247 Cal. App. 4th 1027
Cal. Ct. App.2016Background
- Grant Seibert, a San Jose firefighter/paramedic, exchanged sexually explicit e‑mails while on duty with N.C., a high‑school student who was 16 at the time; her father discovered the messages and complained to the fire station.
- The Department investigated and issued an amended notice of discipline (six counts: sexual e‑mails; interacting with someone he knew or should have known was a minor; inappropriate touching/comments/leering toward coworker Leah Fazio; and dishonesty). Seibert was dismissed effective November 18, 2009.
- Seibert appealed to the Civil Service Commission; the Commission sustained all charges except dishonesty and upheld dismissal. Seibert sought writ relief in superior court.
- The superior court (independently reviewing the administrative record) set aside most findings: it held the e‑mail charge did not violate a specific policy absent knowledge of the recipient’s age, found insufficient proof of knowledge of minority, and excluded investigator interview transcripts of Fazio as unauthenticated/hearsay, leading to reversal of the Fazio‑related findings; it reduced penalty as excessive.
- Both parties appealed. The Court of Appeal (6th Dist.) (1) affirmed that untimely filing of the notice with the Commission did not deprive the Commission of subject‑matter jurisdiction and was forfeited by Seibert; (2) agreed the single e‑mail charge, as framed, could not be sustained absent proof of knowledge of the minor’s age; (3) held the trial court erred in excluding Fazio’s investigative transcripts (they were admissible either as prior inconsistent statements or past‑recollection‑recorded and authentication objection was forfeited); and (4) directed that on remand matters covered by the Firefighters’ Procedural Bill of Rights (FPBOR) must be adjudicated by an administrative law judge (ALJ) unless binding arbitration is contractually available.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timely filing of notice with Commission (SJMC §3.04.1380B) | Seibert: untimely filing deprived Commission of jurisdiction; relief available at any time. | City: filing was a bookkeeping formality; Commission had jurisdiction once Seibert appealed; objection was forfeited by delay. | Court: filing requirement not jurisdictional in the extreme; defect was at most voidable and forfeited by Seibert’s failure to timely object. |
| Whether e‑mail exchange alone violated any specific rule/policy | Seibert: private on‑duty sexual e‑mails (without knowledge of minor) did not transgress any written policy; disciplinary result excessive. | City: conduct brought discredit to Dept.; on‑duty sexualized conduct and paramedic framing made it especially objectionable even if partner was adult. | Court: No substantial evidence that existing policies (as of 2008) proscribed the conduct; charge unsustainable absent proof of actual or constructive knowledge recipient was a minor. |
| Knowledge of recipient’s minority (constructive/actual) | Seibert: he reasonably believed correspondent to be an adult; evidence supports his account. | City: visitor told station she was a junior/16 and other circumstantial indicators should have put him on notice. | Court: Evidence was conflicting; trial court’s finding that Seibert lacked actual/constructive knowledge is supported by substantial evidence and may stand, though trial court must apply the Fukuda presumption on full reconsideration. |
| Admissibility of investigator’s transcripts of Fazio (authentication/hearsay) | Seibert: transcripts unauthenticated and hearsay — should be excluded. | City: transcripts are proper evidence; Fazio’s testimony disavowing memory made transcripts admissible as prior inconsistent statements or past‑recollection—plus City could have authenticated. | Court: Seibert forfeited authentication objection by not timely objecting before Commission; transcripts were admissible either as prior inconsistent statements under Evid. Code §1235/§770 or as past recollection recorded (§1237); trial court erred in excluding them. |
| Forum for remand (FPBOR) | Seibert: FPBOR requires ALJ or, if MOU provides, binding arbitration. | City: FPBOR inapplicable or union must opt into arbitration; Seibert waived arbitration. | Court: Fazio‑related charges fall within FPBOR scope; absent a valid arbitration trigger in the MOU (including union agreement), remand proceedings must be before an ALJ. |
Key Cases Cited
- Fukuda v. City of Angels, 20 Cal.4th 805 (1999) (trial court must independently review administrative findings but indulge a strong presumption of correctness in favor of the agency and place burden of rebuttal on challenger)
- California Correctional Peace Officers Assn. v. State Personnel Bd., 10 Cal.4th 1133 (1995) (time limits often held directory; prescription on whether agency action is invalidated for procedural time breach)
- Mt. Holyoke Homes, LP v. California Coastal Com’n, 167 Cal.App.4th 830 (2008) (distinguishing lack of subject‑matter jurisdiction from actions “without or in excess of jurisdiction” and consequences)
- People v. American Contractors Indem. Co., 33 Cal.4th 653 (2004) (distinguishing void versus voidable agency actions)
- Strumsky v. San Diego County Employees Retirement Assn., 11 Cal.3d 28 (1974) (independent review standard for judicial review of administrative decisions affecting vested public employment rights)
- Deegan v. City of Mountain View, 72 Cal.App.4th 37 (1999) (scope of trial court authority to vacate agency penalty for manifest abuse of discretion)