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Court of Appeal:
Remand Is Useless Where Outcome Is Foregone Conclusion
Wiley Writes for Majority in Saying There’s No Point to Return Case to the City That Discharged a Fire Captain Where It’s Clear That Judge’s Determination One Allegation Is Unsupported Would Make No Difference
By a MetNews Staff Writer
It was an idle act for a San Bernardino Superior Court judge to remand to a city a case in which a fire captain contested his discharge from employment where, even a judicial determination that there was insufficient evidence in support of one the bases for the firing, it was clear that no different outcome would ensue from a fresh determination, Div. Eight of the Court of Appeal for this district held yesterday over a partial dissent.
Seeking to get his old job back is Jesse Griego, formerly a captain in the Barstow Fire Protection District. One allegation against him was that he maintained an inappropriate relationship with a 15-year-old high school student, H.S., who was a member of a softball team he coached.
Griego was investigated by the Barstow Police Department in connection with a suspicion of statutory rape but was not charged.
The fire chief gave notice of an intent to terminate Griego’s employment; an administrative hearing was held and he was fired after 18 of 19 allegations were sustained; nonbinding arbitration was held, with a determination that evidence supported six of the allegations—not including conduct toward H.S.—and the city manager approved the discharge based on the six allegations approved by the arbitrator plus the relationship with H.S.
San Bernardino Superior Court Judge Donald R. Alvarez found that substantial evidence supported three of the allegations. Like the arbitrator, he found evidence lacking as to an inappropriate relationship with a minor, and ordered a remand.
Wiley’s Opinion
That was a waste of time, Justice John Shepard Wiley Jr. said in yesterday’s opinion. He declared:
“[T]here is no real doubt the City would terminate Griego. There is no reason for remand.”
He set forth:
“In the manager’s words, ‘Griego’s lack of credibility, inconsistent statements, inappropriate actions with [H.S.] and his conscious disregard for District policy’ justified termination.
“We disregard one of these four stated reasons for termination—Griego’s relationship with H.S. The other three reasons apply to conduct described in the three 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. These actions demonstrate a lack of credibility, reliability, and trustworthiness and were a reasonable basis for the City’s decision to sustain termination.”
Pro Tem’s View
San Diego Superior Court Judge Albert T. Harutunian III, sitting on assignment, disagreed with the determination that a remand would be pointless. He said:
“The majority concludes that if we were to remand the case, the City is sure to conclude termination is warranted. Perhaps. But how can we conclude that when there have already been two decisions that termination is not warranted when ‘statutory rape’ is not considered? The first is when the arbitrator found that ‘statutory rape’ was not established, and that the penalty justified by Griego’s other conduct was a 30-day suspension, not termination. The second is when the trial court reviewed the city manager’s termination decision, found insufficient evidence to sustain the ‘statutory rape’ allegation, and concluded termination was not warranted based on the sustained allegations. The City was never faced with deciding whether to terminate Griego when ‘statutory rape’ cannot be factored into the decision in any way. He should be allowed to present his arguments with the limitations that now exist. The city manager decided to terminate based on seven sustained allegations, including ‘statutory rape.’ The decision now would be based on only three sustained allegations that are arguably far less serious than the sexual misconduct charge.
“I express no opinion about whether Griego should be terminated. I simply feel he is entitled to ‘make his case’ to the City based only on the permissible charges.”
The case is Griego v. City of Barstow, B322638.
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