Opinion
G053733
08-29-2017
THERESA FURMAN, Plaintiff and Respondent, v. CITY OF WESTMINSTER, Defendant and Appellant.
Jones & Mayer, James R. Touchstone and Denise L. Rocawich, for Defendant and Appellant. Adams, Ferrone & Ferrone, Robert L. Baumann and John R. Kristofferson, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00752004) OPINION Appeal from a judgment of the Superior Court of Orange County, Craig L. Griffin, Judge. Reversed and remanded with directions. Jones & Mayer, James R. Touchstone and Denise L. Rocawich, for Defendant and Appellant. Adams, Ferrone & Ferrone, Robert L. Baumann and John R. Kristofferson, for Plaintiff and Respondent.
* * *
This case arises out of disciplinary action taken by the City of Westminster (City) against a civilian police dispatch employee, Teresa Furman. After being terminated by the City for violation of three police department policies, Furman sought judicial review of the City's findings and actions.
The trial court affirmed the City's factual findings concerning policy violations, including a finding that Furman gave false or misleading statements during an internal affairs investigation, but held termination was a "grossly excessive" penalty.
The City appeals the latter determination, arguing the trial court erred in finding the City abused its discretion when it deemed termination appropriate. We agree. Because reasonable minds might, at best, differ as to the propriety of the penalty under the circumstances, we find no abuse of discretion and uphold the City's actions.
FACTS
At the time of the events leading to this lawsuit, Furman was employed as a civilian police dispatcher for the City of Westminster Police Department (WPD). One evening while she was working, a WPD officer played a few seconds of a song from a movie soundtrack over a secondary, nonemergency police radio frequency monitored by dispatch. The officer also messaged the name of the movie to Furman. Although Furman initially denied it, the City later confirmed that Furman responded one minute later by calling the officer and discussing the music with him during a five-to-six minute phone call.
While Furman was on the phone with the officer, a WPD sergeant sent her a message asking about the radio frequency on which the music was played. The sergeant received no response, so he called dispatch and spoke with another dispatcher who said she would ask Furman. In a later interview concerning the series of events, Furman indicated she did not respond to the sergeant immediately because she was "busy at the moment."
Once off the phone with the officer, Furman sent a message to the sergeant stating she heard the music, but could not identify the song. The sergeant asked Furman who had played the music, but she did not immediately respond. Furman later claimed she did not immediately respond because she was walking out of the room at the time the sergeant sent the message.
An investigator later determined that was not the case. Instead of responding to the sergeant, Furman had sent a text message to the officer to let him know about the sergeant's inquiries and to relay to him that the sergeant wanted her to "dime [him] off." In a subsequent interview, Furman claimed she did not have time to respond right away to the sergeant's inquiry because she was too busy and the phones were ringing off the hook. That story also proved to be false.
Still without a response after 15 minutes, the sergeant proceeded to the dispatch room. Once he spoke with Furman in person, she provided the name of the officer with whom she had been talking and texting, and said that "maybe" the officer had played the music. She also said she was not sure and that it "absolutely" could have been someone else. Immediately after the sergeant left, Furman sent a text message to the officer, conveying details of her conversation with the sergeant.
Believing Furman might be in violation of multiple WPD policies, the sergeant spoke with his supervisor. During the ensuing internal affairs investigation, Furman was interviewed twice. She continually insisted she did not know the officer was involved in the incident at the time she initially spoke to the sergeant. Other parts of her story and her explanations changed between the first and second interviews. Things she first claimed did not happen were eventually admitted as having occurred. Excuses she initially gave about being unable to quickly respond because she was busy, changed to an acknowledgement that she certainly could have responded but did not because she did not want to get the officer or herself in trouble. Ultimately, the sergeant conducting the investigation concluded Furman violated three WPD policies.
A memo detailing the facts, the details of the interviews and the findings, was given to a police commander, who reviewed the information and agreed with the findings. The commander stated the thing he found "[m]ost disturbing" was that Furman had lied multiple times to her superiors who were inquiring about what happened, which gave him the impression she was "employing the 'Code of Silence' in an attempt to protect herself and [the officer] from getting into trouble."
All the information and the findings were conveyed to Police Chief Kevin Baker. After reviewing the internal investigation and the underlying facts, Baker provided Furman written notice of his intent to terminate her based on her violation of WPD policies. He acknowledged she had admitted during her second interview that she initially lied. However, he expressed serious concern that the admission only came after she was confronted with "irrefutable facts that exposed [her] blatant untruthfulness."
The City held a Skelly hearing, during which Furman took full responsibility. Nevertheless, Baker concluded Furman lied about not having time to initially respond to the sergeant on the day of the incident, lied about not knowing who played the music, admitted to lying, and generally conducted herself in a manner which indicated an intent to hide the truth to protect herself and the officer. He issued a final notice of discipline terminating Furman for conduct the WPD policy manual listed as grounds for discipline: (1) "failure . . . to promptly report" acts of oneself or another WPD employee when such acts "may result in criminal prosecution or discipline under [the WPD policies]"; (2) "[u]nsatisfactory work performance and/or carrying out proper orders, work assignments or instructions of supervisors without a reasonable and bona fide excuse"; and (3) "[g]iving false or misleading statements or misrepresenting or omitting material information to a supervisor, or other person in a position of authority, in connection with any investigation or in the reporting of any department-related business."
Skelly v. State Personnel Board (1975) 15 Cal.3d 194.
Furman sought city manager review of the termination. The city manager reviewed the evidence, concluded there was a reasonable basis for Baker's decision, and informed Furman he was upholding it. Furman appealed to the City's personnel board, a board charged with holding a hearing and making a recommendation to the city council, which has final administrative review authority.
During the personnel board hearing, Furman's explanation about what she knew, when she knew it, and whether and when she was unavailable to respond to the sergeant, changed once again. The revised story sounded more like her initial statements about the incident, and she claimed the admissions she had made were things her former attorney told her to say.
After receiving extensive evidence and testimony from both sides, the three-member personnel board sustained two of Baker's three findings. The one ground for discipline not sustained concerned whether Furman gave false or misleading statements, or made material omissions to her supervisors or people conducting the internal affairs investigation. Although the board found Furman had been "coy," not wanting to get anyone in trouble, it believed "being coy [was] not tantamount to [being untruthful]." As a result, it deemed termination unwarranted and instead recommended Furman serve a 240-hour suspension without pay, subsequent to which she would be reinstated to the same position.
The city council held a closed session to consider the matter. After reviewing the record and deliberating, it adopted a resolution rejecting the personnel board's findings and recommendation, adopting Baker's findings and sustaining Furman's termination. Included in the resolution were a list of facts supporting its finding that Furman was untruthful. As with Baker, the city council was particularly troubled by Furman's "cover-up and web of deceit," which persisted despite Furman being "afforded three chances, over a protracted period of time[,] to tell the truth. . . ."
Furman filed a petition for a writ of administrative mandamus (Code Civ. Proc., § 1094.5), challenging the City's findings and conclusion, as well as the penalty imposed. With respect to the latter, Furman claimed termination was excessive under the circumstances. The City opposed the petition, asserting the weight of the evidence supported the city council's findings and the city council did not abuse its discretion in deciding to terminate Furman, rather than impose a lesser penalty.
After written briefing and a hearing, the trial court granted Furman's petition, in part, and denied it, in part. The court sustained the city council's findings concerning Furman's violation of three different WPD policies, including the finding she gave false or misleading statements. It, however, believed the discipline was "grossly excessive" because it believed (1) Furman was not purposefully deceptive, but instead only "not completely forthright"; (2) the City "wholly failed to demonstrate any real or potential harm to the public service"; (3) the violations did not occur in the context of "a grave or serious matter"; and (4) the misconduct was unlikely to reoccur given Furman's "otherwise spotless career."
The court ordered the City to reinstate Furman "with full back pay, less any penalty involving suspension without pay that the City may impose in its discretion[,]" so long as such penalty was "fair, just, and reasonable." Judgment was entered accordingly.
DISCUSSION
The City contends the trial court wrongly concluded the city council abused its discretion when it decided termination was appropriate. It argues the court improperly placed the burden of proof on the City, instead of on Furman, and did not give the city council's discretion the necessary deference. Furman asserts the court properly exercised its discretion under what she believes was the appropriate standard of review—independent judgment.
Neither party challenges the sustaining of the city council's findings that Furman violated three WPD policies. --------
We begin by clarifying the appropriate standards of review for the trial court and this court. In the type of case before us, two different standards of review apply in the court below and two different ones also apply in this court.
As for the trial court, because "[t]ermination of a nonprobationary public employee substantially affects that employee's fundamental vested right in employment[,]" the independent judgment standard applies to the administrative process, evidence and findings. (Bautista v. County of Los Angeles (2010) 190 Cal.App.4th 869, 874-875 (Bautista).) The court first must "afford a strong presumption of correctness concerning the administrative findings." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) Giving the findings due deference, the court then exercises its independent judgment to determine if the challenging party has met its burden in demonstrating they were contrary to the weight of the evidence. (Id. at pp. 818-819.) The court may draw its own reasonable inferences and make its own credibility determinations. (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.)
Trial court review of the penalty imposed is subject to a much more deferential standard. "'When the superior court has conducted its review and has concluded that the agency properly found misconduct, the imposition of the appropriate penalty for that misconduct is left to the sound discretion of the agency. "The penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated." [Citation.]'" (Spanner v. Rancho Santiago Community College Dist. (2004) 119 Cal.App.4th 584, 591.) "'Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed.'" (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 53 (Kazensky).) "If reasonable minds may differ with regard to the propriety of the disciplinary action, no abuse of discretion has occurred. [Citation.]" (Flippin v. Los Angeles City Bd. of Civil Service Commissioners (2007) 148 Cal.App.4th 272, 279 (Flippin).)
On appeal, we review matters on which the trial court exercised its independent judgment under the substantial evidence standard. The trial court's findings must be upheld if substantial evidence supports them. "'Evidence is substantial if any reasonable trier of fact could have considered it reasonable, credible and of solid value.'" (Kazensky, supra, 65 Cal.App.4th at p. 52.) In contrast, we review the discipline imposed de novo. We apply the same standard as the trial court, upholding the City's chosen discipline unless "'it is shown that reasonable minds cannot differ on the propriety of the penalty.'" (Flippin, supra, 148 Cal.App.4th at p. 283.)
Furman has not demonstrated the City abused its discretion by choosing termination. As ambassadors of the public trust and trustees of the public interest, public employees should at all times act in a manner that is "beyond reproach." (Lake v. Civil Service Commission (1975) 47 Cal.App.3d 224, 228 (Lake).) Among other characteristics, honesty and integrity are of utmost importance. (Pegues v. Civil Service Com. (1998) 67 Cal.App.4th 95, 107 ["Case law recognizes that '[d]ishonesty is incompatible with the public trust'"].) This is particularly so for law enforcement personnel. (See Ackerman v. State Personnel Bd. (1983) 145 Cal.App.3d 395, 401.)
Because of these high standards, administrative discipline is not excessive merely because an employee's conduct does not cause actual harm. (Hughes v. Board of Architectural Examiners (1998) 68 Cal.App.4th 685, 692-693.) "Even potential discredit to a department, regardless of an employee's motivation in his [or her] conduct, may be considered cause for discharge." (Lake, supra, 47 Cal.App.3d at p. 228.)
Here, the trial court upheld the City's findings Furman violated three WPD policies: she failed to promptly report the officer's actions which were grounds for discipline, her work performance was unsatisfactory due to the unexcused delay in carrying out her supervisor's orders, and she gave false or misleading statements. Under the WPD policy manual, any one of those violations, standing alone was grounds for discipline, which could include termination.
But the trial court erred by concluding the City abused its discretion by imposing termination. Furman worked in a department with critical public safety functions, Baker and the city council's belief that Furman's behavior was a serious issue was reasonable. (See Paulino v. Civil Service Com. (1985) 175 Cal.App.3d 962, 972 ["Dishonesty is not an isolated act; it is more a continuing trait of character"].) While some might consider termination too harsh, as the personnel board and the trial court did, given Furman's otherwise unblemished record and the arguably trivial nature of the initial incident, this simply demonstrates that, at most, reasonable minds may differ.
Because this is not "the exceptional case" in which "'reasonable minds cannot differ on the propriety of the penalty[,]'" we must uphold the City's decision that termination was appropriate under the circumstances. (Flippin, supra, 148 Cal.App.4th at p. 283; see also id. at p. 279; Kazensky, supra, 65 Cal.App.4th at pp. 75-76 [upholding termination of city employees based on single occurrence of falsifying hours worked].)
DISPOSITION
The judgment is reversed, the matter is remanded, and the trial court is directed to deny the petition and enter judgment in favor of the City. The City shall recover its costs on appeal.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.