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Court of Appeal Orders Calexico Officer Reinstated

Posted on Monday, February 03, 2014 at 12:00AM

MICHAEL A. MORGUESS
Writs & Appeals Attorney
LAW OFFICE OF MICHAEL A. MORGUESS

     A California Court of Appeal has ordered the City of Calexico to reinstate a police officer, reversing a Superior Court decision ordering his termination. Shaun Sundahl was a police sergeant for the City of Calexico. His Department did not think he was cutting it as a sergeant, so the Chief of Police proposed his demotion. Although this was disappointing in its own right, the City Manager then increased the level of discipline to termination. Sundahl’s discipline related to issues of competency as a sergeant and supervisor.
     Sundahl was a police officer for the City of Calexico, and promoted to sergeant in 2007. In 2009, the City gave him a Notice of Intended Disciplinary Action. The recommendation was that he be demoted from sergeant back to police officer. The misconduct alleged was that with regard to three separate incidents and in his capacity as a supervisor and sergeant, he “failed to supervise and take control of [each] incident” and “demonstrated unprofessional and excessive conduct resulting from [his] position as a Police Sergeant.” Sundahl appeared before the City Manager for a hearing, pursuant to Skelly v. State Personnel Board. Based upon the same charges, and in an unusual move, the City Manager actually increased the penalty to termination.
     Sundahl appealed his termination to the Calexico Personnel Commission. Following a hearing, the Commission upheld the allegations in the charging documents, but determined that the appropriate level of discipline was a demotion. The Commission held: “[T]he penalty of termination is not appropriate in this case. Clearly, Sundahl demonstrated a lack of leadership and the inability to properly supervise a situation. The Personnel Commission does not find, however, that he lacks the ability or veracity to be a productive police officer. The Personnel Commission also is mindful that police management had proposed discipline less than termination, but the city manager increased the penalty to termination.”
     The Commission determined that Sundahl should be “restored to the last non-supervisory position he held prior to his promotion to sergeant.”
     The City of Calexico petitioned the Superior Court for a writ of administrative mandate on only one issue: the level of discipline imposed by the Calexico Personnel Commission. The City did not challenge the findings. Instead, the City argued that the Commission’s failure to terminate Sergeant Sundahl — instead, demoting him because it found he did not have the aptitude to be in a supervisory position — was an abuse of discretion. In other words, argued the City, the Commission had to terminate Sundahl and could not demote him.
     The Superior Court determined that the Commission’s findings were not supported by substantial evidence. For example, where the Commission stated, “we do not find that [Sundahl] lacks the ability or veracity to be a productive police officer,” the Superior Court was troubled that the Commission did not cite any evidence for its finding. However, the City did not challenge the Commission’s findings — a strategic move that would later haunt it. The City merely challenged the level of discipline imposed based on the findings. Regardless, the Superior Court found that the burden was on Sundahl to justify the demotion, rather than on the City as the petitioning party to prove that a demotion, instead of termination, was an abuse of discretion. The Superior Court granted the petition, ordering the Commission to instead terminate Sundahl. With support from PORAC LDF, the Law Office of Michael A. Morguess appealed that decision on Sundahl’s behalf.
     This is where it is important to understand the technical and procedural nuances of administrative mandate, which is something the Superior Court failed to appreciate. Indeed, in this author’s experience, the typical Superior Court judge does not fully grasp mandate proceedings.
     Anyone reading this article knows of some peace officer terminated for what seems like more than innocuous, but less than egregious, conduct. When he or she petitions the Superior Court for a writ of administrative mandate, he or she may have a very strong argument for why termination is harsh, if not excessive. Maybe other officers were not terminated for similar misconduct, or maybe, while there was misconduct, everything turned out all right — a sort of “no harm, no foul” argument. And still, much to the frustration of the officer, the termination was upheld by the Superior Court.
     This is because a Superior Court judge, looking at the level of discipline, is not permitted to substitute his or her judgment for that of the agency’s; the judge is not permitted to increase or decrease the level of discipline based on what he or she would have done. Rather, the judge is limited to asking only whether the level of discipline imposed is an “abuse of discretion.” That means that the Court must ask, given the facts before it (i.e., the sustained findings of misconduct), is the level of discipline within the acceptable range of options? One way to phrase this inquiry is whether reasonable minds could differ on the level of the penalty. If they can, the discipline imposed is usually determined to not be an abuse of discretion. The discipline has to be so out of balance to the misconduct that only then may it be declared an abuse of discretion.
     This test applies whether the petitioning party is the employee or the employer. In Sundahl’s case, the Superior Court judge made the mistake of substituting his own judgment for that of the Personnel Commission. The judge failed to appreciate the limited task before him: to determine whether, given the findings by the Commission that the misconduct was the result of the exercise of supervisory and leadership functions, and the absence of any discipline prior to Sundahl’s promotion, the Commission abused its discretion in imposing a demotion back to officer.
     In this case, on appeal of the Superior Court’s decision, this author fully explained the task on review by the Superior Court, and the failure of the Superior Court to comply with the limitations. The Court of Appeal, in undertaking its similarly limited task, correctly held that the demotion was not an abuse of discretion, found the Superior Court acted erroneously and reversed the Superior Court judgment. The Court of Appeal then ordered Sundahl reinstated to the position of officer.
     Sundahl and the Law Office of Michael A. Morguess would like to thank the Legal Defense Fund for appreciating the merits of this appeal and supporting it. 

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