HEGER v. CITY OF COSTA MESA

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Court of Appeal, Fourth District, Division 3, California.

 Scott HEGER, Plaintiff and Respondent, v. CITY OF COSTA MESA, et al., Defendants and Appellants.

No. G009238.

Decided: June 10, 1991

 Filarsky & Watt, and Steve A. Filarsky, for defendants and appellants. Richard A. Levine, for plaintiff and respondent.

OPINION

Defendants City of Costa Mesa and its Chief of Police David Snowden appeal from a jury verdict of $65,000 plus $44,887.50 in attorney's fees in favor of plaintiff Scott Heger.   The jury found Heger, a reserve police officer, was terminated on charges which stigmatized his reputation or seriously impaired his opportunity to earn a living or which might seriously damage his standing or association in the community.   Appellants contend:  (1) Heger's liberty interest was not violated;  (2) he was not denied the right to free speech;  (3) he was not denied the right to redress grievances;  and (4) he was not denied the right to inspect his personnel file.   In any event, appellants argue, Heger was not entitled to damages.

FACTS

Heger was employed as a reserve Costa Mesa police officer for six years.   His duties involved the same law enforcement responsibilities as full-time police officers.   Prior to his employment with Costa Mesa, Heger was employed as a reserve deputy sheriff at the Orange County Sheriff's Department for 5 years.   While employed by Costa Mesa, Heger worked 800 to 900 hours a year and his earnings were $9,000 to $10,000 per year.

This appeal arises from four incidents which led to Heger's termination.   On May 15, 1987, he was observed outside city limits in a marked police  unit.   A formal complaint was lodged by the department citing him for taking an improper meal break outside city limits and thereafter departing with excessive speed.   Heger admitted being out of the city, but denied knowledge of location restrictions during meal breaks and denied driving with excessive speed.   He had stopped for 20 minutes to have dinner at a McDonald's which was managed by one of his fellow reserve officers.

On May 16, a verbal citizen's complaint was lodged by Frieda Merkle accusing Heger of being abrupt, uncaring and abusive during a traffic stop at 1:45 a.m.  Merkle, who was 9–months pregnant, also filed a written complaint alleging Heger improperly refused her request to go home to use the bathroom.   Heger admitted he stopped Merkle and denied her request to use the bathroom, but denied being derogatory, insulting or discourteous.   He maintained he was “businesslike and never rude.”   On the same day as the Merkle complaint, the department received another complaint from a Mr. Stafford, accusing Heger of inappropriate demeanor and issuing a citation without justification during a traffic stop.

Pending an investigation of the citizens' complaints, Heger was prohibited from working traffic duties.   He alleged that following the cancellation of his work hours and restrictions from traffic duty, he was not provided any further information concerning the investigation.   On June 3, at a police reserve meeting, Heger approached one of his supervisors, Sergeant Walker, and asked about the investigation.   According to Walker, Heger “interrupted me and stated something to the effect of:  I have been around for a long time Sarge, and I know it doesn't take this long to do a complaint, and I don't think it is right to keep me out of traffic until you finish the complaint.”   Walker added that “[D]uring this brief contact with Heger, I felt his demeanor, tone of voice, facial expressions, body language toward me was in a disrespectful manner.   I immediately realized what the two complaining parties were trying to express to me about Heger's contact with them.”   Walker felt Heger would not accept constructive criticism and noted Heger insisted “it was just bad luck out of 9 tickets, he got two negative people.”

The evidence at trial established Heger issued 1,975 citations during his tenure with Costa Mesa.   Appellant Snowden testified he would not be surprised if Heger had made 500 to 1,000 arrests.   Officer William Rodgers, who worked with Heger at both the Costa Mesa Police Department and the Orange County Sheriff's Department, considered Heger “to be competent, I felt that he was very aggressive and that he probably had, statistically speaking, more activity than all other reserves.”   Rodgers added that Heger “had a unique sixth sense about him to catch criminals.   In fact I think there  was even some jealousy among us that he would go into a situation and seem to ferret out facts much quicker than anybody else.”

On August 24, Sergeant Walker concluded his investigative findings as follows:  “I feel Heger violated Manual Sections:  119—Code 7 outside of city.  [¶] 614—disrespect to a supervisor [¶] 502—conformity to rules and regulations.  [¶] I also feel that Heger may have violated Manual Sections:  [¶] 534—actions unbecoming an officer.  [¶] 612 and 520—discourteous to the public.”

Walker's findings were forwarded to the captain's review board which, on September 3, recommended Heger's termination.   The Walker investigative materials and the findings of the captain's review board were thereafter adopted by appellant Snowden.   On September 10, Heger was terminated.   According to Snowden, the termination was based on “failure to meet standards․”   Heger was not furnished the investigative materials until five days after his termination.   When notified of his dismissal, Heger asked to be allowed to respond because he was “very sure my side of the story wasn't told.”   He was told to contact Snowden, then instructed by the chief's secretary to first speak with Captain Lazar.   At that time, no paperwork from the investigation had been provided to Heger.   On September 14, Heger had a very brief meeting with Lazar and, while he learned additional details about the investigation and was advised Snowden was refusing to meet with him, he was still not given all of the investigative materials.   At this meeting with Lazar, Heger requested an administrative appeal, which was denied, and a copy of his personnel file.   Lazar told Heger he was too busy to make copies, but Heger could pick up the file the next morning.   Lazar testified he directed a clerical employee to make copies, but never followed up.   Thereafter, Heger was given a copy of the captain's review board letter, the investigative report, and internal paperwork on the complaints.   He told Lazar's secretary he had not been given his complete file, and she said she would get back to him.   On September 15, Heger sent Lazar a letter noting the denial of his request for an administrative appeal and stating, “As you recall, I asked you for my complete personnel file and service records to defend myself in my formal request to appeal my termination of employment.”   Lazar did not respond and Heger was not given his complete personnel file.

On December 14, Heger once again made a formal written demand to review his personnel file, this time writing the assistant city attorney and stating he would appear in the personnel office at 9 a.m. on December 23.    When the complete file was still not provided, Heger once again documented the city's failure to provide him full access to the file.1

Following Heger's termination, Lieutenant Dave Brooks made an announcement at a police reserve meeting that Heger had been terminated for violation of department rules, regulations and standards.   Brooks told the group Heger “had been dismissed and the manual sections under which he had been dismissed ․ so they would know exactly what the reasons were.”   Heger testified he was shunned by his law enforcement acquaintances following his dismissal.   Officer Steve Smith, who was present when Brooks made his announcement at the reserve officers' meeting, testified he believed the department must have considered Heger's violations to be serious in order to warrant termination.   Brooks added that based upon his 20 years experience with the department, involuntary termination would be sought only in a serious case of misconduct.   The details of Heger's termination were communicated by Sergeant DeFrancisco, Supervisor of the Costa Mesa Police Department Reserve Officers, to Sergeant Duncan, reserve coordinator for the Orange County Sheriff's Department, prior to Heger's application for reemployment with the Orange County Sheriff's Department.2  Following his termination, Heger was unable to secure employment in law enforcement from the cities of Brea, Laguna Beach, and Perris.   The Orange County Sheriff's Department, which had previously employed Heger for five years, refused to rehire him.   In discussing why he would not be rehired, Sergeant Carlson, co-reserve coordinator for the sheriff's department, told Heger “you really got burned by Costa Mesa.”

Heger filed suit alleging abridgement of rights secured by the federal and state Constitutions, statutory entitlements under California Labor Code section 1198.5, and rights and protections provided by the Public Safety Officers Procedural Bill of Rights, Government Code section 3300, et seq.  The matter proceeded to a jury trial on December 11, 1989.   Appellants' motion for nonsuit following Heger's opening statement was denied.   At the  conclusion of Heger's case, appellants again moved for nonsuit, which was granted as to the alleged violations of the Public Safety Officers Procedural Bill of Rights Act.   At the close of evidence, appellants moved for a directed verdict which was denied, and on December 21 the jury returned a verdict in favor of Heger in the amount of $65,000 damages for loss of professional reputation.   Thereafter, the court granted Heger's motion for award of attorney's fees pursuant to 42 United States Code section 1988, in the amount of $44,887.50 based upon 256.50 hours expended by Heger's counsel.   Appellants' counsel did not object to the number of hours listed by Heger's counsel in the request for attorney's fees.

Appellants' motions for judgment notwithstanding the verdict and new trial were denied by the court, and this appeal followed.

STANDARD OF REVIEW

 We are bound by established rules of appellate review.   Under the substantial evidence test, we view the evidence in the light most favorable to Heger, giving him the benefit of every reasonable inference and resolving all conflicts in support of the judgment.  (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925, 101 Cal.Rptr. 568, 496 P.2d 480;  Orange County Employees Assn. v. County of Orange (1988) 205 Cal.App.3d 1289, 1293, 253 Cal.Rptr. 584.)

 Appellants reargue the evidence at great length, while asserting the case presents questions of law which can be resolved by examining relevant cases and statutes and applying the rules of law de novo.   However, every presumption on appeal favors the correctness of the jury's verdict, and those presumptions are given added support by the trial court's denial of appellants' motion for new trial.  (Lerner v. Glickfield (1960) 187 Cal.App.2d 514, 526, 9 Cal.Rptr. 686.)

 To the extent appellants seek reversal for alleged error in jury instructions, a judgment will not be reversed unless it appears reasonably probable that absent the error the jury would have reached a verdict more favorable to the appellants.  (Shamblin v. Berge (1985) 166 Cal.App.3d 118, 123–124, 212 Cal.Rptr. 313.)   Finally, on review of the jury's award of damages, reversal is appropriate only where there is no reasonable basis for the award.  (Fletcher v. Webster National Life Ins. Co. (1970) 10 Cal.App.3d 376, 408, 89 Cal.Rptr. 78.)   The presumptions favor the correctness of the verdict and the judgment, and “After an award has been approved by the trial court, an appellate court will not set aside the award as excessive unless a consideration of the entire record,  including the evidence, is convincing that the award was the result of passion or prejudice.”  (Ibid.)

Applying these standards of review, we now address the merits.

I

VIOLATION OF LIBERTY INTEREST

Appellants contend Heger's liberty interest was not violated.   They argue he failed to establish threshold stigmatization, severe repercussions outside his professional life, attendant publicity, falsity of the charges, or denial of due process, and that, therefore, he was not entitled to damages.   We disagree.

 It is well established that a probationary or nontenured employee may ordinarily be dismissed without a hearing or good cause, inasmuch as such a dismissal does not deprive the employee of a vested, or property, right.   (Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340, 345, 159 Cal.Rptr. 440.)  “But there is an important exception to this rule, which is founded upon the Fourteenth Amendment.   It arises where there is a deprival of the ‘liberty’ guaranteed all persons by that amendment's due process clause.   The exception will be applied where the probationary employee's job termination, or dismissal, is based on charges of misconduct which ‘stigmatize’ his reputation, or ‘seriously impair’ his opportunity to earn a living [citation], or which ‘might seriously damage his standing or associations in his community’ [citations].  [¶] Where there is such a deprival of a ‘liberty interest’ the employee's ‘remedy mandated by the Due Process Clause of the Fourteenth Amendment is “an opportunity to refute the charge” [and] “to clear his name.” ’  [Citation.]   He must be afforded ‘ “ ‘notice and opportunity for hearing appropriate to the nature of the case’ before the termination becomes effective.” '  [Citation.]”  (Id. at p. 346, 159 Cal.Rptr. 440.)

Thus, even with a probationary or nontenured public employee, “ ‘[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.’ ”  (Board of Regents v. Roth (1972) 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548, quoting Wisconsin v. Constantineau (1971) 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515.)

 While it is true that the mere fact of discharge from public employment does not deprive one of a liberty interest (see Paul v. Davis (1976) 424 U.S. 693, 708–709, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405;  Shepherd v. Jones (1982) 136  Cal.App.3d 1049, 1061, 186 Cal.Rptr. 708) 3 , the termination of an at-will employee based upon complaints of misconduct, as opposed to mere incompetence, implicates protected liberty interests and the employee is entitled to an opportunity to refute the charges.  (Board of Regents v. Roth, supra, 408 U.S. at p. 573, 92 S.Ct. at P. 2707;  Wilkerson v. City of Placentia (1981) 118 Cal.App.3d 435, 442, 173 Cal.Rptr. 294;  Lubey v. City and County of San Francisco, supra, 98 Cal.App.3d at p. 346, 159 Cal.Rptr. 440.)   Clearly, an employee's liberty interest is implicated where charges might seriously damage his standing and association in his community or might foreclose other employment opportunities.  (Hayes v. Phoenix–Talent School District (9th Cir.1990) 893 F.2d 235, 237;  Fleisher v. City of Signal Hill (9th Cir.1987) 829 F.2d 1491, 1495.)

 Special verdict question No. 1 set forth the criteria for a determination of constitutionally significant stigmatization:  “Did defendants terminate plaintiff on charges which stigmatized his reputation or seriously impaired his opportunity to earn a living or which might seriously damage his standing or association in the community?”   The jury answered in the affirmative.   Question No. 2 on the special verdict form asked:  “Did defendants give plaintiff:  (1) Notice of the action taken;  (2) The reasons therefor;  (3) A copy of the charges against the employee;  (4) The materials upon which the charges were based;  and (5) The right to respond either orally or in writing?”   The jury answered in the negative.

The evidence indicated appellant Snowden based the final decision to terminate Heger upon the incidents referred to in the captains' review board recommendation and in the citizens' and internal complaints included in Sergeant Walker's investigative materials.   Snowden testified that such charges were so serious as to be worthy of termination.   He conceded a citizen's complaint of inappropriate demeanor or rudeness, if found to be true, would be a blemish on an officer's personal history.

Captain Brooks testified that because of the rumors about Heger's termination, he advised the group at the police reserve officer's meeting that Heger had been terminated for violations of department rules and regulations,§ and communicated to the group the specific manual sections under which Heger was terminated “so they would know exactly what the reasons were.”   Brooks added that, based upon his 20–year employment with the Costa Mesa Police, only in a serious case of misconduct would the department seek an employee's involuntary termination.   Officer Smith, who was in the audience when Brooks made his disclosure to the reserve officers, testified he was aware Heger had been under investigation and was not permitted to continue working traffic detail, and he believed the department must have considered the charges serious to warrant termination.

Costa Mesa Sergeant DeFrancisco, the supervisor of reserves, advised Sergeant Duncan of the sheriff's department of the investigation by Costa Mesa prior to an executed background release by Heger.   And, Sergeant Carlson, co-reserve coordinator for the sheriff's department, told Heger “you really got burned by Costa Mesa” when explaining why the sheriff's department refused to rehire him.   In addition to being unable to regain employment with the sheriff's department, Heger was rejected by Brea, Laguna Beach, and Perris.   Finally, Heger testified he suffered severe repercussions outside his professional life by being shunned by his law enforcement friends following his dismissal.   Thus, there was substantial evidence upon which the jury could base its findings that the termination by appellants stigmatized Heger's reputation or seriously impaired his opportunity to earn a living, or might have seriously damaged his standing or association in the community.

Appellants seek to rely upon Bishop v. Wood (1976) 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684, but there the only stigmatizing disclosures were through purely private communications to the plaintiff concerning his discharge.   In the instant case, there was substantial evidence upon which the jury could find stigmatization from disclosures by appellants to persons other than Heger.

 Appellants next contend Heger failed to deny the charges lodged against him.   Where a probationary or nontenured employee does not deny charges of misconduct leading to dismissal, his contention of due process deprivation will be rejected.  (See Codd v. Velger (1977) 429 U.S. 624, 627–629, 97 S.Ct. 882, 883–885, 51 L.Ed.2d 92;  Lubey v. City and County of San Francisco, supra, 98 Cal.App.3d at p. 346, fn. 2, 159 Cal.Rptr. 440.)

 Here, though, Heger disputed the truth of the complaints referred to in Walker's investigation and requested he be allowed to clear up the falsehoods and misconceptions because he “was very sure that my side of the story wasn't told.”   He told Sergeant Walker during the investigation on the Stafford complaint that he “acted professionally and in a business like  manner.”   With regard to the Merkle complaint, he claimed he “was business like and never rude.”   As to the internal complaint concerning the dinner break outside city limits and departing at an excessive speed, Heger denied knowledge of location restrictions for dinner breaks and categorically denied “driving faster than traffic.”   Based on Walker's and Heger's testimony, as previously discussed, the jury was entitled to find Heger denied being disrespectful to a supervisor.

II

VIOLATION OF DUE PROCESS

Appellants contend that assuming Heger was stigmatized, he was afforded due process.   The critical question is whether Heger was “afforded a meaningful and adequate opportunity to refute the charges and clear his name.”  (Murden v. County of Sacramento (1984) 160 Cal.App.3d 302, 312, 206 Cal.Rptr. 699.)   “ ‘Essential fairness is a flexible notion, but at a minimum one must be given notice and opportunity to be heard “at a meaningful time and in a meaningful manner.” ’  [Citation.]”  (Id. at p. 311, 206 Cal.Rptr. 699.)

Appellants argue Heger was afforded due process because he had the opportunity to refute the charges against him during his interview with Walker, his meeting with Walker and Brooks at the time of dismissal, his meeting with Lazar after dismissal, and in his written response to the charges.   Appellants rely upon Murden v. County of Sacramento, supra, 160 Cal.App.3d at p. 312, 206 Cal.Rptr. 699, for the proposition that “The risk of error in these proceedings was not so great as to require more formal proceedings.   There is no indication petitioner could have more effectively refuted the charges had he been afforded a trial-type hearing.”

 However, the purpose of notice under the due process clause is to apprise the affected individual of, and permit adequate preparation for, an impending hearing.  (Memphis Light, Gas & Water Division v. Craft (1978) 436 U.S. 1, 14, 98 S.Ct. 1554, 1563, 56 L.Ed.2d 30.)   Heger was not given the investigative material until five days after his termination.   That material comprised the basis for the findings of the captains' review board recommendation which were adopted by appellant Snowden.   He was not even aware he had been charged and found guilty of disrespect to his supervisor until after his termination.   He told appellants he wanted to appeal to refute the charges and vindicate his reputation.   Management personnel who informed him of his dismissal told him to contact appellant Snowden.   Snowden's secretary instructed him to speak with Captain Lazar.   In a very brief meeting on September 14 with Lazar, Heger was not furnished with the investigative  materials and was advised appellant Snowden was refusing to meet with him.

The United States Supreme Court has stated that although the requirements of procedural due process apply only to the deprivation of interests encompassed by the protection of the Fourteenth Amendment, “When protected interests are implicated, the right to some kind of prior hearing is paramount.”  (Board of Regents v. Roth, supra, 408 U.S. at pp. 569–570, 92 S.Ct. at 2705;  see also Lubey v. City and County of San Francisco, supra, 98 Cal.App.3d at p. 346, 159 Cal.Rptr. 440;  Vanelli v. Reynolds School Board District, (9th Cir.1982), 667 F.2d 773, 778.)   It is true that the nature of due process “negates any concept of inflexible procedures universally applicable to every imaginable situation.”  (Goss v. Lopez (1975) 419 U.S. 565, 578, 95 S.Ct. 729, 738, 42 L.Ed.2d 725;  Murden v. County of Sacramento, supra, 160 Cal.App.3d at p. 311, 206 Cal.Rptr. 699.)   However, in the instant case Heger was not only denied an opportunity to respond to the charges prior to dismissal, but was denied sufficient notice and a hearing at a meaningful time and in a meaningful manner.  (See Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865.)

III–VI **

DISPOSITION

We are sympathetic with actions by police departments to rid themselves of incompetent, rude or abusive police officers.   Any public agency charged with the duty of insuring the public safety and tranquility must be ever vigilant in scrutinizing the actions of their employees for any impropriety.   Vigilance, however, does not mean an abandonment of constitutional rights or the denial of a fair review.   While a police department should be quick to reprimand and correct rude and abusive behavior by a police officer, any reprimand which is imposed without proper notice, an opportunity to refute, and a fair review is impermissible and can only lead to a demoralization of officers who do comply with the standards.

Appellants' counsel smugly advised the trial court that “this case will not change one iota the way cities continue to handle termination of police reserve officers.”   In light of our holding—and in light of Chief Snowden's testimony that the department is aware of the law embodied in Lubey and  Wilkerson—we believe it would be wise for counsel to review his advice and prudent for appellants to reconsider that decision.

The judgment is affirmed.   Respondent shall recover his costs on appeal.   In addition, because Heger “succeeded on a significant issue and achieved some of the benefit he sought in bringing the suit,” he is entitled to an award of reasonable attorney's fees for the instant appeal, pursuant to 42 United States Code section 1988.  (Toussaint v. McCarthy (9th Cir.1987) 826 F.2d 901, 904;  Roberts v. College of the Desert (9th Cir.1989) 870 F.2d 1411, 1419.)

The cause is remanded for a determination of the amount of attorney's fees reasonably incurred in prosecuting this appeal.

FOOTNOTES

1.   On December 23, Heger spoke with personnel director William Todd, who professed to have nothing to do with Heger's investigation or termination.   Todd suggested Heger speak with assistant city attorney Eleanor Frey, who was out of the building having breakfast.   According to appellants, the personnel file at city hall is different from the one maintained at the police department, and an employee must review each file separately.   The police department file, according to appellants, may not leave the building “as the file has limited access due to confidentiality.”   Appellants now claim that if Heger had “gone to the police department the morning of December 23 ․ he would have been given access to his personnel file.”   In view of the demonstrated difficulty he had obtaining his complete file, the jury was entitled to believe Heger was being given a classic runaround.   Appellants note there was no reason to withhold the file.   We agree.

2.   In connection with that application, Heger signed a release authorizing the Orange County Sheriff's Department to investigate his past record.   However, DeFrancisco communicated the details of Heger's termination to Sergeant Duncan prior to the execution of that release.

3.   At oral argument, appellants' counsel cited this court to Wheaton v. Freddye Webb–Petett (9th Cir.1991) 931 F.2d 613.   However, that case properly held that accusations which damage one's community standing and associations or foreclose his freedom to pursue other employment implicate a constitutional liberty interest.  (Id.)  The court then appropriately upheld the factual finding of the trial court that Wheaton's liberty interest was not implicated.   Counsel also noted that under Payton v. City of Santa Clara (1982) 132 Cal.App.3d 152, 183 Cal.Rptr. 17, had the city posted or listed the reasons for Heger's termination, it would have violated his right to privacy.  (Id. at pp. 153–155, 183 Cal.Rptr. 17.)   Here, in fact, the reasons were revealed by Captain Brooks to the other employees.   However, the jury did not award damages for the violation of Heger's right to privacy.

FOOTNOTE.   See footnote *, ante.

MOORE, Associate Justice.

CROSBY, Acting P.J., and WALLIN, J., concur.