Bailey v. City of National City

• Decision Date: 16 January 1991
• Docket Number: No. D011272,D011272
• Citation: 226 Cal.App.3d 1319,277 Cal.Rptr. 427
• Court: California Court of Appeals Court of Appeals
• Parties: Alan BAILEY, Appellant, v. CITY OF NATIONAL CITY, et al., Respondents.

Page 427

277 Cal.Rptr. 427

226 Cal.App.3d 1319

Alan BAILEY, Appellant, v. CITY OF NATIONAL CITY, et al., Respondents.

No. D011272.

Court of Appeal, Fourth District, Division 1, California.

Jan. 16, 1991.

Certified for Partial Publication ¹

Review Denied April 11, 1991.

[226 Cal.App.3d 1323] Everett L. Bobbitt, San Diego, for appellant.

Everett L. Bobbitt, San Diego, counsel for amicus curiae on behalf of appellant.

Christopher L. Ashcraft, San Diego, counsel for amicus curiae on behalf of appellant.

George H. Eiser, III, City Atty., and Linda Kaye Harter, Asst. City Atty., City of Nat. City, for respondents.

FROEHLICH, Associate Justice.

Alan Bailey appeals from a judgment denying his petition for a writ of mandamus. Bailey, a police officer with respondent City of National City, was terminated based on his alleged violations of the City's Police Department Rules and Regulations. ² Bailey petitioned the superior court for a writ of mandamus, contending the action of the city council in upholding his termination was an abuse of discretion and was unsupported by the evidence. Bailey also contended that rule 3.3, one of the rules he was found to have violated, could not be relied upon because it was unconstitutionally vague and overbroad.

After reviewing the transcripts and evidence from the administrative hearing, the trial court exercised its own independent judgment and concluded the findings by the city council were clearly supported by the evidence. It further determined the city council's action to terminate Bailey was not an abuse of discretion. Additionally, it found rule 3.3 was constitutional as applied in this case.

We find there is substantial evidence to support the trial court's independent judgment that termination was not an abuse of discretion on the facts of this case. We also conclude there is no constitutional infirmity in placing partial reliance upon Bailey's violation of rule 3.3 to support the termination.

I. Summary of Background

Bailey was accused by the City of violating several police department rules. The first alleged transgression was that he undertook outside employment (assisting a civil attorney in accident reconstruction) without obtaining the requisite prior permission from the department. A second rule violation occurred when he testified at the civil arbitration hearing wearing his police uniform, in violation of a rule precluding an officer from using the visible indicators of his official position for personal financial gain. Bailey's most serious rule violation occurred when he continued to have contacts with an old friend (who had been convicted of a felony) after being warned not to do so, thus violating rule 3.3 which prohibited continuous personal associations with felons.

After an administrative investigation confirmed these accusations, the City notified Bailey of its intent to terminate his employment. Bailey requested and was Bailey then appealed to the City Civil Service Commission. After a hearing lasting several days, the Commission found Bailey had violated four separate rules, but recommended the imposition of penalties other than termination--suspension, reduction in salary step, and repayment by Bailey of certain vacation benefits he had received.

granted a Skelly hearing, ³ which was held before a reviewing officer, who found termination for the various rule violations to be proper.

Both Bailey and the police department appealed the Civil Service Commission's decision to the city council. The city council reviewed the testimony, exhibits and record and issued its determination in the form of Resolution No. 15,844. The resolution made a series of factual findings and concluded therefrom that violation by Bailey of four different police department rules had been established. Because the city council found the nature and gravity of the violations were substantial, it concluded that imposition of the most serious discipline was appropriate and ordered reinstatement of Bailey's termination.

We review the trial court's affirmance of this action by using the "substantial evidence" test as to the factual findings and the "abuse of discretion" test as to the determination that the gravity of the violations supported the remedy of termination. ⁴

II. There Is Substantial Evidence to Support the Factual Findings Upon Which the Disciplinary Action Was Based

A. Outside Employment ^*

B. Associating with a Felon

Rule 3.3 prohibits police officers from continuous personal associations with felons other than as required to perform their official duties. ⁵ The Civil Service Commission, the city council and trial court all found, as a factual matter, Bailey violated this rule along with rule 1.6 (requiring obedience to lawful orders) by continuing his association with one Eddie Smith, despite knowing Smith was a felon and despite a specific order to cease associating with Smith. While Bailey claims these findings are "totally unsupported by the evidence," we conclude the evidence, along with all permissible inferences drawn in favor of the trial court's judgment (see Richardson v. Board of Supervisors (1988) 203 Cal.App.3d 486, 492-493, 250 Cal.Rptr. 1), supports the findings.

Bailey and Smith were close personal friends. Smith had introduced Bailey to the attorney who hired Bailey for the accident reconstruction testimony referred to above; Smith had been best man at Bailey's wedding in July 1987; and indeed, Smith had given Bailey money to help pay for that wedding. In October 1987, Smith suffered a conviction for felony solicitation.

In November 1987, Bailey wrote a letter to the sentencing judge (using police department letterhead and signing the letter in his official capacity) in support of his friend, urging the court to grant probation rather than impose a prison term.

When the police department learned of this letter in December 1987, Sergeant Darton met with Bailey to discuss the improprieties of his conduct and to review and discuss the various rules Bailey had violated. During that meeting Darton ordered Bailey to disassociate himself from Smith because Smith was a convicted felon. Although Bailey expressed his belief Smith was not a felon, but had instead suffered only a misdemeanor conviction, Darton reiterated (after confirming the facts with others) that Smith was in fact convicted of a felony.

Despite both rule 3.3 and Darton's order, Bailey maintained his friendship with Smith. During the hearings Bailey admitted to only one meeting and one phone call with Smith between the December counseling session and the start of the administrative investigation in July 1988. However, these incidents could be, and apparently were, viewed by the triers of fact as symptomatic of a broader ongoing relationship, since all the triers of fact concluded Bailey had continued his association with Smith.

The first admitted contact was a "business" lunch, at which Bailey met with a Mr. Gardella (the owner of a mortgage company) and Smith (a loan officer with the company) to discuss a loan for Bailey's parents, and also to discuss a possible loan for Bailey to purchase a home. The meeting was of an unusual nature in that it was held to discuss a loan for persons not even present (i.e., Bailey's parents); it was attended by the owner of the mortgage company, whose personal presence seems superfluous to a routine loan transaction unless it was to permit Smith to "lobby" on behalf of his friend, Bailey; and it was a luncheon meeting, an informal setting more conducive to such "lobbying" activity than to a routine examination of the financial data on which normal lending decisions turn. A trier of fact could well infer such a meeting exemplified Bailey's ongoing relationship with Smith and Bailey's attempt to capitalize upon it.

The only other contact to which Bailey admitted was a series of phone calls sometime in late May. Smith's wife had been arrested by an Officer Silva of the National City Police Department, and Smith called upon Bailey to act as liaison between Smith and Silva. Smith called Bailey at home late one night, explaining his wife had been cited and released. He asked Bailey to contact Silva and give Silva the phone number of the Smiths, who wished to talk to Silva. Bailey took steps to help his friend by immediately contacting Silva in the field (via a message relayed through the police dispatcher), and telling Silva that Smith wanted Silva to call him. When Silva told Bailey he could not call Smith because he had no money for the pay phone, Bailey immediately arranged for Smith to call Silva at the phone booth. As a result of those contacts, Silva met with Smith and gave Smith a copy of a police report of the incident, an action for which Silva later was reprimanded. The trier of fact could infer Smith had used Bailey as a liaison, rather than contacting Silva directly, because Smith could rely on Bailey for help, based on their ongoing personal relationship.

In addition to the specifically provable contacts, the general tenor of Bailey's comments fortified the conclusion that he had not severed his relationship with Smith. During the administrative investigation Bailey was interviewed by Captain Short on July 1, 1988. Bailey told Short, in essence, he still considered Smith to be his friend; it was his opinion Smith was not a felon; he and Smith had had several contacts; and he had continued his relationship with Smith. Short testified that Bailey's characterization of his relationship with Smith as continued friendship, his actual contacts with Smith and his wife, and Bailey's opinion that Smith was not a felon despite Darton's information, reflected Bailey's intention of relying on his own information and judgment as to whether or not he would terminate his association. Indeed, even at the Civil Service hearings three months later Bailey considered Smith to be The tenor of these statements, both to Captain Short and at the...