Morgado v. City & Cnty. of S.F.

• Decision Date: 27 June 2017
• Docket Number: A141681
• Citation: 13 Cal.App.5th 1,220 Cal.Rptr.3d 497
• Court: California Court of Appeals Court of Appeals
• Parties: Paulo MORGADO, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants.

13 Cal.App.5th 1

220 Cal.Rptr.3d 497

Paulo MORGADO, Plaintiff and Respondent,

v.CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants.

A141681

Court of Appeal, First District, Division 4, California.

Filed June 27, 2017

Counsel: Dennis J. Herrera, City Attorney, Elizabeth Salveson, Chief Labor Attorney, Rafal Ofierski, Deputy City Attorney, for Defendant and Appellant.

Carroll, Burdick & McDonough, Sacramento, Greg McLean Adam, Jonathan Yank and Jennifer S. Stoughton for San Francisco Police Officers Association as Amicus Curiae on behalf of Plaintiff and Respondent.

Murphy, Pearson, Bradley & Feeny, James A. Lassart and Adrian G. Driscoll for Plaintiff and Respondent.

Streeter, J. Government Code ¹ section 3304, subdivision (b), which is part of the Public Safety Officers Procedural Bill of Rights Act (PSOPBRA) (§ 3300 et seq.), provides that "[n]o punitive action ... shall be undertaken by any public agency against any public safety officer ... without providing the public safety officer with an opportunity for administrative appeal."

In this appeal, the City and County of San Francisco (City) seeks review of the trial court's order granting injunctive relief to Paulo Morgado (Morgado), a non-probationary City police officer whose employment was terminated following misconduct findings. The City argues the court erred in finding the City's procedure for disciplining police officers violates section 3304, subdivision (b).

We disagree and will affirm.

I. BACKGROUND

On or about March 1, 2008, a citizen with whom Morgado interacted filed a complaint against him with the Office of Citizen Complaints (OCC) of the City's Police Department.² Pursuant to its powers granted by the City Charter (see S.F. Charter, § 4.127), the OCC investigated the alleged misconduct and shared its findings and disciplinary recommendations with the chief of police (Chief). After further investigation by the department's internal affairs division, the Chief filed a disciplinary complaint with the City's Police Commission (Commission) against Morgado in August 2009.³

The Commission assigned one of its seven members to investigate the complaint, first on August 28, 2009, and then, after that commissioner stepped down, another on June 8, 2010. That commissioner held a full evidentiary hearing on August 2 and 3, 2010, in which Morgado participated. Later, on March 30, 2011, Morgado, represented by counsel, participated in a hearing before the full Commission, at the conclusion of which the Commission sustained four of the six counts against him and decided to terminate his employment.

Dissatisfied with the Commission's decision, on February 16, 2012, Morgado sued the City, the OCC, the Chief, and the Commission, seeking injunctive relief and a writ of administrative mandate to direct the defendants to reinstate him. Responding to a discovery request by Morgado, the City "admit [ted]," as a factual matter, the "only punitive action undertaken against him" was the Commission's decision "to terminate [his] employment." The City further "admit[ted]," as a factual matter, it did not provide Morgado with an "administrative appeal" from the Commission's decision to terminate his employment. After the trial court denied the City's motion for summary judgment in October 2013, the case proceeded to a bench trial.

The court issued a written statement of decision and entered judgment in favor of Morgado on February 26, 2014. Relying on sections 3304, subdivision (b) (requiring "an opportunity for administrative appeal") and 3309.5, subdivision (d)(1) (giving the trial court discretion to grant injunctive relief), and pertinent case law, the court issued an order (1) enjoining the Commission "from taking any punitive action against Morgado pursuant to the complaint ... unless the Officer has first been provided an opportunity for administrative appeal from that action," (2) vacating his termination, and (3) directing the City to provide him an "opportunity for administrative appeal" from the Commission's decision to terminate his employment. The court specifically noted it was "not changing any other findings made by the Police Commission."

The City filed a timely notice of appeal.

II. DISCUSSION

A. Standard of Review

We review questions of statutory interpretation de novo. (See California Apartment Assn. v. City of Fremont (2002) 97 Cal.App.4th 693, 699, 118 Cal.Rptr.2d 603.) The rules of statutory construction are well-settled: "we are to ascertain the intent of the Legislature so as to effectuate the purpose of the law," first by looking to the plain text, "giving effect to the ordinary meaning of the words employed," and considering the language within the context of the entire statutory scheme. ( Id. at pp. 699–700, 118 Cal.Rptr.2d 603.) In construing the statutory language, "we consider matters such as ‘ " ‘the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.’ " ' " ( Id. at p. 700, 118 Cal.Rptr.2d 603. )

At the heart of this appeal is whether a "punitive action" was taken against Morgado, and if so, when that action took place. The City admitted during discovery that the "first and only ‘punitive action’ " here was the Commission's decision to terminate Morgado's employment. We view this issue as a mixed question of fact and law. (See Crocker National Bank v. City & County of San Francisco (1989) 49 Cal.3d 881, 888, 264 Cal.Rptr. 139, 782 P.2d 278 ["Mixed questions of law and fact concern the application of the rule to the facts and the consequent determination whether the rule is satisfied. If the pertinent inquiry requires application of experience with human affairs, the question is predominantly factual and its determination is reviewed under the substantial-evidence test. If, by contrast, the inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values, the question is predominantly legal and its determination is reviewed independently. " (Italics added.) ]; cf. Turturici v. City of Redwood City (1987) 190 Cal.App.3d 1447, 1449–1450, 236 Cal.Rptr. 53[applying, in effect, de novo review to determine whether disputed action constitutes "punitive action" for purposes of the PSOPBRA].) Any admissions made by the City on the question are not binding on us, since we must make our own independent determination in the course of our de novo review.

B. The PSOPBRA "Administrative Appeal" Requirement

Four decades ago, the Legislature enacted the PSOPBRA " ‘to maintain stable employer-employee relations and thereby assure effective law enforcement.’ " ( Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 572, 273 Cal.Rptr. 584, 797 P.2d 608.) "The Act requires that law enforcement agencies throughout the state afford minimum procedural rights to their peace officer employees." ( Ibid. , fn. omitted; accord, Baggett v. Gates (1982) 32 Cal.3d 128, 135, 185 Cal.Rptr. 232, 649 P.2d 874 ( Baggett ); Quez a da v. City of Los Angeles (2014) 222 Cal.App.4th 993, 1003, 166 Cal.Rptr.3d 479 ; see also § 3301 [declaring legislative findings to the same effect].) A public agency may, of course, provide police officers more than what is required in the statute, so long as, at "a minimum[,] [the agency] provides to [them] the same rights or protections as provided pursuant to [the PSOPBRA] ... with regard to such a procedure." (§ 3310; see also Runyan v. Ellis (1995) 40 Cal.App.4th 961, 967, 47 Cal.Rptr.2d 356.)

Subdivision (b) of section 3304 provides, in relevant part, that "[n]o punitive action ... shall be undertaken by any public agency against any public safety officer ... without providing the public safety officer with an opportunity for administrative appeal." Section 3304.5 further provides that "[a]n administrative appeal instituted by a public safety officer under [the PSOPBRA] shall be conducted in conformance with the rules and procedures adopted by the local public agency." Section 3303, in turn, defines "punitive action" as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment."

The purpose of the administrative appeal requirement is "to ensure a peace officer subjected to punitive action has the ‘opportunity "to establish a formal record of the circumstance surrounding his termination" [citation] and "to attempt to convince the employing agency to reverse its decision , either by demonstrating the falsity of charges which led to punitive action, or through proof of mitigating circumstances." ’ " ( San Diego Police Officers Assn. v. City of San Diego Civil Service Com. (2002) 104 Cal.App.4th 275, 280, 128 Cal.Rptr.2d 248, italics added.) Section 3304"does not specify how the appeal process is to be implemented"; instead, "[t]he details of administrative appeal under section 3304, subdivision (b) are left to be formulated by the local agency." ( Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1806, 20 Cal.Rptr.2d 903.) But courts have concluded that, "[a]t minimum, section 3304 requires that a peace officer receive an evidentiary hearing before a neutral fact finder to challenge the punitive action." ( Gordon v. Horsley (2001) 86 Cal.App.4th 336, 347, 102 Cal.Rptr.2d 910 ; accord, Giuffre v. Sparks (1999) 76 Cal.App.4th 1322, 1329, 91 Cal.Rptr.2d 171.)

The City argues the proceedings against Morgado complied with the "letter and the intent" of the "administrative appeal" requirement under section 3304, subdivision (b), because "the Commission proceeding is the appeal that [PSOPBRA] requires the City to make available before ‘undertaking’ the disciplinary action sought by the Chief and/or the OCC." (Italics added.)

And, the City argues, the first "punitive action" was not, as the trial court found, the Commission's decision to terminate Morgado's employment, but rather was "the Chief's...