Thursday, December 21, 2017
Court of Appeal:
Misbehaving Police Officer to Get His Job Back
Ashmann-Gerst Faults Pomona City Council for Disobeying Dictate of C.A.’s Earlier Opinion; Hoffstadt Dissents, Saying City Set Things Straight With Further Action
By a MetNews Staff Writer
A man fired as a police officer in 2010 based on administrative findings that he committed criminal offenses, and who in 2013 won appellate relief based on procedural error at the city level, must be rehired because the Pomona City Council did not strictly adhere to dictates of the 2013 remand order, under a decision of the Court of Appeal for this district.
The council’s deviation from the appeals court’s direction—to receive independent legal advice before deciding anew whether the firing was justified—coupled with the action of reaffirming the 2010 decision without giving notice to the discharged officer, evidences bias on the part of the city lawmakers, the majority declared. That, it said, requires adoption of an arbitrator’s recommendation in an advisory arbitration that there be a suspension for some period of time, without pay or benefits, and not a termination of employment.
Tuesday’s unpublished opinion—by Acting Presiding Justice Judith Ashmann-Gerst of Div. Two, concurred by Justice Victoria Chavez—means that Glenn Sabey, who has been working as a security guard, will get his old job back with the Pomona Police Department. Justice Brian Hoffstadt dissented.
The action comes despite undisturbed findings that Sabey committed misdemeanor trespass, unauthorized use of the federal crime database, and various breaches of rules and policies. He was also found by the department to have committed a lewd act in public, but that finding was rejected in the advisory arbitration and was not relied upon by the City Council.
Third Hearing Irrelevant
Once the City Council acted in contravention of the remand order by failing to seek independent legal advice before deciding not to return to Sabey his badge and gun, Ashmann-Gerst said, reinstatement became mandatory, and a third firing that followed the receipt of the prescribed legal advice was of no significance.
“Because City Council held a second hearing without independent legal advice, it effectively declined to reconsider Sabey’s termination pursuant to our instructions,” the jurist wrote. “City Council could not undo that decision by holding a third hearing.”
That means that the arbitrator’s “Advisory Opinion and Award must become final,” she reasoned, adding:
“This decision is alternatively supported by our conclusion that Sabey was not afforded due process by the procedure employed by City Council.”
The opinion reverses a judgment by Los Angeles Superior Court Judge Mary H. Strobel except as to her determination that Sabey is not entitled to a civil penalty under the Public Safety Officers Procedural Bill of Rights Act because that act applies to “public safety departments,” which the Pomona City Council is not. Hoffstadt argued that Strobel’s decision should be affirmed in all respects.
The majority’s decision in Sabey II is tied to the perception that the Pomona City Council acted in 2013 in derogation of that year’s published opinion by Ashmann-Gerst in Sabey I.
There, it was recited that the city was represented at the advisory arbitration by Debra L. Bray, then of the law firm of Liebert Cassidy Whitmore (now on inactive bar status); subsequently, the city asked Peter Brown, of the same firm, to be its legal advisor in the matter; an “ethical wall” (previously known as a “Chinese wall”) was erected between Bray and Brown.
Despite that “wall,” Ashmann-Gerst said:
“We hold that when a partner in a law firm represents a department within a city at an advisory arbitration regarding a personnel matter, and when the city’s decision-making body later reviews that arbitrator’s award for confirmation or rejection, the principles of due process prohibit the decision maker from being advised on the matter by a different partner from the same law firm.”
The disposition was a reversal, and a remand to the Los Angeles Superior Court “with directions to the trial court to refer the matter back to the City Council for further consideration in light of independent legal advice.”
(Joining in that decision were then-Presiding Justice Roger Boren, since retired, and Los Angeles Superior Court Judge Edward Ferns, sitting on assignment.)
The city council proceeded to reaffirm the dismissal. It did so in closed session at a meeting on Sept. 16, 2013.
On Oct. 3 of that year, Sabey’s lawyer, Michael Morguess, emailed employment attorney Kristine Exton, who was representing the city, confirming a telephone conversation they had. Morguess recited that the city council was sticking by its earlier decision because Sabey’s “stalking behavior… is a ‘real concern’ to it,” as well as “his interaction with the local police agency, and prior discipline at another department.”
The stalking was related to the trespassing. He allegedly kept showing up in a Jacuzzi at a gated condominium projects where his former girlfriend lived, apparently having climbed over a fence, and doing so notwithstanding her express admonishment that he was trespassing. On April 1, 2008, she saw Sabey by the pool, telephoned the Corona Police Department, and when officers arrived her lied to them as to the purpose and permissibility of his presence.
A resident of the complex subsequently reported to the Corona police having seen Sabey committing a lewd act while in the Jacuzzi.
Ashmann-Gerst said in a footnote, at the outset of her opinion, that “[w]hether City Council obtained independent legal advice for the second hearing is not definitively established by the record,” but remarked that “circumstances strongly indicate that it did not,” and announced that for reasons to follow, “we deem it established that independent legal advice was not obtained.”
She went on to explain:
“City did not meet its burden of proof because it never identified an attorney who provided independent legal advice at the second hearing. This means courts must deem that it held the second hearing without independent legal advice….”
Given the presumed failure on the part of the city council to consult with a lawyer before reaffirming its earlier action, Ashmann-Gerst said, “City Council deprived Sabey of the benefit of the disposition in our prior opinion.”
“Compounding the unfairness of this procedure, City Council did not inform Sabey of its decision. Sabey only learned of City Council’s action through Morguess’s conversation with Exton. And it was only after Morguess objected to the lack of notice that City Council sent a notice stating that City Council’s decision was null and void.”
It was then that the City Council held a third hearing, which was noticed, and, buttressed with advice of independent legal counsel, decided, again, not to reinstate Sabey’s employment.
“Based on these facts, it defies reason to presume City Council could be neutral and unbiased when deciding Sabey’s matter a third time,” Ashmann-Gerst opined. “Experience teaches that it is highly improbable that the members of City Council kept open minds. Accordingly, the principles of due process require that we set aside the decision.”
“The remedy is to allow the recommendation of the inferior decision maker to stand.”
“To be sure, the second vote was procedurally irregular, especially when one considers that the second vote was void on its face because it was held before our mandate even issued.”
The City Council on Sept. 16, 2013 reaffirmed its decision to fire Sabey, but it was not until Nov. 7 that Los Angeles Superior Court Judge James Chalfant issued a judgment upon remittitur granting Sabey a writ of mandate.
“Are these procedural irregularities proof of negligence or incompetence? In my view, yes.
“Are these procedural irregularities proof of an unacceptably high probability of actual bias? In my view, no.
“Each circumstance Sabey cites is individually insufficient to establish an intolerably high probability of bias.”
The jurist said he would uphold the council’s third vote, explaining:
“[T]here is no evidence to support a finding that the City Council’s failure to consult was, as the court finds, ‘intentional’ and hence a conscious decision to forego the opportunity to review the arbitration record. Indeed, the City Council’s subsequent acts tend to dispel the notion that it was consciously foregoing the chance to reexamine Sabey’s discipline given that it subsequently vacated the second vote and proceeded to render a decision following a full hearing and with the assistance of independent counsel. Treating the City Council’s blunder as sufficient to preclude it from ever reconsidering Sabey’s discipline effectively erects an absolute ‘one-strike, you’re out’ rule that is stricter than due process in that it precludes further reconsideration after one mistake and does so without the need to prove actual bias.”
He said that while there are cases saying “that a trial court’s acts on remand that are materially at variance with an appellate court’s mandate are void,” they “do not speak to what happens after the order is voided, and do not purport to erect a rule that forever disables the court (or, by extension in this case, an administrative agency on remand from the court) from trying to get it right a second or third time.”
The case is Sabey v. City of Pomona, B271417.
Attorneys on appeal were Brandi L. Harper and Michael A. Morguess of Castillo Harper for Sabey and Steven H. Taylor of McCune & Harber for the city.
Copyright 2017, Metropolitan News Company