Opinion
NOT TO BE PUBLISHED
APPEAL from denial of a writ of mandate by the Superior Court of Fresno County, Super. Ct. No. 04CECG01842. Rosendo Pena, Judge.
Bennett & Sharpe, Barry J. Bennett, Thomas M. Sharpe and Robert D. Hoppe, for Plaintiff and Appellant.
Liebert Cassidy Whitmore, Richard C. Bolanos and Adrianna E. Guzman, for Defendants and Respondents.
OPINION
VARTABEDIAN, Acting P. J.
INTRODUCTION
In this case, we are asked to determine whether the superior court erred in concluding that the City of Coalinga and its former city manager, Richard Warne, (respondents) did not abuse their discretion in terminating City of Coalinga Police Officer Rene Mendoza (appellant). We conclude that there was sufficient and substantial evidence to sustain the superior court’s conclusion that termination was the appropriate remedy. Thus, we affirm the superior court’s denial of a writ of mandamus.
Warne subsequently discontinued his employment as city manager. Stephen B. Julian is the current city manager.
FACTUAL AND PROCEDURAL HISTORY
A. The UMC Incident
On the evening of September 16, 2003, appellant, a five-year veteran of the police department who was off-duty at the time, was called out to assist with a major crime incident. While he was at the crime scene, Sergeant Scott Ingham, the supervising officer, assigned appellant to go to University Medical Center (UMC) in Fresno, California, in case it became necessary to get a “dying declaration” from the crime victim. Appellant notified Ingham that he had not had much sleep. His purpose in telling Ingham about his lack of sleep was because he had been disciplined in early 2003 for sleeping on duty. Ingham told him that he could sleep later.
Appellant caught a ride to the police station where he spoke with another officer, who wondered why a Fresno-based officer like Corporal Gilmore was not assigned to the detail. Appellant then called Sergeant Ingham and asked whether a Fresno-based officer could assist at UMC. Ingham responded in the negative, and told appellant that he had been assigned the detail.
Appellant then delayed going to UMC in order to drive to his residence to get some reading materials. This resulted in a delay of 10 to 15 minutes. Upon arriving at UMC, he learned that the victim would be in surgery for two to three hours. He notified Sergeant Ingham and asked to be relieved because he thought that the assignment was illogical. After this request was denied, appellant attempted to get another police sergeant, Keith Yarbrough, to relieve him without telling Yarbrough that Ingham previously had denied the same request.
After being apprised of appellant’s repeated attempts to be relieved from his assignment, Police Chief Frank Steenport instructed Sergeant Ingham to contact appellant and make arrangements for him to be relieved. At approximately 11:00 p.m., Ingham assigned Corporal Gilmore to relieve appellant, even though Gilmore was to start work at 6:00 a.m. the next morning. Before Gilmore arrived, appellant learned that the victim was stable but would not be available to make a statement until morning. Appellant notified dispatch. Gilmore arrived at around midnight, and appellant left. Subsequently, Gilmore confirmed the victim’s status, and Ingham then instructed Gilmore to return to the hospital first thing in the morning to take the statement.
B. Disciplinary Memoranda Issued To Appellant
Ten days prior to the UMC incident, on September 7, 2003, appellant had received two letters of reprimand. One letter concerned appellant’s repeatedly going “Code 2” (driving with police lights flashing) when responding to calls, even though he had been advised it was against department policy.
The other letter accused appellant, while off duty and without authorization or department knowledge, of having new tires put on a police vehicle and having its front end aligned. The same letter also referred to an incident that purportedly took place on August 1, 2003, when appellant allegedly failed to remove his equipment, including a shotgun, from the trunk of the police vehicle before it was transported to the Claremont Custody Center for maintenance (a location where prison inmates would have been involved in the maintenance of the vehicle), and demonstrated a poor attitude when confronted about his alleged failure to remove such equipment.
Two days after the UMC incident, on September 19, 2003, appellant was served with the following: (1) documentation of oral counseling dated September 12, 2003, relating to an incident at the Cambridge Inn bar; (2) letter of reprimand dated September 13, 2003, relating to appellant’s issuance of red-light citations; (3) letter of reprimand dated September 12, 2003, relating to unauthorized schedule changes and failure to make a burglary report; and (4) a letter of instruction dated September 11, 2003, relating to issuance of a parking citation.
C. Termination of Appellant’s Employment
On September 29, 2003, appellant was notified by a memorandum entitled “Notice of Proposed Disciplinary Action” that he would be terminated based upon the UMC incident and his prior disciplinary history. He was provided with a Skelly meeting.
Skelly v. State Personnel Board (1975) 15 Cal.3d 194.
Chief Steenport, however, resigned prior to issuing a final decision to terminate appellant, so Interim Chief of Police John D. Gomes reissued the notice of proposed disciplinary action on October 23, 2003. Chief Gomes also provided a second Skelly meeting. Subsequently, on November 7, 2003, Chief Gomes terminated appellant.
On November 18, 2003, after being advised that certain documents reviewed and considered by Chief Gomes in rendering the decision to terminate appellant had not been provided to appellant, Chief Gomes reinstated appellant retroactive to the date of his termination. Appellant then was provided with the documents, another notice of proposed disciplinary action, and a third Skelly meeting at which appellant was present with an attorney. Appellant then was terminated on December 4, 2003, effective December 5.
D. Proceedings Before City Committee
Appellant appealed his termination and requested a hearing before the city’s committee for employee appeals (committee).
At the hearing, Sergeant Yarbrough and Sergeant Ingham testified about the events relating to the UMC incident. Chief Gomes testified about the disciplinary process, including what documents he considered in deciding upon termination as opposed to suspension.
In his defense, appellant called three department employees (Terry Brumana, Sean Smith and David Ponuk) and a supervisor (Sergeant Charles Rebaut) as witnesses. Appellant also testified.
After the hearing, the committee recommended that the decision to terminate appellant be affirmed. The committee found that: 1) appellant violated departmental policy and city personnel rules, among other things, by his insubordination during the UMC incident, and 2) termination was appropriate based upon appellant’s performance and disciplinary history. Respondent Warne adopted the committee’s findings and recommendations and sustained the termination.
E. Documentation Submitted at Committee Hearing
At the hearing, the committee was provided with a packet of documents that Chief Gomes considered in reaching his decision to terminate appellant. At that time, appellant’s counsel made the following statement:
“Well, . . . we have no objection . . . to this packet coming into evidence in the sense that it represents the official document that was provided to me and to [appellant] as the basis for . . . his termination. There are items within the packet which, which we agree are authentic, but which contain expressions of sentiment and ah certain language that we don’t necessarily agree with, so without getting too technical and perhaps, you can, Mr. Riggs [the committee’s counsel], explain this to the panel. We object to the hearsay content, ah, some of the documents in the evidence packet, but we don’t dispute that … that is the evidence packets [sic]. That’s what the department relied on, all we’re saying is by agreeing to that we don’t admit that every sentence in there is true.”
The packet consisted of the following documents:
Exhibit 1: The November 18, 2003, notice of proposed disciplinary action and the December 4, 2003, notice of disciplinary action.
Exhibit A: Memoranda relating to the UMC incident.
Exhibit B: September 11, 2003, “letter of instruction” regarding an August 16, 2003, parking citation appellant issued to a couple even though they had said they were going to move their vehicle.
Exhibit C: August 19, 2003, letter of reprimand and related documents related to “Code 2” driving. Appellant signed a due process waiver where he took responsibility for his actions in the matter and waived his rights to contest, dispute or appeal the disciplinary action.
Exhibit D: September 13, 2003, letter of reprimand and related documents regarding appellant’s issuance of citations on September 5, 2003, for red light violations at a new traffic signal, even though officers were instructed to give warnings rather than citations during a “grace period.”
Exhibit E: August 16, 2003, letter of reprimand and related documents regarding the shotgun left in appellant’s vehicle which was to be serviced at the Claremont Custody Center.
Exhibit F: September 12, 2003, “documentation of oral counseling” and related documents regarding a fight at the Cambridge Inn bar on August 17, 2003, at which several individuals committed violations of Penal Code section 148 (resisting, delaying or obstructing a peace officer) against appellant, but no arrests were made. Appellant signed a due process waiver where he took responsibility for the actions in this matter and waived his rights to contest, dispute or appeal the disciplinary action.
Exhibit G: August 16, 2003, letter of reprimand (same as Exhibit E) and related documents regarding unauthorized replacement of tires and other service to appellant’s police vehicle. Appellant signed a due process waiver where he took responsibility for the actions in this matter and waived his rights to contest, dispute or appeal the disciplinary action.
Exhibit H: September 12, 2003, letter of reprimand and related documents regarding appellant’s failure to take a burglary report on July 30, 2003. Appellant had processed the report as though the case involved a petty theft even though the property was taken from a garage, thus qualifying as a burglary. Appellant signed a due process waiver where he took responsibility for the actions in this matter and waived his rights to contest, dispute, or appeal the disciplinary action.
Exhibit I: September 12, 2003, letter of reprimand (same as exhibit H) and related documents regarding unauthorized shift schedule changes. Appellant had been denied a shift schedule change on June 19, 2003, but then went to a different supervisor and, without informing the supervisor the change had already been denied, obtained permission. Appellant signed a due process waiver where he took responsibility for the actions in this matter and waived his rights to contest, dispute or appeal the disciplinary action.
Exhibit J: Documents relating to a 2001 “unauthorized shooting” incident at a firing range where others were endangered by appellant’s negligence, including notice of a 36-hour suspension.
Exhibit K: Copies of annual employee evaluations for appellant for 2000-2001 and 2001-2002, and appellant’s rebuttal for 2000-2001.
Exhibit L: Appellant’s September 23, 2003, memorandum regarding allegations of workplace harassment and a subsequent report prepared by Lieutenant Rabaut of the investigative findings and conclusions of the internal affairs department.
When Chief Gomes was asked by the city’s attorney, Dale Bacigalupi, about the exhibits detailed above, the following exchange occurred between Bacigalupi, and appellant’s attorney, Barry Bennett:
“ATORNEY BENNETT: At … at this point I just want to interpose, let’s call it an objection, … is the purpose of this testimony to show what the Chief considered at the time he made the decision?
“ATTORNEY BACIGALUPI: Right.
“ATTORNEY BENNETT: Alright, so we’re not being asked to disprove what’s in Corporal Gilmore’s memo or in prior Chief [Steenport’s] memo, those are not being offered as grounds for the termination?
“ATTORNEY BACIGALUPI: No, those … those are being presented as they were, those are completed, book closed issues the evidence here is for the Chief who … who arrived on the scene as a brand new fresh Chief to explain his thought process to get from zero knowledge to the point where he was prepared to decide what to do in the current circumstance so this is all to help the panel understand his thought process.
“ATTORNEY BENNETT: Alright, with that understanding then I’ll withdraw the objection, just for the [panel’s] benefit my concern is that anytime something comes up the question is do we have to go into that issue or that memo or that and what we’re being told is [no] so I’ll withdraw the objection.”
Although the hearing transcript shows that Bennett’s statement was unintelligible at this point, the only reasonable inference is that Bennett said “no.”
In his closing argument, Bennett also made the following statements:
“Ah, I want to harken back to when this hearing first began and you were first presented with the packet … of materials that you’ve had probably an ample amount of opportunity to look at during these two days and … and recall the instructions that your counsel gave you when I pointed out that even though appellant recognized the documents were authentic, that he did object to the admission of them with respect to statements that were made in them and as Mr. [Riggs] pointed out, hearsay is admissible in these proceedings unlike some other proceedings, but … you as a panel are not permitted to make a finding on hearsay alone.”
“Let’s talk a bit about what you heard as evidence today and yesterday. With respect to the documented oral counseling in the letter of instruction that are part of the packet, there is no doubt that [they’re] there, but what I remind you is that you did not hear one witness testify about the events underlying the issuance of those documents and . . . I will tell you that it’s our legal position that for purposes of your recommendation those events don’t exist because you have not heard one shred of evidence from somebody who was involved, somebody who witnessed anything to say these events happened. All you have are pieces of paper and in case you wonder why we didn’t respond to them, frankly we don’t have to, that’s what burden of proof is all about.”
Bennett then proceeded to argue that exhibits C, E, and G did not legally exist because there was no supporting witness testimony. He also contended that exhibits B, D, F, H and I could not be the bases for a finding of prior disciplinary history because they were created long after the alleged incidents occurred.
F. Mandamus Proceedings
On June 24, 2004, appellant filed a writ of mandamus seeking to overturn his termination. He asserted that former city manager Warne abused his discretion by failing to consider or give sufficient weight to: 1) appellant’s responses to earlier disciplinary actions; 2) appellant’s overall history with the department; and 3) the absence of direct evidence supporting earlier disciplinary actions concerning appellant. Appellant contended that “Respondent Warne abused [his] discretion, and denied [appellant] due process of law, in that his Decision [to terminate appellant] was based in great part on uncorroborated hearsay pertaining to earlier disciplinary actions against [appellant], for which no direct evidence was proffered by Respondent City [of Coalinga] at hearing.” Specifically, appellant contended that “[b]y simply offering Exhibits B-J as documents which Chief Gomes reviewed as part of his decision to terminate [citations], and by not proving the contents of any of those memoranda, Respondent City [of Coalinga] essentially failed to offer any evidence in support of the charges on which it purported to rely.”
The superior court held a hearing in which it considered the documents relating to appellant’s disciplinary history. The court then requested further briefing on the issue of whether the disciplinary documents constituted inadmissible hearsay and set further oral argument for August 26, 2005.
In the post-hearing briefing, appellant argued that Exhibits C, D, E, F, G and H were inadmissible hearsay.
After oral argument on August 26, 2005, the superior court ruled against appellant. The court concluded that exhibits A, B, I, J, K and L, standing alone, were sufficient to justify the committee’s decision to uphold appellant’s termination. The superior court also ruled that the other exhibits were admissible to support Chief Gomes’s decision to terminate appellant, and even if these exhibits constituted hearsay, they were admissible under the official records exception to the hearsay rule. Finally, the court concluded that termination was not so clearly excessive that it manifests an abuse of discretion.
Appellant timely appealed.
DISCUSSION
I.
Standard of Review
In this case, “[d]iscipline imposed on city employees affects their fundamental vested right in their employment.” (McMillen v. Civil Service Com. (1992) 6 Cal.App.4th 125, 129; Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52 (Kazensky).) Thus, in reviewing an administrative decision imposing a penalty, the trial court exercises its independent judgment on the evidence presented in the administrative hearing to determine whether the weight of the evidence supports the agency’s decision. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816-817 & fn. 8; Valiyee v. Department of Motor Vehicles (1999) 74 Cal.App.4th 1026, 1031.) The trial court exercises its independent judgment on the evidence and examines the entire administrative record and reviews 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 (Deegan).)
On appeal, we will uphold the trial court’s factual findings if they are supported by substantial evidence, and reverse the trial court if it failed to make a necessary factual determination or made an erroneous legal determination. (Kazensky, supra, 65 Cal.App.4th at pp. 52-53.) Substantial evidence is relevant evidence that a reasonable person might accept as adequate to support a conclusion, or evidence of ponderable legal significance that is reasonable in nature, credible, and of solid value. (Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1583; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633.) We review a trial court’s hearsay ruling for abuse of discretion. (People v. Fields (1998) 61 Cal.App.4th 1063, 1067.)
On the issue of the appropriateness of a disciplinary action, we conduct a de novo review of the penalty assessed, and if reasonable minds can differ with regard to the propriety of the disciplinary action imposed by the administrative agency, we will find no abuse of discretion. (Deegan, supra, 72 Cal.App.4th at p. 43; County of Los Angeles v. Civil Service Com. (1995) 39 Cal.App.4th 620, 634.) “Discretion is abused where the penalty imposed exceeds the bounds of reason; ... In determining whether the penalty of termination was excessive as a matter of law, the overriding considerations are the extent of harm to the public service resulting from [the employee’s] conduct or the likelihood such conduct, if repeated, would result in such harm; other considerations are the circumstances surrounding [the employee’s] misconduct and the likelihood of its recurrence. [Citation.]” (Paulino v. Civil Service Com. (1985) 175 Cal.App.3d 962, 970-971.)
II.
Hearsay Evidence
In reaching its decision to impose disciplinary action, an administrative agency may not rely solely on hearsay evidence. (Layton v. Merit System Commission (1976) 60 Cal.App.3d 58, 67-68; Borror v. Department of Investment (1971) 15 Cal.App.3d 531, 546-547.) Under Government Code section 11513, subdivision (c), which addresses the admissibility of hearsay evidence in state administrative hearings, “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.”
On appeal, appellant argues that there was insufficient evidence to support the decision to terminate him. He contends that Chief Gomes conceded that the UMC incident by itself did not warrant termination. Thus, asserts appellant, respondents had to rely on other evidence besides the UMC incident in order to support the decision to terminate appellant’s employment. According to appellant, exhibits B, C, D, E, F, G and I are inadmissible hearsay and fail to provide this “other evidence.” Appellant also argues that the fact he was disciplined for sleeping on the job should not be considered because that incident was never relied upon when the decision was made to terminate him. Thus, says appellant, there was insufficient evidence to support the decision to terminate him. We disagree.
In this case, respondents relied upon the UMC incident, the incidents referenced in exhibits K and L, and other hearsay documents to support their decision to terminate appellant. Thus, respondents did not rely solely upon hearsay to support their decision to impose disciplinary action.
On appeal, appellant does not contest the findings related to the UMC incident. The committee found that appellant had violated police department policy and city personnel rules, among other things, by his insubordination during the UMC incident. These findings have been affirmed by the trial court, and we find substantial evidence supports them.
Appellant also does not dispute the admissibility of exhibits K (performance evaluations) and L (appellant’s harassment claim). These exhibits included documents prepared and signed by appellant. As appellant has conceded that the documents are authentic, the hearsay statements in the documents prepared by appellant are admissible as admissions. (See Evid. Code, § 1220 [“Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party….”].) In exhibit K, appellant contested the interpretation of the firing range incident, which was the basis of exhibit J. In exhibit L, appellant challenged the letters of reprimand he received for the incidents referenced in exhibits C (“Code 2” driving), D (red-light citation), E (Claremont Custody Center), F (Cambridge Inn bar), and G (unauthorized tires and service to vehicle). Exhibits K and L are substantial evidence that appellant had a history of discipline, including a recent spate of disciplinary actions.
As the superior court held, “hearsay may be used to explain or supplement other evidence.” (See Gov. Code, § 11531, subd. (c).) Thus, assuming that the other exhibits constitute hearsay, exhibits C, D, E, F, G and J are admissible to explain or supplement exhibits K and L.
We need not decide whether the other exhibits are admissible because we conclude that exhibits A, K and L and exhibits C-G and J are sufficient to constitute the substantial evidence needed to support the superior court’s findings and decision denying the writ of mandamus.
III.
Termination as Grossly Excessive
Appellant contends that termination was grossly excessive because there was insufficient evidence, aside from the UMC incident, to support termination. Because we conclude that there was substantial evidence besides the UMC incident to support respondents’ decision to terminate appellant’s employment, our review is necessarily limited to determining whether termination was outside of the bounds of reason. (Paulino v. Civil Service Com., supra, 175 Cal.App.3d at pp. 970-971.) We conclude that there was no abuse of discretion in this case because the decision to terminate appellant was within the bounds of reason.
Respondents properly relied upon the UMC incident as well as appellant’s recent history of discipline to conclude that suspension was an insufficient remedy. This was not a case where the employee was terminated because of an off-duty incident (see Vielehr v. State Personnel Bd. (1973) 32 Cal.App.3d 187 [a tax representative trainee was dismissed for off-duty possession of marijuana]), or where the charged conduct did not prevent the employee from effectively performing his duties (see Skelly v. State Personnel Bd., supra, 15 Cal.3d 194 [excessive to dismiss a doctor for taking extended lunch hours and leaving the office for several hours without permission, because the board failed to show how this conduct inconvenienced others or prevented the doctor from effectively performing his duties]), or where the incident was a single, isolated episode (see Blake v. State Personnel Board (1972) 25 Cal.App.3d 541 [a deputy labor commissioner dismissed for pointing a gun at an individual and warning him to stay away from a female attorney, where the evidence at the hearing indicated this was an isolated episode and there was little likelihood the conduct would reoccur]). Here, appellant engaged in a substantial incident of insubordination while on duty and had experienced numerous recent incidents of discipline. Termination was not grossly excessive.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, J., GOMES, J.