Townsel v. San Diego Metropolitan Transit Development Bd.

• Decision Date: 27 July 1998
• Docket Number: No. D026485,D026485
• Citation: 65 Cal.App.4th 940,77 Cal.Rptr.2d 231
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 5826, 98 Daily Journal D.A.R. 8067 Rodric TOWNSEL, Plaintiff and Appellant, v. SAN DIEGO METROPOLITAN TRANSIT DEVELOPMENT BOARD, Defendant and Respondent.

Page 231

77 Cal.Rptr.2d 231

65 Cal.App.4th 940, 98 Cal. Daily Op. Serv. 5826,

98 Daily Journal D.A.R. 8067

Rodric TOWNSEL, Plaintiff and Appellant, v. SAN DIEGO METROPOLITAN TRANSIT DEVELOPMENT BOARD, Defendant and Respondent.

No. D026485.

Court of Appeal, Fourth District, Division 1, California.

July 27, 1998.

Review Denied Oct. 14, 1998. ^*

Bobbitt Law Offices, Everett L. Bobbitt and Bradley M. Fields, San Diego, for Plaintiff and Appellant.

Gray, Cary, Ware & Freidenrich, J. Rod Betts and Nancy Kawano, San Diego, for Defendant and Respondent.

HOWATT, Associate Justice. ^*

Plaintiff Rodric Townsel appeals the denial of his petition for a writ of mandate directing the San Diego Metropolitan Transit Development Board (MTDB) to vacate its decision to uphold the termination of his employment as a code enforcement officer. ¹ Townsel contends MTDB denied his constitutional right to due process by failing to provide him a posttermination evidentiary hearing. We agree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Townsel began working for MTDB as a code compliance inspector in 1989. It is undisputed that Townsel's employment with MTDB could be terminated only for cause.

In 1993 Townsel was suspended for three weeks and placed on probation for six months for violating a number of MTDB's rules. Townsel filed a petition for a writ of mandamus in the United States District Court for the Southern District of California in which he alleged, among other things, that MTDB improperly denied him a postdisciplinary evidentiary hearing. The federal court ruled that Townsel was not entitled to a postdisciplinary hearing and denied the petition, stating: "TOWNSEL is not entitled to the procedural requirements established for civil service employees, because TOWNSEL is not a civil service employee. By receiving [a] Skelly hearing, TOWNSEL received all he was entitled to under the law." ² (Italics added in place of underscoring in original.)

Townsel's discharge resulted from a complaint about an incident that occurred at a trolley station on March 5, 1994, while Townsel was on duty. Two female passengers claimed Townsel put his arms around them while checking their fares. When they tried to get away, Townsel allegedly grabbed one of them by the hair and then grabbed the other by the face and neck to push her away from a public telephone she was trying to use to call the police.

MTDB presented Townsel a written notice of termination informing him of the specific rules he violated in the course of the incident and provided him a pretermination Skelly hearing. Following the Skelly hearing, MTDB's general manager notified Townsel that his employment was terminated effective April 15, 1994.

Townsel was later criminally charged with two counts of misdemeanor battery but was acquitted of the charges after a jury trial. After his acquittal, Townsel requested an appeal before MTDB's Board of Directors (Board of Directors). MTDB's general manager notified Townsel that an appeal to the Board of Directors was premature and that he would reconsider Townsel's termination in light of the outcome of his criminal case. After reviewing the court file, the general manager notified Townsel of his decision to uphold the termination.

Townsel appealed the general manager's decision to the Board of Directors. The Board of Directors appointed a three-member committee to hear the appeal. At the first of two hearings before the appeal committee, Townsel denied the allegations against him and asserted he had a right to an evidentiary hearing in which MTDB had the burden of proof. The committee asked MTDB to prepare a history of other complaints and disciplinary actions taken against code compliance officers and concluded the hearing.

At the second hearing, the appeal committee rejected Townsel's request for an evidentiary hearing. The committee heard a presentation from MTDB's counsel and questioned Townsel and a management witness. After the hearing, the committee prepared written findings and recommended MTDB deny Townsel's appeal from the order of his termination. The Board of Directors ratified the committee's findings and recommendation.

Townsel filed a petition for writ of mandate in the superior court requesting the court to vacate the Board of Directors' decision to uphold his termination. The court denied the petition on the grounds Townsel was collaterally estopped from litigating the issue of his right to a posttermination evidentiary hearing and MTDB lacks the authority to conduct such a hearing. The court concluded Townsel was afforded his constitutional rights through his pretermination Skelly hearing.

DISCUSSION

This appeal presents a question of constitutional law which we review de novo, independent of the trial court's ruling. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 544, 35 Cal.Rptr.2d 574.)

I. Townsel Is Entitled to an Evidentiary Hearing

"The Fourteenth Amendment to the United States Constitution 'places procedural constraints on the actions of government that work a deprivation of interests enjoying the stature of "property" within the meaning of the Due Process Clause.' [Citations.] The California Constitution contains a similar provision. [Citations.]" (Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1112, 278 Cal.Rptr. 346, 805 P.2d 300.)

It is well settled that a public employee subject to discharge only for cause has a Townsel does not contend he was denied due process before his termination. He contends he was denied due process because MTDB refused to hold a posttermination evidentiary hearing in which it bore the burden of proving the allegations forming the basis for his termination. We conclude due process required such an evidentiary hearing at some point in the termination process. Because Townsel was not afforded one before he was discharged, he was entitled to one following his discharge.

                constitutionally protected property interest in continued employment.  (Mendoza v. Regents of University of California (1978) 78 Cal.App.3d 168, 175, 144 Cal.Rptr. 117;  Williams v. County of Los Angeles (1978) 22 Cal.3d 731, 736, 150 Cal.Rptr. 475, 586 P.2d 956.)   Accordingly, Townsel had a property interest in his continued employment with MTDB which was protected by due process
                

In Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (Loudermill ), the United States Supreme Court held that prior to termination, a "tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. [Citations.]" However, Loudermill added that its holding rested in part on the provisions of Ohio state law that afforded the public employees in that case a full posttermination hearing. (Ibid.)

Before Loudermill, the United States Supreme Court in Arnett v. Kennedy (1974) 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 considered what pretermination process is due a nonprobationary public employee. A plurality of three justices plus two concurring justices and one concurring and dissenting justice approved of a statutory scheme that provided a federal employee advance notice of his termination and the charges on which it was based, an opportunity to respond to the charges before termination, and a full evidentiary hearing after termination. (Id. at pp. 150-151, 153-154, 94 S.Ct. 1633 (plur. opn. of Renquist, J.); id. at pp. 170-171, 94 S.Ct. 1633 (conc. opn. of Powell, J.); id. at pp. 195-196, 94 S.Ct. 1633 (conc. & dis. opn. of White, J.).)

From the various opinions in Arnett, the Court of Appeal in Kristal v. State Personnel Bd. (1975) 50 Cal.App.3d 230, 123 Cal.Rptr. 512 distilled the following rule: "[P]rocedural due process requires that where a tenured governmental employee is to be discharged: (1) he be given notice of the charges against him or other cause for his discharge and an opportunity to respond to the official who is to make the decision to terminate, and (2) he be given a post-termination evidentiary hearing within a reasonable time after his discharge with a right to reinstatement with back pay if his discharge is found to have been without good cause." (Id. at p. 240, 123 Cal.Rptr. 512, disapproved on another point in Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 405, 134 Cal.Rptr. 206, 556 P.2d 306.) There is ample support for this rule in both California and federal case law.

In Coleman v. Department of Personnel Administration, supra, 52 Cal.3d at pages 1122-1123, 278 Cal.Rptr. 346, 805 P.2d 300, the California Supreme Court held that a permanent or tenured civil service employee does not have a due process right to a posttermination evidentiary hearing when his or her employer exercises its statutory authority to treat an unexcused absence from the job for five consecutive work days as an automatic resignation. In a concurring and dissenting opinion, Justice Broussard stated: "As the Loudermill court recognized, when an employee is afforded only the minimal pretermination protections of notice and an informal opportunity to respond, the pretermination procedure cannot be treated as reliably or 'definitively resolv [ing] the propriety of the discharge ... [but rather operates simply as] an initial check against mistaken decisions--essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.' [Citation.] A posttermination hearing is required by due process to assure that there is a definitive resolution of the propriety of the discharge, in a setting in which the dismissing supervisor must bear the burden of proving to a neutral decision maker that the The Coleman majority apparently agreed with Justice Broussard that a permanent or tenured governmental employee who is discharged for cause has a...