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By Dawson & Riley | October 1, 2021 | Posted in PORAC LDF News

Decision Ruled Insufficient to Support Officer’s Termination

ANDREW M. DAWSON
KIMBERLY D. RILEY
Founding Partners
Dawson & Riley, LLP

A hearing officer upheld the termination of a Culver City police officer; however, his decision was entirely insufficient to justify his actions. As a result, Dawson & Riley, LLP, filed a Petition for Writ of Mandate with the Los Angeles County Superior Court, seeking to overturn the hearing officer’s decision and to remand the matter to the Commission for ordering a new hearing. The Superior Court agreed and held that the hearing officer’s decision failed to comply with the requirements of Topanga Association for a Scenic Community v. County of Los Angeles (“Topanga”) (1974) 11 Cal.3d 506.
The underlying case surrounds the arrest of two subjects for felony crimes, which included identity theft and possession of a loaded firearm. In the early morning hours on January 19, 2018, the petitioner and his partner observed two subjects in a vacant parking lot who were rifling through a car. The two subjects were contacted by the petitioner and his partner and detained. During the search of the vehicle, the petitioner discovered a loaded handgun and blank checks in the name of someone other than the two subjects. The name on the checks was later identified as a burglary victim. The petitioner placed both subjects under arrest. The incident was captured on the petitioner’s body-worn camera and was subsequently documented in a police report drafted by the petitioner and approved by his supervisor.
The arrestees filed citizen complaints with the department regarding their arrests, primarily alleging an unlawful search, racial profiling and loss and/or damage to property. Based on the complaints, the Department assigned the matter to a lieutenant to investigate. The lieutenant concluded that the complainants’ allegations were baseless.
However, during its investigation of the refuted citizen complaints, the department accused the petitioner of falsifying his police report based on the following: 1) the sequence of the events; 2) that the petitioner obtained consent from the owner of the vehicle to search his vehicle; and 3) the location where the fraudulent check that was made out to the owner of the vehicle was found. The department also accused the petitioner of dishonesty in his internal affairs interview based on the following: 1) the timing of when he first saw the handgun in the duffle bag; and 2) his opinion regarding enforcement of the department’s tobacco policy. During the internal affairs interview, the petitioner was questioned regarding the alleged inconsistencies between his report and the video recording of the incident. The department never accused him of dishonesty in his internal affairs interview as it relates to his explanation of the alleged inconsistencies. Thus, the department arguably believed his explanation regarding the alleged inconsistencies in his police report.
The petitioner was terminated by the city on August 24, 2018. The petitioner timely appealed the termination in accordance with the city’s Civil Service Rules. The city’s Civil Service Commission recused itself from this matter and acknowledged in its referral that the petitioner could not receive a fair and impartial hearing due to a bias of more than two commissioners. The matter was then referred to a hearing officer for an evidentiary hearing. The hearing officer issued a written decision — only three pages of substantive decision — wherein he failed to explain what allegations were sustained and the reasons why they were sustained; rather, he simply concluded that he questioned the petitioner’s credibility and credited the testimony of the department’s witnesses over the petitioner’s when they contradicted. The hearing officer stated simply that the petitioner violated all of the provisions alleged, without any sort of analysis or explanation. Further, there were no contradictions between the petitioner and department witnesses that would have impacted the allegations against him.
The Superior Court agreed with the petitioner that the hearing officer’s decision failed to comply with the requirements mandated by the Supreme Court in Topanga. It held that the hearing officer’s decision did not set forth any findings to support the hearing officer’s decision that the petitioner violated the alleged policies. The court further recognized that it is not its function to cull through the record in an effort to find evidence sufficient to sustain the agency’s findings and decision. As such, it held “[a]t issue here is Petitioner’s livelihood. The hearing officer’s decision is entirely insufficient to satisfy the requirements of Topanga; the court cannot engage in any judicial review as contemplated by Section 1094.5.” As such, the Petition for Writ of Mandate was granted.
The Superior Court remanded the matter to the Civil Service Commission to take action consistent with the requirements of Topanga. Often, in these situations, the matter is remanded back to the hearing officer to clarify their decision; however, the hearing officer in this matter has suffered serious medical issues since the issuance of this decision and is not able to clarify his decision. It remains unknown what the commission will do; however, the commission previously recused itself from this matter due to an admitted, unresolvable bias. Given that credibility is at issue in this case, the eventual decision-maker needs to be able to review the factors used to determine credibility as outlined in Evidence Code Section 780. A decision-maker cannot determine one’s credibility by simply reviewing the administrative record. As such, the petitioner’s attorneys believe that the only viable option is to submit the matter to a new hearing officer for a new hearing. Thankfully, as the petitioner awaits his opportunity to clear his name, he has been rehired as a police officer with another agency, which required him to pass a background investigation and polygraph examination wherein he was questioned regarding the allegations.