Rodriguez v. City Council of San Jacinto

Filed 4/13/06 Rodriguez v. City Council of San Jacinto CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Rex H. Minter, Judge. (Retired Judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Harrington, Foxx, Dubrow & Canter, Dale B. Goldfarb, Colleen R. Smith and Ross R. Scarberry for Plaintiff and Appellant.

Best, Best & Krieger and David J. Hancock for Defendant and Respondent City Council of San Jacinto.

Appellant Frederick Rodriguez (Rodriguez) appeals the trial court's order denying his second petition for writ of administrative mandate. By filing the petition, Rodriguez sought to overturn the decision of the San Jacinto City Council (City Council) (on remand from the trial court in the first mandate proceeding) to terminate his employment as a sergeant with the San Jacinto Police Department (Department). On appeal, Rodriguez argues: (1) the City Council violated Government Code section 3304, subdivision (d) by punishing him for alleged misconduct that took place more than one year before the City of San Jacinto (City) completed its investigation and notified him that he might be terminated; (2) the City Council did not comply with the superior court's order from the first mandate proceeding to fairly reconsider Rodriguez's termination; and (3) the 11 charges of misconduct sustained by the superior court in the first mandate proceeding and relied upon by the City Council in its reconsideration do not justify the termination. As explained below, we reject all these contentions and affirm the judgment of the trial court.

Facts and Procedural Background

Rodriguez began working as a patrol officer for the Department in 1990. In 1994 he was promoted to sergeant. In 1997 or 1998, he was promoted to sergeant in charge of administration and detectives. He was terminated from his employment with the Department on March 27, 2000.

Rodriguez's troubles began approximately two months after his wife of over four years left him in November of 1998. Ms. Rodriguez filed for divorce on January 4, 1999.

From about January 6 until April 1, 1999, Rodriguez used the City's telephones while on duty to call Ms. Rodriguez 39 times at work, six times within three minutes of a previous call, despite Ms. Rodriguez's requests that he not do so. Ms. Rodriguez worked as a courtroom clerk at the Perris Branch of the Riverside Superior Court. In January 1999, Ms. Rodriguez called Rodriguez's supervisor, Commander Barry Backlund and asked him to tell Rodriguez to stop calling her at work. In late January or early February, Trisha Carrasco, Ms. Rodriguez's supervisor, also called Backlund to complain that the phone calls were disruptive to the courtroom and asked him to tell Rodriguez to stop calling Ms. Rodriguez at work. Backlund asked Rodriguez to stop making the phone calls,^[1] but Rodriquez ignored the request.

On February 2, 1999, while off-duty, Rodriguez went uninvited to Ms. Rodriguez's Hemet home at about 8:30 p.m. He went to the rear of the home, peered over the fence into the yard, and saw Ms. Rodriguez's vehicle and another vehicle that he did not recognize behind a padlocked gate. He used his cellular telephone to call the Department and asked the dispatcher to run a check on the other vehicle through the Department of Motor Vehicle's CLETS^[2] system. The check revealed that the vehicle belonged to Tom Mitchell (Mitchell), a co-worker of Ms. Rodriguez with whom Rodriguez suspected she was having an affair. Rodriguez went to the front door of the home and demanded to be let in. He pounded on the front door, used foul language and threatened to kick in the door if Mitchell would not come outside. Ms. Rodriguez called 911. The Hemet Police Department responded and persuaded Rodriguez to leave without further incident. Sergeant Howard Ballard of the Department was notified and he arrived as well.

In February 1999, the Department's chief of police advised Rodriquez to stop calling Ms. Rodriguez at work because he was causing himself problems. In March 1999, Trisha Carrasco again telephoned Commander Backlund to tell him that the phone calls to the Perris courthouse continued, that they were disrupting the work place, and that she would file a formal complaint if the calls did not stop. Backlund again advised Rodriguez to stop calling Ms. Rodriguez at work.

In March 1999, after learning that Ms. Rodriguez had moved to a Temecula apartment with Mitchell, Rodriguez attempted to obtain the new address and telephone number from a utility company. When he was unable to get the information, he asked detective Mike Lynn to use his official capacity to obtain Ms. Rodriguez's forwarding address and telephone number from the Hemet Water Department. Rodriguez used this information to contact Ms. Rodriguez by telephone at her new residence. Mitchell filed a written complaint with the Department alleging Rodriguez had used his official capacity to obtain their address and phone number.

Administrative Investigation and Hearings

On June 1, 1999, the Department began an administrative investigation in response to Mitchell's complaint. On January 18, 2000, Commander Backlund gave Rodriguez a Notice of Intent to Recommend Suspension and Reduction in Pay recommending a two-week suspension without pay and a one-step reduction in pay for six months. This was based on three charges stemming from: 1) the phone calls to Ms. Rodriguez's work; 2) the phone calls to Ms. Rodriguez's and Mitchell's home; and 3) use of his authority to run Mitchell's vehicle license number through CLETS and to direct a subordinate to obtain Ms. Rodriguez's forwarding address and telephone number from a utility company. At that time Chief of Police Hanavan was placed on administrative leave. On February 4, 2000, Acting Chief of Police Backlund issued a second Notice of Intended Disciplinary Action identical to the January 18 notice. Rodriguez participated in a Skelly^[3] hearing on those charges before the City Manager, James Mocalis, on February 15, 2000.

On February 23, 2000, Mocalis notified Rodriguez that he was terminated based on 16 separate charges of misconduct rather than the three charges listed in the two previous notices. Because of the additional charges, Rodriguez participated in a second Skelly hearing on March 23, 2000, before Mocalis and Interim Chief of Police Paul Ramos. Following this hearing, one of the charges was withdrawn, but Rodriguez was terminated effective March 27, 2000.

Administrative Appeal

Rodriguez filed an administrative appeal, which was heard on December 8, 11 and 20, 2000, and February 26, 2001. On August 9, 2001, the hearing officer failed to sustain three of the remaining charges and concluded that the proper penalty was the one initially proposed by Commander Backlund--a two-week suspension without pay and a one-step reduction in pay for six months. The City Council then reviewed the administrative record. On January 3, 2002, the City Council concluded that dismissal was the appropriate discipline and denied Rodriguez's appeal of the dismissal.

First Writ Petition

In April of 2002, Rodriguez filed a petition for writ of administrative mandate in the superior court. The superior court issued its statement of decision on December 24, 2002. On March 7, 2003, the superior court granted the writ in part and denied it in part. The court concluded that that there was insufficient evidence to support three of the charges, found that the city council abused its discretion â€