Winchell v. County of Riverside, E045783 (Cal. App. 5/27/2009)

• Decision Date: 27 May 2009
• Docket Number: E045783.
• Parties: DUANE WINCHELL, Plaintiff and Appellant, v. COUNTY OF RIVERSIDE et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 1

DUANE WINCHELL, Plaintiff and Appellant, v. COUNTY OF RIVERSIDE et al., Defendants and Respondents.

E045783.

Court of Appeals of California, Fourth Appellate District, Division Two.

May 27, 2009.

Not to be Published

Appeal from the Superior Court of Riverside County, No. RIC454209, Douglas E. Weathers, Judge. Affirmed.

Law Offices of Dennis J. Hayes, Dennis J. Hayes and Jon D. Dwyer for Plaintiff and Appellant.

Ferguson, Praet & Sherman and Bruce D. Praet for Defendants and Respondents.

OPINION

GAUT, J.

Duane Winchell (Winchell), formerly a deputy sheriff employed by the County of Riverside (County), appeals from an order denying his petition for writ of mandate following an arbitrator's decision that upheld respondents' decision to terminate his employment.

On appeal, Winchell argues (1) he was not properly questioned during the administrative investigation and that the arbitrator improperly considered the statements he made during those interviews, (2) the arbitrator improperly considered financial records unlawfully obtained by the Riverside Police Department; (3) there is insufficient evidence of dishonesty or other misconduct to justify his termination. We affirm the judgment.

BACKGROUND

Winchell was a Riverside Sheriff's Deputy from 1988 until 2003. For several years, Winchell was involved in a romantic relationship with Ms. Keegan, but in early 2002, Ms. Keegan wanted to break it off. Winchell did not want to break it off, and was upset that Ms. Keegan was seeing another man. Winchell went to Ms. Keegan's residence on April 5, 2002, and saw a vehicle in her driveway that did not belong to Ms. Keegan. Winchell ran the license plate of the vehicle on CLETS (California Law Enforcement Telecommunications Systems) to learn the identity of the registered owner before entering Ms. Keegan's residence.

The owner of the vehicle, Mr. Dunning, was present at Ms. Keegan's residence when Winchell entered and there was an emotional confrontation between Winchell and Keegan. Ms. Keegan called 911 in an effort to get Winchell to leave. Shortly after the incident, $1,000 was transferred from Ms. Keegan's bank account without her knowledge; Keegan reported it to Lieutenant Shinn of the Riverside Sheriff's Department. Winchell then wrote a 12-page letter describing his relationship with Keegan, including Keegan's sexual proclivities, and placed the letter on Dunning's windshield. In the letter, Winchell admitted making the transfer of funds.

On June 7, 2002¹, 11 tons of gravel was dumped in Ms. Keegan's driveway and several trees were cut down from her yard without her authorization. Winchell was seen driving past Keegan's residence on June 7, 2002, when the gravel was being delivered.

The Sheriff's Department began an internal affairs investigation and concluded that Winchell was culpable of a number of different acts of misconduct, including violation of departmental rules and regulations, and several general orders. The department concluded Winchell was untruthful in a number of his answers to questions.

Winchell denied refusing to leave Keegan's residence when asked, denied transferring money from her account, denied having anything to do with dumping of 11 tons of gravel in Keegan's driveway, and denied hiring landscapers to cut down her trees. He blamed his brother for the gravel and tree cutting. He admitted using the CLETS for personal information, and writing the 12-page letter, but denied including a sentence in which he admitted making the transfer of funds from Ms. Keegan's bank account.

Winchell was dismissed from his employment for misconduct. He went to arbitration and the arbitrator concluded there was just cause for the termination. Winchell filed a petition for writ of mandate to vacate the arbitrator's award. The petition was denied. Winchell appeals.

DISCUSSION

Winchell seeks reversal of the trial court's denial of his petition for writ of mandate. Specifically, he asserts the trial court erred in finding (1) that he was properly questioned during the administrative investigation; (2) that his termination was not based on financial records unlawfully obtained by the Riverside Police Department; and (3) that there is sufficient evidence to justify the termination. In addition, Winchell claims the hearing officer/arbitrator did not correctly consider the coerced statements made by Winchell during the administrative interviews.

a. Standard of Review

In proceedings on a petition for writ of mandate, a trial court determines whether the administrative decision was an abuse of discretion. (Code Civ. Proc., § 1094.5, subd. (b).) Abuse of discretion by the administrative body is established if the court determines that the findings are not supported by substantial evidence in light of the whole record. (Kolender v. San Diego County Civil Services Comm. (Gant) (2007) 149 Cal.App.4th 464, 470.) Following denial of the petition, the scope of review is the same in the appellate court as it was in the superior court: we must determine whether the administrative agency exercised its discretion to an end or purpose not justified by all the facts and circumstances being considered. (Talmo v. Civil Service Comm. (1991) 231 Cal.App.3d 210, 227.)

We do not make findings of fact or reweigh evidence. (Halaco Engineering Co. v. South Central Coast Regional Com. (1986) 42 Cal.3d 52, 74.) With these principles in mind, we address Winchell's arguments.

b. Attacks on the Trial Court's Findings

1. The Challenge to the Trial Court's Finding that Winchell was Properly Questioned During the Administrative Investigation.

Winchell devotes a considerable portion of his briefs to the propriety of his questioning by internal affairs during the administrative investigation of his misconduct. Specifically, Winchell refers to the fact that at the outset of the interviews, he invoked his Fifth Amendment privilege against self-incrimination under the Federal Constitution, and was admonished that if he did not answer questions he could be terminated for insubordination, in reference to the decision of Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822 (Lybarger). He implies he was not admonished that his statements would be inadmissible in subsequent criminal proceedings, but we have no record of his interview to support such an inference. We disagree with his assertions.

In Lybarger, supra, the police officer was discharged for insubordination for refusing to answer questions during an administrative interview as a result of a criminal investigation. The officer instituted mandate proceedings to set aside the administrative decision, but the trial court denied the petition. The Supreme Court reversed, holding that although the officer had neither a constitutional nor a statutory right to remain silent free of administrative sanction, the administrative agencies never admonished the officer that his statements could not be used against him in a subsequent criminal proceeding. (Lybarger, supra, 40 Cal.3d at pp. 827-828.)

The court's reasoning was that if appellant had understood that statements made during the administrative interview could not be used against him in a criminal proceeding, he might have elected to cooperate rather than remain silent. Thus, he could have avoided termination as a sanction for insubordination. (Lybarger, supra, 40 Cal.3d at pp. 829-830.)

Lybarger is inapposite here. In Lybarger, the appellant decided to remain silent without knowledge that his statements would be inadmissible in a subsequent criminal proceeding. Winchell did not remain silent and was not terminated for insubordination. He implies, but has not shown, that he was not admonished his statements could not be used in a subsequent criminal proceeding. However, since he does not assert that his statements were subsequently used in a criminal proceeding, there was no impropriety in the questioning by internal affairs.

Winchell also argues that the arbitrator did not correctly consider the coerced nature of his statements, made under the compulsion of facing termination for insubordination if he refused to answer questions. He asserts, without authority, that "a police officer cannot be disciplined or fired based on statements obtained in violation of the Due Process required to ensure adequate protection of the Fifth and Fourteenth Amendments." Peace officers do not have the right to remain silent in administrative interrogations (Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 62), and the Public Safety Officers Procedural Bill of Rights (Gov. Code, § 3300, et seq.) protects against the use of statements in any subsequent criminal or civil proceedings. (Gov. Code, § 3303, subd.(f)(1); see also, Lybarger, supra, 40 Cal.3d at p. 827.)

Winchell's position that his statements, obtained under threat of insubordination, could not be used in the administrative proceedings to determine discipline is directly contradicted by the statute that expressly permits the use of such statements in disciplinary actions. (Gov. Code, § 3303, subd. (f)(1).) The constitutional privilege against compelled self-incrimination in a criminal case or cause does not protect against the nonpenal adverse use of officially compelled answers. (Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704, 715 [emphasis by court].)

The trial court's finding that Winchell was properly questioned during the administrative investigation and that his statements were properly considered by the arbitrator, was proper.

2. Winchell's Termination Was Not Based on Financial Records Unlawfully Obtained by the Riverside Police Department.

Winchell argues that the arbitrator incorrectly interpreted the ruling of a judge in a related civil case (No. RIC 403330) by permitting testimony based on inadmissible financial records. However, the trial court found (1) Winchell's termination was not based on financial records unlawfully obtained by the Riverside...