City of
Personnel Commission
Filed 11/15/13 City of Calexico v. Calexico Personnel
Commission CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
CITY OF CALEXICO,
Plaintiff and Respondent,
v.
CALEXICO PERSONNEL COMMISSION,
Defendant;
SHAUN SUNDAHL,
Real Party in Interest and Appellant.
D063152
(Super. Ct.
No. ECU06738)
APPEAL from
a judgment of the Superior Court
of
County, Jeffrey B. Jones, Judge. Reversed.
Lackie,
Dammeier & McGill; Law Office of Michael A. Morguess and Michael A.
Morguess for Appellant and Real Party in Interest.
McDougal,
Love, Eckis, Boehmer & Foley, Steven E. Boehmer and Carrie L. Mitchell for
Plaintiff and Respondent.
Shaun Sundahl, who was employed by the City of Calexico's
police department (the Department) as a sergeant, appeals from the trial court's
decision in favor of the City of Calexico, its chief of police and its city
manager
the City) in this administrative mandamus
proceeding. The City brought this
action pursuant to Code of Civil Procedure section 1094.5 to challenge a
decision by the Personnel Commission of the City of Calexico (the Commission)
determining that Sundahl should be demoted rather than terminated for certain
violations of Department policies.
Sundahl
contends that the trial court erred in ruling that the Commission was required,
under the circumstances, to permanently terminate Sundahl's employment rather
than demote him. We conclude that the
Commission was within its discretion to determine that demotion rather than
termination was the appropriate discipline to impose on Sundahl. Accordingly, we reverse the trial court's
judgment granting the petition, and we direct that judgment be entered denying
the petition.
I
FACTUAL
AND PROCEDURAL BACKGROUND
Sundahl
began work for the Department in 2003 as a police officer, and he was promoted
to sergeant in March 2007.
This proceeding concerns the discipline
imposed on Sundahl by the City as a result of several internal affairs
investigations by the Department into Sundahl's alleged violation of Department
policies during three incidents that occurred in late 2007 and 2008, after
Sundahl became a sergeant. Those
incidents, which we will discuss in more detail below, concerned (1) Sundahl's
order that a subordinate officer use a taser to control a burglary suspect who
was attempting to escape into Mexico by wading through a polluted river; (2) Sundahl's
handling of a high-tension confrontation with several citizens after police
responded to a domestic violence call; and (3) Sundahl's failure to report
to his superiors that one of his subordinates had recorded a conversation with
a fellow officer while discussing the fellow officer's off-duty violation of traffic
laws. After conducting its
investigation, the Department concluded that Sundahl violated several
Department polices and recommended that he be demoted from his position as
sergeant.
At Sundahl's
request, a hearing was held pursuant to Skelly
v. State Personnel Board (1975) 15 Cal.3d 194, 204, resulting in a decision
by the city manager that the charges against Sundahl were well founded and that
the discipline should be increased
from demotion to termination of Sundahl's employment.
Sundahl
appealed to the Commission. After a
lengthy hearing, which included the testimony of numerous witnesses, the
Commission determined that although the Department had cause to discipline
Sundahl, the appropriate level of discipline was demotion from Sundahl's
position as sergeant to the last nonsupervisory position that he held, not
termination.
The City
filed this administrative mandamus proceeding in the trial court to challenge
the Commission's decision on the appropriate level of discipline. Based on its review of the administrative
record, the trial court concluded that the Commission abused its discretion in
determining that demotion, rather than termination, was appropriate, and it
ordered the Commission to amend its decision to include a determination that
Sundahl be permanently terminated from his employment with the City.
This action
is now before us on Sundahl's appeal from the trial court's decision granting
the relief sought by the City's petition.
II
DISCUSSION
A. Applicable Legal
Standards
Before examining
whether the record supports the Commission's decision, we discuss the legal
standards applicable to our review.
Because the
sole focus of the City's petition is a challenge to the penalty that the
Commission imposed on Sundahl, we apply an abuse of discretion standard of
review to the Commission's decision. " ' " 'The penalty imposed by an administrative body
will not be disturbed in mandamus proceedings unless an abuse of discretion is
demonstrated. . . . Neither
an appellate court nor a trial court is free to substitute its discretion for
that of the administrative agency concerning the degree of punishment imposed.' " ' "
(Cate v. State Personnel Bd.
(2012) 204 Cal.App.4th 270, 283-284 (Cate).) "If reasonable minds may differ as to
the propriety of the penalty imposed, there has been no abuse of discretion. [Citation.]
It is only in the exceptional case, when it is shown that reasonable
minds cannot differ on the propriety of the penalty, that an abuse of
discretion is shown." (
Cal.App.4th 37, 46-47 (Deegan).) In conducting our review of "the
administrative agency's determination of penalty," we give "no
deference to the trial court's decision on the issue" and focus exclusively
on the Commission's decision. (
To the
extent our analysis requires us to review the Commission's factual findings,
our inquiry is limited to whether the Commission's findings are supported by
substantial evidence. (
Com. (2007) 149 Cal.App.4th 464, 470-471 (Kolender II).) Although
some administrative mandamus proceedings require an independent review by the
trial court depending on whether the administrative decision involves a
fundamental vested right (Saraswati v.
County of San Diego (2011) 202 Cal.App.4th 917, 926), the independent
review standard does not apply here because the instant mandamus petition was
brought by the City rather than Sundahl.
" ' "It is
well-established that an employer's
right to discipline or manage its employees . . . is not a
fundamental vested right entitling the employer
to have a trial court exercise its independent judgment on the evidence. [Citations.]" [Citation.] Therefore, the trial court was required to
utilize the substantial evidence test in reviewing the commission's decision. And
on an appeal from the decision of the trial court, we review the administrative
decision, not the superior court's decision, by the same standard — the
substantial evidence test.' " (
italics omitted.) "Under the
substantial evidence rule, reasonable doubts on conflicting evidence must be
resolved in favor of the factual resolution by the Commission." (Lowe
v. Civil Service Com. (1985) 164 Cal.App.3d 667, 676.)
B. The Three Incidents
Giving Rise to the Discipline Imposed on Sundahl
We
will now review the facts, as presented to the Commission, concerning the three
incidents that gave rise to the internal affairs investigations against Sundahl
and formed the basis for the discipline imposed on him.
1.
On August 26,
2008, Sundahl, along with other officers, responded to a theft at an auto parts
store in Calexico. The suspect ran from
the police and waded into the New River in an attempt to flee to Mexico. The New River is extremely contaminated, and
human contact with it poses a health risk.
Sundahl ordered a subordinate officer to deploy a taser on the suspect
from about 20 feet away when the suspect was in waist-deep water, with the
expectation that the suspect would comply with orders to exit the river and would
submit to police custody after experiencing the pain caused by the taser.
Officers
are trained that tasers are to be deployed on a suspect in water only if there
is a clear plan of action so the suspect doesn't drown. It occurred to Sundahl that the suspect could
become incapacitated because of the taser and drown. Sundahl nevertheless proceeded with the plan
to deploy the taser, thinking that although he would never order an officer to
enter the contaminated river, in the event that a rescue was needed he would
ask for volunteers from among his subordinate officers or he would enter the
river himself. Sundahl did not
communicate his rescue plan to the officers at the scene.
The taser
was successfully deployed without harm to the suspect, who exited the river and
was taken into custody and charged with burglary. Although other officers recognized the
suspect as a known resident of Calexico, Sundahl testified that he did not recognize
the suspect until after the suspect exited the river.
The
Department's internal affairs investigation concluded that during the New River
incident Sundahl violated Department policies on the use of reasonable force,
in that he ordered that the taser be deployed in a high-risk situation without
exhausting other means of apprehending the suspect.
In its
assessment of Sundahl's performance during the New River incident, the
Commission offered the following criticism:
"As a sergeant,
Sundahl did not consider alternatives such as enlisting the assistance of the
Mexican police authorities or obtaining a warrant for [the suspect's] arrest
and executing the warrant at the residence in Calexico he was known to
stay. Instead, and contrary to the
training he had received, Sundahl ordered deployment of a taser on a suspect
waist deep in a body of polluted water.
"Sundahl failed
to take control of the scene in a manner the City would reasonably expect its
sergeants to do. He failed to gather
information from other officers. He did
not ask any questions. The only inquiry
made by Sundahl was whether a bean[]bag gun was available. Sundahl did not demonstrate the good judgment
and leadership reasonably expected of a sergeant. Sundahl had several minutes to determine a course
of action and given that considerable amount of time, by law enforcement
standards, could do no better than to order deployment of a taser and then hope
for a volunteer to enter the New River in the event the suspect became
incapacitated."
2.
On
September 14, 2008, Sundahl responded to a call from other officers for
emergency backup on Horizon Street in Calexico where an incident of domestic
violence had been reported. When Sundahl
arrived, several officers were already present, and an angry crowd had formed. Tension was developing over the officers'
continued detention of 16-year-old Christian Silva, who had initially been
handcuffed and placed in a police car to investigate his role in the incident. Sundahl learned that Christian Silva was not
involved in the domestic dispute, and officers were attempting to release him
from custody.
A total of
nine other officers were on the scene, some of whom were controlling the
surrounding crowd, which included Christian Silva's mother and father — Eva and
Carlos Silva. Although Christian Silva
was agitated about being detained, when he calmed down enough to be released, the
officers removed his handcuffs. Christian
Silva then punched the curb with his fists and lunged at one of the
officers. An officer placed the handcuffs
back on Christian Silva because of his violent behavior.
After Christian
Silva was handcuffed a second time, Eva and Carlos Silva became aggressive. When Eva Silva tugged on an officer, trying
to obtain the release of her son, Sundahl pushed her to the ground to stop her
interference. Although accounts of Carlos
Silva's behavior differ between witnesses, it is generally agreed that he became
combative to obtain the release of his son.
Sundahl testified that Carlos Silva took a fighting stance against him
and clenched his fists. Another officer
remembered seeing Carlos Silva pushing Sundahl. In the ensuing altercation, Sundahl and
another officer hit Carlos Silva with a baton several times to get him to
retreat, which caused bruising and injury to Mr. Silva.
After
Carlos Silva ran into a house, the officers first unsuccessfully tried to kick
down the door, and then finally gained access when one of the occupants opened
the door. Mr. Silva was taken into
custody and charged with resisting or obstructing a peace officer, but the
People eventually dismissed the charges.
The
Department's internal affairs investigation of the Horizon Street incident
determined that Sundahl violated Department policies on the use of reasonable
force and appropriate conduct by a supervisor.
The investigator concluded that "[i]f the situation would have been
supervised properly, Mr. Carlos Silva would have not been physically struck by . . .
Sundahl."
The
Commission expressed the following criticism of Sundahl's performance during
the Horizon Street incident:
"As a sergeant,
Sundahl had the duty to organize and direct his subordinates so that the safety
of officers and citizens could be protected.
Sundahl demonstrated poor judgment and a lack of leadership when he
failed to take charge of the scene, garner information, order release of
Christian and order his officers to vacate the scene."
3.
In late
2007 or early 2008, Sundahl was told by Officer Flores, whom he supervised,
that Officer Flores had secretly recorded a conversation with a colleague,
Officer Lopez, after observing Officer Lopez driving recklessly during off-duty
time and failing to yield when Officer Flores tried to stop him. Sundahl advised Officer Flores against
creating such recordings, but he did not report the recording to anyone else in
the Department.
After
conducting an internal affairs investigation of the tape recording incident,
the Department concluded that Sundahl violated a Department policy requiring an
officer to report to superiors when learning of the commission of a criminal
offenses by another officer. Specifically, the Department concluded that
Sundahl learned that Officer Flores had violated Penal Code section 632, which
makes it a crime to record a conversation without a person's knowledge.
In its
internal affairs investigation of the tape recording incident, the Department also
relied on Department policy 450.3, which prohibits one member of the Department
from surreptitiously recording a conversation with another member of the Department. The Department's internal investigation
concluded that Sundahl should have explained the policy to Flores and should
have internally reported Flores's policy violation.
The
Commission came to the following conclusion concerning Sundahl's handling of
the tape recording incident:
"Sundahl was
aware of a department policy against recording a conversation with another
officer without that officer's express knowledge and consent. Sundahl was aware that Lopez had potentially
committed various crimes, including either a misdemeanor o[r] felony for
failing to yield to an emergency vehicle.
Sundahl was also aware of department policy to report to his chain of
command any activity that could result in criminal prosecution. Sundahl did not do so with respect to
information concerning Lopez's [V]ehicle [C]ode violations or Flores' recording
of his conversation with Lopez without Lopez's knowledge. While a violation of policy, the [Commission]
finds that the manner in which Sundahl exercised his discretion as a supervisor
does not support the level of discipline proposed by the City."
4.
After
reviewing each of the three incidents we have described above, the Commission
explained its conclusion that demotion from the position of sergeant to a
non-supervisory position was the appropriate discipline to impose on
Sundahl.
"The
[Commission] finds that the 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 [Commission] does not find, however, that
he lacks the ability or veracity to be a productive police officer. The [Commission] also is mindful that police
management had proposed discipline less than termination, but the city manager
increased the penalty to termination."
C. The Commission Did Not
Abuse Its Discretion
Based on
the standard of review we have described, the question before us is whether the
Commission abused its discretion in determining that demotion was the
appropriate penalty to impose on Sundahl.
The Commission abused its
discretion only if we determine that "reasonable minds cannot differ on
the propriety of the penalty" of termination for Sundahl's misconduct. (Deegan,
supra, 72 Cal.App.4th at p. 47.) As we will explain, we conclude that the
Commission was within the bounds of reason to determine that demotion was the
proper discipline, and therefore the Commission did not abuse its discretion.
Case law
gives us guidance about the relevant factors to consider when determining
whether an agency abused its discretion in imposing a certain degree of
discipline upon a public employee. "The
specific criteria to be considered in evaluating a public employee discipline
dispute include whether 'the administrative decision manifests an indifference
to public safety and welfare. "In
considering whether such abuse occurred in the context of public employee
discipline, we note that the overriding consideration in these cases is the
extent to which the employee's conduct resulted in, or if repeated, is likely
to result in, '[h]arm to the public service.' [Citations.] Other relevant factors include the
circumstances surrounding the misconduct and the likelihood of its recurrence."
[Citation.] The public is entitled to protection from
unprofessional employees whose conduct places people at risk of injury and the
government at risk of incurring liability.' " (
Here, the
Commission concluded that Sundahl's problems involved his performance as a
supervisor, and that, accordingly, demotion from a supervisory position was
sufficient to prevent the recurrence of such incidents, protect the public from
the risk of injury and protect the City from the risk of incurring liability as
a result of Sundahl's conduct.
The City
criticizes the Commission's decision because it believes that Sundahl's mishandling
of the three incidents did not arise from deficiencies limited to his supervisory
skills. According to the City, Sundahl's
conduct shows his unfitness for any
type of police work. As we will explain,
we disagree. The Commission clearly
explained the manner in which Sundahl's mishandling of the three incidents
related to his supervisory skills, and substantial evidence supports the
Commission's assessment of the facts.
First, the
Commission's findings as to the New River incident focused on Sundahl's
performance as a supervisor, concluding that he "failed to take control of
the scene in a manner the City would reasonably expect its sergeants to do." The evidence supports that assessment. According to our review, Sundahl's principal
failures during the New River incident were to fail to gather information from
officers about the identity of the suspect to determine whether obtaining an
arrest warrant was a better option to employing the taser in a polluted river,
and to fail to communicate his rescue plan to the other officers so that it
could be put into action in case the suspect began to drown in the river. Neither of these failings demonstrate an
overall unfitness for police work, but rather the lack of communication and
organizational skills necessary to succeed as a supervisor.
Second, as
described by the Commission, Sundahl's mishandling of the Horizon Street
incident also arose from a lack of supervisory skills. Specifically, the Commission found that
Sundahl did not "organize and direct his subordinates so that the safety
of officers and citizens could be protected" because he "failed to
take charge of the scene, garner information, order release of Christian and
order his officers to vacate the scene." Substantial evidence supports this view of the
facts. Sundahl arrived on the scene of
an already tense situation, with his role as a supervisor to take control to
prevent the situation from escalating. The
officer who conducted the internal affairs investigation for the Department testified
that if Sundahl had used his supervisory position to take control from the time
he arrived on the scene, the altercation could have been avoided. Specifically, he concluded that Sundahl
should have taken time to speak to the other officers and to Carlos and Eva
Silva to diffuse the situation before it escalated. The City's own expert witness testified
before the Commission that Sundahl's handling of the Horizon incident was
deficient because he did not take control as a supervisor and pull out the
officers from the location. According to
the expert, Sundahl "did not do what a supervisor is supposed to do,"
and he is "more of doer than a supervisor." He opined that Sundahl should have been "standing
back . . . and should not have become physically involved." Collectively, this testimony provides
substantial evidence for the Commission's finding that Sundahl's lack of
supervisory skills was the central problem at the Horizon Street incident.
Finally,
the Commission was within its discretion to view Sundahl's handling of the tape
recording incident as a lapse in his performance as a supervisor, criticizing "the
manner in which Sundahl exercised his discretion as a supervisor" in that
incident. Importantly, the evidence
showed that Officer Flores disclosed the tape recording incident to Sundahl
because Sundahl was his supervisor and he wanted his supervisor's advice. Sundahl made the decision, as a supervisor,
to handle the situation informally. Further,
to the extent that Sundahl violated Department policy by failing to report
either Officer Flores's possible violation of Penal Code section 632 or Officer
Lopez's traffic law violations, the Commission reasonably could conclude that
the misconduct by Officer Lopez and Officer Flores was relatively trivial, and
therefore Sundahl was not rendered unfit for employment as a police officer because
he failed to report that misconduct.
Taking the
three incidents together, the City argues that the Commission had no choice but
to terminate Sundahl because his "lack of judgment not only implicates
[his] inability to supervise, but his inability to be a peace officer at any
rank." Based on the facts we have
described above, we do not agree that the Commission was required to find
Sundahl unfit for non-supervisory police work.
As we have discussed, although Sundahl's handling of the three incidents
showed flawed judgment, the deficiencies primarily dealt with Sundahl's
strategic and organizational skills as a supervisor, not the fundamental skills
needed for effective police work.
Sundahl's
lapses are nothing like the serious misconduct and extreme bad judgment
demonstrated by the law enforcement officers in the cases that that City relies
on to argue that Sundahl's conduct requires his termination to protect public
safety. (Hankla v. Long Beach Civil Service Com. (1995) 34 Cal.App.4th 1216
(Hankla); Cate, supra, 204 Cal.App.4th 270; Kolender v. San Diego County Civil Service Com. (2005) 132
Cal.App.4th 716 (Kolender I).) In Hankla,
the appellate court concluded that a
civil service commission abused its discretion in reinstating the employment of
an off-duty police officer who "shot and nearly killed the driver of
another vehicle following a heated verbal dispute over a trivial driving
incident." (Hankla, at p. 1218.) Termination
was the only reasonable outcome there because the officer's behavior was "infantile,"
"patently reckless," showed a lack of "emotional self-control or
good judgment" and an inability to "handle competently either his
emotions or his gun." (
the personnel board abused its discretion in suspending rather than terminating
a correctional officer who (1) told a suicidal inmate to " 'go ahead' " and hang herself;
(2) was discourteous to a delusional inmate; (3) attempted to intimidate
a witness and exercised undue influence in an internal affairs investigation;
(4) made disparaging comments about a fellow correctional officer; and (5) lied
about being away from his post with permission.
(Cate, at pp. 273-274.) The court determined that termination was
required because (1) the administrative law judge's recommendation
acknowledged that the officer's misconduct "might indeed be repeated";
(2) the officer had been dishonest; and (3) correctional officers
were required to work cooperatively with fellow officers and not undermine fellow
officers' authority. (
commission abused its discretion in not terminating a deputy sheriff who lied
to cover up another deputy's physical abuse of an inmate. (Kolender I,
at p. 719.) The deputy sheriff's
termination was necessary because "[h]e lied regarding a grave matter, and
thereby forfeited the trust of his office and the public[,]" and "
an inmate," even though the "safety and
integrity of inmates is one of the [sheriff's] office's paramount
responsibilities." (
Here, the
Commission could reasonably determine that Sundahl's conduct, in comparison to
that at issue in Hankla,
handling difficult situations, not revealing a fundamental emotional or moral
disqualification from serving as police officer, such as cruelty, an explosive
temper, dishonesty or lawbreaking.
The City
describes Sundahl's conduct as so "reprehensible" that it
disqualifies him from any type of police work.
The evidence does not require such a conclusion. As the Commission reasonably could have
concluded, Sundahl simply made several mistakes in assessing a situation and
implementing his training, but his conduct was not morally reprehensible or so
out of the bounds of acceptable behavior that it required his termination. Indeed, instead of laying all the blame for Sundahl's
failures as a supervisor on Sundahl's character flaws, the Commission appears
to have reasonably concluded from the evidence that Department should have
better trained its supervisors, as it commented that "[t]he City is
encouraged to provide education and training to its supervisors in order to
increase the likelihood persons occupying those positions will succeed." Although the City states, in a conclusory
argument, that the three incidents demonstrate Sundahl's "lack of truth
and veracity," we disagree. None of
Sundahl's failures during the three incidents involved problems with Sundahl's honesty,
but instead involved his mishandling of difficult situations.
In sum, the
Commission was within its discretion to decide that, based on the three
incidents reflected in the record, Sundahl was not fundamentally unfit to serve
as a police officer, and therefore demotion — instead of termination — was the
proper discipline to impose on Sundahl.
DISPOSITION
The judgment is reversed, and the trial court is directed
to enter judgment denying the City's petition for writ of mandate.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
NARES,
J.
name="_ftn1" title="">[1] James Neujahr is the chief of police, and Oscar Rodriquez
is the city manager.
name="_ftn2" title="">[2] We note that in reaching his decision, the city manager
expressly considered certain personnel grievances that Sundahl filed but that
were not cited in any formal notice of adverse employment action by the
Department against Sundahl. Although
Sundahl's grievances appear in the administrative record, neither the
Commission nor the trial court relied on them in reaching its conclusion about
the proper discipline to impose on Sundahl, and the City does not cite them as
a justification for terminating Sundahl.
Accordingly, we have not relied on the grievances in conducting our
analysis.
