HEISE v. GATES

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Court of Appeal, Second District, Division 1, California.

Thomas C. HEISE and Thomas C. Schaper, Petitioners and Respondents, v. Daryl F. GATES, Chief of Police of the Los Angeles Police Department;  Captain Swihart;  Captain Feinberg and Captain Brennan, Members of the Board of Rights of the Los Angeles Police Department;  and Los Angeles Police Department, Respondents and Appellants.

Civ. 69258.

Decided: December 20, 1983

Ira Reiner, City Atty., Frederick N. Merkin, Senior Assistant City Atty., and Catharine H. Vale, Asst. City Atty., for respondents and appellants. Abelson, Brunon & Schneider, and Marta L. Smith, Beverly Hills, for petitioners and respondents.

INTRODUCTION

Appellants (respondents below) Los Angeles Police Chief Daryl F. Gates;  Los Angeles Police Captains Swihart, Feinberg and Brennan, members of the Los Angeles Police Department Board of Rights;  and Los Angeles Police Department appeal from a judgment granting a peremptory writ of mandate in favor of respondents (petitioners below) Thomas C. Heise and Thomas C. Schaper and from an order denying appellants' motion for a new trial.

STATEMENT OF FACTS

Respondents, seeking an investment, inquired into an advertisement offering franchises for the retail distribution of video equipment and tapes.   The franchise agreement contemplated the opening of a retail outlet and the provision of necessary training to the franchisees.   The franchisor assured respondents that the operation was legal and aboveboard;  their conversations with other franchisees disclosed no legal difficulties.

After these preliminary inquiries, respondents obtained a franchise and began a retail operation in Hermosa Beach.   They offered for sale several hundred different video tapes embracing a broad range of subject matter from movies rated “G” and “PG” to those rated “R” and “X” (some of the latter were advertised as “XXX”).   After commencing business, respondents posted flyers on various informal bulletin boards in the Los Angeles Police Department advertising the stock of video tapes available at their store for rental or sale.   Specifically, the flyers promoted “Film Classics,” “Comedy Films,” “XXX Rated Films” and “Dramatic Films”;  it was noted that the business was operated by “L.A.P.D. officers” and a discount was offered to fellow officers.

After Los Angeles Police Officer Efron Rabinowitz, assigned to the administrative vice division, saw one of the flyers on a west valley division bulletin board, he photocopied the flyer and reported the matter to his superiors.   They in turn referred it to the internal affairs division, after which the internal affairs division directed the administrative vice division to investigate.   Consequently, two administrative vice division officers visited respondents' retail outlet and rented three video tapes of movies, entitled “800 Fantasy Lane,” “Candy Stripers,” and “The Other Side of Julie.”   Respondent Heise had displayed portions of two films;  he referred to some of the subject matter as “pornographic” and “kinky.”   Each of these films had been exhibited in various Los Angeles theaters and each was available on video tape through major retail distributors in Southern California.

After viewing the rented tapes, Officer Donald Smith personally formed the opinion that the contents were “obscene” within the meaning of Penal Code section 311.2.   On the basis of this opinion, Officer Smith obtained a search warrant for respondents' business premises.   The warrant was executed on December 22, 1979;  additional video tapes were seized of the three films previously rented, as were tapes entitled “Little Girls Blue.”   Subsequently, respondents were charged with the violation of Penal Code section 311.2, subdivision (a) (offering to distribute obscene matter to others), a misdemeanor.   The criminal proceeding was dismissed after respondents successfully moved to suppress the evidence seized on grounds of jurisdictional defects in the execution of the search warrant.

On March 26, 1980, the Los Angeles Police Department initiated disciplinary proceedings against respondents based on the following charges:

“Count 1. During the year last past, you placed an advertisement on the Unofficial Bulletin Board at [West Valley area Station (Heise)/Venice Area Station (Schaper) ], without prior approval.

“Count 2. On December 21, 1979, at 1010 Aviation Boulevard, Hermosa Beach, you illegally engaged in the sales of pornographic films.

“Count 3. Between November 2 and December 22, 1979, you, engaged in outside employment, at 1010 Aviation Boulevard, Hermosa Beach, without a valid Permit for Outside Employment.

“Count 4. Subsequent to December 22, 1979, you, after being specifically advised not to engage in outside employment without a valid permit for outside employment, engaged in outside employment at 1010 Aviation Boulevard, Hermosa Beach, without an approved Permit for Outside Employment.”

Upon notification of the charges, respondents ceased operation of their business and submitted to the Department applications for work permits.

On May 9, 1980, the complaint was amended so that count 2 read:  “Count 2.   On December 21, 1979, at 1010 Aviation Boulevard, Hermosa Beach, you engaged in unbecoming conduct by engaging in the business of selling pornographic films.”

A Board of Rights hearing commenced on May 13.   From the outset of the hearing, the Department adopted the stance that the legal obscenity of films distributed by respondents was not at issue.   The Department advocate, Lieutenant Borgerding, repeatedly objected to evidence on the issue of obscenity.   The Department also refused to stipulate to a definition of “pornographic.”   Consequently, various witnesses offered conflicting definitions.   The proffered definitions ranged from the application of obscenity standards through the portrayal of actual sexual acts, or of simulated sexual acts, to the depiction of explicit full frontal nudity contained in common newsstand magazines such as “Playboy.”   Dr. James Elias, a professor at California State University and expert in human sexuality, declined to define pornography.   He testified, “pornography, unfortunately, is a lay term;  it is a term that has no legal basis, and has no real scientific basis ․ it has such a vague meaning that I don't think you'll find it in scientific literature or in legal literature.”   The Board members viewed video tapes of two of the seized films.   Although two of the seized films had been the object of independent obscenity prosecutions, none of the seized films had been adjudicated legally obscene.

With respect to count 3, charging respondents with engaging in outside business without a permit as required, conflicting evidence was presented as to the application of Department rule 1/270 to the ownership of a business.   Most witnesses were unable to state with certainty whether the rule was applicable to respondents' activities.   One of the drafters of the “work permit” section of the Los Angeles Police Department Manual testified that rule 1/270 applied only to “employment.”   In contrast, several witnesses interpreted the rule as requiring a permit for any business activity in which an officer was engaged.   Commander Cooper testified that a permit was required before an officer assumed ownership of a business;  however, he conceded the average police officer would not understand the language of the rule in this manner.

Following the conclusion of the hearing, the Board found respondents guilty of counts 2 (unbecoming conduct—selling pornographic films) and 3 (misconduct—violation of the work permit rule).   With respect to count 2, the Board made the following findings:

“First, the issue of the alleged pornographic films distributed by the Accused Officers.   In the Board's opinion, these films, specifically ‘Candy Stripers' and ‘Little Girls Blue,’ are pornographic.

“Testimony by every witness questioned on the pornographic definition issue stated that this term included sexually explicit activity.   Additionally, testimony from Department's and Accused's experts agreed that pornographic is also and necessarily included in obscenity.   It should be pornography is also and necessarily included in obscenity.

“The films in question were prosecuted as obscene.   Thus, they, in our opinion, lay on the threshold between pornography and obscenity.   These films depict sexually explicit activity, which in our lay opinion, is deviance by nature.

“․

“․ [T]he officers themselves held the film in question to be pornographic by so stating in the undercover investigation.   Officer Heise described some of the film in his store as kinky.

“Secondly, we considered the activity of the officers in distributing these films as conduct unbecoming an officer of this Department.   We concluded that the officers in distributing these films comprised [sic] their obligation as a police officer, and their oath of office by entering into an activity that was in direct conflict with the interest of this Department.   The officers distributed films that were the subject of an investigation by the Department and subsequent prosecution.”

The Board thereafter determined that each officer be suspended without pay for 66 days, retroactively to April 1, 1980.

CONTENTIONS

I

Appellants contend the trial court abused its discretion in finding no support in the evidence for the administrative finding that the subject video tapes were pornographic in that the court did not view the tapes.

II

Appellants further contend the trial court erred in finding respondents were not afforded adequate notice either of the charges to be adjudicated by the Board of Rights or of the proscribed nature of their activity.

III

Appellants aver the trial court erred in finding that Department rule 1/270 lacks the required specificity.

IV

Finally, appellants assert the trial court's finding of no substantial evidence to support the administrative finding that respondents engaged in outside business without the required work permit was an abuse of discretion.

DISCUSSION

I

Appellants contend the trial court abused its discretion in finding no support in the evidence for the administrative finding that the subject video tapes were pornographic, in that the court did not view the tapes.   We find no merit in this contention.

The trial court based its finding on the following:  “(a) there is no evidence that the tapes involved were legally obscene;  and (b) petitioners did not have notice prior to commencing their business that selling or leasing the applicable tapes was a conflict of interest.”   The reference to a conflict of interest in the latter statement is taken directly from the administrative finding and will be discussed, infra.

 Appellants primarily focus their attention on the first portion of the trial court's finding:  “(a) there is no evidence that the tapes involved were legally obscene; ․”  They argue that such a determination could not be made without viewing the video tapes.   In support, they point to the principle that expert opinion evidence is not required to determine whether material is obscene (People v. Enskat (1973) 33 Cal.App.3d 900, 913–914, 109 Cal.Rptr. 433) and the courts' use of the terms “pornography” and “obscenity” interchangeably.  (Ibid.)  However, the terms were not employed interchangeably in the instant proceeding.   The Department was at great pains to remove the issue of obscenity from the hearing, and the Board of Rights took equal pains to avoid any reference to obscenity or the legal definition thereof in its finding.   Inasmuch as legal obscenity was not at issue in the administrative proceeding, it necessarily follows there was no evidence the tapes were legally obscene.   The record considered by the trial court amply supports that conclusion;  viewing the video tapes would have added nothing.   Hence, the trial court's failure to do so was not an abuse of discretion.

II

Appellants further contend the trial court erred in finding respondents were not afforded adequate notice either of the charges to be adjudicated by the Board of Rights or of the proscribed nature of their activity, i.e., that it created a conflict of interest.   We agree.

 Contrary to the position taken by respondents and the court below, there is substantial evidence in the record of implied departmental guidelines as to the definition of “pornographic films” as utilized in the instant proceeding.   There was uniform agreement that “pornography,” at least, includes material which meets the legal definition of obscenity as well as sexually explicit material which depicts deviant sexual behavior.   Indeed, respondents recognized this definition of “pornography,” which clearly encompasses the films at issue herein.   Respondent Heise referred to the films as “pornographic” and “kinky”;  “kinky” is a commonly recognized vernacular for sexually deviant conduct.

Moreover, knowledge that purveying this type of pornographic material to the general public and to fellow police officers was inconsistent with the standards of professional law enforcement may be imputed to respondents.   A standard of conduct may be sufficiently certain to provide fair warning by reference to the “common knowledge of members of the particular vocation.”   (Perea v. Fales (1974) 39 Cal.App.3d 939, 942, 114 Cal.Rptr. 808.)   Hence, in some factual contexts, the obvious nature of the relationship between conduct and fitness is clear.  (Vielehr v. State Personnel Bd. (1973) 32 Cal.App.3d 187, 194, 107 Cal.Rptr. 852.)   By their very nature, certain acts undertaken by those charged with the administration and enforcement of laws are inimical to the public service.  (See, e.g., Hooks v. State Personnel Bd. (1980) 111 Cal.App.3d 572, 168 Cal.Rptr. 822;  Warren v. State Personnel Bd. (1979) 94 Cal.App.3d 95, 156 Cal.Rptr. 351.)

Any action of a police officer which flirts with illegality undermines his effectiveness and credibility, as well as that of the organization he serves, as an enforcer and administrator of laws.   In addition, such conduct tends to undermine intradepartmental discipline and morale.   From respondents' conduct in advertising the subject films to their fellow officers as “XXX Rated” and in describing them as “kinky,” it is clear respondents knew these films dwelt on the outer limits of protected speech, skirting the boundary of legal obscenity.   It follows that they knew they were flirting with illegality in offering these films for sale.

 Hence, respondents' activities conflicted directly with the Department's efforts to investigate these films, which reasonably must have been seen as potential candidates for prosecution, thereby reflecting adversely on respondents and on the Department, while tempting fellow officers to engage in similar flirtations with illegality.   Their acts were clearly inimical to service in professional law enforcement and in conflict with their official duties.   Respondents must have known the risks involved;  indeed, respondent Schaper acknowledged the possibility of a conflict when he was interviewed during execution of the search warrant.   The foregoing provides more than sufficient certainty to fulfill notice requirements and to support the administrative finding of unbecoming conduct.

 We note, further, that respondents gain nothing from the fortuitous circumstance that the proscribed conduct at issue herein involves arguably protected speech.   A public entity has authority to discipline certain types of protected activity, including speech, to maintain effective discipline and to prevent the disruption or impairment of public service.  (Stanton v. State Personnel Bd. (1980) 105 Cal.App.3d 729, 741, 164 Cal.Rptr. 557.)   As discussed, ante, the particular form of arguably protected speech in which respondents engaged clearly impaired the efficacy of public service in the context of law enforcement and tended to undermine discipline.

In sum, we hold the trial court erred in finding a lack of adequate notice either as to the charges or the nature of proscribed conduct.   The application of the “common knowledge” standard enunciated in Perea v. Fales, supra, 39 Cal.App.3d 939, 942, 114 Cal.Rptr. 808 compels the conclusion that respondents had fair warning that certain of their activities involved conduct unbecoming to a professional law enforcement officer.

III

Appellants aver the trial court erred in finding that Department rule 1/270 lacks the required specificity.   Again, we agree.

Los Angeles Police Department Manual rule 1/270 provides in pertinent part:

“An employee shall not enter into outside employment without having first submitted a summary of proposed duties, location, and employer.   If it is determined that proposed outside employment is incompatible with Department employment, the employee shall be notified as soon as possible of such determination and that the employment is prohibited.

“․

“Prohibited activities include those which:  * Involve any employment activity or enterprise for compensation which is inconsistent, incompatible, in conflict with, or inimical to, his duties as an employee of the Los Angeles Police Department or with the duties, functions or responsibilities of the Los Angeles Police Department.”

 A statute or regulation otherwise uncertain in its terms may be made reasonably certain “by reference to other definable sources” (American Civil Liberties Union v. Board of Education (1963) 59 Cal.2d 203, 218, 28 Cal.Rptr. 700) or to the intent of the promulgating agency (People v. McCaughan (1957) 49 Cal.2d 409, 317 P.2d 974).   Reference to the common understanding of the word “employment,” or to common definition of the term, does not entirely remove the element of uncertainty in the language of rule 1/270.   To “employ” is “to use or engage the services of,” “to provide with a job that pays wages or salary.”  (Webster's New Collegiate Dict. (8th ed. 1979) p. 370.)   As the term “employment” is commonly understood, it is broad enough to embrace the concept of “self-employment,” but need not do so.

Throughout its text, rule 1/270 makes reference solely to “employment,” “employer” and “employee.”   It makes none to business activity or business ownership.   Hence, while rule 1/270 is not per se impermissibly vague, it is not certain that its definitional terms encompass the activity in which respondents were engaged.   Accordingly, we refer to the apparent intent of the promulgating agency in drafting the rule, as evidenced by the statutory authority underlying the rule and the Department's subsequent interpretations thereof.

 Where the construction of an administrative regulation is at issue, the promulgating agency's interpretation is entitled to controlling weight unless it is clearly erroneous or inconsistent with the purpose of the regulation.  (See Bellwood General Hospital v. Schweiker (9th Cir.1982) 673 F.2d 1043, 1044;  Pacific Legal Foundation v. California Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 111, 172 Cal.Rptr. 194, 624 P.2d 244.)   The record reveals a consistent pattern, on the part of those Departmental personnel who dealt with rule 1/270 on a daily basis, of construing it as applicable to any business activity, including those characterized as self-employment, in which a police officer involved himself.   This construction is consistent with Government Code section 1126, which authorizes the adoption of local rules covering the application of section 1126.

Section 1126, subdivision (a) provides in pertinent part:  “․ a local agency officer or employee shall not engage in any employment, activity, or enterprise for compensation which is inconsistent, incompatible, in conflict with, or inimical to his or her duties, functions, or responsibilities of his or her appointing power or the agency by which he or she is employed.”   From the utilization of the phrase “any employment, activity, or enterprise for compensation,” it is clear the scope of section 1126 extends to any business-type activity, including those involving ownership and self-employment.   The clear intent of limitations on the pursuit of outside activities-for-compensation for public employees—to prevent conflicts of interest or the impairment of public service or public confidence therein—compels the conclusion no reasonable regulation would limit its scope to employment-by-others.   Moreover, from years of application of the departmental policy, respondents must have understood the scope of the regulation to extend to any activity for compensation;  it is apparent that many other in the Department so understood it.

In support of their interpretation, respondents rely on the testimony of one of the original drafters of rule 1/270 to the effect that it was intended to apply only to “employment” in the usual sense;  that is, employment by another.   However, the declarations of an employee involved in the original drafting of a regulation are entitled to little credence as to the meaning of the regulation.  (Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 311, fn. 8, 118 Cal.Rptr. 473, 530 P.2d 161.)   Inasmuch as the intent of the Department in drafting the regulation, derived from the purpose underlying Government Code section 1126 and the Department's subsequent interpretation thereof, gives sufficient certainty to the meaning of the term “employment,” the trial court erred in holding 1/270 to be impermissibly vague.

IV

Finally, appellants assert that the trial court's finding of no substantial evidence that respondents engaged in outside employment without the requisite work permit is an abuse of discretion.   Apparently, the trial court's finding is premised on the impermissible vagueness of rule 1/270 and the corollary that respondents had no knowledge a work permit was required until they were verbally so informed late into the investigation of their conduct;  ergo, since they ceased operating their business at that point in time, there was no violation of the rule after they first received adequate notice.

 The trial court's finding is clearly in error, for it is founded upon an erroneous conclusion of law.   In that respondents did have adequate notice of the circumstances in which a work permit was required from the commencement of their business operation, the administrative finding of misconduct must be measured against the evidence of their conduct from that point in time.   The evidence is uncontroverted that respondents neither applied for nor received a work permit until disciplinary action was imminent.   On that state of the evidence, the administrative finding must be affirmed.

The judgment is reversed, and the trial court is directed to enter a judgment denying the petition for writ of mandate.

SPENCER, Presiding Justice.

LILLIE and L. THAXTON HANSON, JJ., concur.

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