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By PORAC | January 1, 2018 | Posted in PORAC LDF News

Dealing With Adverse Credibility Findings

Writs & Appeals Attorney
Castillo Harper, APC

Credibility determinations are often at the heart of administrative hearings, with the trier of fact being an arbitrator or a commission. However, as discussed below, on a petition for writ of administrative mandate, a superior court judge steps into that role, often reassessing those credibility determinations. A recent example of such a judicial reassessment occurred when a Superior Court judge ordered the City of San Bernardino to set aside its disciplinary findings against police officer Edward Andrade and to “reverse and set aside its decision” terminating him from the Department.

In early 2015, the City of San Bernardino terminated Officer Andrade after an off-duty argument with his girlfriend. The San Diego Sheriff’s Department conducted an investigation and forwarded its findings to the San Diego District Attorney’s Office for evaluation of a possible misdemeanor. Less than a week after the incident, the District Attorney rejected the filing, finding that the “alleged victim … initiated the violence.”
Despite all this, the Department relied on the impressions of the arresting sheriff’s deputies and their reports. Andrade was terminated. He appealed the termination to the City’s Personnel Commission. Testimony during the administrative hearing showed that he was not the cause of any injuries observed on his girlfriend. The Department presented evidence of an investigator who concluded that Andrade “must have” caused the injuries. But the only testimony to support this was the conclusions of one of the Department’s Professional Standards investigators, and his conclusion was simply based upon his reading of the reports prepared by internal affairs and the deputy’s reports, although none supported that conclusion. Finally, the reports, while admissible, still constituted hearsay and in administrative proceedings, hearsay alone may not support an administrative finding (Gill v. Mercy Hosp. [1988] 199 Cal. App. 3d 889, 910). Regardless, the Commission upheld the investigative findings and Andrade’s termination.

Castillo Harper, APC, sought judicial review by filing a petition for writ of administrative mandate (Cal. Civ. Proc. §1094.5) challenging the termination. The Superior Court overturned the findings and discipline. Because this case involved credibility determinations, it was important that the court understand its function. Public employers often emphasize and overstate the deference a superior court must accord a personnel commission’s findings, and often assume they have a lock on the case because of it. This case was no different. However, the court sits as the trier of fact and indeed independently weighs the evidence and makes factual determinations, to determine if the charges are supported by the weight of the evidence (San Dieguito Union High School District v. Commission on Professional Competence [1985] 174 Cal.App.3d 1176, 1180). While the superior court must afford a strong presumption of correctness to the administrative findings, those findings are merely the “starting point” for review (Fukuda v. City of Angels [1999] 20 Cal. 4th 805, 817). “Because the trial court ultimately must exercise its own independent judgment, that court is free to substitute its own findings after first giving due respect to the agency’s findings” (Id. at p. 818). Indeed, as to resolving credibility issues — often the most critical challenge in writs of mandate — the “independent judgment” standard requires the judge to reweigh the evidence and resolve any conflicting testimony in his or her own mind (Bogart v. Board of Medical Examiners [1951] 105 Cal. App. 2d 250, 253). Therefore, it was important the Superior Court be convinced of the weakness of the deputies’ reports and testimony — notably, their inconsistencies and that they were merely based on hearsay statements — and the professional standards investigator’s conclusions, which were based on the same reports.

The court noted that there was “no direct evidence” that Andrade caused the injuries he was accused of causing. The court further noted that the deputies’ conclusions in their reports were “based on speculation” and that it was “difficult to imagine” how he could have caused the injuries as described. “All three witnesses testified the force used … was light to moderate.” The court noted “[n]o evidence was presented contradicting [their] testimony.” The court also noted inconsistencies in the reports, and that the Professional Standards Unit investigator “was not an eyewitness and was testifying based upon the reports prepared by other individuals.”

Here, the court granted the petition in full, ordering the City to reverse and set aside its decision. The Department presented its case as if the court must uphold its decision if any evidence supports the findings; however, the court correctly understood that its task was to determine whether the findings were supported by the weight of the evidence. Clearly, they were not.

Lessons to Be Learned From This Case

Courts are often reluctant to set aside credibility findings, perhaps believing that the hearing officer or commission who viewed the witnesses is in the best position to evaluate credibility. While in many judicial situations this is a generally a sound approach to such issues (and in some cases it’s required), it is up to the LDF attorney to educate the court on its obligation to reweigh the evidence, and in particular credibility, in an administrative mandate petition, and help it overcome its inclination to defer to the administrative agency on credibility findings. This is done by having a clear understanding of the applicable law, providing a clear path to justify, in the judge’s mind, setting aside the credibility findings against the petitioning employee. That usually entails a combination of reciting the competing evidence; identifying the inconsistencies in testimony and reports; focusing in on the reasons, if articulated, that the hearing officer, commission or council believed one witness over another; and the equities of the case. But a thorough understanding of the particularized law in the administrative mandate is crucial because the judge looks to the attorney to explain why he or she should cast aside the agency’s credibility determination.

In Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951), the United States Supreme Court discussed the import of a hearing officer’s advisory decision within the record where a court reviews the findings of the National Labor Relations Board “on the record” (340 U.S. at 493). The court considered in reviewing the record that “[s]urely the [hearing officer’s] report is as much a part of the record as the complaint or the testimony” (Id.). The court stated that the Board, as the final decision maker, should “give to the [hearing officer’s] report such probative force as it intrinsically commands” because of the high standards and competence of hearing officers, requiring them to issue “a proposed report, together with a recommended order’ [citation]” (Id. at 495). Such requirements evince a purpose “to increase the importance of the role of examiners in the administrative process” (Id.).

The Supreme Court stated the hearing officer’s report “‘would be of consequence, for example, to the extent that material facts, in any case, depend on the determination of the credibility of witnesses as shown by their demeanor or conduct at the hearing’ [citation]” (Id. at 496). Importantly, the court held that “evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Boards than when he has reached the same conclusion. The findings of the examiner are to be considered,” and its significance will depend largely on the importance of credibility to the particular case (Univ. Cam. Corp., supra, 340 U.S. at 496, emphasis added).

Similarly, when an arbitrator or hearing officer makes credibility determinations favorable to an employee, a city council or personnel commission should be disinclined to overturn them — though it happens often. Any findings made by the council or commission that contradict the hearing officer’s findings should be somewhat suspect and the evidence cited by, and credibility findings made by, the council or commission should be given less weight by a court in a petition for writ of administrative mandate when those determinations conflict with the hearing officer’s findings. Indeed, the hearing officer or arbitrator’s advisory decision, after a hearing, is itself evidence that may weigh against the council’s findings.

California has adopted a similar view concerning cases under California Government Code Section 11425.50 of its Administrative Procedures Act (APA) and the role of credibility findings rendered by a hearing officer. As one court observed, “if the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review the court shall give great weight to the determination to the extent [it] identifies the observed demeanor, manner, or attitude” (California Youth Authority v. State Personnel Board [“CYA”] [2002], 104 Cal. App. 4th 575, 587). This statute “‘adopts the rule of Universal Camera Corp [citations] requiring that the reviewing court weigh more heavily findings by the trier of fact (the presiding officer in an administrative adjudication) based on observation of witnesses than findings based on other evidence’ [citations]” (Id. at 587-588). The court noted the extent to which agencies must defer to hearing officer findings: “‘[f]indings based substantially on credibility of a witness must be identified by the presiding officer … However, the presiding officer’s identification of such findings is not binding on the agency or the courts, which may make their own determinations whether a particular finding is based substantially on the credibility of a witness. [The determination is only entitled to great weight] to the extent the determination derives from the presiding officer’s observation of the demeanor, manner, or attitude of the witness’ [citation]” (Id. at 588). Nothing, however, precludes an agency from overturning a credibility determination “after giving the observational elements of the credibility determination great weight” (Id., citing Cal. Evid. Code section 780).

Although the proceedings before an arbitrator or hearing officer, and the city council or commission, are not constrained by the APA, its purposes are logically extended to it in determining, for example, whether a trial was fair (Nightlife Partners, Ltd. v. City of Beverly Hills [2003] 108 Cal. App. 4th 81, 91). The need for such constraints are more urgent when a disciplinary matter is held before a local agency: For example, bodies such as the State Personnel Board (SPB) and NLRB are independent and thus less likely to disregard a hearing officer’s findings when those findings are against the employing agency’s interest; they have no stake in the outcome. However, a city council is usually not only the appellate body reviewing a hearing officer’s decision; it is also the employer of the disciplined employee. Though in theory a council is presumed to be impartial, it still has an interest in seeing that an employee who the chief of police or fire chief thinks should be terminated does not return to work. Not only does this call into question its impartiality, but the proof is in the pudding: When an employee prevails in an advisory decision, the city council usually overturns the advisory officer’s findings and upholds the discipline.

Moreover, when a competent and experienced hearing officer is used to view the witnesses and testimony, and prepare factual findings and recommendations on the penalty, he or she is the only neutral person to view the witnesses and is in a position to render credibility findings based on viewing the witnesses through both direct and cross-examination, and his or her own examination. There is no reason a hearing officer’s credibility determinations should be entitled to any less weight than an IA investigator’s findings. Indeed, the investigator is not bound, as is a hearing officer, by judicial or other ethical considerations pertaining to impartiality; the hearing officer’s determinations are thus entitled to greater weight because of the manner in which they are reached.

Otherwise, the hearing officer merely serves as a delegate to do the hard work and give the cover of the appearance of a fair hearing. City councils and other local agencies are therefore not free to so easily cast aside credibility and factual findings made by an advisory hearing officer when they are against the city’s interest. While there may be circumstances under which that is justified, the above principles hold that contrary findings by a council or local agency should be viewed by a court with great skepticism; moreover, the advisory decision is itself evidence, in addition to any testimonial and documentary evidence, that a savvy party should use to show that an agency’s adverse credibility and factual findings are against the weight of the evidence.