Linney v. Turpen

• Citation: 42 Cal.App.4th 763,49 Cal.Rptr.2d 813
• Decision Date: 07 February 1996
• Docket Number: No. A066290,A066290
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 917, 96 Daily Journal D.A.R. 1403 Frank T. LINNEY, Plaintiff and Appellant, v. Louis A. TURPEN, et al., Defendants and Respondents.

Page 813

49 Cal.Rptr.2d 813

42 Cal.App.4th 763, 96 Cal. Daily Op. Serv. 917,

96 Daily Journal D.A.R. 1403

Frank T. LINNEY, Plaintiff and Appellant, v. Louis A. TURPEN, et al., Defendants and Respondents.

No. A066290.

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

Feb. 7, 1996.

Certified for Partial Publication ^*

Review Denied May 1, 1996.

David P. Clisham, Daniel S. Connolly, Clisham & Sortor, San Francisco, for Appellant Frank T. Linney.

Louise H. Renne, City Attorney, Mara E. Rosales, Airports General Counsel, Diane L. Hermann, Deputy City Attorney, San Francisco, Jacquelyn J. Garman, Hanson, Bridgett, Marcus, Vlahos & Rudy, San Francisco, for Respondents Louis A. Turpen, et al.

HAERLE, Associate Justice.

I. INTRODUCTION

Appellant Frank T. Linney, a San Francisco Airport police officer, was suspended for six months because he lied to a superior officer during a 1989 investigation concerning a lost bracelet. Appellant filed a petition in the superior court for writ of mandate to compel his employer (employer or respondents) ¹ to set aside the discipline. Judgment was for respondents, including costs. Appellant contends that (a) the manner in which the hearing officer was selected deprived him of due process, (b) the hearing officer committed prejudicial error in exclusion of evidence, (c) the discipline imposed was excessive and constituted an abuse of discretion, (d) and the trial court erred in awarding costs to respondents. We affirm.

II. PROCEDURAL AND FACTUAL BACKGROUND

Appellant began working for the City and County of San Francisco (City) as an airport vehicular traffic control officer in early 1981, and became permanent in late 1982. The facts which gave rise to the disciplinary action, as found by the hearing officer, are not in dispute. On Friday April 28, 1989, a United Airlines baggage mechanic, Brian Underhill, found a valuable bracelet, reportedly worth about $14,000, in the public roadway in front of one of the airport terminals. Underhill brought the bracelet to the attention of Traffic Control Officer Valver and Underhill's friend at the Avis counter, Donna Branston. After some discussion of the value and appropriate handling of the bracelet, Underhill turned it over to Branston, with the understanding that she would turn it in to the airport lost and found when she returned to work on Monday, May 1.

In the late evening hours of Saturday, April 29, appellant was assigned to investigate and prepare a written report concerning the lost bracelet. Appellant spoke with Underhill on the telephone shortly after midnight on Sunday, April 30. Underhill revealed that the bracelet had been in his possession. He said he had given it to a friend and that she would turn it in on Monday.

A few minutes after appellant had the conversation with Underhill, appellant's superior officer on duty, Lt. James Lynch, asked appellant about the status of his investigation. Appellant reported to Lynch that the bracelet was secure in Underhill's tool box at the airport. Underhill testified he did not have a tool box and had not said anything about a tool box to appellant. It was this statement made by appellant to his superior officer which the employer believed constituted a lie warranting appellant's termination.

On Monday, May 1, Branston turned the bracelet in to the airport lost and found, but a review of the handling of the incident continued. Appellant's written report stated nothing about the bracelet's whereabouts. Sgt. Reilly prepared a crime report (Theft of Found Property), again with no mention of the whereabouts of the bracelet. Lt. Lynch reported that appellant had given him inconsistent information and had told him the tool box story. Lynch's report described a meeting with appellant in which appellant spontaneously stated, "I fucked up, I should have told you everything."

On August 10, 1989, Deputy Chief of Police James C. Gibbs gave appellant notice of his intention to recommend dismissal for cause. On September 19, 1989, respondent Turpen, director of airports, notified appellant that he was recommending dismissal for cause, based on his review of the transcript of a show cause hearing held on August 30. The dismissal charges were brought on the ground that appellant lied to his superior officer in the course of carrying out his duties, thereby violating the following rules of conduct set forth in the Airport Police Manual, and Chief's Order No. 85-11:

AIRPORT POLICE MANUAL SECTION 7150.41/PERSONAL INTEGRITY.

"Consistent with the 'Law Enforcement Code of Ethics' is the commitment to honesty and integrity. Airport Police Members shall remain above reproach and shall avoid any conduct which might compromise the integrity of themselves or fellow Members. The dishonesty of a single Member is enough that it may impair public confidence and cast suspicion upon, not only the Airport Police but, the entire law enforcement profession."

SECTION 7310.20/TRUTHFULNESS.

"Members are required to be truthful at all times, whether or not under oath."

SECTION 7380.47/ASSISTING SUSPECTS AND CRIMINALS.

"Members shall not communicate in any manner, directly or indirectly, any information which might assist persons guilty of criminal or quasi-criminal acts to escape arrest or punishment, or which may enable them to dispose of any evidence or unlawful activity or money, merchandise, or property unlawfully obtained."

CHIEF'S ORDER # 85-11/PROFESSIONAL INTEGRITY.

"As a professional Police Department the integrity of our members must be considered impeccable if we are to effectively realize our responsibility. Recent court decisions have consistently held Peace Officers to a higher standard of conduct and personal rectitude. Any compromise of any Officer's honesty or truthfulness renders that Officer useless to law enforcement as the Officer's credibility will most certainly be challenged. [p] Honesty and truthfulness shall be strictly adhered to. Termination will be the first consideration in the disciplinary process of any compromise of honesty or truthfulness. First offense will not be accepted as an alibi to attenuate termination."

The charge of violation of these rules entitled appellant to a dismissal hearing under San Francisco Charter section 8.341. ² That section requires that the hearing "be conducted forthwith by a qualified and unbiased hearing officer employed under contract by the city and county and selected by procedures set forth in the rules of the civil service commission." (S.F. Charter, § 8.341, 1st unnumbered par.)

Civil Service Commission rules provide: "The hearing itself, as required by Charter, shall be conducted by a hearing officer under contract to the appointing officer chosen as follows in each case: [p] 1. From organizations such as the American Arbitration Association or the State Conciliation Service which customarily provide hearing officers, OR [p] 2. From a list of qualified hearing officers certified by the Civil Service Commission, such list to be kept current and to contain at all time at least three (3) names." (San Francisco Civil Service Commission Rules, rule 6, § 6.06, subd. (C) [Hearing Officer Sources].) ³

In his letter of September 19, 1989, respondent Turpen informed appellant that a dismissal hearing had been scheduled for October 3, 1989, before Hearing Officer Dave Wharton III. During the hearing, which was held November 2, 1989, the hearing officer denied appellant's motion to admit in evidence an affidavit of Sergeant Boyd, offered by appellant to prove that Boyd had received a two-week suspension for lying.

On November 16, 1989, the hearing officer issued his decision and order finding that appellant violated the rules and should be suspended without pay for six months. On May 2, 1994, the trial court denied appellant's petition for writ of mandate. On June 27, 1994, the court denied appellant's motion to tax costs. This timely appeal followed.

III. DISCUSSION

A. Selection of Hearing Officer

Appellant concedes that the hearing officer was selected in accordance with rule 6, set out above. He argues, however, that the method of selection, and the fact that the employer pays the hearing officer, deprived appellant of due process. We review this question of law de novo and find no merit to the contention. (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888, 264 Cal.Rptr. 139, 782 P.2d 278.)

Appellant's contention is based on the premise that respondents had an "unrestricted choice" in selecting a hearing officer. This is not true. Section 8.341 of the San Francisco City Charter provides that the hearing shall be conducted by a "qualified and unbiased hearing officer employed under contract by the city and county and selected by procedures set forth in the rules of the civil service commission." As noted above, rule 6, section 6.06, subdivision (C), instructs the employer to select a hearing officer from one of two sources: (1) organizations which customarily provide hearing officers, or (2) a Civil Service Commission list. Respondent stated without refutation at the hearing before the superior court on January 28, 1994, that hearing officer Wharton was selected from the second source, the Civil Service Commission list. Appellant assumes arguendo that this selection occurred.

The method for creating the Civil Service Commission list is set out in rule 6, section 6.06, subdivision (D): "The Civil Service Commission shall certify its list of hearing officers by the following method: [p] 1. The Commission shall cause to be published in a newspaper of general circulation an announcement of openings for hearing officers. This announcement shall run either for a period of five (5) working days or for two (2) weekends at the discretion of the Commission. [p] 2. The Commission shall include in its list only such applicants as to satisfy the following criteria: [p] a. Have at least one (1) year of experience...