Court of Appeal Reinstates El Segundo Officer

After more than four years of fighting to get his job back, El Segundo Officer Richard Fenwick, will finally put on his uniform, pick up his check for back pay and benefits, and go back to work. The Court of Appeal, in an unpublished decision, recently ordered the reinstatement of Fenwick, with full back pay and benefits.

Fenwick was terminated in early 1995, for violation of rules concerning the use of departmental equipment (for other than official business) and alleged sexual harassment. These charges were based on the exchange of messages (with some sexual content) to a consenting female officer via e-mail. The department had recently installed e-mail and had encouraged employees to use it for personal use.

Employees were not given any guidelines for the e-mail system, nor were they told that their private mailboxes could be accessed by the department. Upon finding out that there were communications between Fenwick and the female officer, the department who had once before unsuccessfully tried to fire Fenwick, accessed all e-mails between the two, even those which they thought had been deleted, or which they considered being private.

The department fired Fenwick, who filed an appeal and was represented by Sylvia Kellison, of Kellison and Vasquez. During the hearing, the hearing officer ordered the production of samples of other employees’ e-mail, including that of the chief of police. Interestingly enough, e-mail by another male officer with sexual content was discovered, however, no action was taken against that officer.

After 11 days of the hearing, hearing officer Terri Tucker made findings of fact that Fenwick had not committed sexual harassment and that the department allowed, even encouraged, personal use of the e-mail system.

She also recommended that Fenwick be reinstated with full back pay and benefits. The Los Angeles County Civil Service Commission, who performed the review for the city, initially moved to uphold the findings and recommendations, however, the city appealed that determination.

During a series of three hearings, the commission voted continually to uphold the finding of facts, however, on a split vote continually recommended and eventually imposed higher penalties, ranging from a 30-day suspension to the final determination to adopt the findings of fact, but uphold termination.

In a response to questions by Ms. Kellison, the commission chair admitted that they had never read the transcripts of the hearing, however, they thought that what was done (according to the city’s version) by Fenwick justified a higher penalty.

Fenwick appealed the decision to Superior Court, before Judge Robert O’Brien. Judge O’Brien found that there was a prejudicial abuse of discretion by the commission. Judge O’Brien stated, “Nowhere in the findings does it find that petitioner has violated any departmental rule or regulation concerning either harassment or misuse of departmental equipment.

To the contrary, the findings indicate that there was no sexual harassment involved and the department encourages officers to make personal use of the city’s e-mail system and tolerates speech between officers which has sexual content or terms, so long as the speech does not constitute actual sexual harassment.”

O’Brien further refused to remand the hearing to the Civil Service Commission on the basis that the Superior Court, could properly refuse to remand the case where the commission had three prior occasions to take appropriate action and had failed to do so.

Two days after O’Brien’s judgment was issued, the city appealed the decision to the Court of Appeal. During oral argument before the justices, the city again argued for remand. Kellison argued that if the case was remanded, there would never be an end to a process that had already taken more than three years, 11 days of an evidentiary hearing, three hearings before the Civil Service Commission and one hearing before the Superior Court.

The justices chastised the city and suggested that they try to settle the case. After settlement negotiations broke down, the Court of Appeal finally issued its unpublished decision, upholding the Superior Court, not only on the findings but also on the issue on remand.

The Court of Appeal distinguished this case where there was no factual finding of misconduct, from those cases where there was only an issue of penalty, which should be remanded. Where there is no factual finding of misconduct, there is no need to remand the case because no penalty is appropriate where there is no misconduct.

The city has indicated that it will not further appeal the decision and has started the process of reinstating Fenwick.

The courts did not address the issue of privacy of e-mail. The case law appears to be against a finding that e-mail is private, there is no statute providing for such privacy. Employees should beware of sending anything via e-mail that they don’t want their supervisors to see.