Schmitt v. City of Rialto

• Decision Date: 16 January 1985
• Citation: 164 Cal.App.3d 494,210 Cal.Rptr. 788
• Court: California Court of Appeals Court of Appeals
• Parties: Martin SCHMITT, Plaintiff and Respondent, v. CITY OF RIALTO, et al., Defendants and Appellants. Civ. 33128.

Page 788

210 Cal.Rptr. 788

164 Cal.App.3d 494

Martin SCHMITT, Plaintiff and Respondent, v. CITY OF RIALTO, et al., Defendants and Appellants.

Civ. 33128.

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

Jan. 16, 1985.

As Modified on Denial of Rehearing

Feb. 8, 1985.

Hearing Denied March 21, 1985.

Robert G. Koch, Jr., City Atty., Rialto, Cotkin, Collins, Kolts & Franscell, Glenda Sue Bourdon, George J. Franscell and Jeffrey M. Epstein, Los Angeles, for defendants and appellants.

Silver, Kreisler, Goldwasser & Shaeffer, Stephen H. Silver and Cynthia Saffir, Santa Monica, for plaintiff and respondent.

KAUFMAN, Associate Justice.

Plaintiff Martin Schmitt was discharged as a police officer of the City of Rialto. He sought a writ of mandate (Code Civ.Proc., § 1094.5) to have his discharge set aside. The Superior Court granted the writ, and the city ¹ appeals. We reverse.

BACKGROUND FACTS

The administrative proceedings leading up to plaintiff's discharge relate to two alleged incidents of misconduct.

The first charge against plaintiff was that he had knowledge of and was a principal in the crime of child endangerment (Pen.Code, § 273a). School officials called the San Bernardino County Sheriff's Department to investigate a possible charge of child endangerment. Detective Daily of the San Bernardino County Sheriff's Department Detective Daily interviewed plaintiff the following day. Plaintiff admitted giving his son four swats across the buttocks with a leather belt approximately one and one-half inches wide. He also admitted that he might have hit his son a fifth time.

conducted the investigation. The alleged victim was plaintiff's seven-year-old son. Detective Daily examined plaintiff's son and discovered injuries, including belt bruises and welts on various parts of the boy's body. The boy told Detective Daily that the bruises were inflicted by both his mother and his father.

Captain Hull of the San Bernardino County Sheriff's Department informed Captain Westcot of the Rialto Police Department that child endangerment charges were being contemplated against plaintiff. In fact, however, no charges of child endangerment were ever filed against plaintiff.

The second disciplinary charge lodged against plaintiff was that he had discharged his firearm in violation of police department interim general order 77-6, which prohibits removing a firearm from its holster unless there is sufficient justification and which requires an officer to notify his supervisor or the duty watch commander if the officer either accidentally or intentionally discharges his weapon while performing a law enforcement duty.

On April 13, 1981, plaintiff was scheduled to give a presentation on officers' safety and maintenance of equipment before a training session for the reserve officers of the Rialto Police Department. Immediately prior to attending the reserve meeting, plaintiff went to the department locker room and unloaded his service revolver. He placed all the live rounds therefrom into his pocket. He then proceeded to load the revolver with blank rounds which he kept in his locker. These blanks were neither issued nor authorized by the City of Rialto Police Department. They had been given to plaintiff by a person whose name he could not remember approximately two and one-half years earlier. He had not previously shot them from his service revolver and he was not certain whether or not he had previously fired them from any other gun. According to plaintiff's testimony they were similar in appearance to blanks used by the San Bernardino County Sheriff's Department.

Plaintiff proceeded to the reserve meeting and stood by while the other reserve coordinator, Officer Menezes, completed his portion of the training session. Plaintiff then began his portion of the session. After he had talked for only two or three minutes, he unholstered his service revolver, asked Officer Menezes if he had checked his bullet proof vest lately and, when Officer Menezes said he was not wearing one, plaintiff pointed his revolver at Menezes and pulled the trigger, firing one blank round. Afterwards, plaintiff laughed. Plaintiff was in uniform and on duty when the incident occurred. Plaintiff did not inform either the watch commander or his supervisor about the incident. Plaintiff's apparent purpose in firing the blank round was to emphasize the importance of using proper safety equipment.

PROCEDURAL HISTORY

Plaintiff had been suspended without pay pending investigation of the alleged child endangerment incident. While so suspended plaintiff received a notice of proposed disciplinary action from the acting chief of police, recommending plaintiff's termination from the police department. The proposed termination action was based on charges: "a. That you [plaintiff] had knowledge of and were a principal in the crime of PC 273a (1), Child Endangering. [p] b. That you discharged your firearm in violation of Police Department Interim General Order 77-6."

A hearing on the proposed disciplinary action was held in the office of the chief of police. After the hearing, the chief of police recommended that plaintiff should be terminated from his employment.

Plaintiff then sought and received a full evidentiary hearing before the Personnel Advisory Board of the City of Rialto. As Plaintiff filed a petition for writ of administrative mandate in the Superior Court of San Bernardino County. After a hearing, the trial court issued a peremptory writ of mandate remanding the matter for certain clarifications. The writ commanded: "A. The Personnel Advisory Board of the City of Rialto shall issue specific findings of fact as to (1) whether the City has met its burden of proving by a preponderance of the evidence each of the two charges of misconduct against [plaintiff], (2) whether any resulting finding that the charge had been so proved demonstrates a lack of fitness by [plaintiff] to perform his duties as a police officer, and, thus, properly forms the basis for the imposition of discipline and (3) what degree of discipline, if any, is recommended with respect to any such finding of misconduct also found to form the proper basis for the imposition of discipline.

                to the child-endangerment charge, the board found that "The police department used the child endangering as a cause for termination when the police department knew that the District Attorney had refused to file charges."   As to that charge, the board recommended that plaintiff should have been placed on leave with pay pending the outcome of the investigation into the charge of child endangerment.  As to the second charge, that plaintiff had discharged his firearm in violation of interim general order 77-6, the board found the termination to be excessive punishment, and recommended a 30-calendar day suspension without pay.  The board certified its findings and recommendations to the city council and the city administrator.  Upon review, the city council made a finding with respect to the child endangerment charge that plaintiff was placed in a diversion program in lieu of prosecution, which indicated that the district attorney had sufficient evidence to prosecute on that charge.  With respect to the second charge, relating to the discharge of plaintiff's service revolver, the city council found that plaintiff did discharge his firearm in violation of interim general order 77-6, "and in so doing caused a substantial risk of great danger to life and limb."   The city council found that both charges should be upheld, the decision of the personnel advisory board should be revoked, and the termination should be reinstated
                

"B. If the Rialto City Council thereafter reviews those specific findings of fact and recommended discipline, if any, each of its members participating in that process must read, review and fully consider the entire evidentiary record of the proceedings before the Rialto Personnel Advisory Review Board, including the transcript of the hearing conducted on July 24, 1981 and August 13, 1981 and all exhibits received in evidence at that hearing, prior to (1) rendering any finding of fact which would deviate from that issued by the Personnel Advisory Review Board or (2) imposing any discipline in excess of that recommended by the Personnel Advisory Review Board. Any independent findings of the City Council must address the same issues described above in paragraph A."

Pursuant to the writ of mandate, the board reviewed its proceedings and found that, as to the charge of child endangerment, the City of Rialto did not present sufficient evidence to support the charge. With respect to the second charge, the board found that the City of Rialto did present sufficient evidence to support the charge; that there was a sufficient connection between the offense charged and plaintiff's ability to function as a police officer to warrant the imposition of discipline; and that the appropriate discipline was a 30-day suspension without pay.

The city council, after having reviewed and considered the entire record of proceedings before the board, adopted the board's finding with respect to the charge of child endangerment, i.e., that the city did not present sufficient evidence to support the charge. With respect to the second charge, the city council found that there was sufficient evidence to support the allegations plaintiff had discharged his service revolver in violation of interim general order 77-6; that the violation of interim general order 77-6 was sufficiently related to Plaintiff thereafter filed the instant petition for a writ of administrative mandate. The court found the decision to terminate plaintiff constituted a manifest abuse of discretion and issued a peremptory writ of mandate commanding defendants to reconsider the discipline to be imposed.

the duties of a police officer to justify taking disciplinary action; and that, by unanimous vote of the members of the city council,...