Monday, August 1, 2011
Court Upholds Firing of Police Officer in Solicitation Case
By a MetNews Staff Writer
A former Cathedral City police officer was properly terminated after his lawyer repudiated a settlement agreement that enabled him to avoid being fired previously, the Fourth District Court of Appeal has ruled.
The decision by Div. Two upholds the firing of Thomas Ferguson, arrested by Ontario police in a 2006 prostitution sting. The opinion by Justice Carol Codrington was filed June 30 and certified Wednesday for publication.
Ferguson was hired by Cathedral City in 2001. A videotape of the Ontario operation showed him agreeing to pay an undercover officer $40 for oral sex.
After engaging in conversation with the Ontario officer, who was posing as a prostitute near the Holt Ave. exit from I-10, Ferguson accepted the offer, turning down an alternative of paying $80 for intercourse.
He was directed down the street towards a meeting place, before being stopped and arrested by a uniformed officer. He pled no contest in 2008 to a misdemeanor charge of making loud and unreasonable noise and was fined about $500 and placed on summary probation for two years.
About a month after his arrest, Ferguson was served with a notice of intended discharge and a pre-termination hearing under Skelly v. State Personnel Board (1975) 15 Cal.3d 194 was scheduled.
At the time of the hearing, however, a settlement agreement was reached.
Under the settlement, the city rescinded the discharge notice and Ferguson agreed to serve a 160-day suspension and waive all hearing rights and claims against the city. He further agreed that if he were convicted of certain criminal violations, he would resign and not seek reemployment.
He also agreed that if criminal charges were filed in connection with the Ontario incident, he would seek “an expeditious conclusion.”
In June 2007, Temecula labor lawyer Robin Sergi, who was representing Ferguson at the time, wrote to the Cathedral City police chief protesting what Sergi described as an apparent “attempt to influence the [San Bernardino] DA’s decision as to how the office would prosecute this case if at all.”
As a result of such attempt, Sergi wrote, Ferguson “now considers the agreement including the condition that he resign in the event he is convicted of or pleads guilty to any related offense null and void.”
The city responded that there had been no improper contact between the department and prosecutors, but that the department had merely made inquiries about the status of the case. The letter went on to say that “the City accepts your repudiation of the Agreement and a notice of intent to terminate is being served on your client.”
Ferguson was then served with a second notice of intended discharge, and a Skelly hearing was set for July 19, 2007.
Prior to the hearing, Ferguson hired a new lawyer, Julio Jaramillo of Santa Ana, who told the city there had been no repudiation of the agreement, only an anticipatory repudiation that had never become effective. He also objected to the scheduling of the hearing, saying his client, who was on leave due to an on-the-job injury and living in Cypress, was unable for medical reasons to make what Jaramillo said was a four-hour trip to Cathedral City.
The city disputed that the trip would take nearly that long—Codrington noted in a footnote to her opinion that MapQuest estimated it as under two hours—and said Ferguson could take breaks as needed to complete the drive. It also insisted that failure to attend the hearing as scheduled would be deemed insubordination.
The hearing was ultimately rescheduled to six days later. But Ferguson again objected to making the trip, and was fired.
A termination appeal resulted in an administrative hearing. The hearing officer recommended that the separation agreement not be enforced, and that Ferguson serve an additional 160 days of suspension instead.
The city manager rejected the recommendation and upheld the discharge. Riverside Superior Court Judge John D. Molloy denied a petition for writ of administrative mandate, and the Court of Appeal affirmed.
Codrington explained that the trial court’s finding that the separation agreement had been repudiated had to be upheld if supported by substantial evidence. Sergi’s unambiguous letter repudiating the agreement, and the city’s acceptance of that repudiation, constitute the necessary evidence, the justice said.
The jurist rejected the argument that Sergi lacked the authority to repudiate the agreement. Noting that Ferguson characterized the letter as the product of a misunderstanding but did not claim it was unauthorized, Codrington reasoned that a party’s attorney of record is presumed to be authorized to act on the client’s behalf and that Ferguson had not rebutted the presumption.
The justice also concluded that the city’s scheduling of the second Skelly hearing satisfied due process.
The case is Ferguson v. City of Cathedral City, 11 S.O.S. 4171.
Copyright 2011, Metropolitan News Company