Wenger v. City of Newport Beach Civ. Serv. Bd.

Filed 2/21/08 Wenger v. City of Newport Beach Civ. Serv. Bd. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Mary Fingal Schulte, Judge. Affirmed.

Wagner & Pelayes, Alice E. Waters and Dennis E. Wagner for Plaintiff and Appellant.

Rutan & Tucker, David C. Larsen and Lona N. Laymon for Defendant and Respondent and for Real Party in Interest and Respondent.

* * *

INTRODUCTION

The fire department (the department) of defendant City of Newport Beach (the City) fired plaintiff David Wenger, who had been employed by the department as a lifeguard lieutenant, after the fire chief determined Wenger had engaged in misconduct. After a five‑day hearing, the City of Newport Beach Civil Service Board (the Board) rejected Wengers appeal and upheld the departments decision.

Wenger filed a petition for writ of mandate which sought the issuance of a writ compelling the department to set aside its decision to terminate his employment. Wenger presented a single argument in support of his petition: Pursuant to the departments procedure (SOP) 7.C.300.07(B), the department had forfeited the right to discipline Wenger because it had failed to either administer the discipline or advise Wenger of the departments intention to apply substantial punitive discipline within 10 days of the day Wengers supervisor [wa]s made aware of an action requiring a disciplinary response.

The trial court denied Wengers petition on the ground the so‑called 10‑day rule contained in SOP 7.C.300.07(B) did not apply to the termination of Wengers employment because the rule was no longer in effect. Wenger contends the trial court erred in reaching that conclusion.

We affirm. As we discuss in detail post, substantial evidence before the trial court shows the 10‑day rule contained in SOP 7.C.300.07(B) was no longer in effect at the relevant time.

BACKGROUND[1]

I.

Wengers Employment with the Department is Terminated; City Manager Upholds Termination Decision.

By confidential memorandum dated February 11, 2004, Wenger was advised by Timothy Riley, the departments fire chief, of Rileys proposed intention to terminate [Wenger]s employment as lifeguard lieutenant based on insubordination, misconduct, dishonesty, and disobedience in connection with a sexual harassment investigation that had been conducted by the City in the summer and fall of 2003. Riley determined Wenger had engaged in misconduct after Riley received a memorandum on December 8, 2003 from the human resources director for the City regarding the sexual harassment investigation. Wenger responded to Rileys memorandum and was represented by counsel in doing so. In a letter dated March 8, 2004, Riley informed Wenger that his employment would be terminated effective that date.

Wenger appealed Rileys decision to the city manager pursuant to section 13.4 of the employee policy manual. The city manager held a hearing and issued a decision on September 10, 2004, upholding the termination of Wengers employment.

II.

Wenger Appeals to the Board and Moves to Dismiss Employment Termination Decision on Ground the Departments SOP 7.C.300.07(B) Was Violated.

Wenger timely appealed to the Board. In addition to challenging the factual basis for the departments decision to terminate his employment, Wenger filed a motion to dismiss the termination action against him on the ground the department had failed to comply with the departments progressive discipline policy, SOP 7.C.300, as adopted in 1996 and revised in 2000.

Specifically, Wenger argued the department failed to follow what the parties refer to as the 10‑day rule which is contained in SOP 7.C.300.07(B).[2] SOP 7.C.300.07(B) stated: Beginning the day the employees supervisor is made aware of an action requiring a disciplinary response, the Department shall have ten days to administer the discipline or advise the employee the Departments intention to apply substantial punitive discipline. If there is no notice given, nor disciplinary action taken against the employee before the end of the ten-day period, the Department will forfeit the right to discipline the employee for the said action. If the supervisor feels that additional investigation is warranted, the Department may extend the ten‑day period by notifying the employee of the extension. [] If it is the Departments intent to apply substantial punitive discipline the employee shall be entitled to prior written notice of intent to discipline at least 7 calendar days prior to the imposition of the actual penalty. (Original italics.)

The City filed an opposition to Wengers motion to dismiss in which it argued the 10‑day rule was not in effect at the time of Wengers discipline. The City further argued that even if it had been in effect, the 10‑day rule would have been tolled because Wenger had filed a grievance in November 2003 seeking to exclude statements he made in an interview connected to an investigation that was being conducted by the City from being used against him for any purpose.

III.

Memorandum of Understanding 2000; Adoption of City‑wide Employee Policy Manual Without 10‑day Rule; Newport Beach Marine Safety Officers Associations Agreement to New SOP 7.C.300 to Eliminate 10‑day Rule; Memorandum of Understanding 2003

At the hearing before the Board, evidence was presented regarding the history of SOP 7.C.300. In 2000, a memorandum of understanding (MOU 2000) was entered into between the City and Wengers union, the Newport Beach Marine Safety Officers Association (MSOA). Section 5(E) of MOU 2000, entitled Discipline, specifically incorporated SOP 7.C.300, stating, [a]ny discipline shall be in accordance with Department SOP 7.C.300. MOU 2000 further stated, [t]he terms of this MOU are to remain in full force and effect beginning July 1, 1999 through June 30, 2002, and, thereafter from year‑to‑year, unless within the time frame and in the manner designated in Section 13, Timetable for Submission of Requests of the Employer‑Employee Relations Resolution, either party serves written notice upon the other of its desire to make changes in this MOU.

In December 2001, the Citys city council adopted the City of Newport Beach Employee Policy Manual (the manual) which consisted of a comprehensive set of policies applicable to all employees of the City (excluding certain seasonal and part‑time employees). Although the manual contained comprehensive policies on disciplinary procedures, it did not contain the 10‑day rule included in SOP 7.C.300.07(B). Section 1.2 of the manual, entitled Scope, states in part that [t]he provisions of a Memorandum of Understanding (MOU) with respect to any matter within the scope of representation shall prevail over the provisions of this Manual in the event of a conflict. While the terms of the manual were not to supersede MOU provisions within the scope of representation, the manual was designed to supersede inconsistent policies and procedures of the department. The manual stated: Department Directors may promulgate rules or procedures that pertain to matters covered by this Manual or matters outside the scope of this Manual. Department rules or procedures shall not conflict with provisions of this Manual and, in the event of conflict, this Manual shall prevail. Department rules or procedures should generally relate to the specific and unique mission, role, duties or functions of the Department or its Employees. . . . This section is not intended to affect or supercede existing Department Policies not in conflict with this Manual.

Brent Jacobsen, president of MSOA, testified MSOA had agreed to the manual after engaging in a meet and confer process before it was adopted by the city council. Before the city council adopted the manual in December 2001, Jacobsen had pointed out to Riley in an e‑mail that the manual was inconsistent with SOP 7.C.300, and that SOP 7.C.300 should be reviewed at the earliest possible time and adjusted to be consistent with the Employee Policy Manual. In response, Riley informed Jacobsen that the department was in the process of developing a new draft of SOP 7.C.300 which would address his concerns, and that he would see the draft shortly.

In late 2002, Riley sent out a new draft of SOP 7.C.300 to all members of the department staff, which included the chief officers, all persons assigned to specific staff‑related functions, and representatives of the departments two principal employee associations, MSOA and the Firefighters Association. The new draft of the departments SOP 7.C.300 did not contain a section 7.C.300.07(B) or another version of the 10‑day rule. MSOA did not object to the draft or ask to negotiate the 10‑day rule. Jacobsen testified that MSOA, in negotiations to enter into a new memorandum of understanding with the City, agreed to the new draft of SOP 7.C.300 which did not contain the 10‑day rule as had been set forth in SOP 7.C.300.07(B).

On July 7, 2003, a new memorandum of understanding was agreed to and ratified by MSOA (MOU 2003). MOU 2003 states, [t]he terms of this MOU are to remain in full force and effect beginning July 1, 2002 through December 31, 2003 or if after December 23, 2003, the conclusion of the meet and confer process.

With regard to its scope, MOU 2003 stated in part: All present written rules and currently established practices and employee rights, privileges and benefits that are within the scope of representation shall remain in full force and effect during the term of this MOU unless specifically amended by the provisions of this MOU, or in the case of the Department SOPs falling within the scope of representation, the City has given notice to the Association and, upon request, met and conferred on any proposed changes which fall within the scope of representation. With regard to discipline, MOU 2003 removed any reference to SOP 7.C.300, and instead stated, [a]ny discipline shall be in accordance with the Department SOP and the Employee Policy Manual.

The final revised SOP 7.C.300, modified to, inter alia, eliminate the 10‑day rule, was issued in February 2004.

IV.

The Board Upholds the Departments Decision to Terminate Wengers Employment and Finds 10‑day Rule Not Effective Prior to the Inception of This Matter.

After a five-day hearing, the Board issued its seven-page findings of fact, conclusions and decision, in which it upheld the departments decision to terminate Wengers employment. The Board concluded Wenger had engaged in willful disobedience, insubordination, material misconduct, and untruthfulness, constituting good cause for the termination of his employment. The Board further concluded the provisions of SOP 7.C.300 at issue ceased to be operative prior to the inception of this matter and therefore did not apply herein. The negotiated agreement was reached between the City and NBMSOA, the employee organization that represented [Wenger].

V.

Trial Court Denies Wengers Petition for Writ of Mandate.

In March 2006, Wenger filed a verified petition for writ of mandate under Code of Civil Procedure section 1094.5, by which he sought the issuance of a preemptory writ of mandate compelling [the Board] to set aside its decision, and issue another decision which exonerates [Wenger] of any misconduct, and restores to him any lost benefits, seniority, privileges or compensation, with interest, and compelling [the department] to take all steps to implement said new decision.

The City filed a motion to deny Wengers petition. The trial court granted the Citys motion and denied Wengers petition for writ of mandate, stating: The petitioner has presented two issues: Was the July, 2000 SOP that contained the Ten‑Day Rule operative for the relevant period under review? Second, if so, does the application of the policy result in the forfeiture of the disciplinary action? He has not argued that the City did not have ground to terminate him, and thus has waived such an argument. He has not established that the Ten‑Day Rule was in effect at the time of his termination, or, if it was, that the [department] did not comply with the Rule in its notification of intent to terminate him within 10 days of resolution of his grievance. His position is based on a tortured reading of the former MOU [memorandum of understanding] in a vacuum without recognition of the creation of the Citywide Manual, the conflict between the Manual and the Ten‑Day Rule, or the negotiations and understandings between Chief Riley and the Acting MSOA President in 2003 that the Ten‑Day Rule which was not incorporated into the 2003 MOU would no longer be effective. [] Beginning with a presumption that the administrative finding was correct, and exercising independent judgment to assess whether [the Board]s findings are supported by the weight of the evidence[,] the Court finds Petitioner has not shown that the administrative finding was the result of an abuse of discretion, or that there was an unfair trial. There was ample evidence in the proceeding below to support the finding that the Ten‑Day rule was not in effect at the time of Wengers discipline, and ample evidence that the ten days would have been tolled in any event, pending Petitioners grievance filed on November 7, 2003.

Judgment was entered in favor of the Board and the department. Wenger appealed.

DISCUSSION

I.

Summary of Wengers Arguments and Our Conclusions

Wenger contends the trial court erred in concluding the 10‑day rule contained in SOP 7.C.300.07 did not apply to procedures related to the termination of his employment. In his opening brief, Wenger contends the 10‑day rule did apply and the 10‑day time period was triggered upon Rileys determination that Wenger had engaged in misconduct once Riley received the Citys human resources directors December 8, 2003 memorandum summarizing Wengers misconduct.[3] Wenger contends, [t]he 10‑day timeframe started on this date and expired long before the February 11, 2004 letter of intention to terminate [Wenger]. Therefore, Wengers argument continues, because the department failed to administer discipline or advise Wenger of its intention to apply substantial punitive discipline within 10‑days of December 8, 2003, the department forfeited its right to discipline Wenger for such misconduct.

As we explain post, the trial court correctly concluded the 10‑day rule of SOP 7.C.300.07(B) did not apply in this case because the City and MSOA had agreed to eliminate the 10‑day rule from discipline procedures well before December 8, 2003. We therefore do not need to address whether Wengers other challenges to the trial courts decision that the 10‑day period had been tolled, or whether the revised draft SOP was in effect as of December 8, 2003. In addition, Wengers argument the Citys investigation of him was flawed because the departments SOPs other than SOP 7.C.300.07(B) were not followed is waived because he did not present it to the trial court.

II.

Standard of Review and General Principles of Contract Interpretation

[O]n appeal from a judgment in an administrative mandate proceeding (Code Civ. Proc.,  1094.5), this court must determine whether the superior courts findings are supported by substantial evidence and are correct on matters of law. [Citations.] (Yellen v. Board of Medical Quality Assurance (1985) 174 Cal.App.3d 1040, 1058; see Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824 [Even when, as here, the trial court is required to review an administrative decision under the independent judgment standard of review, the standard of review on appeal of the trial courts determination is the substantial evidence test].)

The basic goal of contract interpretation is to give effect to the parties mutual intent at the time of contracting. [Citations.] When a contract is reduced to writing, the parties intention is determined from the writing alone, if possible. [Citation.] (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 955.) Extrinsic evidence is admissible to prove a meaning to which the contract is reasonably susceptible. (Ibid.) When no extrinsic evidence is introduced, or when the competent extrinsic evidence is not in conflict, the appellate court independently construes the contract. (Ibid.)

III.

Substantial Evidence Supports the Trial Courts Finding the 10‑day Rule of SOP 7.C.300.07(B) Was Not in Effect at Relevant Times Related to the Termination of Wengers Employment.

Substantial evidence supports the trial courts finding the department did not forfeit the right to terminate Wengers employment for failure to comply with the 10‑day rule of SOP 7.C.300.07(B) because that rule was no longer in effect. The evidence shows that MOU 2000 expressly incorporated the discipline procedures contained in SOP 7.C.300, which included the 10‑day rule in SOP 7.C.300.07(B). MOU 2000 further provided that its terms were to remain in full force and effect beginning July 1, 1999 through June 30, 2002, and, thereafter from year‑to‑year, unless within the time frame and in the manner designated in Section 13, Timetable for Submission of Requests of the Employer‑Employee Relations Resolution, either party serves written notice upon the other of its desire to make changes in this MOU.

The record does not elaborate on the substance of Section 13, Timetable for Submission of Requests of the Employer‑Employee Relations Resolution, and neither party explains this reference. The evidence shows, however, that MSOA was notified about the Citys intention to abandon the 10‑day rule before December 11, 2001. Jacobsen testified MSOA had engaged in a meet and confer process with the City as to the implementation of the manual which eliminated the 10‑day rule. MSOA had agreed to the provisions of the manual before it was adopted by the city council on December 11, 2001. We reasonably infer the meet and confer process included written notice of the Citys intentions with regard to the 10‑day rule. Thus, by MOU 2000s stated expiration date of June 30, 2002, MSOA had not only been advised of the Citys intention to abandon the 10‑day rule, it had agreed to the elimination of the 10‑day rule.

The provision of MOU 2000 incorporating the 10‑day rule of SOP 7.C.300.07(B) therefore did not continue in effect beyond June 30, 2002. As the manual had already eliminated the 10‑day rule in December 2001 with respect to all employees not covered at the time by a memorandum of understanding stating otherwise, the 10‑day rule was no longer effective by the time Riley determined Wenger would be subject to substantial punitive discipline in December 2003.[4]

Even if MSOAs agreement to the manual did not constitute sufficient evidence it had been adequately advised of the Citys intention to abandon the 10‑day rule within the meaning of MOU 2000s duration provision, and even if the terms of MOU 2000 renewed for another year until June 30, 2003, the record shows MSOA was notified in writing of the Citys intention to abandon the rule before June 30, 2003.

Riley testified that in late 2002, he sent an e-mail to MSOA representatives containing a draft of SOP 7.C.300, revised to be consistent with the discipline portions of the manual and to eliminate the 10‑day rule. The record further shows MSOA president Jacobsen received the draft, MSOA did not object to the draft, MSOA waived the opportunity to meet and confer on the changes contemplated by the draft by failing to request a meet and confer on the draft, and MSOA ultimately agreed to its terms. Indeed, in December 2001, Jacobsen urged Riley to revise SOP 7.C.300 to make it consistent with the manual that MSOA had already approved.

Again, the record does not show whether the Citys form and/or timing of its written notice to MSOA fully satisfied the vague timetable and service requirements referenced in the duration provision of MOU 2000. Jacobsens testimony regarding MSOAs receipt of Rileys e-mail and MSOAs consistent acquiescence to the Citys plan to abandon the 10‑day rule supports the conclusion MOU 2000 did not continue in operation after June 30, 2003 as to the 10‑day rule.

Wenger argues the manual requires that the departments proposed rules must be submitted to the city manager before they become effective, and that the city manager must meet and confer prior to the adoption of any of the departments rule that relates to matters within scope of representation. Wenger contends the 10‑day rule was within the scope of representation because it was incorporated into MOU 2000. The dispositive issue here, however, is not when or whether revised SOP 7.C.300 became effective. It is whether the 10‑day rule survived the issuance of the manual superseding inconsistent rules of the department and the expiration of MOU 2000. As discussed ante, it did not.

IV.

Wenger Has Waived All Issues Except the Issue Whether the 10‑day Rule Applied to the Termination of His Employment.

In his opening brief, Wenger argues the City failed to comply with other procedures of the department in the investigation leading to the termination of Wengers employment. For example, Wenger argues he was denied the right to have a union representative present during interviews, not advised of the nature of the investigation, and not provided a copy of an employee interview form.

Wenger has not preserved this argument for appeal because it was neither presented to nor decided by the trial court. In the memorandum of points of authorities Wenger filed in support of his petition for writ of mandate, Wengers sole argument was [t]he ten-day rule bars the disciplinary action against petitioner. At oral argument on the petition, Wengers counsel reiterated the single issue raised in the petition by stating, [i]n essence, our argument relates only to the provisions of the ten‑day rule. The trial courts minute order, in which it denied Wengers petition, began by stating: The petitioner has presented two issues: Was the July, 2000 SOP that contained the Ten-Day Rule operative for the relevant period under review? Second, if so, does the application of the policy result in the forfeiture of the disciplinary action?

Wengers argument relating to issues other than the 10‑day rule has been waived.

DISPOSITION

The judgment is affirmed. Respondent is to recover costs on appeal.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

MOORE, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

[1] The misconduct precipitating Wengers termination of employment came to light during the course of the Citys investigation into possible sexual harassment or other misconduct by other lifeguards employed by the City. Although the parties include many of the salacious details of that investigation in their briefs, those facts are not relevant to the single issue presented in this appeal, and are therefore not included in our opinion. Facts contained in this background section are based on evidence presented at the administrative hearing before the Board and the parties statement of stipulated facts.

[2] Wengers motion only quoted section B of SOP 7.C.300.07 and we review his argument based on that rule. In the opening brief, Wenger cites SOP 7.C.300.07(A), which contains a virtually identical 10-day rule. SOP 7.C.300.07(A) stated: Beginning the day the employees supervisor is made aware of an action requiring a disciplinary response, the Department shall have ten days to administer the discipline. If there is no disciplinary action taken against the employee before the[] end of the ten-day period, the Department will forfeit the right to discipline the employee for the said action. Employees shall meet at the departments request to resolve disciplinary matters. The department and the employee shall make reasonable accommodations in scheduling. If the supervisor feels that additional investigation is warranted, the Department may extend the ten-day period by notifying the employee of the extension. The 10-day rule of SOP 7.C.300.07(A) was ineffective by June 2002 for the same reasons the 10-day rule of SOP 7.C.300.07(B) had become ineffective as discussed in detail post.

[3] At oral argument, Wengers counsel argued the 10‑day rule was triggered in October 2003. Even if we assume the 10‑day rule would have been triggered in October 2003 had it been in effect at that time, as discussed post, the 10‑day rule was no longer effective as of June 30, 2002.

[4]Valencia v. County of Sonoma (2007) 158 Cal.App.4th 644 is inapplicable. In Valencia, the appellate court held that a county agency could not impose discipline on a union employee that was not permitted by the governing memorandum of understanding. (Id. at p. 648.) As discussed ante, the record shows the City had engaged in the meet and confer process with MSOA before the abolition of the 10‑day rule; the City did not unilaterally revise terms of any memorandum of understanding or otherwise impose discipline inconsistent with MOU 2000.