Peace Officer’s Termination Upheld Based On City Council’s Independent Review Of Administrative Record

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Public Education Matters
CLIENT TYPE: Public Education, Public Employers, Public Safety
DATE: May 05, 2020

LCW Partner Laura Drottz Kalty, Senior Counsel David Urban, and Associate Attorney Stephanie Lowe successfully represented a city in a peace officer’s termination appeal beginning at the administrative appeal hearing and ending a victory at the California Court of Appeal. The Court of Appeal affirmed the termination in an unpublished decision.

The case began in June 2013, when the city’s police department placed the officer on a performance improvement plan (PIP). In July 2013, the officer stated in the presence of some detectives that he did not trust his supervisors.  During a PIP meeting in August 2013, the officer referred to supervisors at the department as “clowns”. The department found his comments violated department policies forbidding:  (i) disparaging remarks or conduct concerning supervisory authority that “subverts the good order, efficiency and discipline of the Department or which would tend to discredit any member thereof”; and (ii) disobedience or insubordination. 

Based on years of progressive discipline dating back to 2008 and the officer’s conduct when given a “last chance” during the course of his PIP, in December 2013, the department issued a notice of intent to terminate the officer for his policy violations, prior misconduct and performance issues. After a Skelly meeting, the department terminated the officer.

During his administrative appeal hearing, the officer admitted making the statements at issue. The hearing officer’s written report and recommendation, however, excused the officer’s statements as the result of “severe stress” from prior disciplinary actions and the PIP. Further, the hearing officer disagreed with the department that the officer was terminated based upon a multi-year pattern of misconduct and performance issues.  The hearing officer concluded that no evidence existed to show the department had just cause to terminate the officer, and that another officer received a much lighter punishment for making false, misleading or malicious statements. The hearing officer recommended a two-week suspension and that the officer be reinstated in good standing.

The city council rejected the hearing officer’s recommendation and upheld the officer’s termination.  The city council found that a preponderance of the evidence showed that the officer’s termination was warranted based on his policy violations and history of poor performance and discipline. Separately, the city council also concluded that the hearing officer had overlooked key evidence in making his recommendation.  Several of the hearing officer’s findings contradicted the witnesses’ testimony, including the officer’s admissions.  The hearing officer did not cite to evidence in the administrative record to support his findings.  The city council noted that the hearing officer had demonstrated bias against the city by spending time with the officer’s counsel during multiple smoking breaks at the administrative appeal hearing. The city council rejected the officer’s argument that another officer received a lesser punishment for the same offense because the other officer was disrespectful to a peer, while this officer was disrespectful to the superiors in his chain of command. The city council found that the other officer had no sustained complaints, nor a similar history of work performance.

The officer then petitioned the trial court for a writ of mandate to compel the city council to set aside its decision and to adopt the hearing officer’s recommendation instead. The trial court denied the officer’s petition. The trial court’s independent review of the evidence in the administrative hearing record supported the city council’s decision on the merits.

The officer appealed, alleging that he did not receive a fair administrative hearing and that the city and the department improperly alleged that the hearing officer was biased. In addition, the officer alleged that the city council did not independently review the administrative record but had deferred to the written arguments made by the city’s legal counsel.

The Court of Appeal upheld the officer’s termination. First, the Court of Appeal declined to address arguments related to alleged bias by the hearing officer, since both the trial court and city council had upheld the officer’s termination based on the officer’s admissions that he violated department policy.  The officer’s admissions were independent of any alleged hearing officer conduct. Second, the Court found that the officer had forfeited his claim that the penalty of termination was an abuse of discretion because the officer offered no supporting argument. Third, the Court of Appeal held that the officer provided no evidence to support his allegations that the city council failed to independently review the administrative record of the officer’s hearing. The Court of Appeal found that the officer presented no evidence or argument to support any trial court error.


This case shows that court challenges to an administrative decision are won or lost during the administrative hearing. This is because the trial court bases its decision on a review of the testimony and evidence in the administrative hearing record.  The appellate court then reviews the trial court’s decision.  Here, the officer admitted his misconduct on the record at his administrative appeal.  The city council properly reviewed those admissions and the other evidence in the administrative hearing record to reject the hearing officer’s unsupported decision.