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Home My WebLink AboutSS3 - Supplemental MemoCITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY DATE: May 20, 2010 TO: Mayor and Members of City Council pA l %ri Honorable Chair and Charter Update Commission FROM: Office of the City Attorney Leonie Mulvihill, Acting City Attorney MATTER: Charter Update Matters: 2009/10; A09 -00673 F i \L/ FO RE: Amendment to Charter Section 711 and April 28, 2010 letter from Lackie, Dammeier & McGill On May 4, 2010, the Charter Update Commission recommended to the City Council that Charter Section 711 be amended as part of the update to the City's Charter. Attached hereto, as Attachment A is the proposed amendment for your reference. In correspondence dated April 28, 2010, General Counsel to the Newport Beach Police Management Association ( "PMA ") opined that subsection (c), relating to appeals to the Civil Service Board ( "CSB "), is inconsistent with the legal rights of PMA members. The amendment repeates, word- for -word, Section 16(c) of the voter - approved Ordinance No. 866. Thus, the amendment is no more than a transfer of language from Ordinance No. 866 to the City Charter. The PMA claims that subsection (c) imposes an unlawful burden on employees to prove that discipline was unreasonable, capricious or arbitrary. The PMA relies on a well - established line of cases holding that the CSB's review of a department's discipline decision does not require the employee to cant' the burden of establishing that the department's decision was erroneous. In fact, the Public Safety Officer's Bill of Rights (Government Code Section 3300, et. seq.) requires that the hearing be an independent reexamination of the department's decision. Because, the hearing is subject to review by way of administrative mandate under Code of Civil Procedure Section 1094.5, the CSB must set forth findings to bridge the analytical gap between the raw evidence and the ultimate decision. See Caloca vs. County of San Diego (2002) 102 Cal.App.4`h 433, 444.) Mayor and Members of City Council May 20, 2010 Page 2 This means that the CSB is to make factual findings and not simply rely on the department's decision in reviewing or modifying the discipline. In legal terms, this is a de novo proceeding at which no facts are taken as established and the proponent of any given fact bears the burden of establishing it. Under the controlling precedent, the burden of establishing sufficient grounds for a disciplinary action rests upon the department. We have no disagreement with PMA's interpretation of the legal requirements. However, we disagree with any suggestion that the Charter amendment requires something inconsistent with the judicial mandates referenced above. In fact, subsection (c) specifies that a disciplinary action may be modified or revoked by the CSB if: (1) that facts do not justify the action taken, the action is unlawful or the action is superseded by local, state or federal law; (2) substantial violation or omission of procedure was made; (3) or the action taken was unreasonable, capricious or arbitrary in view of the offense, the circumstances surrounding the offense, and the past record of the employee. It is erroneous to say that this subsection places a burden on the employee contrary to legal precedent. The reality is that a department's discipline decision may be modified by the CSB on appeal based on facts, law or evidence. At the CUC meeting on May 4, 2010, it was suggested that the inclusion of subsection (c) in Section 711 meant that the CSB's review is something other than a de novo review. A de novo standard of review is an independent analysis whereby the CSB reviews the basis of the department's decision independently and does not presume any facts in the absence of the department establishing it via evidence or the parties so stipulate through the meet and confer process prior to the CSB appeal hearing. This is the exact standard employed by the CSB when it conducts hearings pursuant to the proposed Charter amendment, Ordinance No. 866 and CSB policies. The meet and confer process in no way shifts a burden to the employee that he /she is not legally required to bear. Rather, it is an opportunity for the sides to agree to the facts or issues in controversy and limit the scope of the appeal as a matter of efficiency. Thus, we believe that subsection (c) is consistent with legal precedent. cc: Dave Kiff, City Manager (w /attach) Cathy Standiford, cstandiford @managementpartners.com (w /attach) [A09- 00673] — M &CC from LM 05.19.10 re Charter Section 711 ATTACHMENT A Section 711. Civil Service Board. Powers and Duties. The Civil Service Board shall have the power and duty to: (a) Recommend to the City Council, after a public hearing thereon, the adoption, amendment or repeal of rules and regulations. Rules and regulations as are adopted from time to time by the City Council shall have the force and effect of law. (b) Act in an advisory capacity to the City Council on problems concerning personnel administration. (c) Receive and hear appeals submitted by any person employed by the City relative to any appointment, promotion, suspension, demotion or dismissal and any disciplinary actions and to make determinations thereon. The Board's determination shall be final for persons included in the Civil Service System. The Board may modify or revoke a disciplinary action only on the following grounds: 1. The facts do not justify the action taken, the action is unlawful or the action is superseded by local, state or federal law. 2. Substantive violation or omission of procedure was made. 3. The action taken was unreasonable, capricious or arbitrary in view of the offense, the circumstances surrounding the offense, and the past record of the employee. (d) Make any investigation concerning the administration of personnel in the municipal service and report its findings to the City Council and City Manager when requested to do so by the City Council, the City Manager or by any organized City Employees' association. (e) Perform such other duties as may be prescribed by ordinance. PROUDI. rSER19N(i 31EA1)1ER4 (7r T11E EOLL011 IN(; PUBLIC S:IPETY UNtON.1': ,In/I/.I\9u rol(N/ l il,'V a. M l .ILfA1flllxl 1411 .Itlntnllrl.I .IFxnuu:xlxuelvd ¢I le untl lr " 1114 M nll IIIK 11 IL1,1:17111i Ill1 118." ;(11117 11 114:111111 \ %WII 1141.1. 111 ftl'F.\:IHINA'Iryl lN'NILI>'A'alNIY1Hl IYLI I11'ltlil \A ITII CIIJI'In .I17 'Allen C(u m'r) :I (:11 lll(NAt'l: 51%r:11N(: I:Ir..1T I]Y.' f Nfl l ITII [x(:1:11 1:1 PIEINt IL IY/ 1 "I v I I 1'1LIP421'fOAf.IdifilTll 1 %x111 /•.ILL 11 %1R1 /Y'I' bYJk'u7x N /Yu 1. \III I'.YI nminl. ue/Yu A "/.11iY1 411 :1 %9'!A[i /.a\cLe�e %c rCO.l In;,U(YII ITI I'll It, 1': I'ln V7J A" .11 811.71 ITII III;Vll'I.I/F IY11 I0 \'lt"NA111Y11 1/1U"n" 111NA'ITII ......."Al I'll M1.7" I'll \8.11' IYIRI' 111.1, 11 Mt. . \/ill /YINfIIY n "1//411 1111.11.1'I•x/IY iY /41.1 I'.I111:11:I1'(II,I.YIiI: 141.1 PFJI "N UFp /fl'R,I* l'IJI'Egll fY/.I IYIR.I, SLIll' RLIA /111 }tl N! ILIU I'U.I RIINilil NII FW I' /l. I'll SLCNFVIR Il U .VYI .VSI/IlVH;1/1 (xll -a plll SIAIPI:.IY, /.I .11r Prx.,avMl /Ylr . .. \\C\I 1 LI \\' ' 1l:i..11"llp" IIYll I II 1.I:ldn' /hll \tHl111 41 i1 T II . \I,:It IFI. \'1.1411 .xl \'I:I /'.Il Y.l 1411 ,1'IFM41 LL11,11,'¢I 1110,11,11) .lY,1 ligFJ11DY1,.1 111711li,ll Il.11 .TIR%1111F 1,1;£'1 /l l'I' /l /41.1 M11111 %ilYl.I 7RA\1111p,1 %1 \]I \ !Yl l I: \11:1:11_ ITII /I:AlYII, 1'17 1'/11YI.1 II' E£:t %'1'111' /.Y:I 11 I. 11'8 \ %'IT. Will,," LACKIE, DAMMEIER & lOIICGILL A PROFESSIONAL C'ORPORAT ION 367 NORTH SECOND AVENUE UPLAND, CALIFORNIA 91786 1 ELEPHONE: (9(9) 9854003 FACSIMILE: (909) 985 -3799 EMAIL: of ice ixlicca orney.com WFBSI'IE: wIm.policcattorney.com April 28, 2010 VIA EMAIL AND FIRST CLASS MAIL Honorable Chair and Members of -the City of Newport Beach Charter Update Commission 3300 Newport Blvd. Newport Beach, CA 92663 Re: Amendment to Charter Section 711 Dear Commission Members: DIETER C. DAMMI:IER MICIIAEL A. MCGILI. SAKU E. Ul BIR ANDREW M DAWSON STEVEN.I. BROCK ROBIN L. SERGI KIMBERLY D. RILEY JOIIN II. BAKINT MA "rrBEW TROSKO RUSSELL M. PERRY CAROLINA VERONICA DIAL JOSE A. ARAMBULO MICIJAEL McCOY III, ,,TER J. BORI ON OF COUNSEL MICIIAEL D. LACKIE. APC SENDERS EMAIL: DIETER gPOLICEA7-r0RNEY.COM As you may know this office serves as general counsel to the Newport Beach Police Management Association ( "the PMA "), on whose behalf I write today. It has come to our attention that you intend to recommend modification of Newport Beach City Charter section 711 in a manner inconsistent with the legal rights of our individual PMA members. Courts have clearly established that police officers have the right to an administrative disciplinary appeal in which the hearing officer conducts an independent mview of the discipline imposed. See, e.g., Caloca v. County gj',%In Diego, 102 Ca1.App.4th 433, 443 -44 (2002). For example, in the case of a Westminster police officer's disciplinary appeal, the Civil Service Board is required to review the reasoning and fact - finding upon which the discipline is based from the beginning, in light of the entire record, in order to determine whether or not the discipline imposed is justified. If the City adopts its proposed amendment to section 711, it would handcuff the Civil Service Board, requiring a finding that the "action taken was unreasonable, capricious, or arbitrary" before modifying or revoking a disciplinary action. In other words, the burden would improperly be shifted to the employee to prove the discipline was "unreasonable, capricious, or arbitrary" rather than keeping the burden on the employer to prove good cause existed for the disciplinary action taken. As discussed in detail below, restricting the Civil Service Board to such a heightened standard of review is unlawful and tramples on the well - established rights of Newport Beach Police employees. As it now stands. Charter section 711 grants the Civil Service Board the authority to' [h]ear appeals submitted by any person employed by the City relative to any suspension, demotion or dismissal and make findings and recommendations thereon." The City is currently considering an amendment proposed by the Charter Newport Beach Charter Update Commission April 28, 2010 Page 2 Update Commission that would incorporate the language used in Municipal Code section 2.24.160. The amendment would alter section 711 to state: The Board may modify or revoke a disciplinary action only on the following grounds: 1. The facts do not justify the action taken, the action is unlawful or the action is superseded by local, state or federal law. 2. Substantive violation or omission of procedure was made. 3. The action taken was unreasonable, capricious or arbitrary in view of the offense, the circumstances surrounding the offense, and the past record of the employee. While such an amendment might seem expedient from an administrative perspective, it unnecessarily exposes the City to inevitable legal challenges. It unlawfully restricts the ability of employees to challenge the legitimacy of imposed discipline and creates a standard of review for the Civil Service Board that fails to comport with Constitutional Due Process standards —at least as to Peace Officers. In disciplinary administrative proceedings involving police employees, the burden of proving the charges rests upon the party making the charges. Parker v. County of Fountain Valley, 127 Cal.App.3d 99, 113 (1981). The obligation of a party to sustain the burden of proof requires the production of credible evidence for that purpose and the employer does not meet that burden by simply placing charges before the fact finder and claiming that it established a "prima facie" case. Id.; see also Los Angeles Police Protective League v. County of Los Angeles, 102 Cal.AppAth 85 (2002). The burden is not on the employee to refute the charges made. Steen v. Board of Civil Serv. Comm is, 26 Cal.2d 716 (1945); Fukuda v. County ofAngels, 20 Cal.4th 805 (1999) (public agency must produce evidence of misconduct by the employee; the employee has no burden to produce evidence that no misconduct occurred). The City's "one size fits all" approach to disciplinary appeal ignores the state legislature's intent to provide certain employees, i.e., police officers, with enhanced procedural safeguards regarding the vested property interests in their employment. The Public Safety Officers Procedural Bill of Rights Act ( "POBOR" ), Gov't Code §§ 3300 -3312, including its requirement of an administrative appeal, applies to charter cities and does not violate the home rule provision of the California Constitution. Baggett v. Gates, 32 Cal.3d 128, 135 -40 (1982). POBOR was not intended to interfere with a charter city's right to regulate peace officers' qualifications for employment or the causes for which they may be disciplined, but it does impinge upon the right to determine the manner in which employees may be disciplined. Id. at 138. Government Code section 3304 does not specify how the appeal process of the administrative review is to be implemented. Binkley v. City of Long Beach, 16 Cal.App.4th 1795, 1806 (1993)). Although the details of the administrative appeal are left to the local agency after meeting and conferring with the applicable bargaining units, the minimum requirements of the administrative appeal were set out in Caloca v. County of San Diego, 102 Cal.App.4th 433, 443 -44 (2002). The administrative appeal requires an independent reexamination of the decision Newport Beach Charter Update Commission April 28, 2010 Page 3 conducted by someone not involved in the initial determination. Id. This independent examiner "cannot simply rely on the determination of the individual or agency that has initiated punitive action against a peace officer. Rather, the independent fact finding implicit in the concept of an administrative appeal requires at a minimum that the hearing be treated as a de novo proceeding at which no facts are taken as established and the proponent of any given fact bears the burden of establishing it." Id. These requirements for an administrative appeal are not consistent with limiting the Civil Service Board to an abuse of discretion standard. The Board must determine facts, not simply rely on those found by a city administrator. The City has the burden of proving the facts essential to support discharge. See Parker, 127 Cal.App.3d at 113 (1981) (city bore burden of proof at administrative hearing on discharge of police officer). This burden is not bome by simply showing the decision - making process was not "unreasonable, capricious or arbitrary." The City's intention to add specificity to section 711 is laudable, but ill- advised. The City's proposed amendment, as well as Municipal Code section 2.24.160 are unlawful as would be applied to sworn police employees. The City would be better served by adopting a more standard approach — placing the burden on the employer to prove the alleged misconduct occurred, and if so, to determine whether "just cause" exists for the level of discipline imposed. See, e.g. Los Angeles County Civil Service Rules, Title 5, Rule 4.12 ( "In hearings on discharges, reductions or suspensions in excess of five days, the burden of proof shall be on the appointing power. . . . "); id. at Rule 18.02.0 ( "The commission shall determine whether or not the discharge or reduction is justified. "); Rules of the Board of Civil Service Commissioners, City of Los Angeles, § 12.17 (requiring a finding that "(1) [a]ll of the charges or certain of the charges are sufficient and sustained, and (2) the discharge or suspension is sustained .... "). Hopefully, this letter will assist you in making a more informed decision regarding the amendment and implementation of section 711. Because your decision impacts the Association, as well as the entire Newport Beach Police Department, we would be glad to provide further advice or commentary on this proposed amendment. As always, if we can be of any assistance, do not hesitate to call. Very truly yours, VIX" LAC DAMMEIER & MCGILL, APC Dieter C. Dammeier, Esq. Attorney for the Newport Beach Police Management Association cc: Rob Wexler, Attorney for the Newport Beach Police Association