Public Sector Case Notes

• Jurisdiction: California,United States
• Author: By Stewart Weinberg & Kerianne Steele
• Publication year: 2015
• Citation: Vol. 29 No. 2

Public Sector Case Notes

By Stewart Weinberg & Kerianne Steele

Stewart Weinberg, a 1960 graduate of Boalt Hall, is a shareholder of Weinberg, Roger & Rosenfeld in Alameda, a union-side labor law firm. Mr. Weinberg specializes in the representation of unions and employees in the public sector. Kerianne Steele also is a shareholder of the firm. She provides general representation to labor unions, primarily in the public sector.

ADMINISTRATIVE PROCEDURE

Standard of Review by a Hearing Officer Pursuant to a Memorandum of Understanding

Quintanar v. County of Riverside, 230 Cal. App. 4th 1226 (2014)

The employee organization representing sheriff's deputies employed by the County of Riverside entered into a collective bargaining agreement (CBA) with the County of Riverside, which provided in part that, "Any employee may appeal any disciplinary action taken against the employee." The appeal is heard by a hearing officer who is empowered to make findings of fact, conclusions of law, and a decision that is final, subject to the right of the parties to the CBA to seek judicial review under California Code of Civil Procedure section 1094.5.

The appellant in this case was a correctional deputy who was demoted for allegedly using excessive force in the course of his employment. The employee filed an appeal of the demotion. The appeal was heard by a hearing officer who denied the appeal, and in his statement of decision stated that he could not substitute his judgment for that of the "decision maker," but only had the authority to consider whether the imposed discipline was either arbitrary or reasonable under the circumstances. The employee filed a petition for writ of mandate in the superior court to challenge the hearing officer's decision.

The trial court granted the petition for writ of mandate because the hearing officer had not used his independent judgment. It remanded the matter to the hearing officer so that he could exercise his decision-making power using his independent judgment.

The County appealed. The court of appeal reversed the trial court's decision. Although the memorandum of understanding (MOU) did not state which standard of review the hearing officer was supposed to apply, it held that the standard of review was implied by the procedure. The MOU required the hearing officer to conduct a full-scale evidentiary hearing and to sustain, modify, or rescind the disciplinary action. The appellate court reasoned that if the department had sole discretion regarding discipline, and if the hearing officer's only role was to determine whether the department abused its discretion, then the MOU would not permit the hearing officer to modify the discipline independently, but merely to remand the matter back to the department. The appellate court further reasoned that since a trial court can overturn an administrative action that is arbitrary or capricious, if a hearing officer could overturn a disciplinary penalty only when it is arbitrary and capricious, there would be no reason to let a hearing officer review the penalty at all; that would be up to the court. The appellate court reasoned: "In any review process, a provision that the reviewer must hold a full evidentiary hearing tends to show that the reviewer is supposed to exercise independent judgment; this is true regardless of whether the review process is contractual or statutory. Likewise, a provision, whether contractual or statutory, that the reviewer can 'modify' a decision tends to show that the reviewer is supposed to exercise independent judgment."

Ironically, the court held that in the instant case, the hearing officer actually did use his independent judgment which, coincidently, was consistent with that of the department.

Review Board Is Obliged to Make a Decision Based on its Own Findings

Pedro v. City of Los Angeles, 229 Cal. App. 4th 87 (2014)

A police officer was suspended by the City of Los Angeles based on four counts of misconduct. A review board, called a "Board of Rights," found that three of the four counts were barred by the one-year statute of limitations for peace officer discipline, California Government...