MICHAEL P. STONE, ESQ.
MUNA BUSAILAH, ESQ.
Stone Busailah, LLP
C.A. 4th Opinion Helps to Level Playing Field for Cops
In Riverside County Sheriff’s Department v. Stiglitz (Drinkwater, Real Party In Interest), 60 Cal. 4th 624 (2014), the California Supreme Court broke new ground in the law by holding in a case of first impression that hearing officers in administrative appeals can hear and decide Pitchess motions brought by an officer-appellant to discover disciplinary records relating to other officers in order to demonstrate that he or she suffered an overly severe, disparate, discriminatory or retaliatory penalty for the same or similar misconduct.
Every peace officer in this state is granted an important procedural due-process right by law in Government Code §3304(b) of POBRA.1 This right is to have a timely, fair and effective administrative appeal for any of the forms of punitive action. A viable defense in some cases, recognized in the Drinkwater case by our Supreme Court, is that of “disparate penalty.”2 The authors of this article were privileged to argue the Drinkwater cases in the Court of Appeal, Fourth Appellate District, and before the Supreme Court, supported by numerous associations appearing as amicus curiae, including LDF.
Drinkwater, the seminal case in this context, commenced with the discharge of Riverside County Deputy Kristy Drinkwater for alleged “time-card irregularities” that the Department characterized as theft of public funds. We became aware of more than 10 similar time-card irregularity cases where none of the guilty employees were fired. There were no aggravating factors in Drinkwater’s case, except that she was not liked by her supervisors.
Muna Busailah’s motion for discovery of the records of the 10-plus cases was granted. The County dragged the administrative appeal into Superior Court and obtained a stay on the appeal, which ultimately prevented Drinkwater from proceeding with her appeal for over five years while County lawyers challenged Drinkwater’s rights at every turn, all the way through the Supreme Court proceedings. Apropos is the maxim, “Justice delayed is justice denied.”
Finally, the Supreme Court unanimously held that Drinkwater’s motion was properly filed, presented and heard by the arbitrator and correctly adjudicated by Hearing Officer Jan Stiglitz, a distinguished appellate lawyer and San Diego law professor.
But as the law stood post-Drinkwater, employers could still stall a case for years in the trial and appellate courts with a near endless stream of appeals and writ petitions once a hearing officer granted even a well-founded Pitchess motion for information from other employees’ personnel records.3
This situation turned the Drinkwater victory into something of a hollow grant because winning the motion is only the beginning, followed by perhaps years of expensive legal wrangling in the courts while one’s appeal for reinstatement is effectively sidetracked and remains suspended for months and maybe years, and while the employer’s counsel succeeds in getting judges to issue an order staying the prosecution of the appeal until this issue is decided by a higher court. Stall is the name of the game. Meanwhile, our fired deputy or officer is without income, likely not eligible for unemployment insurance benefits because the employer will oppose the application, contending that the officer/deputy was fired for “willful misconduct,” which is a disqualifier under the Unemployment Insurance Code §1256. Litigation of this “side issue” in a separate and independent proceeding adds another layer of delay and uncertainty to an intolerable period where the employee has lost all control over his/her income and finances. Family and marital discord usually follow with the added stress and strain — a perfect storm, tearing away at the seams of family stability.
We needed a case to come up to a court of appeal, where an employer would invoke the same procedures as happened in Drinkwater to attempt to delay the case for years, while the employer exhausted its remedies before complying with a hearing officer’s order to produce so-called Pitchess records and materials. It all sounds correct; but the effect on our officers is devastating to a young police family.4
That case has come along. It is City of Carlsbad v. Scholtz (Real Party in Interest, Seapker), July 8, 2016, Cal. App. 4th, No. D070253, where Michael Williamson of our firm represented a fired Carlsbad officer in an appeal for reinstatement. Williamson developed evidence of disparate penalty, sufficient to place an ethical duty on him as defense counsel to pursue this possibly meritorious defense. In a motion, Williamson sought to access via the in camera procedures under Evidence Code § 915, official records relating to discipline or no discipline of identified officers for similar alleged misconduct. Hearing Officer Scholtz granted the motion.
A sergeant testified in the Department’s case. On cross-examination, Scholtz directed the sergeant to respond to a question about whether an officer had been reprimanded for an incident in which he and the appellant were both involved and for which the appellant received a written reprimand in November 2012. The City based its decision to discharge the appellant, in part, on this reprimand. The City objected to the questioning. Scholtz overruled the City’s objection and ordered the sergeant to answer. A lieutenant attending the hearing countermanded Scholtz and directed the sergeant not to answer the question. The sergeant declined to answer the question. Williamson moved to exclude all testimony and evidence related to the reprimand. Scholtz granted the motion, struck all testimony and evidence related to the reprimand from the record, and prohibited the City from presenting any further testimony and evidence related to the reprimand.
The City filed a petition with the Superior Court, seeking a writ of mandate to reverse these evidentiary rulings of the hearing officer. The Superior Court denied the writ petition on the merits but without prejudice, primarily on the grounds that the City had an adequate legal remedy via a petition for writ of administrative mandate at the conclusion of the administrative appeal. The Superior Court considered the matter to be an evidentiary issue and questioned whether the City was entitled to bring a petition for writ of mandate every time the hearing officer made an unfavorable evidentiary ruling. The City appealed the judgment of the Superior Court and filed a motion requesting that the Court of Appeal stay the hearing officer from conducting proceedings until the appeal was decided. Williamson opposed the motion, asserting, among other points, the judgment was not appealable because it was interlocutory, i.e., there remained issues between the parties to be adjudicated, specifically the administrative appeal. Williamson argued that proceeding with the City’s appeal would needlessly delay matters (which had been delayed by the City enough already).
The Court of Appeal agreed, stating the judgment is not final because the administrative appeal remains pending and its adjudication is essential to a final determination of the parties’ rights (i.e., whether the City properly discharged the appellant). Accordingly, the Court of Appeal dismissed the City’s appeal.
This case illustrates how employers will seek to gain advantage by delay, financially strangling discharged appellants who might be persuaded to forego their appeals for a lump-sum, cash-out payment to “go away.” Drinkwater established important due-process rights for aggrieved officers. This case closes the circle by prohibiting employers from engaging in seemingly endless appeals and frivolous motions and writs, interposed solely for delay, knowing that at some point, even the most resolved appellant can be weakened by unconscionable delays, to “throw it in” for a paltry lump sum of cash.
The Court of Appeal on its own motion ordered this opinion certified for publication to clarify what had become uncertainty, post-Drinkwater.
About the Authors
Michael P. Stone is the firm’s founding partner and principal shareholder of Stone Busailah, LLP. He has practiced exclusively in police law and litigation for 37 years, following 13 years as a police officer, supervisor and police attorney. He is an “A-V Preeminent” rated trial lawyer by the National Martindale-Hubbell Law Directory, which is the highest lawyer rating attainable in the Directory, reflecting the confidential opinions of lawyers and judges.
Muna Busailah is the firm’s managing partner. She has represented peace officers in police law and litigation cases in administrative, state and federal venues since 1993.
1 POBRA refers to the Public Safety Officers Procedural Bill of Rights Act, Government Code §§3300-3312.
2 We do not mean to instruct that every penalty for the same conduct must be the same. After all, there are an infinite number of aggravating and mitigating facts that can affect the penalty. We’re not concerned here with minor or insignificant differences in penalties; rather, we are focused on penalties meted out that essentially don’t pass the “sniff test.” That is, reasonable minds could not abide the penalty in question when considering defense evidence of the penalties in similar cases. We have had good success with this defense over the years.
3 See Pitchess v. Superior Court (1974) 11 Cal.53
4 “I worry more about what the administration … will do to my husband than what the gangsters on the street in 77th might do to harm him.” Spoken by a police client’s spouse years ago, as we rode in an elevator up to his disciplinary hearing.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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- Adam Laird Eureka POA
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
- Rodd N. Joseph Clearlake MMA
I appreciate the fact that my representative met with me in a social setting prior to the interview, during which time she learned the facts of the case. She was prepared for the interview. She seemed to have a genuine interest in my case.
- Chris Lyon Tulare Co DSA
Very thorough group of sharp/smart government concerned [attorneys]. They understood what was happening and briefed me on everything. I was very impressed.
- Andrea Salas Sonoma County DSA
[My Representative] was great! Thank you.
- Clyde Williams San Diego Harbor POA
Thank you for all of the work related to my officer involved shooting case.
- Alex Camarillo LASchool P A
[My Representative] did an excellent job with my case. He was very professional and kept me well informed throughout this case. Thank you for an awesome job.
- Jason Walters Claremont POA
LDF was very informative and provided me with the direction on how to handle my case. I was very happy with LDF and their staff.
- Grace Castro AFGE Local 2455 – Laredo, TX
My representative was very kind and showed he cared when explaining what my legal rights were when dealing with an internal investigation.
- Eric Olson Escondido POA
You guys did an amazing job! Thank you L.D.F. !
- Ricky L. Hemphill Los Angeles School PA
[My representative] was an excellent lawyer.
- Jason Boust Sanger POA
My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
- Gina Reyes Broadmoor POA
[My representative] was wonderful! Even though my situation didn't end in my favor, he was very supportive, informative & patient. He always answered every email in a timely fashion and was very accessible. I appreciated everything he was able to do for me.
- Linda Mendez Imperial Co Prob and Corr
I'm very pleased with the services offered by the LDF. I feel so fortunate to enjoy the benefits of having the membership. The services provided by LDF to its members is simply 110% professional, supportive, great!! LDF care for its members is reflected by the quality of Best Law Firm offered, simply the best!
- Paul Barrolaza Twin Cities POA
- Katie Angermiller Tuolumne Co DSA
I was very satisfied with the work the LDF performed. The lawyers and clerical staff at [law firm] were all very kind, professional and they always assisted me when I called and never made me feel like I was a burden. Thank you LDF!
- 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.
- Anthony Gregori Sonoma Co Jr College P O A
Excellent work and well worth it.
- Wendy Morrow Chico Public Safety Association
I had never been through an I.A. in my 21 years. I was scared and ashamed and humiliated. ( My attorney ) was excellent. He helped me through one of the worst times of my life. Had great outcome and I am grateful.
- Ron Ruddy Riverside POA
- Steven Curtiss Shasta Co DSA
This was my first need for LDF support and I was very happy with the level of service. Thank you.
- 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.
- Robert Morales Rialto PBA
I was very pleased with the service I received
- Derwin Longmire Oakland POA
Outstanding [law firm] - incredible firm. And, LDF was easy to work and correspond with.
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Paul Spencer Santa Paula POA
[My Representative] was great!
- Sherri Coral Riverside Community College
He was very professional. I trusted him to defend and he did! I am very thankful he was here for me.
- Gilbert Garcia Oceanside POA
My attorney provided outstanding representation.
- 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.
- Doug Plumhoff Ridgecrest PEA
Great job by all! Always great to know LDF is there when needed.
- 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].
- Larry Fitch Shasta Co DSA
My LDF rep was great, always returned my calls quickly and kept me up to date with what was going on with the case. Thank you.
- Greg Gladson LA Airport POA
[My representative] was very professional and helpful. She kept me informed with my options and the direction of the investigation.
- RIchard Okeson Hesperia USD POA
I can't express how satisfying and comforting it was to have such a well qualified and pleasant attorney at my side. Thank you so much for everything you did for me, and if you can, please thank [ my representative] again for being there for me.
- Dwayne Sue Oakland POA
[My representative was] great! She kept me informed and was very professional. She would be my choice if I should need her services in the future! (But I hope I won't) Thanks!
- Michael Sexton Manteca POA
[My representative] was awesome.
- Kevin Hullquist Siskiyou Co. Correctional POA
[My representative] did a good job representing me. Kept me informed.
- 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.
- 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.
- Caitlin Collins Tiburon POA
[My representative] made himself available 7 days a week understanding that those were my needs. He was very well informed and kept me on the right track and in the right frame of mind.
- 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.
- Alvaro Ancheta Glendora POA
I felt I was represented in a thorough and professional manner.
- 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.
- William Jackson Santa Maria POA
Keep up the great work.
- Jorge Garcia San Joaquin Co Corr Officers
No criticism to give. Very well.
- 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 Beckman Miracosta College POA
Highly recommend this program for any LEO!
- Andrew J. Brice Santa Maria POA
As always... an excellent result.
- Todd Costa Santa Clara Co DSA
This was my first Internal Affairs investigation, my lawyer walked me through every step and answered all of my questions, without my lawyer's advice, I would have been lost throughout the investigation and a complete disadvantage against my department.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- George Fierro El Monte POA
I am a firm believer that LDF serves an essential part in the assistance to protect an officer's POBR & in the integrity of an investigation or complaint. I highly recommend the law office of [My Represenative].
- Robert Glock Oakland POA
I am always satisfied with LDF and all their representatives.
- Robert Muelberg Denver PPA
I could not have had a better attorney. [My representative ] went way above and beyond his duties. I would not have had a better experience with my representative. I believe that the LDF is the single most important benefit a police officer could have!
- 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.”
- Anthony Alonzo South Gate POA
Very pleased with the way the process was explained to me. Received updated info faster than I expected. Overall a good experience in a not so good situation. Thanks to LDF.
- Russell Wise Alameda POA
- Malcolm Norrington LA School PA
I am very pleased with LDF and would use and recommend them again and again and again.
- David Heller Yolo County DSA
The charges against me, if sustained, would have likely ended my LE career. I was rightfully exonerated on all charges. I was well represented by [My Representative] and thank him for a job well done!!
- Diana Drummey Coronado POA
I so appreciated my LDF rep - his kindness and understanding re my case during an embarrassing and uncomfortable time - he was so caring.
- Erick Gaunt Palos Verdes POA
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.
- Dan McDow San Luis Obispo POA
[My representative] is the poster face representative of the greatest attorney (representative) that anyone could possibly ask for. She gets a 12 out of 10 star rating. Nobody works harder.
- Gregg Palmer San Joaquin Co Corr POA
Everything was explained very well prior to my questioning. I was not worried at all during the investigation. Very professional and a great asset to its members.
- Nestor Hernandez San Diego POA
This is a great program designed to protect LEO’s in need
- Phillip Flores Oxnard POA
My attorney was excellent. I would use her again.
- Miguel Suarez Monterey Co DSA
[My representative] was very knowledgeable and courteous. He knew his stuff, and I couldn't have asked for a better guy to be on my side on this matter. Thanks.
- David Baker Placerville POA
My experience through dealing with this matter was horrific. Without the efforts of the LDF and more specifically [my representative], I would most certainly have fallen victim to a corrupt and unethical administration. The LDF has saved my career and brought me justice.
- 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.
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation