Opinion
C043180.
11-25-2003
DANIEL FARNSWORTH, Plaintiff and Respondent, v. CITY OF SACRAMENTO CIVIL SERVICE BOARD, Defendant. CITY OF SACRAMENTO, Real Party in Interest and Appellant.
The City of Sacramento (the City) appeals from a judgment granting Daniel Farnsworths petition for a writ of administrative mandate and ordering the Citys Civil Service Board (the Board) to set aside its decision terminating Farnsworths employment with the Citys police department.
The City contends the judgment must be reversed because the trial court applied the wrong standard of review and did not give the administrative law judges findings the appropriate deference. We reject the contention for reasons that follow. Because the City does not challenge the sufficiency of the evidence to support the trial courts decision, we must affirm the judgment.
FACTS
Farnsworth was a police officer from July 1989 until July 2000. During part of that time, he was a narcotics special investigator whose duties included participating in "controlled buys" of narcotics, using a confidential informant to purchase the drugs. Farnsworth recorded any payments made to the informant in an expense voucher, specifying the date on which the controlled buy took place.
Information from a controlled purchase of illicit drugs is used to establish probable cause to search the residence where the purchase took place. After the buy, the investigating officer prepares an affidavit under oath, which chronicles the facts of the investigation and demonstrates the requisite probable cause. The affidavit is relied upon by a judge for purposes of issuing a search warrant.
To protect the identity of the confidential informant, the officer obscures the date the controlled buy actually occurred by indicating a "window" of time during which it took place, rather than identifying the specific date. It is the policy of the Sacramento Police Department and District Attorneys Office that this window period not exceed seven days to ensure the probable cause to search does not become "stale." This means no more than seven days must elapse from the date of the controlled buy until the judge issues the search warrant. If more than seven days elapses, the officer must "freshen" the buy.
Freshening the buy entails making another controlled buy, which means the officer must meet with the confidential informant again, give the informant money for another buy, return to the original buy location, and hope that the informant is able to make another purchase. If the attempted buy is unsuccessful, all of the time and money spent on the original buy and subsequent effort to refresh the buy is wasted.
According to Farnsworth, it is easy, "a snap," to make another controlled buy. One of his former supervisors verified that it was not difficult to refresh a buy. Noting that refreshing stale buys is a relatively frequent occurrence in the narcotics investigation unit, another of Farnsworths former supervisors stated he typically learned about officers doing so "just as a matter of conversation."
During an internal affairs investigation of Farnsworth, it was discovered that there were seven instances in which the date upon which a controlled buy actually took place was not within the window period attested to by Farnsworth in his sworn affidavit in support of a search warrant. Rather, the actual buy took place one day earlier than the stated window period. In each case, the affidavit was relied upon by a judge to issue a warrant to search a suspects residence.
On July 21, 2000, Farnsworth received a notice of termination based on various grounds. The only grounds pertinent to this appeal are those upheld by the Administrative Law Judge (ALJ) pertaining to Farnsworths use of the incorrect dates on the aforementioned affidavits in support of search warrants.
At the hearing before the ALJ, Farnsworth testified that the errors in the affidavits reflected inadvertent mistakes, not intentional deceitfulness. Several officers, including two who had supervised Farnsworth, testified on Farnsworths behalf regarding his good reputation for honesty, conscientiousness, and hard work, and his competence as a police officer.
The ALJ concluded Farnsworths claim that he simply made mistakes on the seven affidavits was not credible. The ALJ noted that Farnsworth participated in sending the confidential informants to make the buys, which were within a short period of time before he wrote the affidavits, and that if he had forgotten the correct dates, he had ready access to the documents regarding when the buys were made. The ALJ found Farnsworth had a motive to lie in order to save the time, effort, and expense of refreshing the buy, and to avoid having to explain to his supervisor why he allowed the buy to go stale.
The ALJ found cause for discipline was established for Farnsworths violation of Civil Service Rules and Regulations, Rule 12.2 (c), (d), (f), (p) and (w), and Sacramento Police Department Manual of Orders, General Order numbers 210.04 and 526.01.
Civil Service Rules and Regulations, Rule 12.2 provides that an employee may be disciplined for "(c) Inefficiency in performance of work which results in performance lower than that which is typically expected of a similar employee in a similar position; [¶] (d) Inexcusable neglect of duty; [¶] . . . [¶] (f) Dishonesty rationally related to employment; [¶] . . . [¶] (p) Willful disobedience of a lawful rule, order or direction; [¶] . . . [¶] (w) Any conduct rationally related to employment which impairs, disrupts, or causes discredit to the employees employment or the public service."
Sacramento Police Department Manual of Orders, General Order number 210.04(B) states in pertinent part: "2. Employees shall serve the public by direction, counsel, and example that do not interfere with the discharge of their police responsibilities. They shall respect and protect the rights of individuals and perform their services with honesty and integrity. [¶] . . . [¶] 8. The willful disobedience of any lawful order issued by a superior, is insubordination. [¶] . . . [¶] 14. Improper performance of or failure to perform assigned police responsibilities during a scheduled shift is dereliction of duty. [¶] . . . [¶] 18. Employees, on or off duty, shall be governed by ordinary and reasonable rules of good conduct and behavior. 19. Employees shall not commit any act, on or off duty, whether negligent, intentional, criminal or otherwise, that could bring discredit upon the Department or the City. 20. Employees shall not file false, inaccurate, or improper information orally or in writing, either personally or through another employee, for criminal prosecution, personal gain, or for unearned recognition, including sick or injury reports, falsification of public records, or for any other purpose." Sacramento Police Department Manual of Orders, General Order number 526.01(A) states in part: "1. The investigator obtaining a search warrant shall conduct a thorough investigation to ensure that there is probable cause to believe the facts and circumstances are true and correct. [¶] . . . [¶] 3. Prior to obtaining the search warrant, the investigating officer shall discuss the facts and circumstances of the investigation with their superior."
The ALJs decision was based on Farnsworths dishonesty and the fact his dishonesty "could jeopardize any convictions obtained due to the results of those searches and could undermine [Farnsworths] credibility with the courts and when testifying during a trial." According to the ALJ, Farnsworths conduct "might make him untrustworthy in the eyes of judges, impaired his credibility as a witness and made him impeachable if he testified in court." The ALJ concluded the City was justified in terminating Farnsworths employment.
The Board adopted the ALJs proposed decision.
Farnsworth filed a petition for a writ of mandate (Code Civ. Proc., §§ 1094.5, 1094.6), alleging the Boards decision was not supported by the weight of the evidence, it was not supported by the findings, and the punishment imposed was excessive and an abuse of discretion. According to Farnsworth, the evidence did not support the finding that he intentionally misrepresented the pertinent dates on the search warrant affidavits as opposed to merely making inadvertent mistakes. He pointed out that the inaccurate affidavits reflected only a small percentage of the total number of affidavits he submitted, and argued this supported his assertion that he simply made mistakes rather than being intentionally dishonest.
The City opposed the petition, contending the weight of the evidence demonstrated that Farnsworth did not simply make repeated mistakes, but that he was purposely deceitful when he submitted the false affidavits. The City also argued termination was warranted, even if Farnsworth was not intentionally deceitful, because his conduct was sufficient to demonstrate inefficiency and inexcusable neglect of duty.
The trial court stated that after reviewing the entire record and exercising its independent judgment, it found the weight of the evidence did not support the ALJs finding that Farnsworth had used incorrect dates because he was dishonest. In the courts view, the number of inaccurate affidavits was not sufficient, either by itself or as a percentage of Farnsworths total affidavits, to indicate a dishonest motive.
In addition, the trial court was not persuaded that the nature of the discrepancies indicated dishonesty. The court placed great weight on the fact the discrepancies were not major and would not necessarily have invalidated the search warrants. In virtually all of the cases, the date of the actual buy was only one day outside the period stated in the affidavit. While this put the buy outside the seven-day period required by the police department as a matter of policy, the buys were still within the period of time in which, under applicable Constitutional standards, a search warrant could have been granted. Moreover, in some cases the dates of the actual buy was within the seven-day period, but the discrepancy occurred because Farnsworth erroneously stated a six-day "window" in his affidavit. Because the stale buys could be refreshed without any particular difficulty, the court was not persuaded that Farnsworth had a motive to lie in the affidavits.
In determining that Farnsworth had not been intentionally dishonest, the trial court emphasized the evidence presented by several police officers concerning Farnsworths reputation for honesty and reliability, and the fact Farnsworth had not been subjected to any disciplinary action of any kind previously. In the courts view, the evidence did not establish dishonesty, only a pattern of inadvertence, carelessness, and negligence in Farnsworths preparation of the affidavits for a search warrant.
The trial court acknowledged that the administrative bodys determination of discipline ordinarily will not be disturbed absent a manifest abuse of discretion. However, because the evidence established only negligence and carelessness, rather than dishonesty, the court found the discipline imposed demonstrated a manifest abuse of discretion. The court noted that this was Farnsworths first offense, he had a reputation for honesty and efficiency among his peers and supervisors, and he had not been given the benefit of progressive discipline.
Finding that some level of discipline short of termination was justified based on Farnsworths pattern of inadvertent errors, the trial court remanded the matter to the Board for it to assess the appropriate level of discipline.
DISCUSSION
I
In reviewing an administrative agencys decision affecting a law enforcement officers vested property interest in employment, the trial court exercises its independent judgment and determines whether the weight of the evidence supports the agencys decision. (Barber v. Long Beach Civil Service Com . (1996) 45 Cal.App.4th 652, 658.) In doing so, the trial court has the power to make its own determinations regarding the credibility of the witnesses. (Ocheltree v. Gourley (2002) 102 Cal.App.4th 1013, 1017; Barber v. Long Beach Civil Service Com., supra, 45 Cal.App.4th at pp. 658-660.)
However, the administrative findings come before the trial court with a "strong presumption of correctness," and the burden rests with the party challenging the administrative decision to convince the court that the administrative findings are contrary to the weight of the evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) "[T]he presumption provides the trial court with a starting point for review—but it is only a presumption, and may be overcome. Because the trial court ultimately must exercise its own independent judgment, that court is free to substitute its own findings after first giving due respect to the agencys findings." (Id. at p. 818.)
On appeal, the reviewing court does not exercise independent judgment; rather, we determine whether the trial courts findings are supported by substantial evidence. (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 824.)
The City does not claim there is no substantial evidence to support the trial courts judgment. In fact, it contends "the trial court did not correctly perform its review of the record, thus precluding this court from scrutinizing the record for substantial evidence supporting the trial courts decision." (Emphasis added.) Since the City presents no argument in its opening brief, supported by citation to all the relevant evidence in the record, demonstrating wherein the trial courts judgment is not supported by substantial evidence, any such claim is waived. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [appellants brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant, and must show how the evidence does not sustain the challenged finding]; Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1510 [same]; see also Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [appellant must support its argument with exact page citations to the record else the argument may be deemed waived].)
II
The Citys sole contention is that the trial court did not apply the correct standard of review because it did not give great weight to the ALJs decision and it did not place the burden on Farnsworth to prove that the ALJs decision was wrong. The City asserts this conclusion is warranted by the fact the trial court did not expressly state that it gave the ALJs opinion great weight or refer to the ALJs findings. However, this is not enough to demonstrate error absent some authority for the proposition the trial court must intone that, while it used its independent judgment, the court nevertheless had accorded the administrative findings a presumption of correctness.
The trial courts judgment is presumed to be correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent. The appellant must affirmatively show error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Thompson v. Thames (1997) 57 Cal.App.4th 1296, 1308; Spitler v. Childrens Institute International (1992) 11 Cal.App.4th 432, 442.) "We must presume that the court knew and applied the correct statutory and case law." (Thompson v. Thames, supra, 57 Cal.App.4th at p. 1308, citing Evid. Code, § 664 ["It is presumed that official duty has been regularly performed"]; Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 60.)
There is nothing in the record of this case that affirmatively suggests the trial court placed the burden of proof on the wrong party or otherwise failed to accord the administrative decision a presumption of correctness. Hence, the Citys reliance on Fukuda v. City of Angels, supra, 20 Cal.4th 805 (hereafter Fukuda) is misplaced.
In Fukuda, despite stressing that the evidence was "evenly balanced and [that] the party having the burden of proof loses," the trial court reversed the administrative agencys decision to terminate an employee. Consequently, the record affirmatively demonstrated that the trial court placed the burden of proof on the administrative agency, rather than the employee challenging the agencys decision, and therefore did not give the requisite presumption of correctness to the ALJs decision. (Fukuda, supra, 20 Cal.4th at p. 824.)
In light of the absence of any similar affirmative evidence that the trial court applied the wrong standard of review in this case, and the fact that the parties submitted the correct standard to the trial court in their points and authorities, the general presumption of the correctness of trial court judgments controls.
Citing Government Code section 11425.50 and Mason v. Office of Admin. Hearings (2001) 89 Cal.App.4th 1119, the City argues the ALJs credibility determinations are entitled to great weight and the record reflects the trial court did not accord them the appropriate deference because the court did not explain why it rejected the ALJs credibility determinations.
Government Code section 11425.50 provides in pertinent part: "(b) . . . If the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review the court shall give great weight to the determination to the extent the determination identifies the observed demeanor, manner, or attitude of the witness that supports it."
There is no indication in the ALJs decision that his determination regarding credibility was based on the demeanor, manner, or attitude of witness Farnsworth or any other witnesses. Thus, the deference mandated by Government Code section 11425.50 is inapplicable.
As for the Citys reliance on Mason v. Office of Admin. Hearings, supra, 89 Cal.App.4th 1119 (hereafter Mason), it, too, is of no assistance to the City. In Mason, the trial court reversed an ALJs decision that a minor was not developmentally disabled and, thus, did not qualify for certain services offered by the appellant. (Id . at p. 1122.) The ALJs decision was based on the testimony and conclusions of several qualified doctors and experts. The only evidence supporting a contrary conclusion was the opinions of a licensed psychologist, Dr. Roe, and a professor of neurology and pediatrics, Dr. Shields. (Id . at pp. 1132-1137.)
Mason held that these contrary opinions did not support the trial courts judgment reversing the ALJs decision because Roes opinion that the minor was developmentally disabled was not based on any neuropsychological tests, was unsupported by any evidence in the medical records, and was beyond Roes area of expertise. Shields opinion was inadequate because it was based on Dr. Roes unsubstantiated opinion. (Mason, supra, 89 Cal.App.4th at pp. 1134-1137; see also Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135 [The weight to be given an experts opinion depends on the reasons given for it; if it is not based upon facts otherwise proved, or assumes facts contrary to the only proof, it cannot rise to the dignity of substantial evidence].)
Because there was no substantial evidence refuting the other medical experts opinion that the minor was not disabled, and since the trial court was required to give considerable deference to the technical expertise of the administrative officers and experts, as well as the ALJs decision which was supported by detailed findings, there was insufficient evidence supporting the trial courts judgment. (Mason, supra, 89 Cal.App.4th at pp. 1123, 1136-1138.)
In other words, Mason reversed the trial courts judgment because there was no substantial evidence refuting the ALJs decision that the minor was not developmentally disabled, which decision was based on the only reliable evidence in the record. Nothing in Mason indicates it reversed the trial courts judgment simply because the trial court did not explicate why it rejected the ALJs credibility determinations.
Here, it is sufficient that the trial court stated the reasons for its credibility assessment, rather than expressly stating why it rejected the ALJs contrary assessment. It explained that (1) some of the dates on the affidavit were within the seven-day period and Farnsworth had mistakenly stated a six-day window; (2) even if the dates were outside the time frame by one day, it was unlikely that this would invalidate a search warrant; (3) the percentage of erroneous affidavits was small compared to the number of affidavits submitted by Farnsworth; and (4) because, in the courts view, the stale buys could be refreshed without any difficulty, there was no real benefit to Farnsworth from lying, thereby implicitly rejecting ALJs determination to the contrary.
Evidence also was presented that it was easy to refresh stale buys, that officers in the narcotics unit frequently did so, and that one of Farnsworths former supervisors had not been concerned about this. Thus, the record amply reflects that the trial court rejected the ALJs decision because the court was convinced by the weight of the evidence that merely avoiding the need to refresh a controlled buy was not a sufficient motive to lie for someone who had a reputation for honesty and conscientiousness.
The City argues "[a] further indicator that the trial court did not give appropriate consideration to the ALJs decision is that the court failed to articulate the complete basis of that decision," which indicates the termination was not based solely on a finding of dishonesty, but also on findings that Farnsworth failed to display the trustworthiness and good judgment required of a police officer. Therefore, according to the City, the ALJ concluded that cause for discipline was established for inefficiency, neglect of duty, disobedience of a lawful rule, and conduct that impairs, disrupts or causes discredit to employment and the public service.
But the cited "cause for discipline" referred to by the City is simply a recitation of the Civil Service Rules the ALJ found to have been violated. (Civil Service Rules and Regs., Rule 12.2 (c), (d), (f), (p) and (w); see fn. 2, ante.) Government Code section 11425.50, subdivision (b) says in pertinent part: "The statement of the factual basis for the decision may be in the language of, or by reference to, the pleadings. If the statement is no more than mere repetition or paraphrase of the relevant statute or regulation, the statement shall be accompanied by a concise and explicit statement of the underlying facts of record that support the decision."
Accordingly, the cited grounds are relevant only to the extent they are supported by an explicit factual basis. Here, the cited grounds were all based solely upon facts the ALJ believed showed Farnsworth was dishonest, which in turn reflected that he was not trustworthy and did not exercise good judgment. Nothing in the ALJs decision indicates the ALJ found that even if the incorrect dates on the affidavit were the result of a mistake, demonstrating mere negligence as opposed to intentional dishonesty, this still provided justification for terminating Farnsworths employment.
The City emphasizes that "`rarely, if ever, will a board determination be disturbed unless the petitioner is able to show a jurisdictional excess, a serious error of law, or an abuse of discretion on the facts." (Fukuda, supra, 20 Cal.4th at p. 814, quoting Sipper v. Urban (1943) 22 Cal.2d 138, 144 (conc. opn. of Schauer, J.); Mason, supra, 89 Cal.App.4th at p. 1131.)
However, an abuse of discretion on the facts is established where the trial court determines the ALJs decision is not supported by the weight of the evidence. (Code Civ. Proc., § 1094.5, subd. (c).) Here, the trial court found this to be such a case, rare as this might be, and the City has not shown that the courts decision is unsupported by substantial evidence. Consequently, the City has failed to demonstrate that reversal of the judgment is warranted.
DISPOSITION
The judgment is affirmed.
We concur: MORRISON, J., ROBIE, J.