California Court Of Appeal Gives District Broad Discretion To Discipline A Fire Captain

CATEGORY: Client Update for Public Agencies, Public Education Matters
CLIENT TYPE: Public Education, Public Employers
DATE: Feb 07, 2023

Jesse Griego was a captain in the Barstow Fire Protection District for the City of Barstow. He also coached children’s sports teams, including the girls’ softball team at Barstow High School. In 2007, Barstow issued a memorandum to its captains directing personnel not to attend sporting events while on duty. In March 2017, a fire chief verbally reprimanded Griego for coaching while on duty. Griego expressed no regret and was later seen attending a sporting event while on duty. The fire chief thereafter issued Griego a written reprimand.

Also in early 2017, a safety officer at Barstow High School reported she suspected an inappropriate relationship between Griego and a 15-year-old student, H.S. The officer saw Griego bring H.S. lunch during school hours and H.S. drive Griego’s car. She heard students saying that H.S. was wearing Griego’s shirt, the two had adopted a cat together, and they had visited a theme park together.

The Barstow Police Department opened a criminal investigation into Griego’s actions. The City placed Griego on paid administrative leave, and Barstow High School told him to end contact with the girls’ softball team. Nonetheless, Griego continued to attend practices and games and to communicate with coaches and players, including H.S.

Barstow launched an investigation into these allegations. The City’s investigator sustained 19 allegations against Griego. These allegations included, among others, that Griego: 1) sought an “intimate dating relationship” with minor H.S.; 2) defied specific directions not to coach while on duty despite multiple warnings; 3) carried a concealed handgun outside his home without a permit; and 4) filed a false court document under penalty of perjury.

The handgun allegation referred to November 2017, when Griego carried a concealed gun to investigate suspicious people outside his home. A police officer arrived and asked Griego if he had a gun; Griego said yes and showed it to him. The officer asked if Griego had a concealed carry permit; Griego did not. Penal Code section 25400 prohibits carrying a concealed gun in public without a permit.

As for the perjury, in 2017 Griego’s ex-wife applied for a domestic violence restraining order against him. A temporary restraining order issued in July 2017 included a direction to store any firearms with the police department or a licensed gun dealer. Yet in August 2017, Griego signed and filed a response that declared, “I do not own or have any guns or firearms.” Griego later admitted he had owned guns for about two years. Regarding the false court filing, he said, “I probably didn’t even read that and pay attention to that.”

The Fire Chief thereafter issued a notice of intent to terminate. After a Skelly meeting, the Fire Chief issued a notice of termination based on 18 sustained allegations. Griego appealed his termination through advisory arbitration. The arbitrator concluded there was sufficient evidence to sustain six of the 18 allegations against Griego. The arbitrator found insufficient evidence supported the alleged inappropriate relationship, however, H.S. and her family testified nothing untoward had happened. The arbitrator advised reducing the penalty to a 30-day suspension.

Per City policy, the City Manager received this advisory opinion and exercised his discretion to amend, modify, or revoke the arbitrator’s recommendation. The City Manager disagreed with the arbitrator and concluded the evidence demonstrated Griego indeed had pursued a relationship with H.S. The City Manager also upheld the other charges that the arbitrator had previously upheld and then terminated Griego.

Griego filed a petition for a writ of administrative mandate in the superior court. The superior court found there was sufficient evidence to sustain only three allegations: coaching on duty, carrying a concealed handgun without a permit, and filing a false court document. The superior court held termination was not appropriate based on these three allegations and remanded the matter for reconsideration of Griego’s discipline. The City appealed the trial court’s decisions that:  1) that the City abused its discretion by firing Griego based on the three sustained allegations; and 2) that the case was remanded to the City to redetermine Griego’s discipline.

On appeal, the Court of Appeal reviewed the matter to see if the City, abused its discretion. An agency abuses discretion if it does not proceed as required by law, its decision is not supported by the findings, or its findings are not supported by the evidence. The Court of Appeal held that termination was “well within the City’s broad discretion.”

The Court of Appeal found that the City Manager had connected her decision to three serious, sustained allegations, namely: refusing to follow an express directive, issued multiple times, not to coach softball while on duty; carrying a concealed handgun without a permit; and lying under penalty of perjury about possessing firearms. The Court of Appeal distinguished Griego’s case from another precedent in that Griego was “an experienced but defiantly insubordinate supervisor [who set] an intolerable example by repeatedly flouting direct commands from his superior.” The Court concluded that the sustained allegations of Griego’s misconduct demonstrated a lack of credibility, reliability, and trustworthiness, and were therefore a reasonable basis for the City’s decision to sustain termination.

Griego v. City of Barstow, 303 Cal.Rptr.3d 379 (2023).

Note: This case highlights that supervisory employees must set a good example for their subordinates and that insubordination is serious misconduct.  In assessing whether a disciplinary penalty is within an agency’s discretion, the courts will consider harm to public service, circumstances surrounding the misconduct, and the likelihood of its recurrence.  The court found that the agency considered all these factors and imposed an appropriate penalty.

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