The Unwarranted, Corrupt Political Hit That Almost Worked

MIKE RAINS
Principal
Rains Lucia Stern St. Phalle & Silver, PC

I remember when I got the initial phone call requesting me to meet with Atwater Police Chief Sammy Joseph and his wife to discuss an investigation initiated against him by the Atwater City Council. My first thought was “Where in the world is Atwater?” I soon learned that Atwater is a small city located in Merced County. Before I could meet with Chief Joseph and his wife to discuss the investigation of him initiated by the City Council and city manager, I wanted to assure myself that our firm did not represent the Atwater Police Officers Association (POA), as I had conflicted out of representing many police chiefs through the years in agencies where we represented the POA and its individual members. I confirmed my initial thoughts that we did not represent the Atwater POA, and I was intrigued enough about some of the things I heard in the initial telephone call that I decided to learn more about politics in the city of Atwater.

My initial office conference with Chief Joseph and his wife solidified my long-held belief about politics and politicians since reading, in my college freshman year, a 1945 essay by George Orwell entitled “Politics and the English Language,” wherein he wrote: “In our time there is no such thing as keeping out of politics. Every issue is a political issue and politics itself (and the words often spewing from the mouths of politicians) is a mass of lies, evasions, folly, hatred, and schizophrenia.” If the politics of the majority of the Atwater City Council were even close to those described by Chief Joseph and his wife, George Orwell must have had the 2016 Atwater City Council in mind when he wrote that essay 60 years earlier. For a lot of reasons, in my career, I had not actively represented police chiefs or county sheriffs in disciplinary-related administrative investigations, but I actually felt sorry for Chief Joseph when I heard what had occurred to him, and found him to be well-educated, mature and conscientious, with a career that was seemingly about to be derailed by a 3–2 Council majority in Atwater.

In summary, the crazy saga of Joseph’s termination as the Atwater police chief, and our resulting legal excursion into the Merced Superior Court and, thereafter, the Fifth District Court of Appeal, goes something like this:

Sammy Joseph, after working as an Atwater police officer, sergeant and lieutenant for 19 years, and following his successful completion of the leadership course at the FBI National Academy in Quantico, Virginia, was appointed to the position of police chief in November 2016. He was required to sign an employment agreement that stated that he was an “at-will” employee and could be removed from the position at any time, for any reason, “with or without cause.” However, the agreement also provided that if the city manager removed him from the position of police chief for any reason other than “willful misconduct in office or conviction of a crime of moral turpitude,” Joseph could either (1) return to his position of lieutenant or (2) discontinue his employment with the City in exchange for four months of pay at the rank of police chief.

By all accounts, Joseph had the support of the city manager in Atwater at the time he was appointed as chief, and had a similar good relationship with the then-city attorney. However, he had served as police chief for less than a year when the majority of a fractured City Council decided to replace both the city manager and the city attorney. By then, friction was developing between Joseph and the majority of the City Council, and it was rumored that one of the councilmembers wanted to get him out of that position so it could be filled by her husband, who was a law enforcement supervisor in a Stanislaus County police agency.

The Council retained a new “outside” law firm to serve as its city attorney, which took over the role of advising the City Council on how to remove the chief from his position and ensure that he had no meaningful opportunity to challenge that decision.

The next step involved the Council hiring a new city manager who would carry out the “hatchet job” against the chief. The new city manager ultimately hired by the majority of the Council was forced to withdraw his application for the job after three Atwater police officers saw him in a chummy conversation at a local restaurant with the three councilmembers who would later approve his hiring (in violation of the Brown Act). However, when another favored candidate and friend of the majority was forced to also withdraw his application upon revelations of sexual harassment, the former candidate renewed his application and was selected.

The City retained a Southern California firm to conduct the background check. However, the new city manager commenced his duties before the background was completed. He declared that he was going to examine the operations of every City department in Atwater. But his focus immediately went to the Police Department and Chief Joseph. Nine days after being hired, the city manager placed Joseph on administrative leave as a result of a “no confidence vote” taken by the Atwater POA. Notably, though, the POA had not yet taken a vote. When that was discovered, the POA president hurriedly called a meeting and the vote was taken a day after Joseph had been placed on leave.

An “investigation” of potential misconduct committed by the chief followed. Police Department employees were summoned into interviews by representatives of the City’s law firm, who reminded them that they could say anything derogatory they wanted about the chief and would not have to worry about being questioned or cross-examined later.

During the pendency of the city attorney’s “investigation,” the city manager who had placed Joseph on leave suddenly and inexplicably resigned his position, literally packing his belongings at City Hall in the middle of the night and fleeing town. The two minority members of the Council learned that derogatory information was uncovered in the background investigation that, if completed, would have had to be shared with the entire Council and public. The majority of the Council then hurriedly appointed another City department head as interim city manager and notified her that she would serve at the “pleasure” of the City Council.

It came as no surprise that the City’s law firm concluded from its own investigation that Joseph had engaged in “willful misconduct” that would likely result in his dismissal.

When we raised concerns about the objectivity of the investigation by the same law firm that was advising the City Council on how to fire Joseph, the law firm responded by hiring another “independent” investigator. Again, it was not surprising that the second investigation relied heavily upon the witness statements obtained originally by the City’s lawyers under assurances that the employees who made negative comments would never be questioned or cross-examined about them.

On September 28, 2018, the “new” at-will interim city manager sent Joseph a notice of intended termination for “willful and other misconduct.” That notice advised Joseph that if he was, in fact, terminated (a foregone conclusion), he would be entitled to appeal that termination, and outlined the conditions of that appeal:

• The City would hire a hearing officer of its choice at its own expense to hear and initially decide his appeal.
• The City did not have to call any witnesses or present evidence to prove the charges it leveled against Joseph.
• Joseph could not call witnesses and could not cross-examine any witnesses.
• The City’s selected hearing officer’s decision was subject to review by the “new” at-will interim city manager, who had fired Joseph to begin with.

I responded to the City’s proposal of an appeal hearing by insisting that Joseph was entitled to a hearing before a “truly neutral hearing officer,” proposing that the parties split the expense of selecting a hearing officer from a list provided by the State Mediation and Conciliation Service. I insisted that the City be required to bear the burden of proving the charges it had made against Joseph by calling witnesses to present testimony and evidence and submit themselves to cross-examination.

The City refused. It then advised me that it had retained a former justice of the Fifth District Court of Appeal as the hearing officer and would be paying his fees. When I contacted the hearing officer and asked him if he had ever been involved in hearing appeals of police employees, he alerted me to another case involving a police chief he had handled in a nearby county. I also learned that he had worked on another case with the law firm trying to fire Joseph, which they had not disclosed. I telephoned the lawyer who had represented the police chief in the other matter, who told me that the City had paid the entirety of the fee for the retired justice to conduct the appeal hearing, and the justice had not listened to a single word or bit of evidence offered by that police chief and his attorney, then wrote a decision “rubber-stamping” the City’s termination notice. The attorney called the hearing a “farce.”

I advised the City of Atwater that its selected “neutral hearing officer” was unacceptable and cited a California Supreme Court decision that had denounced a public agency in Southern California doing something similar. The final two issues involved in this fight were the City’s (1) unilateral setting of a date for the appeal hearing before the “neutral” hearing officer selected by the City without seeking input from me, and (2) insisting that even after its hearing officer made a decision following the hearing, that decision would then be reviewable by the relatively new at-will interim city manager selected by the Council majority, cementing the certainty that Joseph’s termination would be upheld.

Those were the issues that framed the writ of mandate we filed in Merced Superior Court, and which should have entitled Joseph to a favorable ruling in that venue.

The first time our writ was due to be heard in the Merced Superior Court, the Superior Court judge who was slated to hear it did not appear on the bench. Instead, there was another allegedly retired judge from Los Angeles County who unexpectedly showed up and said he would be “pleased” to hear the case. Since no one knew who he was or anything about his background, I objected and requested a hearing in front of the Superior Court judge assigned to the department.

The parties returned to court about a month later for a hearing in front of the judge who had been slated to hear the case. When he took the bench, he told us he had already made a decision, but did not tell us what it was and offered us the opportunity to argue. Oral argument occurred by the City’s attorney and by me. A couple of weeks later, we got the judge’s written decision, in which he denied Joseph the type of hearing he was entitled to under Government Code §3303(c) as a police chief who was removed from his position. The basis for the Superior Court’s ruling was another Court of Appeal decision that had denied the type of hearing we sought to an “at-will” public employee who had no protections under the Public Safety Officer Procedural Bill of Rights Act. Moreover, the portion of that decision relied upon by the Superior Court to deny Joseph’s request for relief had been de-published by the Court of Appeal, meaning that it could not be cited as prior case precedent. Furthermore, during oral argument, the judge did not ask either one of us about that case or that decision, and neither the City nor I had cited the decision in our briefs because it was unpublished. Although disappointed, we were on our way to the Court of Appeal following the Merced Superior Court decision.

I argued the case in the Court of Appeal following excellent preparation of the briefs by attorney Jon Murphy, of our office. The Court of Appeal recently issued its decision, which gives Joseph exactly what he wants and needs to disprove the ridiculous allegations leveled by the City of Atwater as a basis for his termination.

The published decision by the Fifth District did not directly address our argument that Government Code section 3304(c) pertaining to police chiefs and their appeal rights when terminated essentially gives them the same rights that a permanent police officer would have. Instead, the Court of Appeal noted that in Joseph’s case, his termination from the police chief position for “willful misconduct” entitled him to that type of hearing because he was essentially terminated from his position as an “at-will” chief, but also as a “police lieutenant” with permanent civil service status. His status as a lieutenant with permanent employment status triggered his right to a full and fair evidentiary appeal hearing before a neutral arbitrator under Government Code §3304(b), to which any police officer at any rank with permanent civil service status is entitled. Moreover, the Court of Appeal made it clear that the hearing that must be provided to Joseph to contest each allegation leveled against him by the City is not subject to review by the city manager, who fired Joseph to begin with.

The Importance of This Decision

Police officers at all ranks in today’s world have been victimized by politically motivated decision-making, which is seldom rooted in a careful and objective review of facts underlying the matter or existing law. The Peace Officer Bill of Rights gives police officers who are subjected to these entirely unsupported politically driven decisions the right to an appeal hearing in which the employer bears the burden of proving its charges through the presentation of witnesses and evidence, and the officer’s lawyer has a right to cross-examine the employer’s witnesses and to present evidence on behalf of the client.

The case of Sammy Joseph sadly involved a municipality taking advantage of the chief’s “at-will” status to falsely accuse him and deny him any meaningful opportunity to defend his good name and reputation. While we are disappointed with the Court of Appeal’s failure to hold, as a matter of law, that Government Code §3303(c) means police chiefs who are customarily hired on an “at-will” basis can only be terminated for “just cause” and must receive a hearing identical to the appeal hearings to any other police officer with permanent civil service status, it gave Joseph the appeal that the City of Atwater and its lawyers never wanted to happen. When the legalese of the Fifth District’s decision is put in the clearest of terms, it has told the City of Atwater and its lawyers that Joseph is going to be reinstated to the rank of lieutenant, with back pay, and get a hearing before a neutral hearing officer who will make a final decision following an evidentiary hearing in which the City will be required to call witnesses and present evidence to prove its baseless “willful misconduct” claims. To put it another way, it’s time for the City of Atwater to “put up or shut up.”

About the Author

Mike Rains is a principal and founding member of Rains Lucia Stern St. Phalle & Silver, PC. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers practice groups. Mike is one of California’s top trial attorneys. He has over 40 years of experience representing peace officers and other high-profile clients in civil and criminal litigation.