Wenger v. City of Newport Beach Civ. Serv. Bd.
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10 day rule contained in SOP 7.C.300.07(B) did not apply to the termination of Wengers employment because the rule was no longer in effect.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.
Court affirm. As Court 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in detail post, substantial evidence before the trial court shows the 10 day rule contained in SOP 7.C.300.07(B) was no longer in effect at the relevant time.
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