Opinion
A131122
01-26-2012
AUDREY A. LAKE, Plaintiff and Appellant, v. CITY OF HERCULES, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. MSN10-0106)
Appellant Audrey Lake was a police officer with the City of Hercules (City). After being assigned to an interagency narcotics task force, she persuaded the City's police chief to authorize the purchase of an assault rifle for her use. A short time later, the chief concluded she had lied to obtain his approval, and the City eventually terminated Lake on grounds of, among others, dishonesty. After reviewing the record of Lake's administrative appeal, the trial court upheld her termination. We affirm.
I. BACKGROUND
Lake had been a police officer with the City for three and a half years when, in April 2006, she landed a coveted assignment with the West Contra Costa County Narcotics Enforcement Team or WestNET. WestNET consisted of from three to seven law enforcement officers drawn from departments throughout Contra Costa County, working under a commander appointed by the state Bureau of Narcotic Enforcement, Stephen Ladeck. Although Lake reported to Ladeck, the City funded her assignment.
Consistent with our substantial evidence review of the trial court's judgment, we present the conflicting evidence from Lake's administrative hearing in the light most favorable to affirmance. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824 (Fukuda)[apply substantial evidence review]; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 121 ["When we review a judgment that is said to be unsupported by substantial evidence, we review the record in the light most favorable to the judgment and will draw all permissible inferences and presumptions in favor of its validity"].)
At some point after joining WestNET, Lake decided she wanted an assault rifle. Although armed, officers of WestNET were not required to have an assault rifle. The commander and at least one other officer had them, but most officers did not. Ladeck viewed the choice of his officers' weapons to be within the purview of the departments that paid their salaries and had never suggested or recommended that an officer obtain an assault rifle. Lake raised the issue with Ladeck several times. Each time, he deferred, telling her she needed to request the weapon from the City police department.
On July 16, 2007, Lake learned an assault rifle was available for purchase. To obtain approval for the purchase, she faced two hurdles. First, in order to purchase that type of weapon without a waiting period, she needed a letter of authorization signed by the City's police chief, Fred Deltorchio. Second, Deltorchio required Lake to obtain Ladeck's approval before he would sign such an authorization. Lake went to Deltorchio's office and presented him with a prepared letter of authorization. When he asked her why she needed the weapon, Lake told him, by his account, "Commander Ladeck had requested that she upgrade her handgun to [an assault rifle]. And also that she was the only member of the West-Net task force who was not armed with [an assault rifle]. And so there was an issue with regard to their entries, that she was not properly armed." Satisfied from her explanation that the purchase was justified, Deltorchio asked Lake to have then-Sergeant William Goswick, commander of the City's SWAT team, approve her acquisition of the weapon. When she returned later with news of Goswick's approval, Deltorchio signed the letter of authorization. The same day, Lake drove to a dealer in San Jose and purchased the assault rifle.
Goswick testified that at some point in the summer of 2007, prior to July 16, Lake approached him and asked if the City had any spare assault rifles. At that time, she told Goswick that she was the only WestNET officer without an assault rifle and Ladeck "was asking that she get one to be part of [the West-Net] entry team." He approved her request on the basis of this earlier conversation.
On July 31, 2007, Ladeck called Deltorchio and asked to meet with him about Lake. Ladeck was concerned, in part, about the City's purchase of the assault weapon for Lake. In the course of the meeting, Deltorchio realized Ladeck had neither required, nor even recommended Lake obtain the weapon. In response to Deltorchio's questions, Ladeck told him only he and one other member of WestNET had an assault rifle and the acquisition was entirely a result of Lake's initiative, not Ladeck's. As a result of the meeting, Deltorchio was concerned Lake did not have a genuine need for the weapon and had obtained his consent to the acquisition through misrepresentations.
Two days later, Deltorchio met with Lake, in the presence of another officer, to discuss the topics raised by Ladeck. Although aware of the possibility of misconduct, Deltorchio did not give Lake a formal pre-interrogation admonition. (See Gov. Code, § 3303.) Under questioning, Lake essentially repeated the explanation for the purchase she had provided to Deltorchio on July 16.
Deltorchio placed Lake on administrative leave and initiated an internal affairs investigation. To avoid conflicts of interest within his department, Deltorchio retained a retired police officer, Lance Thelen, to conduct the investigation. On the basis of Thelen's conclusions, Goswick issued a notice of intent to terminate Lake. A predisciplinary (Skelly ) hearing was conducted by the police chief of the City of Benicia. During the hearing, Lake claimed not to remember what she had told Deltorchio on July 16 when she requested his approval for the assault rifle purchase. The Benicia police chief sustained Deltorchio's claim that Lake had made misrepresentations in order to secure approval of the weapon purchase, found evidence Lake had exhibited insubordination and incompetence and violated several departmental regulations, and concluded the misconduct supported her termination. The City thereafter terminated Lake on the grounds cited by the Benicia chief.
Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 (Skelly).
Lake requested an administrative appeal. At the hearing, Lake claimed to have regained her memory of the July 16 meeting with Deltorchio and denied having told him that Ladeck asked her to obtain the assault rifle and that she was the only WestNET officer without one. The hearing officer issued a 41-page decision, reviewing individually each charge on which Lake's termination was based. The decision sustained the charge of dishonesty, concluding Lake had lied to Deltorchio and others, but it dismissed several other charges and found that the City had acted improperly in certain aspects of its handling of Lake's termination, including the failure to provide an admonition under Government Code section 3303. Notwithstanding the City's errors, the hearing officer upheld the dismissal, concluding, "The saying . . . in law enforcement [is] that 'If you lie, you die.' Honesty is a must." The city council adopted the hearing officer's decision.
Lake challenged her dismissal in the trial court, filing a petition for a writ of mandate under Code of Civil Procedure section 1094.5. The court issued a tentative ruling finding the "weight of evidence supports [the] findings and recommendations of [the] hearing officer adopted by [the] City Council" and individually considering and rejecting several arguments raised by Lake. The court thereafter issued a formal statement of decision reaching the same conclusions.
II. DISCUSSION
Lake raises several procedural objections to the administrative and judicial proceedings and contends the hearing officer's findings were not supported by substantial evidence. We discuss these contentions in the order raised by Lake. A. The Trial Court's Review
Lake first contends that various statements by the trial court during argument on the writ petition "strongly indicate that the Court reviewed and relied only upon the moving and opposition papers and hearing officer's decision," rather than reviewing the evidence in the record and exercising its independent judgment. The only statement specifically cited by Lake is the court's comment, "I have looked at the administrative record. [¶] The reason I say I 'looked,' there were certain things I was looking for, so I have to acknowledge that there were certain pages I did not read."
In reviewing an administrative decision to terminate a public safety officer, the trial court must conduct an "independent judgment" review (Fukuda, supra, 20 Cal.4th 805, 817), in which the court "must not only examine the administrative record for errors of law, but must also conduct an independent review of the entire record to determine whether the weight of the evidence supports the administrative findings." (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313.) This requires the court to reweigh the evidence and make its own determination of the credibility of witnesses. (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658 (Barber).) An independent judgment review does not, however, require the trial court to disregard the agency's findings. On the contrary, the court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence. (Fukuda, at p. 817.)
There is no support in the record for Lake's contention the trial court failed to conduct an independent judgment review. The trial court's tentative ruling shows an exact awareness of the proper standard of review, concluding the "weight of the evidence" supports the administrative findings and recognizing the "presumption of correctness afforded to these findings." In turn, the statement of decision states the court "exercised its independent judgment on the evidence." We take the trial court at its word. In the sole case cited as authority by Lake, Barber, supra, 45 Cal.App.4th 652, the trial court expressly, and incorrectly, stated it could not reweigh the credibility of witnesses and was required to apply a preponderance of the evidence standard. (Id. at pp. 658-659.) No such manifest misapprehension of the proper standard of review occurred here.
Lake's argument appears to be based entirely on the court's comment that it did not read every page of the administrative record. The admonition the trial court must review the "entire record" does not mean the court must review each and every page. Rather, the instruction requires the court to "review[] evidence both in support of, and in conflict with, the administrative agency's findings." (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 45.) This distinguishes an independent judgment review from a substantial evidence review, in which the court examines only the adequacy of the evidence in support of the judgment.
Virtually every evidentiary hearing includes testimony and documentary evidence that is not, in the end, material to the determinations of the finder of fact. It is therefore not necessary for a trial court to read every last page of an administrative record in order to conduct an adequate independent judgment review of the record. On the contrary, the trial court must be permitted to exercise its discretion as to the degree of attention required by different aspects of the administrative record. At oral argument, Lake's counsel failed to inquire as to which pages the trial court did not read or otherwise to clarify the court's remark. In the absence of such an objection or clarification, we have no basis for finding that the trial court's forthright comment indicated anything other than an appropriate exercise of discretion in its review of the record. B. Credibility of Goswick and Deltorchio
Lake next contends "a review of the evidence by the Trial Court of the type and completeness required by the independent judgment test would have disclosed serious doubts abut [sic] the credibility of Chief Deltorchio and Commander Goswick." This is followed by an extended discussion of the permissibility under the applicable memorandum of understanding (MOU) of Deltorchio's attendance at the administrative hearing. The MOU permitted him to attend only if he had " 'investigated the matter at issue . . . in the hearing.' " Because Deltorchio did not investigate the matter, Lake contends, his failure to contradict the claim he had done so demonstrates his testimony on other issues was not credible. Had the trial court truly exercised independent judgment, she argues, the court would have declared him not credible on these grounds.
We find no basis for Lake's argument. Whether Deltorchio was a person who investigated the matter for purposes of the MOU was a legal question for the hearing officer to resolve. During argument before the hearing officer, Lake's counsel fully explained the factual basis for her contention he should not be allowed to attend. There is no indication any information relevant to this issue was withheld from the hearing officer. Accordingly, it did not reflect adversely on Deltorchio's character or credibility that he remained silent. As a result, the trial court's failure to declare Deltorchio not credible as a result of his attendance at the administrative hearing does not in any way suggest the court failed to conduct an independent judgment review.
Lake briefly discusses other matters that, she contends, reflected on Deltorchio's and Goswick's credibility. None of these is so compelling as to suggest the trial court's willingness to accept their testimony indicated it failed to conduct an independent judgment review. C. The City's Failure to Follow its Own Rules
Lake argues her termination was invalid because (1) Goswick, rather than Deltorchio, prepared and served the notice of intent to terminate; and (2) Deltorchio was allowed to attend the administrative hearing, both in alleged violation of the MOU.
Even assuming both these events constituted a violation of the MOU, Lake fails to demonstrate they require the invalidation of her termination. In the absence of a denial of due process, such procedural rule violations constitute grounds for overturning an agency's decision only if they are shown to have resulted in "actual prejudice." (McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 519, overruled on other grounds, Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d 778, 799 & fn. 18.) While Lake asserts in a conclusory manner she was prejudiced by the violations, she makes no attempt to explain how she was prejudiced, and we see no basis for the claim. Lake was provided a pretermination hearing, a posttermination hearing, and judicial review of the latter. In each case, at least some of the charges against her were sustained and found sufficient to support the City's decision to terminate. Goswick's preparation of the notice of intent and Deltorchio's attendance at the hearing had no significant effect on those outcomes. D. The Fairness of the Administrative Hearing
In support of her claim, Lake relies primarily Layton v. Merit System Commission (1976) 60 Cal.App.3d 58, 63, which holds only that an employee must be provided a hearing prior to discharge or suspension if a statute or ordinance calls for such a hearing. There is no contention Lake did not receive this type of due process.
Lake contends she was denied a fair administrative hearing because the City failed to call Thelen as a witness, citing La Prade v. Department of Water & Power (1945) 27 Cal.2d 47 (La Prade). She also contends Thelen's report should not have been admitted into evidence at the hearing.
La Prade neither holds nor suggests the City was obliged to call Thelen as a witness at the administrative hearing. The public employee in La Prade was terminated after a hearing in which the agency introduced no evidence to support its claim of misconduct and the hearing panel relied on an investigative report that was not introduced as evidence. (La Prade, supra, 27 Cal.2d at p. 49.) The Supreme Court held that in any hearing regarding the discharge of an employee, the burden is on the agency to prove the charges supporting discharge and evidence must be adduced at the hearing sufficient to support those charges. (Id. at p. 51.) Further, to the extent the agency relies on a written report to support the charges, the report must be introduced into evidence, and the employee must be provided an opportunity to cross-examine the author. (Id. at p. 52.)
No violation of the La Prade requirements occurred. There is no doubt the City introduced evidence to support its charges. While Thelen's report was introduced into evidence, the City did not by any means rely solely on the report to prove its case. On the contrary, several witnesses with direct knowledge testified. Because it did not rely solely on the Thelen report, the City was not required to produce him for testimony. Moreover, Lake was not discharged on the basis of the Thelen report. After concluding Thelen "was not impartial or neutral in his investigation," the hearing officer gave no apparent weight to the report.
If Lake believed Thelen possessed critical information, she was entitled to call and examine him. She did not exercise that right.
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We find no reversible error in the admission of the Thelen report into evidence. When Lake's attorney was asked at the hearing whether he had any objection to the admission of the report, he responded, "No," thereby waiving Lake's current hearsay objection. (Hand v. Board of Examiners (1977) 66 Cal.App.3d 605, 613.) Further, the hearing officer's rejection of the Thelen report suggests its admission was harmless, even if it was error. The trial court found no indication the hearing officer relied on the report in making his findings, nor do we. E. Sufficiency of the Evidence
Finally, Lake contends her termination was not supported by the evidence. Her discussion of the evidence proceeds without the slightest regard either for this Court's standard of review or for the actual scope of the evidence introduced at the hearing. A balanced view finds more than substantial evidence to support the trial court's conclusion the discharge was appropriate.
While the trial court was required to conduct an independent review of the evidence in determining whether the weight of the evidence supported the City's termination, our review is more limited. We affirm the trial court's judgment if it is supported by substantial evidence. (Fukuda, supra, 20 Cal.4th at p. 824.) The finding that Lake deceived her chief in order to obtain the assault rifle was amply supported. Deltorchio testified she told him Ladeck had asked her to obtain an assault rifle and she was the only WestNET officer without one. Goswick testified she told him the same thing. Ladeck, however, testified he had never asked Lake to obtain an assault rifle and only he and another WestNET officer had them. Together, this testimony provides substantial evidence to support a finding that Lake lied in order to obtain approval of the purchase of an assault rifle and to support the trial court's conclusion that Lake's discharge on grounds of dishonesty was appropriate.
Lake argues Deltorchio's testimony should have been disregarded because, as the hearing officer found, he initiated the meeting with Lake at which she was questioned about her misrepresentations without providing her the proper warning, in violation of Government Code section 3303. Both the hearing officer and the trial court were aware of Deltorchio's connection with the improper investigatory meeting and chose nonetheless to credit Deltorchio's testimony. We find no basis for concluding Deltorchio's violation of section 3303 was of sufficient seriousness to make his testimony not credible as a matter of law.
Lake also argues it was error to consider her statements during the investigatory meeting because the hearing officer ruled the statements "cannot be used against" Lake. Reviewing the hearing officer's findings on dishonesty, we find no indication he considered these statements in rendering his decision. Similarly, the trial court made no mention of these statements in its statement of decision. In any event, there was no error in the hearing officer's admission of these statements for the purposes of impeaching Lake, since she testified in contradiction to these statements at the hearing. (City of Los Angeles v. Superior Court (1997) 57 Cal.App.4th 1506, 1517-1518.)
Lake also argues the hearing officer's finding she was dishonest "ignores several facts that contradict the finding and is not supported by any credible evidence." As discussed above, however, the finding of dishonesty is supported by substantial evidence in the record. Whether that testimony is not "credible," as Lake argues, is not an issue we may consider in undertaking a substantial evidence review, nor may we weigh the evidence to decide whether contradictory facts should be credited. The substantial evidence review requires us to "resolv[e] all factual conflicts and questions of credibility in favor of . . . the prevailing parties." (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1265; see also In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748 & fn. 6 ["Under the substantial evidence rule, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies"].) The testimony of Deltorchio, Goswick, and Ladeck is consistent, plausible, and sufficient to support the judgment. It was found credible by both the hearing officer and the trial court. Our inquiry proceeds no further.
Lake also complains that "any discussions with Hercules Police Department personnel . . . were not recorded, and the contents of those discussions are based upon the participant's recollections." This is generally the case, of course, when the resolution of factual matters depends upon the content of conversations. Evidence of conversations is not rendered inadmissible or unreliable merely because the conversations were not recorded. It was for the hearing officer and the trial court to determine the reliability of the officers' recollections.
Finally, Lake argues that several charges unrelated to her dishonesty were invalid or unsupported. We do not review the evidence underlying these charges, since neither the hearing officer nor the trial court relied on them in upholding Lake's termination. Indeed, the charge of dishonesty was the only one cited by either to support termination, and Lake did not request a ruling by the trial court on the validity of the other charges. Nor do we find any basis for Lake's contention that the hearing officer's dismissal of these other charges was inconsistent with his decision to uphold her termination. The hearing officer made clear that his decision was based on the evidence of Lake's dishonesty, not on the alleged misconduct underlying the other charges.
III. DISPOSITION
The judgment of the trial court is affirmed.
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Margulies, J.
We concur:
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Marchiano, P.J.
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Banke, J.