Richardson v. Board of Supervisors

• Court: California Court of Appeals
• Writing for the Court: GEO A. BROWN
• Citation: Richardson v. Board of Supervisors, 250 Cal.Rptr. 1, 203 Cal.App.3d 486 (Cal. App. 1988)
• Decision Date: 01 August 1988
• Docket Number: No. F009365,F009365
• Parties: Lewis RICHARDSON et al., Plaintiffs and Respondents, v. BOARD OF SUPERVISORS OF MERCED COUNTY et al., Defendants and Appellants, COUNTY OF MERCED et al., Real Parties in Interest and Appellants.

Page 1

250 Cal.Rptr. 1

203 Cal.App.3d 486

Lewis RICHARDSON et al., Plaintiffs and Respondents, v. BOARD OF SUPERVISORS OF MERCED COUNTY et al., Defendants and Appellants COUNTY OF MERCED et al., Real Parties in Interest and Appellants.

No. F009365.

Court of Appeal, Fifth District, California.

Aug. 1, 1988.

Dennis L. Myers, County Counsel, and Richard C. Burton, Deputy County Counsel, Merced, for defendants, real parties in interest and appellants.

Bennett, Sharpe & DuPuis and Barry J. Bennett, Fresno, for plaintiffs and respondents.

OPINION

GEO A. BROWN, Presiding Justice. ^*

In December 1986, respondent, Lewis Richardson, was discharged from his employment as a deputy sheriff for Merced County on the grounds of insubordination, being absent without leave, and being discourteous to fellow employees. On Richardson's appeal, the Board of Appeals, by a three to two vote, reduced the penalty to a two-month suspension. ¹ Both parties appealed and the Board of Supervisors reinstated the penalty of termination.

Richardson filed a petition for a writ of mandate in the superior court seeking reinstatement to his former position. The court issued a judgment ordering the issuance of a peremptory writ of mandate directing the reinstatement of Richardson and the imposition of a penalty which is fair, just and reasonable and less than termination. Costs and attorney's fees were awarded to Richardson. The county appealed.

FACTS

Prior to the incident in issue, Richardson had been a deputy sheriff for six and one-half years without any formal discipline and had received several commendations. On December 13, 1983 about 2:30 p.m., he was on patrol and stopped at a local market to buy cigarettes. On entering the market, Richardson heard someone shout a message to persons in the rear of the store. Richardson saw someone run out through the rear door of the market, saw other persons milling about, and thought he heard poker chips being gathered up. He investigated and discovered several open beer bottles. Richardson asked to see the owner's license. The license did not permit the on-premises consumption of alcohol. The owner, Mr. Zigarelli, responded that he was friends with Sheriff Amis and that Amis had been there drinking with them in the past. He also said that he supported and gave money to the sheriff's department. Because Richardson was uncertain of the exact violation, he called his supervisor (Edmondson) who agreed to meet him at a nearby park. At the meeting, Richardson told Edmondson what had transpired at the market including the owner's statement about the sheriff. According to Richardson, Edmondson advised him to find the most appropriate section and cite and release. Richardson then returned to the market and issued the citation. Several customers were present, and they and the owner made comments about being friends with the sheriff and indicated that the sheriff had been there drinking with them in the past.

Shortly after Richardson left the market, Zigarelli called Sheriff Amis and several of the customers visited the sheriff at his parent's house complaining about Richardson's conduct in issuing the citation. Sheriff Amis contacted Edmondson indicating he was "not too happy with that kind of work, Jim. That's uh, uh, like, hell, those guys have been doing, you know, it's the same five or six guys that have been sitting back there playing dominoes, and, uh, having beer for years." Sheriff Amis further stated: "I've known, you know, hell, I've been known to, you know, I know they've been doing it for 20 years. I mean, I've never seen them, what the hell, it's obvious what they're doing, you know."

Edmondson then summoned Richardson back to the sheriff's office. A heated confrontation between Richardson and Edmondson ensued. Richardson was very upset because Edmondson had told him to issue the citation and, after Edmondson received a telephone call from Sheriff Amis, Edmondson was criticizing Richardson for issuing the citation; he also felt that the sheriff was improperly interfering with his enforcement of the law stating at one point in substance, that this was the second ticket fixing incident within nine days.

Although there was some dispute about what was said, both officers agreed that: (1) Edmondson criticized Richardson's handling of the incident; (2) Richardson asked if Sheriff Amis had called to which Edmondson responded that Amis had but that the content of the conversation was none of Richardson's business; (3) Richardson became very upset, claimed to be stressed out and unable to resume his duties and stated that the sheriff was interfering with his issuance of tickets; (4) Richardson stated that the sheriff had probably been drinking when he called in; (5) Edmondson refused to relieve Richardson from duty.

Richardson left Edmondson's office, went to his locker and in the process of changing his clothes, handed his badge to Edmondson. Edmondson asked if Richardson knew that handing over the badge constituted a resignation and Richardson said he did not. Richardson asked Edmondson several times to return the badge but Edmondson refused to do so unless Richardson agreed to return to work. Edmondson told Richardson not to leave the building.

Richardson followed Edmondson back to the sergeant's office and repeated his request that his badge be returned; Edmondson refused to return the badge stating that Richardson would have to return to duty. When Richardson repeated that he was unable to return to work, presumably because he was emotionally upset, Edmondson told Richardson that the badge could not be returned until two days later on Monday after Edmondson had spoken with "administration." Richardson then left the sheriff's department.

After leaving the sheriff's office, Richardson spoke with Dr. Lew Williams, a private therapist who performed contract psychotherapy services for the Merced Sheriff's Department. They discussed the circumstances surrounding Richardson's departure from work for about 45 minutes. Richardson agreed to return to work and have Williams "ride along" with him in his patrol car.

Williams telephoned Edmondson and told him that Richardson would be returning to work and that they would be there in about 20 minutes. When Richardson arrived at the sheriff's department, he went into the locker room to change into his patrol uniform and was confronted by Edmondson and acting Lieutenant Carlson. Carlson and Edmondson demanded Richardson's service revolver, his county ID, and other equipment. Understanding that he had been fired, Richardson again left the building. His discharge was later confirmed by letter.

DISCUSSION

The cause was submitted to both the Board of Supervisors (Board) and to the court on the record made before the Board of Appeals and arguments of counsel without receiving any additional evidence.

In reinstating the penalty of termination, the Board found that

"the following facts as shown by the record, support the Sheriff's decision to terminate Deputy Richardson:

"1. Deputy Richardson was insubordinate to Sgt. Edmondson, a superior officer;

"2. Deputy Richardson left his duty assignment without being properly relieved of duty and against the orders of his superior officer; and

"3. Deputy Richardson made discourteous remarks about Sheriff William Amis...."

At the conclusion of the hearing, the trial court rendered the following order:

"THE COURT: The court finds that the officer was disobedient; he did not obey the order of the supervisor. He was gone from his office for a little over an hour. There was no danger to the County.

"The Court finds that the Board of Supervisors' findings are not supported by the evidence. The Petitioner's confrontation with the Sergeant was brought about by the Sheriff himself intermeddling with the lawful activities of his deputy on behalf of some citizen acquaintances. If he didn't want his deputy to police unlawful activities, which he has known for about 20 years, he should have told him so. There was no opportunity for the deputy to relate his side.

"Termination took place with conflicting acts. This incident by a deputy who has an excellent record was a single, brief resolved problem in which no significant harm to the County was shown. The penalty imposed was grossly excessive.

"The Writ of Mandate will issue directly to the Board of Supervisors to set aside its decision. The County and the Sheriff are directed to restore the Petitioner to his position of employment with back pay and all benefits except a 30-day period commencing December 16th, 1986, and to remove the record of termination from his personnel and other records.

"And the Court further found that the Respondent acted arbitrarily and the Petitioner is to recover from the Respondent attorney fees in the amount of $1500 plus costs of suit."

In its subsequent formal order the court eliminated reference to the specific penalty to be imposed and in pertinent part stated:

"1. Respondent Board of Supervisors of the County of Merced shall be directed to set aside its Decision in this matter, and to impose a penalty on Petitioner Richardson, at a level less than termination, which is fair, just and reasonable;

"2. Real Parties in Interest County of Merced and William Amis, directed to reinstate Petitioner Richardson to his former position of employment, subject to whatever fair, just and reasonable penalty is imposed by Respondent Board of Supervisors of the County of Merced on remand, to pay Petitioner Richardson all of his back pay and benefits except for the period of the suspension, if any, which Respondent Board of Supervisors adopts in conformity with Paragraph (1) above, and to correct all records of Real Party in Interest, County to delete all references to the termination of Petitioner Richardson, instead to reflect whatever fair, just, and reasonable penalty is imposed by Respondent Board of Supervisors on remand...."

On appeal...