Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CPF 05-505769
Plaintiff Anthony Nelson, a member of the San Francisco Police Department (Department), was charged with neglect of duty and use of unnecessary force by the Office of Citizen Complaints (OCC) of the San Francisco Police Commission (Commission). The charges arose from Nelson’s baton strike on a protester during demonstrations over the invasion of Iraq in 2003. After a lengthy evidentiary proceeding, the Commission rejected the charge of unnecessary use of force, but it concluded that Nelson had filed an intentionally false, self-exonerating report about the incident. Following the recommendation of the police chief, the Commission voted to terminate Nelson from the Department.
Nelson argues that the evidence does not support the conclusion that he filed an intentionally false report, that he was deprived of due process in connection with the finding that his report was intentionally false, and that the Commission abused its discretion in terminating him. We affirm.
Margulies, J.
I. BACKGROUND
In March 2003, Nelson was a San Francisco policeman. He had a total of eight years’ police experience, three with the Department. On March 20, 2003, he was assigned to crowd control work in connection with a series of demonstrations organized to protest the American decision to invade Iraq. As a result of his work that day, Nelson was charged by the OCC with three allegations of misconduct: (1) the use of unnecessary force, for striking a woman with his baton during a confrontation with protestors; (2) neglect of duty, for writing an inaccurate incident report of the circumstances surrounding the baton strike; and (3) neglect of duty, for making an inaccurate log entry of the baton strike.
The Commission conducted an administrative hearing into the charges. Witnesses at the hearing included Nelson, his supervising officers, and protesters and other persons present that day. The evidence showed that on the morning in question, the police anticipated a busy and potentially difficult day. Several hundred officers had been mobilized. The police were concerned about reports that the protestors would be armed with items that could be used as weapons, such as rocks, bottles, sticks, dowels, and metal or PVC tubing.
In addition to his basic work controlling the crowds, Nelson was given the added responsibility of watching over a new recruit, Officer McKendry, who would be working in the same platoon as Nelson that day. Nelson’s lieutenant asked Nelson to keep a particularly close eye on McKendry, who had no prior experience with large-scale crowd control and whom the lieutenant viewed as a “sub-par” recruit.
By 7:00 a.m., Nelson’s platoon had already been called in to break up a group of protestors who had chained themselves together to block traffic at an intersection. The operation required one and one-half hours. The platoon had run-ins with three more groups of protestors before the baton strike incident, which occurred in late morning at the intersection of Market and 4th Streets. By that time, the officers had been on the streets for four and one half to five hours.
As the officers approached Market and 4th, approximately 100 protestors were “milling about” in the intersection. When the officers formed a line and ordered the protestors back onto the sidewalk, most complied, leaving a group of between 25 and 30 “antagonistic, aggressive” people. After repeatedly warning the remaining protesters to leave the intersection, the platoon sergeant ordered his officers to advance on them. At the same time, the protestors moved forward, toward the police line. Eventually, the two groups were separated by a distance of only a few feet, with about a dozen protestors bunched in the vicinity of Officers McKendry and Nelson. As the officers advanced, a physically large protestor named Ian Walker grabbed onto Officer McKendry’s baton, although Walker did not actually take the baton away. Other officers, including Nelson, immediately came to McKendry’s aid.
Walker’s conduct raised the stakes of the confrontation considerably. A baton is considered a deadly weapon by the police, and they are authorized to use deadly force to recover one that is successfully taken away. In response to Walker’s actions, Nelson’s lieutenant ordered his platoon to “engage” the protestors—in other words, to strike them with batons. The officers on either side of McKendry struck Walker, and he released his grip. Nelson also struck Linda Vaccarezza, a woman located near Walker, severely fracturing her arm.
Following the incident at Market and 4th Street, Nelson’s platoon continued crowd control operations. Before their day was done, they had engaged five more groups of protestors. It was not until the end of the day, two to three hours after he struck Vaccarezza and perhaps nine hours after he reported for duty, that Nelson was able to complete an incident report describing the encounter at Market and 4th Street.
In his report, Nelson described his strike on Vaccarezza as follows: “An unknown WFA rushed towards me. The woman was screaming and also carrying a sign attached to a solid wooden pole. The woman was holding the pole above her head. I feared the woman would strike me. I delivered one baton strike towards zone one. The strike hit the woman possibly on her left arm/hand area. The woman then retreated and disappeared into the crowd.” In testimony before the Commission, other police at the scene confirmed that Vaccarezza confronted Nelson, and other witnesses agreed that she was carrying a sign on a wooden stick.
As it happens, the encounter had been videotaped. The videotape, shot at very close range, is focused on the portion of the police line in the immediate vicinity of McKendry and Nelson. It shows that at the time McKendry first confronted Walker, the officers were advancing, moving slowly and steadily forward, side-by-side. When Walker, facing the officers, refused to yield his ground, McKendry shoved him backward using his baton, which McKendry held with two hands across his chest. Walker reacted by grabbing the baton. Further shoving ensued as the officers attempted to move Walker and other protesters backwards. Vaccarezza is visible from the beginning of the confrontation, initially located a few feet back from the advancing line of officers. Vaccarezza was holding a hand-lettered, rectangular poster board sign. The sign was not attached to a “solid wooden pole,” and did not appear to be reinforced at all. As the officers continued to advance, Vaccarezza, retreating while located to the side and behind Walker, reached out with her right hand and grabbed the back of Walker’s jacket, apparently to pull him away from the officers. Her left hand was outstretched toward Nelson, at about waist height, clutching the side of the poster board sign, which hung from her hand. Nelson swung his baton with one hand in the direction of Vaccarezza’s sign, knocking the sign from her hand and, apparently, striking her arm. There is no indication that she was engaged in the physically threatening conduct Nelson described in his police report. The foregoing happened quickly; the time elapsed from the initial shove of Walker until the strike on Vaccarezza is 13 seconds.
This account of the events on the videotape is consistent with Vaccarezza’s testimony to the Commission. Vaccarezza, a court reporter from Sonoma County, confirmed that her sign was an unreinforced sheet of poster board and that she did nothing to provoke Nelson’s baton strike, aside from standing near Walker.
Following the hearing, a five-member panel of the Commission voted to sustain the charge that Nelson filed an inaccurate police report, but it rejected the charges that Nelson used excessive force and made an inaccurate entry in the use of force log. Imposition of discipline was scheduled for a subsequent Commission meeting.
The log entry was made by Nelson’s sergeant. According to the sergeant, Nelson told him immediately after the confrontation ended that he had struck a female protestor who was holding a sign with a wooden handle. It was the sergeant’s responsibility to ensure that Nelson’s use of force was entered into a log maintained for that purpose at the station. At the end of the day, the sergeant called his station and dictated the log entry to the sergeant on duty, based on Nelson’s comment.
In the interim, the OCC filed a motion urging the Commission to reconsider its refusal to sustain the charge of unnecessary force. The OCC motion also asked the Commission to consider additional evidence in imposing discipline on Nelson, including the record of citizen complaints filed with OCC regarding his conduct, which the OCC claimed to be large in comparison to Nelson’s relatively brief time with the force. In the course of arguing for the consideration of this additional evidence, the OCC asserted that the character of the prior complaints suggested that Nelson’s inaccurate police report was a deliberate misrepresentation, rather than a mistake.
After a lengthy public hearing on the OCC motion, the Commission panel held a closed session. Upon emerging, the panel announced that it had concluded that it was legally permitted to consider the additional evidence proffered by OCC, but it declined to do so because it viewed the evidence as unnecessary. The Commission also announced that “its decision last week with regard to [the inaccurate report charge] was that there had been an intentional misrepresentation of the report. That being the position of the OCC, that there was lying, was the correct position demonstrated by the record.”
The Commission explained this conclusion in its formal written findings of fact, issued subsequently. As the findings state, “The evidence, including video footage of the incident and the testimony of Vaccarezza and other witnesses, demonstrates that the events immediately preceding the baton strike did not occur as Officer Nelson described in his statement. Contrary to Officer Nelson’s statement, the evidence shows that Vaccarezza did not rush towards Officer Nelson, did not have a wood-backed sign, did not hold the sign over her head, and did not raise either arm over her head. The evidence shows that Vaccarezza held a large sign made of floppy poster board-type material, with no wooden backing or pole. Vaccarezza held the sign at waist level as she pulled on the jacket of another demonstrator. . . . [B]ased on all the evidence submitted in this matter, the Commission finds that Officer Nelson intentionally wrote and submitted a false description of the incident.”
Discipline was taken up at the next Commission meeting. Chief of Police Heather Fong recommended that, in light of the Commission’s conclusion that Nelson had lied in making his report, he should be terminated. As Fong told the Commission, “The integrity and honesty of peace officers is essential to the criminal justice system. Any officer found to have lied in the course and scope of duty will be the subject of credibility challenges on future arrests and in court proceedings. Because this Commission has found that it was not a mistake that occurred, but rather that . . . a deliberate act of dishonesty took place, I am left with no option other than to recommend his release from the Department.”
The Commission adopted Fong’s recommendation. In its findings, the Commission wrote, “Filing truthful and accurate incident reports is a core duty that all police officers must be able to fulfill without doubt or question. The Commission finds that intentionally filing an inaccurate report is an intolerable breach of duty, and of the public trust. This is particularly the case here, where the officer’s behavior indicates an attempt to divert scrutiny from his own use-of-force against a member of the public. The officer’s conduct in this matter threatens to undermine the mission and effectiveness of the Police Department and its many hard working officers. Moreover, the Commission finds that this rule violation cannot be explained by ignorance of an officer’s duty, and that no amount of retraining can rehabilitate the officer’s effectiveness or ensure that such conduct will not recur.”
Nelson challenged the Commission’s decision in a petition for writ of administrative mandamus in superior court. In a detailed written decision, the trial court denied the petition.
II. DISCUSSION
Nelson contends the Commission’s conclusion that he intentionally falsified his report of the Vaccarezza incident was not supported by the evidence, he was deprived of due process because the notice of charges did not state that he was charged with intentionally making an inaccurate report, and the Commission abused its discretion in terminating him.
A. Evidence of Intentional Misreporting
“The applicable standard of review in a mandamus proceeding depends on the right at issue. When a fundamental vested right is involved, such as the right of a city employee to continued employment [citation], the trial court exercises its independent judgment to determine whether due process requirements were met and whether the agency’s findings are supported by the weight of the evidence.” (Flippin v. Los Angeles City Bd. of Civil Service Commissioners (2007) 148 Cal.App.4th 272, 279 (Flippin).) “Those findings come before the trial court with a strong presumption of correctness, and the burden is on the employee to prove that the administrative decision is contrary to the weight of the evidence. [Citations.] On appeal, we review the trial court’s findings of fact to determine whether they are supported by substantial evidence on the whole record.” (Davis v. Los Angeles Unified School Dist. Personnel Com. (2007) 152 Cal.App.4th 1122, 1130–1131.)
The trial court properly recognized its duty to exercise independent judgment in reviewing the Commission’s conclusion that Nelson intentionally falsified his report. Upholding the Commission, the court noted, “The videotape of the incident showed that Petitioner’s report was inaccurate. Petitioner’s report differed from the facts in ways that would have given Petitioner a stronger justification for the use of force. Certainly Petitioner had powerful incentives to avoid appearing to have used excessive force. Petitioner’s evidence shows it was possible for Petitioner to have been confused as to the facts and written what he believed to be a truthful report. The Commission, however, was in a better position than this Court to evaluate the credibility of the critical witnesses and to give appropriate weight to all the evidence presented.” In a footnote, the court added, “The scene was chaotic and extremely tense. Others at the scene also thought Petitioner faced more aggressive behavior than appears on tape. And Petitioner could not record his recollections for some time. On the other hand, his report differed materially from the visual record. By the time he wrote his report he had time to reflect and consider the consequences of what he wrote. And, of course, he had many reasons not to disappoint his superiors or appear to have overreacted.”
As suggested by the trial court, the nature and extent of the differences between the incident as it is recorded on tape and in Nelson’s report are sufficient to permit an inference of intentional misstatement. Nelson’s report gives the impression that he struck Vaccarezza in response to an immediate, aggressive threat to his safety. As he wrote, “The woman was screaming and also carrying a sign attached to a solid wooden pole. The woman was holding the pole above her head. I feared the woman would strike me.” The tape shows that there was no such threat, at least from Vaccarezza. At the time she was struck, rather than advancing on Nelson with a stick held over her head, she was retreating, holding a floppy piece of cardboard in one hand and Walker’s jacket with the other. Because Nelson’s report creates the impression of a threat to his safety where none existed, it can be inferred that he consciously invented the threat to justify his baton strike. This inference is strengthened, as the trial court noted, by Nelson’s motive to report circumstances suggesting that he had reacted appropriately.
Of course, it is also possible that Nelson honestly misperceived or misremembered the true events. As the trial court noted, the scene was sufficiently tense and chaotic, and the time lapse was great enough, to support such a conclusion. That judgment was for the Commission to make. Our scope of review is more limited. The videotape of the incident, confirmed by Vaccarezza’s testimony, provides substantial evidence to support the conclusions of the Commission and the trial court that Nelson’s inaccuracies were intentional.
Nelson argues that the whole record does not support the trial court’s findings because the testimony of the other officers is essentially undisputed that conditions were sufficiently difficult that Nelson easily could have misperceived what occurred. An expert witness confirmed that under such circumstances police officers commonly misperceive and misremember the conduct of those they confront. Based on this testimony, Nelson concludes that, while his perceptions at the time were inaccurate, he cannot be found to have lied because his perceptions “were as they were” at the time. Nelson’s argument, however, assumes the critical fact at issue: what his true perceptions were. There is no dispute that the difficult conditions made more likely a misperception of threat. The mere fact that conditions existed to support a misperception, however, did not require the Commission to take Nelson at his word regarding his perceptions. The Commission was entitled to conclude that the circumstances at Market and 4th Street, confusing though they were, were unlikely to have caused the degree of “misperception” reflected in Nelson’s report.
In his reply brief, Nelson makes the similar argument that “[w]hether or not Nelson’s perceptions were accurate . . . is not the relevant inquiry in asking whether he intentionally falsified a report. Instead, the question is whether the evidence supported his perceptions.” In fact, the relevant inquiry was whether Nelson was being truthful when he described his perceptions in the report. The “question” was whether the evidence made it more likely than not that Nelson actually perceived something different than he related in the report.
This misunderstanding of the Commission’s conclusion is reflected in Nelson’s argument that the testimony of other witnesses that Vaccarezza was carrying her sign on a wooden stick “corroborated” the perceptions recorded in his report. There is no way that anyone’s testimony could “corroborate”—or, for that matter, contradict—Nelson’s testimony as to what he perceived. Perceptions are by their nature knowable only by the perceiver. In light of the videotaped evidence, the other witnesses’ testimony permits only the conclusion that they formed the same mistaken perception reported by Nelson, which in turn makes more credible his own claim of mistaken perception.
Yet even unanimity of mistaken perception would not compel the Commission to accept Nelson’s testimony. The Commission could still conclude, as noted, that his report of his perceptions departed too far from the reality revealed in the videotape to be credible. Nelson did not merely report that Vaccarezza’s sign was on a stick; he reported that she was holding the stick over her head, creating the impression of an aggressive threat. There was no hint of such a threat on the videotape. Further, while other witnesses remembered Vaccarezza as holding a sign on a stick, and Nelson’s lieutenant recalled that she was moving forward at the time Nelson struck her, no witness recalled that Vaccarezza was holding the stick over her head or was otherwise acting aggressively.
The videotape refutes Nelson’s claim that there was no “objective evidence” that he wrote an intentionally false report, as does the testimony of Vaccarezza herself. The videotape is wholly “objective” evidence that, as noted, permits the inference that Nelson’s report was intentionally false.
Nelson cites the Commission’s conclusion that his use of force was not unnecessary as inconsistent with the conclusion that he falsified the report. We do not agree. The Commission may have been reluctant to second-guess Nelson’s decision to strike Vaccarezza in light of the lieutenant’s order to engage the protesters, Walker’s aggressive conduct, Vaccarezza’s proximity to Walker, and the general confusion prevailing at the time. That deference did not require the Commission to accept as true Nelson’s explanation that he struck her because he feared an imminent attack. The Commission could have concluded merely that Nelson’s blow could not be considered an “unnecessary” use of force because it occurred in response to an order, issued in the larger context of the need to counter Walker’s resistance.
B. Due Process
Nelson contends that what he characterizes as the Commission’s “decision to elevate the disciplinary charge” deprived him of procedural due process because he was not provided advance notice and an opportunity to be heard on the question of his intent in making the report. We agree with the trial court that the Commission did not “elevate” the charge against Nelson when it concluded that his misstatements were intentional and that no violation of due process occurred.
There is no doubt Nelson was entitled to appropriate procedural due process. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 207–208.) The specific requirements of procedural due process are flexible, particularly in connection with administrative proceedings (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1037), and the Commission was not bound by strict rules of pleading. (Smith v. State Bd. of Pharmacy (1995) 37 Cal.App.4th 229, 241.) Nonetheless, Nelson was entitled to sufficient notice of the charges against him to provide him a reasonable opportunity to respond. (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1445.)
The neglect of duty charge sustained by the Commission was an alleged violation of Department General Order No. 2.01. That order prohibits, in very general terms, “[a]ny breach of peace, neglect of duty, misconduct or any conduct by an officer . . . that tends to subvert the order, efficiency or discipline of the Department, or reflects discredit upon the Department . . . .” The charging document expressly alleges the facts found true by the Commission: that Nelson’s written report states that he struck Vaccarezza to avert a threat to his safety, while “film footage” of the incident shows, in effect, that there was no such threat. The document then refers to the Department’s “Report Writing Manual,” which states that “[p]reparing factual and thorough incident reports is one of the most important duties of a professional police officer.”
In light of these allegations, there is no doubt that Nelson was given full and specific notice of the wrongful conduct with which he was charged. It is true, as Nelson argues, that the charging document does not allege whether the inaccuracies in his report were intentional or inadvertent. Nelson’s intent, however, was not a necessary element of the violation alleged. The charge encompasses both an inadvertent and an intentional misstatement, since it constitutes neglect of duty for an officer to make an inaccurate report, regardless of his or her intent. Consistent with this, the Commission initially found that Nelson had created an inaccurate report without making any finding as to his intent. Because intent was not an element of the charge, the Commission did not “elevate” the charge by finding his conduct to have been intentional.
At the hearing, Nelson’s attorney accused the Commission of changing the charge at the last minute to a violation of a different regulation, which counsel characterized as including “an act of deliberate dishonesty or intentional misrepresentation.” Assuming that the other regulation addresses intentional misconduct, that does not mean the charge was changed. As discussed, General Order No. 2.01 also encompasses intentional improper conduct.
Rather, Nelson’s intent in making the misstatements was relevant to the determination of an appropriate punishment. As the trial court noted, “Once the Commission found that the report was inaccurate, they necessarily had to decide what level of blame to attach to Petitioner for the inaccurate report in order to evaluate the appropriate punishment.” The significance of Nelson’s intent to the imposition of punishment was sufficiently obvious that no written notice was necessary. It is plain that the appropriate sanction for an inadvertent misstatement is quite different from the sanction for a misstatement intended to mislead. As a result, Nelson was not deprived of due process by the failure of the charging document to specifically state that the Commission would resolve his level of intent in deciding his punishment, should the charge be sustained.
In any event, Nelson was not prejudiced by his failure to receive such express notice. A party is not deprived of due process as a result of inadequate notice in an administrative proceeding unless that lack of notice in fact prejudiced the party’s defense of the charges. (E.g., Walker v. Superior Court (1991) 53 Cal.3d 257, 272 [“Neither petitioner claims prejudice based on inadequate notice or the absence of an opportunity to respond or be heard on the jurisdictional-amount issue. Accordingly, we conclude that . . . no denial of due process resulted in either case”]; Spitze v. Zolin (1996) 48 Cal.App.4th 1920, 1932–1933; Rhee v. El Camino Hospital Dist. (1988) 201 Cal.App.3d 477, 495.) As noted in Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931, “ ‘A variance between the allegations of a pleading and the proof will not be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense on the merits, and a variance may be disregarded when the action has been as fully and fairly tried on the merits as though the variance had not existed.’ ” (Id. at p. 942.)
The parties’ conduct of the hearing makes it clear they were aware that Nelson’s intent was on trial. In her opening statement, the administrative prosecuting attorney charged that Nelson “lied in his police report about how and why that injury [to Vaccarezza] occurred.” Her cross-examination focused, among other things, on the truth of Nelson’s report. In his redirect examination, Nelson’s attorney examined his client on the same issue, and Nelson testified, “Everything in that statement is true, accurate, my best knowledge, my full knowledge, as much as I knew, as much as I could put words on paper after the incident. That is exactly what I thought happened, what I believe happened.” Both attorneys addressed the issue of intentional falsity—lying—in their closing arguments to the Commission. Finally, one of the commissioners stated that the members had considered Nelson’s intent to have been at issue from the beginning of the proceedings.
Further, the defense Nelson presented demonstrates his awareness of the significance of his intent in making the false report. Were the accuracy of the report all that was in question, there would have been little to defend on this charge, since the videotape reveals beyond any argument that Nelson’s report was inaccurate. Instead, much of Nelson’s defense was directed at persuading the Commission that he could reasonably have perceived himself to be under threat at the time of the baton strike on Vaccarezza. While this evidence was probative on the issue of the reasonableness of the baton strike, it also tended to demonstrate that the report was made in good faith. In particular, the testimony of Nelson’s expert witness, who stated that officers can misperceive and misremember events that occur during times of stress, was important in bolstering the good faith of Nelson’s report. Tellingly, Nelson does not suggest any additional evidence he would have presented had the issue of intent been pleaded in the charging document.
Although Nelson quotes his trial counsel as telling the Commission that Nelson would have presented different evidence if he had known in advance that his intent was at issue, trial counsel did not then, and appellate counsel does not now, suggest any additional evidence that could or would have been presented.
In short, assuming some deficiency in the charging document existed, the matter was “ ‘fully and fairly tried on the merits as though the variance had not existed,’ ” as required by Cooper v. Board of Medical Examiners, supra, 49 Cal.App.3d at page 942. There was no denial of due process.
Nelson relies heavily on Smith v. State Bd. of Pharmacy, supra, 37 Cal.App.4th 229. In Smith, the administrative agency charged a pharmacist with illegally dispensing drugs. When the evidence at the hearing demonstrated that, in fact, the pharmacist’s employees had dispensed the drugs in question, the agency switched to a claim that he was negligent in failing to supervise them. (Id. at pp. 241–242.) As the pharmacist argued, he was prejudiced by this switch, since he was unable to present testimony about the standard of care expected of a pharmacist in supervising and his efforts to comply with that standard. (Id. at p. 244.) There was no similar failure here. The charging document clearly stated the facts on which Nelson was prosecuted, and the significance of his intent was plain throughout the proceeding. (See similarly, Rosenblit v. Superior Court, supra, 231 Cal.App.3d at pp. 1445–1446 [violation of due process where physician was not provided notice of the alleged deficiencies in his treatment of 30 separate patients; court concluded that it was “impossible to speculate how he might have defended had he been informed of the specific problems with each patient”].) Unlike the petitioner in Smith, Nelson does not suggest any evidence that he would have presented if given additional notice.
Nelson also argues that a comparison of the Department’s initial suggested sanction with Chief Fong’s ultimate recommendation demonstrates that the charge had been elevated. As a result of settlement discussions before the hearing, the Department proposed a brief, temporary suspension of Nelson. Ultimately, of course, Chief Fong’s recommended penalty was much more severe. We find no significance in the Department’s original recommendation, since (1) it was in effect a settlement offer, whereas the chief’s recommendation was for punishment following a finding of guilt; and (2) the suggested compromise was rejected by the Commission, suggesting that the Commission found it inadequate. It was the Commission, and not the Department, that was the ultimate arbiter of the charges.
C. Nelson’s Termination
Nelson also argues that the Commission abused its discretion in voting to terminate his employment. We are required to grant substantial deference to an assessment of penalty by an administrative tribunal. The familiar standard is set out in Flippin, supra, 148 Cal.App.4th at page 279: “Judicial 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. [Citation.] ‘Neither a trial court nor an appellate court is free to substitute its discretion for that of an administrative agency concerning the degree of punishment imposed.’ ” Further, “ ‘[i]n considering whether such abuse occurred in the context of public employee discipline, we note that the overriding consideration in these cases is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, “[h]arm to the public service.” [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.’ [Citation.]” (Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 721 (Kolender).) An appellate court conducts a de novo review of the trial court’s conclusion about the penalty assessed, giving no deference to the trial court’s conclusion. (Flippin, at p. 279.)
We find no abuse of discretion in the Commission’s decision. Peace officers “are held to a higher standard of conduct than other public employees.” (California Dept. of Corrections v. State Personnel Bd. (2007) 147 Cal.App.4th 797, 808.) “Honesty, credibility and temperament are crucial to the proper performance of an officer’s duties. Dishonesty is incompatible with the public trust.” (Talmo v. Civil Service Commission (1991) 231 Cal.App.3d 210, 231.) Further, as has often been observed, “[d]ishonesty is not an isolated act; it is more a continuing trait of character. False statements, misrepresentations and omissions of material facts in internal investigations, if repeated, would result in continued harm to the public service.” (Kolender, supra, 132 Cal.App.4th at p. 721.)
There were practical reasons for the Commission’s action. The finding that Nelson lied in making his report would have made it difficult for Nelson to continue police work requiring contact with the public. As Chief Fong testified, “The integrity and honesty of peace officers is essential to the criminal justice system. Any officer found to have lied in the course and scope of duty will be the subject of credibility challenges on future arrests and in court proceedings.” In addition, as the Commission noted, intentionally falsifying a report is a serious breach of trust for a peace officer. In the words of the Commission, “[t]his is particularly the case here, where the officer’s behavior indicates an attempt to divert scrutiny from his own use-of-force against a member of the public.” The practical factors noted by Chief Fong, combined with Nelson’s breach of trust, persuade us that the Commission did not abuse its discretion in terminating him.
Nelson argues that his termination constituted an abuse of discretion because it was based on the evidence of citizen complaints proffered by OCC. The Commission, however, declined to consider that evidence. Further, the testimony of Chief Fong and the written findings of the Commission itself demonstrate that there were sufficient reasons for termination apart from Nelson’s complaint history. We find no basis for Nelson’s claim that his record of past complaints was the reason for his termination.
III. DISPOSITION
The trial court’s judgment is affirmed.
We concur: Marchiano, P.J., Stein, J.