Cohen v. City and County of S.F.

Filed 7/5/07 Cohen v. City and County of S.F. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Andrew Cohen, a uniformed San Francisco police officer, appeals from a judgment denying his petition for a writ of mandate to compel the City and County of San Francisco, and its police department and chief of police, to rescind his temporary suspension without pay from December 8 until December 16, 2005. The suspension arose from a video Cohen made that parodied police department life in a manner that the chief of police found to be offensive and harmful to the departments image. Cohen contends that the trial court erred in finding that the suspension was authorized by the city charter and police department regulations. We agree in part with Cohens contentions, and reverse the judgment.

I. BACKGROUND

Cohen is employed by the San Francisco Police Department (Department) as a police officer. Sometime in 2005, Cohen created videotapes showing other police officers and members of the public engaged in what Cohen described as a comedic parody of Police Department life. According to the Department, the scenes in the videotape were shot at the Bayview-Hunters Point station and at other Department offices, and were staged using police officers in uniform, and Department vehicles, revolvers, and other Department equipment. Cohen placed excerpts of the video on a Web site he maintained on the Internet, and planned to show the tapes at a Christmas party to be attended by Bayview-Hunters Point officers. According to the Department, the existence of the tapes became known to the press and the public on or about December 7, 2005. Chief of Police Heather Fong saw excerpts of the tapes on that date.

On December 8, 2005, San Francisco Mayor Gavin Newsom and Chief Fong called a press conference at which they showed the public and the media excerpts of Cohens video. At the press conference, Mayor Newsom described the video as  sexist, racist, and homophobic,  and Chief Fong labeled the video as  egregious, shameful, and despicable.  Chief Fong stated that this was a  dark day in the history of the San Francisco Police Department. 

Effective at 8:00 a.m. on December 8, Chief Fong suspended Cohen without pay from his duties as a police officer, pending a future hearing on charges that were to be filed against him before the Police Commission of the City and County of San Francisco (Police Commission). The letter notifying Cohen of his suspension read in pertinent part as follows: Pursuant to Rule [I.C.8.] of Department General Order 2.07^[[1]] . . . and San Francisco Charter  A8.344,^[[2]] you are hereby suspended from your duties as a member of the San Francisco Police Department . . . pending hearing of charges to be filed against you before the Police Commission. [] The charges will allege that you violated Rule 9 of Department General Order 2.01^[[3]] when you created and placed inappropriate and unauthorized pictures and other information regarding the Department on the Internet. [] I have scheduled a hearing in my office on Wednesday, December 14, 2005, at 0800 hours with Deputy Chief Tabak, to determine whether your suspension should remain in effect pending the hearing of charges before the Police Commission. A copy of the letter was sent to the Police Commission.

Following an administrative hearing on December 14, Chief Fong advised Cohen that the administrative hearing officer, Deputy Chief Pengel, recommended that he be returned to duty and that she concurred in the recommendation. Chief Fong ordered Cohen to return to duty effective on December 16. Cohen missed four days pay while the suspension was in place.

Through counsel, Cohen requested in writing on December 21 that the Department pay him his back pay for the period of his suspension on the grounds that the suspension was improper and unauthorized. Counsel set a deadline of January 19, 2006 for the Department to respond. Although the Department stated that it was reviewing the issues raised, it had made no substantive response to Cohens request as of February 9, 2006, the date the present petition for writ of mandate and complaint for declaratory relief was filed.

Cohens petition alleged that under Charter sections A8.341 and A8.344, and General Order 2.07, the chief of police is only authorized to suspend a sworn member of the police department without pay if three conditions are satisfied: (1) an investigation of the members alleged misconduct has been completed; (2) charges against the officer are filed and pending before the Police Commission; and (3) the misconduct falls within the circumstances enumerated in Charter section A8.341. Cohen alleged that the Department had a clear, plain, and ministerial duty to comply with the Charter and its own rules by rescinding his suspension because none of these conditions had been satisfied.

In a second cause of action, for declaratory relief, Cohen sought a declaration that:  (1) rule I.C.8. of General Order 2.07 and Charter sections A8.344 and A8.341 only authorize a summary suspension without pay after an investigation has been completed and charges have been filed with the Police Commission, and (2) a summary suspension imposed in accordance with these provisions of the Charter and Department General Orders constitutes the taking of property without due process of law and is therefore unconstitutional.

Cohens petition was accompanied by a motion for peremptory writ of mandamus. The Department responded with a demurrer to the petition and opposition to the motion, which asserted essentially identical grounds: (1) Charter section A8.344 and General Order 2.07 authorized Cohens suspension pending the Departments investigation and filing of charges, (2) Cohen could not show that Chief Fong abused her discretion when she suspended him based on Charter section A8.344, (3) the Departments temporary suspension procedures as applied to Cohen comported with his due process rights, and (4) Cohens claims were barred because he had alternative remedies to recover his lost wages through the Departments disciplinary process.

The trial court denied Cohens motion and dismissed his petition without leave to amend, citing the following grounds: (1) Charter section A8.344 and General Order 2.07 authorized the Department to temporarily suspend Cohen pending the Departments investigation and filing of charges, and the notice of suspension complied with these provisions; (2) Cohen could not show that the Department abused its discretion under Charter section A8.344; and (3) the Departments temporary suspension procedures comported with Cohens due process rights in the context of the temporary suspension. The trial court further determined that the Departments demurrer to the petition was moot.

This timely appeal from the ensuing judgment followed.

II. DISCUSSION

Cohen advances the following contentions on this appeal: (1) Charter section A8.344 and rule I.C.8. of General Order 2.07 only permit a temporary suspension in the specific circumstances identified in section A8.341, none of which include the violation described in Chief Fongs December 8 letter to Cohen; (2) the Department violated section A8.344 by imposing the temporary suspension before filing any charges or setting a hearing before the Police Commission; and (3) Charter section A8.341 is unconstitutional in that it permits a 30-day suspension of a permanent employee without first affording the employee predisciplinary due process.

A writ of mandate is warranted when the petitioner shows the respondent failed to act upon a clear, ministerial duty to do so, and the petitioner shows a clear right to such performance. (International Federation of Professional & Technical Engineers v. City and County of San Francisco (1999) 76 Cal.App.4th 213, 224.) Where the facts are undisputed, and the issue is presented is one of statutory interpretation, the reviewing court exercises its independent judgment and reviews the matter de novo. (Ibid.) In our view, the present case turns on an issue of statutory interpretation, and is subject to de novo review. We note that the Department never filed an answer denying the factual allegations of Cohens petition and that the declaration the Department filed in opposition to Cohens motion for a peremptory writ of mandate also did not dispute any of the material facts alleged in the petition.

In her December 8 letter to Cohen, Chief Fong stated that Cohen was being suspended pursuant to rule I.C.8. of General Order 2.07 and Charter section A8.344. The opening sentence of General Order 2.07 states: The purpose of this order is to set forth the Departments disciplinary policies and procedures for officers as prescribed by the City Charter. As the Department readily concedes, rules I.C.8. through I.C.10. of General Order 2.07 set forth the Departments procedures for implementing Section A8.344. We note also that rule I.B.5. of the General Orderwhich defines the term, suspension pending hearingstates that [a]n officer may be suspended by the Chief pending a hearing before the Commission as provided herein below, indicating that rules I.C.8. through I.C.10. provide the exclusive procedures by which an officer may be suspended pending a Police Commission hearing on disciplinary charges.

Rule I.C.8. of General Order 2.07the paragraph Chief Fong explicitly relied on to temporarily suspend Cohenstates that [u]nder exigent circumstances the Chief is authorized to suspend temporarily any officer pending a hearing . . . . (Italics added.) That section goes on to say, In all such cases of suspension, the Chief shall immediately report the same to the Commission with the reasons therefore [sic] in writing. Rule I.C.9. requires that in all suspensions under rule I.C.8., the officer is entitled to an administrative hearing. . . . held within 5 working days of such suspension. . . . to determine whether the officer should remain suspended pending a hearing before the Police Commission. Rule I.C.10. provides that if an officer is suspended pending a hearing before the Police Commission, charges are to be filed and served on the officer within seven calendar days after the officer is suspended.

In construing General Order 2.07 and attempting to harmonize it with the relevant Charter provisions, we must be mindful of the potentially conflicting policy interests involved in suspending a uniformed officer without pay before the facts regarding his conduct have been adjudicated or even investigated thoroughly. The loss of pay and stigma associated with a suspension are obviously matters of serious concern to the officer involved. At the same time, uniformed police officers are vested with extraordinary authority in the ordinary course of their duties. Where the officers continued employment wouldif the charges are truepresent a material risk of harm to the public or to the Department or its employees, the chief must be empowered to act expeditiously to eliminate that risk. Of course, a suspension with pay would serve the same purpose as a suspension without pay in that circumstance. But a suspension with pay would penalize the public by imposing a public expense with no corresponding public benefit, and by rewarding the misconduct of those officers ultimately found to be guilty of disciplinary offenses. As long as the affected employees predisciplinary due process rights are appropriately protected, allowing the chief to suspend accused officers pending a hearing in cases of serious misconduct is essential for the publics protection, and does not offend constitutional requirements.

In our view, General Order 2.07 and Charter section A8.344 establish an appropriate balance between the rights of the accused officer and the interests of the public. If anything, General Order 2.07 narrows the circumstances in which the police department may temporarily suspend an officer compared to Charter section A8.344. The dictionary defines exigent as requiring immediate aid or action. (Merriam-Websters Collegiate Dict. (10th ed. 2000) p. 406.) The use of the term in rule I.C.8. of General Order 2.07 thus indicates that the chief may order the temporary suspension of an officer pending a Police Commission hearing only when he or she has reason to believe that the officers continued employment presents an appreciable risk of harm to the Department or the public. As stated by the Department in its brief on appeal, the purpose of a temporary suspension is to safeguard against an unacceptable risk of injury to the Department or its critical mission of safeguarding the public. At oral argument, counsel for the Department characterized exigent circumstances as an emergency situation requiring immediate action. At the same time, rules I.C.9. and I.C.10. protect the accused officer by providing for immediate administrative review of the suspension and, if the suspension is upheld, by compelling the Department to quickly initiate a contested adjudicatory proceeding in which the employee can challenge the underlying misconduct allegations.

Viewed in light of the text and purpose of the temporary suspension provisions in the Charter and General Order 2.07, the administrative record in this case is notably silent on two critical issues. First, Chief Fongs December 8 letter to Cohen does not say which, if any, of the types of conduct listed in section A8.341 she was alleging against Cohen. In fact, the only conduct specifically alleged against Cohen in the letter was that he created and placed inappropriate and unauthorized pictures and other information regarding the Department on the Internet. The letter does not explain how such conduct would come within any of the categories incorporated into Charter section A8.344.

The December 8 letter does allege that Cohens conduct violated rule 9 of General Order 2.01. But rule 9 defines a catch-all category of misconductunofficer-like conductthat encompasses [a]ny breach of peace, neglect of duty, misconduct or any conduct by an officer . . . that tends to subvert the order, efficiency or discipline of the Department, or reflects discredit upon the Department or any member, or is prejudicial to the efficiency and discipline of the Department. Although this definition is broad enough to overlap the categories enumerated in Charter section A8.341, it surely also includes conduct that does not fall into any of those categories. While placing inappropriate pictures or information about the Department on the Internet may arguably reflect discredit on the Department, it does not necessarily involve any misappropriation or misuse of public property or other wrong described in section A8.341.

Second, Chief Fongs letter makes no reference to any exigent circumstances that required Cohen to be temporarily suspended in order to safeguard against an unacceptable risk of injury to the Department or its critical mission of safeguarding the public. Why would the fact that Cohen had placed inappropriate pictures regarding the Department on the Internet, if true, create an unacceptable risk that his continued service as a uniformed officer would harm the Departments mission? Not only does Chief Fongs December 8 letter fail to explain this, nothing in the trial court record explains it either.

In response to Cohens mandate petition, the Department asserted in the trial court that Chief Fong had, in fact, determined that his conduct potentially involved misuse or destruction of public property and mistreatment of persons, and therefore fell within the circumstances incorporated into Charter section A8.344. As to the misuse of public property allegation, the Department explained that the videotapes were evidently made at the Bayview Hunters-Point station and at other Department offices, featured officers in uniform and wearing badges, and used Department equipment including vehicles and service revolvers. The Department did not explain at that time the basis for its claim that Cohens conduct involved the mistreatment of persons. It also did not explain what the exigent circumstances were that Chief Fong believed warranted suspending Cohen without pay.[4]

It was not until oral argument on appeal, in response to this courts questioning, that the Department for the first time spelled out its basis for believing that Cohens conduct involved the mistreatment of persons, and its reasons for temporarily suspending him. Regarding the claim of mistreatment of persons, the Department explained that this included two aspects. First, the Department believed that the videos use of racist, sexist, and homophobic group stereotypes constituted mistreatment of persons. Second, the video assertedly included scenes depicting persons being mistreated. The Department questioned whether the participants were fully informed in advance of the nature of the scenes in which they appeared and whether placing the video on the Internet without the participants consent was itself an act of mistreatment.[5]

Regarding the issue of exigent circumstances, counsel for the Department explained at oral argument that the exigency was the Departments need to promptly disassociate itself from the viewpoints and attitudes reflected in the videotape. Cohen had in the past made videos for the Department. According to counsel, Chief Fong was concerned that members of the public angered by the videotape might believe that the Department in some fashion condoned the offensive views or stereotypes reflected in it. Such a perception, if not promptly and forcefully counteracted by the Department, would do irreparable harm to the Departments image and effectiveness in the affected communities, and could even pose a danger to officers on the streets. Chief Fong believed that suspending Cohen would help bring home the message that the Department disapproved of and repudiated the attitudes reflected in the videotape.

There are two problems with the Departments belated explanation of its reasoning process. First, the record before us fails to establish that the reasons offered at oral argument were the Departments actual reasons for suspending Cohen in December 2005 or that such reasons were ever communicated to Cohen. The record shows that the Department initially offered no explanation of its reasons. Then, after Cohen filed his mandate petition, the Department claimed in its responsive pleadings that he had been suspended for misusing public property and mistreating persons. The record discloses no mention at that time that Cohen was suspended as a way of disassociating the Department from the views expressed in his video.

Second, assuming for the sake of analysis that the reasons eventually offered by the Department at oral argument do reflect the Departments motivation for suspending Cohen in 2005, such a suspension does not comply with the Charter or the Departments own rules. The evident purpose of the temporary suspension procedure is to protect the public and the Department and its employees from the risk of further misconduct by the accused officer. That is the only type of exigency that justifies suspending the officer without pay before the underlying accusations have been fully formulated, disclosed, or adjudicated, and before the officer has been afforded any opportunity to respond to them. The procedure is not designed to allow the Department to inflict immediate punishment on the officer as a way of underlining its disapproval of his conduct. Indeed, under the Departments theory, any alleged conduct that might bring discredit on the Department, or that merely angered members of the public or drew adverse publicity, would authorize the chief to immediately suspend the accused officer without pay. Such a sweeping interpretation of the chiefs discretion would be inconsistent with the applicable Charter provisions, and would upset the balance struck by Charter section A8.344 and General Order 2.07 between protecting the Departments mission and protecting the officers due process rights and reputational and financial interests.

In our view, temporary suspensions may not be used as a shortcut method of taking punitive action against an officer or as a tool for conducting public relations damage control. Based on the record before us, including the Departments shifting explanations of the basis for its action, we hold that Chief Fong abused her discretion by ordering Cohens temporary suspension for reasons that are not authorized by the Charter and that did not constitute exigent circumstances under the Departments internal rules.

We find no merit in Cohens additional contentions that the Department violated Charter section A8.344 by imposing the temporary suspension before filing any charges or setting a hearing before the Police Commission, and that the section unconstitutionally authorizes a 30-day suspension without predisciplinary due process. No language in section A8.844 or General Order 2.07 requires that formal charges be filed before a uniformed officer can be temporarily suspended. Rule I.C.10. of General Order 2.07 would be completely superfluous and nonsensical if we adopted Cohens construction of the chiefs suspension powers under rule I.C.8. Further, contrary to Cohens suggestion, we find no indication in the relevant Charter provisions that uniformed officers can be suspended for 30 days without any form of predisciplinary due process. Since Charter section A8.341 does not apply to uniformed officers, Cohen lacks standing to challenge its constitutionality. The fact that the categories of misconduct enumerated in section A8.341 are incorporated by reference in section A8.344 does not give Cohen standing to challenge other portions of section A8.341 that have no application to uniformed officers.

The Department raises one final barrier to mandate relief, claiming that Cohen has adequate alternative remedies at law for recovering his lost wages, such as bringing an action for damages or utilizing the Departments own disciplinary processes. These remedies are not plain, speedy, or adequate. (Code Civ. Proc.,  1086.) Mandate is appropriate in this case because the dispute concerns the proper construction of the Departments official duties under the Charter and an award of back pay is merely incidental to the duty sought to be enforced. (See Coan v. State of California (1974) 11 Cal.3d 286, 291; Eureka Teachers Assn. v. Board of Education (1988) 202 Cal.App.3d 469, 475.)

We find that the Department has a plain, clear, and ministerial duty to rescind Cohens temporary suspension and make him whole for the pay loss he suffered as a result of the suspension. In so holding, we imply no judgment regarding the merits or proper disposition of the disciplinary charges the Department has filed against Cohen.

III. DISPOSITION

The judgment is reversed and the matter is remanded to the trial court for entry of a new judgment commanding respondents to rescind Cohens unpaid suspension and restore any pay and benefits lost as a result of his temporary suspension from December 8, 2005 until December 16, 2005.

Margulies, J.

We concur:

Stein, Acting P.J.

Swager, J.

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Analysis and review provided by San Diego County Property line attorney.

[1] Rule I.C.8. of San Francisco Police Department General Order 2.07, entitled SUSPENSION PENDING HEARING, reads as follows: Under exigent circumstances the Chief is authorized to suspend temporarily any officer pending a hearing before the Commission. In all such cases of suspension, the Chief shall immediately report the same to the Commission with the reasons therefore [sic] in writing.

[2] Section A8.344 of the Charter of the City and County of San Francisco (Charter) states in relevant part: In the circumstances listed in Section A8.341 the chief of the police department and the chief of the fire department may temporarily suspend a member of the respective department pending a hearing before the police or fire commission on disciplinary charges against the member, and the member shall be entitled to a prompt administrative hearing to determine if he or she should remain suspended pending the outcome of the commission proceedings. . . .

By its reference to Charter section A8.341, section A8.344 incorporates the following circumstances in which uniformed members of the police and fire departments may be temporarily suspended: conduct involving misappropriation of public funds or property, misuse or destruction of public property, drug addiction or habitual intemperance, mistreatment of persons, immorality, acts which would constitute a felony or misdemeanor involving moral turpitude, or acts which present an immediate danger to the public health and safety . . . . Section A8.341 deals with the removal or discharge of non-uniformed civil service employees, and is otherwise inapplicable to uniformed members of the police and fire departments.

[3] Rule 9 of General Order 2.01 states in relevant part: Any breach of peace, neglect of duty, misconduct or any conduct by an officer . . . that tends to subvert the order, efficiency or discipline of the Department, or reflects discredit upon the Department or any member, or is prejudicial to the efficiency and discipline of the Department, although not specifically defined or set forth in Department policies and procedures, shall be considered unofficer-like conduct subject to disciplinary action.

[4] At oral argument, the Departments counsel maintained that Cohen had never in fact disputed the existence of an exigent circumstance in the course of the trial court proceedings. In our view, the allegations of Cohens petition do place the existence or nonexistence of exigent circumstances in issue. He alleged that the Departments action violated rule I.C.8. of General Order 2.07, as well as the Charter, and that his suspension was unauthorized under either the Charter or the Departments rules. The petition incorporated a letter sent by Cohens counsel to the Department in which he asserted that the Department was acting in contravention of its authority because he was not being charged with any conduct that authorized a suspension under the Charter. In connection with his motion for a writ of mandate in the trial court, Cohen argued specifically that the Departments demurrer to his petition constituted his first notice of the exigent circumstances on which the Department was then claiming to have relied in suspending him.

[5] It should be noted that this court has not viewed the video or videos in issue because they were not made part of the record on appeal in this case. Whether the Department has fairly characterized the contents of the video is not material to our analysis, and our decision in this case implies no judgment about the video or the reaction it generated.