Johnson v. Civil Service Board

• Decision Date: 07 July 1999
• Parties: Daryl JOHNSON, Appellant, v. CIVIL SERVICE BOARD OF THE CITY OF PORTLAND, Portland Parks and Recreation Bureau, and City of Portland, Respondents.
• Court: Oregon Court of Appeals

985 P.2d 854

161 Or. App. 489

Daryl JOHNSON, Appellant, v. CIVIL SERVICE BOARD OF THE CITY OF PORTLAND, Portland Parks and Recreation Bureau, and City of Portland, Respondents.

(9610008072; CA A98841)

Court of Appeals of Oregon.

Argued and Submitted October 15, 1998.

Decided July 7, 1999.

Susan D. Marmaduke, Portland, argued the cause for appellant. With her on the brief was James, Denecke, Urrutia & Marmaduke, P.C.

Marianna Kanwit, Deputy City Attorney, argued the cause and filed the brief for respondents.

Before De MUNIZ, Presiding Judge, and HASELTON and LINDER, Judges.

HASELTON, J.

Petitioner appeals from the circuit court's judgment in a writ of review proceeding, that affirmed the decision of the City of Portland Civil Service Board (CSB) sustaining the City's demotion of petitioner from Rose Curator to gardener. Petitioner asserts, as he did in the circuit court, that the CSB's determination was unsupported by substantial evidence, ORS 34.040(1)(c), that the CSB failed to apply applicable procedures, ORS 34.040(1)(b), and that the CSB misconstrued the applicable law, ORS 34.040(1)(d). We conclude that one of the two determinations of misconduct that underlays petitioner's demotion was not supported by substantial evidence. In particular, in the totality of the circumstances, the CSB erred in relying on unsworn hearsay evidence that was critical to that determination. Reguero v. Teacher Standards and Practices, 312 Or. 402, 822 P.2d 1171 (1991). Accordingly, we reverse and remand.

This dispute arises from the City's demotion of petitioner following the City's investigation and conclusion that petitioner had engaged in public indecency in Washington Park, his primary work site, and other subsequent conduct in violation of supervisory directives and City policy. The specific nature of the alleged misconduct is described more fully below in our discussion of petitioner's assignments of error. In general, in June 1994, petitioner had served as the Rose Curator of the International Rose Test Gardens at Washington Park, a prominent position, for 15 years. On June 27, Portland Police Officer Calder, after receiving a complaint and obtaining an eyewitness identification from a witness, issued petitioner a "Notice of Exclusion from Park or Landmark" ("park exclusion"). That notice recited that petitioner had engaged in public indecency at Washington Park and barred him from entering the park for 30 days.¹

As a result of his receipt of the park exclusion, petitioner spent a portion of the next morning, June 28, at his attorney's office, seeking legal counsel, and at the Park Commissioner's office, seeking a waiver of the exclusion so that he could return to work. Petitioner failed to promptly inform his immediate supervisor of the park exclusion or of his inability to report to work and, ultimately, on his time sheet for June 28, indicated that he had worked a full day without deducting the time spent conferring with his attorney and while at the commissioner's office.

On September 26, 1994, following an investigation, the City demoted petitioner from the position of Rose Curator to gardener. The City based its decision on its conclusion that petitioner had engaged in public indecency and that petitioner was derelict in his duties by including time spent on personal business in his time records and by failing to inform his supervisor of his inability to report to his primary work site or advise him of the park exclusion. Petitioner appealed his demotion to the CSB.

On March 26, 1996, the CSB held a contested case hearing to determine whether petitioner's demotion was for cause. The City's witnesses included Brian McNerney, petitioner's supervisor, and Officer Calder, who issued the park exclusion.² McNerney's testimony focused primarily on the City's investigation and evidence that petitioner's conduct on June 28 violated supervisory directives and City policy.

Calder testified concerning the events that led to his issuance of the park exclusion. Over petitioner's hearsay objections, Calder testified that a citizen, Andrew Farris, had identified petitioner as one of three individuals whom Farris had seen engaging in sexual conduct in the park. Calder explained how he had met Farris at the park, and that at that point, he believed that Farris had described "some clothing" worn by the men, but that he "[didn't] recall" specifically. Farris did not tell Calder the weight or height or other characteristics of the people he had observed. Calder also testified that he and Farris then walked some distance to the area where Farris said he had seen the activity. Once they reached that area of the park, Calder and Farris observed petitioner at a distance "too far to really tell who [it] was with shadows and stuff," and that Farris, pointing towards petitioner said, "I think that's one of the people involved." Calder then testified that he then went "down the hill after him," handcuffed petitioner and returned to where Farris was standing. At that point, Calder testified, Farris made his initial identification of petitioner and, later, after petitioner had been placed in the patrol car, Farris reiterated the identification. Calder did not ask Farris from what characteristics he had identified petitioner or how long he had observed the three individuals. Calder further testified about observations that he made while investigating Farris's allegations that sexual conduct had occurred and, again over petitioner's objections, described why he believed that Farris was a reliable eyewitness.

Petitioner testified on his own behalf, denying the allegations of public indecency. He testified that 20 to 30 minutes before Calder detained him, he had concluded his work at the park and had been at a nearby area in the park reading and sunbathing. He further testified that, at the time Calder detained him, he was on his way to the Uptown Shopping Center, near Washington Park, to get something to drink. Petitioner testified that he was not trying to elude Calder as he headed down the hill but, rather, that the steep terrain made it necessary to walk fast. Finally, petitioner acknowledged, with respect to his conduct the following day, that he had included in his time sheets the time spent at his attorney's office and the Commissioner's office, but that he thought that time was work-related because it enabled him to "speed up the process to get back [to] work."³

In August 1996, the CSB issued its decision, sustaining the City's demotion of petitioner. The CSB found that petitioner had, in fact, engaged in public indecency in Washington Park and concluded that that conduct and his conduct in response to the park exclusion, which constituted a "serious dereliction of duty," warranted his demotion. The CSB made the following findings of facts:

"3. On June 27, 1994, at approximately 3:50 p.m., Mr. Johnson was observed with two other men engaging in acts of public indecency in Washington Park. One of the witnesses called 911 to report the incident. That witness then left Washington Park with a young niece who had also observed the sexual activity. The other witness, Andrew Farris, remained at the park and met Officer Calder, who responded [to] the 911 call. Based on Mr. Farris' eye witness identification of Mr. Johnson as one of the men observed masturbating and engaging in other acts of public indecency in Washington Park, Officer Calder issued a Park Exclusion to Mr. Johnson. Officer Calder testified there was no doubt in Mr. Farris' mind that Johnson was one of the men he had observed in the park. Officer Calder further testified that in his opinion, Farris was a reliable witness due to several factors. Farris identified Johnson not once but on two occasions without hesitation. After Calder discovered that Mr. Johnson was a Parks Bureau employee, Calder grilled Farris and advised him it was of the upmost importance that he make an accurate identification. Farris' response, made no more than 20 minutes after he first observed Johnson, was that there was no doubt in his mind that Johnson was one of the three men he observed having sex in Washington Park. Farris' identification was also reliable in Calder's opinion as Farris knew exactly where he was going in Washington Park and pointed out the precise location where he had observed Johnson. Moreover, the area Farris described was an area Officer Calder was familiar with as a common site for sexual activity. Officer Calder has over 21 years of experience with the Portland Police Bureau and during the last five years, was assigned to the district that includes Washington Park. Calder is familiar with the area and its problems, including problems with public indecency. Although Mr. Johnson denied he was one of the three men observed having sex in the park, based on the record in this matter, it is the Board's determination that Mr. Johnson did engage in the sexual activity for which he was issued a Park Exclusion.

"4. On June 28, 1994, Mr. Johnson did not report to the Washington Park Rose Garden, which was his usual reporting site. Nor did Mr. Johnson contact his supervisor, Brian McNerney, to inform him Johnson was unable to report to the Rose Garden site. On the morning of June 28, Mr. Johnson spent some amount of time at the Ladd's Addition Rose Garden. Johnson also visited the office of his attorney * * *. Although Mr. Johnson initially testified that he visited his attorney on June 27, a review of the tape recording of the investigatory interview regarding this incident refreshed his recollection and he admitted that he had gone to his attorney's office during working hours on June 28. Mr. Johnson also visited the office of Commissioner Hales and spoke to one of Hales' assistants, Susan DesCamp, in order to get the Park Exclusion waived. Mr. Johnson admitted that he went to his attorney's office as well as the office of Commissioner Hales during his regular working hours.

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