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Appellate Court Rules That Suspended Officer Is Entitled To Full Evidentiary Hearing

Posted on Sunday, July 01, 2001 at 12:00PM
Posted by Sanford A. Toyen

These days, there are few (if any) law enforcement agencies that fail to recognize the right of peace officers to an administrative appeal of punitive action. However, many agencies (and courts) often fail to recognize that when an officer is a permanent employee (as opposed to a probationer), the Public Safety Officers Procedural Bill of Rights (Government Code § 3300 et seq.) affords the officer the opportunity for a full evidentiary hearing to challenge the discipline imposed. At a minimum, the hearing requires that the agency bear the burden of proving its charges before a neutral fact finder, using sworn testimony that is subject to cross-examination. One such agency that failed to understand this requirement was the South Pasadena Police Department.

Gary Robbins, a veteran detective of the South Pasadena Police Department, was suspended for three days by Chief of Police Michael Berkow over a verbal disagreement with two other officers.

Detective Robbins was given a Skelly hearing. Chief Berkow refused to rescind the discipline. Robbins then requested an evidentiary hearing to contest the factual basis for the discipline, as well as the level of discipline imposed. The city refused his request on the grounds that the department’s Policy and Procedures manual did not provide for any post-disciplinary hearing for suspensions of three or fewer days.

The Legal Defense Fund referred Robbins to the Law Offices of Everett L. Bobbitt, where I work as an associate, exclusively representing law enforcement officers. Mr. Bobbitt and I were anxious to take Detective Robbins’ case. Over the years, this office has established a reputation for being effective in securing hearing rights for law enforcement officers through aggressive trial court and appellate litigation. Past efforts have included successful litigation on behalf of a deputy marshall who was transferred with a reduction in premium pay (Head v. Civil Service Commission, 50 Cal. App. 4th 240 (1996)), a transit enforcement officer who was terminated (Townsel v. San Diego Metropolitan Transit Development Board, 65 Cal. App. 4th 940 (1998)), and four sheriff’s deputies who were criticized by a citizen’s review board (Caloca v. Civil Service Commission, 72 Cal. App. 4th 1209 (1999)). Each of those cases resulted in court orders mandating full evidentiary hearings.

Bobbitt and I quickly pointed out to the city that Robbins was entitled under the Bill of Rights to a post-disciplinary hearing. We asserted that the Bill of Rights superseded South Pasadena’s Policy and Procedures manual, not the other way around. Imagine how meaningless the Bill of Rights would be if an agency could simply get around the procedural safeguards of the Bill of Rights by simply not including them in their administrative regulations.

Realizing that their position was untenable, the city agreed to give Robbins a hearing. However, the procedures that he was offered were unacceptable, and insufficient under the Bill of Rights. The city offered Robbins the opportunity for a Skelly-type hearing before the city manager. There would be no sworn testimony, no cross-examination, and the burden of proof would lie with Detective Robbins to persuade the city manager that the discipline imposed by Berkow was unjustified. Detective Robbins wisely rejected the city’s proposal. Our office, with the backing of The Legal Defense Fund, then filed a petition in the Los Angeles County Superior Court seeking an order compelling the city to provide Robbins with an evidentiary hearing.

I argued to Superior Court Judge Coleman A. Swart that the Bill of Rights required the city to grant Robbins an evidentiary hearing. I pointed out that in Giuffre v. Sparks, 76 Cal. App. 4th 1322 (1999), the Court of Appeal rejected as insufficient the very hearing procedures that the city of South Pasadena had proposed. I asserted that Detective Robbins, like Deputy Giuffre, had lost pay as a result of the discipline imposed. Judge Swart, however, believed that a full evidentiary hearing was too costly of a burden for a city to bear for a three day suspension, and denied the petition.

Robbins, The Legal Defense Fund, and this office found the judge’s decision to be unacceptable. The Bill of Rights mandates that an agency imposing punitive action on a peace officer provide that officer with an evidentiary hearing, regardless of the costs. Additionally, most law enforcement agencies do in fact provide evidentiary hearings in cases of short-term suspension, and do so apparently without much damage to the municipal coffers. Judge Swart was not only legally incorrect, but factually wrong as well.

In my experience, it is altogether too common for trial court judges to fail to recognize the hearing rights belonging to peace officers. Many trial court judges are unfamiliar with the Public Safety Officers Procedural Bill of Rights, and tend to side with the government’s attorneys rather than take the time to carefully analyze the law. In fact, in the aforementioned Head, Townsel, and Caloca cases, the trial court judges all ruled against the officers, only to be reversed by the Court of Appeal. We believed that this case, like the others, would have to be won at the appellate court level. We appealed Judge Swart’s decision to the Court of Appeal for the Second Appellate District, the appellate court that covers Los Angeles County.

On May 14, 2001, a unanimous appellate panel reversed the trial court’s decision. The court found that Government Code § 3304(b) required, at a minimum, an evidentiary hearing before a neutral factfinder. The court further found that the city’s proposed hearing procedure with the city manager was insufficient since Robbins was a vested employee with a property interest in continued employment.

As a result, Robbins will receive a full evidentiary hearing in which the department bears the burden of proving the charges, and justifying the discipline imposed. Even though Detective Robbins has not yet prevailed on the merits of his administrative appeal, he has already provided a great victory for other South Pasadena police officers. By forcing the city to afford its officers a proper hearing, Detective Robbins has helped insure that South Pasadena officers will not be disciplined arbitrarily or based on flimsy evidence.

The Court of Appeal declined to publish the Robbins decision. When a court believes that the law is well settled on an issue, it will decline to publish cases that do not add significantly to the body of law on that issue. In electing not to publish the Robbins case, the Court of Appeal found that the right of a peace officer to a full evidentiary hearing was so well established that the case law would not benefit from another similar decision. While publication of a favorable decision is always preferable, the court’s non-publication confirmed our view that the right of a peace officer to a full evidentiary hearing is a clear and well-established right under the Public Safety Officer’s Procedural Bill of Rights.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.