Judge Curtis A. Kin, Case Number: 23STCP00505, Date: 2024-09-05 Tentative Ruling

Petitioner Manuel Rodriguez petitions for a writ of mandate directing respondents City of Pomona, Mayor Tim Sandoval, and members of the Pomona City Council to set aside the termination of petitioner and restore him to his prior position of Police Officer with back pay and interest.

Petitioner was a police officer for the Pomona Police Department (“Department”) for a little over five years, and was assigned as a field training officer for almost three years. (AR 19 [HT 19:5-10].) He had trained a new officer, Officer 2, for two phases, for a total of eight weeks full time. (AR 19-20 [HT 19:17 - 20:5].) Back when petitioner was training Officer 2, there was an incident where suspicious activity occurred in petitioner’s own neighborhood, and petitioner had told Officer 2 about it. (AR 25 [HT 25:2-14].)

Officer 1 was a police officer for the Department, who told petitioner that he had been dating someone named C.M.[1] and may or may not have gotten C.M. pregnant. (AR 20 [HT 20:6-12].) Petitioner’s wife worked in real estate and was assisting Officer 1 and C.M. with finding a property. (AR 20 [HT 20:13-17].)

In the week leading up to October 30, 2020, petitioner knew his wife was suspicious of C.M. and expressed concerns to petitioner about information provided by C.M. (AR 21 [HT 21:4-10].) Prior to October 30, 2020, petitioner learned that C.M. had provided a screenshot of what appeared to be a bank account with $80 or $90 million, but it was fake. (AR 21 [HT 21:11-19].)

Petitioner’s wife was planning to show properties to C.M. and Officer 1 on October 30, 2020. (AR 23 [HT 23:2-4].) However, C.M. and Officer 1 got into an argument, and C.M. then wanted to look at the properties without Officer 1. (AR 23 [HT 23:5-8].) Petitioner’s wife asked petitioner to accompany her when she showed properties to C.M., but the home showings were cancelled. (AR 23 [HT 23:9-14].) After the showings were cancelled, petitioner went to lunch with his wife and Officer 1 at the Black Horse Tavern in Norco. (AR 23 [HT 23:18-25].) They all had a conversation about whether C.M. was who she said she was. (AR 24 [HT 24:1-4].)

During their lunch, Officer 1 asked petitioner to run a license plate for him or to find somebody to run it for him. (AR 24 [HT 24:5-8].) Officer 1 called a friend who gave him the license plate over the phone, and then Officer 1 gave that license plate number to petitioner. (AR 24 [HT 24:9-15].) Petitioner then texted Officer 2, petitioner’s former trainee, and asked Officer 2 to run the license plate that Officer 1 had given to him. (AR 24 [HT 24:16-19].) At the time petitioner texted Officer 2 and asked her to run the license plate, petitioner was off duty and using his personal cell phone. (AR 24-25 [HT 24:20-25:1].)

Petitioner texted Officer 2 that the license plate was being run for a car that was in his neighborhood. (AR 26 [HT 26:4-7].) In truth, a car with the license plate petitioner gave was not in petitioner’s neighborhood. (AR 26 [HT 26:8-11].) Petitioner has admitted he was dishonest with Officer 2 about the reason he wanted her to run the license plate. (AR 26 [HT 26:12-15].) Petitioner has also admitted that, when he was a field training officer for about ten people, he discussed the importance of honesty on and off the job. (AR 412 [HT 365:11-18].) Petitioner has additionally admitted that, when he texted Officer 2 on October 30, 2020, he knew that he was being dishonest. (AR 412-13 [HT 365:23-366:2].) At the time petitioner asked Officer 2 to run the plate, he also knew what could happen to himself, Officer 1, and Officer 2 if someone found out. (AR 413 [HT 366:3-12.])

Officer 2 agreed to run the license plate for petitioner, believing that it was for a suspicious car in petitioner’s neighborhood. (AR 26 [HT 26:16-19].) After Officer 2 ran the license plate, she took a picture of the return on her Mobile Data Terminal (“MDT”) and sent it to petitioner by text message. (AR 26 [HT 26:20-23].) Officer 2 sent petitioner an image of the computer screen in her car, because Officer 2 thought petitioner’s safety was at risk. (AR 60 [HT 60:1-3].) Officer 2 remembered an incident that had occurred when petitioner was training her involving suspicious activity at petitioner’s house, and Officer 2 thought the same person had returned. (AR 60-61 [HT 60:4-61:4].) Officer 2 later learned from petitioner’s wife that the real reason the license plate was run had to do with Officer 1’s girlfriend, who was also a client of petitioner’s wife. (AR 61-62 [HT 61:21-62:2].) Officer 2 was livid when she found out the true reason. (AR 62 [HT 62:3-5].)

When Officer 2 responded to petitioner by providing the license plate return, petitioner learned that one of the registered owners was D.D. (AR 29 [HT 29:12-15].) Petitioner also learned that the license plate returned to a name with a different last name than the name used by the woman dating Officer 1, i.e., C.D. instead of C.M. (AR 29 [HT 29:16-19].) Petitioner informed Officer 1 that the registered owners of the license plate were C.D. and D.D. (AR 29-30 [HT 29:23-30:1].) Petitioner also provided Officer 1 with the address that was on the return. (AR 30 [HT 30:2-4].) When later asked why, to his knowledge, Officer 1 wanted the information, petitioner testified that Officer 1 believed he was being scammed by C.D. and that she may ask him for money to have an abortion. (AR 54 [HT 54:2-8].)

When petitioner shared the license plate information, he knew he was disclosing to Officer 1 that the vehicle was not registered to C.M. but instead to C.D. and D.D. (AR 406-07 [HT 359:22-360:1].) Petitioner has admitted he did not otherwise have such information, as the license plate did not return to the person they all thought it belonged to. (AR 407 [HT 360:19-23].)

After petitioner provided Officer 1 with the information, Officer 1 called C.D. (aka C.M.)[2] on the phone and they had an argument in front of petitioner. (AR 30 [HT 30:5-9].) Petitioner heard Officer 1 say something to the effect that all the information she gave was fake and that, based on his job, he would find out who she really was. (AR 30 [HT 30:10-14].) Officer 1 seemed upset, and, at the time, Officer 1 believed C.D. was pregnant with his child. (AR 30 [HT 30:15-19].) While they were at lunch, petitioner’s wife told Officer 1 that D.D. was C.D.’s husband. (AR 30 [HT 30:20-23].) Petitioner’s wife had learned that information by looking up the name D.D. (AR 30-31 [HT 30:24-31:2].) During their lunch, Officer 1 sent D.D. a message over Facebook, saying something to the effect that Officer 1 had been with D.D.’s wife and that she was lying to him. (AR 31 [HT 31:11-16].)

Petitioner has claimed that he decided to run the license plate for Officer 1 because petitioner had concerns about his wife’s safety in that his wife might show some homes to C.D. while she was engaged in some kind of criminal activity. (AR 31-32 [HT 31:25-32:6].) Petitioner has explained that his wife was previously the victim of an attempted kidnapping when showing a home. (AR 43 [HT 43:16-24].) On October 30, 2020, however, petitioner and his wife never saw C.D. or her car. (AR 32 [HT 32:10-18].) Petitioner has claimed that home showings were rescheduled with C.D. for another day, but he has also admitted that no such home showings were scheduled at the time he asked Officer 2 to run the license plate. (AR 33-34 [33:18-34:6].) Petitioner has also admitted that, if his wife’s safety were a concern, petitioner’s wife could have also refused to provide further services to C.D. (AR 34 [HT 34:7-10].)

Further, at the time petitioner asked Officer 2 to run the license plate, petitioner did not believe that C.D. had committed a crime. (AR 34 [HT 34:11-14].) In addition, petitioner was living in Riverside at the time but did not contact the Riverside Sheriff’s Department or the Riverside Police Department to express any concerns about C.D. (AR 34 [HT 34:15-21].)

Petitioner has admitted he is only allowed to use computer databases and mobile data computer systems while on duty or in conjunction with a specific on-call assignment unless specifically authorized by a supervisor. (AR 34-35 [HT 34:22-35:2].) Petitioner also has admitted that he was not on duty or on a specific on-call assignment when he asked Officer 2 to run the license plate and that he never received a supervisor’s approval. (AR 35 [HT 35:3-12].)

Prior to the incident, petitioner received training that he cannot access the MDT for personal reasons. (AR 35 [HT 35:13-16].) Petitioner signed a security statement from the Department of Motor Vehicles laying out the restrictions for use of DMV databases on February 27, 2020, eight months before the incident. (AR 35 [HT 35:17 -36:16], AR 773-77.) In signing this security statement, petitioner acknowledged that he may access information only when necessary to accomplish the responsibilities of his employment. (AR 36 [HT 36:20-23].) He acknowledged that he may not access or use information from the California DMV for personal reasons. (AR 36 [HT 36:24-37:2].) At the time of the incident, petitioner understood that making inquiries on his friends or relatives was inappropriate access of the California DMV records. (AR 38 [HT 38:3-7].) He also understood that he was not allowed to access information about another person for any reason that was not related to his job responsibilities. (AR 38 [HT 38:8-12].) Petitioner has admitted that, when he asked Officer 2 to run the license plate, he understood that it was in violation of Department policies. (AR 38 [HT 38:13-17].) Petitioner has further admitted he did not have the right to know the registration information on C.D.’s license plate. (AR 38 [HT 38:18-21].)

On November 5, 2020, a citizen complaint was filed with the Department. The complainant (C.D.) alleged that an officer was harassing her and had allegedly run her DMV information and obtained her address of her in-laws. (AR 68 [HT 68:12-21].) The complainant indicated that she was afraid and that she was in the process of filing a police report with the San Bernardino County Sheriff’s Department and seeking a temporary restraining order. (AR 68-69 [HT 68:22-69:2].)

After receiving the complaint, Lt. Brown conducted a JDIC audit search,[3] which revealed that Officer 2 had run the complainant’s information. (AR 69-70 [69:22-70:8].) During the course of Lt. Brown’s investigation, he learned that petitioner had texted Officer 2 and asked her to run the complainant’s license plate, giving Officer 2 a false reason for needing the information. (AR 151 [HT 133:23-25], 154-55 [HT 136:24-137:15].) The investigation confirmed that Officer 2 shared the DMV information with petitioner, including that the vehicle was registered to C.D. and D.D. (AR 151-52 [HT 133:23-134:10].)

Lt. Brown determined that petitioner provided the name of D.D. to Officer 1. (AR 140 [HT 122:12-15].) From an online search of D.D., Officer 1 located an address in Apple Valley. (AR 139 [HT 121:4-23].) When Officer 1 went to that address, he made contact with D.D.’s parents (C.D.’s in-laws). (AR 144 [HT 126:6-9].) They had a conversation about the fact that Officer 1 did not know C.D. was married and that C.D. had claimed to Officer 1 that she was pregnant. (AR 144 [HT 126:10-17].) The in-laws explained to Officer 1 that C.D. was not in fact pregnant. (AR 144 [HT 126:10-17].) Officer 1 also spoke with D.D. and explained that Officer 1 did not know C.D. was married. (AR 144-45 [HT 126:18-127:3].)

Lt. Brown determined that Officer 1 was able to locate the house of complainant’s in-laws using information provided by petitioner. (AR 184-85 [HT 166:20-167:2].) Lt. Brown sustained two findings with respect to petitioner: (1) unauthorized access and disclosure of information obtained as a result of employment without permission; and (2) engaging in dishonest conduct that adversely affected petitioner’s relationship with the department. (AR 150 [HT 132:12-19].)

Deputy Police Chief Hsu issued a Notice of Intent to Terminate on April 12, 2022. (AR 274-75 [HT 256:3-257:4].) The Notice alleged that petitioner violated six Department policies: Policy 318.5.6(c), Unauthorized Access, disclosure or use of Department information; Policy 423.4, Restricted Access and Use of Mobile Data Computer (MDC) system; Policy 319.4.4, Restricted Use; Use of Mobile Data Terminals, General Order 405; Dishonest or Disgraceful Conduct, Policy 318.5.9(g); and Conduct Unbecoming, Policy 319.5.9(1). (AR 1101-03.) The Notice also alleged five violations of the Memorandum of Understanding between the City and the Pomona Police Officers’ Association, Inc. (“MOU”), specifically: Section VIII(B)(1), Violation of any Federal, State, or Local law directly impacting the employee's fitness for employment; Section VIII(B)(8) Dishonesty and Untruthfulness; Section VIII(B)(18), Violation of Rules, Regulations and Policies; Section VIII(B)(22), Conduct which discredits the City; and Section VIII(B)(24), Other just cause. (AR 1101-02.)

Deputy Police Chief Hsu was hired as a police recruit in 1994 and holds the second highest ranking position in the Department. (AR 186 [HT 168:11-15], 187 [HT 169:8-11].) He has testified that DMV information is contained in a secure database for law enforcement purposes. (AR 190 [HT 172:9-22].) It is information that is not to be used for personal purposes and it is not to be shared. (AR 190 [HT 172:9-22].) That is something that is taught to all officers, in the police academy, during training, and it is specifically taught within their own department when reviewing policies and what is and is not allowed. (AR 190-91 [HT 172:23-173:10.) Deputy Chief Hsu also testified how there are consequences if the Department misuses confidential information, such as losing the privilege of accessing the databases. (AR 192 [HT 174:20-23].)

With respect petitioner’s dishonesty, Deputy Chief Hsu testified that, in his experience as a Deputy Police Chief, Captain, Lieutenant, and all the way down to the time he was training, you do not lie. (AR 191 [HT 173:11-23].) He explained that it affects your credibility, your testimony, as well as the trust placed in you by the community. (AR 191-92 [HT 173:11-174:2].) He explained that if the public realizes the Department uses their information for personal gain, then they will lose that trust. (AR 192 [HT 174:14-19].) Deputy Chief Hsu also explained that, with a sustained finding of dishonesty, he has to consider petitioner’s credibility moving forward, including testifying in a civil hearing and writing reports. (AR 210 [HT 192:15-24].)

Deputy Chief Hsu testified that he believed petitioner did not access the information out of concern for his wife’s safety, but instead for personal reasons because his wife was representing C.D. and working toward a real estate transaction from which his wife would benefit. (AR 218-19 [HT 200:2-201:20].) He testified that, in order to violate the Department’s policy, petitioner did not need to have in fact personally gained from the unlawful access, just intended to gain from it. (AR 250-51 [HT 232:23-233:5].)

Deputy Chief Hsu did not believe that a lesser form of discipline would have been effective in deterring petitioner from repeating the same behavior due to the sustained allegation of dishonesty. (AR 233 [HT 215:11-16].) In looking at the totality of the circumstances and petitioner’s veracity, honesty and character or reputation moving forward, Deputy Chief Hsu recommended termination as the appropriate level of discipline. (AR 192-93 [HT 174:24-175:14].)

After the Notice of Intent to Terminate was issued, petitioner requested to have a Skelly meeting with Chief Ellis.[4] (AR 276 [HT 258:19-24].) Chief Ellis had the sole decision-making authority with respect to the level of discipline to be imposed. (AR 273 [HT 255:8-11].) Petitioner and his counsel met with Chief Ellis at the Skelly meeting on June 1, 2022. (AR 277 [HT 259:2-11].) This was petitioner’s opportunity to discuss the level of discipline. (AR 277 [HT 259:14-21].)

At the Skelly meeting, petitioner’s counsel indicated he was concerned that, if there was a finding of dishonesty, it would be subject to a Public Records Act request under Senate Bill 1421. (AR 280 [HT 262:2-7].) Chief Ellis has testified that a sustained finding of dishonesty is very serious conduct and having it available as a public record has the potential to impact the public’s trust in the Department. (AR 280-81 [HT 262:20-263:4].) At the Skelly meeting, petitioner’s counsel also brought up his concerns about recent changes in the law that would allow the Commission on Peace Officer Standards and Training to decertify officers for serious misconduct. (AR 280 [HT 262:2-7].)

During the Skelly meeting, petitioner never claimed that any of the facts presented in the Notice of Intent to Terminate were false. (AR 40 [HT 40:7-10].) Petitioner also told the Chief that the Chief has always been fair and makes fair decisions. (AR 39 [HT 39:16-21].)

After the Skelly meeting, the Chief still felt termination was the appropriate level of discipline. (AR 284 [HT 266:9-12].) Petitioner was issued a final Notice of Termination. (AR 284 [HT 266:15-25], 286 [HT 268:9-10], 1110-17.)

The Notice of Termination cited three conclusions: (1) that, on October 20, 2020, petitioner sent a single dishonest and misleading text message to Officer 2, asking her to run a license plate number; (2) that petitioner did not have a legitimate law enforcement reason for accessing the license plate information or disclosing it to Officer 1; and (3) that petitioner’s deliberate dishonesty “adversely damage[d] your relationship with members of the Pomona Police Department.” (AR 1114-16.)

Although there was a “matrix memo” in which officers from the Department made a recommendation about the appropriate penalty, Chief Ellis had the sole decision-making authority with respect to the level of discipline to be imposed. (AR 273 [HT 255:8-20].)

Chief Ellis explained that police officers are given incredible powers in their community, that the community expects police officers to be honest, and that the police department lives and dies by public trust. (AR 286-87 [HT 268:22-269:1].) Without public trust and without the public believing police officers are honest in what they do, they are at a disadvantage that would put the entire agency at risk. (AR 287 [HT 269:3-6].) Chief Ellis felt it was a huge problem as Police Chief to employ someone that has a sustained finding of dishonesty in their personnel history. (AR 287 [HT 269:7-11].) Police officers are responsible for creating truthful and accurate police reports, collecting evidence, storing it, and testifying in court. (AR 287 [HT 269:18-22].) If someone calls 911 for a police officer to respond and the Department sends them someone with credibility issues, that is a disservice to anyone in the community because accurate and honest reporting is necessary in handling situations. (AR 287-88 [HT 269:23-270:6].) Chief Ellis considered the likelihood of petitioner being dishonest again. (AR 288 [HT 270:11-19].) He believes that dishonesty is a character flaw and that it could be repeated. (AR 288-89 [HT 270:22-271:1].)

In addition to the dishonesty, Chief Ellis also considered the unauthorized access and disclosure of confidential information. (AR 289 [HT 271:11-17].) He noted that officers know they are not allowed to access confidential information for personal use, and the fact that petitioner did so in a way that was deceptive was a factor in the entire analysis of this case. (AR 289 [HT 271:18-22].)

Chief Ellis also considered the harm to the Department. (AR 289-90 [HT 271:25-272:2].) Due to petitioner having obtained the information, a citizen called to complain about the conduct of one of their employees. (AR 290 [HT 272:3-11].) That harmed the Department’s reputation in the eyes of the complainant and their family. (AR 290 [HT 272:3-11].) Also, an allied agency, the San Bernardino Sheriff’s Department, had to respond to a criminal investigation involving one of their officers, which also harms the Department’s reputation with that agency. (AR 290 [HT 272:12-16].) In Chief Ellis concluded that the end result is there is a sustained finding of dishonesty against Petitioner, which may become a public record and harm the Department. (AR 290 [HT 272:17-20].)

Petitioner appealed his termination. The appeal hearing was conducted via Zoom videoconference before a neutral Hearing Officer from the California State Mediation and Conciliation Service pursuant to the Memorandum of Understanding between the City and the Pomona Police Officers’ Association, Inc. (“MOU”) (AR 1-627.)

During the appeal, petitioner admitted he was dishonest with Officer 2 about the reason he wanted her to run the license plate. (AR 26 [HT 26:12-15].) Petitioner also admitted that, when he texted Officer 2, he knew that he was being dishonest. (AR 412-13 [HT 365:23-366:2].) He admitted that, when he asked Officer 2 to run the license plate, he understood that it was in violation of Department policies. (AR 38 [HT 38:13-17].) He also admitted that he did not have the right to know the registration information on C.D.’s license plate. (AR 38 [HT 38:18-21].) Finally, petitioner admitted that police officers may never access confidential information for personal reasons and may not share the confidential information they access with someone who does not have a legitimate reason to know it. (AR 41 [HT 41:5-13].)

Following the hearing, the Hearing Officer issued a decision to overturn the termination and instead impose an eighty-hour suspension. (AR 1214-31.) His decision focused on the following conclusion:

Respondent did not establish that the Department suffered any harm from Appellant’s lie to Officer 2. Appellant was not named in the San Bernardino County Sheriff’s Department report. C.D. did not name Appellant in her complaint to the Department. The matter came to Chief Ellis’s attention only through Officer 2’s interview during the IA investigation. Although Appellant made it possible for Officer 1 to confront C.D. and her family members, no member of the public had any contact with Appellant in connection with the incident. The public rightfully expects a police officer to be honest. However, the probability of any member of the public, aside from C.D., D.D., and D.D.’s parents, being affected by Appellant’s lie is quite small. Therefore, the risk of harm to the Department is also small.

With respect to the likelihood of reoccurrence, the Hearing Officer further explained:

Respondent failed to prove that the public is likely to become aware of Appellant’s single act of dishonesty toward a fellow officer. Respondent also failed to prove that Appellant is likely to reoffend in such a manner as to provide a disservice to the community, such that it will have a negative effect on the public trust. In other words, neither harm to the community nor to the public trust was proven.

(AR 1229-30, ¶ 30; see also AR 1230, ¶¶ 31, 33 [focusing on isolated nature of event].)

Following receipt of the Hearing Officer’s Decision, the Chief of Police made a written request for the City Council to review and reverse the decision, pursuant to the MOU. (AR 1232-37.) Chief Ellis alleged: “[B]ecause Rodriguez made no effort to right his wrong; his deceit remained undetected until a civilian complained to the Department. Until then, Rodriguez was comfortable not facing any consequences for his actions.” (AR 1236.) The City Council issued a decision finding there was just cause for terminating petitioner’s employment. (AR 1240-42.)

The City Council explained that petitioner’s actions resulted in great harm both internally and externally. The Decision explains that petitioner had Officer 2 perform a search under false pretenses and then petitioner provided that information to Officer 1. (AR 1241.) The Decision explains that the community needs to trust the Department and that there needs to be internal trust between each officer. (AR 1241.) Because petitioner lied to Officer 2, he severed that internal trust. (AR 1241.) In addition, a civilian felt that they were in danger and felt the need to file a restraining order and contact the Department to file a complaint. (AR 1241.) Regarding the level of penalty, the City Council determined there was just cause to terminate petitioner’s employment. (AR 1242.)

On November 15, 2023, petitioner filed a Verified Petition for Peremptory Writ of Administrative Mandamus and Extraordinary Relief. On January 4, 2024, respondent/real party City of Pomona filed an Answer.

On July 8, 2024, petitioner filed an opening brief. On August 6, 2024, respondents filed an opposition. On August 21, 2024, petitioner filed a reply. The Court has received a hard copy of the joint appendix and an electronic copy of the administrative record.

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

Because the suspension of petitioner from his position as a Police Officer concerns a fundamental vested right, the Court exercises its independent judgment on the administrative findings. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, 4 Cal.3d at 143.) The Court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, internal quotations omitted.) When an appellant challenges “‘the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Lake v. Civil Service Commission (1975) 47 Cal.App.3d 224, 228.) If reasonable minds can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion. (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.) In considering whether an abuse of discretion occurred, the “overriding consideration … is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.) “[A peace officer’s] job is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper performance of an officer’s duties.” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.)

As a preliminary manner, petitioner confusingly contends at times that the Court reviews the City Council’s decision to terminate petitioner’s employment for substantial evidence. (Compare Opening Br. at 14 [“whether the findings were supported by substantial evidence”] with Opening Br. at 12 [“Court must exercise its independent judgment on the evidence”].) This is incorrect. Petitioner had a “fundamental vested right” in his city employment. Accordingly, the Court exercises independent judgment on the administrative findings. (Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 500.) In asserting a different standard of review, petitioner relies on cases before the State Personnel Board, which state that the Court reviews the administrative findings for substantial evidence. While findings by the State Personnel Board are reviewed for substantial evidence (Larson v. State Personnel Bd. (1994) 28 Cal.App.4th 265, 273; Camarena v. State Personnel Bd. (1997) 54 Cal.App.4th 698, 701; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632), the administrative proceedings here were not before the State Personnel Board. Indeed, petitioner was not a state employee. Accordingly, the Court reviews whether the weight of the evidence supports the City Council’s decision to terminate petitioner’s employment. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817

The parties do not dispute that petitioner had Officer 2 run a license place in the DMV database under false pretenses for personal use and then provided the results of the search to Officer 1. (AR 1226, 1241.) At issue is the appropriate level of discipline to be imposed, i.e., suspension or termination. (AR 1226.)

In considering whether the City Council abused its discretion in terminating petitioner’s employment, the “overriding consideration … is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly, 15 Cal.3d at 218.)

The City Council disagreed with the Hearing Officer’s assessment that no harm was suffered by the Department due to petitioner’s lie to Officer 2. (AR 1229-30, 1241.) Whether harm resulted to the Department as a result of petitioner’s lie to Officer 2 is in dispute. The Court reviews the City Council’s finding of harm based on the independent judgment standard.

In the exercise of its independent judgment, the Court finds that the Department did suffer harm. Petitioner’s request to Officer 2 based on a lie that the license plate was for a car that was in his neighborhood set forth a series of events leading to a civilian complaining that she and her family were being harassed by a member of the Department, i.e., Officer 1, as well as an allied agency, the San Bernardino Sheriff’s Department, conducting a criminal investigation in which Officer 1 was a potential suspect. (AR 290 [HT 272:4-20].) Specifically, Officer 1 was able to locate and contact C.D.’s husband and in-laws through the information that petitioner obtained from Officer 2 under false pretenses, which, in turn, lead to C.D.’s complaint and the investigation by the San Bernardino Sheriff’s Department. (AR 184-85 [HT 166:20-167:2].)

Petitioner also violated Officer 2’s trust by having her run the license plate under false pretenses, thereby severing the internal trust that a police department needs to operate and placing himself, Officer 2, and Officer 1 in violation of policies designed to ensure confidentiality of DMV databases and to protect the public. (AR 62 [HT 62:3-5], 412-13 [HT 365:23-366:12].) Further, the Department could lose access to confidential databases if they are misused for personal use. (AR 190 [HT 172:9-22], 192 [HT 174:20-23].)

Even though petitioner’s name was not mentioned in the San Bernardino Sheriff’s Department’s report and C.D. did not name petitioner in her complaint to the Department (AR 1229), an offense does not need to be publicized for the offense to cause “discredit to the appointing authority or the person’s employment.” (Orlandi v. State Personnel Bd. (1968) 263 Cal.App.2d 32, 37.) Due to the high standards to which law enforcement is held, petitioner’s lie to Officer 2 led to erosion of public trust. (Anderson v. State Personnel Bd. (1987) 194 Cal.App.3d 761, 769 [“Unquestionably, the actions of a law enforcement officer must be above reproach, lest they bring discredit on the officer’s employer”].)

In the alternative, petitioner contends that the City Council’s decision violates Topanga. In Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, the Supreme Court held that “implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” (Topanga, 11 Cal.3d at 515.) The Court explained that “among other functions, … findings enable the reviewing court to trace and examine the agency's mode of analysis.” (Id. at 516.)

“Administrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein.” (Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 954; see also Oduyale v. Cal. State Bd. of Pharmacy (2019) 41 Cal.App.5th 101, 113 [Topanga “does not require the Board to outline all the reasons it opted not to impose a lesser form of discipline. It is only required to justify the penalty imposed, including ‘a statement of the factual and legal basis of the decision’”].)

In the City Council’s decision, the City Council set forth its finding that petitioner’s dishonesty to Officer 2 internally and externally harmed the Department. (AR 1241.) Internally, petitioner severed the internal trust of the Department by using deceit to have Officer 2 run a license plate for personal use. (AR 1241.) Externally, petitioner’s deceit and transmission of the MDT information to Officer 1 lead to a civilian complaining of harassment to the Department. (AR 1231.) The City Council set forth the offenses upon which it based its imposition of termination. The decision complies with Topanga.

Petitioner also argues that the City Council considered evidence not in the administrative record in deciding to terminate his employment. Petitioner refers to the finding in the City Council’s decision that petitioner “chose to conceal his dishonesty until he was investigated.” (AR 1241.) Petitioner contends that this finding was based solely on Chief Ellis’ statement in his request for review of the Hearing Officer’s decision, which stated as follows:

Even so, the hearing officer also errs in his argument that Rodriguez had a single incident of dishonesty…. The hearing officer fails to consider that Rodriguez did not confess until the investigation. For approximately one month, Rodriguez did not reveal to Officer 2 or to his superiors that he had illegally accessed private information for personal reasons. Each day that passed without his admission was a day in which Rodriguez chose to continue his concealment of his dishonesty and evasion of the consequences for his actions.

(AR 1235.) According to petitioner, investigator Lt. Brown and Chief Ellis only testified to one act of dishonesty, petitioner’s lie to Officer 2, during the administrative proceedings. (AR 154-57 [HT 136:11-139:6], 349 [HT 302:3-14].)

The City Council’s finding that petitioner concealed his dishonesty is supported by the administrative record. Only after C.D. complained of harassment to the Department and Lt. Brown discovered petitioner’s involvement in the course of the investigation into the complaint did petitioner disclose his misconduct. (AR 69-70 [HT 69:16-70:8] [Lt. Brown discovered Officer 2 ran license plate], 151 [HT 133:18-25] [Lt. Brown discovered that petitioner requested search], 270-71 [HT 252:19-253:3] [interview of Officer 2 revealed petitioner’s involvement].) Accordingly, petitioner’s argument that he was denied a fair hearing in violation of the Public Safety Officers Procedural Bill of Rights Act and therefore entitled to reinstatement is without merit.

In any event, petitioner was not charged with concealing his lie to Officer 2; rather, petitioner was charged with lying to Officer 2 to obtain confidential information for his personal use. (AR 1114-16.) This one act of dishonesty alone is sufficient to warrant petitioner’s termination. (Gee v. California State Personnel Bd. (1970) 5 Cal.App.3d 713, 719 [“Honesty is not considered an isolated or transient behavioral act; it is more of a continuing trait of character”].) Even if petitioner’s lie to Officer 2 were an isolated event and therefore indicative that such dishonesty is not likely to reoccur, the harm to the public service is paramount in the determination of appropriate discipline. (Skelly, 15 Cal.3d at 218.) Petitioner’s lie to Officer 2 was egregious and resulted in reputational damage to the Department.

For the foregoing reasons, the weight of the evidence supports the City Council’s finding of harm and, in light of such harm and seriousness of petitioner’s conduct, it was not a manifest abuse of discretion to terminate petitioner’s employment.

The petition is DENIED. Pursuant to Local Rule 3.231(n), respondent City of Pomona shall prepare, serve, and ultimately file a proposed judgment.

[1] Civilian witnesses are referred to by their initials to preserve their privacy, as the Hearing Officer did in his ruling.

[2] There is no dispute that C.D. and C.M. are the same person.

[3] The Los Angeles County Sheriff’s Department has a JDIC unit that can determine what searches have been run. (AR 128-29 [HT 110:4-111:25].)

[4] In Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, the California Supreme Court established certain procedural rights for public employees facing disciplinary action.