HomeMy WebLinkAbout20170710_Decision_16CV04911
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
KEVIN WADDELL;
Petitioner,
vs.
COUNTY OF SAN LUIS OBISPO
CITY OF SAN LUIS OBISPO,
Respondent.
CASE NO.: 16CV-0491
PROPOSED STATEMENT OF DECISION
DENYING PEREMPTORY WRIT OF
MANDATE
Assigned Judge: Hon. Charles S. Crandall
I. INTRODUCTION
Kevin Waddell (Waddell), a former police officer with the San Luis Obispo Police
Department (Department), brings this writ of mandate challenging his termination by the
City of San Luis Obispo (City), based upon findings that he violated multiple San Luis
Obispo Police Department rules. The first incident involved conduct unbecoming an officer.
The second incident involved dishonestly.
On June 28, 2017, the Court heard a lengthy oral argument and took the matter under
submission. Thereafter, the Court listened to several recorded conversations involving both
incidents to better assess witness credibility. (Exhibit EE.)
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Having fully considered the briefs, arguments, evidence, and requests for judicial
notice, the Court now issues its Proposed Statement of Decision.
II. STATEMENT OF FACTS
The incident involving dishonestly occurred on October 19, 2013. Waddell was
scheduled to work an overtime shift with the Community Action Team (CAT), which
required him to report for duty at 11:00 a.m. When Waddell did not show up at 11:00 a.m.,
the on -duty commander, Sergeant Chad Pfarr (Pfarr), sent him a text message asking where
he was. Waddell responded: "Yes. Sorry. I had worked out ahead of one with It smith. I'm
on the way in." When Pfarr asked for more clarification, Waddell replied: "Basically I had
talked to smith yesterday about coming in at 1130 he said fine no problem. But I will stop
by.31
Pfarr tried to contact Lieutenant Jeff Smith (Smith), who was in charge of scheduling
the CAT shifts, but Smith did not answer the call.
Pfarr then spoke with Detective Adam Stahnke (Stahnke), who was assigned to work
the CAT shift with Waddell. Stahnke said Waddell had advised him (Stahnke) that he
(Waddell) would be 30 minutes late.
Waddell arrived at the station at 11:35 a.m. and went to Pfarr's office. According to
Pfarr, Waddell told him that, the day before, he had talked with Smith in the locker room and
informed Smith that his daughter had a dance function on Saturday morning. Waddell said
Smith authorized him (Waddell) to come in 30 minutes late so he could attend his daughter's
dance function.
When Smith eventually returned Pfarr's telephone call, Smith denied any discussions
with Waddell either about attending a dance function or authorizing Waddell to come in late
for the October 19 CAT shift.
Pfarr then brought Waddell back into his office and confronted him about the
inconsistencies. Waddell told Pfarr he was "sorry and didn't mean to...," but Pfarr then told
Waddell to say no more as the matter was now going to be investigated.
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The incident involving neglect of duty occurred on February 22, 2013. While at the
scene of a single -vehicle rollover accident involving a Bentley motor vehicle, Waddell
borrowed a screwdriver from a tow truck driver and was observed removing a wheel cover
and attempting to remove certain Bentley emblems from the vehicle.
Pfarr, on the scene in his first "call out" as Supervising Sergeant, was taking some
ribbing from other officers. While Waddell claims that what he was doing was also a prank
on Pfarr (albeit by his own admission a poorly thought-out one), other officers on the scene,
including Officer Benson, were not so sure. (Exhibit EE.)
While Pfarr also initially thought Waddell's actions were meant to be a practical joke,
he eventually confronted Waddell and told him that the joke was over. Then, as Pfarr was
leaving, he observed Waddell place certain items in an evidence bag. Pfarr called Waddell
and ordered him to return the parts to the vehicle, and Waddell sent Pfarr a text with a photo
of the parts placed back on the driver's side floorboard. When Waddell returned to the
station, he was immediately reprimanded by Pfarr for his actions.
Both of these incidents were later investigated. Lieutenant Bledsoe was assigned by
Captain Storton to investigate the October 19, 2013 incident. Lieutenant Proll was assigned
to investigate the February 22, 2013 incident.
Following the Department's administrative investigation, it was recommended by
Captain Staley to Police Chief Stephen Gesell (Gesell) that Waddell be terminated for cause
based on violations of the following San Luis Obispo Rules and Regulations: (1) Knowingly
making a false verbal statement to a Department supervisor; (2) failure to punctually report
for duty, and (3) engaging in conduct that reflects adversely, discredits, or is detrimental to
the reputation and image of the Department. Waddell was also charged with violation of
Vehicle Code § 10852, tampering with a vehicle without the consent of the owner.
On September 9, 2014, Waddell was formally advised by Gesell that he was being
terminated from employment with the Department.
Waddell exercised his right for a Skelly hearing before Gesell. (AR 92) The hearing
did not result in any modifications to the charged violations or findings.
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Waddell appealed the decision, which resulted in a multiple -day evidentiary hearing
before Hearing Officer (Professor) Christopher David Ruiz Cameron (Hearing Officer). In
addition to challenging both charges, Waddell raised as a defense two alleged violations of
the Public Safety Officers Procedural Bill of Rights (Gov. Code §3300, et seq.)
In a lengthy decision, the Hearing Officer concluded that, although Waddell had not
violated Vehicle Code §10852, he had violated three San Luis Obispo Rules and Regulations
(i.e., (1) knowingly making a false verbal statement; (2) failing to punctually report for duty,
and (3) engaging in conduct that was detrimental to the reputation of the Department). The
Hearing Officer determined that Waddell's termination was appropriate due to the severity of
the offenses.
The Hearing Officer's findings and recommendations were then forwarded to the City
Council, which assumed jurisdiction over the matter. (San Luis Obispo Rules and
Regulations §236.350) Acknowledging that the decision to terminate a police officer was
sensitive and difficult, the City Council emphasized that a police officer was held to a higher
standard of conduct than an ordinary citizen, and that honesty, credibility, and temperament
were crucial to an officer's duties. The City Council adopted the factual findings and
recommendations of the Hearing Officer, in their entirety, and upheld Waddell's termination.
III. STANDARD OF REVIEW
Termination of a public employee involves fundamental and vested rights. (Strumsky
v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32) Consequently,
the Court reviews 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 (2009) 177 Cal.AppAth 305, 313-14)
The Court's discretion in reviewing the termination penalty is much more limited:
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The Commission's determination as to penalty will not be disturbed absent a
manifest abuse of discretion. (Skelly v. State Personnel Bd. (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 (1958) 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; Paulino v. Civil Service
Com., supra 175 Cal.App.3d 962,970-71)
IV. DISCUSSION
Waddell principally argues that the weight of the evidence does not support a finding
of dishonesty. According to Waddell, dishonesty requires the intent to deceive or defraud,
which he did not possess. (Gee v. California State Pers. Bd. (1970) 5 Cal.App.3d 713, 718)
While acknowledging that his statements were inarticulate and misunderstood, he contends
that he never intended to deceive Pfarr. Waddell explains that his texts were meant to
convey a message that, in the past, Smith had permitted him to be late to CAT shifts. He
blames part of the problem on the texting format and autocorrect feature, both of which
contributed to the miscommunication.
Although the record contains some evidence supporting Waddell's version of events,
both the Hearing Officer and the City Council, after weighing credibility, determined that
substantial evidence supported a different conclusion, i.e., that Waddell violated three
Department Rules and Regulations justifying his termination.
During the investigation, Pfarr noted that Waddell's original text looked like he had
"fat fingered" it, but Pfarr went on to emphasize that, when Waddell responded to Pfarr's
reply, Waddell in that later text specifically stated that, the day before, he had arranged with
Smith to be late and that Smith had authorized him to be late. (AR 119)
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Waddell claims that, through his text message, he had meant to convey that he had
talked to Smith in other past incidents and had been given permission to come in late.
However, it is difficult to place this interpretation on the text messages, which state that
Waddell spoke with Smith about coming in at 11:30, and that Smith said "fine, no problem."
(AR 67)
Waddell's statements at the station are also troubling. When Waddell arrived, he told
Pfarr that, the prior day, he had talked to Smith in the locker room and told him that his
daughter had a dance function. (AR 64) Smith emphatically denied any such statements or
that he had given Waddell permission to be late. (AR 64) Later, at the evidentiary hearing,
Waddell testified that he only realized he would be late on the morning of October 19, and
not the day before as he had earlier portrayed to Pfau. (AR 2850) Among other things, these
important inconsistencies in testimony support a finding of dishonesty.
In his well -reasoned decision, the Hearing Officer found that:
As to this date (October 19), Appellant never asked Lt. Smith for permission
to report for work late, and Lt. Smith never granted such permission. The
preponderance of the evidence also shows that Appellant repeated this false
statement at least twice, in both a follow-up meeting with Sgt. Pfarr on
October 19, and in a subsequent IA interview with Lt. Bledsoe on December
12.
Having carefully reviewed the evidence, and employing the Court's independent
review, there is substantial evidence supporting a finding that Waddell was dishonest with
Pfarr about his failure to timely report for duty on October 19, 2013. Indeed, some of the
evidence cited by Waddell actually supports the finding that he was dishonest. Stated
somewhat differently, Waddell has not met his burden of establishing that the weight of the
evidence does not support such a finding. (Fukuda v. City of Angels (1999) 20 Cal.4th 805,
817.)
Waddell moves to suppress the statements he made to Pfarr on October 19, 2013, on
the grounds that Pfarr violated Government Code §3303, which provides that, when an
officer is under investigation and subjected to interrogation by his or her commanding
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officer, and such interrogation could lead to punitive action, the interrogation must be
conducted under certain due process conditions.
Waddell argues that, had he been informed he was under investigation, he would have
tape recorded his conversation in Pfarr's office and potentially availed himself of other
protections. He also claims that, prior to the October 19 incident, Pfarr was "investigating"
Waddell for being late the previous week and whether Waddell was fit for additional
overtime assignments. Waddell believes that Pfarr had already planned to speak with him on
October 19 about his prior tardiness. He asserts that Pfarr was already aware that Waddell
was going to be late before Pfarr sent his initial text message to Waddell because Pfarr had
just spoken to Stahnke, who told him (Pfarr) that Waddell was going to be late. These
contentions were disputed by Pfarr.
Government Code §3303(1) provides that the protections set forth in Government
Code §3303(c) do not apply "to any interrogation of a public safety officer in the normal
course of duty, counseling, instruction, or informal verbal admonishment by, or other routine
or unplanned contact with, a supervisor or any other public safety officer......" (See City of
Los Angeles v. Superior Court (1997) 57 Cal.App.4th 1506, 1513.)
Credible evidence supports the finding that, when Pfarr sent Waddell a text message
asking about Waddell's whereabouts on October 19, 2013, he had no belief that Waddell had
been dishonest. It was not until Smith spoke with Pfarr on October 19, that Pfarr began to
suspect Waddell had been dishonest. The conversation Waddell seeks to suppress occurred
prior to Pfarr's conversation with Smith.
Pfarr's texts to Waddell, as well as their office conversation, constituted normal
questions for a supervisor to ask an officer who had not timely reported for duty. It was, for
all intents and purposes, a routine contact between a supervisor and subordinate. Indeed,
when Waddell arrived at the station, he reported to Pfarr and volunteered that Smith had
already authorized Waddell to come in late so that he could attend his daughter's dance
function. Other than confronting Waddell about his suspected dishonesty, Pfarr did not
conduct any further interrogation of Waddell.
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Using independent review, the Court concludes that Waddell was not "under
investigation" or "subject to interrogation" prior to the October 19 incident. The Hearing
Officer reached the same conclusion and dismissed this argument in a footnote on page 16 of
his ruling. (AR 3359) There was no violation of Government Code §3303 by Pfarr on
October 19, 2013.
Waddell next contends that the charges arising from the Bentley incident are barred
by the statute of limitations under Government Code section 3304(d), which provides as
follows:
"no punitive action...... shall be undertaken for any act, omission, or other
allegation of misconduct if the investigation of the allegation is not completed
within one year of the public agency's discovery by a person authorized to
initiate an investigation of the allegation of an act, omission, or other
misconduct." (Gov.Code §3304(d).)
Waddell contends that his supervisor, Pfarr, was aware of Waddell's alleged
misconduct on February 22, 2013 (the day of the Bentley incident), but that punitive action
was not taken until May 8, 2014, more than one year after the Bentley incident. According to
Waddell, Pfarr is a person authorized to initiate an investigation of the misconduct, which
triggered the running of the one year statute of limitations. He relies on two cases to support
this proposition: Haney v. City of Los Angeles (2003) 109 Cal.AppAth 1 and City of Los
Angeles v. Superior Court, supra, 57 Cal.App.4th 1506.
The issue in Haney was when the supervising sergeant should have discovered the
misconduct, not whether he had authority to initiate the investigation. Waddell's argument is
a speculative extrapolation of matters that were evidently not in dispute.
The Court of Appeal in City of Los Angeles v. Superior Court, supra, 57 Cal.AppAth
1506, did not interpret the meaning of the one-year statute of limitations or whether a
particular officer was authorized to begin an investigation. Rather, the entire opinion focuses
on whether interrogation of the officer was permissible. (57 Cal.AppAth at 1513-1515.) City
of Los Angeles is inapposite.
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It is Waddell's burden to demonstrate that the statute of limitations was violated.
(Fukuda, supra, 20 Cal -4th at 805, 817; Benefield v. California Dept. of Corrections and
Rehabilitation (2009) 171 Cal.AppAth 469, 476-77.) The Hearing Officer relied on
testimony from Lt. Bledsoe and Sgt. Amoroso to conclude that the statute had not been
violated because Pfarr was not a person authorized to initiate an investigation. (AR 3361)
Waddell has failed to meet his burden of producing evidence that would outweigh the
Hearing Officer's findings, and he has not cited legal authority that would undermine the
Hearing Officer's conclusion.
Waddell lastly contends that the termination penalty was a manifest abuse of
discretion. As opposed to the independent review standard for reviewing alleged violations,
the Court's discretion in reviewing the termination penalty is much more limited. "Neither
the trial court nor this court may substitute its discretion for the Commission's as to the
degree of penalty imposed ...." (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 404-
405.)"
Even if the reviewing court might deem the penalty too harsh, discretion is abused
only if the penalty "exceeds the bounds of reason." (Ackerman v. State Personnel Bd. (1983)
145 Ca1.App.3d at 401; Paulino v. Civil Service Com., supra, 175 Ca1.App.3d at 970-71.)
Waddell says that his alleged dishonesty resulted in no harm to the public service for
what should be considered an internal matter. He further claims that dishonesty does not
automatically compel discharge. (Siskiyou Cty. v. State Pers. Bd. (2010) 188 Cal.AppAth
1606, 1617.)
Whatever may be true in other termination circumstances, the Hearing Officer in this
case pointed out that Waddell's termination was justified for the following reasons:
The importance of honesty to police work is a major reason why it is often
said that a police officer in the public service is held to a higher standard of
conduct than a similarly situated civilian employee in the private sector. The
standard is higher because the stakes are higher. An officer's word has the
potential to affect not only his department but also the entire community. (AR
3407)
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While dishonesty alone constituted just and proper cause to terminate Waddell's
employment, the Hearing Officer also added: "And if any additional reasons were needed,
Appellant provided at least two of them by failing to be punctual and conducting himself in a
manner reflecting adversely on the Department." (AR 3409)
This Court is in agreement with the Hearing Officer's well -reasoned conclusion.
Under all the facts and circumstances, Waddell's termination does not exceed the bounds of
reason.
V. CONCLUSION
For the reasons set forth above, the petition for a peremptory writ of mandate is
DENIED. Counsel are to be commended for their thoughtful briefing and presentations.
This Proposed Statement of Decision under CRC Rule 3.1590(c)(1) will become the
Statement of Decision unless, within fifteen (15) days, any party serves and files objections
under CRC Rule 3.1590 (g).
Any pleading that specifies objections shall be ten (10) total pages or less, shall use
appropriate formatting and font size as provided by the Rules of Court, and shall not re -argue
the case. No abbreviations, charts, or additional exhibits will be allowed or considered. A
courtesy copy of any such pleading should be e-mailed to opposing counsel and the court
clerk when served.
In the event that any party serves and files objections, the responding party shall have
10 days from the date of service of the objections to file a Response. Any Response shall be
ten (10) total pages or less, shall use appropriate formatting and font size as provided by the
Rules of Court, and shall not re -argue the case. No abbreviations, charts, or additional
exhibits will be allowed or considered. A courtesy copy of any such responsive pleading
should be e-mailed to opposing counsel and the court clerk when served.
It is so ORDERED.
�t
Dated: July 10, 2017
CH RLES S. CRANDALL
Judge of the Superior Court
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STATE OF CALIFORNIA, COUNTY OF SAN LUIS OBISPO
CERTIFICATE OF MAILING
Kevin Waddell vs. City Of San Luis Obispo 11 16CV-0491
Michael A Morguess
Law Office of Michael A Morguess
1440 N Harbor Blvd
Suite 900
Fullerton CA 92835
David M Fleishman
Hanley & Fleishman
8930 Morro Road
Atascadero CA 93422
I, Melanie Miller, Deputy Clerk of the Superior Court of the State of California, County of San
Luis Obispo, do hereby certify that I am over the age of 18 and not a party to this action. Under
penalty of perjury, I hereby certify that on 07/11/20171 deposited in the United States mail at
San Luis Obispo, California, first class postage prepaid, in a sealed envelope, a copy of the
attached Proposed Statement of Decision Denying Peremptory Writ of Mandate. The
foregoing document was addressed to each of the above parties.
OR
If counsel has a pickup box in the Courthouse a copy was placed in said pickup box this date.
Dated: 7/11/2017 Michael Powell, Clerk of the Court
By: _/s/ Melanie Miller Deputy Clerk
Melanie Miller