HomeMy WebLinkAbout20140703_Judgment_CV130381CIV -130
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, S!a!e Sar number. and address:
FOR COURT USE ONLY
J. Christine Dietrick #246539
face of the City Attorney
990 Palm Street
San Luis Obispo, CA 93401
TELEPHONE NO.: 805-781-7140 FAJC "0. (OPI-805781-7109
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E -MAIL AMR ESS (opfior*Q: cdletrickAslocity .org
' FILED
ATTORNEY FOR (Name):City
( City of San Luis Obispo
COURT OF CALIFORNIA, COUNTY OF SAN LUIS OBISPO
STREET ADDRESS: 1035 Palm Street, room 385
JUL 03 2014
MAILING ADORE SS:
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CITY AND ZR Ci}OE:SAN
San Luis Obispo, CA 93448
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BRANCH NAME-
PLAINTIFF/PETITIONER: DANIEL MCDOW
aEFEN€?ANTIRESPONDENT: CITY OF SAN LUIS OBISPO
NOTICE OF ENTRY OF .JUDGMENT
CASE NUMBER:
OR ORDER
CV 130381
(Check one): UNLIMITED CASE LIMITED CASE
(Amount demanded (Amount demanded was
exceeded $25,DDO) $25,000 or less)
TO ALL PARTIES:
1- A judgment, decree, Or order was entered in this action on (date): June 25, 2014
2, A copy of the judgment, decree, or order is attached to this notice,
Date. July , 2014
J. Christine Dietrick
(TYPE OR PRINT NAME OF � ATTORNEY = PARTY WIT HOUT ATTORNEY) (SIGNATURE)
Page t o12
Farm Approved for Optional Use www.courc+nro.ca gov
A40211CounsilOfCali}omI& NOTICE OF ENTRY OF JUDGMENT OR ORDER
CIV -130 [New January 1. 20101
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OFFICE OF THE CITY ATTORNEY
.City of San Luis Obispo
J. ' Christine Dietrick (206539)
Andrea S. Visveshwara (227412)
990 Palm Street
San Luis Obispo, CA 93401
Telephone (805) 781-7140
Attorneys for City of San Luis Obispo
cdietrick@slocity.org
avisveshwra@slocity.org
Exempt from Filing Fee
Pursuant to Gov't Code § 6103
FILED
JUN 2 5 2014
SAN LUES Of P IJPERRQR COURT
BY -
Erin Brown, Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN LUIS OBISPO
Case No.: CV 130381
DANIEL MCDOW,
Petitioner, � �d � h7ENb �b r
} [ JUDGMENT
V5. }
CITY OF SAN LUIS OBISPO, }
Respondent. }
On April 17, 2014, this proceeding came on regularly for hearing before this Court in
Department 1 of the Superior Court for the County of San Luis Obispo, with the Honorable
Martin J. Tangeman presiding. Michael A. Morguess appeared on behalf of Petitioner, Daniel
McDow. Christine Dietrick appeared on behalf of Respondent, City of San Luis Obispo.
The Court having considered the pleadings in this cause, such relevant and admissible
evidence as was submitted by the parties, and such relevant and admissible matters as to which
judicial notice may be taken, the parties having submitted the matter to the Court for decision
without a jury, no statement of decision having been requested, and good cause appearing,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:
1. The court's tentative ruling, a copy of which is attached hereto as Exhibit A, is
idopted as its final order.
2. Costs in the amount of S700 are awarded in favor of City and shall 1
laid by McDow�� ,2 �2r,ke d �Dl+ �q, i } � �c>g rm �n{ I? 2a 1
JUDGMENT
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3. Costs in the amount of $ 435.00 are awarded to the San Luis Obispo Superior
Court and shall be paid by McDow.
DATED: Lo S 2014
MARTIN J. TANrrAN
Judge of the Superi r Court
JUDGMENT
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r' r
MCDaw v City of San Luis Obispo, CV13-0381
Hearing: Petitioner's Writ of Mandate
Date: April 17, 20I4
Daniel McDow (McDow), a former police officer with the San Luis Obispo Police
Department (Department), brings this writ of mandate challenging the City of San Luis
Obispo's (City) termination of his employment. The termination was based upon findings
that McDow violated multiple San Luis Obispo Police Department Rules and Regulations
and a San Luis Obispo Municipal Code section as a result of his and feIIow officer
Armando Limon's (Limon) attempt to transport prescription medication and diet pills
across the border from Mexico to the United States, at the San Ysidro Port of Entry.
On September 15, 2009, Limon and McDow decided to take a road trip to Mexico, even
though McDow was scheduled to return to work the next day at 11:00 a.m. (AR 47)
After a short time in Mexico, McDow learned that Limon was carrying Limon's off-duty
handgun. (AR 67) Because of concerns about having the firearm, Limon and McDow
decided to forego spending the night and to return home. (AR 67) Before Ieaving,
Limon mentioned that he wanted to purchase diet pills for his wife. (AR 67) Limon and
McDow stopped at a pharmacy where Limon purchased diet pills. for his wife and then
decided to purchase Ritalin for his son. (AR 68) McDow purchased diet pills and
SOMA. (AR 68)
When Limon and McDow arrived at the border crossing, they informed the border patrol
officer that they had nothing to declare. (AR 69) Because the vehicle they were driving
was not registered to either of thein, they were directed to the second stage inspection
area. (AR 69) 1t was during this inspection that Limon informed the customs officer that
he had Ritalin in a black bag in the trunk and was an off-duty police officer that was
carrying a handgun. (AR 69) During the search, a plastic bottle containing pills was
found in McDow's front pocket. (AR 13) The pills in McDow's possession were
determined to be Tenuate (a schedule IV diet drug) and Ritalin (a schedule 11 drug).
According to the investigative report prepared by Sonia Tapia (the investigating ICE
special agent), McDow was allowed to call his girlfriend, Holly Hovore, during his
detention. (AR 14) According to Tapia and another agent present during the telephone
call, McDow instructed Hovore to tail the Department and report that he would not be
reporting for duty as he was sick. (AR 75-76, AR 279) The Department
communications technician reported receiving a call from Hovore stating that McDow
was sick and unable to get to the phone. (AR 78) Shortly thereafter, ICE special agent
Yates telephoned the Department to report that McDow and Limon were being detained
at the border. (AR 78)
EXHIEIT A
Limon and McDow were released and rented a car to travel back to Limon's residence in
Santa Maria. (AR 70) Upon arrival at Limon's residence, they were met by San Luis
Police Department Captain Staley and Lieutenant Tolley, who immediately placed Limon
and McDow on administrative leave. (AR 70,468)
On April 28, 2010, McDow pled guilty in district court to a federal misdemeanor for
being in possession of a drug that was misbranded, in violation of Title 21, U.S.C.
§§331(a) and 333(a)(1). (AR 29)
Following the Department's administrative investigation, it was recommended to Police
Chief Deborah Linden (Linden) that McDow be found in violation of the following rules,
regulations and municipal code sections: (1) an unauthorized absence from duty; (2)
failure to report information regarding a criminal violation by a Department employee;
(3) conduct detrimental to the reputation and image of the Department; (4) conviction of
a misdemeanor or felony under the laws of the State of California; (5) unauthorized use
of sick leave; (6) violation of provisions of the Personnel Rules and Regulations Manual
or other Department rules; and (7) conduct that discredited and dishonored the City. (AR
77-85) On July 2, 2010, McDow was officially advised that he was being terminated
from employment with the Department for the violations set forth above. (AR 87-88)
McDow exercised his right for a Skelly hearing. (AR 92) The hearing did not result in
any modifications to the findings. (AR 92) McDow then appealed the decision. The
hearing officer, James Merrill (Hearing Officer), defined the issues as follows: (1) did
the City have just cause to terminate McDow based on the charges, and (2) if not, what
was,the appropriate remedy. (AR 913)
The two issues were hotly contested at the hearing. McDow emphasized there was no
evidence that he knew that he was in possession of a controlled substance when he
crossed the border. (AR 894) McDow contested Linden's testimony that the federal
misdemeanor violation was the equivalent of a crime under California law. As to the
unauthorized use of sick leave, McDow challenged the veracity of Tabia's testimony that
McDow instructed Hovore to call in sick for him. McDow argued that there was only
unreliable hearsay evidence submitted in support of that alleged violation. (AR 896-904)
The Hearing Officer found that McDow's plea agreement did not constitute an admission
that he had knowledge that the pills in his possession required a prescription, or that it
was illegal to transport them across the border. (AR 924) The Hearing Officer also
opined that Linden and the City acted on the belief that McDow knew he was
transporting prescription drugs across the border. (AR 925) The Hearing Officer found
that there was insufficient evidence to support the City's conclusion that McDow was
guilty of a misdemeanor or felony under Califamia law. (AR 925-926)
Nevertheless, the Hearing Officer did find that there was sufficient evidence to support
the violations for conduct detrimental to the Department, absence from duty,
unauthorized use of sick leave, violation of Personnel Rules and Regulations, and
conduct that discredits or dishonors the City_ (AR 925-927) While the Hearing Officer
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acknowledged that this was serious misconduct, he emphasized that there was insufficient
evidence to establish that McDow intended to commit a crime. (AR 927) The Hearing
Officer recommended that McDow be returned to duty on a Last Chance Agreement. (AR
928)
The Hearing Officer's findings and recommendations were forwarded to the City
Council, which then assumed jurisdiction over the matter. (San Luis Obispo Rules and
Regulations §236.350) The City Council made certain findings of fact and found that
there was a preponderance of evidence to support all of the alleged violations, except for
the failure to report a criminal violation and conviction of a misdemeanor or felony under
California law. (AR 932-939) The City Council then determined that a police officer is
held to a higher standard and that honesty, credibility, and temperament are crucial to an
officer's duties. (AR 94 1) The City Council determined that McDow knew or should
have known that it was illegal to bring foreign made drugs into the United States without
a prescription, and that such drugs must be declared to U.S. Customs. (AR 942)
According to the City Council, McDow failed to ineet the Higher standard of conduct for
a law enforcement officer. (AR 942) The City Council terminated McDow's
employment because of the federal conviction and violations of the Department's Rules
and Regulations. It found that this conduct constituted "serious misconduct" that was
detrimental to the Department and the City. (AR 941-942)
The parties agree that the termination of a public employee involves fundamental and
vested rights. (Strumsky v. Scan Diego County Employees Retirement Assn. (1974) 11
Cal.3d 28, 32.) As a result, the Court is required to review the record under the
independent judgment standard of review. (Id:) "The trial court must not only examine
the administrative record for errors of law, but must also conduct an independent review
of the entire record to determine whether the weight of the evidence supports the
administrative findings_ (Citations omitted.)" (Wences v. City of Los Angeles (2049) 177
Cal-App.4th 305, 313-14.) Here, both the Hearing Officer and the City Council
determined that there was sufficient evidence to support a finding that McDow was guilty
of violating four Department Rules and Regulations and one Municipal Code section.
The violations for conduct detrimental to the Department under Department Rules and
Regulations Section IV.LL, and conduct which tends to discredit or dishonor the City
under San Luis Obispo Municipal Code 2.36.380, are so closely related that they can be
reviewed together. It is undisputable that a police officer is held to a higher standard of
behavior because the officer's honesty, credibility, and temperament are crucial to the
performance of the officer's duties. The public is entitled to protection from an
unprofessional employee whose conduct places people at risk of injury and the
government at risk of incurring liability. (Talmo v. Civil Service Com. (1991) 231
Cal.App.3d 210, 231; Kolender v. San Diego County Civil Service Com'n (2007) 149
Cal.App.4th 464, 471.)
The Hearing Officer paid close attention to the distinction between the federal
misdemeanor and a misdemeanor or felony under California law. He stated that the "core
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issue" was whether the City could substantiate its position that McDow had knowledge
that he was carrying prescription drugs across the border in violation of California law.
(AR 924) In addressing that issue, the Hearing Officer accepted McDow's argument that
his plea was only an admission that he was in possession of misbranded drugs. (AR 924-
925) Yet, in finding that McDow's misconduct was detrimental to the Department and
the City, the Hearing Officer concluded McDow's guilty plea to.the federal misdemeanor
included the element of possession of prescription drugs without a prescription. (AR
925-926) The City Council also found that McDow either knew or reasonably should
have known that bringing foreign made drugs into the United States without a valid
prescription was illegal. (AR 942)
McDow argues that these conclusions are not supported by the evidence because he was
neither charged criminally or administratively with, nor found guilty of, possession of
prescription drugs without a prescription. McDow asserts that any finding of misconduct
beyond the federal misdemeanor is a due process violation. (Smith v. California State Bd.
of Fhai-rnacy (19 95) 37 Cal.App.41h 229.) In opposition, the City contends that it is not
precluded from considering the fact that McDow admitted to transporting prescription
drugs without a prescription. (Barr v. City of Saiz Diego (1950) 182 Cal.App.2d 776,
781.)
The Court agrees that the federal misdemeanor plea, when considered in isolation, is not
sufficient evidence to establish that McDow was guilty of a misdemeanor or felony under
California law. As concluded by the Hearing Officer, the City inay have initially acted
under the misconception that the plea was sufficient to establish a violation of a
misdemeanor or felony under California law. Regardless, the issue now before the Court
is whether there is sufficient evidence to support the finding of a violation of conduct
unbecoming of a police officer.
Police officers are held to a higher standard of care and conduct. McDow admitted that
he attempted to cross the border while in possession of prescription drugs. The plea
agreement admits to certain elements of the crime, including that McDow crossed the
border while in possession of Schedule H and Schedule W controlled substances, and did
not have a prescription for any of the pharmaceuticals. (AR 29) McDow also admitted to
Tabia that he was an "idiot" and should have "been better informed."
During his interview with Lieutenant De Priest, McDow admitted that he had "soiled" his
police family and understood the effect his conduct had on the Department's integrity.
(AR 70) Conduct that is detrimental to the Departi-nent and discredits or dishonors the
City is not specifically defined.. The evidence discussed above is sufficient to
substantiate the violation of Department Rules and Regulations Section IV.LL and San
Luis Obispo Municipal Code 2.36.380.
McDow was also found guilty of violating two Department policies related to his failure
to report to duty the day following his detention at the border. The Hearing Officer and
the City Council found McDow in violation of Department Rules and Regulations for
unauthorized absence from duty and unauthorized use of sick leave. The violations stem
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from the finding that McDow instructed Hovore to call the Department and notify them
that McDow was not reporting for duty because lie was sick. These violations are
supported by Tabia's testimony that she overheard McDow's telephone conversation with
Hovore, and by the Department's communications technician who recalls receiving a call
from Hovore reporting that McDow was sick_ (AR 75-76, 279 and 78)
McDow attacks the admissibility of the evidence on hearsay grounds and its veracity
based upon Tabia's initial testimony at the administrative hearing that McDow simply
told Hovore to call in and inform the Department that "he wasn't coming in today." (AR
277-275) However, Tabia also testified that McDow said to "tell them he wasn't going to
be in today, that he was going to be sick." McDow's hearsay objection is overruled
because it is not hearsay (because not offered for the truth of the statement) or because
this is a party admission.' Additionally, this evidence is substantiated by the findings in
the investigative report that the Department received a call from Hovore in which she
called in sick for McDow. (AR 78) This is sufficient to establish that McDow was guilty
of violating Department Rules and Regulations.
Even with the violations, McDow contends that the City Council's termination of his
employment was a manifest abuse of discretion. According to McDow, he has positive
performance evaluations and no prior disciplinary issues. Also, McDow asserts that there
is no likelihood of recurrence. In McDow's post -hearing brief submitted in the
administrative hearing, he did not dispute that his actions were conduct of unbecoming an
officer, but he claimed that he lacked any intent of wrongdoing such that his termination
was unjustified. (AR 886) According to McDow, the standard to be applied when
reviewing whether. his termination of employment was excessive is the extent of harm to
the public service resulting from the conduct, if it is repeated, and the circumstances
surrounding the misconduct and the likelihood of recurrence. (Paolino v. Civil Service
Coin. (2985) 175 Ca1.App.3d 962, 971.)
The Hearing Officer concluded that termination of McDow's employment was not
justified primarily because there was insufficient evidence that McDow intended to
commit a crime. (AR 927) However, the City Council concluded otherwise, based on its
concern that law enforcement officers must maintain high levels of integrity in order to
maintain credibility. (AR 937) The City Council believed that any punishment Iess than
termination would be inappropriate considering the seriousness of McDow's conviction
of a federal crime. (AR 942) The City Council, in making its decision, specifically noted
the considerations set forth in Paidino, supra.
"An admission for purposes of the hearsay exceptions is any out-of-court statement or assertive
conduct by (or on behalf of or iinputable to) a party to the action that is inconsistent with a position the
party is taking at the current proceeding, The statement need not necessarily Dave been against the
party's interest when made; even a statement self-serving when made may be admissible as a party
admission if contraiy to the party's present position at trial. People v. Richards (I 976) 17 Cal.3d 614,
617-618 (disapproved on other grounds in People. v_ Carbajal (1995) 10 Cal.4th 1114, 1126; Legg v.
United Benefit Life Isis. Co. (1951) 103 Cal.App.2d 228, 229, 229 P.2d 454, 455; Pendell v. Westland
Life Iris. Co. (1950) 95 Cal.App.2d 766, 776-777". California Practice Guide, Civil Trials (The
Rutter Group) §8:1137.
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The City Council's finding that McDow knew or should have known that it was illegal to
bring foreign made drugs into the United States without a valid prescription may fall
short of supporting the conclusion of a specific criminal intent. Nevertheless, McDow's
conviction of a federal misdemeanor and his decision to abuse the sick leave policy
support his termination, as well as his conduct in purchasing pharmaceuticals (including
Soma) in Mexico with the intention to cross the border without a prescription and without
declaring same. Such misconduct is detrimental to the Department's credibility and
causes concern that McDow may not use good judgment in the future.
As compared to the independent review standard for the alleged violations, the Court's
discretion in reviewing the termination penalty is much more limited:
The Commission's determination as to penalty will not be disturbed absent
a manifest abuse of discretion. (Skelly v. State Personnel 8d. (1975) 15
Cal.3d 194, 217---218.) Neither the trial court nor this court may substitute
its discretion for the Commission's as to the degree of penalty imposed on
Paulino. (Barber v. State Personnel Bd. (1976) 18 Cal. 3d 395, 404-405.)
We may not interfere with the Commission's imposition of penalty merely
because in our evaluation of the circumstances the penalty of dismissal
may appear too harsh. (Macfarlane v. Dept. Alcoholic Bev. Control (195 8)
51 Cal.2d 84, 91; Brown v. Gordon (1966) 240 Cal.App.2d 659, 667.)
Discretion is abused where the penalty imposed exceeds the bounds of
reason; the fact reasonable minds may differ as to the propriety of the
penalty supports a finding the Commission acted within its discretion.
Ackerman v. State Personnel Bd. (1983) 145 Cal.App.3d 395, 401;
Paolino v. Civil Service Com., supra, 175 Cal.App.3d 962, 970-71.
Clearly, McDow's tennination under the circumstances of this case does not exceed the
bounds of reason. Accordingly, McDow's writ of mandate is denied.
0
CIV -13(
PLAINTIFF/PETITIONER- MCDOW CASE NUMBER
CV 130381
l]EFEN DANTIRESPONDENT:
PROOF OF SERVICE BY FIRST-CLASS MAIL
NOTICE OF ENTRY OF JUDGMENT OR ORDER
(NOTE: You cannot serve the Notice of Entry of Judgment or Order if you area party in the action. The person who served
the notice must complete this proof of service.)
1. I am at least 18 years old and not a party to this action. I am a resident of or employed In the county where the mailing took
Place, and my residence or business address is (specify):
990 Palm Street
San Luis Obispo, CA 93401
2. 1 served a copy of the Notice of Entry of Judgment or Order by enclosing it in a sealed envelope with postage
fully prepaid and (check one):
a. 0 deposited the sealed envelope with the United States Postal Service,
b. rT/ placed the sealed envelope for collection and processing for mailing, following this business's usual practices,
with which I am readily familiar. On the same day correspondence is placed for collection and mailing, it is
deposited in the ordinary course of business with the United States Postal Service.
3. The Notice of Entry of Judgment or Order was mailed:
a. on (date): July �, 2014
b. from (city and state): San Luis Obispo, CA
4. The envelope was addressed and mailed as follows:
a. Name of person served:
Michael A. Morguess
Street address- 1440 N. Harbor Blvd, Ste 900
City: Fullerton
State and zip code- CA 92835
b. Name of person served:
Street address:
City.
State and zip code:
c. Name of person served:
Street address:
City:
State and zip code:
d. Name of person served -
Street address:
City:
State and zip code:
0 Names and addresses of additional persons served are attached. (You may use form PO S -030(P)
5. Number of pages attached
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct_
date: July,, 2014
Claudia Proms' �az" �Gy
(TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT)
Page 2 of 2
CIV- 130(Now January 1. 2010] NOTICE OF ENTRY OF JUDGMENT OR ORDER