GRANT SEIBERT, Plaintiff and Appellant, v. CITY OF SAN JOSE et al., Defendants and Appellants.
No. H040268
Sixth Dist.
May 31, 2016
1027
Hal F. Seibert for Plaintiff and Appellant.
Richard Doyle, City Attorney, Nora Frimann, Assistant City Attorney, and Kathryn Zoglinand, Deputy City Attorney, for Defendants and Appellants.
OPINION
RUSHING, P. J.—Plaintiff Grant Seibert petitioned the superior court for a writ of administrative mandamus to set aside a decision by the Civil Service Commission (Commission) of the City of San Jose (City) denying his appeal from a decision by the San Jose Fire Department (Department) to terminate his employment as a firefighter and paramedic. The dismissal was based upon five charges of misconduct, two of which stemmed from his exchange of salacious e-mails during work hours with a 16-year-old girl who had visited the station, and three of which stemmed from allegedly improper conduct toward a female coworker. The trial court set aside the Commission‘s decision on all but one of the charges, and found that charge insufficient to sustain the level of discipline imposed. Both parties have appealed. We hold that (1) the Commission was not deprived of jurisdiction by the belated filing of the notice of discipline on which the challenged dismissal was based; (2) the trial court properly concluded that the e-mail exchange as alleged in one charge, which made no reference to the recipient‘s age, could not be found to violate any applicable rule or policy; (3) the court permissibly found, on conflicting evidence, that Seibert lacked actual or constructive knowledge of the recipient‘s age; (4) the court erred by refusing to consider the contents of interview transcripts which constituted the chief evidence of misconduct toward a female coworker; and (5) the court should have directed that any further administrative proceedings be heard and determined by an administrative law judge. We will reverse the judgment for further proceedings consistent with our opinion.
BACKGROUND
I. Salacious E-mails
On the morning of Thanksgiving Day 2008, a female high school student who lived in the neighborhood of fire station 28 brought a cookie pie to the
On December 15, 2008, N.C. again appeared at the station, this time in the company of two or three male classmates. Seibert gave the youths a tour of the station. At least one of them played junior varsity football at their high school, and recognized a photograph of the station supervisor, Captain Leong, who was a varsity football coach at the same school. He was summoned to greet them.
While at the station, N.C. apparently injured her elbow. At 2:54 p.m., after she left, she e-mailed Seibert, describing her injury. This led to an exchange of e-mails over at least a five-hour period, which grew increasingly risqué while playing on the conceit that Seibert might use his paramedic skills to treat the injury (all spelling and punctuation as in original):1
| SENDER | TEXT |
|---|---|
| N.C. 2:54 p.m. | thank you so much again for doing that haha that will definatly give them something to talk about tomorrow and apparently i nailed my elbow sometime i was there (I don‘t remember how or when) but I nailed it haha and I got in, my car and i was like hmm..my elbow kinda hurts and i got home at looked at it and its like all bleeding and bruised haha i started laughing and I was like not like this is random or anything! But yes it was very good seeing you (: |
| Seibert (G.S.) 3:06 p.m.: | That‘s funny... I don‘t remember you hitting your elbow on anything.. ???Too bad your not here, I would take care of you :) It was good seeing you too... |
| N.C. 3:34 p.m.: | Haha oh yeah that‘s right you‘re the paramedic of the team there huh? But yea hurts pretty bad but i don‘t remember hitting it haha and how would you take care of me? ;) |
| G.S. 3:38 p.m.: | is it swollen? |
| N.C. 3:42 p.m.: | i dont think so maybe a little bump but it hurts to rest on it haha but I have kinda bony arms im tinyyy |
| SENDER | TEXT |
|---|---|
| G.S. 3:48 p.m.: | sorry....what will make it better? |
| N.C. 3:52 p.m.: | haha well you‘re the doctor in the house ;) |
| G.S. 4:59 p.m.: | hmmm. .this is true... I think i would have to do a hands on evaluation |
| N.C. 5:10 p.m.: | hmm.. will that help? cuz I just wanna feel better and good. |
| G.S. 5:15 p.m.: | I think it might help :) |
| N.C. 5:20 p.m.: | so how do those work? im not sure ive had one from a paramedic before..? |
| G.S. 5:27 p.m.: | I Don‘t know if I can/should explain.....is this the ‘family’ computer ? |
| N.C. 5:31 p.m.: | no its mine (: and of course you can, a patient should know what a paramedic is thinking right? |
| G.S. 5:40 p.m.: | .. well did you say your elbow hurt. .. so as a paramedic, it is my job to ‘asses’ you and try to make you feel good.... A good ‘hands-on’ assеsment begins at the head, and works down the body examining every inch of you to make sure you are okay... of course the body needs to be exposed that way I can see all injuries |
| N.C. 5:46 p.m.: | oh really? hmm.. i think i can do that..:) so as a firefighter and getting your very “busy” calls at 3:30 in the morning do yo get hurt at all? or do you have any injuries? |
| G.S. 5:51 p.m.: | some guys can get hurt, this is a physical job, .but luckly [sic] I haven‘t gotten hurt....healthy as a horse :) I would have to evaluate you to see how healthy you are :) |
| N.C. 5:58 p.m.: | oh okay yea im not sick so thats good but im always willing to do a hands on eval with a cute firefighter :) |
| G.S. 6:42 p.m.: | How do you know you are healthy..?? I Should examine you just to make sure I may have to do a very, very thorough hands on evaluation... |
| N.C. [no time stamp]: | haha well i know im not like a cough cough sick but yes i want to be positive im not and to be very veryy thorough I think you might have to use a “instrument” that some ‘paramedics’ use right? but it kinda depends on the paramedic on how big their equipment is |
| G.S. 6:57 p.m.: | you are right. .I have a lot of equipment I can use to ‘evaluate’ you... we should start by taking your temperature with a ‘thermometer‘... |
| N.C. 7:00 p.m.: | yeah that would be good but i think you have to do the ‘hands on’ my whole body first to start the eval? then yes my temperature is must. then what else is there? |
| SENDER | TEXT |
|---|---|
| G.S. 7:12 p.m.: | So every evaluation does infact start with a hands on evaluation.. I would start at your head and work my way down... first I have to take your blood pressure then I would have to look at your lips and mouth... make sure you have no oral trauma Then look at your neck. . . then I have to make sure you are getting equal ‘rise and fall’ to your chest, make sure you don‘t have a ‘pneumothorax’ . . . this may involve exposing your chest (for medical purposes only) Then I would have to feel your stomach, and press in different places to see if you are tender’ at all Then I would have to feel your hips to make sure there is no pain. . . this could take a while to examine this area... I may need to ‘poke and probe’ in this area then after the ‘physical’ is complete. . . then I would take your temperature for a few minutes.. then I would have you move your body in different positions to see how flexible you are and that you have no sprains.. |
| N.C. [no time stamp]: | so for the different positions..i think ill pass that section of the evaluation cuz im pretty flexible ;) sо then i know that we‘ll have to use a thermometer to check my temperature in my mouth. is there any other way or place that you can check that feels good? oh i mean that tell? like maybe a place that‘s a little more wet than my mouth so your equipment can really make my temperature rise? maybe with a thermometer or..? |
| G.S. 7:31 p.m.: | It all depends on what I find with you.... the more wet you are, the deeper I can probe to evaluate you.. Also, It is in your favor to be flexible.... that will help during the evaluation lot.... give me an idea or explain to me, how ‘flexible’ you are ?? After probing you, and taking your temperature, I may have some ‘medicine’ to give to you |
| N.C. 7:34 p.m.: | uhm. .being flexible. i can bend over and touch my toes, i can kind of do the splits..im good at doing the butterfly and just laying down on my back and “stretching” but i really like bending over and touching my toes or just stretching like that |
| G.S. 7:43 p.m.: | I see.... that is a good visual...I already picture you doing that that will make my evaluation easier.. I can start my evaluation from you in several different positions, and can finish my evaluation from behind you. I like that :) I also have some ‘medication’ for you.. |
| SENDER | TEXT |
|---|---|
| N.C. [no time stamp]: | so different positions like what? im willing to try new ones cuz im sure theres plenty i don‘t know or havn‘t done yet in an evaluation.. and how big is your thermometer? cuz i think i can open my mouth pretty wide to make sure we get the correct reading. .but it may take a few tries.. and how else can we take my temperature? |
At about this point N.C.‘s father entered the room and saw what she was doing. He printed out copies of the messages and went to the fire station, arriving in the late evening. He asked to see the person in charge, who was Captain Leong. Leong described him as appearing “very upset.” According to him, the father said, “Your firefighter has been e-mailing my daughter throughout the day, throughout the night. I have a stack of hard copies here of e-mails.” He wanted to know the captain‘s chain of command. “He wanted to call the police department.” The captain called his supervisor, the battalion chief, who came to the station to meet with the father. While he was en route, the father went outside to wait, and Captain Leong asked Seibert “what was going on. And I told him that this man is very upset. And he said that you‘ve been e-mailing his daughter, who is only 16 years old. [] And at that point he responded, ‘Well, it was mutual.’ ” The Captain told Seibert that the father “wants you off the rig. He doesn‘t want to know that we‘re coming into his area with you on the rig.”
As the father later recounted the meeting to the City investigator, he told Captain Leong, “[L]ook I want to put you on notice, I believe you have a predator in your midst. He‘s had inappropriate contact with my daughter via email and I want that person removed from duty and taken out of the office, something to that extent.” He made similar comments to the battalion chief, also telling him “that I would be escalating the matter, he described to me how to do that . . . [he] said that he would also be making an escalation report the following day.” At the time of the father‘s interview, he reported that the matter had “moved over to the police department,” which had started an investigation.2
II. Interactions with Coworker
The then chief explained that by virtue of the father‘s charges, the Department “couldn‘t keep [Seibert] on the line . . . . As a paramedic, they just have too much intimate contact with people . . . .” Therefore, on a date
III. Investigation; Proceedings Before Commission
On February 13, 2009, City notified Seibert that it would be “conducting a personnel investigation” and that he was “considered the subject of the investigation.” The office of employee relations retained Morin Jacob, a private attorney specializing in public employment law, to investigate specified “allegations” based on the e-mail exchange with N.C. About two months later, she was also asked to investigate Seibert‘s conduct with respect to Leah Fazio and to “make factual findings pertaining to whether Seibert‘s conduct resulted in any violation of City policies.” In connection with the two investigations she interviewed Seibert, Fazio, and several other witnesses. She did not interview N.C., relying instead on a “summary of the recorded interview” conducted by police.
In her report on the e-mail incident, dated August 3, 2009, Jacob found that (1) Seibert had indeed exchanged the e-mails in question with N.C., (2) the evidence was “inconclusive” with respect to whether Seibert knew N.C. was a minor, (3) Seibert did not use city-owned computers to communicate with N.C., but (4) the exchanges did occur while Seibert was on duty. She also concluded that Seibert had made statements during the investigation that “either: called his credibility for truthfulness into question, made him appear evasive during this investigation, or that were inconsistent with the statements of his co-workers.” The most consequential of these statements were probably his denial of recollection as to whether he worked on certain dates, his professed inability to recall N.C.‘s name, and his professed ignorance that Captain Leong was a football coach at the nearby high school.
In her report on the Leah Fazio incident, dated August 4, 2009, Jacob opined that the Department “may determine that Seibert‘s actions . . . violated the City‘s discrimination and harassment policy; that his actions were discourteous to Fazio; and that his actions have discredited the fire department, and impaired the good order and discipline of the department. It is also a violation of City policy to act in a manner that is detrimental to the public
On November 2, 2009, the fire chief issued an amended notice of discipline based upon six charges: (1) that Seibert “exchanged emails with a female San Jose resident, during work hours, which became sexual in nature“; (2) that he “interacted inappropriately during work hours with the same female noted above, who [he] either knew or should have reasonably known was a minor“; (3) that he “inappropriately touched a female co-worker“; (4) that he “made inappropriate comments to a female co-worker“; (5) that he “engaged in inappropriate conduct, including, but not limited to, unwelcome attention, and/or leering/staring, towards a female co-worker“; and (6) that he was “dishonest during an administrative investigation and . . . not forthcoming with the investigator on several occasions.”3
On November 17, 2009, the director of employee relations issued a notice reciting that a “Skelly Conference” had been held four days previously “to provide you with an opportunity to respond to the Amended Notice of Intended Discipline . . . and present any information for consideration before a final determination was made . . . .” (See Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215.) The notice went on to state that Seibert would be dismissed from his position with the Department effective November 18, 2009. As grounds for this action the notice recited all six charges set out in the amended notice of intended discipline.
On December 3, 2009, counsel for Seibert wrote a letter to the City manager requesting arbitration pursuant to City‘s policy manual or, failing that, an appeal before the Commission. He wrote separately on the same date to the Commission, requesting a hearing “in order to appeal his dismissal.”
On May 5, 2011, after taking testimony and receiving documentary evidence, the Commission upheld all of the charges asserted in the notice of
IV. Petition for Writ
On June 29, 2011, Seibert filed a petition for writ of administrative mandate and other relief in the superior court. As grounds for relief he alleged that (1) the Commission had lacked jurisdiction by virtue of City‘s failure to file the notice of discipline within the time allotted by a governing ordinance; (2) the Commission failed to provide a fair hearing in several respects, including by “consider[ing] inadmissible evidence“; and (3) the Commission abused its discretion in 20 specified respects. The trial court ultimately issued an amended statement of decision concluding in essence that, while there was sufficient evidence to establish the e-mail exchange with N.C. as alleged in the first charge, there was insufficient evidence to establish that this conduct violated any written policy in the absence of actual or constructive knowledge on Seibert‘s part that he was corresponding with a minor. The court rejected, as less plausible than contrary evidence, the evidence suggesting that Seibert knew or should have known that N.C. was a minor. Nor did the court find the evidence sufficient to establish any of the other charges. In finding the evidence insufficient to establish the charges concerning Leah Fazio, the court noted that she denied any recollection of relevant events in her testimony before the Commission, and largely refused to consider the transcript of her questioning by investigator Jacob, on the ground that it had not been adequately authenticated. The court concluded that the evidence established, “at worst, inappropriate horseplay subject to admonition or perhaps minimal suspension without pay.” The court issued a peremptory writ directing City to set aside Seibert‘s dismissal and the Commission‘s decision upholding it and to reconsider these actions in light of the court‘s decision. City promptly appealed, and Seibert cross-appealed.
DISCUSSION
I. Commission‘s Subject Matter Jurisdiction
At the threshold we address a jurisdictional objection pressed by Seibert in his cross-appeal. He contends that the Commission lacked jurisdiction to proceed against him because the notice of discipline on which his dismissal rested was not filed with the Commission within the time allowed by the governing ordinance. The trial court addressed this subject in the first phase of a bifurcated trial, at the conclusion of which it wrote a careful and
Seibert‘s argument rests on
For purposes of analysis we will assume that the notice of discipline was not filed in compliance with
Seibert contends that the untimely filing of the notice deprived the Commission of power in the matter, rendering void any action it might take. The trial court found that he was estopped to raise this objection because he failed to do so until after the Commission had acted. As the court observed, Seibert did not object to the timeliness of the proceeding until some 17 months after he had appealed his dismissal to the Commission. During that time the Commission had conducted four hearings in which Seibert participated without objection. He first objected to the untimely filing of the petition in a petition for rehearing filed May 31, 2011.
Seibert contends that he could not be estopped to raise the objection because it went to the Commission‘s subject matter jurisdiction, a matter that can be raised at any time, and as to which objections cannot be waived or
We can readily see why failure to give timely notice to disciplined employees might be held mandatory in this sense, for without it they cannot defend themselves. But we see no reason to think the requirement of timely filing of the notice should be mandatory. The only apparent purpose of the requirement is to allow the Commission to prepare for an administrative appeal by, e.g., opening a file in the matter. If no appeal is filed, we doubt that the Commission‘s filing of a copy of the notice of discipline has any practical effect or purpose. If the employee does appeal, and the Commission has not previously been notified, it will learn of the appeal when the employee initiates it—as apparently happened here.
For these reasons, we find it difficult to attribute to the filing requirement an importance that would elevate it to the status of mandatory. A fortiori,
Here we are confident that the Commission possessed subject matter jurisdiction over the proceeding. As the governing rules are structured, every disciplinary action commences when the “appointing authority” serves notice of the intended action. (
The filing of an answer thus vests the Commission with jurisdiction, i.e., the fundamental power to hear the appeal and to determine the validity of the appointing agency‘s action. As previously noted, the requirement that the agency‘s notice of discipline be filed with the Commission seems to serve only a bookkeeping function. This defeats Seibert‘s attempt to analogize the requirement to that of filing a timely notice of appeal from a judgment of the superior court. Noncompliance with the latter requirement deprives the reviewing court of jurisdiction because timely filing is the triggering event which vests the court with jurisdiction in the first place. Here it is the
There is no occasion to pursue this thought experiment further, however. It is enough for present purposes to say that City‘s failure to file a copy of the notice with the Commission did not deprive the Commission of jurisdiction to entertain Seibert‘s appeal but at most provided a ground on which Seibert might have been entitled to object to the notice. Assuming this means the disciplinary action was “voidable” on this ground, we readily conclude—along with the trial court—that Seibert‘s failure to raise the objection at the earliest opportunity barred him from asserting it later. Had the point been seasonably asserted, City might have cured the defect by issuing a new or amended notice of discipline. Instead the defect was not brought to City‘s attention for nearly a year and a half, during which time City and the Commissiоn, as well as Seibert, sank substantial time and resources into an adjudication of the substantive issues raised by Seibert‘s appeal. It is one thing to belatedly invalidate an official action infected with a noncurable defect of substance. It is quite another to mandate a do-over based on a technical defect that might have been remedied with no prejudice to anyone had it been raised when it first appeared.
Seibert asserts that he cannot fairly be estopped to assert the defect because he himself was ignorant of it until shortly before he raised it in his petition for rehearing before the Commission. The trial court inferred that Seibert learned of the untimely filing of the notice in April 2011, when Seibert, or perhaps his counsel, asked to inspect the Commission‘s file. He raised the objection in his petition for rehearing filed the following month. As the court observed, the file was a public record and might have been inspected at any time. But estoppel in this context does not require fault on the part of the party to be estopped, or blamelessness on the part of the opposing party. It is less akin to equitable estoppel than to the kind of procedural forfeiture that generally bars an appellant from raising objections that he or she failed to assert in the trial court. (Cf. Mt. Holyoke, supra, 167 Cal.App.4th at pp. 843, 844 [comparing doctrine to a defendant‘s forfeiture of objection to personal
II. Standard of Review
City‘s foremost contention is that the trial court failed to accord the Commission‘s decision the degree of deference to which it was entitled. Seibert‘s interest in his public employment status implicated a “fundamental vested right.” (McMillen v. Civil Service Com. (1992) 6 Cal.App.4th 125, 129; see Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 500; Estes v. City of Grover City (1978) 82 Cal.App.3d 509, 514, citing Brush v. Los Angeles (1975) 45 Cal.App.3d 120, 123.) As a result, the trial court was required to exercise its independent judgment in reviewing the Commission‘s findings. (See Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32, 44-45; Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144.) The trial court acknowledged this rule, but did not acknowledge the further requirement that it indulge a “strong presumption of correctness” with respect to the Commission‘s findings, as mandated by Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 (Fukuda). (See id. at pp. 808, 819-822.)
In Fukuda, supra, 20 Cal.4th at pages 823-824, a public employer defended its decision to discipline a police officer by contending, among other things, that the burden was on the employee to establish that the administrative findings were unsound. The trial court rejected that contention and explicitly placed the burden on the employer to sustain the administrative findings. (Id. at p. 810.) The Court of Appeal approved that approach, concluding that a presumption of correctness, with the burden of proof on the challenger, was inconsistent with independent review. (Id. at p. 808; see id. at p. 810.) The Supreme Court reversed, holding that, properly understood, the trial court was required, despite the independent judgment test, to indulge a strong presumption in favor of the administrative findings and to place the burden on the challenger to rebut those findings. (Id. at pp. 817, 825.)
City contends that the trial court failed to apply these principles. The record on this point is ambiguous. In the most pertinent passage of its
This recital is an accurate statement of law as far as it goes, but the failure to acknowledge Fukuda‘s “strong presumption of correctness” and allocation of the burden of persuasion is troubling. On the other hand, we ourselves are constrained by the presumption, also acknowledged in Fukuda, that “[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 409; see Fukuda, supra, 20 Cal.4th at p. 812, quoting Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75, 88 [On otherwise silent record, reviewing court ” ‘must conclusively presume that the trial court performed its duty, gave full weight to the presumption of validity of the board‘s findings, but nevertheless found against the board. . . . The determination of the trial court on conflicting evidence on the facts is binding on this court on this appeal.’ “]). This rule is particularly apt where the complaining party had an ample opportunity to bring deficiencies in the judgment to the trial court‘s attention, and failed to do so. Here City submitted objections to the court‘s initial statement of decision. For all presently relevant purposes, that statement was identical to the one ultimately filed. Yet City said nothing in its objections about the court‘s failure to acknowledge—let alone a supposed failure to apply—the Fukuda presumption. Under these circumstances, we must presume that the court properly applied the law and that when it acknowledged its duty of “deference” to the Commission, it was alluding to the Fukuda presumption or its functional equivalent.
We need not finally decide the issue, however, for as explained in part V., post, we have concluded that it is necessary to reverse the judgment on other grounds. Since this will set the matter at large in the trial court, the court is directed to give due regard to the Fukuda presumption in its reconsideration of the issues.
The first charge of misconduct set out in the notice of discipline was that Seibert “exchanged emails with a female San Jose resident, during work hours, which became sexual in nature.” The notice of discipline alleged that Seibert‘s conduct in this regard was grounds for discipline under four provisions of the applicable section of the SJ Municipal Code, as well as City‘s code of ethics, and three provisions of the Department‘s rules and regulations. The Commission sustained the charge, finding that Seibert had violated all of the cited provisions. The trial court concluded that this finding was not supported by substantial evidence.
The cited provisions of the SJ Municipal Code are quite vague, authorizing City to impose discipline for “B. Misconduct,” “D. Failure to satisfactorily perform the duties of his position,” “E. Failure to observe applicable rules and regulations,” and “V. Any other act . . . which is detrimental to the public service.” (
City failed to present substantial evidence that any of these provisions would be offended by a private exchange of salacious e-mails between a firefighter and a willing unmarried adult.4 Its attempts to do so invariably degenerated into circularities, vague generalities, and naked conclusions. Thus City‘s director of employee relations testified on direct examination that
Similarly, the fire chief at the time of Seibert‘s discharge testified, “With the girl being a minor makes it even a more egregious offense. Whether it was a minor or not, it‘s a citizen that you‘re having inappropriate contact with while on duty. . . . [Sixteen] or not, still the actions are egregious enough for termination.” He made no attempt to explain how the “contact” was “inappropriate,” or what was “egregious” about it, apart from the age of the other participant. When asked to explain his recommendation that Seibert be fired, he testified, “When you‘re on duty, you‘re held to a higher standard. You‘re being paid by the City to perform your duties and the rules and regulations also have some things in there that your work will be related towards the betterment of the department, those kinds of things.”
Indeed, if anything this summary understates the extent to which firefighters were free to pursue their own interests when not called upon to perform official duties. Battalion Chief Sapien stated in his interview that firefighters are allowed to bring personal computers and cell phones to work. While city policies forbade using City-owned computers for anything but City business, there was no policy governing use of personal computers. So long as their use did not interfere with City or Department business, firefighters were free to use them for personal purposes. Fire Captain Lovens likewise testified that firefighters were free to use their computers for all kinds of personal activities, including “personal emails.” He did not understand such activities to offend any Department policy. He acknowledged having exchanged e-mails, as well as communicating in text and voice via social media, with people he might be dating, or with whom he might be in a romantic relationship. If such a communication were to become sexual in nature, it would not violate any department policy of which he was aware.7 Similarly, according to the police report, Captain Leong told an investigating officer that there were two classes of computers in use at the station—one “designated
Seibert himself testified without contradiction that “[e]verybody” in a firehouse is “wifi‘ing” on a laptop: “People are on their computers, they‘re doing online banking, they‘re on eharmony.cоm, they‘re doing online dating, checking vacations. I mean you have hours [i.e., of idle time].... Guys are sitting on the co[u]ches in front of the TV and everybody has their computers and talking and streaming from Netflix movies, they got their earplugs in and then when the lights and the tones go off, people put their computers [down] and get to the rig. Some of the newer firehouses have individual bedrooms and sometimes people go to their bedrooms, close their door, they could be in there all day sleeping and then, eventually, we get a call and they come out of their bedroom.”
Indeed, far from prohibiting personal communications during work hours, the Department‘s “Routine Operation Policies and Procedures” governing “Station Routine” expressly authorized on-duty firefighters to (1) make and receive calls using their own private telephones, and (2) use “[w]ireless and electronic and computer devices,” specifically including cellular phones and laptop computers. The policy stated three limitations on such use, the most nearly pertinent of which states, “Personal electronic devices that represent a distraction from the employee‘s assigned duties shall not be permitted. All personnel are responsible for ensuring that personal electronic devices do not negatively impact departmental operations or services to the public.” (Italics added.) On its face all this means is that firefighters must not allow the use of a telephone or laptop to interfere with doing their jobs.
City made no attempt to show that Seibert‘s exchange of e-mails, at the time it occurred, had any effect on his work. Indeed the director acknowledged that interference with the performance of his duties played no part in the case: “It wasn‘t an issue that we believe was relevant in this particular issue. In other words, it didn‘t come up that, for example, he didn‘t go on a call because he was busy emailing. Obviously, we would have taken that into account if that were a fact here, but we didn‘t hear any facts that related to his not going on a call.” At the same time, while he declined to frankly acknowledge that interspousal communications would not trigger disciplinary action, he was unable to “think of a сase where we‘ve disciplined a husband or a wife in email conversations that occurred on somebody‘s smartphone or something else.”
For at least two reasons, this document does not support a finding that Seibert‘s conduct offended any existing rule or policy. First, it was not promulgated until April 2010, some 16 months after the e-mail exchange at issue here. Second, the quoted language flatly contradicts both the “Station Routine” document and the testimony—all of the testimony—as to how firefighters actually conducted themselves, and were expected and permitted to conduct themselves, while on duty. When Captain Lovens was specifically asked about this memorandum, and the language implying that all on-duty time must be devoted to the interests of the Department, he first observed that the memo‘s distinction between e-mail and social network sites was “quite vague” since the latter can be used to transmit messages that are functionally indistinguishable from e-mail. He then continued, “[T]he next line ... prohibits employees from devoting the on-duty time to any activity that doesn‘t relate to the fire department. Well, we watch TV, we rent movies, so in that case, we‘ve been violating this policy for years and we‘re violating it every day the moment we turn the news on and watch a news program and not dedicate our time to the fire department, so it‘s really a gray area.” He explained further, “[W]e work for 24-, sometimes-, 48-, 72-hour shifts and it‘s a matter of people need to take care of their business. If their business is taken care of, whether it bе checking out the rig, the cleaning assignments, whatever, if they want to make a personal phone call or take care of a laptop issue or make a—shoot an email or even unwind with a little training video while we‘re waiting for lunch, it‘s not—it‘s not a problem and I don‘t think it‘s a problem for any crews as long as it doesn‘t affect the readiness of the crew. The readiness of the crew is what‘s imperative.”8
The Commission‘s finding of misconduct cannot be sustained on the basis of an overbroad admonition which was promulgated a year and a half after
City attempted to establish that two other aspects of Seibert‘s conduct warranted discipline. One is that the exchange grew out of a contact that Seibert had made in the course of his duties. But as the trial court noted, the employee relations director “admitted [that] the fire department has no specific written policy prohibiting firefighters from developing social contacts as a result of official on-duty contacts.” When Captain Lovens was questioned on this point, he found nothing objectionable about it. He said there had “definitely” been situations in which he “met someone through the firehouse and ... then subsequently engaged in ongoing communications via email” or otherwise. The examples he cited seemed particularly innocuous—handing his business card to people and then communicating with them in his role as “liaison for the San Jose Fire Museum.” He did not think he had ever given out his card “to a female ... as a date,” but he went on to opine that he did not think it would be “inappropriate” to do so “in the right situation.” This was substantial evidence from which the trial court could conclude that there was no policy, written or otherwise, against engaging in social contacts with persons “met ... through the firehouse.” We see no evidence to the contrary, notwithstanding the director‘s apparent belief that it was intrinsically objectionable.
The director also suggested that the e-mail exchange warranted discipline because it consisted of sexual double entendres centered on Seibert‘s status as a paramedic. Asked to explain how a private off-color e-mail exchange could violate the policies cited in the notice of discipline, the director replied, “[T]hese email exchanges were being sent to a citizen where Mr. Seibert is clearly identifying himself as a member of the fire department. That‘s what it talks about, talks about when he‘s on duty, when he‘s not on duty, plus the emails that became sexual were about his role as a paramedic and conducting examinations. So he‘s talking about how he conducts—you conduct examinations and then it keeps going and becomes sexual and he engages in that email communication. You read those emails and you see, this is not just some separate communication with your girlfriend or your significant other. Here, he‘s talking about his role as a firefighter/paramedic and starts to get into a sexual exchange with her about examinations and what you would probe and all of those things. You have to take the context to understand and I believe if you take that context, I think a reasonable person would understand why that is absolutely a discredit to the San Jose Fire Department and why we believe Mr. Seibert should be terminated for it.” (Italics added.)9
We thus find no fault in the trial court‘s conclusion that the evidence was insufficient to establish that the conduct described in charge 1 offended any existing rule or policy. We note, however, that the trial court nonetheless sustained this charge, while finding it insufficient to warrant dismissal, on the ground that that Seibert‘s conduct created a “risk of embarrassment to the City” which “support[ed] some progressive disciplinary action.” It may well be that indiscriminate exchanges of salacious messages with relative strangers on company time creates an undue risk of embarrassment or even scandal. Indeed this case illustrates the danger. Assuming Seibert believed his correspondent to be a young adult, the fact is that he did not know and that, as it turned out, she was legally a child. Seibert was not prosecuted, but he was investigated, for what would be widely considered an extremely odious offense. We have no doubt, in short, that policies restricting such exchanges would be in order. We remain uncertain, however, that in the absence of such a policy, an abstract “risk of embarrassment” furnishes a ground for discipline. However the parties have not distinctly addressed this aspect of the trial court‘s judgment. Since we are reversing on other grounds, the court may elect to revisit this issue on remand.
IV. Salacious Exchange with Minor
The Commission‘s second finding of misconduct was that Seibert “interacted inappropriately during work hours with [a] female ..., who[m] [he] either knew or should have reasonably known was a minor.” (Italics added.) The trial court rejected this theory, implicitly finding the evidence insufficient to establish that Seibert possessed actual or constructive knowledge of the minor‘s age.
We have little doubt that a firefighter-paramedic‘s exchange of sexually charged messages with a minor can expose the Department to disrepute. Here, when the minor‘s father learned of the exchange he concluded that Seibert was a “predator” who could not be trusted in dealing with members of the public. No doubt many members of the public would share that view. And in view of the risk of creating such mistrust, we have no doubt that firefighters and other public servants can and should be held to a high
The evidence on this point was sharply conflicted. The Department‘s theory was that N.C. openly disclosed her true age in Seibert‘s presence, and that even if she had not, circumstantial evidence should have led him to realize that she was attending high school and therefore probably under 18. The evidence was certainly sufficient to sustain this view. N.C. testified that when she originally visited the station on November 27, 2008, she exchanged small talk with the firefighters. They asked where she went to school, and she named a local high school, saying she was a junior there and played on the volleyball team. At some point she told them that she was 16 years old, to which “[s]ome of the guys ... joked, Oh, you don‘t look that old.” She was unsure whether they meant she looked older or younger. During this conversation Seibert was “[i]n the general area.” She also testified that when Seibert showed her around the station he did not ask any questions about whether she worked or went to college, as might be expected if he believed her to be a young adult. Further, she testified, when she returned to the station on December 15, Seibert asked her if she was studying for the SAT, i.e., the Scholastic Aptitude Test, which is taken by high school juniors in anticipation of applying for admission to college.
However, no other witness reported hearing N.C. mention high school, say she was a junior, or state her age as 16. Seibert testified that, on the contrary, she represented her age as 18. This was corroborated by fellow firefighter Gonzalez, who described an exchange in which Captain Cruz alluded to the possibility of the young visitor going out drinking with her friends after Thanksgiving dinner, to which she replied that she was not old enough; when asked her age, she said, “I‘m only 18.” To be sure, some doubt was cast on Gonzalez‘s recollection by statements in the police report, attributed to Captain Cruz, to the effect that a second young visitor had come to the fire station that afternoon. According to Cruz—who had retired at the time of the appeal hearing, and did not testify—Seibert introduced this second visitor as his girlfriend, and it was she with whom Cruz then had the conversation
City contended that further notice of N.C.‘s real age was imparted by her second visit to the station, on December 15, 2008. It is undisputed that she was accompanied by two or three male schoolmates, one of whom was on the junior varsity football team, and that Captain Leong was summoned to greet them when one of the visitors recognized him from a photograph on the wall as a football coach at their high school. The evidence was equivocal, however, as to how much of this information was known to Seibert. In his interview he acknowledged hearing one of the male visitors make some reference to “high school” and a “coach,” but he “didn‘t pay attention to it” and could not say “if that was a current thing or something in the past or someone had a brother.” In testimony before the Commission he acknowledged only overhearing a reference to a coach, after which the visitors indicated that they knew Captain Leong, whereupon Seibert called Leong, who came and greeted them. He denied knowing, at the time, that Leong was a high school football coach. City attempted to impeach this testimony, particularly with earlier statements by Captain Lovens that “anyone within the department” would know of Leong‘s involvement in coaching.
City also alluded to N.C.‘s physical appearance as more consistent with minority than majority. However the evidence on this point, too, was highly equivocal. By the time commissioners saw her, the events in question were nearly two years past. The nearest thing to evidence of her actual appearance at that earlier time is the interview of Captain Leong, in which he opined that he would think Seibert knew she was a high school student because she and her companions “seemed like [h]igh [s]chool [s]tudents.” More specifically, Leong assumed N.C. was a high school student because she “[l]ooked like a high school student.” However N.C. herself raised doubt about how mature she looked, saying that when she told firefighters her age and they said she didn‘t look it, she was unsure whether they meant she looked older or younger. Moreover Seibert testified not implausibly that she seemed unusually “confident” for a minor.
It also bears noting that not all high school students are minors. Most students reach the age of majority sometime in their senior year. This
Various other circumstances were cited on both sides as tending to show either that Seibert should, or should not, have known N.C. was under the age of majority. For instance, Seibert said that N.C.‘s seemingly irregular schedule suggested that she was in college, as did her references to a “dead week” to prepare for final exams. Rather than attempt to catalog the evidence further, however, we will simply observe that ample evidence would support a finding either that Seibert should have known, and perhaps did know, that N.C. was a minor, or that he justifiably supposed her to be older. This brings into sharp relief the standard of review, previously discussed. As we noted there, we must presume that the trial court applied the correct standard and we must uphold those findings insofar as they are supported by substantial evidence. Since they are, we cannot say that the court erred in finding that the weight of the evidence did not sustain the second charge. Again, however, it will be open to the court on remand to reconsider these questions, applying the ” ‘strong presumption‘” of correctness mandated by Fukuda, supra, 20 Cal.4th at page 808.
V. Improper Conduct Toward Coworker
A. Background
1. Testimony Before Commission
The third through fifth counts of misconduct, which the Commission sustained, charged that Seibert (1) “inappropriately touched a female coworker,” (2) “made inappropriate comments to a female co-worker,” and (3) “engaged in inappropriate conduct, including, but not limited to, unwelcome attention, and/or leering/staring, towards a female co-worker.” The charges appear to be based on transcripts of interviews of the affected coworker, Leah Fazio, conducted by the Department‘s investigator, Morin Jacob. When Fazio testified before the Commission, however, she professed not to recall the incidents described in the transcripts, or her own statements describing those incidents. To analyze the ensuing evidentiary issues it is necessary to recapitulate her testimony in some detail.
When the questioning turned to specific incidents, it tended to follow a pattern in which Fazio denied any memory of the incident, denied remembering having told the investigator about it, acknowledged that she must have done so, and affirmed that she had told the investigator the truth. First she professed not to recall telling the investigator that Seibert had inappropriately touched her. She was then asked to read to herself a portion of the transcript in which she appeared to tell the investigator that on her first day at the training center, where she and Seibert worked together, he came up behind her and—despite their scarcely knowing each other—poked her on both sides of her waist with his index fingers. After she denied that the transcript had refreshed her recollection regarding such an incident, the following exchange occurred: “Q Is there any reason for you to doubt that what you said on that date to the investigator is not [sic] true? [¶] A No. If it‘s here, then it‘s clear that I said it. [¶] Q And were you telling the truth on that date to the investigator? [¶] A I was telling the truth on that day to the investigator, yes.” (Italics added.) Asked whether she “believe[d]” the described events took place, she again denied any memory of “what happened at the training center.” This led to the following exchange: “Q That‘s not my question. If that‘s what you said on the day that you were interviewed by the investigator, do you have any reason to believe that‘s incorrect? [¶] A No. [¶] Q So is that—based on that, would you believe that that‘s what happened on the day that you indicated you first came to the training center? [¶] A Well, yeah. [¶] Q Yes or no? [¶] A Yes.” (Italics added.)
After she denied recalling “any other physical contact” with Seibert at the training center, she was asked to review a transcript passage describing an incident in which Seibert came up behind her while she was sitting at a computer, grabbed her ponytail, twisted it around his finger, and “made, kind of like a ooooh (high pitch)” sound. Again she acknowledged that she made the statements attributed to her, adding, “That‘s what‘s indicated here.” Again she affirmed that she was telling the truth to the investigator. She acknowledged having no “reason to doubt what you stated to the investigator on that date.”
Fazio next denied recalling any occasions on which Seibert “ma[de] any inappropriate comments” to her. She was presented with a transcript passage in which she had described Seibert‘s tendency to “openly talk[] about his sex life,” including “his personal sex life with younger girls,” which she had then amended to say, “he didn‘t actually say the word, I‘m having sex with
Next Fazio was asked whether Seibert “pester[ed]” her or gave her unwelcome attention at the training center. After she professed a lack of memory, she was asked to read a transcript passage describing persistent questioning by Seibert, despite repeated requests by her to desist, about her private life and that of her Los Angeles boyfriend. Asked if she had made statements to the investigator to that effect, she replied, “According to this, that is correct,” and acknowledged having no “reason to doubt [sic] that what [she] stated on that day to the investigator is incorrect [sic] in any way.”
She was then asked a series of questions about her attitude toward Seibert and toward the proceeding. She said that she was testifying “under duress,” i.e., “threats of insubordination from you guys for not showing up. I had nothing against Mr. Seibert, okay? I look forward to working with him. You can put him in a fire engine tomorrow, and everything will be fine. I have nothing bad to say about him.”
Finally she was asked if Seibert had contacted her “after the investigation began in this case.” She replied, “No. He never contacted me. He never tried to talk to me. I never saw him. I never spoke to him.” She could be understood to impliedly acknowledge that he had left a message on her voicemail, but offered that it “wasn‘t for me,” that her phone “doesn‘t have a personal greeting, so it could have been for anybody,” and that she herself had “left erroneous voice messages before for other people. It‘s not a big deal.” She had also received at least one text message from him, “[b]ut it was not directed to me, so it didn‘t bother me.” Asked if it was her testimony that neither the voicemail nor the text messaging bothered her, she replied, “My testimony is nothing about Grant Seibert bothers me.” She also denied ever being intimidated by Seibert or “get[ting] the indication that he was going around saying that you‘re the result [sic] of his termination.”
On cross-examination, Seibert‘s attorney also asked Fazio “a couple of questions based on what you told the investigator.” First he asked whether Seibert had ever asked her out on a date, while showing her a corresponding
On redirect Fazio acknowledged statements in the transcript to the effect that, after her first week at the training center, she was “uncomfortable” around Seibert “every time I saw him” and that he was a “major distraction” who “made it unbearable to come to work” because he was “way too much in my space.” She noted her further comments to the investigator, however, that, “I never really wanted to report any of this. I never wanted an investigation. I just wanted him removed.”
Thereafter the witness was questioned by members of thе Commission, including the presiding officer, who elicited the following testimony: “Q Ms. Fazio, is—in your opinion, having reviewed the report by the investigator, is that—did the investigator accurately report your interview? [¶] A I believe so. I have no reason to say why they wouldn‘t report it the way it was. [¶] Q But what they wrote you feel was accurate, what the conversation between the two of you? [¶] A Yeah. I don‘t remember the conversation, so this is all I have to go on. Yes. I believe it‘s accurate.” (Italics added.)
At the conclusion of his initial questioning, City‘s attorney asked that Fazio remain “subject to recall for future purposes if necessary.” After the Commissioners finished their questioning, the presiding officer instructed her that she was dismissed subject to recall.
2. Trial Court Treatment
The trial court found the evidence before the Commission insufficient to support the charges concerning Seibert‘s conduct toward Fazio. In its amended statement of decision the court wrote that it “did not ... consider the transcripts of the audio recordings and witness interviews conducted by the City‘s investigator aside from those portions used to impeach witnesses pursuant to
B. Authentication
The trial court cited two code sections. The first,
Seibert forfeited any objection he might have had that the transcripts lacked authentication. So far as we can determine, no such objection was ever lodged before the Commission. Seibert‘s first suggestion of any such deficiency was made at the oral hearing in the trial court on his petition for administrative mandamus. His brief implies otherwise, stating that he “again set forth the authentication issue” in his “Reply to the City‘s Opposition to Findings.” (Italics added.) The “again” is perplexing because no earlier “set[ting] forth [of] the authentication issue” is alluded to in the brief, and none appears in the record. Further, the record contains no document by the stated title, and the accompanying record citation leads to City‘s opposition to the petition for administrative mandamus. Seibert may have intended to refer to his “reply to respondent‘s opposition“; but that document contains only a passing allusion to hearsay, and no mention of inadequate authentication. Further, it too was filed in the trial court, long after the Commission had concluded its proceeding, during which—so far as this record shows—Seibert gave no hint of any objection to the interview transcripts except for a very late claim of hearsay, which we discuss in the following section. Indeed, counsel for Seibert himself treated the transcripts as authentic and accurate, using them, in his cross-examination of Fazio, to establish points favorable to his client.
It is of course a familiar rule that a finding may not be challenged based on erroneously admitted evidence unless the record contains “an objection to or a motion to exclude or to strike the evidence that was timely made and so
Application of this rule is most appropriate where it appears that a timely objection would have permitted the proponent of the challenged evidence to cure the deficiency. (See Coy v. Superior Court (1959) 51 Cal.2d 471, 473 [rejecting belated contention that officer‘s testimony should have been excluded based on failure to identify confidential informant; prosecution “was entitled to an opportunity to produce [other] evidence or waive nondisclosure,” but “was not called upon to do so ... while evidence of reasonable cause stood unchallenged in the record“]; People v. Rogers (1978) 21 Cal.3d 542, 548 [allowing late objection “would deprive the People of the opportunity to cure the defect at trial“].) Here the gist of the objection was that City had failed to adduce evidence that the contents of the transcripts corresponded to what Fazio had actually told the investigator. Had that objection been raised while the matter was pending before the Commission, City could readily have cured it by various methods including calling the transcriber to testify, submitting the recordings themselves into evidence, or most easily—by asking the investigator to attest that the transcripts conformed to the interviews she had conducted.13 To permit a party to pounce upon the lack of such evidence after
it is far too late for the proponent to supply the missing testimony would encourage sharp tactics and inevitably lead to greater expenditures of time and resources in reaching a final and just result.14 We therefore conclude that Seibert forfeited his authentication objection by failing to raise it before the Commission, and that the trial court erred by excluding the transcripts on this ground.
C. Hearsay
1. Background
The court‘s error in sustaining the authentication objection would of course be harmless if the interview transcripts were properly excluded on another ground. However the only other objection Seibert presses on appeal is that the transcripts constituted hearsay. This objection was asserted, albeit belatedly, before the Commission: on the day of its last hearing in the matter, Seibert‘s counsel submitted a motion via e-mail to dismiss the charges involving Firefighter Fazio on the ground that they were supported only by the transcript of her interview, which was hearsay. He reiterated the objection two months later in a petition for rehearing. The Commission overruled the objection, at least impliedly. (See Clopton v. Clopton (1912) 162 Cal. 27, 32; 3 Witkin, Cal. Evidence (5th ed. 2012) Presentation at Trial, § 399, p. 556; People v. Flores (1979) 92 Cal.App.3d 461, 466; People v. Jacobs (1987) 195 Cal.App.3d 1636, 1651.) The trial court, however, effectively sustained it; at least, that is the implication of its reference to section 770, which concerns conditions for the admission of a witness‘s prior inconsistent statements. Prior inconsistent statements fall within an exception to the hearsay rule. (
City contends that Seibert forfeited his hearsay objection by failing to assert it during the Commission hearings. Seibert counters in effect that an objection would have been futile in light of SJ Municipal Code section 3.04.1410, subdivision A.4 (section 3.04.1410A.4), which states that in proceedings before the Commission, “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in a civil action.”
The cited provision appears to have been drawn verbatim from a now-superseded version of a statute governing adjudicatory proceedings before state administrative agencies. (See Gov. Code, former § 11513, subd. (c), added by Stats. 1945, ch. 867, § 1, pp. 1626, 1632 (Government Code, former § 11513, subd. (c)).) Cases applying that version of the statute were sharply divided over the necessity of a objection during the administrative proceeding. Some courts held that failure to object before the administrative tribunal forfeited the objection and allowed the tribunal to consider the evidence for all purposes. (E.g., Kirby v. Alcoholic Bev. etc. Appeals Bd. (1970) 8 Cal.App.3d 1009, 1018-1020; Borror v. Department of Investment (1971) 15 Cal.App.3d 531, 546–547; see Bedoe v. County of San Diego (2013) 215 Cal.App.4th 56, 60.) Others held that the statute rendered an objection futile, thereby permitting the opposing party to raise the hearsay issue at any time in the form of a contention that the challenged evidence was insufficient to support a finding. (Martin v. State Personnel Bd. (1972) 26 Cal.App.3d 573, 580-581 [criticizing Kirby]; McNary v. Department of Motor Vehicles (1996) 45 Cal.App.4th 688, 696 [noting “two competing lines of cases” and following Martin]; see San Dieguito Union High School Dist. v. Commission on Professional Competence, supra, 174 Cal.App.3d 1176, 1189 [“The lack of an objection does not convert legislatively declared incompetent evidence into substantial evidence to support a finding.“].)
We believe the cases requiring a predicate objection before the agency are nearer the mark than those declaring such an objection unnecessary. The effect of the statute—here, the municipal code section—is to make certain hearsay evidence admissible for a limited purpose, i.e., supplementing or explaining other evidence. This triggers the long-standing rule codified in
However, in 1995, the statute on which SJ Municipal Code section 3.04.1410A.4 is based was amended to explicitly require а “timely objection.” (
We conclude that Seibert did not forfeit the hearsay objection procedurally. We therefore turn to the merits of the objection.
3. Hearsay
Any analysis of a hearsay objection must begin by asking whether the challenged evidence qualifies as hearsay at all. Hearsay of course is “evidence of ... statement[s] that [were] made other than by a witness while testifying at the hearing,” and that are “offered to prove the truth of the matter stated.” (
Having determined that evidence constitutes hearsay, the question becomes whether it falls within an exception to the rule mandating exclusion. We have determined that it falls within one of two exceptions—prior inconsistent statements (
4. Prior Inconsistent Statement
A hearsay statement is admissible as a prior inconsistent statement if it “is inconsistent with [the witness‘s] testimony at the hearing and is offered in compliance with Section 770.” (
There is no doubt that the second requirement was satisfied here in two different ways. First, during her testimony Fazio was “give[n] ... an
A witness‘s professed failure of recollection can “constitute an implied denial” of the events described in earlier statements, rendering them inconsistent with the witness‘s testimony. (People v. Green (1971) 3 Cal.3d 981, 989.) ” ‘[W]hen a witness‘s claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness‘s “I don‘t remember” statements are evasive and untruthful, admission of his or her prior statements is proper. [Citation.]’ [Citation.] The requisite finding is implied from the trial court‘s ruling. (
Here Fazio made no secret of her opposition to the disciplinary proceeding. As she acknowledged having told the investigator—while denying any memory of doing so—she “never really wanted to report any of this. I never wanted an investigation. I just wanted [Seibert] removed.” Her opposition may be attributable to her own sense of justice, her fear of ostracism by her coworkers, or both. We can readily picture the victim-blaming mentality that doubtless prevailed among some firefighters once Seibert‘s conduct toward her became a ground of harsh disciplinary action against him. Whatever the cause, the Commission could quite reasonably infer that her professed inability to recall the misconduct she had earlier reported was driven by a desire to undo the consequences of that report and did not reflect an actual failure of memory. A finding to that effect is implied from the Commission‘s ruling as well as from its members’ own questioning of the witness.
However, the trial court impliedly found to the contrary. As we recently noted, a trial court exercising its independent judgment is empowered and obliged to ” ” ‘weigh the evidence at the administrative hearing and ... make its own determination of the credibility of witnesses.’ ” ” (Rodriguez v. City of Santa Cruz (2014) 227 Cal.App.4th 1443, 1451, quoting Guymon v. Board of Accountancy (1976) 55 Cal.App.3d 1010, 1016.) Our review of the trial court‘s findings is governed, in turn, by the substantial evidence test, which requires us to ” ” “resolve all conflicts and indulge all reasonable inferences in favor of the party who prevailed in the trial court.” ’ ” (Rodriguez, supra, at p. 1452, quoting Worthington v. Davi (2012) 208 Cal.App.4th 263, 277.)
These principles present something of a conundrum here. On the one hand, Fazio‘s explicit testimony that she had no recollection of relevant events would seem to provide ample evidence in support of the trial court‘s implied finding. On the other, after a review of the entire administrative record, we find ourselves viewing that finding with a degree of incredulousness. However, assuming her professed failure of recollection was genuine, the transcripts were still admissible as past recollection recorded.
5. Past Recollection Recorded
Assuming Fazio‘s failure of recollection was genuine, the evidence in this record is nonetheless sufficient to permit introduction of her transcribed statements as past recollection recorded. That exception permits the introduction of a hearsay statement “if the statement would have been admissible if made by [the witness] while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which: [¶] (1) [w]as made at a time when the fact recorded in the writing actually occurred or was fresh in the witness’ [s] memory; [¶] (2) [w]as made ... (ii) by some other person for the purpose of recording the witness’ [s] statement at the time it was made; [¶] (3) [i]s offered after the witness testifies that the statement he made was a true statement of such fact; and [¶] (4) [i]s offered after the writing is authenticated as an accurate record of the statement.” (
Here, as we have noted, any objection to the transcripts based on lack of authentication was forfeited for want of timely assertion. The only other element of the exception as to which there can be any doubt is the third, i.e., that the statement be “offered after the witness testifies that the statement [s]he made was a true statement of such fact.” (
We conclude that the trial court erred by refusing to consider Fazio‘s prior statements in support of the Commission‘s findings on counts three through five of the notice of discipline. This error is clearly prejudicial with respect to those findings and requires reversal.
VI. Interference with Discretion Regarding Penalty
City argues that the trial court also erred by finding that Seibert‘s dismissal constituted excessive discipline and an abuse of discretion. Having sustained only one of the charges against Seibert, and having found that even that conduct did not offend any distinct rule or policy, the court wrote, “Mr. Siebert‘s and Miss C[.]‘s emails were tawdry, unfortunate and potentially embarrassing. Because of the risk of embarrassment to the City, they support some progressive disciplinary action on the part of the fire department. His conduct, however, does not rise to the level of termination for a person with an otherwise blameless record.” City cites several cases holding that “discredit” to a public employer, or even “potential discredit,” may be sufficient ground for termination. (E.g., Lake v. Civil Service Commission, supra, 47 Cal.App.3d 224, 228.) City does not deny, however, that it is within the power of the trial court in a case of this kind to determine whether discipline imposed is so excessive as to constitute a manifest abuse of discretion. (See Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 45.) City‘s chief concern seems to be that the language used by the trial court could be understood to constrain the discretion of the administrative tribunal on reconsideration, in violation of holdings that the court “may vacate but not modify the agency‘s determination of penalty if it finds a manifest abuse of discretion.” (Id. at pp. 45-46.) City‘s concerns about this language are not assuaged by the court‘s recital, which City finds “contradictory,” that the judgment “shall not limit or control in any way the discretion legally vested in the respondents to impose a proper level of discipline consistent with their policies.”
We need not analyze this question in any great depth because our reversal on other grounds will permit the trial court to reevaluate its treatment of all of
VII. Remand to ALJ or Arbitrator
A. Background
Seibert contends that any remand from the trial court for reconsideration of the Commission‘s decision must be governed by the Firefighters Procedural Bill of Rights Act (
As relevant here, the FPBOR provides that an “employing department” shall not take “[p]unitive action” against a nonprobationary firefighter “without providing the firefighter with an opportunity for administrative appeal.”16 (
This question assumes that after disposition of this appeal, the trial court will again grant Seibert‘s petition and issue a writ setting aside the Commission‘s decision. Our general reversal will set the matter at large in that court. (9 Witkin, Cal. Procedure, supra, Appeal, §§ 869-870, pp. 928-930.) If the court again elects to grant Seibert‘s petition, the nature of any further proceedings at the administrative level will depend on the precise nature of the relief granted. If the court again determines that the evidence is insufficient to support the Commission‘s findings, the Commission—or whatever decision maker receives the remand—will be able to hear additional еvidence in support of the Department‘s charges, unless doing so would be so unfair as to implicate due process concerns. (See Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 526, 528, 534, 535.) If reversal is based upon an issue fundamental to the proceeding, it may “leave[] the entire case at large for further proceedings.” (Marsh v. Workmen‘s Comp. App. Bd. (1968) 257 Cal.App.2d 574, 580.) Further proceedings may also be necessary if, as seems highly likely to obtain here, the court‘s decision “leaves open to the agency any further discretionary powers.” (Halaco Engineering Co. v. South Central Coast Regional Com. (1986) 42 Cal.3d 52, 78.)
The question is what entity or body should conduct such further proceedings, if any are required. Given the uncertainties noted above, as well as the rather deficient briefing of the surrounding issues, we would act well within
B. Scope of Statute
We first consider City‘s argument that the charges here fall outside the FPBOR by virtue of
City contends that the charges against Seibert fail this test, but its argument on this point is sketchy at best. First, with respect to the charges involving Firefighter Fazio, City asserts that Seibert‘s conduct fell outside the statute‘s reach because it was “contrary to [his] responsibilities.” It then invokes the holding in Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1017, that a deputy sheriff‘s sexual harassment of fellow deputies “was not within the scope of employment” so as to require the county to indemnify the deputy‘s insurer for costs of defending and settling a sexual harassment lawsuit. We are far from certain that the legal test applied in that case is the same as, or usefully comparable to, the test for determining whether disciplinary measures against a firefighter are subject to the FPBOR. (See Farmers Ins. Group, at pp. 1003-1008 [canvassing principles governing scope of employment questions in respondeat superior context].) But we need not closely analyze the question because City‘s argument gets ahead of itself by assuming the truth of the charges. In the cited case, by the time the issue was determined the offending employee had admitted engaging in flagrant misconduct toward his coworkers. (Id. at
There is little doubt that the charged misconduct involving Fazio arose while Seibert was performing his duties as a firefighter. The charges all arose from their interactions at the training center, where both had been assigned. We are directed to no evidence that any of the relevant conduct took place outside working hours. Again, the only way to conclude otherwise is to assume the truth of the charges and then accept City‘s legal contention that this placed them outside the scope of the statute. We will not indulge such reasoning. We therefore conclude that the Fazio charges, at least, fall within the purview of the FPBOR.
It is at least possible that insofar as the charges rested on Seibert‘s sending text or voice messages to Fazio, some or all of the charged conduct might have occurred off the Department‘s premises. Similarly, it may be debatable whether Seibert‘s e-mailing activities while otherwise idle—though on duty—fall within the FPBOR‘s reach. We need not finally decide these issues, for it is clear that at least the bulk of the Fazio charges fall within the FPBOR, which mandates that they, at least, be decided by an ALJ. It is not suggested that the charges, having been joined together by City, must now be severed, with some to be heard by the Commission and others by an ALJ. Having elected to join the charges, City cannot be heard to suggest—and indeed it does not suggest—that some sort of bifurcated proceeding is called for. Accordingly, since some of the charges fall squarely within the FPBOR, all of them must be resolved in accordance with that act.
C. ALJ or Arbitrator
Seibert asserts that any remand must be heard by either an ALJ or a labor arbitrator. He declines to commit himself to one or the other, apparently because some legal uncertainty attends the question of which is called for under the FPBOR. City asserts that he waived any right to binding arbitration by failing to secure his union‘s agreement to it.
Neither the record nor the briefing disclose all of the potentially relevant procedural details, but as best we can determine, Seibert has no present right to binding arbitration, as distinct from a determination by an ALJ. He
Seibert may be understood to contend that whenever a firefighter‘s employment is governed by a MOU containing a provision for binding arbitration, the firefighter is entitled to binding arbitration of any disciplinary charge subject to the FPBOR, regardless whether the agreement itself calls for arbitration under the particular circumstances. Such a reading is untenable. The statute provides that a firefighter may invoke an arbitration provision “if the employing department is subject to a memorandum of understanding that provides for binding arbitration of administrative appeals.” (
We conclude that in the absence of further evidence or new developments, any further administrative proceedings must take place before an ALJ as mandated by the FPBOR.
The judgment is reversed for further proceedings consistent with the views expressed in this opinion. This disposition renders moot Seibert‘s claim for attorney fees. City will recover its costs on appeal.
Premo, J., and Grover, J., concurred.
A petition for a rehearing was denied June 30, 2016, and on June 10, 2016, and June 30, 2016, the opinion was modified to read as printed above. The petition of appellant Grant Seibert for review by the Supreme Court was denied August 10, 2016, S235648.