On November 25, 2003, the Court of Appeal for the Third Appellate District issued an opinion upholding the reinstatement of Sacramento Police Officer Dan Farnsworth. The appellate opinion marks the conclusion of over three years of litigation to achieve Farnsworth’s reinstatement to the department.
As originally published in the August 2003 addition of PORAC Law Enforcement News, Sacramento Superior Court Judge Talmadge Jones granted a writ of mandate reinstating Farnsworth to the position of police officer on December 19, 2002.
The alleged bases of Farnsworth’s termination were failure to properly report an on-duty vehicle accident, commingling of evidence, permitting an informant to drive without a license, alleged insubordination in internal affairs, and dishonesty in the preparation of a number of search warrants. On May 15, 2001, the city of Sacramento Civil Service Board (CSB) adopted a proposed decision upholding Farnsworth’s termination despite eliminating all charges except those involving search warrant preparation. Mastagni, Holstedt & Amick filed a petition for writ of mandate on behalf of Farnsworth alleging the board’s decision was not supported by the weight of the evidence and that the penalty of termination constituted an abuse of discretion.
Judge Jones found that the weight of the evidence did not support the administrative law judge’s finding that Farnsworth had intentionally used incorrect dates and was dishonest. Jones stated that the number of the inaccuracies in the affidavit was not sufficient either by itself or as a percentage of Farnsworth’s total affidavits to indicate a dishonest motive. Jones further noted that the nature of the discrepancies did not support a charge of dishonesty. Jones also noted in some cases the date of the actual “buy” was within the department’s usual period of seven days, but the discrepancy occurred because Farnsworth erroneously stated a six-day ‘‘buy window’’ in his affidavit. Jones placed great weight on the fact that the discrepancies were not major and would not necessarily have invalidated the search warrants. Jones noted that the buys were still within the period of time in which under applicable constitutional standards a search warrant could have been granted. Because the stale buys could be refreshed without any difficulty, Jones was not persuaded that Farnsworth had motive to lie in the affidavits.
In determining that Farnsworth had not been intentionally dishonest, Jones relied upon the testimony of several police officers concerning Farnsworth’s reputation for honesty and the fact that Farnsworth had not previously been subjected to any disciplinary action. In the court’s view, the evidence did not establish dishonesty, only a pattern of inadvertence, carelessness, and negligence in Farnsworth’s preparation of the affidavits for a search warrant. Because the evidence established only negligence and carelessness rather than dishonesty, Jones found the discipline imposed constituted a manifest abuse of discretion. Jones noted that this was Farnsworth’s first offense; he had a good reputation and had not been given the benefit of progressive discipline. Jones stated that some level of discipline short of termination was justified based on Farnsworth’s pattern of inadvertent errors, and Jones remanded the matter to the CSB to access the appropriate level of penalty.
Based on this finding, the court ordered Farnsworth reinstated with back pay and benefits subject to any suspension the CSB might impose on remand. On or about January 27, 2003, the city filed notice of appeal from the peremptory writ of mandate issued by the trial court. Initially, the city refused to comply with the reinstatement order, contending their appeal stayed the issuance of the writ. After realizing appeal does not stay a writ issued pursuant to C.C.P. § 1094.5 and facing possible contempt of court, the city begrudgingly complied with the court order by setting a hearing before the CSB to reassess the penalty. The board rejected the city’s argument for a multi-year suspension or demotion, instead imposing a brief suspension.
The city immediately filed a writ of supersedeas requesting that the reinstatement and back-pay order be stayed. Farnsworth opposed, alleging irreparable injury if left unemployed and unemployable during the pendency of appeal. On or about May 2, 2003, the Third District Court of Appeal denied the city’s application for stay.
On appeal, the city argued that Judge Jones failed to correctly perform an independent review of the record by not affording the decision of the CSB a strong enough presumption of correctness. In support of this argument, the city contended civil service findings come before the court with a nearly insurmountable presumption of correctness. The city further alleged that Jones failed to afford the findings the correct presumption of correctness because Jones did not expressly articulate the magnitude of the presumption he afforded, failed to address all of the analysis contained in the CSB decision, and failed to address all of the charges the termination was based upon.
The city presented an extended analysis of Fukuda v. City of Los Angeles, (1999) 20 Cal.4th 805 essentially arguing that the presumption of correctness afforded by Fukuda required Farnsworth to demonstrate that the decision was not supported by substantial evidence. The city appeared to argue language in Fukuda indicating the trial court must find abuse of discretion on the facts to substitute its judgment for the CSB findings, required that the CSB finding be reviewed for abuse of discretion. The city argued that CSB decision could “rarely, if ever,” be overturned through independent judgment review.
On appeal, the trial court decision is reviewed under a substantial evidence standard of review. Under this standard, the trial decision must be upheld if it is supported by substantial evidence. Substantial evidence is defined as evidence of “ponderable legal significance … reasonable in nature, credible, and of solid value” and “relevant evidence that a reasonable mind might accept as adequate to support a conclusion” (Young v. Gannon (2002) 97 Cal.App.4th 209, 225). When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the Superior Court (Green v. Board of Dental Examiners (1996) 47 Cal.App.4th 786, 796; Mann v. Department of Motor Vehicles, supra, 76 Cal.App.4th at 321).
Farnsworth argued the Superior Court decision was supported by substantial evidence. The city never addressed this threshold issue; instead arguing the Court of Appeal was precluded from scrutinizing the record for substantial evidence because the alleged misapplication of independent judgment infused the analysis of the trial court with error. The Court of Appeal interpreted this argument as waiver of the claim that substantial evidence did not support the decision of the Superior Court.
During oral arguments before the appellate court, this author argued that the Superior Court decision must be presumed correct, and the record indicated that Judge Jones applied independent judgment review properly, affording deference to the CSB decision. Further, Jones was not required to address every issue discussed in the CSB decision and did address all the material findings of the CSB. The sustained findings, such as negligence, were considered by the trial court in remanding the case to the CSB to affix a penalty for those charges.
Most importantly, we objected to the city’s attempt to abrogate independent judgment review by granting an insurmountable presumption of correctness. The presumption is only a starting point of the trial court’s analysis, effectively placing the burden of proof upon the employee challenging the administrative decision. The trial court must exercise its own “independent” judgment in sifting through the record and may substitute its findings.
At hearing, Judge Scotland, the presiding justice of the Third District Court of Appeal, corrected the city’s misstatements as to the affect of the presumption of correctness is to apply the burden of proof to the appellant to demonstrate that the administrative findings are incorrect. The court confirmed the interpretation of independent judgment advocated by Farnsworth. The appellate court explained that an abuse of discretion on the facts is established where the trial court determines the CSB decision is not supported by the weight of evidence. The court noted that the trial court sufficiently articulated its basis for determining the weight of evidence does not support the dishonesty charges. Scotland agreed the trial court addressed all material issues. The Third District Court of Appeal affirmed Judge Jones’ judgment.
The opinion of the presiding justice of the Third District Court of Appeal is significant in repudiating the city of Sacramento’s overt attempt to erode the right of public employees to seek independent judgment review of administrative decisions. Independent judgment review often provides officers subject to a civil service board, the only impartial review of their disciplinary action. Independent judgment review provides review under a much less deferential standard than most appeals. As a result, independent judgment provides officers a meaningful opportunity reverse erroneous civil service decisions and disciplinary actions.
The support from the Legal Defense Fund for Farnsworth’s appeal was crucial in achieving this favorable result. Hopefully, Justice Scotland’s clarification as to the operation of independent judgment will discourage the type of endless appeals Farnsworth faced. Farnsworth has subsequently returned to patrol and looks forward continuing his career as a Sacramento police officer.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
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- Christopher Connally Assn of LEA
To whom it may concern: Let me start by saying how much I appreciate the opportunity to join the PORAC Legal Defense Fund. This is a great benefit for our membership. During the past twelve months I was fortunate to have access to the Legal Defense Fund through MPCA. Earlier this year I was both surprise, and disappointed, when realized that I needed to provide counsel to mediate pending litigation. In accessing the Legal Defense Fund I found your staff to be very professional and reassuring. The staff felt that [my representative]., would be the best ft for the situation. I would like to take the opportunity to express my appreciation for being represented by [Rick Barry]. Not only was he a good fit for the circumstances, at times it seemed as if he was the only attorney out of several involved that really had a grasp on the issues. Again, I would like to thank the PORAC staff, and know that I could not have been better served than by what was provided by [my representative].
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Excellent program, no one should be without this coverage.
- Rachael Van Sloten Oakland POA
LDF is absolutely essential to help make a system that is somewhat broken work more effectively. [My Representative] is excellent and takes a great deal of time to lisen and represent.
- William Burdette Newport Beach PMA
26 years and I have never needed a LDF rep, but the one time you need one, it was worth the fee’s paid.”
- John Tinder Chino POA
Having an LDF attorney who is experienced, knowledgeable and professional is an outstanding quality. [My representative ]exhibit all of these qualities and more. They are outstanding and I would not entrust my career to anyone else!
- John M. Laser Oceanside POA
[My representative] always took my calls or returned them within hours. Put my mind at ease and kept me well informed. LDF is well served by this law firm!
- Keith Braden Los Angeles School Police Mgmt Assn
Great work, no complaints.
- Toinie Lee Jackson Madera Co DSA
Unfortunately, I have been placed in the position to use LDF several times in my career. Without their valued services, I would not be here to write this. I and my family thank you.
- Gerhard Wallace Santa Clara Co DSA
I think that [my representative] did a great job in presenting my case. I would recommend her to any deputy (officer) facing disciplinary action. My case was minor compared to other cases but [she] still did a professional job.
- Paul Figueroa Oakland POA
LDF was there when I needed them!! In this litigious world, it's nice to know LDF has GREAT lawyers on our side who look out for us!! [My Representative] is a great attorney and a person I would trust in any circumstance!!!
- Matthew Gardner Colorado PPA
I would not want to be an officer without this coverage. It was great to have it and kept my mind at ease.
- James Hika Border Patrol Supervisors Association
They did a great job!
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- Ken Burbank Shasta Co DSA
[ My representative ] was professional, articulate and prepared, but most importantly he understood the emotional impact the investigation was having on me as a person and peace officer. I highly recommend [my representative].
- Brendan Tinney UC Berkeley POA
[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.
- Robyn Delaney Mono County PSOA
[My Representative] truly is an exceptional attorney. He has always represented me with honesty and compassion. Well Done.
- Juan Pascua, Jr. San Diego Co DSA
Very helpful and very informative!
- Christine Farmer Tehama Co DSA
Mine was a fairly simple situation and I may not have needed representative. I am glad I called for help, it gave me peace of mind and reassurance.
- Doug Plumhoff Ridgecrest PEA
Great job by all! Always great to know LDF is there when needed.
- Paul Hernandez LA Gen Services POA Inc.
[My Representative] was very helpful in my situation and I can't thank him enough.
- Joe Charvez Santa Clara Co DSA
I could not be happier with the interest, work put into my case, and assistance from [my representative]. Thanks !!
- Andrew Hill Statewide University PA
I have used this law firm for union related business for the last several years. It was a no brainer to call them for LDF.
- Carl Miller Clearlake POA
- Steven Moorehouse Redding POA
Thank you for your help.
- Christopher Boyd Carlsbad POA
[My representative] was an outstanding attorney to work with. Even though I did not receive a desirable outcome entirely, I was exceptionally satisfied with his representation. Thank you.
- Gary Silva East Bay Region Parks POA
Thank you for providing this service. My experience with LDF was very much to my satisfaction.
- Christopher Adams Modesto POA
Thank you for all your help!
- Andrea Salas Sonoma County DSA
[My Representative] was great! Thank you.
- Christopher Wells Hollister POA
My rep was great.
- Derwin Longmire Oakland POA
Outstanding [law firm] - incredible firm. And, LDF was easy to work and correspond with.
- Shaun Luciano LA School PA
LDF assisted by taking a stressful situation and calmed it down by thoroughly explaining the entire process. It was nice to know that I had an ally when I was sure that I was alone.
- Gregory Carbett Ontario POA
The attorney assigned to my case was GREAT! It's sad, but it's impossible to be an officer in today's world without a defense fund like PORAC LDF. I am now retired and signed up for the retired officers CCW LDF. Thanks!
- Michelle Foerder Pinole PEA
I thank God for the support of LDF and my attorney. I had a letter of intent to be fired and he helped me turn it all around. I still have my job and I'm so grateful.
- Dan Lovelace Chandler LEA
Thank you for the funding and support. I would be in jail right now if it were not for LDF. I would not have had the funding to pay for the case. It was a tremendous help having [my representative] and his support team and the many experts supplied by LDF. I speak for myself, my family and other members of my association.
- Thomas E. Lorente III Bart POA
[My representative] did an excellent job! I would highly recommend him to any officer in need of LDF services.
- Ronald J. Danison El Monte POA
The LDF is a tool available to me which I hope never goes away. It makes me feel that much more confident to do my job knowing LDF has my back when police work gets ugly. And it usually does..
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- James Beckman Miracosta College POA
Excellent service everytime.
- Scott King Ripon POA
[My representative] is the best LDF rep I have ever had. If I were to need an LDF rep again I would want it to be [my representative].
- Cherie Rye Lyon Co SEA
I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
- Melvarene Hayes LA Airport POA
They were there when I needed them and my whole case was handled on the phone. I met my representative after my case closed and he was at our union meeting when I had the pleasure to meet him and thank him in person.
- Russell Wise Alameda POA
- Rachel Tyner Transit EOA of San Diego
All the LDF representatives were very courteous and attentive with a punctual response to all of my concerns, inquiries and appointment scheduling. My representative was very informative about the legalities and kept in contact with me regularly. He was also very patient and straight forward. I would definitely want to use the LDF again and felt more confident through my proceedings because I had representation!
- Gary J. Foppiano Oakland POA
[My representative] has been in my corner for 28 years. I have been represented by this firm probably 6 times in my career from minor to major discipline cases with a great outcome for me. They're batting 100%
- Gilbert Salazar Montebello POA
Can’t say enough. Both representatives that I had in 2016 were excellent. ( My attorney ) made himself available to me in late night hours, which made me feel comfortable and at ease. This program is essential to us in law enforcement.
- Scot Hicks Humbolt County DSO
My experience was made much less stressful thanks to the LDF representation.
- Brendan Dolan Milwaukee PA
Everything went very smooth and they handled everything! Thank you.
- Robert Curato Anderson POA
He did a great job for me!!! He always returned my phone calls within 24-hours. He showed an interest in my case and we were able to get the issue resolved in less than 45 minutes. Thank you for being there when I needed the legal assistance.
- Jeff Stanley Upland POA
Excellent representation. [My representative] is a great attorney.
- Christopher Wirth A F G E Border Patrol
LDF referred me to [ representative ] in Spokane, WA. [ Representative ] did an outstanding job representing me. Thank you very much for the referral ! I would not be employed any longer had it not been for [ representative ] and his legal team.”
- Noe Cordero San Diego POA
Thank you for your help. I feel very secure as you assisted me.
- Phillip Flores Oxnard POA
My attorney was excellent. I would use her again.
- Nicholas Belliveau Sebastopol POA
High quality service, proficient, well informed. Overall, very happy with experience.
- Billy Aldridge Chico POA
[My representative] was awesome! He provided an excellent explanation of the process and was very professional. This was my first IA in 11 years of LE and [my representative] did a great job of reassuring me that I had nothing to worry about. Thank you so much for all your help.
- Juan Espinoza Fresno DSA
[My representative] did a great job. He is both thorough and well educated. I would use him again.
- Stephanie Haas Lyon Co SEA
When I first contacted LDF re: my case I was unsure of how well/poor I'd actually be represented. I was impressed beyond belief. From the timely responses from my attorney, his knowledge in my case, advising me what my rights were and where I stood. I felt like I was genuinely being protected from unwarranted and unfounded accusations and believe, as long as I am in the right, I have someone fighting for me. Thank you, Thank you.
- Brian Schopf Elk Grove POA
Keep up the good work.
- Joseph A. Henderson Merced POA
The firm I used was very valuable to my career and kept me updated as to status of the case. Thank you!
- Scott Cox Tulare Co DSA
I just want to say [my representative] did a great job! Thank you.
- Tamboura Nettingham Claremont Custody Center EA
My representative was an outstanding rep. I was very fortunate to be represented by her and the firm should be very proud to have her in it. She's courteous, smart and aggressive when needed. I would not ask for anyone else, if any other situation evolved, she's the best. Thanks.
- Robert Mickschl SAN DIEGO HARBOR P O A
From my initial call to LDF, to my "Thank You" email to (my attorney ) I had the best representation I could have hoped for. The "800" number call receptionists were very professional & understanding. (My Attorney's) office & staff kept me informed & updated. I am forever thankful to LDF & exceptional representation by ( my attorney ) & staff.
- Ernest Marugg San Diego Deputy DA Association
The LDF responded immediately upon my request for counsel. LDF provided the best representative I could receive! When I called LDF for advice, I was given advice again immediately. Thank you LDF for your concern.
- Keith Stiver Hayward POA
[My representative] brings a superlative reputation, a comforting and confidence building demeanor and a clear expertise to the table. In particular I appreciate her philosophy that she gives her total undivided attention to her clients during their appointments.
- Richard Salcido Brea PA
LDF is a great organization that not only helps their clients but many of those around them such as coworkers and family members.
- Chris Moore Palo Alto POA
No Complaints. Great Resource.
- Byron Kies Santa Barbara Co DSA
Everything was great!
- Scott Muir Tracy POA
Very satisfied with the service I was given.
- Kevin Hullquist Siskiyou Co. Correctional POA
[My representative] did a good job representing me. Kept me informed.