STEFFEY v. PITCHESS

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Court of Appeal, Second District, Division 5, California.

Richard STEFFEY et al., Petitioners and Appellants, v. Peter J. PITCHESS, as Sheriff, etc., et al., Respondents.

B004375.

Decided: February 13, 1985

Lemaire, Faunce & Katznelson, Mark Ellis Singer and Austin T. Smith, Los Angeles, for petitioners and appellants. DeWitt W. Clinton, County Counsel, and Halvor S. Melom, Sr. Deputy County Counsel, Los Angeles, for respondents.

This is an appeal from a judgment denying writs of mandate.   Petitioners sought the writs to direct the Los Angeles County Civil Service Commission to hold evidentiary hearings on petitioners' grievances.   The principal issue presented by this appeal is whether a civil service commission may, in accordance with its rules, deny a full evidentiary hearing to permanent civil service employees who have been discharged.   We conclude that a civil service commission may properly do so in appropriate circumstances, and, further, that petitioners have shown no abuse of discretion by the civil service commission or the trial court in this case.

PROCEDURAL SUMMARY

Petitioners Richard Steffey (hereinafter Steffey) and Allen Briscoe (hereinafter Briscoe) were deputy sheriffs of Los Angeles County with permanent civil service status.   Each, independently, was the subject of disciplinary proceedings within the sheriff's department.   Each, after appropriate notice and opportunity to be heard, was found by the sheriff's department to have violated department rules and to have created due cause for 30-day suspension without pay, and for dismissal at the conclusion of the period of suspension.   Each was appropriately notified in a timely manner of the department's conclusion.   Each requested a hearing before the Los Angeles County Civil Service Commission.   In each of the independent administrative proceedings, the petitioner therein admitted certain of the allegations against him and demanded a full evidentiary hearing as to the propriety of the remedy.   In each case, the commission denied the evidentiary hearing and concluded that the department's actions were justified on the basis of the admitted facts.   Petitioners then each sought relief by way of writ of mandate.   These actions were consolidated in the trial court inasmuch as they presented the same legal issue.   Upon the denial by the trial court of the writs, petitioners then commenced this appeal.

FACTUAL SUMMARY

PETITIONER STEFFEY

Petitioner Steffey was charged with having driven a motorcycle under the influence of alcohol;  engaging in a speed contest with another motorcyclist;  attempting to evade arrest when pursued by the West Covina Police Department, and ultimately, becoming engaged in a high speed pursuit that terminated when Steffey inadvertently turned into a dead-end street.   He was found, two hours after the pursuit, to have a blood alcohol reading of 0.10 percent.   These events allegedly occurred on February 24, 1981.   This incident followed another incident earlier in the same month when he was stopped by the West Covina Police Department for driving in an erratic manner.   The police concluded he was probably intoxicated, but at that time no further action was taken and he was released.   The West Covina police did not report the earlier incident to the sheriff's department until after the second incident.

In Steffey's handwritten statement made on the day following the incident of February 24, he admitted drinking wine earlier in the evening, drinking beer with another motorcyclist, whom Steffey said was an East Los Angeles deputy sheriff.   Steffey said he rode with him, and they both rode fast between stop signs, “did slow down for the stop signs ․ but did not stop at all the stop signs.”   Steffey also said he made several turns before he came to a stop after he saw the red light on the police vehicle behind him.   When he finally stopped, he displayed his sheriff's badge.   According to the reports from the West Covina Police Department and Los Angeles Sheriff's Department investigations, Steffey made a number of other oral admissions, including statements to the effect that he intentionally did not stop immediately upon seeing the red light in order to protect the deputy on the other motorcycle.   The other motorcyclist succeeded in evading the West Covina police.

In his request for a hearing (letter of July 8, 1981), the only specific denial made by Steffey was of the charge he “attempted to evade the West Covina Police causing a high speed pursuit.”   At the hearing before the commission, the commissioners inquired as to what Steffey disputed.   His counsel stated:  “[w]hat he denies is attempting to escape from the West Covina officer.   He denies fleeing after he was aware that somebody was trying to stop him.   That's what he denies.”   The commission then proceeded to deny an evidentiary hearing.

PETITIONER BRISCOE

As to petitioner Briscoe, there are a number of charges.   They all arise from his first assignment to patrol following more than five years of satisfactory service in the custody division.   Several of the charges relate to his preparation of inadequate, inaccurate or incomplete reports, and to the persistence of such deficiencies even after he was given repeated corrective counseling sessions.   He was also charged with missing a scheduled training session and missing a court appearance;  with using offensive language toward a citizen;  with signing a booking slip indicating that that arrestee had received the telephone call when in fact the arrestee had not;  and also with making the converse error.   In addition, other charges involved making alleged misstatements to his superiors.   One allegation involved his mishandling a citizen's telephone call for aid about a minor matter and with subsequently lying to his watch commander when he was asked if he had received that call.   He was also charged with failing to report an incident when he struck an arrested person with a baton, and with denying the incident when questioned about it.   This denial is alleged to have been made even though the incident occurred in the presence of another deputy.

Petitioner originally requested a hearing by letter dated August 19, 1981.   In this letter, petitioner requested a hearing and raised five categories of points:  (1) petitioner's lengthy service as a county employee was not properly considered;  (2) petitioner's record at men's central jail was not properly considered;  (3) petitioner's inability to adapt to patrol functions, at this time, were overly emphasized;  (4) the personality conflict between petitioner and his original training officer was not remedied in an expeditious manner;  and (5) petitioner had no opportunity to respond to the list of alleged infractions.

At the hearing before the civil service commission, the commissioners inquired as to the meaning of the last point.   Petitioner indicated that he meant that after he presented his position within the sheriff's department proceedings, petitioner was informed only that the department denied petitioner's grievance without further elaboration.

The commission concluded that petitioner's letter did not raise any factual disputes and therefore no evidentiary hearing was required.   The commission affirmed the action of the sheriff's department.

Petitioner then, by letter of September 16, 1981, sought a rehearing.   In this five-page letter, petitioner responded to particular paragraphs in the sheriff's letter notifying petitioner of his termination.   By this letter, petitioner specifically disputed that he had in fact struck an arrestee and that his denial of striking the arrestee was false.1  Petitioner also, in essence, denied he intentionally took inappropriate action or failed to take appropriate action and offered statements in mitigation of his deficiencies.   For example, he admitted that he missed the training session because his alarm clock failed to function and he overslept.   However, the letter says “[h]e called the station immediately and informed Sgt. Chenal who informed him that he would be required to make up the missed session at a later time which he did.”   He denied that any misquotations or inaccurate statements in his report were intentionally made.   He admitted missing a court appearance for which he was subpoenaed, but stated that his nonappearance did not cause any delay or postponement of the proceeding.

The commission considered his amended request, and again denied an evidentiary hearing and affirmed the action of the department.

DISCUSSION

 Both sides rely on Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774 and its progeny.   These cases, which follow the United States Supreme Court's pronouncement in Arnett v. Kennedy (1974) 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15, established that permanent civil service employment has a legal status comparable to ownership of property, within the meaning of the Fifth and Fourteenth Amendments of the United States Constitution.   Therefore, a person cannot be deprived of such permanent civil service status without due process of law.   Due process of law includes at a minimum a fair procedure for resolving conflicts before a neutral and detached arbitrator.  (Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484;  Goldberg v. Kelly (1970) 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287.)   Both Arnett, supra, and Skelly, supra, make explicit reference to the right of a permanent civil service employee to a full evidentiary hearing.2

Petitioners claim that in light of these explicit mandates from the United States and the California Supreme Courts' interpretation of the United States and California Constitutions, petitioners have an absolute right to an evidentiary hearing following their dismissal from permanent civil service status.   They contend that civil service commission rule 4.03(b) which gives the commission power to deny such hearings are unconstitutional on their face, and that the application of the rule to these particular petitioners are unconstitutional as applied.3

Petitioner's argument that he has an absolute right to an evidentiary hearing is somewhat strengthened by a consideration of the nature of proceedings before the civil service commission.   The commission affords the employee sole opportunity for an evidentiary hearing on disciplinary actions.   The procedure set forth in the Civil Service Rules of Los Angeles County requires that the employee be advised in writing of the charges against him, and that he has an opportunity to respond.   The department can then proceed to act upon its evaluation of the charges without a formal hearing.   The jurisdiction of the commission is not engaged until the employee challenges the discipline determined by the department.  (Rule 18.02.)   Such procedures have been explicitly held to be consistent with due process by both the United States and California Supreme Courts.  (Arnett, supra;  Skelly, supra.)

 Notwithstanding the importance of an employee's right to a hearing, petitioners' contention that the rule is unconstitutional on its face is easily disposed of.   An employee's right to an evidentiary hearing is not triggered unless some issue is framed by the contentions of the parties that is material and involves a factual conflict.   If there is no factual conflict as to a material issue, there is no reason for an evidentiary hearing.

We find no opinion directly on point so holding.   However, the point appears to be self-evident.   The most simple and direct analogy is to a formal court proceeding.   Ever since the adoption of federal Constitution, no person could be deprived of property without due process of law.   Due process of law means that such a deprivation can not take place without a full evidentiary hearing in a case where there is a factual dispute as to a material point.   However, it is equally well established that demurrers or summary judgments are appropriate means of resolving cases in which there is no disputed issue of fact.  (Code Civ.Proc., § 437;  Fed.Rules Civ.Proc., rule 56, 28 U.S.C.)   The compatibility of such summary proceedings with due process clauses of the federal and state Constitutions has long been recognized.   (Fidelity & Deposit Co. v. United States (1902) 187 U.S. 315, 23 S.Ct. 120, 47 L.Ed. 194.)   The rules of the civil service commission permitting denial of evidentiary hearings do nothing more than incorporate into these administrative procedures the same concept of eliminating hearings where there is no dispute as to material fact.4

The next question is what constitutes a “material dispute of fact” in the context of a civil service disciplinary or dismissal proceedings.

This question in turn depends on an analysis of the commission's function in reviewing disciplinary actions of county departments.   The issue they ultimately have to resolve is framed in rule 18.02 (part C), ordinance No. 12321, section 1 (part), 1981 to “determine whether or not the discharge or reduction is justified.”

Reasons for dismissal or other discipline are set forth in rule 18.031:  “Failure of an employee to perform his or her assigned duties so as to meet fully explicitly stated or implied standards of performance may constitute adequate grounds for discharge, reduction or suspension.   Where appropriate, such grounds may include, but are not limited to, qualitative as well as quantitative elements of performance, such as failure to exercise sound judgment, failure to report information accurately and completely, failure to deal effectively with the public, and failure to make productive use of human, financial and other assigned resources.   Grounds for discharge, reduction or suspension may also include any behavior or pattern of behavior which negatively affects an employee's productivity, or which is unbecoming a county employee;  or any behavior or condition which impairs an employee's qualifications for his or her position or for continued county employment.”   (Ord. 12321, § 1 (part), 1981.)

Thus, the commission may be faced with a question such as whether an employee's failure fully to meet “implied standards of performance” justified his dismissal.   Other criteria include “failure to exercise sound judgment,” and “failure to make productive use of human, financial and other assigned resources.”

In light of the broad and general nature of such standards the commission's role is not limited merely to determining whether the employee's conduct falls within the articulated standards.   Rather its role is threefold.   One function is to resolve factual conflicts about the employee's conduct.   Another is to determine whether such conduct does fall within the prescribed standards for discipline.   The third is to evaluate the conduct in the light of the employee's record as a whole and the department policies and practices to determine whether the department's action was arbitrary, capricious or otherwise an abuse of discretion.  (See Kirkpatrick v. Civil Service Com. (1981) 116 Cal.App.3d 930, 172 Cal.Rptr. 405;  Carroll v. Civil Service Commission (1970) 11 Cal.App.3d 727, 732–733, 90 Cal.Rptr. 128.)

The right of a permanent civil service employee to a full and fair hearing before a neutral tribunal, (Arnett, supra;  Skelly, supra, and cases cited at fn. 1), would be hollow indeed if it did not encompass such factors as whether the discipline imposed was consistent or inconsistent with department general practice and procedures.  (See, e.g., Boyce v. United States (1976) 543 F.2d 1290, 1292–1293, 211 Ct.Cl. 57;  Albert v. Chafee (9th Cir.1977) 571 F.2d 1063, 1068;  Giles v. United States (1977) 553 F.2d 647, 651, 213 Ct.Cl. 602.)  Skelly held that factors to be considered upon review must include the actual harm to the public, the likelihood of recurrence of the offending conduct, and, the seriousness of the conduct and the overall record of the employee.  (15 Cal.3d at 217–220, 124 Cal.Rptr. 14, 539 P.2d 774.)   (See also Hooks v. State Personnel Bd. (1980) 111 Cal.App.3d 572, 168 Cal.Rptr. 822;  Martin v. State Personnel Bd. (1982) 132 Cal.App.3d 460, 183 Cal.Rptr. 295;  Civil Service Assn. v. Civil Service Com. (1983) 139 Cal.App.3d 449, 460, 188 Cal.Rptr. 806.)

In this context, the question of what constitutes a material issue of fact is not susceptible of easy resolution.   No simple formulation can cover cases in which a petitioner disputes some relatively serious charges while admitting others that may be less serious.   For example, the question raised by petitioner Briscoe is whether he is entitled to a hearing on the charges that he struck a prisoner with his baton and then lied about it to his superior, even though he admitted that he had failed to respond to a subpoena, failed to appear at a training session and made inaccurate or incomplete reports.

 It is easier to approach the problem by defining the absence of a material dispute.   A dispute is not a material dispute requiring an evidentiary hearing if the commission determines that the admitted facts constitute legal cause for the discipline imposed, and if the commission further determines that such discipline is reasonable in light of the nature and seriousness of the charges against the employee, and the employee's service record, and is consistent with department policies and practices.   If this determination is made, there is no reason for an evidentiary hearing.

The nature of the record before us makes it appropriate to include some discussion as to what is meant by what is admitted by the employee.   Discussions before the commission, especially of the Steffey matter;  included references by counsel and commissioners to “admissions” reflected in police and sheriff's department reports of statements by the employee to investigating officers.   Such admissions may well be properly considered at an evidentiary hearing, and may ultimately be highly persuasive.   However, such admissions in police reports are not of the nature as to defeat petitioner's right to have evidentiary hearing.   It is elementary that the accuracy of police reports or other reports of conversations is susceptible of dispute.   Indeed, one of the charges against petitioner Briscoe is that his reports were incomplete and inaccurate.   A petitioner's right to an evidentiary hearing on disputed facts plainly includes the right to challenge the accuracy, the completeness, voluntariness or other aspects of reliability of the police reports.   The question of which facts are admitted for the purpose of hearing before the civil service commission must be determined by reference to the papers framing the issue for hearing before the commission, and not to the evidence relied upon by the department.   If such papers, or an oral clarification of them had revealed a substantial dispute about the events of the incident, an evidentiary hearing would have been required.

 Although this opinion includes the foregoing discussion for guidance for the benefit of the future commission proceedings, it is not the role of this court in reviewing the court that reviewed the commission's action to determine whether the record is completely free of blemish.   Rather, our job is to determine from the record as a whole, whether there was abuse of discretion in the trial court below.   We conclude that there was none.

In both instances, petitioners' counsel argued before the commission that the admitted facts were relatively minor and that the discipline imposed was too severe in light of applicants' total record.   In both instances, the commission considered and explicitly rejected these arguments.   Although it did not make formal findings, it is clear that the commission in both instances felt that the conduct of the employees in question, as to which there was no dispute, was more than adequate to permit the sheriff's department, acting reasonably, to terminate their employment.

Officer Steffey's engagement in a speed contest with another motorcyclist while under the influence of alcohol and failing to stop promptly when pursued by the police, coupled with his display of a sheriff badge immediately upon his apprehension, is sufficient cause for his dismissal.

Similarly with petitioner Briscoe, he offers a variety of excuses and circumstances in mitigation for his various failures, but at bottom, he admitted a substantial number of serious failures.   The commission concluded that the sheriff was entitled to demand a substantially higher level of performance than that shown by Officer Steffey's admissions.   Briscoe's case might well have been different if it appeared that the sheriff's department placed reliance upon its version of a disputed charge regarding improper use of force on a prisoner.   In this case, there was never any contention that Steffey's use of force was improper.   In this context, the disputed charge does not appear to be of such extraordinary seriousness, compared to the admitted charges, as to make it appear likely that a different result would be obtained if petitioners' positions were upheld.

In summary, petitioners have made no showing of abuse of discretion by the commission or by the trial court.   The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   The sheriff's department did not contend that the use of force was improper.   The report of the incident includes the reporting officer's remarks that the use of force was justified.   The charge involving this incident was that Briscoe improperly failed to report it, and subsequently falsely denied it to his superiors.

2.   The employee's rights also include timely and adequate notice, confrontation and cross-examination of witnesses, and opportunity to present witnesses and documentary evidence.  (Goldberg v. Kelly, supra, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287;  Morrissey v. Brewer, supra, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484;  Boddie v. Connecticut (1971) 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113;  C.V.C. v. Superior Court (1973) 29 Cal.App.3d 909, 106 Cal.Rptr. 123.)

3.   Rule 4.03(a):  “In cases of discharge or reduction of a permanent employee other than a probationary employee covered by the provisions of Rule 18, or suspension in excess of five days, a timely petition for hearing shall be granted if it states sufficient specific facts and reasons in support of the employee's appeal as provided in Rule 18.02.   The petition shall be denied if such facts and reasons are not stated.”Rule 4.03(b):  “In all other cases provided for in Rule 4.01, the Commission may, at its discretion, grant a hearing or make its decision on the merits based on a review of written materials submitted by the parties concerned.   The Commission shall deny both a request for a hearing and a review of written materials if the petition fails to state sufficient specific facts and reasons, or if in the opinion of the Commission the specific facts and reasons stated, if true, would not entitle the petitioner to any relief.   Moreover, no hearing need be granted if the Commission is of the opinion, based on the moving papers and any responses thereto, that the petitioner is not likely to prevail on the merits of the petition.   No amended petition need be considered if it is not filed within ten business days of the date of denial of the original petition.   No more than one amended petition may be filed.”

4.   Rule 4.03(b) contains the troublesome sentence:  “Moreover, no hearing need be granted if the Commission is of the opinion, based upon the moving papers and any response thereto, that the petitioner is not likely to prevail on the merits of the petition.”   Since the commission does not rely upon this sentence, and it is severable from the remaining sentences, we are not presented in this case with the occasion to interpret this sentence or determine its constitutionality.

CHERNOW, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

HASTINGS, Acting P.J., and EAGLESON, J., concur.

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