Stowe v. City of Escondido














Filed 3/24/17 Stowe v. City of Escondido CA4/1







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.






COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



KEVIN STOWE,

Plaintiff and Respondent,

v.

CITY OF ESCONDIDO,

Defendant and Appellant,

D069584



(Super. Ct. No. 37-2014-00040886-
CU-WM-NC)


APPEAL from an order of the Superior Court of San Diego County, Timothy M. Casserly, Judge. Reversed; remanded with directions.
Jeffrey R. Epp, City Attorney, Michael R. McGuiness and Allegra D. Frost, Deputy City Attorneys, and Mark P. Bookholder for Defendant and Appellant.
Bobbitt, Pinckard & Fields, Robert W. Krause and Amy R. Margolies for Plaintiff and Respondent.
Kevin Stowe, a former police officer for the City of Escondido (City), appealed the recommendation that his employment be terminated to the Escondido Personnel Board of Review (Board). After conducting over six days of hearings, the Board issued a 30-page decision in which it sustained nine out of the 13 violations found by the police department against Stowe. However, the Board disagreed with the recommended level of discipline, and thus, suggested that Stowe be suspended for 10 days without pay.
The chief of police appealed the Board's decision to the Escondido City Council (Council). The Council ultimately concluded that termination of Stowe's employment was the appropriate discipline.
Stowe filed a petition for writ of mandate seeking to overturn the Council's termination decision. The superior court ruled in favor of Stowe, finding that the City's mayor made certain comments that showed actual bias. As such, the superior court granted the petition and ordered the City to conduct a new hearing without the mayor.
The City timely appealed, contending, among other things: (1) the mayor's comments did not exhibit actual bias; and (2) the decision to terminate Stowe was not the product of an abuse of discretion. We agree with the City that the mayor's comments did not exhibit any actual bias. In addition, we are satisfied that the Council did not abuse its discretion in deciding to terminate Stowe. As such, we reverse the superior court's order and remand this matter back to the superior court with directions to enter an order denying Stowe's petition for a writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
Stowe began working as a police officer for the City in July 2007. A number of incidents starting on May 18, 2012, and occurring on August 9, 2012, August 17, 2012, September 1, 2012, October 27, 2012, and October 31, 2012, culminated in a series of lengthy and detailed internal affairs investigations for department policy violations, including the unreasonable use of force. On April 16, 2013, Escondido Police Department Captain Michael Loarie recommended Stowe be terminated from his employment. Stowe appealed this decision to the chief of police and then to the city manager. Both the chief of police and the city manager agreed with the termination recommendation. Finally, Stowe appealed the recommendation to the Board.
Over six days of hearings in May and June of 2014, the Board took testimony and considered evidence. The Board issued a 30-page decision, which sustained nine out of the 13 violations found by the police department, including determinations regarding performance of duty, neglect of duty, reporting, inefficiency or incompetence, and willful disobedience or insubordination. Despite these findings, and Stowe's admission that he made some "mistakes," the Board disagreed with the level of discipline to be imposed: "Accordingly, it is the Board's conclusion that termination is not the appropriate level of discipline."
Rather than termination, the Board believed a "ten (10) day suspension without pay" was the more appropriate sanction. The Board also decided that, within six months, Stowe should refamiliarize himself with Escondido Police Department procedures and attend training on report writing, use of force, and defensive tactics.
The chief of police appealed the Board's decision to the Council, which has final decisionmaking authority under Escondido Municipal Code section 19-67(e)-(f), and the City's personnel rules and regulations. The City hired an independent attorney to provide legal advice to the Council for the appeal. The Escondido Police Department specifically asked the Council to consider the testimony of certain police personnel, Stowe's use of force, his lack of remorse, and that his rationalization for each use of force indicates that he was not retrainable. The Escondido Police Department argued that the nine violations found by the Board were serious enough on their own to warrant termination because termination is the only level of discipline that adequately protects the City's citizens.
On August 27, 2014, the Council held a nonpublic hearing to consider the appeal. Four of the City's five Council members were present, one having abstained from participating and voting due to a conflict. Before the hearing, the four council members received and considered the full record of the administrative proceedings to that point, including the transcripts of the Board proceedings and all of the evidence presented, as well as the written briefs and oral argument presented by both Stowe and his attorney as well as the Escondido Police Department and the City's attorney. During the hearing, each party was given 10 minutes to argue and then the Council members asked questions. During his argument, Stowe's attorney took exception to the City's position paper, noting:
"But the City Attorney asserts quote, in short, comma, the Police Chief is in the best position to make a determine [sic] to terminate Stowe, comma, and had ample evidence on which to make the call. The detailed review by the Assistant City Manager also supported the Police Chief's findings. The Police Chief's decision should be sustained by the City Council, end quote.

"That position on its face is assertive to a point, not accurate to a larger point, and is simply not the law to the larger point. The former Chief in this case, in his last – this was one of his last acts as the Police Chief – never heard any of the cross-examination. He was left with a paper pile. He was left with an investigation which I think was flawed. He never heard any cross-examination, never reviewed or heard any of the entirety of the evidence in the case, did not hear from eyewitness officers in support of Kevin. And by 'eyewitnesses,' I mean not eyewitnesses that like Kevin, eyewitnesses that saw the events and testified.

[¶] . . . [¶]

"So the Chief did not – is not in the best position to have evaluated the credibility of any witnesses, neither did the Assistant City Manager. And look who the City Attorney excluded in his presentation of who reviewed this until he was asked, the Board."

Stowe's counsel also took issue with some of the authority relied upon by the City, arguing that Burrell v. City of Los Angeles (1989) 209 Cal.App.3d 568 does not support the City's position that the chief of police was in the best position to make the decision to terminate Stowe.
Responding to Stowe's attorney's critique of the former chief of police's decision making authority, the mayor stated:
"Yes. Okay. Just want to make sure that we trust our Police Department. We trust our Chief. If I have to trust somebody to run the Police Department, yes, the Chief has the authority to make that determination. I'm a big proponent of our police doing their job, but questioning whether the Chief of Police has the authority to make that determination is offensive to be honest with you.

"We have had a lot of – you know, we want to give Mr. Stowe due diligence here in the process, and we looked at all the evidence, but they – it's just we will be deliberating those in closed session. But we appreciate the due diligence of the process through our City, through our management and through the Personnel Review Board. So we are giving you the due diligence and the proper process to make the determination.

"So with that, we need to – I need a motion to move to closed session."

The Council then deliberated and issued their "Findings, Conclusions and Decision of the City Council of the City of Escondido Sustaining The Termination Of Employee Kevin Stowe." The Council took a three-part approach in making their findings. First, the Council looked only at those nine findings of the Board with which it agreed, unanimously approved those findings, and on that separate basis standing alone, found that termination was appropriate. The nine findings included failure to document the use of force, failure to follow established safety protocols following the use of the carotid restraint, failure to adequately investigate crimes of domestic violence, and failure to prepare police reports. Second, the Council then disapproved in part, and modified the decision of the Board regarding four other violations. The Council noted that those four violations, without more, warranted termination. Third, the Council did not change the remaining findings of the Board. Based on the evidence before it, the Council found that the appropriate discipline for Stowe was termination.
Stowe filed a petition for writ of mandate seeking to overturn the Council's decision to terminate his employment. The petition for writ of mandate recited the Board's decision and the Council's decision and asked that the Council's decision be vacated, all adverse findings relating to the incidents be removed from Stowe's personnel records, and that Stowe be reinstated with back pay.
On November 20, 2015, the trial court issued a tentative opinion denying the petition and concluding that Stowe had failed to meet his burden of proving that the administrative findings are contrary to the weight of the evidence. The tentative opinion also concluded that the Council's decision to terminate Stowe did not exceed the bounds of reason because reasonable minds may differ as to the propriety of the penalty imposed.
On November 20, 2015, the trial court heard oral argument from the City and Stowe. During argument, Stowe focused on the fact that the tentative decision failed to address the issue of expressed or actual bias by the mayor. No similar claim of bias was raised against the other three Council members. Taking the comment in isolation, Stowe argued that the mayor was biased because he was "offended by the process that allowed the chief of police to be challenged at all." Stowe also analogized to a civil case and argued that if a judge in front of the jury had made the mayor's statement, that statement would have been impermissible. Finally, Stowe argued that the Council's decision was an abuse of discretion and not supported by the weight of the evidence.
On November 24, 2015, the trial court issued a minute order granting Stowe's petition for writ of mandate by focusing on the single issue of alleged mayoral bias. The trial court reasoned that the mayor's comment established an abuse of discretion and actual bias because, "the only rational way to interpret the Mayor's comments is that it is his personal belief that the Chief should be the ultimate decision maker with respect to firing decisions." Therefore, the superior court found that Stowe had established an unacceptable probability of actual bias on the part of the mayor. As a result, the superior court granted the petition and ordered the City to conduct a new hearing without the mayor.
The City timely appealed.
DISCUSSION
"A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law." (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482 (Nasha), citing Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169–1170; Anserv Ins. Services, Inc. v. Kelso (2000) 83 Cal.App.4th 197, 205.)
Here, the crux of the claim of unfairness rests entirely on the mayor's comments. The City characterizes the mayor's comments as ambiguous and argues the comments do not show any bias. To the contrary, Stowe maintains "[i]t is difficult to imagine a more direct manifestation of bias than [the] words from the Mayor's mouth."
Procedural due process in an administrative hearing requires a reasonably impartial, noninvolved decision maker; however, the standard of impartiality " 'is less exacting than that required in . . . judicial proceeding[s].' " (Nasha, supra, 125 Cal.App.4th at p. 483, citing Gai v. City of Selma (1998) 68 Cal.App.4th 213, 219 (Gai).) Courts recognize that "administrative decision makers are drawn from the community at large. Especially in a small town setting they are likely to have knowledge of and contact or dealings with parties to the proceeding." (Gai, supra, at p. 233.)
"Absent a financial interest, adjudicators are presumed impartial." (Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 219.) It is presumed that "agency adjudicators are people of ' "conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances." ' " (Id. at pp. 221-222.) "To show nonfinancial bias sufficient to violate due process, a party must demonstrate actual bias or circumstances ' "in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable." ' " (Id. at p. 219.) This is an objective test. (Ibid.) "[D]ue process violations generally are confined to 'the exceptional case presenting extreme facts.' " (Ibid.)
" ' " '[B]ias and prejudice are never implied and must be established by clear averments.' " ' " (Nasha, supra, 125 Cal.App.4th at p. 483.) "A party seeking to show bias or prejudice on the part of an administrative decision maker is required to prove the same 'with concrete facts.' " (Ibid.)
Stowe's claim that the mayor was biased hinges entirely on the mayor's own words. However, we must view those words in the context in which they were made. During the hearing before the Council, Stowe's counsel made the following comments:
"But the City Attorney asserts quote, in short, comma, the Police Chief is in the best position to make a determine [sic] to terminate Stowe, comma, and had ample evidence on which to make the call. The detailed review by the Assistant City Manager also supported the Police Chief's findings. The Police Chief's decision should be sustained by the City Council, end quote.

"That position on its face is assertive to a point, not accurate to a larger point, and is simply not the law to the larger point. The former Chief in this case, in his last – this was one of his last acts as the Police Chief – never heard any of the cross-examination. He was left with a paper pile. He was left with an investigation which I think was flawed. He never heard any cross-examination, never reviewed or heard any of the entirety of the evidence in the case, did not hear from eyewitness officers in support of Kevin. And by 'eyewitnesses,' I mean not eyewitnesses that like Kevin, eyewitnesses that saw the events and testified.

[¶] . . . [¶]

"So the Chief did not – is not in the best position to have evaluated the credibility of any witnesses, neither did the Assistant City Manager."

Thus, Stowe's counsel was arguing that the chief of police could not and did not perform his duties. He argued that because the chief of police did not directly hear the witness testimony, but instead, reviewed a "paper pile" he was not in a position to determine whether Stowe's employment should be terminated. In other words, Stowe's counsel seemed to be challenging the authority of the chief of police to make a personnel decision for the Escondido Police Department.
In response to Stowe's counsel's comments, the mayor stated:
"Yes. Okay. Just want to make sure that we trust our Police Department. We trust our Chief. If I have to trust somebody to run the Police Department, yes, the Chief has the authority to make that determination. I'm a big proponent of our police doing their job, but questioning whether the Chief of Police has the authority to make that determination is offensive to be honest with you.

"We have had a lot of – you know, we want to give Mr. Stowe due diligence here in the process, and we looked at all the evidence, but they – it's just we will be deliberating those in closed session. But we appreciate the due diligence of the process through our City, through our management and through the Personnel Review Board. So we are giving you the due diligence and the proper process to make the determination.

"So with that, we need to – I need a motion to move to closed session."

Although the mayor's comments are somewhat ambiguous, we do not interpret them as showing that the mayor was claiming that the chief of police's decisions cannot be questioned. Instead, the mayor merely stated that he trusted the chief of police to run the Escondido Police Department, and it cannot be questioned whether the chief of police has the authority to make personnel decisions. Certainly, he was not saying that the chief of police is infallible or that his decisions cannot be questioned. In fact, after defending the authority of the chief of police in general terms, the mayor then emphasized the importance of providing Stowe with a fair process and due diligence to reach a determination. We struggle to find any evidence of bias based on the mayor's comments.
Further, we disagree with Stowe that this case is analogous to Nasha, supra, 125 Cal.App.4th 470. There, a city planning director approved a five-residence development project in the Santa Monica mountains, subject to conditions. There was a properly authorized appeal by a neighbor and a conservancy to the planning commission. (Id. at p. 475.) Prior to the hearing by the commission, however, one of the planning commission members wrote an unsigned article in a local resident association's newsletter advocating "a position against the project" because he perceived it to be a threat to wildlife migration patterns. (Id. at p. 484.) He also spoke against the project at a neighborhood association meeting. The commission member did not acknowledge, at the planning commission meeting, he was the author of the unsigned article. In addition, he mischaracterized the article as "merely informational," but, in contrast, it "advocated a position against the project." (Id. at p. 477.) And at the meeting, the commission member was the one to bring the motion to grant the appeal from the director's decision, which was then carried on a three-to-one vote. (Id. at pp. 477-478.) The developer subsequently sought a writ of mandate to overturn the planning commission decision, but the trial court denied it on the ground the developer should have known about the member's authorship of the article. The Court of Appeal reversed, concluding the planning commission's decision was "tainted by bias and must be vacated," with directions to the trial court to issue an order to the planning commission to reconsider the appeal before "an impartial panel." (Id. at pp. 485-486.) The court held the developer had established "an unacceptable probability of actual bias" on the commission member's part. (Id. at p. 482.)
In the instant matter, there are no facts that compare favorably to those in Nasha, supra, 125 Cal.App.4th 470. The mayor did not take the position that Stowe should be terminated before the Council considered the issue in a closed session. At most, he defended the authority of the chief of police to run the Escondido Police Department and make certain personnel decisions. The mayor's comments did not give rise to any inference that the Council's decision was tainted by bias.
In summary, on the record before us, we do not see any evidence that there existed "an unacceptable probability of actual bias" on the part of the mayor. We therefore conclude the procedure, as it applied to Stowe, was fair and did not violate due process.
Having determined that the process was fair, we turn to Stowe's challenge that the evidence was insufficient to support a termination of Stowe's employment. Although couched as a sufficiency of the evidence challenge, Stowe's argument actually is challenging the sanctions levied against him.
We review the penalty imposed by an administrative body for an abuse of discretion. (Landau v. Superior Court (1998) 81 Cal.App.4th 191, 218.) This court cannot "substitute its discretion for that of the administrative agency concerning the degree of punishment imposed." (Ibid., italics omitted.) Moreover, "[i]t 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, 47.)
The Council determined that termination was the appropriate level of discipline for the nine violations which the Board and Council agreed on: Stowe's failure to document his use of force, failure to follow established safety protocols following his use of the carotid restraint, failure to adequately investigate crimes of domestic violence, and failure to prepare police reports. The Council determined that the nine findings reflected a conscious and intentional disregard for basic law enforcement policies and procedures, presented a risk to the community, and exposed the City to significant liability.
The Council reasonably determined that the nine violations deserved more than the 10-day suspension recommended by the Board and termination was warranted. Stowe's disagrees, asserting that the Board's 30-page decision showed that the Board made "exhaustive findings and references to the actual record" while "the Council utterly failed in this regard[.]" Put differently, Stowe insists that the Board's findings were better supported and reasoned than the Council's; thus, this court should find that the Council abused its discretion in deciding to terminate Stowe. Stowe's argument confuses the standard of review before us.
In reviewing the record for an abuse of discretion, it is not the province of this court to determine whether the Board's or the Council's sanctions are better reasoned. Instead, we need only determine whether it can be shown that reasonable minds cannot differ on the propriety of the penalty. (Deegan v. City of Mountain View, supra, 72 Cal.App.4th at p. 47.)
The Council found, based on the findings of the Board that the Council approved and adopted, termination was the appropriate level of discipline for Stowe. In other words, the Council and Board made some of the same findings, but disagreed regarding the appropriate level of discipline. This disagreement is not of the moment, however, because Stowe has not shown that reasonable minds cannot differ about the proper level of punishment here. (See Deegan v. City of Mountain View, supra, 72 Cal.App.4th at p. 47.)
In addition, the Council disapproved of the Board's findings as to four other violations and found that Stowe used excessive force and violated various Escondido personnel rules and regulations. Stowe has not explained why the Council's findings as to those additional instances are not supported by substantial evidence. Nor has he argued that those violations did not support the Council's decision to terminate his employment. For these reasons as well, we conclude the Council did not abuse its discretion in deciding to terminate Stowe's employment.
DISPOSITION
The order is reversed. The matter is remanded to the superior court with directions to enter an order denying Stowe's petition for a writ of mandamus. The City is awarded its costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:



O'ROURKE, J.



AARON, J.

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