Gilbert v. City of Sunnyvale

• Decision Date: 06 July 2005
• Docket Number: No. H027237.,H027237.
• Citation: 31 Cal.Rptr.3d 297,130 Cal.App.4th 1264
• Court: California Court of Appeals Court of Appeals
• Parties: Randall GILBERT, Petitioner and Appellant, v. CITY OF SUNNYVALE, et al., Respondents.

31 Cal.Rptr.3d 297

130 Cal.App.4th 1264

Randall GILBERT, Petitioner and Appellant, v. CITY OF SUNNYVALE, et al., Respondents.

No. H027237.

Court of Appeal, Sixth District.

July 6, 2005.

Craig M. Brown, Attorney for Appellant.

Joan M. Borger, City Attorney — Sunnyvale, Liebert Cassidy Whitmore and Cynthia O'Neill, San Francisco, Attorneys for Respondents.

ELIA, J.

Randall Gilbert, formerly a public safety officer with the City of Sunnyvale, was terminated from his employment for cause. He appeals from the denial of his petition for a preemptory writ of mandate.

His petition alleged denials of procedural due process and noncompliance with Government Code section 3303, subdivision (g), a provision of the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.) ("Bill of Rights Act" or "Act").¹ On appeal, appellant Gilbert asserts that his termination was based upon respondents' conclusion that he was "on the take" and the respondents' constitutional and statutory violations have prevented him "from adequately and fairly responding to those allegations and from disproving them." Additionally, appellant insists that to comport with due process, "the `legal advisor' to the Personnel Board [during the appeal process] should not be an attorney hired and paid for by the City with a past relationship with the City and with future expectation of further employment by the City."

We find no merit to his contentions and affirm.

A. Background

The appellant's alleged conduct that led to the disciplinary action against him was discovered in the context of a larger investigation into an alleged prostitution business. Captain Chuck Eaneff with the Sunnyvale Department of Public Safety, stated in his declaration: "In April 2000, the Department of Public Safety was contacted by citizen informants about illegal activity at a Korean hostess bar in Sunnyvale known as the Crystal Palace. An initial investigation was commenced. In June 2000 the Department contacted the Federal Bureau of Investigation (FBI). Shortly thereafter, the FBI opened an investigation and began covert undercover activity." Captain Eaneff indicated that the investigation involved the Department of Justice, the U.S. Attorney, the Internal Revenue Service, the Immigration and Naturalization Service and the California Alcoholic Beverage Control Commission and it extended beyond the borders of California.

Eaneff stated that, on July 22, 2002, various suspects were arrested and "[l]ocally, . . . the Assistant United State[s] Attorney issued criminal complaints against 6 defendants. . . ." In the course of the foregoing investigation, four or more public safety officers, including appellant, had been "observed in activities giving rise to concerns of improper conduct." According to Eaneff, "[o]n October 24, 2002 the Director of Public Safety/Chief initiated a Chief's Case (a type of internal affairs investigation) with regard to activities possibly in violation of local rules and regulations engaged in by the three officers who remained employed by the City of Sunnyvale."

Lieutenant Christopher Carrion stated in his declaration that he was assigned to conduct the internal affairs investigation known as Chief's Case CR-02-12351. According to the lieutenant, "[t]he investigation contained 16 allegations, 7 involving Petitioner Gilbert, 2 involving a second officer and 7 involving a third officer."

The Sunnyvale Department of Public Safety (Department or DPSS) placed appellant Gilbert on administrative leave on November 11, 2002. The Department's Director, Chief Ernie Baskin, issued a memo to all personnel, announcing that Gilbert had been placed on administrative leave "related to the Korean hostess bar investigation." On November 11, 2002, appellant received formal notice, which informed him that allegations of misconduct had been filed with the Department, directed him to contact Internal Affairs Investigation Lieutenant Carrion to arrange an interview, and advised him that failure to comply would result in discipline. Lieutenant Carrion personally presented the notice to appellant. On November 14, 2002, Lieutenant Carrion interrogated appellant.

On January 17, 2003, Lieutenant Carrion submitted an investigation report, the Chief's Case CR 02-12351 (hereinafter "Chief's Case"), to Chief Baskin. On February 6, 2003, appellant received a Notice of Intended Discipline, which advised him that Baskin intended to recommend to the City Manager that appellant be terminated effective February 28, 2003. At or about that time, appellant also received the Chief's Case.

The notice set forth the grounds for dismissal and the supporting facts. The focus of the disciplinary action was appellant's conduct on March 10 and 11, 2002 in accessing DMV computer files, obtaining confidential information, and releasing confidential DMV information over the phone to an unidentified female without a legitimate law enforcement purpose. The notice also indicated that on October 6, 2000, appellant, while on duty, had accepted a meal without charge from Crystal Palace owner Roger Li.

The notice indicated that the disciplinary action was based upon "the information contained herein and in the documents provided in Chief's Case CR02-12351." It informed appellant that copies of taped witness interviews and any photographs taken during the course of the investigation pertaining to the disciplinary action would be made available to him upon request. The notice explained the upcoming opportunity to respond and the written appeal process.

The Chief's Case stated that the "source documents" supporting many of the allegations remain with the Federal Bureau of Investigation (FBI) and that the federal case "remains open and active." It further provided: "When the Federal case dictates, source documents will be released to the Sunnyvale Department of Public Safety." It indicated that the information contained in the report came from a number of individuals within the City and the Department of Justice Records Bureau and "[m]uch of the information was communicated" to a named detective by FBI investigators.

The Chief's Case provided background information describing the appellant's activities predating the alleged misconduct, which it concluded shows that "PSO Gilbert assisted the owners and operators of the Crystal Palace in the prostitution business." Those activities identified in the Chief's Case included appellant visiting the Crystal Palace numerous times and driving Asian females in his personal vehicle to residences of prostitutes, and telephoning massage businesses and businesses associated with prostitution, residences of prostitutes, and the female proprietor of the Crystal Palace.

The Chief's Case indicated the FBI had advised that, on March 7, 2002, FBI surveillance vehicles followed the Crystal Palace proprietors' vehicle during a trip to the airport to pick up a prostitute but apparently were spotted. The male proprietor of the Crystal Palace was seen writing down license plates.

The Chief's Case sustained six allegations of misconduct by appellant. Four of the allegations involved appellant accessing DMV files utilizing a Sunnyvale Department of Public Safety computer terminal while on duty and without legitimate law enforcement purpose on March 10, 2002 or March 11, 2002. According to the investigation report, evidence showed that appellant was on duty as desk officer during the relevant times on March 10 and 11, 2002, official inquiries were made as to two license plate numbers from a terminal assigned to the Department, the operator identification number used in each instance belonged to appellant, one of the license plate numbers belonged to a FBI agent's vehicle, and the other license plate number was one digit off from one of the FBI surveillance vehicles. A fifth allegation involved appellant verbally releasing confidential DMV information over the phone, while on duty and without legitimate law enforcement purpose, to an unidentified female on March 10, 2002. The Chief's Report stated that "PSO Gilbert received favors from the house of prostitution and in exchange unlawfully accessed state and federal computer systems, running two undercover F.B.I. license plates involved in the covert surveillance of the pickup of a prostitute at the San Jose airport."

A sixth sustained allegation stated that appellant had accepted and consumed a meal, which Crystal Palace owner Roger Li provided without charge, while appellant was on duty and in full police uniform on October 6, 2000. The Chief's Case did not sustain an allegation that appellant failed to report violations of State and Federal Laws, City Ordinances and Departmental Orders by other DPS employees. The remaining nine allegations involved other officers.

In response to his request, appellant received 10 audiotapes consisting of interviews with him, Captain Eaneff, PSO Lecy, and Lt. Verbrugge, and the March 10, 2002 and March 11, 2002 telephone calls. A pretermination hearing was held on February 20, 2003, and the City Manager terminated appellant effective February 28, 2003. Appellant appealed the decision to the City's Personnel Board.

On June 23, 2003, in response to a June 9, 2003 letter from appellant's attorney complaining that appellant had not received all the relevant investigatory materials, the City Attorney sent a letter to appellant's attorney identifying additional materials being provided to appellant's attorney. Additional materials were provided, including, inter alia, several crime reports, interview statements, a Department of Justice letter regarding possible CLETS misuse, and a redacted FBI undercover report.² The City Attorney's letter explained: "References in Chief's Case CR# 02-12351 to actions taken by the FBI in the course of the FBI's investigation are not materials the Department of Public Safety has or has access to, and most information `communicated to Det....