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.
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Agenda Bill # )3,043 Dated: 3/l/95 /
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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
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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
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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.
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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:
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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
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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
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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
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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
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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
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Mountain View. California 94C4l
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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
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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
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Whitmore, Johnron & Bolmm
2570 W. El Camino Real, Suite Mx)
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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
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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
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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
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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
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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
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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.
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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
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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.)
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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.)
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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
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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
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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
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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.
.
.
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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
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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
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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
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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
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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
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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-
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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
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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
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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
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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-
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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
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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-
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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
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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-
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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-
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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
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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
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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
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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
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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
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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
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unanimous vote of the Board is an action that should be taken with the utmost of care.
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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
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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
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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
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1 we shall attempt to set forth and emphasize further rationale for rejecting the department’s
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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
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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.
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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).
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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
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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
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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
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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.
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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
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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).
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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
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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.
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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.
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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.
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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.
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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
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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
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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).
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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;
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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.
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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,
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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.
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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.
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Addressing first the department’s position on Page Thirteen of its brief that
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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.
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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
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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
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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,
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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.
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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
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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
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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
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