Filed 10/16/18 Gore v. San Diego County Civil Service Commission CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Gregory W. Pollack, Judge. Reversed with directions.

Office of the Sheriff, Robert P. Faigin, Sanford A. Toyen, English R. Bryant and Amanda M. Lomnicky, for Plaintiff and Appellant.

Bobbit, Pinckard & Fields, Richard L. Pinckard, Amy R. Margolies, for Real Party in Interest and Respondent.

No appearance by Defendant and Respondent, San Diego County Civil Service Commission.

While Deputy Sheriff Jeffrey Hornacek was undergoing training to become a patrol deputy, the San Diego County Sheriff's Department (Department) terminated his employment on the ground that he was incompetent and failed to conform to work standards. Hornacek appealed the termination to the San Diego County Civil Service Commission (Commission), which concluded that Hornacek had been inefficient, but not incompetent, and that he should receive a two-day suspension, not termination, along with back pay, benefits and interest. William D. Gore, as Sheriff of San Diego County (the Sheriff), filed a petition for writ of administrative mandamus challenging the Commission's decision. (Code Civ. Proc., § 1094.5.) The trial court denied the petition, concluding that the Commission's decision was supported by substantial evidence and did not constitute an abuse of discretion.

The Sheriff appeals, arguing that the Commission's finding that Hornacek was inefficient rather than incompetent is not supported by substantial evidence, and that the Commission abused its discretion by modifying the termination to a two-day suspension. We conclude that although the Commission's finding that Hornacek had been inefficient rather than incompetent is supported by substantial evidence, the Commission abused its discretion in determining the level of discipline because it failed to explicitly consider and make a finding on the interests of public safety. We accordingly reverse the trial court's denial of the Sherriff's petition and remand to the trial court with directions that it order the Commission to expressly take into account the interest of public safety when determining the appropriate level of discipline.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Hornacek was hired as a Deputy Sheriff by the Department in February 2013 to become a patrol deputy. After attending the law enforcement academy, and before being trained as a patrol deputy, Hornacek was assigned to work in the Detentions division at the jail for approximately nine months, and then in the Court Services division at a court holding facility for approximately 11 months.

In March 2015, Hornacek began his training to become a patrol deputy. By that time, Hornacek had completed his 18-month probationary period and was a permanent employee with civil service protections.

To understand the course of Hornacek's training program, we first review the general structure of the training program that the Department provides for employees training to become patrol deputies. According to the Department's field training manual, the training program to become a patrol deputy involves (1) three phases of training, each of which are four weeks long; (2) three units of specialized training in the areas of traffic, detectives and community relations, which are usually performed between Phase 2 and Phase 3; and (3) a final "shadow phase" before the deputy is permitted to operate independently as a patrol deputy. Throughout the phases of training, the deputy is supervised by several different field training officers (FTOs) who are charged with carrying out the training on a day-to-day basis as the deputy accompanies the FTO on patrol duties.

The goal of Phase 3 training is "to ensure that trainee is capable of becoming an independently functioning unit, prior to release from phase training." In the shadow phase, which is a one-week period following Phase 3, the deputy assumes full field responsibilities but is still accompanied by an FTO, who will interfere only in exceptional circumstances.

During training, the deputy receives a daily written evaluation from the FTO, which describes the deputy's performance on that day and provides a numerical rating between "1" and "4" in over 30 different areas of performance.[1] The field training manual states that when the trainee has a deficiency that has not been corrected, the FTO should complete an "FTO Worksheet," which is a document that defines the specific identified problem for the trainee, assigns specific training to correct the problem, and then evaluates whether the problem has been resolved.

As stated in the field training manual, when a deputy "has not attained the level of performance required by the end of a phase," the phase may be "extended for a specific period of time, not to exceed three weeks, so that the trainee may bring their performance up to the required level." In that instance, "[t]he Training Sergeant and FTO should meet with the trainee and discuss the problems and additional training assignments to provide the trainee the opportunity to raise their performance to an 'acceptable' level." The meeting should be documented in an FTO Worksheet.

In March 2015, Hornacek was assigned to the Vista station to start his training to become a patrol deputy. As the hearing officer found,[2] "[i]n Vista, [Hornacek] had his Phase 1 training extended and repeated, was having trouble in Phase 2 and was encountering difficulty with his [FTOs]." Hornacek told the Career Path Sergeant in the personnel department that because of his difficulties in training, he wanted to give up on becoming a patrol deputy and instead be reclassified as a permanent deputy in the Detentions division, where he had successfully worked for several months. The Career Path Sergeant "was sympathetic to [Hornacek's] complaints because he had heard about issues with training at Vista and he had had similar experiences when he went through training." The Career Path Sergeant recommended that instead of reclassifying to Detentions, Hornacek should get a "fresh start" on training by repeating Phase 1 training at the Santee station.

Hornacek restarted Phase 1 training in Santee on June 27, 2015. As the hearing officer found, "[Hornacek] was assigned two of the most experienced and highly regarded FTOs for Phases 1 . . . and 2 . . . . He satisfactorily moved through these phases. [Hornacek] then satisfactorily completed Traffic, Community Policing [i.e., community relations] and Investigations [i.e., detectives]." The daily evaluations for Phase 1 and Phase 2 in Santee show that Hornacek was rated at an acceptable level of "3" in the area of officer safety on each of the days of training, did not receive a "1" in any area. and did not receive any FTO Worksheets.

Hornacek's difficulties in Santee began when he was assigned to Deputy (now Detective) Jacob Wilson as the FTO for Phase 3. The hearing officer provided the following findings regarding Hornacek's performance on Phase 3:

"FTO [Wilson] was very critical of [Hornacek's] performance. On Day 1 [Hornacek] had missed coins and tobacco rolling paper in a female's front pockets. On Day 2 he had trouble articulating his authority to conduct a pat down and missed a pocketknife on a theft suspect. After three days of training, FTO [Wilson] assigned [Hornacek] five appellate cases regarding pat downs and two additional cases related to handcuffing. On Day 6 he was slow to pat down a parolee, didn't spot drug paraphernalia in the back of a car and had difficulty with a quiz FTO [Wilson] gave him on all the reasons that could be used to search the vehicle. On Day 8 he missed a syringe hidden in the sock of a heroin user. While these kinds of mistakes are unsatisfactory, they are typical of trainees. As FTO [Wilson] wrote in his evaluations, '2s' (improvement needed) are 'reflective of his level of experience and training when rated against a fully trained patrol deputy sheriff and are not necessarily indicative of improvement needed unless otherwise noted.'

"After eight days of working together, FTO [Wilson] concluded that [Hornacek] 'demonstrated minimal knowledge with little or no retention in the area of searches and pat downs.' FTO [Wilson] had heard of conversations, which [Hornacek] had had with other deputies, and described them as 'lies he told a previous Training Officer about me.' He recommended that [Hornacek] be dismissed from field training prior to completion due to lack of honesty. FTO [Wilson] prepared an e-mail to his sergeant further criticizing [Hornacek]. In it he complained that [Hornacek] had made critical remarks about him and how this further showed [Hornacek's] dishonesty.

"Subsequent to this, [Hornacek] was assigned to two other FTOs . . . , one of whom gave him good evaluations and the other who gave him poor to mediocre evaluations. Both recommended that he continue phase training."

The hearing officer further described Hornacek's performance under the two FTO's who trained him for the final portion of Phase 3: "After [Hornacek] left FTO [Wilson] he showed improvement. [The first FTO] wrote that [Hornacek] was 'methodical and thorough with his searches.' While with [the second FTO], [Hornacek] missed a cigar package in the tube sock of an intoxicated male but showed 'improvement from previous searches' in his last two evaluations. [¶] With regard to public safety, [Hornacek] made mistakes that were typical of trainees but they persisted throughout Phase 3. He was having more problems with this area than the normal trainee although he was showing improvement at the end."[3] The hearing officer also found that Hornacek "demonstrated a problem with retention of training in that his performance was inconsistent. After getting good evaluations in areas like public safety, he would then make mistakes on later shifts that one would not expect."

After Day 15 of Phase 3 training, the Department decided to withdraw Hornacek from training and place him in an administrative "desk job." Hornacek received no warning during his training in Santee that he was in danger of failing his training to become a patrol deputy for failure to meet standards, and while in Santee he did not receive any FTO Worksheet notifying him of areas in which he was required to improve his performance. According to the sergeant coordinating Hornacek's training in Santee, after making the decision to transfer Hornacek to a desk job and to prepare a non-retention letter terminating Hornacek's employment, the Department realized that Hornacek was no longer a probationary employee who could be dismissed without cause. Accordingly, the Department opened an internal affairs case into whether Hornacek failed to meet the required standards to perform as a deputy, and an internal investigation was conducted.

On January 13, 2017, the Department issued an order of termination and charges to Hornacek, which stated that he was terminated from his position as deputy sheriff based on two causes:

"CAUSE I [¶] You are guilty of incompetency as set forth under Section 7.2 (a) of Civil Service Rule VII as it relates to Sheriff's Policy and Procedure Section 2.30—Failure to Meet Standards, in that as a deputy sheriff trainee assigned to the Sheriff's Field Training Program, you failed on numerous occasions to conform to work standards established for the position of a deputy sheriff and in failing you did not establish and maintain the highest standards of efficiency in carrying out the missions, functions, and objectives of this Department.

"CAUSE II [¶] You are guilty of acts which are incompatible with and/or inimical to the public service as set forth under Section 7.2 (s) of San Diego County Civil Service Rule VII. You are guilty of acts, which are incompatible with the San Diego County Sheriff's Department Executive Order and the Mission, Vision, Values and Goals. Your conduct constituting such acts inimical to the public service is that set forth under Cause I."

Hornacek received a Skelly hearing,[4] and then appealed the order of termination to the Commission.

A hearing officer held an evidentiary hearing at which numerous witnesses testified. After setting out findings of fact, the hearing officer concluded that "[t]he evidence does not support a violation of Civil Service Rule 7.2(a) (incompetency)[;] it more appropriately supports a violation of Civil Service Rule 7.2(b) (inefficiency). [Hornacek] has had persistent problems with searches, which could affect public safety." The hearing officer also concluded as to Cause II that Hornacek's "performance issues do not rise to the level of 'inimical' to public service."[5] In explaining the conclusion that Hornacek was inefficient, but not incompetent, the hearing officer offered the following observation:

"The best description of [Hornacek's] performance was given during testimony from FTO [Larson], who is widely regarded to be the best and one of the most experienced FTOs in the Department. When asked where he would rate [Hornacek] among all the trainees he had worked with, FTO [Larson] said that he would have ranked [Hornacek] in the middle until he learned that [Hornacek] had been through training before in Vista. He felt that this prior training mitigated some of the strong points that he believed [Hornacek] had. After learning this he described [Hornacek] as 'just scraping by.' [¶] 'Just scraping by' is not failing but it's not desirable either. Discipline for inefficiency is warranted in this case. [Hornacek] needs to improve."[6]

With respect to whether termination was appropriate, the hearing officer observed that Hornacek had never been disciplined before, and that "[e]xcept for the notable recommendation from FTO [Wilson] that [Hornacek] be dismissed from his field training prior to completion, every recommendation during his Santee training was that he continue with his training."[7] The hearing officer also observed that Hornacek "never received an FTO Worksheet at Santee, which the Training manual states is 'to be used when the trainee has a deficiency and that deficiency has not been corrected.' " The hearing officer concluded: "The principles of progressive discipline should apply in this case. Employee is not guilty of dishonesty or misconduct. He is 'just scraping by.' He has shown signs of improvement but his prior inconsistent performance counsels caution as to whether that will be maintained. So, discipline is appropriate but a two-day suspension should be the starting place, not termination." The hearing officer therefore recommended that the order of termination be modified to a two-day suspension, and that Hornacek be awarded back pay, benefits and interest.

On April 5, 2017, the Commission adopted and approved the hearing officer's findings and recommendations.[8]

The Sheriff filed a petition for writ of administrative mandamus in the trial court, which challenged the Commission's decision to modify Hornacek's termination to a two-day suspension. The petition alleged that "[t]he order of the Commission to reinstate [Hornacek] to the position of Sheriff's Deputy . . . is an abuse of discretion and contrary to law, and therefore must be reversed."

The trial court denied the Sheriff's petition. As the trial court explained,

"It is evident that Hornacek's performance during Phase III Patrol training, under [FTO] Wilson's watch, justified some form of discipline. However, the Commission's conclusions that the evidence, while supporting a finding of inefficiency . . . , did not support an incompetence finding . . . , and that Hornacek's performance issues did not rise to the level of being incompatible with and/or inimical to the public service . . . are fully supportable by the record. [¶]

"Hornacek had successfully completed his 18-month probation period and had no prior history of discipline. At the time of the termination recommendation, there was not so much as a single reprimand within his file. Hornacek had completed Phase I and Phase II of patrol training. Except for his time training with FTO Wilson, for whom Hornacek was his first trainee, Hornacek had never received a recommendation for discontinuance or termination during training from any of the other 10 FTO's. He had not been previously advised that he was facing termination. Even FTO Wilson conceded that prior to his (Wilson) accusing Hornacek of spreading rumors about him, an accusation that did not rise to the level of dishonesty, FTO Wilson, himself, had not recommended that Hornacek be discontinued in the program. None of the 10 other FTOs who trained and were assigned to evaluate Hornacek had recommended that he discontinue in training."

The trial court therefore concluded that the Commission's decision was supported by substantial evidence and did not constitute an abuse of discretion.

The Sheriff appeals from the judgment denying his petition for writ of administrative mandamus.[9]

II.

DISCUSSION

A. Applicable Legal Standards

Before examining whether the record supports the Commission's decision, we discuss the legal standards applicable to our review of the trial court's ruling denying the Sheriff's petition for writ of administrative mandamus brought pursuant to Code of Civil Procedure section 1094.5.[10] As we have explained, the Sheriff challenges both (1) the finding that Hornacek was inefficient rather than incompetent; and (2) the decision to reduce the termination to a two-day suspension.

The first issue requires a review of the Commission's findings of fact. When considering a public employer's petition for administrative mandamus challenging an administrative body's decision regarding employee discipline, a court applies a substantial evidence standard of review to findings of fact. (Kolender v. San Diego County Civil Service Com. (2007) 149 Cal.App.4th 464, 470-471 (Kolender II).)[11] "On appeal, we do not 'undertak[e] a review of the trial court's findings or conclusions. Instead, "we review the matter without reference to the trial court's actions. In mandamus actions, the trial court and appellate court perform the same function." ' " (Jefferson Street Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175, 1197.) "Under the substantial evidence rule, reasonable doubts on conflicting evidence must be resolved in favor of the factual resolution by the Commission." (Lowe v. Civil Service Com. (1985) 164 Cal.App.3d 667, 676.) " 'The reviewing court, like the trial court, may not reweigh the evidence, and is "bound to consider the facts in the light most favorable to the [Commission], giving it every reasonable inference and resolving all conflicts in its favor." ' " (Hoitt v. Department of Rehabilitation (2012) 207 Cal.App.4th 513, 522.) There is a presumption that the Commission's findings are supported by substantial evidence, and the Sheriff (as appellant) has the burden of demonstrating otherwise. (Schutte & Koerting, Inc. v. Regional Water Quality Control Bd. (2007) 158 Cal.App.4th 1373, 1384.)

The second issue raised by the Sheriff requires us to review the discipline that the Commission decided to impose on Hornacek. " ' " 'The penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated. . . . Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed.' " ' " (Cate v. State Personnel Bd. (2012) 204 Cal.App.4th 270, 283-284 (Cate).) "If reasonable minds may differ as to the propriety of the penalty imposed, there has been no abuse of discretion. [Citation.] It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown." (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 46-47.) In conducting our review of "the administrative agency's determination of penalty," we give "no deference to the trial court's decision on the issue" and focus exclusively on the Commission's decision. (Cate, at p. 284.)

B. The Finding That Hornacek Was Inefficient Rather than Incompetent Is Supported by Substantial Evidence

The Sheriff's first challenge is to the hearing officer's finding (adopted by the Commission) that "[t]he evidence does not support a violation of Civil Service Rule 7.2(a) (incompetency)[;] it more appropriately supports a violation of Civil Service Rule 7.2(b) (inefficiency)."

The parties point to no further definition of the term "incompetency" or "inefficiency" in the applicable civil service rules. We therefore turn to the commonly accepted definitions of the words. As the Sheriff points out, case law observes that "incompetent" has a plain meaning. "It is a plain word and means not competent. (The American Heritage Dict. of the English Language (1981) p. 666.) Competent, in turn, means properly or well qualified; capable-adequate for the purpose, suitable; sufficient. (Id. at p. 271.)" (Perez v. Commission On Professional Competence (1983) 149 Cal.App.3d 1167, 1175.) Inefficient is defined as "not producing the effect intended or desired" and "wasteful of time or energy in performing work." (Webster's 3d New Internat. Dict. (2002) p. 1156, col. 2.)

In light of these definitions, and when read in the context of the Commission 's decision, it appears that the Commission used the term "incompetency" to mean that the employee was not capable or qualified to perform a specific job. In contrast, as the Commission used the term "inefficiency," it meant that the employee was not accomplishing the required tasks in an appropriate amount of time. As applied here, Hornacek would be incompetent if the hearing officer concluded that, based on Hornacek's performance during training, it was established that he could not be trained to meet the standards required of a patrol deputy. Hornacek would be inefficient if he was taking too long to learn how to become a fully-functioning patrol deputy.

Substantial evidence supports the Commission's findings that, based on the evidence presented, Hornacek was inefficient because his training was taking longer than expected. To support a finding of inefficiency, the evidence established that patrol deputy training usually lasts approximately 60 days, but because of Hornacek's difficulties in Vista during Phase 1 and Phase 2, and the fact that he started over his training in Santee, Hornacek had trained for approximately 100 days before he was terminated. Further, the evidence shows that even at the end of Phase 3 training, Hornacek was still having problems in some areas, and received a "1" in three areas on his last day of training, even though the FTO recommended in that evaluation that Hornacek proceed with his phase training. Thus, under the circumstances, Hornacek likely would be required to extend his Phase 3 training and receive an FTO Worksheet to address his deficiencies before proceeding to the final shadow phase of training. The evidence thus strongly supports a finding that Hornacek was proceeding very inefficiently through training.

However, the Commission reasonably could find, based on the evidence, that the Department did not meet its burden to show that if the Department applied the procedures set forth in its own field training manual, Hornacek would be unable to raise his performance to an acceptable standard before the end of phase training, and was thus incompetent. Indeed, Hornacek's progress through the training program shows that he was eventually able to address and cure the deficiencies that caused him to perform poorly in the first two phases in Vista. Specifically, after he was given the time and opportunity to restart his training in Santee, he was able to meet the requirements of Phase 1 and Phase 2 and the three specialty training areas with few problems. Further, during Phase 3 in Santee, although significant problems arose, such as with his searches, his FTOs commented that he had improved. With the exception of FTO Wilson, who recommended termination based on an ultimately unfounded allegation of dishonesty, each of Hornacek's FTOs believed he should continue with his phase training and did not describe him as appearing to lack the ability to master the needed skills. As the Commission observed, Hornacek ultimately may not be able to successfully complete his training and become a patrol deputy. "He has shown signs of improvement but his prior inconsistent performance counsels caution as to whether that will be maintained."

Accordingly, applying the deferential standard of review which requires us to affirm the Commission's factual findings if they are supported by substantial evidence and prevents us from reweighing the evidence, we conclude that sufficient evidence supports the Commission's finding that Hornacek was inefficient. The Commission reasonably could find, based on the evidence presented, that because Hornacek was still in training, the Department did not meet its burden to prove that he was incompetent, rather than inefficient.

C. The Commission Abused Its Discretion in Not Expressly Considering and Making a Finding on Public Safety When Modifying the Discipline to a Two-Day Suspension

The Sheriff next contends that the Commission abused its discretion in concluding that Hornacek should receive a two-day suspension rather than a termination.

As we have explained, " ' "Courts should let administrative boards and officers work out their problems with as little judicial interference as possible" ' " and "[j]udicial interference with the agency's assessment of a penalty 'will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency.' " (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 54.) Further, in considering the Sheriff's challenge to the Commission's disciplinary determination, we keep in mind that it is the Commission's role to " 'independently review the facts and law, and the Sheriff's findings and final disciplinary order are not due substantial deference.' " (Kolender II, supra, 149 Cal.App.4th at p. 471.)

The Sheriff contends that the Commission abused its discretion because it disregarded the interest of public safety in determining that Hornacek's employment should not be terminated. Specifically, the Sheriff argues that because Hornacek was performing poorly in areas involving public safety, such as conducting searches and being attentive to other officer safety risks, it would be detrimental to public safety if Hornacek were to continue to be employed as a deputy sheriff.

As case law establishes, "[a]n abuse of discretion occurs where . . . the administrative decision manifests an indifference to public safety and welfare." (Hankla v. Long Beach Civil Service Com. (1995) 34 Cal.App.4th 1216, 1222 (Hankla).) Thus, " '[i]n considering whether such abuse occurred in the context of public employee discipline, . . . the overriding consideration . . . is the extent to which the employee's conduct resulted in, or if repeated is likely to result in, "[h]arm to the public service." ' " (Id. at pp. 1222-1223.) "The public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability." (Id. at p. 1223.) Public safety is especially implicated when police officer performance is at issue because "police officers 'are the guardians of the peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintaining law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them.' " (Id. at p. 1224.) "A deputy sheriff's job is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer." (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.)

As this case involves the employment of a law enforcement officer, we place great emphasis on the issue of whether the Commission sufficiently considered the interest of public safety. Here, despite the importance of public safety in determining the appropriate discipline in cases involving law enforcement officers, the Commission did not consider or make a finding on the issue of public safety when discussing the appropriate level of discipline. When determining whether the charge of inefficiency was supported by the evidence the Commission found that "[Hornacek's] performance has been inefficient particularly with respect to searches, which could affect public safety" (italics added), but the Commission did not address the issue of public safety in its discussion of the level of discipline it would impose on Hornacek. Instead, in determining the appropriate level of discipline, the Commission focused solely on (1) the lack of prior discipline; (2) the lack of any prior recommendation that he not continue with training; and (3) the absence of any dishonesty or misconduct. Although Hornacek is a law enforcement officer, for whom maintaining and protecting public safety is a crucial qualification, lacking from the Commission's discussion was any consideration of how Hornacek's problems with searches and pat downs, "which could affect public safety," impacted the appropriate disciplinary response to the situation.

As explained in Hankla, supra, 34 Cal.App.4th at page 1222, "[a]n abuse of discretion occurs where . . . the administrative decision manifests an indifference to public safety and welfare." Here, the Commission manifested an indifference to public safety and welfare because it failed to consider whether Hornacek posed a risk to public safety when it determined the appropriate level of discipline. We are also mindful, however, that it is the Commission's role, in the first instance, to determine the appropriate degree of discipline. (See Cate, supra, 204 Cal.App.4th at p. 284 ["Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed"].) In this case, because the Commission failed to consider and make a finding on the issue of public safety, it did not have a chance to exercise its discretion as to how the issue of public safety should impact the appropriate level of discipline.

Because we defer to the Commission's reasonable judgment on the issue of appropriate discipline, the Commission should, in the first instance, consider how the risk to public safety posed by Hornacek's inefficient behavior during training should impact the level of discipline. If the Commission were to consider the issue of public safety, it might conclude that the types of problems Hornacek was having in performing searches and gaining competence in other aspects of officer safety at the end of Phase 3 training, if repeated, would create such a significant risk to public safety that Hornacek should not be permitted to continue any longer as trainee patrol deputy. On the other hand, the Commission might also conclude that the risk to public safety presently posed by Hornacek is not sufficient to warrant termination. For instance, if the Commission considered the issue of public safety, it might determine that Hornacek possibly could resolve his problems if given another extended training period, including appropriate use of field training manual procedures (such as FTO Worksheets), or alternatively that there might be another appropriate assignment to offer to Hornacek within the Department that would not pose such a risk to public safety.

In order to give the Commission the opportunity, in the first instance, to exercise its discretion on how the issue of public safety impacts the appropriate level of discipline for Hornacek's inefficiencies as a patrol deputy trainee, we will reverse and remand this matter to the trial court with directions that it order the Commission to reconsider the issue of the appropriate discipline to impose on Hornacek, and in doing so, to expressly consider and make a finding on whether, in light of any risk to public safety posed by Hornacek, the termination imposed by the Sheriff is warranted.

DISPOSITION

The trial court's judgment is reversed, and this matter is remanded to the trial court with directions to issue an order directing the Commission to expressly consider and make a finding on the issue of public safety when determining the appropriate level of discipline.

IRION, J.

WE CONCUR:

HALLER, Acting P. J.

GUERRERO, J.