchased insurance at that time. He received a proof-of-insurance card, but failed to make all the installment payments on his insurance. The insurer sent a notice of cancellation in October 2002. Lindstrom claimed that he had written a check in October 2002 to renew the insurance, but the administrative hearing officer disbelieved him. The check number was out of sequence, and it was never cashed by the insurer. Lindstrom was refunded $67 from the insurer, but claimed he thought he was still insured. He kept no records and did not call his insurer to verify coverage. At the accident scene, Million asked Lindstrom for his license and insurance information, but Lindstrom claimed he had left it at home.
The report finally approved by Gallardo had several errors. As noted, the report failed to indicate that Lindstrom had been drinking, even though Gallardo had been at the scene and knew personally that Lindstrom had been drinking. Gallardo had been present and seen Lindstrom’s cuts and scrapes, he had heard Lindstrom complain of pain in his leg (as the report reflected), and by the time of approval he knew that Lindstrom had broken a finger, yet no “injury” box was marked. The box for Lindstrom’s license class was listed as “C,” which was misleading to a lay person, who would not know that Lindstrom was not properly licensed to drive a motorcycle. That was at least an infraction, yet Lindstrom was not issued a citation.
Pauley complained to city officials that there had been a cover-up of the incident. In September 2003, the DHSPD placed Lindstrom, Essex, Gallardo and Steimer on administrative leave while conducting an investigation.
The police chief ultimately began disciplinary proceedings against the four officers, and initiated Skelly hearings. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.) He decided to terminate Lindstrom for inappropriate conduct off duty, helping to falsify the report, and conspiring to cover up his conduct. He decided to terminate Essex because Essex had been at the scene of the accident, and he knew Lindstrom had been drinking, but he failed to come forward with that knowledge and supported Lindstrom’s self-serving exculpatory version of the accident. The chief decided to terminate Gallardo because he had been at the scene and knew that Lindstrom had been drinking, yet he failed to ensure the report was correct, and approved a report falsely indicating that Lindstrom had not been drinking. The chief also believed Steimer had failed to correct the errors in Million’s report, even though he had learned from Gallardo later on the day of the accident that Lindstrom had been drinking. He also misled Pauley about the accident.
Gallardo’s Skelly notice and his notice of termination charged him with dishonesty, conduct that violated DHSPD standard-of-conduct policies, failure to report known misconduct, making false or misleading statements, failure of a supervisor to take appropriate action, and similar misconduct. The city was also concerned that Gallardo’s effectiveness as an investigating officer and a witness in criminal trials would be impaired, because his credibility could be impeached with the incidents of dishonesty for which he was being disciplined.
Gallardo appealed his termination by the chief, and a full administrative hearing was held. The parties stipulated at the administrative appeal hearing that the sole issues were whether there was “just cause” for the termination, and if not, the appropriate remedy. The administrative hearing officer upheld the termination, finding that Gallardo had failed in serious respects to carry out his duty to report known misconduct and to correct known material errors in the accident report. The administrative hearing officer also found that termination was an appropriate sanction.
Gallardo petitioned below for a writ of administrative mandate, seeking to overturn the termination, but the trial court denied this petition. Gallardo now appeals.
ANALYSIS
I. Standard of Review
“The trial court applies its independent judgment to [an agency’s] administrative decision, but with a strong presumption the department acted properly. (Code Civ. Proc., § 1094.5, subd. (c); [Citation.].) We review the trial court’s factual findings for substantial evidence. [Citation.] We independently review the court’s legal findings. [Citation.]” (Chrisman v. City of Los Angeles (2007) 155 Cal.App.4th 29, 33.) When the matter involves the level of discipline imposed, “[j]udicial review of an agency’s assessment of a penalty is limited, and the agency’s determination will not be disturbed in mandamus proceedings unless there is an arbitrary, capricious or patently abusive exercise of discretion by the agency.” (Flippin v. Los Angeles City Bd. of Civil Service Commissioners (2007) 148 Cal.App.4th 272, 279.)
Gallardo raises two essential claims: First, that the weight of the evidence does not support the findings of misconduct for which he was disciplined, and second that the penalty was excessive. The first claim is reviewed for sufficiency of the evidence, and the second falls within the abuse-of-discretion standard outlined above.
II. Substantial Evidence Supports the Administrative Findings
The specific charges against Gallardo were set forth in the notice of his Skelly hearing. The notice recited a short outline of the Lindstrom accident, stating that Lindstrom and Essex had provided false or misleading information about how the collision occurred, and about the point of impact of the collision. The notice alleged that Gallardo knew at the time that the information was false or misleading, but failed to do anything to correct it.
Gallardo reviewed and approved Million’s accident report, even though the report contained false or misleading statements. The notice alleged that Gallardo was aware of eight instances of false or misleading information in the report at the time he approved it: The statement that the accident was a noninjury traffic accident (charge 1-A); the report failed to state that Lindstrom was not properly licensed to operate a motorcycle (charge 1-B); the report failed to state that Lindstrom did not possess valid insurance for the motorcycle (charge 1-C); the location of the point of impact was misstated (charge 1-D); the report stated that Lindstrom’s injuries consisted of “complaint of pain” and cuts and scrapes (i.e., not his broken finger) (charge 1-E); the report indicated that neither party had been drinking, even though Lindstrom had been drinking immediately before the accident (charge 1-F); certain statements attributed to Lindstrom and Essex in the report were false (charge 1-G); and the report stated that both parties were at fault, although Lindstrom was at fault for the accident (charge 1-H).
The police chief instructed Gallardo not to discuss with anyone the substance of Gallardo’s interview by district attorney investigators. Gallardo responded that Steimer knew and approved everything that Gallardo had done. The district attorney investigator followed up with an additional telephone interview; another officer overheard Gallardo state that he had informed Steimer that Lindstrom had been drinking when Gallardo first called Steimer from the scene of the accident (charge 2).
The district attorney’s office had informed the police chief that “it will be very difficult, if not impossible, for the D.A. to prosecute criminal cases in which you have been or may be called to testify as a witness,” because the district attorney’s office would be obliged to disclose the alleged misconduct (charges 1-A to 1-G) subjecting Gallardo to discipline. The district attorney’s office also expressed reservations about Gallardo’s veracity (charge 3).
The administrative hearing officer found that the evidence supported charges 1-B, 1-C, 1-E and 1-F, “that Gallardo knew that the collision report contained false and erroneous indications, which he reviewed and failed to correct, namely: that (1) Lindstrom was properly licensed and (2) lawfully insured, and (3) that Lindstrom ‘had not been drinking[,’] and so Gallardo violated City Personnel Rule VII (A) (8 – Dishonesty) and Sec. 340.35 (I – Falsification of records or making misleading entries or statements with the intent to deceive), Sec. 340.38 (a) and (b – failure to supervise and to act) and Sec. 340.35 (o – notoriously disgraceful misconduct) of the DHSPD Policy Manual.”
The administrative hearing officer rejected charges 1-A, 1-D, 1-G and 1-H, e.g., that Gallardo had approved a noninjury accident report (Million changed the designation after Gallardo reviewed the report), that Gallardo knew the actual point of impact of the collision, that he knew the statements in the report attributed to Lindstrom, Essex and Wagner were false or incorrect, or that he knew which party was legally at fault. In these instances, therefore, Gallardo did not violate the DHSPD policies.
The matter alleged as “charge 2” was not in the nature of a true charge of misconduct, but rather a recitation of certain statements Gallardo made to district attorney investigators. The “charge” did not directly accuse Gallardo of dishonesty in those interviews or his statements to the chief of police. The administrative hearing officer did not sustain that “charge.”
As to charge 3, however, the administrative hearing officer found substantial evidence supported a finding that several of the charges of dishonesty and falsification were true. If the city adopted the administrative hearing officer’s findings, then the predicates for the charge were met, that “the District Attorney will be required to disclose” the found charges “to criminal defendants and their counsel and Mr. Gallardo will be faced as a witness with the very real possibility of impeachment of his honesty and credibility based upon his misconduct in the Lindstrom matter.”
The administrative hearing officer concluded that termination was justified “because there is substantial evidence that Gallardo knew what he knew . . . and failed to use that knowledge to correct a glaring false and erroneous police report. Mrs. Pauley was entitled to a higher degree of attention and concern from the DHSPD in general and from Sgt. Gallardo (and from Lt. Steimer) in particular, just as the rank-and-file were entitled to see Gallardo act quickly and effectively to urge Steimer to deal with Lindstrom’s intentional and knowing violations of the Vehicle Code. [¶] If Gallardo had acted promptly on what he did know, it would certainly have made a huge difference in Million’s final report and the damage to the Department may have been greatly alleviated . . . . But his hands-off, detached and volitional approach to ignore what he did know, and his failure to correct the errors and omissions in the report, indicates a supervisor who should not, in the public interest, be left in a supervisory position in a public safety department. Gallardo’s failure to communicate what he did know to his Lieutenant and to carefully read and review and then correct the report (that he hand-carried to Lindstrom at least twice) severely compromised the Department and justifies the ultimate sanction.”
Gallardo now argues that the evidence did not support the sustained findings.
As to the charge of false and misleading information about Lindstrom’s licensing, Gallardo at the scene did not confirm Lindstrom’s license or require that it be verified. He also did nothing afterward to confirm that Lindstrom was properly licensed. He had heard rumors and information that Lindstrom was in fact not properly licensed. He failed to ensure that Lindstrom’s license information, and more particularly a clear reflection that Lindstrom was not properly licensed to drive the motorcycle at the time of the accident, were stated accurately in the report. Gallardo himself admitted that the report was misleading concerning Lindstrom’s unlicensed status.
As the City points out in response, Gallardo “cannot credibly claim that there was insufficient evidence to substantiate [the] finding. . . . [¶] Instead, he offers four excuses: (1) it wasn’t his job to make sure Lindstrom was licensed . . . ; (2) he was too busy . . . ; (3) it was ‘merely an oversight’ . . . ; and (4) he lacked a motive to lie. . . . Gallardo’s explanations, however, are not evidence and do not mitigate against the hearing officer’s findings.”
As to the allegation of false insurance information on the report, it was undisputed that Pauley was the only driver required to provide her insurance information at the scene. Lindstrom “had to be badgered” to provide proof of insurance, but eventually he did provide a card that showed an expiration date in the future. Gallardo never checked the validity of the insurance card Lindstrom ultimately provided. He did testify that he never had checked or followed up on the validity of the insurance proof provided to him by a motorist. On the other hand, before he approved the accident report, Gallardo had admittedly heard rumors that Lindstrom was uninsured. The district attorney’s investigator easily discovered, with a telephone call, that Lindstrom’s insurance had been cancelled in October 2002. The fundamental matter is that the accident report inaccurately failed to indicate that Lindstrom was uninsured. In addition, Gallardo failed to take any action against Lindstrom, even after it became clear that Lindstrom had not been properly insured.
Again, Gallardo’s argument characterizes the evidence most strongly in his own favor, and depends on the proffered excuses that police officers have no obligation to confirm the insurance information provided by motorists. He argues that there was no evidence he “knew” Lindstrom’s insurance had been cancelled; this represents almost a willful failure to “know” what should have been obvious from the rumors and other circumstances (such as Lindstrom’s foot-dragging and other indications of untruthfulness).
In addition, Vehicle Code section 16028 provides that drivers involved in an accident must exchange valid insurance information at the scene of an accident, and empowers law enforcement officers to cite drivers for violation of that provision. The DHSPD policy manual also obliges officers to report “activities . . . [that] may result in . . . discipline under this policy.” Regardless of what was in the report, Gallardo, as a supervisor, failed to report or do anything to correct an officer’s Vehicle Code violations.
Gallardo argues that, because the insurance failure was not an operative cause of the accident, “as it is not a moving violation, falsification of the insurance information could not have benefited Officer Lindstrom in any manner, so why would Sgt. Gallardo risk his career by purposely not reporting that Lindstrom was uninsured?” This argument ignores reality. A police report that obscured Lindstrom’s Vehicle Code violations did benefit, or could have benefited Lindstrom. For example, it could enable him to deny fault for the accident in any dispute or litigation with Pauley. Escaping departmental discipline for law violations also benefited Lindstrom. The conduct of all the DHSPD members involved reasonably suggests that the police department had closed ranks to protect “one of its own,” to the detriment of the civilian victim of Lindstrom’s conduct. Other officers have risked their careers in such misplaced loyalty; it is entirely conceivable that Gallardo, who had previously been an otherwise exemplary officer, was acting on the same motive.
As to the allegation that the report gave false and misleading information about Lindstrom’s injuries, Gallardo argues that the notations “complaints of pain” and “cuts and scrapes on legs, arms and hands” reflected exactly what he personally observed at the scene. Gallardo’s argument again minimizes the evidence and presents it in the light most favorable to himself. He personally saw that Lindstrom had numerous obvious injuries. He had blood on his face. He complained of pain in his leg. All the witnesses described the motorcycle and Lindstrom flying through the air after the collision. Lindstrom’s motorcycle was severely damaged. Gallardo and the paramedics on the scene believed that Lindstrom should go to the hospital; the potential for internal or other nonobvious injuries was great. In fact, as it turned out, Lindstrom found out later that day that his finger was broken. Given all of the evidence at the scene, and as Gallardo himself agreed, the box for “minor injury” should have been marked. The failure to do so was misleading.
As to the failure of the report to indicate that Lindstrom had been drinking, Gallardo objects, because the city never introduced any copy of the report with Gallardo’s signature, it “remains unknown . . . whether Gallardo corrected the box for ‘had been drinking’ before approving the final report.” The evidence is clearly to the contrary. Gallardo did not testify or indicate that he had ever changed the report to state that Lindstrom “had been drinking.” That feature of the report—the failure to mark that Lindstrom had been drinking—was unchanged in any version of the report.
Gallardo proffers the claim that it is discretionary with an investigating officer whether to order field sobriety tests, even when one of the parties to an accident has been drinking. Steimer was adamant, however, that if he had known that Lindstrom had been drinking, he would have told Gallardo to call in the CHP. Essex’s judgment was the same. Even Gallardo at one point admitted that he should have called in the CHP.
In view of our determination that substantial evidence supported the hearing officer’s findings, we conclude that the determination as to “charge 3” was also supported by substantial evidence. The sustained findings indicate dishonesty, falsification of records, failure to exercise appropriate supervisory authority, and disgraceful misconduct.
Gallardo contends that a criminal defendant may access an officer’s personnel records, through a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) only on a showing of materiality, and limits disclosure to misconduct that is less than five years old. Disclosure is required under Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215], of known dishonesty by a police officer, where the credibility of the officer will be at issue. Whenever an officer may have to testify, credibility will be at issue. In addition, the five-year limit in Evidence Code section 1045, subdivision (b)(1), is not an absolute bar to disclosure. (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 13-15.)
A city with a small police department takes a significant risk in continuing to employ, as one of its few officers, an officer with a history of disciplinable dishonesty and falsification of police records. Substantial evidence supported the underlying findings of dishonesty and falsification; those findings supported the finding as to charge 3 that Gallardo’s effectiveness as an officer was severely hampered, should he ever have to testify in court in the prosecution of a crime he investigated.
III. The City Did Not Abuse Its Discretion in Selecting Termination as the Appropriate Sanction
Gallardo points to his long record of service and proposes that termination was too harsh a punishment. He argues that the misconduct “here does little harm to the public service,” but this contention cannot be maintained.
“[A] ‘police officer must be held to a higher standard than other employees. A police officer is expected to tell the truth.’ [Citation.] The officer’s dishonesty warranted his dismissal. [An] officer’s admitted theft and subsequent lie not only discredited him but the entire agency and stated ‘[u]nlawful activity by a police officer warrants dismissal. [Citations.] Further, “honesty is not considered an isolated or transient behavioral act; it is more of a continuing trait of character.” [Citation.]’ [Citation.]” (Nicolini v. County of Tuolumne (1987) 190 Cal.App.3d 619, 629, citing Ackerman v. State Personnel Bd. (1983) 145 Cal.App.3d 395, 398-399.)
Because honesty, integrity, and trustworthiness are critical character attributes of a police officer, Gallardo’s termination based on dishonest acts was not an excessive penalty.
DISPOSITION
The judgment is affirmed.
Respondent is awarded costs on appeal.
We concur:RAMIREZ P. J. MILLER J.