Joseph v. City of Atwater

• Decision Date: 09 February 2022
• Docket Number: F080711
• Citation: 74 Cal.App.5th 974,290 Cal.Rptr.3d 141
• Parties: Samuel JOSEPH, Plaintiff and Appellant, v. CITY OF ATWATER, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

74 Cal.App.5th 974

290 Cal.Rptr.3d 141

Samuel JOSEPH, Plaintiff and Appellant,

v.CITY OF ATWATER, Defendant and Respondent.

F080711

Court of Appeal, Fifth District, California.

Filed February 9, 2022

Rains Lucia Stern St. Phalle & Silver, Michael L. Rains, Pleasant Hill, and Johnathan R. Murphy for Plaintiff and Appellant.

Churchwell White, Douglas L. White and Erin M. Dervin for Defendant and Respondent.

FRANSON, ACTING P. J.

Plaintiff Samuel Joseph filed a petition for writ of mandate after defendant City of Atwater (City) terminated his employment as chief of police. Plaintiff alleged City violated the Public Safety Officers Procedural Bill of Rights Act (POBRA; Gov. Code, § 3300 et seq. ).¹ Section 3304, subdivision (c) provides that no chief of police may be removed from office without being provided written notice of the reasons "and an opportunity for administrative appeal." Plaintiff alleges City failed to provide him with the type of hearing necessary to afford him "an opportunity for administrative appeal" because the hearing offered by City (1) was not mutually scheduled, (2) was not before a mutually selected neutral hearing officer, (3) did not require City to bear the burden of proof as to just cause for his termination, and (4) did not require City to present witnesses and allow them to be cross-examined.

The trial court denied plaintiff's petition for writ of mandate, concluding plaintiff was an at-will employee pursuant to the terms of his employment contract and the hearing offered by City satisfied the statutory requirement of providing "an opportunity for administrative appeal." (§ 3304, subd. (c).) Plaintiff contends the trial court erred in characterizing him as an at-will employee for all purposes and then determining the hearing offered by City was adequate for such an employee.

Plaintiff's employment agreement stated he could be removed as police chief for any reason and, if the removal was not for willful misconduct, he had the option of continuing his employment by returning to the position of police lieutenant. Based on our de novo interpretation of the employment agreement, we conclude plaintiff (1) was an at-will employee only in the capacity of police chief and (2) had rights to employment as a lieutenant that could be terminated only for cause. Thus, plaintiff's employment as a lieutenant was not at-will. Consequently, before City could terminate his right to employment as a lieutenant, it was required by POBRA to provide him with the type of administrative appeal afforded public safety officers who are terminable only for cause. City did not offer plaintiff that type of administrative appeal, which includes a full evidentiary hearing before a neutral fact finder. Thus, a writ of mandate should have been issued directing City to offer plaintiff such a hearing.

We therefore reverse the judgment.

FACTS

On November 17, 2016, plaintiff and City entered into a "CHIEF OF POLICE EMPLOYMENT AGREEMENT" specifying the terms, benefits, and requirements regarding City's employment of plaintiff as its chief of police. It was signed by plaintiff and Frank Pietro, city manager, and attested to by the city clerk. Section 2.2 addressed City's removal of plaintiff from his employment as chief of police by stating:

"Joseph shall be designated an ‘at-will’ employee. Accordingly, the City Manager may terminate this [Chief of Police] Employment Agreement and remove Joseph from the position of Police Chief at any time, for any reason, with or without cause. If the City Manager removes Joseph from the position of Police Chief for any reason other than willful misconduct in office or conviction of a crime of moral turpitude, Joseph shall be given the option to either:

"2.2.1 Return to his previous position of Police Lieutenant, where his compensation will be based on Step 6 of Range 315 of the Salary Schedule for Police Lieutenant; or

"2.2.2 Terminate his employment with the City and receive four (4) months wage continuation pay, with such pay to be computed at the highest base salary received by Joseph during his service with the City. This Section 2.2.2 shall not apply in the event of a ‘Resignation’ as defined [in] Section 2.1."

On September 28, 2018, Lori Waterman, in her capacity as city manager, sent plaintiff and his attorney a notice of intended discipline along with a final copy of the investigation report and supporting exhibits relating to the allegations against plaintiff. The notice informed plaintiff of the city manager's "intention to terminate [plaintiff's] employment as Police Chief with the City for willful and other misconduct." The notice listed violations of five policies and three Penal Code sections, described four types of willful misconduct, and set forth four other mismanagement issues.

The notice of intended discipline described plaintiff's right to appeal the termination decision. It stated that, in accordance with section 3304, subdivision (c), plaintiff was "entitled to present any testimony or documentary evidence [he] believe[d] should be considered regarding [his] termination ... to a neutral arbitrator at the City's expense." Plaintiff also was informed that (1) he could submit testimony in person or in writing; (2) he could bring representation to the hearing; (3) the hearing would not be "a full evidentiary hearing in that you are not entitled to cross-examine witnesses and the City is not obligated to call any witnesses or present any evidence beyond this Notice and its attachments;" (4) the hearing officer would make a recommendation on the proposed termination to the city manager; and (5) the city manager would make the final, binding decision.

The notice of intended discipline stated that if plaintiff wished to appeal the proposed termination, he should inform the city manager by October 10, 2018; the hearing would occur no later than 60 days after his request, unless the parties agreed to a continuance; the neutral hearing officer would be chosen and paid by City; and plaintiff would remain on the payroll until the city manager made a final decision.

On October 4, 2018, plaintiff's attorney sent City a letter stating plaintiff was appealing the proposed termination and was objecting to the appeal procedure offered by City. The letter asserted plaintiff was "entitled to a hearing before a ‘truly neutral arbitrator’ (not one selected by the City at the City's expense), at which the City will be required to bear the burden of proving the charges, be required to call witnesses in support of the charges, and [plaintiff] will be afforded the opportunity to cross-examine those witnesses, and present witnesses to testify on his behalf."

On October 15, 2018, City sent plaintiff's attorney a letter stating a retired justice of the Court of Appeal had been chosen as the hearing officer and proposing dates for the hearing. The letter requested a response identifying hearing dates acceptable to plaintiff.

Plaintiff did not respond to the request for acceptable dates before the deadline set in the letter. A few days after the deadline, City sent plaintiff's attorney a letter noting the lack of a response and stating hearing dates of December 5, 6, and 7, 2018, had been chosen based on the hearing officer's availability.

Plaintiff's attorney responded with a letter setting forth objections to City's conduct and the proposed procedures for the hearing. The letter concluded by stating:

"In the event the City does not wish to hold a hearing in accordance with the process required by existing case and statutory law, or insists on having the hearing conducted by the hearing officer it has unilaterally selected and paid for, we will proceed to Superior Court to challenge the City's proposed hearing procedure and the selection of its hearing officer, and will seek both fees and costs for having to do so."

In November 2018, the parties exchanged further correspondence. Ultimately, they were unable to agree on the type of hearing required by section 3304. Plaintiff refused to participate in a hearing that did not comply with his interpretation of POBRA and, as a result, no hearing was held. On November 15, 2018, the city manager issued a "Final Notice of Termination" stating plaintiff's employment was being terminated, effective immediately, for willful and other misconduct.

PROCEEDINGS

In December 2018, plaintiff filed a verified petition for writ of mandate against City. In January 2019, plaintiff filed a first amended verified petition for writ of mandate. City filed a verified answer, dated February 13, 2019, setting forth its disagreement with plaintiff's interpretation of section 3304's requirement that plaintiff be given an opportunity for an administrative appeal.

In December 2019, after the parties had briefed the merits of the petition, the trial court held a hearing and took the matter under submission. Two days later, the court filed its written order denying plaintiff's petition for writ of mandate and entered judgment in favor of City. Plaintiff appealed.

DISCUSSION

I. TERMS OF EMPLOYMENT

An important issue in this appeal is how to characterize plaintiff's employment with City. City and the trial court characterized him as an at-will employee. Plaintiff contends (1) he had the contractual right to be returned to the position of lieutenant if his termination as police chief was without cause; (2) City's decision to terminate his employment for willful misconduct deprived him of his right to employment as a lieutenant; and (3) the termination for cause created a situation where he was entitled to the same procedural rights as other public safety officers terminated or disciplined for cause, regardless of the existence or nonexistence of a property interest in that employment.

A. Legal Principles

Labor Code section 2922 sets forth the general presumption that "[a]n employment, having no specified term, may be terminated at the will of either party on notice to the other." This presumption of...