Giuffre v. Sparks

• Decision Date: 16 December 1999
• Citation: 91 Cal.Rptr.2d 171,76 Cal.App.4th 1322
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 5 Dist. 1999) JOSEPH GIUFFRE, Defendant and Appellant, v. CARL SPARKS, Plaintiff and Respondent; KERN COUNTY SHERIFF'S DEPARTMENT, Real Party in Interest. F030933 Filed

91 Cal.Rptr.2d 171 (Cal.App. 5 Dist. 1999)

JOSEPH GIUFFRE, Defendant and Appellant, v. CARL SPARKS, Plaintiff and Respondent; KERN COUNTY SHERIFF'S DEPARTMENT, Real Party in Interest.

F030933

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Filed 12/16/99

APPEAL from a judgment of the Superior Court of Kern County. Robert T. Baca, Judge. (Retired judge of the superior court sitting under assignment by the Chairperson of the Judicial Council.)

(Super. Ct. No. 235887)

Robert F. Carbone for Defendant and Appellant.

B.C. Barmann, Sr., County Counsel, Margo A. Raison and John R. Irby, Deputy County Counsel, for Plaintiff, Respondent and Real Party in Interest.

CERTIFIED FOR PUBLICATION

OPINION

Buckley, J.

STATEMENT OF THE CASE AND FACTS

On February 14, 1997, during an argument with a girlfriend, Senior Sheriff's Deputy Joseph Giuffre (Giuffre) threatened suicide. When questioned by his superiors about the incident, he admitted making the statement but denied any intention of suicide. As a result of this incident, on May 20, 1997, Giuffre was suspended from the SWAT team for a six-month period. At the time the suspension was issued, Giuffre had been a member of the SWAT team for 11 years and was ranked as a senior deputy. On September 3, 1997, which was prior to the expiration of the six-month suspension, Giuffre was involved in a dispute with his ex-wife, Winnifred Doane, over child visitation issues. During a long distance telephone conversation, Giuffre threatened to kill Doane.

On February 3, 1998, the assistant sheriff issued a written reprimand to Giuffre stating that the threat to Doane constituted a "technical violation of the law" as well as a violation of the Kern County Sheriff's Departmental Policies and Procedures Manual. The written reprimand also stated that as a result of the two incidents, it was the intention of the sheriff's department to remove Giuffre from the SWAT team and issue a referral to the Employee Assistance Program. The February 3, 1998, letter also notified Giuffre that he was entitled to "appeal this action through your chain of command to the Sheriff-Coroner" in accordance with departmental policy No. D-400.

Policy No. D-400 stated that departmental employees were not entitled to appeal written reprimands and disciplinary transfers to the civil service commission. The only avenue of recourse specified was an administrative appeal through the chain of command to the sheriff-coroner. The procedure established for the administrative appeal provided that the officer could submit a written account of the events together with any pertinent documentation. The sheriff-coroner would then review the documentation, meet with the officer, and allow the officer to state his position.

Giuffre and his attorney participated in a hearing with the sheriff-coroner on February 11, 1998. Subsequently, the sheriff-coroner, Carl Sparks, issued a March 4, 1998, letter to Giuffre upholding the written reprimand and removing the deputy from the SWAT team. The March 4 letter indicated, however, that pursuant to the February 11 hearing, Giuffre was eligible to reapply for assignment to the SWAT team after January 1, 1999, if there were no further "incidents of this nature." Because SWAT team members receive an additional 5 percent "skill" pay for serving on the team, as a consequence of being removed from the team, Giuffre's pay was reduced.

On March 4, 1998, Giuffre filed a petition for writ of mandate, contending that the action taken against him constituted a punitive action within the meaning of Government Code¹ section 3303, thus entitling him to an administrative appeal pursuant to section 3304. Giuffre asserted that he had been denied his administrative appeal right, and requested that the county be directed to afford him an appeal before the civil service commission. The county opposed the petition, asserting that the meeting with the sheriff-coroner constituted the administrative appeal to which Giuffre was entitled. In support of its position, the county filed the "MEMORANDUM OF UNDERSTANDING" (MOU) entered into between the County of Kern and the association representing sheriff's deputies. The MOU provided in article II, section 3, paragraph 11:

"11. Departmental Reassignments:

"a. The Union agrees that the Department has the right to reassign personnel based on the Sheriff-Coroner's discretion.

"b. An employee departmentally reassigned by operation of Subsection (11) a. of this section has the right, under California Government Code 3300, et seq., to appeal any alleged punitive action at an administrative hearing. An administrative hearing for this purpose is a hearing held by a senior officer within the Sheriff's Department at the rank of Assistant Sheriff or above. This administrative hearing procedure is separate and apart from the grievance procedure.

"c. No such protested departmental reassignment shall take effect until such time as the employee has had his/her administrative hearing."²

A hearing on the petition for writ of mandate was held on April 15, 1998, and the matter was taken under submission.³ Code of Civil Procedure section 1094.5 sets out the procedure for obtaining judicial review of a final administrative determination by writ of mandate. Subdivision (b) of this code section provides that the "inquiry in such a case shall extend to the questions whether the [agency] proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the [agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 810.) In its April 24, 1998, denial of the petition for writ of mandate, the Kern County Superior Court found that the meeting held on February 11, 1998, with the sheriff-coroner afforded Giuffre "the appeal procedure and hearing to which he was entitled." The court issued the following ruling constituting its statement of decision on the petition for writ of mandate:

"Petitioner, a Deputy Sheriff, Kern County, California, was assigned to the SWAT Team of the Sheriff's Department and served on that assignment for a number of years.

"After investigation by the Sheriff's Department on a complaint against petitioner of threats he made against a former wife, petitioner was reprimanded and, in the reprimand letter, he was notified of an intent to transfer him out of the SWAT Team assignment. Assignment to the SWAT Team carried a five percent of salary increase to petitioner while on such assignment. Removal or transfer out of SWAT cancelled the five percent payments petitioner received while a SWAT member.

"Petitioner was afforded an administrative appeal and hearing within the scope and provisions of the Memorandum of Understanding (MOU) (an agreement negotiated between Kern County and Kern Law Enforcement Association which represents deputy sheriffs). The hearing on the administrative appeal was before Sheriff Carl Sparks.

"Petitioner claims the reassignment out of SWAT was a demotion, with loss of pay (the five percent of salary SWAT members enjoy), and that the reprimand and reassignment out of SWAT was punitive in nature, requiring that he be afforded due process of law and appeals to the Court of any such action of a demotion and loss of pay. Petitioner contends that the administrative appeal and hearing that he was afforded did not satisfy his right to due process.

"It is held that the Sheriff has the authority and discretion to assign and reassign deputies under his command to different duty categories in his department. Reassignment out of SWAT is not a demotion in rank or title of the deputy involved. It is not a reduction in pay of the deputy involved, even though it results in a loss of the 'perk,' five percent of salary that SWAT members receive. Petitioner naturally cannot expect to continue to receive such 'perk' when he is no longer a member of SWAT.

"Pursuant to the MOU, petitioner was accorded the appeal procedure and hearing to which he was entitled. He is not entitled to anything more, under the circumstances, even though he would have been entitled to a full evidentiary hearing, had he filed a 'grievance' with the Sheriff's department, which he did not do.

"The transfer out of SWAT was not a demotion or a dismissal from employment such as to require appeal rights beyond the administrative appeal which petitioner was afforded and which he used.

"It is noted that, as a result of the hearing before Sheriff Sparks, the written reprimand that petitioner received was modified to provide petitioner an opportunity for reinstatement to SWAT after January 1, 1999. The hearing that petitioner was given satisfied any due process rights that he had."

Giuffre filed his notice of appeal of the denial of the petition for writ of mandate on May 12, 1998. On July 9, 1999, this court requested supplemental briefing from the parties.

INTRODUCTION

Both Giuffre and the county concede that the action taken against Giuffre constitutes a punitive action within the meaning of section 3300. They differ, however, on whether the meeting with the sheriff-coroner in accordance with departmental policy No. D-400 and paragraph 11 of the MOU satisfies the section 3304 requirement that Giuffre be afforded an administrative hearing with respect to any punitive action taken against him. In accordance with Runyan v. Ellis (1995) 40 Cal.App.4th 961, we conclude that Giuffre was not accorded his full administrative appeal rights. Therefore, we reverse and remand for further proceedings consistent with this opinion.⁴

DISCUSSION

Section 3304, subdivision (b), specifies that no punitive action may be taken against an officer unless the officer is provided with an opportunity for an...