Pinto v. City of Visalia
| Decision Date | 25 May 2006 |
| Docket Number | No. F048094.,F048094. |
| Citation | 43 Cal.Rptr.3d 613,139 Cal.App.4th 1170 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Bryan PINTO, Plaintiff and Respondent, v. CITY OF VISALIA, et al., Defendants and Appellants. |
Dooley Herr & Peltzer, Leonard C. Herr, Visalia, and Kris B. Pederson for Defendants and Appellants.
Phillip J. Cline, District Attorney (Tulare), Don Gallian and Carol B. Turner, Assistant District Attorneys, and Barbara J. Greaver, Deputy District Attorney; Kathleen Bales-Lange, County Counsel (Tulare), and Crystal E. Sullivan, Deputy County Counsel, for District Attorney's Office and County Counsel's Office as Amici Curiae on behalf of Defendants and Appellants.
Joseph M. Arnold, Freehold, NJ, for Plaintiff and Respondent.
The City of Visalia Police Department's Chief of Police, Jerry Barker, terminated police officer Bryan Pinto for (1) failing to report a sexual relationship between a minor and an adult, (2) failing to report a sexual assault between an adult and a minor, (3) lying during the course of a criminal investigation, and (4) encouraging an involved party to lie during the course of a criminal investigation. Pinto appealed to the city manager, Steven Salomon, and requested an administrative hearing pursuant to the City of Visalia's administrative hearing procedure. After an evidentiary hearing before an arbitrator, the arbitrator found the evidence sufficient to sustain the first three allegations of misconduct and that each act was sufficient to sustain Pinto's termination. The City ratified the arbitrator's decision.
Pinto filed a petition for writ of mandate, which challenged the City's findings of misconduct with respect to the first two incidents and requested the superior court to either set aside the City's decision and restore him to employment or remand the matter to the City with directions to set aside the decision to terminate him and impose a lesser penalty. The trial court granted the petition, finding the evidence insufficient to support the misconduct findings with respect to the first two allegations of failure to report sexual relationships between a minor and adult, and the City abused its discretion when it terminated Pinto for his admission of lying. The trial court remanded the matter to the City to impose a penalty less than termination. The trial court subsequently denied the City's motion to set aside and vacate its order, and awarded Pinto his attorney's fees and costs pursuant to Government Code section 800.
The City of Visalia, its city manager Steven Salomon, and its Chief of Police Jerry Barker (collectively the City) appeal from the judgment, contending the trial court erred when it: (1) found the second incident of failure to report a sexual assault between an adult and a minor was not supported by substantial evidence; (2) determined the penalty of termination was excessive and an abuse of discretion; (3) denied its motion to set aside and vacate its order; and (4) failed to make findings of fact to support the attorney's fees award. We will affirm.
In March 2001, the City of Visalia Police Department (VPD) hired Pinto as a police officer. On March 27, 2003, the VPD, through its Assistant Chief of Police Robert Williams, gave Pinto written notice that VPD intended to terminate his employment effective April 30, 2003. The notice specified four causes for the dismissal: (1) in December 2002/January 2003, he was "informed about a sexual relationship between a minor and an adult and failed to report it"; (2) in November 2002, he was "advised of a sexual assault between an adult suspect and minor victim and failed to report it"; (3) in January 2003, he "lied during the course of a criminal investigation"; and (4) in December 2002/January 2003, he "encouraged an involved party to lie during the course of the investigation." The letter listed seven policies of the Visalia Police Department Manual (VPDM) and two sections of the Visalia City Personnel Policy Guidelines which were claimed to have been violated, and notified Pinto of the opportunity to respond to the allegations. As pertinent here, one of these policies was VPDM section 330.3, which provides:
Pinto submitted a response to the notice of intent to terminate his employment, which addressed the charges and requested Williams reconsider the termination decision or consider alternate forms of discipline. VPD Chief of Police Jerry L. Barker reviewed Williams's recommendation of termination, Pinto's response, and the documents from the internal affairs investigation, and concurred termination was appropriate. On April 25, 2003, Barker sent Pinto a notice of termination of employment, which informed Pinto he was being terminated effective April 30, 2003 for the same four reasons set forth in Williams's letter.
Pinto requested an administrative hearing, which was held in January 2004. Documentary evidence was introduced consisting of the internal affairs investigation file, Pinto's employment records, and relevant sections of the VPDM, and testimony received from Pinto, VPD Detective Steven Shear, VPD Lieutenant Michelle Figueroa, Williams, and Barker.
The evidence disclosed the following facts. In September 2002, Pinto was taking a break in a gourmet coffee shop while in uniform and on-duty. A woman approached him and identified herself as the stepmother of 20-year-old Justin Helt. The woman told Pinto Helt was having problems with an ex-boyfriend and needed some advice, and asked Pinto if he could talk to Helt. Pinto gave her his business card, which had his work cell phone and office phone numbers on it. About an hour later, Helt called Pinto on his work cell phone. Helt told Pinto he had recently broken up with 16-year-old C. F., who he had been dating, that he felt C. was stalking and harassing him, and asked what he could do. Pinto told Helt he could take a police report for stalking or harassment, and told him how to get a restraining order. Helt declined to do anything, stating he would deal with it and call Pinto back if the problem continued.
Pinto's Relationships with Helt and C.
Later that afternoon, Helt called Pinto again to ask a few more questions. During this conversation, Helt and Pinto agreed to meet socially at the coffee shop when Pinto was off duty to "hang out." While at the coffee shop that night around 9:00 p.m., Pinto saw a male come up behind Helt, put his hand over Helt's eyes, and say "guess who." Helt got up from the table and went around the corner to talk to this person. When their conversation ended, C. sat down a few tables away, then left the coffee shop. Helt came back to Pinto's table and told Pinto the person was his ex-boyfriend, C. Pinto was not introduced to C. and did not speak to him.
A couple weeks later, Pinto was on the internet in a gay chat room when a person who identified himself as an 18-year-old male from Tulare started talking to him there. Later in the conversation, the person sent Pinto a picture of himself, which Pinto recognized as C. Pinto told C. he knew both his identity and that he was not 18. From their internet exchange, Pinto believed C. was upset and depressed about his relationship with Helt and life as a gay person. Pinto tried to encourage C. by telling him that although he is gay, he has a career as a police officer. Pinto agreed to pick C. up at his home in Tulare and take him to the coffee shop for coffee, believing he might be able to help mentor him, as Pinto was an explorer advisor for the VPD explorer post and, having been a gay teenager, may have shared some of C.'s experiences and feelings.
At the meeting with C., Pinto became very uncomfortable with C.'s behavior, as it became apparent to Pinto that C. was not despondent and was openly making sexual advances towards him in an attempt to make Helt jealous. C. wanted to "hook up" with Pinto, which means he wanted to have sex with him. Pinto ended the meeting and drove C. back to his home. Pinto gave C. his personal cell phone number so C. could call him if he needed advice. Over the next four to six weeks, Pinto spoke on the phone with C. several times. In those calls, C. asked Pinto about Helt, but also told Pinto about other people he was meeting over the internet. Although C. asked Pinto if he wanted to hang out again, Pinto did not meet with C. again because C. "wanted one thing that night," and Pinto was not going to subject himself to that kind of behavior again.
C. Calls Pinto for Advice
In late October or early November 2002, Pinto had a one-time sexual "encounter" with an adult man named Aaron Rodriguez. In mid to late November or early December 2002, while he was at home and off-duty, Pinto received a telephone call from C. on his personal cell phone, asking him for general advice. C. asked Pinto if he knew a guy named Aaron. Pinto said he didn't think so. C. told Pinto he had talked online to Aaron, who was about 25 years old, and they agreed to meet for sex. C. told Aaron he was 18 years old. C. said Aaron picked him up at his house and took him to Aaron's house. By the time they got there, C. decided maybe he didn't want to have sex, but he never told Aaron no. C. said Aaron "pressured him to finish" and offered him drugs. After having sex, C. went home. A couple days later, C. learned from others on the internet that Aaron was HIV positive, and told Pinto he was worried about his health. Pinto told C. that: (1) he needed to tell his mother; (2) he needed to get tested for HIV; and (3) he needed to report the incident to the Tulare Police Department, and offered to drive him...
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