FISCHER v. CITY OF LOS ANGELES (1990)

Petitioner Sharon Fischer appeals from the judgment denying her petition for writ of mandate.   In that petition Ms. Fischer sought to compel respondents City of Los Angeles and Daryl F. Gates to set aside their ruling terminating her from her position as a police officer for the City of Los Angeles.

BACKGROUND

Ms. Fischer was appointed as a probationary police officer for the Los Angeles Police Department on September 23, 1985.   In August 1986, Ms. Fischer was assigned as an undercover narcotics officer at Kennedy High School.   After several students voiced their suspicions as to Ms. Fischer's true identity, she decided to infiltrate a group of football players both for protection and for renewed acceptance among the school populace.   In that group Ms. Fischer befriended the victim, a minor, who was a popular member of the football team.

During the semester Ms. Fischer purchased drugs from seven students all of whom were arrested after the semester ended.   Following Ms. Fischer's assignment, the mother of the minor complained to the department about the tactics Ms. Fischer employed in her investigation.   Ms. Fischer was then suspended from the department based upon the following charges:  (1) That she wrote and delivered letters to the minor during her assignment as an undercover juvenile narcotics officer at Kennedy High School.   The letters contained words and phrases of a sexual nature.  (2) That she “improperly telephoned [the minor] at his residence.”  (3) That she “kissed [the minor], allowed him to fondle her breasts and buttocks, and maintained an improper relationship with him.”   The recommended disposition was that Ms. Fischer be terminated from employment.

Following her suspension the department conducted a “liberty interest hearing” concerning the charges leveled against Ms. Fischer.   At the outset of that hearing Ms. Fischer was informed that the department did not bear the burden to prove the charges against her, that the witnesses listed in the investigation could not be called “unless new proof [could] be established,” and that the primary purpose of the hearing is to attempt to “mitigate the charges or reasons why the conduct may have occurred with character witness testimony.”   Finally, Ms. Fischer was told that “any decision is subject to review by the chief of police and his decision is final.”   Ms. Fischer objected to the hearing procedures on several grounds, including her claim that they did not comport with due process.

At that hearing Ms. Fischer testified that she had, in fact, written letters to the minor, but any sexual matters contained in those letters were intended only as a joke.   She further testified that she once telephoned the minor at home “to establish more of a relationship with him just so he would stay as kind of my bodyguard․”   Lastly, Ms. Fischer denied ever allowing him to kiss or fondle her.   Instead she testified she only allowed him to hug her several times.   After the hearing, the hearing officer recommended sustaining the charges against Ms. Fischer and concluded that “[t]here was no evidence presented by the Defense sufficient to mitigate the charges or recommended penalty.”

Ms. Fischer then filed her petition for peremptory writ of mandate.   In her amended petition, Ms. Fischer, among other things, alleged that the termination of her employment deprived her of “liberty and property without due process of law” and that she was erroneously deprived of her right to a “meaningful administrative appeal.”   In support of that petition Ms. Fischer argued, inter alia, that the department erroneously failed to adhere to the procedures delineated in section 202 of the Los Angeles City Charter prior to terminating her.

Upon taking the matter under submission, the trial court issued a minute order on November 21, 1988, rejecting Ms. Fischer's challenges.   In pertinent part the court ruled:  “[T]he procedure [afforded to Ms. Fischer] is substantially different than the procedure provided for tenured officers under Section 202.   But it is not thereby deficient from a due process standpoint.”   The court rendered its judgment accordingly.   This appeal follows.

DISCUSSION

 We first address Ms. Fischer's contention that she “is entitled to a full section 202 hearing.”   Ms. Fischer urges that she was entitled to the procedural rights afforded under section 202 of the Los Angeles City Charter rather than the limited hearing she actually received.   The City argues that section 202 only applies to nonprobationary officers and that the hearing Ms. Fischer received satisfied due process.

Review of this contention requires an understanding of the genesis of the hearing procedures under which the charges against Ms. Fischer were reviewed.   The parties are in agreement that those hearing procedures, promulgated by the chief of police, were implemented by the department in late 1985 in response to the unpublished opinion of Division Two of this district in Mortimer v. City of Los Angeles (2d Civ. No. 67313) filed on September 14, 1983.¹  In that opinion the court concluded that a probationary employee who is charged with misconduct is entitled to the full hearing rights under section 202 of the Los Angeles City Charter and is not subject to the chief of police's power to terminate probationary employees under section 109.²

In Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340, 159 Cal.Rptr. 440, the court reviewed the dismissal for misconduct, without a hearing, of two probationary employees of the San Francisco Police Department.  There, the court reviewed the dismissal without a hearing of two probationary employees of the San Francisco Police Department for misconduct.   Initially, the court explained that “[i]t is settled law that a probationary (or nontenured) civil service employee, at least ordinarily, may be dismissed without a hearing or judicially cognizable good cause.  [Citations.]․  [¶] 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 association in his community’ [citations]․”  (Id. at pp. 345–346, 159 Cal.Rptr. 440.)

In view of these principles, the Lubey court analyzed sections 8.340 and 8.343 of the San Francisco Charter, which in substance are identical to sections 109 and 202 of the Los Angeles City Charter, respectively.   In order to interpret these sections consistent with the due process rights outlined above, the court concluded that “charter section 8.343, and not charter section 8.340, applies in cases where either a probationary or permanent police officer of the City is disciplined on charges of misconduct, and subject to dismissal or other punishment provided by that section.”  (Lubey v. City and County of San Francisco, supra, 98 Cal.App.3d at p. 348, 159 Cal.Rptr. 440, original italics.)

In reaching this result, the Lubey court took note of our earlier opinion in Kestler v. Los Angeles (1978) 81 Cal.App.3d 62, 146 Cal.Rptr. 61, and interpreted that decision as standing for the proposition that “[w]here the probationary employee at no time makes denial of charges of misconduct, his contention of deprival of due process will be rejected.”  (Lubey v. City and County of San Francisco, supra, 98 Cal.App.3d at p. 346, fn. 2, 159 Cal.Rptr. 440.)   In Kestler, a probationary officer with the Los Angeles Police Department was dismissed without a hearing for driving while intoxicated.   We concluded that the “petitioner was properly dismissed, in accordance with section 109 and that he was not entitled to a hearing under section 202.”   (Kestler v. Los Angeles, supra, 81 Cal.App.3d at p. 65, 146 Cal.Rptr. 61.)   We explained that, as applied to that petitioner, this procedure did not violate due process because the “[p]etitioner has not denied the truth of the charge that he drove an automobile while intoxicated.   That fact would follow him no matter how many hearings he was afforded.”  (81 Cal.App.3d at p. 66, 146 Cal.Rptr. 61.)

We now turn to the merits of Ms. Fischer's contention that she was entitled to a hearing under section 202.   The City argues that section 109 empowers the chief of police to terminate a probationary employee without affording her the hearing procedures delineated in section 202.   We disagree.   As the court explained in Lubey v. City and County of San Francisco, supra, 98 Cal.App.3d 340, 347–348, 159 Cal.Rptr. 440:  “[W]here the terms of a statute (or charter provision) ‘ “are by fair and reasonable interpretation capable of a meaning consistent with the requirements of the Constitution, the statute will be given that meaning, rather than another in conflict with the Constitution.” ’  [Citations.]”   Under the City's interpretation, section 109 empowers the chief of police to terminate a probationary employee as a result of charges that stigmatize that employee's reputation or seriously impair his opportunity to earn a living without affording that employee any hearing.   Such an interpretation would render section 109 violative of the Fourteenth Amendment of the United States Constitution.

Fortunately, an alternative interpretation is available.   As with the charter provision involved in Lubey, nothing in section 202 exempts probationary employees terminated for misconduct from its protections.   Accordingly, construing sections 109 and 202 together, we conclude that a probationary employee contesting charges which implicate his or her liberty interests is entitled to the procedures afforded under section 202.

 The procedures promulgated by the chief of police do not alter this conclusion.   As explained above, the chief promulgated those procedures in response to the unpublished opinion in Mortimer.   Ms. Fischer correctly argues that these procedures do not render section 202 inapplicable because an administrative order unilaterally enacted by the chief of police cannot supersede the city charter.

The power of the chief to promulgate such orders is supplied by section 78 of the charter which provides:  “The head of each department shall have power (subject to the provisions of this charter and to such ordinances of the city as are not in conflict with the grants of power made to each such department of the city government elsewhere in this charter), to supervise, control, regulate and manage the department and to make and enforce all necessary and desirable rules and regulations therefor and for the exercise of the powers conferred upon the department by this charter.”  (Emphasis added.)

Thus, by its express terms, section 78 limits the power of the chief of police to create only those rules which are not inconsistent with other provision of the charter.   Therefore, because the hearing procedures under the subject administrative order are inconsistent with the procedures required under section 202, that administrative order is invalid.

In arguing that section 202 does not apply to the present case, the City relies upon our earlier opinion in Kestler v. City of Los Angeles, supra, 81 Cal.App.3d 62, 146 Cal.Rptr. 61.   As described above, however, in Kestler the officer did not deny the charge that he was driving while intoxicated.   Accordingly, we concluded that it would serve no purpose to afford him an opportunity to clear his name.   In contrast, in the present case such a hearing would afford Ms. Fischer a significant opportunity to clear her name with respect to the two most serious charges leveled against her.   Ms. Fischer denied allowing the minor to fondle her breasts and buttocks and she offered an innocent explanation for the letters she sent to him containing seemingly sexually suggestive material.³  Thus, nothing we said in Kestler prevents application of section 202 in the present setting.

In sum, we conclude that because the contested charges which led to Ms. Fischer's dismissal implicated a liberty interest, she was entitled to a hearing pursuant to section 202 of the Los Angeles City Charter.   Due to this conclusion we need not and, therefore, do not address Ms. Fischer's contentions that the City “ought to be estopped from asserting that the new hearing procedure affords due process” and that “as applied to [her], the hearing procedure violates due process.”

Finally, Ms. Fischer requests an award of back pay.   Because the trial court concluded that Ms. Fischer was properly terminated, it never passed upon the question of Ms. Fischer's entitlement to back pay.   We, therefore, remand the matter to the trial court for it to rule on this issue.

DISPOSITION

The judgment is reversed.   The trial court is directed to issue a writ of mandate compelling respondents to afford Ms. Fischer the opportunity for a hearing pursuant to section 202 of the Los Angeles City Charter on the charges against her.   The trial court is also directed to determine whether Ms. Fisher is entitled to back pay.

FOOTNOTES

1.   Pursuant to Ms. Fischer's request we take judicial notice of the unpublished Mortimer decision.  (Evid.Code, §§ 452, 459.)   Of course, we do not rely upon that unpublished Mortimer opinion for its precedential effect.  (Cal. Rules of Court, rule 977.)   Instead we take note of it only to provide background for reviewing this contention.   Because the remaining judicial notice requests by the parties relate to contentions we do not pass upon, those remaining requests are denied.

2.   In relevant part, section 109 empowers the appointing authority in which a probationary employee is “employed [to] terminate him upon assigning in writing the reasons therefor․”Section 202 provides in pertinent part:  “The right of an officer or employee of the Police Department to hold his office or position and to the compensation attached to such office or position is hereby declared to be a substantial property right of which he shall not be deprived arbitrarily or summarily, nor otherwise than as herein in this section provided.   No officer or employee of the Police Department shall be suspended, removed, deprived of his office or position, or otherwise separated from the service of the Police Department (other than by resignation), except for good and sufficient cause shown upon a finding of ‘guilty’ of the specific charge or charges assigned as cause or causes therefor after a full, fair and impartial hearing before the Board of Rights (except as otherwise specifically provided in paragraphs two (2) and seven (7) of this section).”

3.   It is worth noting that the City does not argue these charges do not implicate Ms. Fischer's liberty interest under the Fourteenth Amendment.   Any such argument would be meritless.  (See Murden v. County of Sacramento (1984) 160 Cal.App.3d 302, 308, 206 Cal.Rptr. 699 [“[T]he charges of inappropriate and embarrassing sexual conversations [between a deputy and two female employees] ․ implicated protected liberty interests.”].)

ARLEIGH M. WOODS, Presiding Justice.

GEORGE and GOERTZEN, JJ., concur.