Binkley v. City of Long Beach, B

• Decision Date: 08 July 1993
• Docket Number: No. B,B
• Citation: 16 Cal.App.4th 1795,20 Cal.Rptr.2d 903
• Court: California Court of Appeals Court of Appeals
• Parties: Lawrence L. BINKLEY, Petitioner and Respondent, v. CITY OF LONG BEACH et al., Respondents and Appellants. 069234.

Page 903

20 Cal.Rptr.2d 903

16 Cal.App.4th 1795

Lawrence L. BINKLEY, Petitioner and Respondent, v. CITY OF LONG BEACH et al., Respondents and Appellants.

No. B 069234.

Court of Appeal, Second District, Division 2, California.

July 8, 1993.

Review Denied Oct. 21, 1993.

John R. Calhoun, City Atty., and Robert E. Shannon, Asst. City Atty., for respondents and appellants.

Franscell, Strickland, Roberts & Lawrence, Carol D. Janssen and Rodell R. Fick, Pasadena, for petitioner and respondent.

FUKUTO, Associate Justice.

Appellants, the City of Long Beach (hereafter the "City"), and James C. Hankla, City Manager of the City of Long Beach (hereafter "Hankla"), appeal from the judgment of the superior court granting a peremptory writ of mandamus in favor of respondent, Lawrence L. Binkley, the embattled Chief of Police for the City of Long Beach. The writ set aside appellants' directive of March 2, 1992, confirming an earlier decision by Hankla to remove Binkley from the position of chief of police effective February 14, 1992, and ordered appellants to grant respondent a new administrative appeal hearing in compliance with the Public Safety Officers Procedural Bill of Rights Act (hereafter the "Act"). (Gov. Code, § 3300 et seq.) ¹ The writ further prohibited Hankla from exercising any review authority over the administrative appeal hearing officer's decision or findings of fact. Appellants contend that the administrative appeal process afforded to respondent, an at will employee serving at the pleasure of the city manager, fully complied with the requirements of the Act. We agree and reverse the judgment.

The Facts

The City of Long Beach is a charter city, governed by the "home rule" provisions of article XI, section 5 of the California Constitution. ² Under the City's charter, the city manager is charged with the responsibility for the administration of most of the City's departments, including the police department. (Long Beach City Charter, art. III, § 300.) ³ The city manager's powers and duties include the appointment, suspension and removal of all City employees in the unclassified service. (Long Beach City Charter, art. III, § 301.) Department heads, including the chief of police, are members of the unclassified service and serve at the pleasure of the city manager. (Long Beach City Charter, art. XI, § 1102, subd. (a)(5).)

In March 1987, respondent was hired as the Chief of Police for the City of Long Beach. He was given the task of reforming and restoring public confidence in the City's police department, which had acquired a reputation for providing inadequate training, and exercising insufficient control and discipline over its officers.

In early October 1991, during two city council meetings at which law enforcement-related actions were taken, Long Beach City Attorney John Calhoun reportedly made statements to Deputy Police Chief Robert M. Luman, threatening to "have [respondent's] job," in part, because respondent had not spoken with City Attorney Calhoun for more than 10 months. When respondent heard about the threat, he attempted to set up a meeting with Calhoun to discuss the matter but was allegedly informed by the assistant city attorney, Robert Shannon, that it would be "fruitless" to meet with Calhoun at that time. ⁴

On December 19, 1991, Hankla invited respondent to his office and asked him to announce his retirement, effective March 1992. Respondent was told that his departure was sought because of complaints by a number of police department commanders about the "element of fear" in respondent's operation of the department.

On December 23, 1991, Hankla personally delivered to respondent a letter stating that recent events had "caused [him] to undertake a full review of [respondent's] performance as Chief of Police." The letter advised respondent that, effective immediately, he was temporarily reassigned from his current position "to a special assignment under [Hankla's] direction at a location to be determined." The letter further stated that "Deputy Chief Ellis will serve as Acting Chief of Police" during the investigation.

On January 10, 1992, Assistant City Attorney Shannon confirmed and advised respondent's attorney of a meeting with Hankla scheduled for Monday, January 13, 1992, in the Docent's Library at Rancho Los Alamitos. The letter stated, in relevant part: "This meeting is not a Skelly hearing, nor is the Chief entitled to such a hearing. However, he will be given an opportunity to respond to the allegations set forth in the attached document. As we have previously indicated, the investigation of these allegations forms a part of the total performance review of your client. Chief Binkley will further have an opportunity to discuss the more general allegations that his management policies and practices have contributed to the destruction of morale in the Police Department in general and his Command staff in particular."

Attached to the January 10th letter was a list of specific allegations of misconduct by respondent, as follows:

(1) Initiation of sub-rosa investigations on an elected Long Beach public official without authorization or notification to the city manager;

(2) Unauthorized hiring of and payment to retired police officers as undercover agents to investigate a Long Beach public official;

(3) Encouragement of command officers to file stress-related pension claims;

(4) Accusing the city manager of wrongful action in a personnel matter, i.e., that he reduced the proposed discipline of Officer J. Ponce because of a personal/business relationship, and making disparaging statements regarding the city manager's continued employment of Officer Ponce;

(5) Directing subordinates not to communicate with the director of human resources in a matter in which such communication was necessary to ensure adherence to City policy;

(6) Directing subordinates not to seek the advice of the city attorney, or to ignore advice after it was given, regarding matters in which adherence to the legal advice of that office was necessary and appropriate (7) Unauthorized use of a police helicopter to transport respondent to a social function while he was off duty.

On January 13, 1992, respondent and his attorney met with Hankla, Assistant City Attorney Shannon, and an investigator. Respondent was questioned and gave statements in response to the list of allegations of misconduct.

On January 17, 1992, respondent was informed in writing that following a full review of respondent's performance as chief of police, Hankla was "satisfied that there is not sufficient evidence to conclude that you have engaged in any act of wrongdoing." The letter further stated: "However, I have, in the course of this review, discovered instances in which you have exercised questionable judgment. Further, a substantial number of your command staff have come forward to criticize your leadership, and you have, by your actions, subjected yourself to criticism from City management. As a consequence, I have lost confidence in your ability to lead the Long Beach Police Department. I am, therefore, removing you from the position of Chief of Police."

The letter advised that, because of respondent's significant past accomplishments, he would be permitted to remain on special assignment until February 14, 1992, during which time he would continue to receive full pay and benefits, including use of his City vehicle.

On February 14, 1992, Hankla sent a letter acknowledging respondent's readiness to proceed with an appeal hearing. The letter identified Dr. Judson Schoendorf as the person selected by Hankla to conduct the scheduled appeal hearing, and included a summary of the six findings, and the supporting evidence upon which Hankla's decision to remove respondent was based. The list of allegations found by Hankla to be true included: (1) that respondent exhibited a pattern of leadership/management which resulted in the destruction of morale in his command staff; (2) that respondent made disparaging remarks about Hankla regarding his continued employment of Officer J. Ponce, and accused Hankla of reducing Ponce's recommended discipline because of a family business relationship; (3) that respondent initiated and sustained sub-rosa investigations of elected City officials without notification to or authorization from Hankla; (4) that respondent conducted an investigation into the activities of the assistant city manager without authorization by Hankla; (5) that respondent ordered staff not to communicate with the director of human resources regarding matters in which communication was necessary to ensure adherence to City policy; and (6) that, without authorization or notification to Hankla, respondent ordered a police helicopter to transport him to and from a social function while he was off duty.

The letter advised respondent that, at the administrative appeal hearing, he would "be given an opportunity to establish a formal record of the evidence which would either tend to show that the allegations are false or that mitigating circumstances should be taken into consideration." Thereafter, the letter advised, Dr. Schoendorf would direct a report to Hankla advising him of his factual findings. However, Hankla was to retain "the final decision making authority pursuant to [his] responsibilities under the Charter."

Respondent's administrative appeal hearing was heard by Dr. Schoendorf on February 27, 1992. Only respondent testified at the hearing.

Respondent objected to the limited scope of the hearing, and Hankla's retention of final decision making authority, as outlined in Hankla's letter of February 14, 1992. He demanded, but was refused the opportunity to cross-examine the individuals whose statements formed the evidentiary basis for Hankla's findings of misconduct. Respondent further objected that he was being punished for appealing his discharge as evidenced by the fact that Hankla found insufficient...