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HomeMy WebLinkAbout1995-03-01; City Council; 13047; Personnel Board Decision Re. Patrick PrestonClaw OF CARLSBAD - AGEK’A BILL IN RE: PERSONNEL MATTER OF PRESTON RECOMMENDED ACTION: Review all materials provided; allow reasonable oral argument by both parties; take whatever action Council deems appropriate with regard to final disciplinary action; give direction to City Attorney to prepare final form of resolution containing findings supporting Council's decision based on substantial evidence in light of whole record. ITEM EXPLANATION The purpose of this Special Meeting is to decide the appeal of Carlsbad Police Officer Preston who was terminated from City service effective May 27, 1994. The Council must decide this issue because it is a "past practice" with the CPOA and we do not have a new agreement. Personnel Board Recommendation On May 20, 1994, the Chief of Police issued an Order of Termination of Police Officer Patrick Preston (Appellant), effective May 27, 1994. Officer Preston appealed his termination and the Personnel Board conducted a closed session hearing on his appeal for approximately 35 hours over five days of hearing, culminating in a recommendation issued in public session recommending that the termination be reduced to a 30-day suspension. The Personnel Board found insufficient evidence to support four of the charges on which the Chief based his action, but did find Officer Preston guilty of disrespect for or unwarranted suspicion of supervisory personnel, and imposed a 30- calendar day suspension for that offense. Process for City Council Consideration The recommendation of the Police Chief and the City Manager is to reject the recommendation of the Personnel Board, find the Appellant committed all charges set forth in the original Order of Termination, and reject the Personnel Board recommended discipline of 30 days suspension, and instead affirm the original termination. Accordingly, we have implemented the following process for Council's final determination of this personnel matter: 1. On or about February 23, 1995, the Council members will be provided with the Exhibits listed below. 2. There will be a Special Meeting, on Wednesday, March 1, 1995 for your public receipt of oral argument by the Police Department and Appellant, closed session deliberation and public determination of the matter. Agenda Bill # /3.077 Dated: 3/l/95 ' Page 2 3. We suggest you begin your review with the briefs from Counsel, as they should focus the areas in dispute and for which findings may be necessary. Options The Council's options are: 1. Approve the action of the Personnel Board. If Council does so, Government Code section 54957.1 requires that Council return to public session from this closed session and report out its action with regard to the personnel matter and the vote of each member thereon. 2. Modify the action of the Personnel Board up to and including reinstatement of the order of termination. Council would have to make findings of fact established by a preponderance of the evidence based on substantial evidence in the administrative record of the proceedings before the Personnel Board and in the administrative record presented to Council. The entire transcript of the proceedings, as well as all documents offered, whether or not received into evidence by the Personnel Board, and briefs of counsel would have to be reviewed and considered by the Council in order to make such findings. Depending on what the City Council concludes after consideration of these matters, a resolution memorializing its findings will be prepared by the City Attorney at Council's direction. The members of Council should not discuss the facts of the case with anyone except on the record in the course of the proceedings of the Special Meeting. FISCAL IMPACT If Council approves the action of the Personnel Board and reinstates Officer Preston with a 30-day suspension, he would be reimbursed approximately $31,000, (less any amount he earned while off work but not in the period of suspension without pay) If Council terminates Officer Preston, there will be no back pay and benefits, but potential litigation defense costs, and back pay and attorneys fees exposure if Officer Preston were ultimately reinstated by the court. . . . . Agenda Bill # )3,043 Dated: 3/l/95 / Page 3 EXHIBITS 1. Personnel Board Resolution No. 21 2. Transcript of proceedings before the Personnel Board (6 volumes; 1113 pages) cod FlLE ZrJ Hum%J RE.TQ~fZe~ ) 3. All evidence offered to the Personnel Board by the parties (one set on file in the City Clerk's Office+GE~w~~ ntiw~J@@~~ 4. Brief from Counsel for the Police Department dated February 3, 1995, including Proposed Findings and Decision for the Council to potentially adopt 5. Brief from Appellant dated February 14, 1995 I I . : 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. s/ A RESOLUTION OF THE PERSONNEL BOARD OF THE CITY OF CARLSBAD, CALIFORNIA ANNOUNCING ACTION ON THE APPEAL OF POLICE OFFICER PATRICK WHEREAS, the Personnel Board of the City of Carlsbad, California, conducted a closed hearing on October 19, 20, November 22, 23, 30 and December 1, 1994 pursuant to Government Code section 54957 and the request of the appellant Patrick Preston, in order to hear his appeal from an Order of Termination issued on May 20, 1994, by Police Chief Robert Vales, his appointing authority; and WHEREAS, appellant, Patrick Preston, was personally present and represented by his attorney, Robert Krause, and the Police Department was represented' by its attorney Cynthia O'Neill of Whitmore, Johnson and Bolanos, and Lt. Greg Fried; and WHEREAS, the Personnel Board heard and received evidence, both written and oral, and the arguments of counsel; and WHEREAS, the Personnel Board has carefully reviewed and considered all of the evidence and arguments presented, and conducted its deliberations thereon. NOW THEREFORE, the Personnel Board finds as follows: 1. There is insufficient evidence to support the allegations of charges 1 through 4, that Police Officer Preston conducted an unauthorized investigation of a superior officer; engaged in surreptitious tape recording; attempted to bribe a superior officer; and abandoned his assigned beat. 2. Appellant is guilty of a failure to exercise good judgment, conduct unbecoming an officer and discourtesy in violation of department rules and regulations Sections 1.06 and 1 , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1.26 by displaying disrespect for and/or unwarranted suspicion of authority as set forth in charge 5 of the Notice of Intent to Terminate dated April 22, 1994, attached hereto as Exhibit A. 3. The level of discipline consisting of termination for the violation of only charge 5 is disproportionate to that conduct and is, therefore, inappropriate. BE IT FURTHER RESOLVED, based on the above findings that the Personnel Board of the City of Carlsbad recommends to the City Council: 1. That the written Order of Termination dated May 20, 1994 be overruled and theaemployee be retained in the service of the City and 2. That the discipline be modified as follows: a. That appellant be suspended without pay for a period of 30 calendar days fromMay 27, 1994 through June 26, 1994, and therefore be reinstated with back pay from and after June 27, 1994. b. It is further recommended that appellant have no loss of pay for the period July 26, 1994 through September 6,' 1994 when his attorney was unavailable for proceeding with the administrative hearing of his appeal. . C. It is further recommended that upon reinstatement Police Officer Patrick Preston be required to attend through the City's Employee Assistance Program a counselling/training program in order to resolve issues of disrespect and suspicion of authority. . . . . . . . . 2 , . r , ’ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Special Meeting of the Personnel Board of the City of Carlsbad, California, on the 71-l 6 day of December, 1994 by the following vote, to wit: AYES: F:IJlc (4 NOES: ticb~L ABSENT: Ch&man of the Board ATTEST: 3 - . & 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BEFORE THE CITY COUNCIL OF THE CITY OF CARLSBAD IN RE DISCIPLINARY APPEAL OF: ; PATRICK PRESTON i ; 1 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON Date: March 1, 1995 Time: 6:00 p.m. Place: City Council Chambers RICHARD S. WHITMORE, State Bar No. 041183 CYNTHIA J. O’NEILL, State Bar No. 132334 WHITMORE, JOHNSON & BOLANOS 2570 W. El Camino Real, Suite 600 Mountain View, California 94040 Telephone: (415) 941-9333 Attorneys for the City of Carlsbad Police Department Wbilmore, Johnson & Bolanos 2570 W. El Camiw Real, Suite 600 Mountain View. California 94040 DEPARTMENT3 BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON 178klm.005 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. STATEMENTOFFACTS.............................. 3 II. STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 III. APPELLANT PRESTON HAS ADMITTED THE CONDUCT UNDERLYING CHARGE NUMBERS ONE THROUGH FOUR . . . . . . . 6 A. Charge No. One: Appellant Preston Admitted he Conducted an Unauthorized Investigation Into a Superior Officer’s Conduct on March 13, 1994. . . . . . . . . . . . . . . . 7 B. Charge No. Two: Appellant Preston Admitted he Surreptitiously Tape Recorded a Citizen and Two Superior Officers Without Their Knowledge or Consent. . . . . . . . . . . 9 C. Charge No. Three: Appellant Preston Admitted the Conduct that Gave Rise to the Appearance of Bribing a Superior Officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 D. Charge No. Four: Appellant Preston Admitted Abandoning His Assigned Beat on December 20, 1993. . . . . . . . . . . . 12 IV. THE PERSONNEL BOARD FOUND APPELLANT PRESTON GUILTY OF CHARGE NO. FIVE -- DISRESPECT FOR AND/OR UNWARRANTED SUSPICION OF AUTHORITY . . . . . . . . . . . . . . 14 V. TERMINATION IS THE ONLY APPROPRIATE REMEDY . . . . . . . . 15 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 WhiImore, Johnson & Bobmar 2570 W. El Camim Real, Suite 600 Mountain View, California !XO40 176kIIILWS DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON -i- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - - RICHARD S. WHITMORE, State Bar No. 041183 CYNTHIA J. O’NEILL, State Bar No. 132334 WHITMORE, JOHNSON & BOLANOS 2570 W. El Camino Real, Suite 600 Mountain View, California 94040 Telephone: (415) 941-9333 Attorneys for the City of Carlsbad Police Department BEFORE THE CITY COUNCIL OF THE CITY OF CARLSBAD IN RE DISCIPLINARY APPEAL OF: PATRICK PRESTON 1 DEPARTMENT’S BRIEF IN SUPPORT OF ; TERMINATION OF PATRICK PRESTON ; Date: March 1, 1995 Time: 6:00 p.m. Place: City Council Chambers INTRODUCTION Police Chief Robert Vales decided to terminate former Police Officer Patrick Preston’s (“Appellant Preston’s”) employment primarily because Appellant Preston’s disrespect for, and unwarranted suspicion of, the Police Department (“Department”) management staff precluded him from effectively functioning as a Carlsbad Police Officer. Instead of heeding the advice of superior officers, Appellant Preston insisted that they were out to get him, that they were wrong, or that they had no authority to criticize his work performance. The Department respectfully requests the City Council to uphold Chief Vales’ decision to terminate. Chief Vales’ Notice of Intent to terminate contains the following five charges: 1) conducting an unauthorized investigation on March 13, 1994 into a superior officer’s actions in returning a lost dog to its owner; 2) surreptitiously tape recording a Carlsbad citizen during the unauthorized investigation, and the superior officer on another occasion; 3) attempting to bribe a superior officer to change Appellant Whitmore, Johnson & Bdmm 2570 W. El Camino Real, Suite 600 Mountain View, California 94040 178krm.005 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON -l- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Preston’s below-standard performance evaluation; 4) leaving his beat and the City limits without requesting permission from a superior officer and without notifying dispatch; and 5) exhibiting an unwarranted disrespect for and suspicion of authority. While the Personnel Board agreed with Chief Vales that Appellant Preston displayed disrespect for and/or an unwarranted suspicion of authority as stated in Charge Number Five, it disagreed that Appellant Preston was guilty of Charge Numbers One through Four. The Personnel Board recommended that Appellant Preston’s disrespect for and suspicion of the Department’s command staff as stated in Charge Number Five warranted only a one-month suspension and psychological counseling. Chief Vales and the Department now urge the City Council to reject the Personnel Board’s recommendation and uphold the termination for two reasons. First, the Personnel Board’s findings that Appellant is innocent of Charge Numbers One through Four contradict both Appellant Preston’s admissions and the preponderance of the record evidence that proves him guilty as charged. Second, the penalty of suspension is inconsistent with the Personnel Board’s finding that Appellant Preston was indeed guilty of the disrespect for and/or the unwarranted suspicion of authority as stated in Charge Number Five. Even standing alone, Charge Number Five provides a sufficient basis to uphold Chief Vales’ decision to terminate; Appellant Preston cannot be returned to the Police Department because his disrespect for authority undermines the obedience this paramilitary organization requires. Chief Vales submits that the Personnel Board’s recommendation to suspend is inconsistent with both Appellant Preston’s admissions as to Charge Numbers One through Four, and the Board’s own finding that Appellant Preston is guilty of suspicion and disrespect. The Department has also submitted Proposed Findings that identify the specific evidence that establishes that Appellant Preston is guilty of the misconduct referenced in Charge Numbers One through Five. Chief Vales and the Whitmore, Johmoo & Bolanos 2570 W. El Camino Real. Suite 600 Mountain View. California 94040 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON 17skrm.lws -2- - - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Department respectfully request the City Council to uphold the decision to terminate. In the alternative, the Department submits that even Charge Number Five, standing alone, is sufficiently egregious to support Appellant Preston’s termination. The Department’s effective functioning requires that all officers accept their superior officers’ orders and direction without question (PF 32), and Appellant Preston’s failure to respect his supervisors absolutely precludes him from functioning as a police officer. I. STATEMENT OF FACTS On December 20, 1993, Appellant Preston was assigned to patrol a beat near the border between the cities of Carlsbad and Oceanside. During his shift, he heard radio traffic from Oceanside indicating that an arrest was occurring there and that two Carlsbad police detectives were on the scene. Although Appellant Preston did not hear anyone at the scene request any back up from the Carlsbad Police Department, he decided to leave his beat and the City limits to assist. (PF 20, 22, 23.)’ He did not seek permission from a superior officer, nor notify dispatch, despite prior counselling from three superior officers. (PF 21, 24, 25.) Before the Department could actually impose any discipline for the December 1993 incident, Appellant Preston engaged in further misconduct. (Exhibit 20.)’ In the beginning of March 1994, Appellant Preston learned from another officer that some ten months prior, Sergeant Byler had taken home a lost poodle and had returned it a few days thereafter to its owner, Carlsbad resident Connie Young. (PF 1, 2.) On March 9, 1994, Sergeant Byler issued Appellant Preston a below-standard I/ 1 “PF” is an abbreviation for “Proposed Finding”. Please refer to the “(Proposed) Findings and Decision of the City Council of the City of Carlsbad”, at the consecutively numbered proposed findings, for citations to supporting record evidence. The exhibits referenced here are those that were introduced and admitted into evidence during Appellant Preston’s evidentiary hearing before the City of Carlsbad Personnel Board. Whitmom, Johnson & Boimos 2570 W. El Camin, Real, Suite 600 Mountain View. California 94C4l 17llkrm.005 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 performance evaluation. (Exhibit 15, pages l-l 0.) Appellant Preston disagreed with the majority of the evaluation. (PF 4.) On March 13, 1994, Appellant Preston’s first day back at work after receiving his below-standard performance evaluation, he was assigned to a beat where poodle owner Connie Young lived. (PF 5.) Appellant Preston went to Ms. Young’s home and questioned her regarding the facts surrounding Sergeant Byler’s return of her poodle. (PF 5.) Appellant Preston admitted he had not received permission to initiate this investigation, but stated he felt an obligation to the Department to look into the matter and to corroborate whether Sergeant Byler had acted appropriately. (PF 8.) Appellant Preston tape recorded his unauthorized interrogation with Ms. Young without her knowledge or consent. (PF 11.) On March 16, 1994, Appellant Preston met with Sergeant Byler privately to discuss the evaluation. (PF 16.) At that point, Appellant Preston disclosed that he had secretly tape recorded a prior private counseling session with Sergeant Byler during which Sergeant Byler used the term “psycho black bitch” in reference to a citizen Appellant Preston had contacted. (PF 17.) Sergeant Byler stated that he felt that Appellant Preston was threatening to disclose his tape recorded comment unless Sergeant Byler changed the below-standard performance evaluation. (PF 18.) Throughout his employment at Carlsbad Police Department, Appellant Preston received counselling, training, and performance evaluations that specifically informed him how to improve his work performance. (PF 26, 33.) Although the Department commended him as appropriate, Appellant Preston did not believe that those commendations were genuine. (PF 28.) Appellant Preston admitted that he had difficulty dealing with authority (PF 29), that he would only adhere to his superior’s directions when he believed that they were “right” (PF 29), and that he distrusted any superior officer who criticized his work performance. (PF 30.) Police Chief Vales determined that Appellant Preston’s unwarranted disrespect for his supervisors, and his suspicion of their advice effectively prevented Appellant Whibnm, Johnson & Bolanos 2570 W. El Camino Real, Suite 600 Mwnta~n View, California 94C40 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON 1781um.005 -4- w 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Preston from accepting responsibility for his shortcomings and from improving his work performance. (PF 31.) Police Chief Vales decided to terminate Appellant Preston’s employment based upon the following five charges of misconduct: 1) conducting an unauthorized investigation of a superior officer on March 13, 1994; 2) surreptitiously tape recording private conversations with a citizen during the unauthorized March 13, 1994 investigation, and during a private conversation with Sergeant Byler; 3) attempting to bribe Sergeant Byler on or about March 16, 1994 in an attempt to change the below- standard performance evaluation that Sergeant Byler had drafted; 4) abandoning his assigned beat and the City limits on December 20, 1993 without requesting permission and/or notifying dispatch of his whereabouts; and 5) exhibiting a disrespect for and/or an unwarranted suspicion of authority that prevented him from learning from his mistakes or improving his ability to make appropriate judgment calls. (Exhibit 20.) The Personnel Board conducted closed hearings on the evening of October 19 and 20, 1994 and during the business days of November 22, 23, 30, and December 1, 1994. Appellant Preston was represented by legal counsel throughout the proceedings. Appellant Preston called witnesses in his defense, submitted evidence, rebutted the Department’s evidence, and cross-examined the Department’s witnesses while they were under oath. After considering the evidence, the Personnel Board found Appellant Preston guilty only of Charge Number Five -- disrespect for and/or unwarranted suspicion of authority. The Personnel Board recommended that the City Council suspend Appellant Preston for thirty days, and also order him to attend counselling/training through the City’s Employee Assistance Program so that he could resolve issues of his disrespect and suspicion of authority. II // Whitmore, Johnron & Bolmm 2570 W. El Camino Real, Suite Mx) Mwntain View, California 94040 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON 17SkmMlO5 -5- .- s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. STANDARD OF REVIEW The City Attorney’s January 16, 1995 letter to legal counsel for the Department and Appellant Preston states that the City Council shall make its findings based upon the preponderance of evidence in the record. The California Supreme Court has also determined that the preponderance of the evidence standard applies whenever an administrative body is deciding whether to terminate an employee’s employment. (Skellv v. State Personnel Board (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14.) The preponderance of the evidence standard is the lowest evidentiary standard in the law. As applied to the present case, the preponderance of the evidence standard requires the City Council to find in favor of Chief Vales’ decision to terminate if the evidentiary record, taken as a whole, demonstrates that it is more likely than not that the facts are as Chief Vales and the Department’s command staff contend. Unlike the “clear and convincing” standard, which requires that one party’s evidence be clearly more probable or persuasive, or the “beyond a reasonable doubt” standard which requires that there be no doubt whatsoever as to guilt, the preponderance of the evidence standard requires the City Council to uphold Chief Vales’ decision to terminate if it believes that the Department’s evidence is even slightly more probable or persuasive. The Department submits that it has met this standard. III. APPELLANT PRESTON HAS ADMITTED THE CONDUCT UNDERLYING CHARGE NUMBERS ONE THROUGH FOUR Notwithstanding that Appellant Preston admitted the misconduct described in Charge Numbers One through Four, the Personnel Board somehow concluded that he was not guilty of those charges. The Department submits that the Personnel Board’s findings regarding Charge Numbers One through Four are wholly inconsistent with Appellant Preston’s admissions, and with the preponderance of the record evidence Wbibnore, Johnson & Bolanos 2570 W. El Camino Real, Suite 600 Mountain View, California 94040 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON 178krm.005 -6- - . s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 as a whole. The Department requests the City Council to reject the Personnel Board’s findings as to Charge Numbers One through Four and adopt its Proposed Findings that cite the record evidence that establishes Appellant Preston’s guilt. A. Charqe No. One: Appellant Preston Admitted he Conducted an Unauthorized lnvestiqation Into a Superior Officer’s Conduct on March 13, 1994. The Department requests the City Council to reject the Personnel Board’s finding that Appellant Preston is innocent of Charge Number One. This charge states: On March 13, 1994, you attempted to discredit your superior officer by conducting an unauthorized investigation into Sergeant Byler’s actions of approximately ten months ago in returning a lost dog. You were subsequently untruthful regarding your motive for conducting the investigation. (Exhibit 20, Notice of Intent to Terminate, April 22, 1994.) Appellant Preston admitted that he conducted the investigation without authorization. Moreover, the preponderance of the evidence supports that he undertook the investigation, not to further the Department’s interests, but solely as an attempt to discredit Sergeant Byler who had just given him a below-standard performance evaluation. Appellant Preston admits that he did not seek authorization to conduct the investigation as required by Department rules (PF 3, 6), and that he was aware when he conducted the unauthorized investigation that Sergeant Byler had already returned the lost dog some ten months earlier. (PF 2.) The only thing that Appellant Preston does not admit as to Charge Number One is his motivation for initiating the investigation. Appellant Preston contends that he undertook the unauthorized investigation because he felt that he had an obligation to the Department to look into the matter and corroborate whether Sergeant Byler had acted appropriately. (PF 8.) The preponderance of the evidence, however, establishes that Appellant Preston was untruthful when he stated that his motives for conducting the investigation were pure. (PF 10.) No other officer who testified on Appellant Preston’s behalf suspected Whitmore, Johnson 61 Bolanos 2570 W. El Camino Real. Suite 600 Mountain View, California 94040 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON 17EkIlIl.oOS -7- s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 26 any impropriety, nor believed that they had any duty or right to investigate. (PF 7.) Only Appellant, who had received a below-standard performance evaluation on his last duty day prior to the investigation, believed that the ten-month old rumor warranted investigation. (PF 1, 2, 4, 5.) This evidence confirms that Appellant Preston decided to initiate the investigation, not for the good of the Department, but for the purpose of unearthing dirt that he could use to either discredit Sergeant Byler or to persuade Sergeant Byler to alter his below-standard performance evaluation. (PF 10.) At the Personnel Board hearing, Appellant Preston argued that the fact that he did not conduct the unauthorized investigation until he was assigned to a beat that included Ms. Young’s home, and the fact that he informed dispatch of his whereabouts when he stopped to conduct the unauthorized interview, somehow support that he undertook the unauthorized investigation for the good of the Department. Neither of these facts indicates that Appellant Preston undertook the investigation for any reason other than the self-serving purpose of discrediting Sergeant Byler. For example, the fact that he was assigned to a new beat that included Ms. Young’s home on his first duty day after receiving his below-standard evaluation was fortuitous. He had known about the “poodle” rumor in early March (PF 1, 2), but apparently was not motivated to investigate until after he received the below-standard evaluation on March 9. The fact that he was assigned to the new beat that included Ms. Young’s home does not make his misconduct less egregious; it simply enabled him to proceed while on duty. Similarly, the fact that he informed dispatch that he was stopping at Ms. Youngs’ address does not indicate that his motives for investigating were pure; if Ms. Young had not subsequently contacted Sergeant Byler to find out why Appellant Preston was investigating, the Department might never have known that Appellant Preston had visited Ms. Young’s home. The Department submits that Appellant Preston is guilty of Charge Number One. He admitted that he undertook the investigation into a superior officer’s conduct without authorization (PF 3), on his first duty day after receiving a below-standard Whitmme, Johnson & Bolanor 178knn.005 2570 W. El Camim Real, Suite 600 Mountain View, California 94C40 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 performance evaluation (PF 4), and based upon a rumor he heard ten months after the fact (PF 1, 2). This evidence fully supports that he was untruthful when he stated that he was motivated to investigate for the good of the Department. (PF 10.) B. Charqe No. Two: Appellant Preston Admitted he Surreptitiously Tape Recorded a Citizen and Two Superior Officers Without Their Knowledqe or Consent. The Department requests the City Council to reject the Personnel Board’s finding that Appellant Preston is innocent of Charge Number Two. This charge states: On March 13, 1994, you tape recorded Ms. Connie Young during an unauthorized investigation and without her knowledge or authorization. On at least one occasion during the past year you have tape recorded Sergeant Byler without his knowledge or authorization. (Exhibit 20, Notice of Intent to Terminate, April 22, 1994.) The Department bases this request upon the fact that Appellant Preston has also admitted the conduct stated in Charge Number Two. First, Appellant Preston admitted that he tape recorded Carlsbad resident Connie Young without her knowledge or consent during his March 13, 1994 investigation of Sergeant Byler. (PF 11.) Second, Appellant Preston admitted not only that he tape recorded a private conversation with Sergeant Byler without receiving Sergeant Byler’s consent, but that he also secretly tape recorded two additional private counseling sessions -- one with Sergeant Byler and another with Sergeant Edwards. (PF 13.) Both Sergeants Byler and Edwards expected that their separate counselling sessions would be private. (PF 13.) State law prohibits tape recording a private conversation without the consent of the person being taped unless a law enforcement officer does the taping in the course of a criminal investigation. (California Penal Code sections 632 and 633; Rattrav v. Citv of National Citv (9th Cir. 1994) 36 F.3d. 1480; see also Coulter v. Bank of America (1994) 28 Cal.App.4th 923,33 Cal.Rptr.2d 766.) Appellant Preston admitted that his March 13, 1994 interview with Ms. Connie Young was not part of a criminal investigation. (PF 12.) Similarly the secret tapes of his supervisors’ private counseling sessions were also not part of any criminal investigation. Whitmore, Johnson 81 Bolanos 2570 W. El Carnina Real, Suite Mw) Mountam View, California 94040 178krm.005 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON -9- . - 1 2 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 .- Although the Department could have pursued a criminal prosecution for this misconduct, it chose not to do so. Chief Vales made clear during the Personnel Board hearing that the Department has not and would not pursue any criminal prosecution. (PF 15.) Instead, it was charging Appellant Preston only with violating the spirit of these laws and/or for giving the appearance that he did not respect these laws. (PF 15.) During the Personnel Board hearing, Appellant Preston attempted to shirk responsibility for his own admitted misconduct by offering testimony of other officers who secretly taped persons durinq criminal investiqations. None of that testimony is relevant here, because Appellant Preston secretly tape recorded a citizen in the absence of anv criminal investiqation. (PF 12.) Appellant Preston also attempted to evade responsibility by offering testimony of others who had secretly tape recorded their superior officers. The fact that Appellant Preston was able to find two other persons who had secretly tape recorded does nothing to mitigate his own wrongdoing; it simply provides another example of his failure to accept responsibility for his own admitted misconduct. The Department submits that Appellant Preston is guilty of Charge Number Two. He has admitted that he secretly tape recorded a private citizen without her knowledge or consent (PF 11, 12), and that he secretly tape recorded at least three private counselling sessions with superior officers without their knowledge or consent. (PF 13). Such conduct violates the spirit of Penal Code sections 632 and 633 and constitutes conduct unbecoming a police officer. C. Charqe No. Three: Appellant Preston Admitted the Conduct that Gave Rise to the Appearance of Bribinq a Suuerior Officer. The Department requests the City Council to reject the Personnel Board’s finding that Appellant Preston is innocent as to Charge Number Three. This charge states: On March 15, 1994, [corrected to March 16 by stipulation of the parties at the Personnel Board hearing at 1095:22- 1096:6] during a discussion with Sergeant Byler regarding Whitmore, Johnson & Bolanos 2570 W. El Camim Real, Suite 600 Mountain View, California 94040 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON 17.3krm.oos -lO- b 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the below-standard performance evaluation rating he issued to you on March 9, you told Sergeant Byler that you had a tape recording of him making a derogatory racial reference about a Carlsbad resident. Your comments to Sergeant Byler appeared to be an attempt to influence him to alter the rating on your most recent performance evaluation. (Exhibit 20, Notice of Intent to Terminate, April 22, 1994, at page 3.) The Department submits that Appellant Preston is guilty of Charge Number Three because he has also admitted the facts that underlie this charge. (PF 16, 17.) Appellant Preston admitted during the Personnel Board hearing that he approached Sergeant Byler on March 16, 1994 in private to discuss the below- standard performance evaluation that Sergeant Byler had provided him on March 9. (PF 16.) Appellant Preston also admitted that it was at that time that he first disclosed to Sergeant Byler that he had secretly tape recorded a private counseling session one year earlier during which Sergeant Byler had used the term “psycho black bitch.” (PF 17.) Sergeant Byler felt that Appellant Preston had mentioned the taped comments in order to influence him to alter Preston’s performance evaluation. Appellant Preston also acknowledged that Sergeant Byler responded at the time that: “I feel like I’m being extorted into given [sic] you a better evaluation.” (Exhibits ZZ at 11, and LL, at 6.) Appellant Preston provided no evidence to undermine this charge. He simply argued: 1) that no actual bribe occurred; and/or 2) that it was not on a transcription of a tape recording of a subsequent conversation between himself, Sergeant Byler and Lieutenant Fried. The record contradicts each of these contentions. First, the Department is not charging Appellant Preston with actually bribing Sergeant Byler; it is charging him for giving the appearance of doing so. (Exhibit 20.) The Department views Appellant Preston’s attempt to bribe as seriously as it would an actual bribe. (PF 19.) The fact that Appellant Preston did not explicitly state that he would withhold the secretly taped comments in exchange for a better performance evaluation rating is therefore irrelevant. WhItmore, Johnson & Bolmcs 2570 W. El Camino Real, Suite @Xl Mountain View, California 94040 1781um.005 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON -1 l- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Second, the Department has charged that Appellant Preston gave the appearance that he was bribing Sergeant Byler during their private discussion, and not during a tape-recorded discussion that Appellant Preston had with both Sergeant Byler and Lieutenant Fried immediately thereafter. Accordingly, the transcription of the Byler-Preston-Fried conversation does not contain Appellant Preston’s statements of the attempted bribe. The transcription of that subsequent conversation that Appellant Preston introduced into evidence, however, confirms the attempted bribe: Sergeant Byler: “There is a certain amount of, extortion is probably too strong of a word, but its kind of like from my standpoint that you just want to use these secret tapes to try to influence my evaluation.” (City’s transcription of Exhibit ZZ at 32, Appellant’s transcription of Exhibit ZZ at 11.) The preponderance of the evidence demonstrates Appellant Preston’s guilt as to Charge Number Three. The evidence is undisputed that Appellant Preston first revealed the secret tape recording in conjunction with the below-standard performance evaluation (PF 16, 17), and that Sergeant Byler believed that Appellant Preston was attempting to bribe him. (PF 18.) D. Charoe No. Four: Appellant Preston Admitted Abandoning His Assigned Beat on December 20, 1993. The Department requests the City Council to reject the Personnel Board’s finding that Appellant Preston is innocent as to Charge Number Four. This charge states: You were insubordinate and/or demonstrated extremely poor judgment on December 20, 1993 when you left your beat and the Carlsbad City limits without notifying dispatch or asking permission from a supervisor. (Exhibit 20, Notice of Intent to Terminate, April 22, 1994, at page four.) The Department bases its request upon the fact that Appellant Preston has also admitted all of the misconduct stated in Charge Number Four. Appellant Preston admitted that, prior to December 20, 1993, three different supervisors all counselled him not to leave his beat. (PF 24.) Nevertheless, he WhItmare, Johnson 81 Bdmas 2570 W. El Camino Real, Suite 600 Mountain View. California 94040 lT3klllLlNl5 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON -12- w 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not admitted -- that he undertook the unauthorized investigation in order to discredit Sergeant Byler -- is fully supported by the preponderance of the evidence. (PF 1, 2, 4.) The Department respectfully requests the City Council to acknowledge Appellant Preston’s admitted misconduct, and uphold Charge Numbers One through Four. IV. THE PERSONNEL BOARD FOUND APPELLANT PRESTON GUILTY OF CHARGE NO. FIVE -- DISRESPECT FOR AND/OR UNWARRANTED SUSPICION OF AUTHORITY Although Appellant Preston’s admitted misconduct did not persuade the Personnel Board to find him guilty of Charge Numbers One through Four, his suspicious demeanor and disrespect for Department authority convinced even the Personnel Board that he was guilty of Charge Number Five. The Department respectfully requests the City Council to adopt the Personnel Board’s finding that Appellant Preston is guilty of disrespect for and/or unwarranted suspicion of authority. Charge Number Five states: Throughout your employment, you have exhibited a disrespect for and/or an unwarranted suspicion of authority that prevents you from learning from your mistakes or improving your ability to make appropriate judgment calls. (Exhibit 20, Notice of Intent to Terminate, April 22, 1994, at p. five.) The Personnel Board’s finding that Appellant Preston was guilty of this charge, is fully supported by a preponderance of the record evidence. Appellant Preston admitted that he did not view the commentary, goals and objectives that all of his superior officers, including Lieutenant Fried and Sergeant Byler, had provided on his several performance evaluations as any effort to help him succeed. (PF 26,27.) Even when the Department commended his work performance, Appellant Preston doubted the sincerity of the Department’s motives. (PF 28.) Appellant Preston admitted to the Chief of Police that he had difficulty dealing with who the supervisor is and who the officer is, and that he would only adhere to his supervisors’ directions when he believed that they were “right.” (PF 29.) Whibnwe, Johnson & Bdanas 2570 W. El Camino Real, Suite 600 Mountain View, California 94C40 DEPARTMENl-S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON -14- 178krm.005 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moreover, several members of the Department’s command staff confirmed that Appellant Preston had an unwarranted suspicion of any superior officer who criticized his work performance. (PF 30.) The Department submits that the Personnel Board properly found that Appellant Preston was guilty of Charge Number Five, and respectfully requests the City Council to adopt this finding as its own. (PF 26-34.) V. TERMINATION IS THE ONLY APPROPRIATE REMEDY The Personnel Board recommended that Appellant Preston be suspended for thirty days on the grounds that Charge Number Five, the sole charge it upheld, was not sufficient to support the penalty of termination. The Department respectfully submits that even if the City Council does not find that Charge Numbers One through Four are fully supported by the preponderance of the evidence and Appellant’s own admissions, termination is still an appropriate penalty for the misconduct described in Charge Number Five alone. It is a well-established principle of labor law that the determination of the penalty for employee misconduct is properly a function of management which should not be second-guessed. (Elkouri & Elkouri, How Arbitration Works, 4th ed, BNA 1984, pp. 664-67.) Arbitrators, reviewing bodies, and superior courts will not disturb management’s decision as to the appropriate level of discipline unless the punishment would shock the sense of justice of reasonable persons. (Frueharf Trailer Companv (1951) 16 Labor Arbitration Reporter 666, 670.) If reasonable minds simply differ as to the appropriate punishment, then the penalty selected should not be disturbed. (Schmitt v. Citv of Rialto (1985) 164 Cal.App.3d 494, 210 Cal.Rptr. 788.) “The mere fact that management has imposed a somewhat different penalty or a somewhat more severe penalty than the arbitrator would have, if he had the decision to make originally, is no justification for changing it.” (Stockham Pipe Fittinqs Company (1945) 1 Labor Arbitration Reporter 160, 162.) Whitmore, J- 81 Bdams 2570 W. El Camino Real, Suite 6CCI Mountain View. California 94040 1711klm.cul5 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON -15- h h 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Department submits that even if the City Council does not find Appellant Preston guilty of Charge Numbers One through Four, Charge Number Five, standing alone, supports termination for two fundamental reasons. First, it is the most egregious of the charges filed against Appellant Preston and the most deleterious to the effective functioning of the Police Department. Police Chief Vales testified before the Personnel Board that Appellant Preston’s consistent questioning of Department authority had completely eroded his trust in Appellant Preston’s ability to effectively function as a police officer: .we are charged with a great deal of responsibility and power and authority as municipal police officers. We take people’s freedom away. We have the power of life and death. We send these officers out there with big cars and guns. And the bottom line is that there is little supervision among officers. . . You have to have officers that you can trust and that have good judgment and that listen to their supervisors and obey the mandates of the supervisors and management. (464: 13-465:5.). . . This whole case centers around trust and judgment . . . And it has come to a point where I cannot trust him to be a police officer in the City of Carlsbad. And once that trust is lost, I have no other choice but to do -- to get us to this point basically and do what we did. If you can’t trust a police officer out there on the street doing what they have to do, they can’t work for you. (467: 13-21.) Second, Charge Number Five alone is sufficient to support termination, because it establishes that Appellant Preston is either unwilling or unable to cure his deficiencies. Chief Vales testified before the Personnel Board that Appellant Preston’s deeply ingrained disrespect for his supervisors has effectively prevented him from accepting his shortcomings and from improving his work performance. Well, it is a pattern of conduct that’s pretty much consistent throughout [Appellant Preston’s] career with the Carlsbad Police Department; wherein he constantly questioned the direction of his supervisors and pretty much every supervisor I have talked to; wherein he clearly didn’t listen; wherein he was counselled consistently . . . and chose not to listen . . . because he continued to go his own way, and simply not listen to his supervisors and not understand that they were there to try to help him. And it was a pattern of that consistent behavior that came back time and time again, in spite of every effort we could make Whiimm, Jdmson & Bo1snc.s 17skrm.005 2.W W. El Camino Real, Suite 6M) Mountain View, California 94040 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON -16- . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P ‘I to change that behavior. (463:18-464:lO.) . . . He does not accept the responsibility. He has made what I would say [are] half-hearted attempts to accept some of the responsibility, but it is usually hedged with I don’t understand why so-and-so doesn’t like me, I don’t understand why they are doing this to me; I am trying, I am trying, I am trying. And he can’t seem to get over that hurdle. (466:8-l 8.) Appellant Preston’s refusal to accept responsibility for improvement and his disrespect for authority as stated in Charge Number Five provides a sufficient basis, standing alone, to uphold Chief Vales’ decision to terminate. Chief Vales no longer has any faith in Appellant Preston’s judgment. Appellant Preston’s constant questioning of authority also threatens the effective functioning of the Department; this paramilitary organization requires that all officers accept their commanding officers’ orders and directions without question. (PF 32.) Perhaps most important, the Personnel Board’s finding that Appellant Preston is guilty of Charge Number Five, supports termination because it confirms that Appellant Preston cannot effectively function as a police officer. His disrespect for authority precludes him from listening to his supervisors and accepting responsibility for his shortcomings. The Department submits that once the Personnel Board found Appellant Preston guilty of Charge Number Five, it had no basis to second-guess Chief Vales’ assessment of the appropriate disciplinary penalty. It is entirely legitimate for Chief Vales to expect that his officers will respect their supervisors’ authority, and that they will follow appropriate direction. Termination is the only remedy when, as here, a police officer is either unable or unwilling to correct his deficiencies, and disrespects legitimate authority. The Department respectfully requests the City Council to uphold Chief Vales’ decision to terminate because it is an appropriate penalty even if based upon Charge Number Five alone. // II Whilmm, Johnson & Bolanm 2.570 W. El Camino Real, Suite 600 Mountain View, California 94040 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON 178krm.oos -17- h . . m 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONCLUSION The Department submits that Appellant Preston is guilty of Charge Numbers One through Four because his admissions and the preponderance of the evidence support the underlying misconduct. Even if the City Council were to find that Appellant Preston is guilty of Charge Number Five alone, termination is still appropriate because that charge establishes that Appellant Preston is unable to remediate his performance and cannot be trusted to function as a police officer. Dated: Respectfully submitted, WHITMORE, JOHNSON & BOLANOS By: oti! YNTHIA J. O’NEILL Attorneys for the City of Carlsbad Police Department Whitmare, Johnson & Bolanc6 2570 W. El Camino Real, Suite 600 Mountain View. Califomia 94@40 178krm.005 DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON -18- . PROOF OF SERVICE BY FEDERAL EXPRESS Case: IN RE DISCIPLINARY APPEAL OF PATRICK PRESTON STATE OF CALIFORNIA, COUNTY OF SANTA CLARA I am employed in the County of Santa Clara, State of California. I am over the age of eighteen years and not a party to the within action. My business address is 2570 W. El Camino Real, Suite 600 Mountain View, California 94040. On February 3, 1995, I served the foregoing document(s) described as: (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD REGARDING THE MATTER OF THE DISCIPLINE OF PATRICK PRESTON; and DEPARTMENTS BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON. on interested party(ies) in this action by placing a true copy thereof enclosed in a sealed envelope as follows: Robert Krause Castle & Krause 41877 Enterprise Circle North, Suite 140 Temecula, CA 92590 STATE WI BY FEDERAL EXPRESS OVERNIGHT DELIVERY WI I sealed and placed such envelope for collection and mailing, knowing that on that same date the correspondence would be deposited with Federal Express at Mountain View, California, following ordinary business practices with which I am readily familiar. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed this 3rd day of February, 1995, at Mountain View, California. . . d 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARD S. WHITMORE, State Bar No. 041183 CYNTHIA J. O'NEILL, State Bar No. 132334 WHITMORE, JOHNSON & BOLANOS 2570 W. El Camino Real, Suite 600 Mountain View, California 94040 Telephone: (415) 941-9333 Attorneys for the City of Carlsbad Police Department BEFORE THE CITY COUNCIL OF THE CITY OF CARLSBAD IN RE DISCIPLINARY APPEAL OF: PATRICK PRESTON i ) ; ; ; ) (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD REGARDING THE MATTER OF THE DISCIPLINE OF PATRICK PRESTON Date: March 1, 1995 Time: 6:00 p.m. Place: City Council Chambers 1 I. THE DECISION TO TERMINATE Police Chief Robert Vales issued a written "Notice of Intent to Terminate", dated April 22, 1994, to former Police Officer Patrick Preston ("Appellant Preston") that contained the following charges of misconduct: 1) conducting an unauthorized investigation of a superior officer on March 13, 1994; 2) surreptitiously tape recording citizen Connie Young on March 13, 1994 during an unauthorized investigation, and surreptitiously tape recording a superior officer on at least one occasion; 3) attempting to bribe a superior officer on or about March 16, 1994 to change a below- standard performance evaluation; 4) abandoning his assigned beat on Whitmore,Jobnson&Balmas (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF 178klldO4 2570 W. El Camim Real, Suite 600 Mountain View, Califwnia 94040 CARLSBAD REGARDING THE MATTER OF THE DISCIPLINE OF PATRICK PRESTON -l- 4 . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 December 20, 1993 and leaving the City limits without requesting permission and/or notifying dispatch of his whereabouts; and 5) exhibiting a disrespect for and/or an unwarranted suspicion of authority that prevented him from learning from his mistakes or improving his ability to make appropriate judgment calls. (Exhibit 201, Notice of Intent to Terminate, dated April 22, 1994.) Appellant Preston timely appealed the Police Department's ("Department's") decision to terminate his employment to the City of Carlsbad Personnel Board. II. right to have his disciplinary appeal heard pursuant to Government Code section 54957. declined, so the Personnel Board proceeded (233:8-11.)' THE PROCEEDINGS BEFORE THE PERSONNEL BOARD The Personnel Board timely notified Appellant Preston of his in a open session Appellant Preston in closed session. The Personnel Board conducted closed hearings on the evenings of October 19 and 20, 1994, and during business hours on November 22, 23, 30 and December 1, 1994. Robert Krause, Castle and Krause, represented Appellant Preston. Cynthia O'Neill, Whitmore, Johnson & Bolanos, represented the Police Department (llDepartmentl') . Certified Shorthand Reporter Carol S. Donnelly, CSR No. 1469, recorded a verbatim account of the hearings. // ’ The exhibits referenced here are those that were introduced and admitted into evidence during Appellant Preston’s evidentiary hearing before the City of Carlsbad Personnel Board. 2 These numbers refer to the particular page(s) and line(s) of the six volumes of transcripts of the hearings before the City of Carlsbad Personnel Board that support(s) the preceding statement. whitmare, Johnson .4 Bolanos (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF 178kIDL004 2570 W. El Camim Real, Suite 600 Mountain Vkw, Califwnia 94040 CARLSBAD REGARDING THE MAlTER OF THE DISCIPLINE OF PATRICK PRESTON -2- -. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Personnel Board Resolution No. 19, Appellant Preston called witnesses in his defense, submitted evidence, rebutted the Department's evidence, and cross-examined the Department's witnesses while they were under oath. After considering the oral and documentary evidence, and the arguments from the legal counsel, the Personnel Board deliberated and issued Resolution No. 21 -- "A Resolution of the Personnel Board of the City of Carlsbad, California Announcing Action on the Appeal of Police Officer Patrick Preston" on December 6, 1994. Personnel Board Resolution No. 21 states the following three findings: 1) that there was insufficient evidence to support Charge Numbers One through Four; 2) that Appellant Preston had displayed disrespect for and/or unwarranted suspicion of authority as set forth in Charge Number Five; and 3) that imposing the penalty of termination based solely upon Charge Number Five was disproportionate to that misconduct. Personnel Board Resolution No. 21 recommends the City Council take the following actions: 1) overrule the Notice of Termination dated May 20, 1994; 2) change the disciplinary penalty to a 30-day suspension; 3) reinstate Appellant Preston with back pay from July 27, 1994; and 4) require Appellant Preston to attend counselling/training in order to resolve issues of disrespect and suspicion of authority. III. THE CITY COUNCIL'S DECISION-MAKING PROCESS The only procedural rule applicable to the conduct of this disciplinary appeal is the expired memorandum of understanding between the City and the Carlsbad Police Officers' Association, at Whitmore, Johnson & Bolanos 2570 W. El Camino Real, Suite 6OLl Mountain View, California 94040 (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD REGARDING THE MATTER OF THE DISCIPLINE OF PATRICK PRESTON 178krm.004 -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Article 22.9. (Exhibit 16.) That Article specifies only that II [tlhe City Council shall review the findings and recommendations of the Personnel Board and may then affirm, revoke or modify the action taken as, on its judgment, seems warranted, and the action taken shall be final." (Exhibit 16.) In order to ensure that Appellant Preston received his rights to substantive and procedural due process, the City Attorney notified legal counsel for the Department and for Appellant Preston, in a letter dated January 16, 1995, how the City Council would proceed. Neither the Department nor Appellant Preston objected, so the City Council proceeded in the following manner: 1) the Department submitted a written brief and its Proposed Findings and Decision of the City Council, complete with references to the record in support thereof, to the City Clerk and to Appellant Preston by February 3, 1995; 2) Appellant Preston submitted a written brief opposing the Department's brief to the City Clerk and to the Department on or about February 22, 1995; 3) the City Council received by February 24, 1995, the record of the proceedings, consisting of: written briefs from the Department and from Appellant Preston, the transcripts of the proceedings dated October 19 and 20, 1994, November 22, 23, 30, 1994 and December 1, 1994, and all evidence submitted to the Personnel Board, whether admitted or rejected, which consisted of Appellant's Exhibits A through BBB and of Department's Exhibits 1 through 24; 4) the City Council heard oral arguments from legal counsel for both parties on March 1, 1995; and finally 5) the City Council reviewed the record of the proceedings, the written briefs, and considered the oral arguments of legal WhiImore, Johnson & Bdmm 2570 W. El Camino Real, Suite 600 Mountain View, California 94040 (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD REGARDING THE MATTER OF THE DISCIPLINE OF PATRICK PRESTON 17.skrm.004 -4- w’ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 counsel for the Department and for Appellant Preston, and issued the findings and decision stated herein. IV. THE FINDINGS OF THE CITY COUNCIL After reviewing the record of the proceedings, and considering the written and oral arguments of legal counsel for the Department and Appellant Preston, the City Council makes the following findings: A. Charqe Number One: On March 13, 1994, you attempted to discredit your superior officer by conducting an unauthorized investigation into Sergeant Byler's actions of approximately ten months ago in returning a lost dog. You were subsequently untruthful regarding your motive for conducting the investigation. (Exhibit 20, Notice of Intent to Terminate, April 22, 1994, at page one.) 1. Appellant Preston admitted he decided to initiate an unauthorized investigation on March 13, 1994 based upon a rumor that he heard that Sergeant Byler had kept a lost poodle at his home for a few days before he located and returned it to its owner. The evidence in support of this finding is: 171:20-172:13; 886:21- 24; 946:15-21; 946:25-947:3; 947:20-22; Exhibits 1, 3, 20. 2. Appellant Preston admitted he was aware when he conducted the unauthorized investigation on March 13, 1994 that Sergeant Byler had already returned the lost dog to its owner approximately ten months earlier. The evidence that supports this finding is: 170:10-17; 947:13-19; 949:23-25; 950:16-951:l; Exhibits 1, 3, 20. 3. Appellant Preston admitted he did not receive permission from any superior officer prior to conducting his own investigation into Sergeant Byler's return of a lost poodle. The evidence that Whitmore, Johnson & Bolmas 2570 W. El Camino Real. Sute 6CKl Mountain View, California 94040 (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD REGARDING THE MAlTER OF THE DISCIPLINE OF PATRICK PRESTON 178kl7dlO4 -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 supports this finding is: 945:10-946:14, 946:22-24; 949:1-3; 950:3-8; 886:21-887:7; 455:14-17; 456:1-11; Exhibits 1, 3, 20. 4. Appellant Preston admits that he disagreed with the majority of the comments on the below-standard performance evaluation that Sergeant Byler gave him on or about March 9, 1994. The evidence that supports this finding is: 958:16-960:22. 5. Appellant Preston admits that he initiated the unauthorized investigation into Sergeant Byler's return of the lost poodle on March 13, 1994, which was Appellant Preston's first duty day after Sergeant Byler gave him a below-standard performance evaluation. The evidence that supports this finding is: 948:5-25; 882:23-884:16; Exhibits 1, 3, 20. 6. Appellant Preston admits his decision to conduct the investigation was inconsistent with the Department's established complaint procedure. The evidence that supports this finding is: 886:21-887:13. 7. There is no evidence in the record that indicates that any other officer: 1) suspected any impropriety regarding Sergeant Byler's return of the lost poodle; or 2) believed that any entity other than the Department administration had any duty or right to investigate. The evidence that supports this finding is: 642:12- 643:7; 705:13-706:13; 759:8-760:7; 782:9-20; 814:19-815:12. 8. Appellant Preston stated that he undertook the unauthorized investigation because he felt he had an obligation to the Department to look into the matter and corroborate whether Sergeant Byler had acted appropriately in returning the lost poodle to its owner. The evidence that supports this finding is: 947:4- 9; 882:13-22; Exhibits 1, 3. Whltmore, Johnson & Bdamx 2570 W. El Camino Real, Suite 600 Mountain View. California 54C40 (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF 17llkrm.ocw CARLSBAD REGARDING THE MA-ITER OF THE DISCIPLINE OF PATRICK PRESTON -6- - - . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. Appellant Preston had access to a copy of the Department's Rules and Regulations, section 1.34 -- "Investigations", which prohibits members of the Department from conducting any investigation or other official action not part of their regular duties, without first obtaining permission from their supervisor, unless the situation requires immediate police action. The evidence that supports this finding is: 940:14-942:22; 455:18- 456:11; 162:12-25; 172:14-24; Exhibit 11. 10. Appellant Preston undertook the unauthorized investigation into Sergeant Byler's conduct in returning the lost dog in an attempt to discredit Sergeant Byler, and he was therefore untruthful when he stated that he was motivated solely by an internal obligation to corroborate. The evidence that supports this finding is: 457:8-19; 483:9-487:ll; 170:18-171:17; 173:15-22; 200:19-23; 218:8-219:12; Exhibit 20. B. Charge Number Two: On March 13, 1994, you tape recorded Ms. Connie Young during an unauthorized investigation and without her knowledge or authorization. On at least one occasion during the past year you have tape recorded Sergeant Byler without his knowledge or authorization. (Exhibit 20, Notice of Intent to Terminate, April 22, 1994, at page 3.) 11. Appellant Preston admitted that he tape recorded Carlsbad resident Connie Young during an unauthorized investigation on March 13, 1994 without her knowledge or consent. The evidence that supports this finding is: 888:18-24; 892:17-22; Exhibits 1, 3, 4, 20. 12. Appellant Preston's March 13, 1994 investigation was not an authorized criminal investigation. The evidence that supports Whitmore, Johmw & Bolams (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF 178kml.004 2570 W. El Camino Real, Suite 600 Mountain View, Cahfornia 94040 CARLSBAD REGARDING THE MA-ITER OF THE DISCIPLINE OF PATRICK PRESTON -7- - - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this finding is : 945:10-18 950:16-951:l; 458:6-23; Exhibits 1, 3, 20. 13. Appellant Preston admitted that he tape recorded two private conversations with Sergeant Byler and one private conversation with Sergeant Edwards. Both Sergeants believed and expected that their conversations regarding Appellant Preston's work performance would remain private. The evidence that supports this finding is: 65:1-66:15; 283:25-284:13; 929:11-930:6; 951:8- 956:3; 966:7-23; 966:24-967:7; 277:16-23; 457:24-458:5; 66:8-15; Exhibits 19; TT; ZZ. 14. The Department did not pursue any criminal prosecution against Appellant Preston for violation of any state or federal law regarding surreptitious tape recording, and the Department has no intention of doing so. The evidence that supports this finding is: 459:3-46O:ll; Exhibit 20. 15. The Department found that Appellant Preston's conduct in secretly tape recording his superior officers and a citizen during an unauthorized investigation was conduct unbecoming a police officer because he violated the spirit of state and federal laws that prohibit surreptitious tape recordings and/or that he gave the appearance that he did not respect those laws. The evidence supporting this finding is: 459:3-46O:ll; 467 Exhibit 20. C. Charge Number Three: :25-469:7; 489 :4-12; "On March 15 [corrected to be March 16 by stipulation of the parties (1095:22-1096:6)1, 1994, during a discussion with Sergeant Byler regarding the below-standard performance evaluation rating he issued to you on March 9, you told Sergeant Byler that you had a tape recording of him making a derogatory racial Whltmore, Johnson & Bolanos 2570 W. El Camino Real, Suite 600 Mountain View. California 94C40 (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD REGARDING THE MAlTER OF THE DISCIPLINE OF PATRICK PRESTON 178klldiO4 -8- - , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - reference about a Carlsbad resident. Your comments to Sergeant Byler appeared to be an attempt to influence him to alter the rating on your most recent performance evaluation. (Exhibit 20, Notice of Intent to Terminate, April 22, 1994, at page three.) 16. Appellant Preston admits that he approached Sergeant Byler in private on or about March 16, 1994 to discuss the below- standard performance evaluation that Sergeant Byler drafted. The evidence that supports this finding is: 961:19-21; 985:22-986:2; 879:16-880:5; 998:11-20; 272:1-24; 276:7-277:12; 498:3-18; Exhibits LL at p. 6, ZZ. 17. Appellant Preston admits that it was during his private discussion with Sergeant Byler on or about March 16, 1994 regarding Appellant Preston's below-standard performance evaluation that he first disclosed that he had secretly tape recorded a private counseling session one year earlier during which Sergeant Byler had used the term "psycho black bitch." The evidence that supports this finding is: 961:19-962:7; 962:24-964:5: 905:1-4; 280:25- 285:22; 498:3-18; Exhibits LL, TT, ZZ. 18. Sergeant Byler believed that Appellant Preston was threatening to disclose Sergeant Byler's tape recorded comment unless Sergeant Byler changed Appellant Preston's below-standard performance evaluation. The evidence that supports this finding is: 962:4-23; 982:17-983:16; 388:5-13; 460:12-461:23; 499:16-21; 500:16-21; Exhibits LL at p. 5-6, ZZ. 19. The Department viewed the appearance that Appellant Preston gave of attempting to bribe Sergeant Byler as seriously as it would have viewed an actual bribe. The evidence that supports this finding is: 461:21-23. Whitmore, Johnson & Balanos (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF 178Lrm.004 2570 W. El Camino Real, Suite 600 Mountain View, California 94040 CARLSBAD REGARDING THE MATTER OF THE DISCIPLINE OF PATRICK PRESTON -9- . . 4 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Charqe Number Four: You were insubordinate and/or demonstrated extremely poor judgment on December 20, 1993 when you left your beat and the Carlsbad City limits without notifying dispatch or asking permission from a supervisor. (Exhibit 20, Notice of Intent to Terminate, April 22, 1994, at page four.) 20. Appellant Preston admitted that he did not ask permission from any supervisor prior to leaving the his beat and the City limits on December 20, 1993. The evidence that supports this finding is: 937:12-25; 254:2-24; 257:19-258:9; Exhibits 6, 7, 8, 9, 10. 21. Appellant Preston admitted that he did not inform dispatch of his intention to leave his beat and the City limits on December 20, 1993 at any time prior to doing so. The evidence that supports this finding is: 938:6-11; 462:3-5; Exhibits 6, 7, 8, 9, 10. 22. Appellant Preston admitted that he did not hear the Carlsbad officers at the scene of an incident in Oceanside on December 20, 1993 request any Carlsbad units to back them up. The evidence that supports this finding is: 936:5-20; 991:14-20; 579:18-20; Exhibits 7, 9, 10. 23. Appellant Preston unilaterally decided to leave his beat and the City limits on December 20, 1993 because he believed that a police response to an incident in Oceanside sounded "fucked up." The evidence that supports this finding is: 936:21-937:2; Exhibit 9. 24. Appellant Preston admitted that prior to December 20, 1993, Sergeant Sisselberger, Sergeant Byler, and Lieutenant Fried all counselled him to stay on his beat. The evidence that supports Whitmore, Johnson & Bolanos (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF 178b.004 2.570 W. El Camino Real, Suite 603 Mountain View, California 94040 CARLSBAD REGARDING THE MAlTER OF THE DISCIPLINE OF PATRICK PRESTON -lO- F . . 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this finding is: 938:12-17; 258:10-20; 462:13-20; Exhibits 7, 9, 10, 15, 19. 25. Appellant Preston, Officer Wick, and Officer Williams were aware of the standard operating procedure that a patrol officer must notify dispatch before leaving the City limits. The evidence that supports this finding is: 911:16-24; 258:21-259:8; 578:1-13; 585:9-12; 615:18-20; 102:2-15. E. Charge Number Five: Throughout your employment, you have exhibited a disrespect for and/or an unwarranted suspicion of authority that prevents you from learning from your mistakes or improving your ability to make appropriate judgment calls. (Exhibit 20, Notice of Intent to Terminate, April 22, 1994, at page 5.) 26. Appellant Preston admitted that he did not view the commentary, goals and objectives that his superior officers provided on his performance evaluations as any effort to help him succeed. The evidence that supports this finding is: 967:12- 969:2; Exhibit 19. 27. Appellant Preston stated that he does not believe that Lieutenant Fried and Sergeant Byler made any effort to help him succeed as a police officer. The evidence that supports this finding is: 967:12-15; Exhibits 19; LL; JJ. 28. Appellant Preston did not believe that the motives of the Department's command staff were genuine when it commended his work performance. The evidence that supports this finding is: 969:3- 971:14; Exhibit JJ. 29. Appellant Preston admitted that he has difficulty dealing with who the supervisor is and who the officer i,s, and will adhere to his supervisors' directions only when he believes they are Whitmore, Johnson & Bolpoo~ 2570 W. El Camim Real, Suite 600 Mountain View, California 94Wl (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD REGARDING THE MATTER OF THE DISCIPLINE OF PATRICK PRESTON 178kl7lLoo4 -ll- . . 1 2 3 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 f- - llright.II The evidence that supports this finding is: 971:15- 975:2; 1005:5-1006:8; 502:11-13; Exhibits 19, 20, JJ. 30. Appellant Preston disrespects and has an unwarranted suspicion of any superior officer who criticizes his work performance. The evidence that supports this finding is: 105:22- 2; 940:7-13; 270:19-271:25; 367:5-14; 375:25-376:19; 378:9-13; 411:4-11; 411:17-412:6; 450:11-13; 451:6-17; 463:11-464:lO; 465:6- 12; 516:20-23; Exhibit 13, 15, 19, 20, JJ, LL. 31. Appellant Preston's failure to respect his superiors' advice effectively prevents him from accepting responsibility for his shortcomings and from improving his work performance. The evidence that supports this finding is: 287:1-8; 352:1-23; 361:25- 362:6; 365:6-21; 378:14-379:lO; 410:2-411:ll; 427:10-16; 449:23- 450:24; 466:6-18; 532:7-20; 538:15-19; Exhibits 15, 20, JJ, LL. 32. In order for the Department to function effectively, all officers must accept their commanding officer's orders and directions without question. The evidence that supports this finding is: 464:11-465:5; 467:13-21; Exhibits 17, 20. 33. The Department undertook every effort to assist Appellant Preston to succeed. The evidence that supports this finding is: 243:8-244:3; 248:13-19; 248:20-251:2; 252:22-253:12; 260:2-20; 262:1-263:l; 279:14-20; 331:11-22; 370:10-22; 398:3-g; 404:14- 405:4; 408 :l-11; 426:23-427:9; 430:5-431:5; 448:12-449:6; 451:18- 452:15; 452:16-453:24; 464:7-10; 465:13-466:2; 467:4-21; 508:4-18; 536:19-537:3; 62:15-63:12; 103:4-11; 107:11-16; 211:7-213:lO; 214:4-18; 228:9-20; Exhibits 6, 13, 14, 15, 17, 19, 20. 34. The City Council finds and adopts as its own, the finding of the Personnel Board in its Resolution No. 21 at pages: 1:25- Whltmore, Johnson & Bolmm 2570 W. El Camica Real, Suite 600 Mountam View, California 94040 (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD REGARDING THE MATTER OF THE DISCIPLINE OF PATRICK PRESTON 178krm.004 -12- . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2:3, that Appellant Preston is guilty of a failure to exercise good judgment, conduct unbecoming an officer and discourtesy in violation of Department Rules and Regulations Sections 1.06 and 1.26 by displaying disrespect for and/or unwarranted suspicion of authority as set forth in Charge Number Five of the Notice of Intent to Terminate, dated April 22, 1994. V. THE DECISION OF THE CITY COUNCIL The City Council decides that: 1. That the preponderance of evidence in the record supports the conclusion that Appellant Preston is guilty of Charge Number One as stated in Exhibit 20, the Notice of Intent to Terminate, dated April 22, 1994, and that this misconduct indicates: his failure to exercise good judgment; and violations of Police Department Rules and Regulations Sections 1.02 Obedience to Rules, 1.40 Truthfulness, and 1.34 Investigations. 2. The preponderance of evidence in the record supports the conclusion that Appellant Preston is guilty of Charge Number Two as stated in Exhibit 20, the Notice of Intent to Terminate, dated April 22, 1994, and that this misconduct indicates: his failure to exercise good judgment; and a violation of Police Department Rules and Regulations Section 1.06 Unbecoming Conduct. 3. The preponderance of evidence in the record supports the conclusion that Appellant Preston is guilty of Charge Number Three as stated in Exhibit 20, the Notice of Intent to Terminate, dated April 22, 1994, and that this misconduct indicates: his failure to exercise good judgment; and a violation of Police Department Rules and Regulations Section 1.06 Unbecoming Conduct. Whilmore, Johnsan & Bdnnos (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF 178klUL004 2570 W. El Camim Real, Suite 600 Mountain View. California 94C40 CARLSBAD REGARDING THE MAlTER OF THE DISCIPLINE OF PATRICK PRESTON -13- . * . c 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 .- 4. The preponderance of ev idence in the record supports the conclusion that Appellant Preston is guilty of Charge Number Four as stated in Exhibit 20, the Notice of Intent to Terminate, dated April 22, 1994, and that this misconduct indicates: his failure to exercise good judgment; and a violation of Police Department Rules and Regulations Section 1.06 Unbecoming Conduct, Section 1.16 Performance of Duty, and Section 1.02 Obedience to Rules. 5. The preponderance of evidence in the record supports the conclusion that Appellant Preston is guilty of Charge Number Five as stated in Exhibit 20, the Notice of Intent to Terminate, dated April 22, 1994, and that this misconduct indicates: a failure to exercise good judgment; and violations of Police Department Rules and Regulations Sections 1.06 Conduct Unbecoming, and 1.26 Courtesy. 6. The Police Department followed all applicable rules and regulations in carrying out the decision to terminate Appellant Preston, and Appellant Preston received a fair hearing. 7. There was just cause to terminate Appellant Preston from his employment as a police officer for the City of Carlsbad based upon Appellant Preston's admissions, the other record evidence, and the Personnel Board's finding that Appellant Preston was guilty of the highly egregious misconduct stated in Charge Number Five. 8. That the Chief of Police and the City Manager acted within their discretion, and lawfully and properly exercised that discretion, when they decided that terminating Appellant Preston was the appropriate penalty. // // WhItmore, Johmon & Bolanos (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF 178kmUlO4 2570 W. El Camino Real, Suite KHI Mwntain View, Cahfornia 94040 CARLSBAD REGARDING THE MATTER OF THE DISCIPLINE OF PATRICK PRESTON -14- m * . . f 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The City Council hereby notifies Appellant Preston that the time period during which he may seek judicial review is governed by the provisions of Code of Civil Procedure section 1094.6. The decision of the City Council is as follows: AYES ; NOES Dated: This day of March 1995, at Carlsbad, California. FOR CITY OF CARLSBAD: Claude Lewis Mayor Ramona Finnila Councilmember Matt Hall Councilmember Ann Kulchin Councilmember Julianne Nygaard Councilmember Whitmore, Johnson & Bolanas 2570 W. El Camino Red, Suite 600 Mountain View. California 94040 (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF 178kl7lL004 CARLSBAD REGARDING THE MAll-ER OF THE DISCIPLINE OF PATRICK PRESTON -15- PROOF OF SERVICE BY FEDERAL EXPRESS Case: IN RE DISCIPLINARY APPEAL OF PATRICK PRESTON STATE OF CALIFORNIA, COUNTY OF SANTA CLARA I am employed in the County of Santa Clara, State of California. I am over the age of eighteen years and not a party to the within action. My business address is 2570 W. El Camino Real, Suite 600 Mountain View, California 94040. On February 3, 1995, I served the foregoing document(s) described as: (PROPOSED) FINDINGS AND DECISION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD REGARDING THE MATTER OF THE DISCIPLINE OF PATRICK PRESTON; and DEPARTMENT’S BRIEF IN SUPPORT OF TERMINATION OF PATRICK PRESTON. on interested party(ies) in this action by placing a true copy thereof enclosed in a sealed envelope as follows: Robert Krause Castle & Krause 41877 Enterprise Circle North, Suite 140 Temecula, CA 92590 STATE WI BY FEDERAL EXPRESS OVERNIGHT DELIVERY WI I sealed and placed such envelope for collection and mailing, knowing that on that same date the correspondence would be deposited with Federal Express at Mountain View, California, following ordinary business practices with which I am readily familiar. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed this 3rd day of February, 1995, at Mountain View, California. f$~~/i ?A&.&.&! Kristin R. Munroe P 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT W. KRAUSE California State Bar No. 114379 LAW OFFICES OF CASTLE & KRAUSE Suite 140 41877 Enterprise Circle North Temecula, CA 92590 (909) 694-8884 ‘BEFORE THE CITY COUNCIL OF THE CITY OF CARLSBAD IN RE DISCIPLINARY APPEAL OF: PATRICK PRESTON APPELLANT’S BRIEF IN SUPPORT OF ADOPTION OF THE PERSONNEL BOARD’S DECISION Date: March 1, 1995 Time: 6:00 p.m. Place: City Council Chambers 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. 2. 3. 4. 5. Constancio v. State Personnel Board (1986) 179 Cal.App. 3d 980, 225 Cal.Rptr. 133 . . . . . . . . . . . . . . . . . 21 6. Countv of Santa Clara v. Willis (1986) 179 Cal.App. 3d 1240, 225 Cal.Rptr. 244 . . . . . . . . . . . . . . . . . 9 7. Ettinger v. Board of Medical Oualitv Assurance (1982) 135 Cal.App. 3d 853, 185 Cal.Rptr. 601 . . . . . . . . . . . . . . . . . 14 8. 9. Johnstone v. Citv of Dalv City 10. 11. 12. 13. 14. TABLE OF CASES Allen v. Denartment of Personnel Administration (1987) 193 Cal.App. 3d 355, 238 Cal.Rptr. 317. . . . . . . . . . . . . . . . . . 10 Bixbv v. Pier-no (1971) 4 Cal. 3d 130, 93 Cal.Rptr. 234 . . . . . . . . . . . . 10 Carpenter v. Civil Service Commission (Liddi) (1985) 173 Cal.App. 3d 446, 220 Cal.Rptr. 407 . . . . . . . . . . . . . . . . . . 9 Chamberlain v. Ventura Countv Civil Service Commission (1977) 69 Cal.App. 3d 362, 138 Cal.Rptr. 155 . . . . . . . . . . . . . . . . . . 10 International Brands v . Unemnlovment Insurance Anneal Board (1980) 26 Cal. 3d 770, 163 Cal.Rptr. 619 . . . . . . . . . . . . . . . . . . . . . . 9 (1958) 156 Cal.App. 2d 506 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Lavton v. Merit System of the Citv of Pomona (1976) 60 Cal.App. 3d 58, 131 Cal.Rptr. 318 . . . . . . . . . . . . . . . . . . . 14 Lowe v. Civil Service Commission (Lee) (1985) 164 Cal.App. 3d 667, 210 Cal.Rptr. 673 . . . . . . . . . . . . . . . . . . 9 Martinez v. Countv of Tulare (1987) 190 Cal.App. 3d 1430 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Nightingale v. State Personnel Board (1972) 7 Cal.App. 3d 507, 102 Cal.Rptr. 758 . . . . . . . . . . . . . . . . . . . 10 Parker v. Fountain Valley (1981) 127 Cal.App. 3d 99, 179 Cal.Rptr. 351 . . . . . . . . . . . . . . . . . . 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15. Pipkin v. Board of Supervisors (1978) 82 Cal.App. 3d 652, 661, 147 Cal.Rptr. 502, 505 . . . . . . . 16. Wheeler v. State Board of Fores&v (1983) 144 Cal.App. 3d 522, 192 Cal.Rptr. 693 . . . . . . . . . . . . . . . . . 25 . . . . 21 1. 1. 2. TABLE OF TREATISE CITATIONS Elkouri and Elkouri How Arbitration Works, Fourth Edition, BNA 1984 . . . . . . . . . . . . . . . . . . 12, 13, 15, 16, 24, 25 TABLE OF STATUTES California Code of Civil Procedure 1094.5 . . . . . . . . . . . . . . . . . . . 9, 25 Penal Code 187 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS GENERAL STATEMENT OF POSITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. STATEMENT OF FACTS (Appellant’s response) . . . . . . . . . . . . . . . 4 II. STANDARD OF REVIEW (Appellant’s response) . . . . . . . . . . . . . . 7 III. APPELLANT PRESTON HAS ADMITTED THE CONDUCT UNDERLYING CHARGE I THROUGH IV (Appellant’s response) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 A. Charge I: Appellant Preston Admitted He Conducted an Unauthorized Investigation Into a Superior Officer’s Conduct on March 13, 1994. (Appellant’s response) . . . . . . . . . . . . . 12 B. Charge II: Appellant Preston Admitted He Surreptitiously Tape Recorded a Citizen and Two Superior Officers Without Their Knowledge or Consent. (Appellant’s response) . . . . . . 14 C. Charge III: Appellant Preston Admitted the Conduct that Gave Rise to the Appearance of Bribing a Superior Officer (Appellant’s response) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 D. Charge IV: Appellant Preston Admitted Abandoning His Assigned Beat on December 20, 1993. (Appellant’s response) 20 IV. THE PERSONNEL BOARD FOUND APPELLANT PRESTON GUILTY OF CHARGE V - DISRESPECT FOR AND/OR UNWARRANTED SUSPICION OF AUTHORITY. (Appellant’s response) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 V. TERMINATION IS THE ONLY APPROPRIATE PENALTY (Appellant’s response) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 ROBERT W. KRAUSE California State Bar No. 114379 LAW OFFICES OF CASTLE & KRAUSE Suite 140 41877 Enterprise Circle North Temecula, CA 92590 (909) 694-8884 BEFORE THE CITY COUNCIL CITY OF CARLSBAD CITY OF CARLSBAD POLICE DEPARTMENT, Plaintiff, > ) APPELLANT’S BRIEF IN SUPPORT > OF ADOPTION OF THE > PERSONNEL BOARD’S DECISION > V. PATRICK PRESTON, Police Officer from termination Appellant > > DATE: March 1, 1995 > TIME: 6:00 p.m. 1 PLACE: City Council ) Chambers, City of Carlsbad > GENERAL STATEMENT OF POSITION Appellant Patrick Preston urges the City Council of the City of Carlsbad to accept and adopt in its entirety the decision of the City of Carlsbad Personnel Board in this matter. While that decision was adverse to Mr. Preston, and exacts upon him a very serious discipline, for reasons set forth below and throughout these pleadings it is urged that the decision be adopted. The Mayor of the City of Carlsbad, with Council approval, selects the Personnel Board. The background and qualifications of those members need not be recited herein because the Council has made those selections presumably from among the most qualified and trustworthy of citizens of this City. To reject the findings, particularly of a -l- 1 unanimous vote of the Board is an action that should be taken with the utmost of care. 2 3 The integrity of the appellate process to each and every employee of this City is 4 vital. The employees of the City must be assured that the appellate system works not 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 only to the benefit of the department head but to the employee as well. To do less diminishes the integrity of the appellate process, the personnel rules, and the system as a whole. That integrity and impact goes beyond just the import of this particular decision. For that reason, the City Council should and must weigh heavily in favor of the position taken by the unanimous vote of the Personnel Board. The Personnel Board in this matter heard nearly six days of testimony covering many hours and resulting in a six volume transcript. In addition, the Board was in the unique position to listen to and see each and every witness testify in context of the hearing and in context of the exhibits being explained at the time. The Board was in the unique and superior position to evaluate each witness. The evaluation would include but not be limited to the sincerity of the witness, the truthfulness of the witness, and the intangibles that a “cold record” cannot possibly supply. The department had every opportunity to prove its case by the lowest standard of review in our judicial or quasi-judicial system. The department failed to convince a single Board member. The vote was not close, it was unanimous. In the face of this, the department now relies on the new issue that should only Charge V remain that is still enough to support a termination. As will be set forth below 25 this is contrary to the evidence, common sense and good faith. 26 This department has also attempted to convince the Council that only the decision 27 II -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of Chief Vales has any real meaning. That position, while frankly routine in the face of adverse findings, is without merit. That pretense is so paper thin it is transparent. Under that analysis we don’t need a personnel system. We don’t need a Personnel Board. We don’t need an appeals process at all. Indeed, we don’t need you. For, after all, the Chief (Vales) knows best! Thankfully, I am confident that you, like the constitution and laws of this great nation and state take a much different view of the absolute correctness of the decisions of those m allow power. One’s rank does not make one right under our system of justice. The department has relied in its brief upon the fact that Mr. Preston “admitted” to the underlying facts of each of Charges I through V. The department would have you believe that the admission of the underlying facts and the finding of actionable violations necessarily follow. They do not. What the department cannot seem to get over, or accept even a modicum of responsibility for, is the fact that many of the underlying facts (as admitted) were and are permitted by the department. Where those acts were not specifically permitted they were tacitly permitted. Where not tacitly permitted there was an unequivocal showing of an utter lack of training or understanding of the policies in question. That showing of an utter lack of training or understanding was not limited to Mr. Preston. The record is replete with line officer after line officer testimony on this point. To help ease the reading and understanding of these moving papers appellant will hereafter attempt to respond to the department’s brief point by point in order. Thereafter -3- 1 we shall attempt to set forth and emphasize further rationale for rejecting the department’s 2 3 appeal in this matter. I. STATEMENT OF FACTS On December 20, 1993, Appellant Preston was assigned to patrol a beat adjacent 7 to the border of the city of Oceanside. During his shift, he monitored radio traffic 8 involving Carlsbad Police detectives who were attempting to stop and detain a vehicle 9 involved in a murder in the city of Carlsbad. The detectives were in Oceanside. Preston 10 had prior knowledge as to this vehicle’s description, its occupants and the fact a murder 11 did occur. Preston monitored the radio traffic and concluded the detectives were not 12 receiving the immediate assistance that they needed. Radio traffic was confused as was 13 14 normally the case when dealing with inter-agency issues with Oceanside. He did not seek 15 permission from a superior officer or notify dispatch because under the totality of the 16 circumstances it was not necessary, prudent or required to do so. He used the discretion 17 afforded front line officers. 18 19 While the one day suspension for the above act was pending Appellant Preston was served with a Notice of Intent to Terminate (Exhibit 20). Notwithstanding the fact 20 21 that under oath Chief Vales testified that he merely added the December 20, 1993, 22 incident in its entirety under the heading of Exhibit 20 he inexplicably added additional 23 charges. (Exhibit 8 compared to 20). 24 25 Sometime in the first two weeks of March 1994 Appellant Preston learned from another officer that Sergeant Byler had perhaps misappropriated the property of a citizen 26 and had accepted a gratuity in return for that property. The property was a rather 27 -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 expensive poodle. The owner was identified as Connie Young who resides on Columbine Street in the city of Carlsbad. Preston considered this to be a rumor only at this point. He attempted to confirm facts before causing a report against Byler to be made. Having been advised to not leave his beat except in emergency situations and facing the December 20, 1993, one day suspension for that very cause, Preston did not attempt contact with Ms. Young since the Columbine Street address was not on his beat. On March 13, 1994, Appellant for the first time in the times relevant hereto was assigned the 44 beat which included the Columbine Street address. Preston contacted and asked questions of Ms. Young. Preston tape recorded the conversation with Ms. Young without her consent or knowledge as is consistent with the practice of Carlsbad Police Officers. The fact that there was a March 9, 1994, meeting with Sergeant Byler over a performance evaluation was not the motive (as proved before the Personnel Board) for the March 13, 1994, contact with Young. Indeed, there was scheduled to be a March 16, 1994, follow up with Sergeant Byler wherein the performance evaluation was to be further discussed and perhaps amended. In the March 16, 1994, meeting with Byler Preston never mentioned his contact with Ms. Young. Clearly, if his intent was to “bribe” the Young incident would have been much better material. On March 16, 1994, Preston did indeed meet with Sergeant Byler. There is a disagreement as to at which point Preston disclosed that he secretly tape recorded a prior conversation with Sergeant Byler. In any event, it is not unclear that the content of that conversation dealt specifically with details of incidents within the pending performance evaluation. The content and chronology of those events are set forth in Appellant -5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibits (TT, ZZ and Addendum to ZZ). See also; (KK and LL). The department maintains that throughout his employment at the Carlsbad Police Department Appellant Preston received counseling, training and performance evaluations relative to his need to improve. The record in this matter, however, clearly shows that whatever the standard is at Carlsbad it is not communicated. There is no training for the supervisors in filling out of performance evaluations and it was clearly admitted by many supervisory witnesses including the Chief of Police that the criteria was largely subjective. Although the department continually and throughout the hearing made references to the so-called counseling sessions, virtually none were documented. Throughout his employment as a police officer both in Los Angeles and Carlsbad Officer Preston has had an exemplary record. That record is set forth in Appellant Exhibits A through II inclusive. That record was bolstered further by testimony during the hearing from his peers. The Personnel Board conducted closed hearings on the evening of October 19 and 20, 1994, and during the business days of November 22, 23, 30 and December 1, 1994. Appellant Preston was represented by legal counsel throughout the proceedings. Appellant Preston called witnesses in his defense, submitted evidence, rebutted the department’s evidence, and cross-examined the department’s witnesses while they were under oath. The department was likewise allowed to present its best case and evidence. After a full review of the evidence and after having heard from the numerous witnesses the Personnel Board unanimously found Appellant Preston culpable only of Charge V. The Personnel Board recommended that the City Council suspend Appellant -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Preston for thirty days, and that he attend the employee assistance program. Appellant Preston stood ready to accept this recommendation in its entirety including the participation in the EAP. The department, however, chose to attempt to have the City Council overturn in its entirety the fruits of the time, attention, effort and civic duty put forth by the Personnel Board. II. STANDARD OFREVIEW (APPELLANT’S RESPONSE‘1 The first sentence of the department’s brief under this caption is consistent with their misrepresentations throughout their appeal before you. The City Attorney’s January 16, 1995, letter to legal counsel for the department and Appellant Preston states at Page 2 numbered paragraph Number 4, “The City Council decision shall be based upon substantial evidence in the record, and on the basis of a preponderance of the evidence.” (Emphasis added). By its statement the department would have the Council believe that it is required only to apply a preponderance of the evidence standard when reviewing the hearing body’s decision. For reasons set forth below this is simply not the case. More i importantly, the City Attorney’s letter was not accurately stated in the record before you by the department. While it is true that the preponderance of the evidence standard is the lowest evidentiary standard in the law it is also true that the department failed to convince any of the five Personnel Board members that they had met this standard in the full evidentiary hearing on Charges I through IV. -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The department would have the Council believe that the preponderance of the evidence standard is so low as to be crossed with the meekest of evidence. That simply is not the case. There must be a showing that by a PREPONDERANCE of the evidence that the department (who bore the burden of proof then and now) has proven its case. Simply put, it did not. It did not because it could not because under the facts as presented to the Personnel Board actionable violations were not found. Further discussion of the clear and convincing or beyond a reasonable doubt standard will not be addressed herein since it has been agreed that those standards were not applied at the evidentiary hearing. As an aside, however, it cannot be overlooked that even here that the department misstates the law. The “beyond a reasonable doubt” standard does not require that “no doubt whatever as to guilt” be found. The department misstates the law in this respect in the same paragraph in which it attempts to convince the Council that the preponderance standard is only a very slight standard. Both are incorrect. Notwithstanding agreement or disagreement over the definitions of the various evidentiary standards it is clear under the law and under the agreed upon procedures vis a vis the January 16, 1995, City Attorney letter that “The City Council decision shall be based upon substantial evidence in the record, and on the basis of a preponderance of the evidence”. Taken as a whole this sentence requires, as must be the case, that in order to overturn the decision of the hearing body (Personnel Board) the Council must find substantial evidence in the record upon which to do so. This standard of review is consistent with that required by a judicial review under -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C.C.P. 1094.5. In this matter the City Council is acting as the first line of appeal of review in an evidentiary matter. As such its behavior is most like the Superior Court in reviewing a case under administrative mandamus appeal. In that respect certain limitations attach. In a case such as this where the employer is the appealing party the courts have unequivocally stated that the employer since it has not been deprived of a vested, fundamental right that the “independent judgment” test is not to be employed to review factual determinations. Carnenter v. Civil Service Commission (Liddi), (1985) 173 Cal.App. 3rd 446, 220 Cal.Rptr. 407; Lowe v. Civil Service Commission (Lee), (1985) 164 Cal.App. 3rd 667, 210 Cal.Rptr. 673; see also Countv of Santa Clara v. Willis (1986) 179 Cal.App. 3rd 1240, 225 Cal.Rptr. 244. And Interstate Brands v. Unemployment Insurance Appeal Board (1980) 26 Cal. 3rd 770, 163 Cal.Rptr. 619.” The obligation to reweigh the evidence under the independent judgment test means that the judge is not bound to uphold the administrative findings simply because there is some substantial evidence to support them. Instead the judge is free to set aside the factual determinations of the hearing body based upon his independent review of the ” In Lowe, the Sheriff of Sacramento County fired a deputy sheriff for on-duty misconduct. The civil service commission reduced the penalty to suspension. Sheriff Lowe petitioned the superior court for a writ of mandamus to review the commission’s decision. The superior court applied its independent judgment to the record, vacated the commission’s order, and directed it to reconsider its decision in light of the court’s own findings. The deputy appealed the superior court decision, asserting that the superior court should have only applied the substantial evidence standard because the sheriff had no fundamental vested right at issue. The Third District Court of Appeal agreed and ordered denial of Sheriff Lowe’s petition based on Interstate Brands and Sierra Club. (Carpenter, supra 451). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 evidence. Again, this is not the standard of review applicable in this matter. The burden - rest with the party challenging the findings to convince the reviewing court they are contrary to the weight of the evidence. Chamberlain v. Ventura Countv Civil Service Commission (1977) 69 Cal.App. 3rd 362, 138 CaLRptr. 155. In cases, such as this, that do not involve vested, fundamental rights of the appealing party a challenged factual determination cannot be set aside unless it can be shown that there is no substantial evidence in the record to support it. Allen v. Department of Personnel Administration (1987) 193 Cal.App. 3rd 355,238 Cal.Rptr. 3 17; Nightingale v. State Personnel Board (1972) 7 Cal.App. 3rd 507, 102 Cal.Rptr. 758. This is precisely the standard which the City Attorney set forth in his January 16, 1995, letter to the parties and which process was agreed to vis a vis failure to object. In cases, again like the one before you, that do not involve a vested fundamental right of the party bringing the appeal challenged factual determinations cannot be set aside unless it can be shown that there is no substantial evidence in the record to support it. In these proceedings, even if the judge (City Council) disagrees with the finding, he must uphold it if it is supported by any credible evidence in the record. Bixbv v. Pierno (1971) 4 Cal. 3rd 130, 93 Cal.Rptr. 234. Since the department has no vested fundamental right in these proceedings equivalent to those of appellant the standard of review by the City Council is the same as that of a reviewing judicial body. Therefore, as the City Attorney states, there must be, if the Council chooses to alter this decision, a finding that substantial evidence did not exist for the Board to come to its conclusions. The Council cannot simply review the ,lO- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 record De novo and apply only the preponderance of evidence standard. HI. APPELLANT PRESTON HAS ADMITTED THE CONDUCT UNDERLYING CHARGE I - IV (Appellant’s response) The department states in its first sentence under this caption that “Notwithstanding that Appellant Preston admitted the misconduct described in Charges I - IV, the Personnel Board somehow concluded that he was not guilty of those charges.” (Emphasis added). The “somehow” is the issue here. The Personnel Board after hearing days of evidence and reviewing volumes of materials concluded that while Mr. Preston admitted the conduct that the conduct admitted to did not amount to an actionable charge. One need not deny doing an act in order to be found not culpable for the chargeable offenses attendant to that act. As in every course of human endeavor there are reasons for and at times mitigating circumstances surrounding the commission of an act. For example, an offker (or citizen for that matter) may be required in the course of his duties to take the life of a law violator. The act of taking a life is by definition homicide. Homicide is chargeable as a crime under Penal Code 187. If, however, there are mitigating circumstances or the acts are found to be justified then, while the act clearly was admitted to and committed, there is no crime. That is the case as was found by the Personnel Board. No amount of revisiting the issues can change that. So, while the department states it is their position that the findings of the Board are “wholly inconsistent with Appellant Preston’s admissions” that means nothing in the broader view of the findings of the Personnel Board. -ll- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _- A. Charge I: Appellant Preston admitted he conducted an unauthorized investigation into a superior officer’s conduct on March 13. 1994. (Appellant’ s response). Appellant urges the City Council to accept the Personnel Board’s finding of innocent on this charge.*’ Simply stated, it is Appellant’s position that under the totality of the circumstances the preponderance of the evidence did not support the charge that Preston undertook the investigation in violation of the rule. The position put forth by Appellant during the evidentiary hearing, as supported by an overwhelming weight of the evidence, is that adherence to or even knowledge of this rule as charged is virtually unknown amongst the rank and file. Since the department relies on the treatise by Frank and Edna Asper Elkouri How Arbitration Works, 4th edition, BNA 1984 so shall Appellant.3’ It is a well-established principle of labor law that rules and regulations to be enforced must be widely disseminated and understood by those compelled to obey them. It has been reported, on the basis of examining over one thousand discharge cases, that one of the two most *’ The charges as set forth in Exhibit 20, Notice of Intent to Terminate, April 22, 1994, are fully set forth in the record before the City Council. Those charges are again restated in the department’s brief. Appellant will therefore not continue to regurgitate the content of those charges in the interest of brevity where possible. 3’ Department failed to point out to the City Council that the treatise is not binding on any reviewing body. More importantly the department failed to properly point out to the City Council it cited through Elkouri and Elkouri as Labor Arbitration Reporter cases are not binding and have no precedential value. While arbitrators may find the decisions of arbitrators before them persuasive they are not precedential authority to the City Council and should not be cited as such without the appropriate caveat as supplied by Appellant now. -12- 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 commonly recognized principles of arbitration of such cases is that there must be reasonable rules or standards, consistently applied and enforced and widelv disseminated. Elkouri and Elkouri at Page 682. 28 LA 930, 931 through 932 (1957). (Emphasis added). In the instant matter the Personnel Board rightly concluded that the general rule as set forth Charge I was not understood by the rank and file and perhaps not even disseminated in any accountable way. (172: 14-19; 188: 5-18; 469: 11-25; 470: l-25; 471: l-25; 472: 1-21; 548: 18-25; 549: l-9; 581; 11-18; 603: 17-25; 604: l-25; 605: l-5; 606: 3-11; 634: 15-25; 635: l-6; 690: 21-25; 691: l-25; 692: l-25; 693: l-5; 729: 11-25; 730: l-15; 776: 10-25; 777: l-25; 778: l-7; 807: 5-25; 808: l-25; 809: l-2). 4' The department in its brief makes much of the motivation it attaches to Appellant for conducting the investigation on March 13, 1994. The department can cite all it wants to the City Council that it does not believe Mr. Preston. The simple fact of the matter is that the Personnel Board to a man listened to all of the evidence and did believe. The Personnel Board did not attach to Mr. Preston the same motives that Chief Vales and his attorneys insist were there. The department cites on Page 8 of its brief that “For example, the fact he was assigned to a new beat that included Ms. Young’s home on the first duty day after receiving his below standard evaluation was fortuitous”, is outward deception. The department did not even know that occurred until Appellant himself brought that fact forward. (484: 2-25; 485: l-8). See also Exhibit 19: 5-6. In fact the investigating officer, Lieutenant Lewis, was unaware of 4’ For consistency this brief shall cite to the administrative record in the same manner as established by the department at department F.N. 2, P-2 Proposed Findings. -13- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this fact until the very time of his testimony before the Personnel Board. (186: 10-25). The department was unsuccessful at having the Personnel Board guess as to motives of Mr. Preston. They weighed the evidence and came to a conclusion. That conclusion again, was unanimous. The department cannot urge with any credibility that the City Council should simply set aside that finding and to substitute its own based only upon the interpretations and conclusions of Chief Vales. It is well settled that the burden of persuasion at the administrative level rest with the employer. Parker v. Fountain Valley (198 1) 127 Cal.App. 3rd 99, 179 Cal.Rptr. 35 1. The burden of proving the charges rest upon the party making the charges. Lavton v. Merit Svstem of the Citv of Pomona (1976) 60 Cal.App. 3rd 58, 131 Cal.Rptr. 318. That proof cannot be based on surmise or conjecture, suspicion or theoretical conclusion, or by uncorroborated hearsay. Johnstone v. Citv of Dalv Citv (1958) 156 Cal.App. 2nd 506, Ettinger v. Board of Medical Oualitv Assurance (1982) 135 Cal.App. 3rd 853, 185 Cal.Rptr. 601. The department by its prose cannot ask you to do that which could not be done before the Board through evidence. Appellant submits, consistent with each member of the Personnel Board, he is not guilty of Charge I. B. Charge II: Appellant Preston admitted he surreptitiously tape-recorded a citizen and two superior officers without their knowledge or consent. (Appellant’s response). Appellant urges the City Council to accept the Personnel Board’s unanimous finding of not guilty on this charge. -14- .- The fact that Appellant admitted to certain of the acts surrounding the charge has been well addressed above. For brevity’s sake it will not be repeated here. In this count again there was serious disagreement between the management of the Carlsbad Police Department understanding of the rule and that which is carried out on a day to day basis by the rank and file personnel. Witness after witness after witness testified that the tape recording of Ms. Young under the circumstances was entirely permissible under the rules as understood at the time Appellant was charged. The full body of the Personnel Board chose to believe these numerous witnesses over the position of the Chief and certain of his close managers. Arbitrators have not hesitated to disturb penalties, assessed without clear and timely warning, where the employer over a period of time had condoned the violation of the rule in the past - lax enforcement of rules may lead employees reasonably to believe that the conduct in question is sanctioned by management. Elkouri and Elkouri pages 683- 684. To exacerbate the disingenuousness with which the department brought this appeal, it was clearly shown in the testimony even by department managers that tape recordings under these circumstances occur with their knowledge. (89: l-5; 181: 1-12; 330: 19-25; 331: l-6; 415: 25; 416: 1-16; 490: 9-17) This was emphasized beyond any doubt whatever by the rank and file witnesses who testified before the Personnel Board. (544: 2-25; 545: l-25; 546: 23-25; 547: l-25; 548: 1-14; 580: 2-23; 607: 9-25; 608: l-25; 609: 1-17; 627: 3-25; 628: l-25; 629: l-3; 653: 19-25; 654: l-25; 655: 1-21; 686: 22-25; 686: l-25; 687: 1-11; 740: 23-25; 741: l-25; 742: 1-14; 774: 13-25; 775: 1-15; 801: 7-20.) There was absolutely no showing by the department, and ample showing by -15- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appellant that there had been no prior enforcement of this rule against anyone except Patrick Preston. In fact, it was clearly proven that the act of taping Ms. Young was not violative of any rule at all. Such taping was, and remains, a common practice. It is generally accepted that enforcement of rules and assessment of discipline must be exercised in a consistent manner; all employees who engage in the same type of misconduct must be treated essentially same unless a reasonable basis exists for variations in the assessment of punishment.. . Elkouri and Elkouri, supra 684. The position of department’s counsel that Appellant attempted to shirk a responsibility by offering testimony of other officers who secretly taped persons during criminal investigation is once again disingenuous at best. That evidence is wholly relevant here and was wholly relevant before the Personnel Board because the witnesses almost to a person stated there was no particular criminal investigation ongoing in their tape recordings. Indeed, a great deal of testimony and exhibit evidence was entered to show why in the 1990’s officers tend to tape record contacts for their own protection. (544: 2-25; 545: l-25; 546: 23-25; 547: l-25; 548: 1-14; 580: 2-23; 607: 9-25; 608: l-25; 609: 1-17; 627: 3-25; 628: l-25; 629: l-3; 653: 19-25; 654: l-25; 655: 1-21; 686: 22-25; 686: l-25; 687: l-11; 740: 23-25; 741: l-25; 742: 1-14; 774: 13-25; 775: 1-15; 801: 7- 20). (See also Exhibit WW). What the department’s counsel fails to tell you in their brief is the plain fact that had Patrick Preston not tape recorded Ms. Young there existed a very real probability that he would have faced additional charges in this matter. (177: 21-25; 178: l-25; 179: l-25; 180: l-3; 493: 18-25; 494: 1-19). The department would have the City Council treat as incidental the fact that -16- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appellant was able to locate two other persons who had secretly tape recorded their superior officers.5’ Please do not fall for this tactic. The evidence of others having tape recorded superior officers at the Carlsbad Police Department went well beyond the “two” [three] who were willing to come forward. (545: 2-6; 627: 12-25; 628: l-9; 626: l-3; 654: 6-16; 654: 22-25; 655: l-23; 688: 12-25; 689: l-10; 742: 15-25; 743: l-25; 744: l- 13; 792: 2-l 8; 802: 5-8). More importantly the reasons for the tape recordings of the superior officers by others went to the very heart of Mr. Preston’s motive and state of mind in this case, that being the existence of a hostile work environment, disparate treatment and system-wide distrust of the Vales administration. While this revelation no doubt surprised department’s counsel they must now live with it for it is part of the record. While Chief Vales in his testimony time and again stated that one of the important qualities of a police officer in Carlsbad was to accept responsibility he refuses to do so within the reality of the workplace for which he is responsible. The fact of the matter is that the workplace should be free from any feeling of a need to tape record secretly one’s superiors. At the Carlsbad Police Department this is not so nor is it confined to Mr. Preston as the department would have the City Council believe. 5’ The department again misstates the evidence when it represents to the Council that “two” others were found. In fact, three police employees testified they personally secretly tape recorded superiors. (Eastman, 627: 22-25; 628: l-9), (Lasch, 654: 22-25; 655: l-23), (Burwell, 742: 24-25; 743: 1-14). .17- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Personnel Board fully considered the theories of the department and rejected them. The Personnel Board attentively listened to all of the evidence and found, as you should, that this count under all the facts and circumstances as described by the evidence and the witnesses in person could not be sustained by a preponderance of the evidence. C. Charge III: Appellant Preston admitted the conduct that gave rise to the appearance of bribing a superior officer. (Appellant’s position). Appellant respectfully urges that the City Council accept the Personnel Board’s unanimous finding of innocent on this count. For reasons set forth above the City Council cannot properly now find the “appearance of bribing” which was so patently absent from the case put before the Personnel Board. Substantial evidence exists to dispel this charge. That is the test. The fact that Sergeant Byler stated, “I feel like I’m being extorted into given [sic] you a better evaluation” (Exhibits ZZ at 11 and LL at 6) means absolutely nothing. Sergeant Byler’s feelings are not something we can charge Mr. Preston with. If that were the case then anytime a superior officer “felt” in any way disturbed by the actions of any subordinate officer he could well face charges. The premise that the department would charge an employee because of what a superior simply “felt” goes to the very heart of the lengthy testimony of the many witnesses as to the hostile environment, disparate treatment and distrust at the Carlsbad Police Department. That hostile environment clearly revolved around the double standard and disparate treatment applied by the current department administration to supervisors as opposed to the rank and file. (487: 2-l 1; 545: 15-20; 572: 22-25; 573: l-5; 573: 6-19: 611: 3-13; 634: 11-14; 652: 5-25; 685: 24-25; 686: 1-19; -18- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 696:2-25; 697: l-7;732: 3-25;733: l-33;762:20-25;763: 6-23;803: 17-25; 804: l-25; 805: l-6). ” See especially the compelling testimony of Officer Burwell at Volume V Pages 733 (L.24) through 740 (L.20) inclusive.7’ Page Twelve of the department’s brief is very telling when it deals with Sergeant Byler and his credibility. Throughout the hearing it seems that the actions attributed to Officer Preston all miraculously occurred during gaps in the tape recording of Sergeant Byler. (307: 8-25; 3 10: l-7). This is not surprising when you take into consideration the testimony of a completely uninvolved witness, Dispatcher Tina Lasch, when she clearly testified that the reason you tape record Sergeant Byler and the reason & tape recorded Sergeant Byler is that he cannot be trusted to tell the truth absent that independent proof. (655: l-23;). Her testimony is supported at (792: 2-15) by yet another dispatcher. It is very telling that this witness, along with the others, tape recorded this particular sergeant without knowledge of each other having done so. In other words, in the environment at the Carlsbad Police Department, reasonable minds came to the same conclusion given a similar circumstance. The Board correctly found under these ” Appellant does not contend that the department was on trial in this case. What was contended, however, and what was apparently seriously considered by the Personnel Board was the environment under which certain conduct by officers at the Carlsbad Police Department occurred. That environment and the reaction to that environment was clearly relevant before the Board and should not be reduced in significance before the City Council. 7’ This unrebutted evidence describes a superior officer committing acts of battery against a subordinate on duty. The supervisor suffers no consequence. This is the way of Carlsbad Police Department according to much of the evidence. -19- 1 conditions charges could not be sustained. 2 3 It is therefore entirely reasonable that the Personnel Board could conclude that 4 while the actions complained of were admitted by Mr. Preston under all the facts, 5 circumstances and evidence they did not find it actionable or sustainable. For that reason, 6 7 8 9 10 11 and for all the reasons set forth above you should not disturb that decision. D. Charge IV: Annellant Preston admitted abandoning his assigned beat on December 20, 1993. (Appellant’s position) Appellant respectfully urges that the City Council accept the Personnel Board’s finding of not guilty as to this count. 12 13 14 15 Once again the department bases its request to overturn the Personnel Board on the fact that Appellant admitted the conduct underlying the charge. For all of the reasons set forth above over and again that position has no merit. 16 Addressing first the department’s position on Page Thirteen of its brief that 17 18 19 20 21 22 Appellant Preston has attempted to evade responsibility for his misconduct by claiming that Charge IV was a “pile on”. This point has become moot. It is no longer in issue and is superfluous to the matter before the City Council. This is so because the Personnel Board ruled that this charge was not proven by a preponderance of the evidence during the evident&y hearing. 23 24 25 26 27 28 Had the Board ruled that the rationale for a non-sustained finding were the timeliness and “pile on” issues raised in the hearing it could have done so and the matter would be ripe for consideration by the City Council. In plain English it did not make that finding. It determined the department did not once again prove its case by a -2o- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 preponderance of the evidence under all of the facts and circumstances adduced during the evident&y hearing before the five member panel. What the department’s counsel fails to tell the City Council is the fact that a number of witnesses testified on behalf of Mr. Preston from the rank and file. That testimony made it clear to the Personnel Board that leaving one’s beat, or for that matter, the city under appropriate circumstances is done all the time. That no one who testified has any recall of anyone ever being punished for these actions other than Patrick Preston. In fact, no rule exists which would prohibit that act. (137: 6-20; 384: 14-21). In the absence of proof that the employee’s conduct violated a specific, ascertainable rule regulating behavior, an adjudicatory body may not on its own establish any such standard against which to measure the activities in question. Wheeler v. State Board of Forestry (1983) 144 Cal.App. 3rd 522, 192 Cal.Rptr. 693; cf., Constancio v. State Personnel Board (1986) 179 Cal.App. 3rd 980, 225 Cal.Rptr. 133. The department did not have one on-scene officer or supervisor testify as to the lack of need of Officer Preston at the Oceanside scene. On the other hand, both of the detectives present at the Oceanside scene testified at the hearing on behalf of Mr. Preston and supported his response. The stop was of a murder suspect vehicle. The department still maintains that Preston’s actions left the city without ample protection and that Preston somehow should have known this. The department attempted to prove this by stating that the adjacent beat officer was at Code 7 (lunch break) at the time Preston went on the cover situation. The problem that the city has in this respect and the Board apparently seriously considered, is that the evidence doesn’t support this position. See for example Exhibit XX which clearly shows that in conjunction with the -21- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 testimony at (317: l-20; 513: 14-25; 514: 1-15) that the adjacent beat officer had not called out Code 7 and that Preston had every reasonable expectation to believe the deployment was in tact. The department clings to this position in the very face of the uncontroverted evidence adduced at the hearing. Perhaps the fact that the officer was on an unauthorized Code 7 and that Sergeant Byler was with him at some point during that unauthorized break is bothersome to the department but not reportable to you. (3 17: 14- 20). The full Personnel Board, however, was made aware of this through testimony and clearly understood the totality of the circumstances. For those reasons Appellant respectfully urges that the City Council uphold the full Board’s decision of not guilty on this count. Iv. THE PERSONNEL BOARD FOUND APPELLANT PRESTON GUILTY OF CHARGE V - DISRESPECT FOR AND/OR UNWARRANTED SUSPICION OF AUTHORITY (Appellant’s position) What is most telling about the department’s demeanor and position throughout this case is surnmarized in its first paragraph under its own heading IV. “Although Appellant Preston’s admitted misconduct did not persuade the Personnel Board to find him guilty of Charges I - IV, his suspicious demeanor and disrespect for department authority convinced even the Personnel Board that he was guilty of Charge V.” (Emphasis added). The mere fact that the department must refer to the Personnel Board in such terms is demeaning to that body and to those who selected that body. The mere inference that “even” the Personnel Board (presuming their naivety or lack of sophistication) could understand the department’s position on one out of five points is condescending. It is, -22- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 however, indicative of what Mr. Preston has faced throughout these proceedings. Appellant submits that the department’s counsel through their literary license under this heading has attempted to paint a poor picture of Appellant. That picture was heard, considered and rejected by the Personnel Board. While it is tempting to perhaps attack those findings Appellant chooses not to in light of the statements he has made above. Appellant participated in this process and accepts responsibility for the unanimous decision of the Personnel Board. The only contention that should be brought before the City Council is the word “unwarranted” found within the charging document and heading. It is sincerely believed that on a full review of the record there could be found a suspicion of authority on the part of Preston and others but it is doubtful whether or not that suspicion is unwarranted when viewed against the environment at the Carlsbad Police Department as described by witness after witness.” V. TERMINATION IS THE ONLY APPROPRIATE PENALTY (Appellant’s position) It is not surprising that the department would take the position it does as set forth in its brief under V. It is a grasp at salvaging what is left of their case. Chief Vales wants Preston gone and doesn’t care on what basis. I am reasonably confident that had the only remaining charge been that Preston broke a department owned pencil the Chief ” The citations to the record throughout this brief do not include cites from Mr. Preston’s testimony. Those cites were purposely not included so you can see the department not from Preston’s point, but the depth of the problem from a detached point of view. -23- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 would now take the position that that was the most important pencil to the police department and therefore termination is the only appropriate remedy. While that may sound ridiculous so is the position taken by the department now. The most telling confirmation of this stand ironically comes from the department itself. In the face of, in some instances, a mountain of evidence to the contrary (such as the taping of Ms. Young) the department in its pleading to you has not conceded one issue. They have not conceded even a portion of any one of the charges. When you analyze @t unreasonableness in the context of the reality before them, then it should not be surprising that they would so desperately cling to the only charge the Board found culpability for. The department telling you that Charge V standing alone is enough to terminate a career over is no more intellectually honest than their unwillingness to concede on any part of any charge in any way notwithstanding the record and evidence before you now. In its brief at Page Fifteen the department cites the Elkouri treatise. This has been addressed earlier. As stated above neither the treatise nor the Labor Arbitration Reporter cases cited in conjunction with that treatise are determinative in this case nor are they properly offered as precedential absent a caveat that the department failed to provide. More disturbing than that is the fact the department is wrong. If it is true as the department states that “It is a well-established principle of labor law that the determination of the penalty for employee misconduct is properly a function of management which should not be second-guessed”; Why do we have an appeals process at all? The -24- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 department cites as a source of this “well-established principle” the Elkouri treatise. In that same treatise at Page 688 the Elkouris write as follows: The more common remedies utilized by arbitrators in upsetting managerial actions in discharge and discipline cases have been summarized previously by the authors as follows: If a penalty of discharge is upset through arbitration, the award often will order reinstatement either with back pay, without back pay, or with partial back pay, and often will further order that other rights and privileges shall remain unimpaired; or the discharge may be commuted to suspension for a specified period, or even to a reduced penalty of only a reprimand or warning. That is exactly the situation the Board faced and resolved. The very treatise cited by the department contradicts the department’s contention. Furthermore, the courts of competent iurisdiction in this state are not silent on this issue. There is constant review of administrative decisions under California Code of Civil Procedure section 1094.5. The courts frequently disturb management findings when they are found to be excessive as here. It is beyond question that the right of continued employment is so important and so substantially affects the individual that it is a fundamental right. Pinkin v. Board of Supervisors (1978) 82 Cal.App. 3rd 652, 661, 147 Cal.Rptr. 502, 505. And, as one court very succinctly put it “If the penalty is excessive when compared to the facts and circumstances of the case, this court is not powerless to act.” Martinez v. Countv of Tulare, (1987) 190 Cal.App. 3rd 1430. Neither was the Personnel Board powerless in the face of the evidence it saw and heard. The idea that the Chiefs decision is somehow protected from review is contrary to legal and common sense. Fair and thorough review should not be demeaned as “second guessing”. The department now represents to you that Charge V is the most egregious and -25- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - .- most deleterious to the effective functioning of the department. Rest assured, had Charge I or Charge II or III or IV stood alone their position would be the same as to those individual charges. Appellant, Pat Preston, is not the cause of the low morale nor does he have a deleterious impact on this department. He is not that person. Pat Preston is an outstanding police officer as the evidence, not opinion, demonstrates. (See for example, Exhibits AA through II inclusive), bolstered by a multitude of witness testimony. Moreover, there was more than substantial evidence in the record before the Board to support its decision. As stated earlier that is the test. Therefore the Board’s ruling must stand. CONCLUSION Appellant Preston submits that for all of the reasons set forth above the City Council of the City of Carlsbad should adopt the findings of the Personnel Board as their OWll. Respectfully submitted, CASTLE & KRAUSE /v I DATED: ellant -26-