Opinion
G062325
05-07-2024
THOMAS SUNDBERG, Plaintiff and Appellant, v. CITY OF IRVINE et al., Defendants and Respondents
Rain Lucia Stern St. Phalle &Silver and Michael A. Morguess for Plaintiff and Appellant. Liebert Cassidy Whitmore, J. Scott Tiedemann and Alex Y. Wong for Defendant and Respondent City of Irvine. Rutan &Tucker and Jeffrey T. Melching for Defendant and Respondent Marianna Marysheva in her official capacity as City Manager, City of Irvine.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 30-2022-01248887) Ronald L. Bauer, Judge. (Retired Judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Rain Lucia Stern St. Phalle &Silver and Michael A. Morguess for Plaintiff and Appellant.
Liebert Cassidy Whitmore, J. Scott Tiedemann and Alex Y. Wong for Defendant and Respondent City of Irvine.
Rutan &Tucker and Jeffrey T. Melching for Defendant and Respondent Marianna Marysheva in her official capacity as City Manager, City of Irvine.
OPINION
GOETHALS, J.
* * *
This appeal stems from Thomas Sundberg's (Sundberg) termination as a police officer with the City of Irvine (City). Following Sundberg's receipt of a notice of termination, Sundberg sought an appeal pursuant to the terms of the Memorandum of Understanding (MOU) between the City and the Irvine Police Association. Sundberg appealed his termination to the City Manager, Respondent Marianna Marysheva (City Manager). A hearing officer held an evidentiary hearing and determined Sundberg and his expert witness were credible, and then recommended the City reinstate Sundberg. After reviewing the hearing record, the City Manager disagreed and upheld the termination. Sundberg filed a petition for writ of ordinary and administrative mandate; the trial court denied Sundberg's writ.
Sundberg appeals from this denial claiming the City Manager was bound by the hearing officer's determinations on the weight and credibility of the testimony and evidence. The City Manager's refusal to confirm the hearing officer's recommendation, Sundberg contends, violated the terms of the MOU and his due process rights. We disagree. The MOU permits the City Manager to render her own decision. This does not violate Sundberg's due process rights. We therefore affirm the order of the court.
FACTS
The City terminated Sundberg from his employment as a police officer based on allegations he purchased and facilitated the sale of a controlled substance. Sundberg denied the allegations, claiming the substance involved was an over-the-counter supplement. Pursuant to the MOU between the City and the Irvine Police Association, Sundberg appealed his dismissal to the City Manager. The MOU requires the City Manager to appoint a hearing officer to conduct hearings on disciplinary appeals. At the hearing, the parties may be represented by counsel, submit opening and closing briefs, present evidence and testimony, and cross-examine adverse witnesses. The MOU states the "Hearing Officer shall determine the relevancy, weight and credibility of testimony and evidence." At the conclusion of the hearing, the hearing officer shall prepare a "recommended decision." That decision "shall set forth which charges the Hearing Officer sustains or does not sustain and the reasons therefore." Upon receiving the recommendation, "the City Manager may sustain or reject any or all of the charges" and "may sustain, reject or modify the disciplinary action invoked against the employee."
Counsel represented Sundberg at his hearing, which lasted three days. The City called five witnesses, including Sundberg. Sundberg called one expert witness. The hearing was conducted via Zoom video conference; a reporter transcribed the proceeding. Sundberg questioned and cross-examined witnesses through his counsel. Both sides presented documentary evidence and submitted written briefs.
The hearing officer determined Sundberg's expert was credible and relied on that expert's testimony to conclude the substance at issue was an over-the-counter supplement. The hearing officer issued a decision, finding the City did not prove its charges and recommending that the City should reinstate Sundberg.
The City Manager declined to accept the hearing officer's recommendation and instead sustained the charges against Sundberg. After the City Manager issued that decision, Sundberg filed a writ of ordinary and administrative mandamus in the trial court. Sundberg contended the MOU required the City Manager to accept the hearing officer's factual findings and witness credibility determinations. The trial court ruled the MOU did not require the City Manager to accept the hearing officer's factual findings or credibility determinations.
The trial court also ruled the City proved its allegations. Sundberg does not challenge that determination.
DISCUSSION
Sundberg appeals the trial court's ruling. He argues the MOU and due process require the City Manager to defer to the hearing officer's factual findings and credibility determinations. As we explain, we disagree. The MOU vests the hearing officer with the authority to create the record. The MOU gives the City Manager the discretion to decide what to do with that record. Due process does not mandate a different result. Therefore, we affirm the order of the court.
1. Standard of Review
A writ of administrative mandamus is the appropriate means for employees to challenge a city's decision to terminate them following an evidentiary hearing. (Code Civ. Proc., § 1094.5, subd. (a); Save Civita Because Sudberry Won't v. City of San Diego (2021) 72 Cal.App.5th 957, 984.) An employee may base a challenge on allegations the decisionmaker abused its discretion. (§ 1094.5, subd. (b).) The decisionmaker abuses its discretion if it "has not proceeded in the manner required by law." (Ibid.)
Sundberg filed a writ of administrative mandamus and ordinary mandamus. There is a difference. A party may utilize a writ of administrative mandamus to ask a trial court to review agency decisions resulting from an evidentiary hearing, whereas the law permits parties to use writs of ordinary mandamus to review ministerial acts or other decisions not preceded by an evidentiary hearing. (Martis Camp Community Association v. County of Placer (2020) 53 Cal.App.5th 569, 593.) Sundberg appeals the denial of his writ of administrative mandamus.
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
Sundberg's appeal contests the trial court's interpretation of the MOU, and whether that interpretation comports with due process. This presents purely legal issues which require our independent review. (Family Health Centers of San Diego v. State Dept. of Health Care Services (2023) 15 Cal.5th 1, 10.)
An MOU is a contract entered into by two parties; here, the City and the Irvine Police Association. In interpreting an MOU, "[w]e are guided by the well settled rules of interpretation of a contract, endeavoring to effectuate the mutual intent of the parties as it existed at the time of contracting insofar as it is ascertainable and lawful." (City of El Cajon v. El Cajon Police Officers' Assn. (1996) 49 Cal.App.4th 64, 71.) The contract's language is the most reliable indicator of intent. (Ibid.) We review its language '"in light of the instrument as a whole and [do] not use a "disjointed, singleparagraph, strict construction approach.'"" (Ibid.)
2. The MOU
Sundberg argues the MOU requires the City Manager to defer to the hearing officer's factual findings and its determinations related to weight and credibility of the evidence. The argument suggests the parties to the MOU did not intend to give the City Manager the power to conduct a de novo review of the hearing record. Rather, Sundberg asserts the MOU contemplates a deferential relationship between the hearing officer and the City Manager akin to that of a trial court and appellate court.
The City counters that the MOU gives the hearing officer the authority and responsibility to create the factual record which the City Manager can review before making an independent disciplinary decision.
After reviewing the MOU, we conclude the City is correct. We set forth the relevant portions of the MOU:
We reject the City's argument that we must lend appropriate deference to its interpretation because of its "expertise and familiarity with the legal and regulatory issues." It is true we generally "'"defer to an agency's interpretation of its own regulations, particularly when the interpretation implicates areas of the agency's expertise."'" (Gann v. Acosta (2022) 76 Cal.App.5th 347, 355.) But we are not interpreting an agency regulation designed to implement technical, scientific, or specialized programs. We are interpreting a contract two parties bargained for and freely entered. It is our role to discern the meaning and intent of that contract. (Garamendi v. Mission Ins. Co. (2005) 131 Cal.App.4th 30, 41.)
"C. Appeal "
1. Right of Appeal
"When formal disciplinary action has been taken by the department_director or designee and the employee has received written notification of the action, the employee shall have the right to appeal as provided below...."
"3. Hearing Procedure
"a. The City Manager shall appoint a Hearing Officer to conduct hearings on appealable disciplinary actions imposed pursuant to this Article....
"b. Hearings shall be conducted in the manner most conducive to determination of the truth, and the Hearing Officer shall not be bound by technical rules of evidence.
"c. The Hearing Officer shall determine the relevancy, weight and credibility of testimony and evidence. The Hearing Officer shall base his/her findings on the preponderance of evidence.
"d. Each side will be permitted an opening statement and closing argument. The department director shall first present his/her witnesses and evidence to sustain the charges and the employee will then present his/her witnesses and evidence in defense.
"e. Each side will be allowed to examine and crossexamine witnesses.
"f. Both the department director and the employee or their respective designees may be represented by legal counsel.
"g. The Hearing Officer shall, if requested by either party, subpoena witnesses and/or require production of other relevant records or material evidence.
"h. The Hearing Officer may, prior to or during a hearing, grant a continuance for any reason he/she believes to be important to his/her reaching a fair and proper decision.
"i. The Hearing Officer shall prepare a recommended decision and forward it to the City Manager after the matter of appeal was taken under submission by the Hearing Officer. The recommended decision shall set forth which charges the Hearing Officer sustains or does not sustain and the reasons therefore.
"j. After receiving the recommendation of the Hearing Officer, the City Manager may sustain or reject any or all of the charges filed against the employee. He/she may sustain, reject or modify the disciplinary action invoked against the employee.
"k. The employee or his/her representative may obtain a copy of the transcript of the hearing upon request and agreement to pay for necessary costs."
The MOU specifies the appeal is "to the City Manager," not the hearing officer. The parties to the MOU gave the City Manager the power to "sustain or reject any or all of the charges" and to "sustain, reject or modify the disciplinary action invoked against the employee." The MOU does not restrict this authority. This reflects the parties' intent to allow the City Manager to act as the ultimate decisionmaker.
The parties structured the MOU to indicate the breadth of the hearing officer's authority; that authority pertains only to the creation of the record. The sections before and after this language set forth the procedures to be used by the hearing officer for creating the record, such as the rejection of the technical rules of evidence, the rules for opening and closing statements, the order of evidence, the burden of proof, the permissibility of examination and cross-examination of witnesses, and the hearing officer's authority to subpoena witnesses or require production of records if requested by either party.
No party claims the City Manager relied on excluded or stricken evidence.
When we read the MOU as a whole, as we must, it becomes evident that the parties' intent was to structure a process whereby a disciplined employee could create a full factual record with the assistance of a neutral hearing officer. Once the hearing officer creates the record, the MOU entrusts the City Manager to review it to reach a final decision.
We are not persuaded by Sundberg's argument that the relationship between the hearing officer and the City Manager is akin to a trial court and appellate court. Trial courts do not make recommendations to appellate courts. It is not the trial court's function to create a factual record so the appellate court can make the ultimate decision.
3. Sundberg's Due Process Rights
Sundberg believes due process considerations require a different interpretation of the record. We disagree.
A police officer has a property right in his or her full-time employment. (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.) The determination of what process is "due" the officer prior to a deprivation of that right depends on the situation and context. (Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212.) At a minimum, due process guarantees the officer some form of notice, a fair hearing, and a meaningful opportunity to be heard. (Ibid.) What is "meaningful" is a flexible concept not constrained by rigid rules, procedures, or formalities. "'"[F]lexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error."'" (Id. at pp. 212-213.) An administrative hearing "need not be conducted with the same rigor demanded of judicial proceedings." (Id. at p. 214.)
In support of his due process argument, Sundberg cites Doe v. Occidental College (2019) 40 Cal.App.5th 208 (Occidental College), Doe v. Claremont McKenna College (2018) 25 Cal.App.5th 1055 (Claremont McKenna), and Absmeier v. Simi Valley Unified School Dist. (2011) 196 Cal.App.4th 311 (Absmeier) for his proposition that due process requires the "fact-finder view witnesses" so that the "adjudicator [can] evaluate their credibility." Again, we disagree.
Occidental College discussed whether the hearing officer in a college sexual misconduct proceeding was biased against the accused party. (Occidental College, supra, 40 Cal.App.5th at p. 220.) Claremont McKenna held a private university deprived a student of his right to a fair hearing because the complainant did not appear in front of the finder of fact; the finder of fact therefore could not assess the complainant's credibility. (Claremont McKenna, supra, 25 Cal.App.4th at pp. 1065-1066.) The fair procedure doctrine, rather than constitutional due process, dictated this outcome. (Id. at p. 1067, fn. 8.)
The fair procedure doctrine is a judicially created concept derived from common law. (Boermeester v. Carry (2023) 15 Cal.5th 72, 87.) Its principles are similar to those of constitutional due process, but not identical. (Ibid.) "Due process is a constitutional right designed to protect citizens from abuses of state power . . . [whereas the fair procedure doctrine] is a more flexible judicially created concept applicable to private organizations in limited situations." (Ibid.)
Absmeier held a school district violated its employee's due process rights when, after a completed disciplinary hearing in front of a neutral hearing officer, the district replaced the hearing officer with its own legal counsel, who was not present at the hearing, to render the recommended decision. (Absmeier, supra, 196 Cal.App.4th at pp. 319-320.) None of these cases support Sundberg's position.
Sundberg also argues that due process requires the decisionmaker to defer to and accord great weight to the findings made by the hearing officer who viewed the witnesses and evidence. In support, Sundberg cites Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474, 493 (Universal Camera Corp.) and Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 319 (Garza). Again, Sundberg misinterprets these holdings.
In Universal Camera Corp., the Supreme Court held that, pursuant to the Taft-Hartley Act and the Administrative Procedure Act (Gov. Code, § 11340 et seq.), appellate courts, when reviewing labor board decisions, must consider the entire record, including the report of the examiner who observed witness testimony. (Universal Camera Corp., supra, 340 U.S. at pp. 492-497.) In Garza, the appellate court held substantial evidence did not support an appeal board's decision because, pursuant to the Workmen's Compensation Act, the board did not resolve evidentiary doubts in favor of the employee, nor did it accept the employee's uncontradicted and unimpeached evidence. (Garza, supra, 3 Cal.3d at pp. 317-319.) Due process concerns did not drive these outcomes.
What matters for due process purposes are the procedural safeguards afforded to Sundberg. Southern Cal. Underground Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533 (Underground Contractors) is illustrative. In that case the City of San Diego permanently banned a contractor due to unethical lapses. (Id. at p. 541.) The city imposed the ban after a hearing in which the city did not allow the contractor to call live witnesses. (Ibid.) Instead, the city permitted the contractor to depose witnesses and present their testimony to the city via written statements, declarations, and deposition transcripts. (Id. at p. 540.) The contractor could also present written evidence and orally argue the case. (Id. at p. 541.)
The contractor argued on appeal due process required the presentation of live testimony in front of the city, which was the ultimate decisionmaker. (Id. at p. 542.) The appellate court disagreed holding the contractor was afforded a meaningful opportunity to be heard. (Id. at p. 546.) The court explained the city notified the contractor of the charges, permitted the contractor to cross-examine witnesses through depositions, allowed the contractor to present declarations, deposition testimony, and other evidence to respond to the charges, and allowed the contractor to argue its case in front of the city. (Id. at pp. 545-546.) Due process does not mandate "that cross-examination occur at the hearing before the [adjudicator] rather than at a deposition." (Id. at p. 547.)
Sundberg had a meaningful opportunity to be heard. The City notified him of the charges. He had a formal hearing which was transcribed in front of a neutral body, during which he presented evidence in support of his position; he cross-examined adverse witnesses, argued his case, and was represented by counsel. This record was provided to the City Manager, who reviewed the record and based her findings and decisions on that record.
DISPOSITION
The order denying Sundberg's writ of administrative mandamus is affirmed. Respondents City and City Manager shall recover their costs incurred on appeal.
WE CONCUR: O'LEARY, P. J. SANCHEZ, J.