Fear Not Law Articles: Pinto v. City of Visalia Part I

Filed 5/25/06

Pinto v. City of Visalia

Filed 5/25/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

BRYAN PINTO,

Plaintiff and Respondent,

CITY OF VISALIA, et al.,

Defendants and Appellants.

F048094

(Super. Ct. No. 05-214342)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Paul A. Vortmann, Judge.

Dooley Herr & Peltzer, Leonard C. Herr and Kris B. Pederson for Defendants and Appellants.

Phillip J. Cline, District Attorney (Tulare), Don Gallian and Carol B. Turner, Assistant District Attorneys, and Barbara J. Greaver, Deputy District Attorney; Kathleen Bales-Lange, County Counsel (Tulare), and Crystal E. Sullivan, Deputy County Counsel, for District Attorney's Office and County Counsel's Office as Amici Curiae on behalf of Defendants and Appellants.

Joseph M. Arnold for Plaintiff and Respondent.

-ooOoo-

The City of Visalia Police Department's Chief of Police, Jerry Barker, terminated police officer Bryan Pinto for (1) failing to report a sexual relationship between a minor and an adult, (2) failing to report a sexual assault between an adult and a minor, (3) lying during the course of a criminal investigation, and (4) encouraging an involved party to lie during the course of a criminal investigation. Pinto appealed to the city manager, Steven Salomon, and requested an administrative hearing pursuant to the City of Visalia's administrative hearing procedure. After an evidentiary hearing before an arbitrator, the arbitrator found the evidence sufficient to sustain the first three allegations of misconduct and that each act was sufficient to sustain Pinto's termination. The City ratified the arbitrator's decision.

Pinto filed a petition for writ of mandate, which challenged the City's findings of misconduct with respect to the first two incidents and requested the superior court to either set aside the City's decision and restore him to employment or remand the matter to the City with directions to set aside the decision to terminate him and impose a lesser penalty. The trial court granted the petition, finding the evidence insufficient to support the misconduct findings with respect to the first two allegations of failure to report sexual relationships between a minor and adult, and the City abused its discretion when it terminated Pinto for his admission of lying. The trial court remanded the matter to the City to impose a penalty less than termination. The trial court subsequently denied the City's motion to set aside and vacate its order, and awarded Pinto his attorney's fees and costs pursuant to Government Code section 800.

The City of Visalia, its city manager Steven Salomon, and its Chief of Police Jerry Barker (collectively the City) appeal from the judgment, contending the trial court erred when it: (1) found the second incident of failure to report a sexual assault between an adult and a minor was not supported by substantial evidence; (2) determined the penalty of termination was excessive and an abuse of discretion; (3) denied its motion to set aside and vacate its order; and (4) failed to make findings of fact to support the attorney's fees award. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2001, the City of Visalia Police Department (VPD) hired Pinto as a police officer. On March 27, 2003, the VPD, through its Assistant Chief of Police Robert Williams, gave Pinto written notice that VPD intended to terminate his employment effective April 30, 2003. The notice specified four causes for the dismissal: (1) in December 2002/January 2003, he was â€

Description	In reviewing city's termination of police officer for failing to report sexual abuse of minor, trial court correctly treated officer's duty under department policy to be coextensive with statutory duty to report such abuse if he learned of it while on duty or otherwise acting in a professional capacity, absent showing that department intended its policy to apply more broadly. Evidence that officer, after learning in private capacity of sexual relationship between adult and minor, gave advice to minor as to how to handle relationship did not establish that officer was acting in a professional capacity when he gave that advice and thus did not undermine trial court's finding that officer was not obligated to report relationship to department. Termination of officer was an abuse of discretion where only finding of misconduct sustained by trial court after independent review of the evidence was that officer lied during course of a criminal investigation, department policy did not mandate termination for lying, officer had no prior disciplinary record, officer retracted false statement and told truth before conclusion of interview in which he initially lied, department never relied on false statement for any purpose, and it was unlikely--based on police chief's testimony--that department would have terminated officer had it not made the additional findings of misconduct that were rejected by trial court. Award of attorney fees to terminated peace officer under Government Code Sec. 800 need not be accompanied by factual findings to support trial court's determination that termination was arbitrary or capricious unless employer requests statement of decision, and where officer awarded fees under that section prevails on appeal, fees should normally be awarded for the appeal.
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