APPELLATE COURT RULES THAT
SUSPENDED OFFICER IS ENTITLED TO FULL EVIDENTIARY HEARING
By
Sanford A. Toyen
Law
Offices of Everett L. Bobbitt, P.C.
These days, there are few
(if any) law enforcement agencies that fail to recognize the right of
peace officers to an administrative appeal of punitive action. However,
many agencies (and courts) often fail to recognize that when an officer
is a permanent employee (as opposed to a probationer), the Public Safety
Officers Procedural Bill of Rights (Government Code § 3300 et seq.)
affords the officer the opportunity for a full evidentiary hearing to
challenge the discipline imposed. At a minimum, the hearing requires
that the agency bear the burden of proving its charges before a neutral
fact finder, using sworn testimony that is subject to cross-examination.
One such agency that failed to understand this requirement was the South
Pasadena Police Department.
Gary Robbins, a veteran
detective of the South Pasadena Police Department, was suspended for
three days by Chief of Police Michael Berkow over a verbal disagreement
with two other officers.
Detective Robbins was
given a Skelly hearing. Chief Berkow refused to rescind the
discipline. Robbins then requested an evidentiary hearing to contest the
factual basis for the discipline, as well as the level of discipline
imposed. The city refused his request on the grounds that the department’s
Policy and Procedures manual did not provide for any
post-disciplinary hearing for suspensions of three or fewer days.
The Legal Defense Fund
referred Robbins to the Law Offices of Everett L. Bobbitt, where I work
as an associate, exclusively representing law enforcement officers. Mr.
Bobbitt and I were anxious to take Detective Robbins’ case. Over the
years, this office has established a reputation for being effective in
securing hearing rights for law enforcement officers through aggressive
trial court and appellate litigation. Past efforts have included
successful litigation on behalf of a deputy marshall who was transferred
with a reduction in premium pay (Head v. Civil Service Commission,
50 Cal. App. 4th 240 (1996)), a transit enforcement officer who was
terminated (Townsel v. San Diego Metropolitan Transit Development
Board, 65 Cal. App. 4th 940 (1998)), and four sheriff’s deputies
who were criticized by a citizen’s review board (Caloca v. Civil
Service Commission, 72 Cal. App. 4th 1209 (1999)). Each of those
cases resulted in court orders mandating full evidentiary hearings.
Bobbitt and I quickly
pointed out to the city that Robbins was entitled under the Bill of
Rights to a post-disciplinary hearing. We asserted that the Bill of
Rights superseded South Pasadena’s Policy and Procedures
manual, not the other way around. Imagine how meaningless the Bill of
Rights would be if an agency could simply get around the procedural
safeguards of the Bill of Rights by simply not including them in their
administrative regulations.
Realizing that their
position was untenable, the city agreed to give Robbins a hearing.
However, the procedures that he was offered were unacceptable, and
insufficient under the Bill of Rights. The city offered Robbins the
opportunity for a Skelly-type hearing before the city manager.
There would be no sworn testimony, no cross-examination, and the burden
of proof would lie with Detective Robbins to persuade the city manager
that the discipline imposed by Berkow was unjustified. Detective Robbins
wisely rejected the city’s proposal. Our office, with the backing of
The Legal Defense Fund, then filed a petition in the Los Angeles County
Superior Court seeking an order compelling the city to provide Robbins
with an evidentiary hearing.
I argued to Superior
Court Judge Coleman A. Swart that the Bill of Rights required the city
to grant Robbins an evidentiary hearing. I pointed out that in Giuffre
v. Sparks, 76 Cal. App. 4th 1322 (1999), the Court of Appeal
rejected as insufficient the very hearing procedures that the city of
South Pasadena had proposed. I asserted that Detective Robbins, like
Deputy Giuffre, had lost pay as a result of the discipline imposed.
Judge Swart, however, believed that a full evidentiary hearing was too
costly of a burden for a city to bear for a three day suspension, and
denied the petition.
Robbins, The Legal
Defense Fund, and this office found the judge’s decision to be
unacceptable. The Bill of Rights mandates that an agency imposing
punitive action on a peace officer provide that officer with an
evidentiary hearing, regardless of the costs. Additionally, most law
enforcement agencies do in fact provide evidentiary hearings in cases of
short-term suspension, and do so apparently without much damage to the
municipal coffers. Judge Swart was not only legally incorrect, but
factually wrong as well.
In my experience, it is
altogether too common for trial court judges to fail to recognize the
hearing rights belonging to peace officers. Many trial court judges are
unfamiliar with the Public Safety Officers Procedural Bill of Rights,
and tend to side with the government’s attorneys rather than take the
time to carefully analyze the law. In fact, in the aforementioned Head,
Townsel, and Caloca cases, the trial court judges all
ruled against the officers, only to be reversed by the Court of Appeal.
We believed that this case, like the others, would have to be won at the
appellate court level. We appealed Judge Swart’s decision to the Court
of Appeal for the Second Appellate District, the appellate court that
covers Los Angeles County.
On May 14, 2001, a
unanimous appellate panel reversed the trial court’s decision. The
court found that Government Code § 3304(b) required, at a minimum, an
evidentiary hearing before a neutral factfinder. The court further found
that the city’s proposed hearing procedure with the city manager was
insufficient since Robbins was a vested employee with a property
interest in continued employment.
As a result, Robbins will
receive a full evidentiary hearing in which the department bears the
burden of proving the charges, and justifying the discipline imposed.
Even though Detective Robbins has not yet prevailed on the merits of his
administrative appeal, he has already provided a great victory for other
South Pasadena police officers. By forcing the city to afford its
officers a proper hearing, Detective Robbins has helped insure that
South Pasadena officers will not be disciplined arbitrarily or based on
flimsy evidence.
The Court of Appeal
declined to publish the Robbins decision. When a court believes that the
law is well settled on an issue, it will decline to publish cases that
do not add significantly to the body of law on that issue. In electing
not to publish the Robbins case, the Court of Appeal found that the
right of a peace officer to a full evidentiary hearing was so well
established that the case law would not benefit from another similar
decision. While publication of a favorable decision is always
preferable, the court’s non-publication confirmed our view that the
right of a peace officer to a full evidentiary hearing is a clear and
well-established right under the Public Safety Officer’s Procedural
Bill of Rights.
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