Judge: Mary H. Strobel, Case: 21STCP03216, Date: 2023-03-02 Tentative Ruling

Case Number: 21STCP03216    Hearing Date: March 2, 2023    Dept: 82

            Petitioner Esteban Castaneda (“Petitioner”) petitions for a writ of administrative mandate directing Respondent City of Monrovia (“Respondent” or “City”) to set aside an administrative decision to terminate Petitioner from his position as police officer with the City of Monrovia Police Department (“Department” or “MPD”). 

Background

Petitioner’s Employment History

            After he graduated high school in 1995, Petitioner enlisted in the U.S. Marine Corps and served for five years.  He was honorably discharged.  (AR 801.)  Petitioner worked as a police officer for two other police departments before joining MPD.  (AR 802.)  While at MPD, Petitioner has received commendations for his volunteer work in the community and the Medal of Valor, which is the MPD’s highest honor, for his conduct during a December 2017 incident to apprehend a burglary suspect.  Petitioner was also selected as a member of the regional SWAT team.  (AR 802.)  Petitioner has received strong performance evaluations while with MPD.  (AR 220-253.)

Petitioner’s personnel file also shows the following disciplinary history:  

1. On or about February 20, 2017, you [i.e., Petitioner] received an employee evaluation, indicating “Needs Development” in the areas of ‘Championing Customer Needs’ and ‘Assessing and Understanding People.’ In regards to Championing Customer Needs, on May 26 and May 28, 2017, you received complaints from two citizens regarding the way you spoke with them (e.g., you raised your voice, was yelling, and was rude and disrespectful). With respect to Assessing and Understanding People, on September 17, 2017, you received a customer complaint based on discourteous and disrespectful conduct. The citizen complained that you were dismissive, unresponsive to his concerns and seemed disinterested. You were confrontational, abrupt and interrupted the citizen, and your interaction was deemed unacceptable and not in line with the goals and objectives of the Department.

2. On March 7, 2019, you received a written reprimand for violating Policy Standards of Conduct, Sections 340.5.7(e) (Performance), 340.5.8(1) (Conduct) and 340.5.8(m) (Conduct). Specifically, you made comments and acted in a manner towards Agt. Cofield: (1) found to disrupt the efficiency of this Department and would tend to discredit one of its members; (2) that was discourteous and disrespectful to a member of this Department; and (3) that you should have reasonably known to effect the morale of this Department and its members.

(AR 289.)

MPD Investigates Suspicious Fires Starting on March 5, 2019

            Starting on March 5, 2019, a series of suspected arsons occurred in City.  (AR 861-862.)  MPD obtained a still image of the arson suspect from video footage.  (AR 863.)  During the night watch briefing at approximately 6:00 p.m. on March 6, 2019, Lt. Jaime Alfaro shared the photograph with the officers working that night, including Petitioner, and texted the photograph to them. (AR 863-865, 2308.)  Lt. Alfaro asked the officers to be “extra vigilant” during their watch that night.  (AR 864.) 

March 6, 2019, Incident

            Later on March 6, 2019, at approximately 11:12 pm, Matthew Gomez of the 700 block of W. Lemon Ave., in Monrovia, called MPD after seeing a suspicious person near his neighbor’s residence.  (AR 1390-1398, 345-346.)  Petitioner responded to Gomez’s call and reported back to MPD that he was unable to locate the suspicious person. (AR 2309.)

            As he drove eastbound on West Lemon Ave., Petitioner was flagged down by Robert Fernandez, who resides at 709 West Lemon Ave.  (AR 805.)  At the administrative hearing, Fernandez testified that, at approximately 11 pm, he was getting ready to go to bed when he noticed the “reflection of a campfire” outside.  In his underwear and shirt, Fernandez ran outside and sprayed in the direction of the fire.  After about five minutes, the fire “was gone.”  (AR 1660-61.)  Fernandez told his wife, Jennifer Green, what happened and they both observed a burnt cushion against the fence which smoke coming off it.  (AR 1663, 1566.)  The cushion did not belong to Fernandez and Green.  (AR 1663, 1566.)

Fernandez then walked out to the street where he flagged down Petitioner, who was in the process of leaving the suspicious person call. (AR 1664, 2233.) Fernandez later testified that he told Petitioner “I just put out a fire” and asked Petitioner to “check it out.” (AR 1664.)  Green and Fernandez testified that they showed Petitioner, who had a flashlight, the smoldering cushion and explained that there had been a fire. (AR 1568, 1664-65.) Green and Fernandez testified that Petitioner stomped out the smoldering cushion with his boot causing part of the cushion to melt to the bottom of Petitioner’s boot. (AR 1569, 1585, 1665; see also AR 358-360 [photos].)  Green testified that she told Petitioner they were aware of the fire a block away from the night before and Petitioner told her she should not say anything about arson or spread rumors because “we just don’t know yet.”  (AR 1573-74.) 

Officer Marco Lopez, a 13-year veteran of MPD who also responded to the suspicious person call, was called back to the area by Petitioner.  Officer Lopez denied having a conservation with Fernandez or Green, and he testified that no one told him or Petitioner about a fire.  (AR 806-807, 2011-2061.)  Petitioner later told investigators, and testified, that Fernandez and Green did not tell him they saw a fire or campfire.  While Petitioner acknowledged he saw a torn cushion and was “moving things around with my foot and my hand,” he denied that the cushion was burnt or that he saw or smelled any evidence of a fire.  (AR 624-629, 2313-23, 2233-34.) Petitioner also testified that Fernandez told him that he was looking out his kitchen window and he “saw a light.”  (AR 2234.)

Petitioner did not take anything from the scene to book as evidence; did not write down Fernandez’s name; and did not have his digital recorder on. (AR 1571-72, 626, 2311.) Petitioner finished at the scene at approximately 11:34 pm. (AR 2312.) 

Later that night, additional suspicious fires were reported in the area. (AR 868-869.) Around 9:00 am on March 7, Green called MPD. (AR 1579; 866-867.) Green was transferred to Lt. Alfaro and she explained that there had been a fire at her house, that her husband had flagged down an MPD officer, whom she identified as Petitioner, and that she still had the burnt cushion. (AR 1579; 866-867.)

At approximately 12:00 pm on March 7, Officer Anaya was sent to interview Fernandez and Green and to take a report. (AR 365-367; 1454-1455.)  Fernandez described to Officer Anaya that at approximately 11:15 pm, he observed a “flashing light or a flash of light” from his front window, that he ran outside and grabbed his garden hose, and extinguished a fire. (AR 1455-1466.) Officer Anaya observed and took photographs of a burnt cushion with a resinous odor, charring on the fence, and black ash indicating a fire had been set. (AR 1457-1458; 356-363; 305.)  Officer Anaya had no doubt that a fire had been started in that area. (AR 1464:7-14.) Officer Anaya took the burnt cushion and other burnt stuffing material as physical evidence. (AR 1466:3-9.) He also canvassed the neighborhood and determined the cushion was taken from a residence also on the 700 block of W. Lemon Ave. (AR 1466:25-1467:10.) Officer Anaya prepared a report indicating that an arson had occurred. (AR 1467-1468; 365-367.) Officer Anaya contacted Petitioner as part of his investigation, and Petitioner said he did not see a fire and did not stomp out a fire.  (AR 1471-1473.)

Department’s Administrative Investigation, and Notice of Termination

Lt. Alfaro was instructed to begin an Internal Affairs (“IA”) investigation into Petitioner’s conduct. (AR 298.) During his investigation, Lt. Alfaro conducted 13 witness interviews, including interviewing Fernandez and Green twice. (AR 293-304.)  As a part of the IA investigation, Lieutenant Alfaro also obtained geo-tracking data from the arson suspect’s cell phone. (AR 641-648; 975-980.) Where relevant, this evidence is discussed in the Analysis section below.

Petitioner stated during his IA interview that Fernandez and Green never told him about a fire or campfire.  Rather, Petitioner stated that Fernandez told him he saw someone near their driveway and saw a light. (AR 624:2-3.)

On September 3, 2019, MPD issued a Notice of Intent for Disciplinary Action dated informing Petitioner that MPD intended to discharge him for violations of MPD Policies 340 (Performance/Untruthful, False, Misleading Statements, Acts Discrediting Department, Conduct Unbecoming), 344 (Report Preparation), and 804 (Property Handling/Property Booking Procedure). (AR 281-291.)

Chief of Police Alan Sanvictores held a Skelly hearing with Petitioner on September 23, 2019.  (AR 685.)  Based on that meeting and the evidence from the IA investigation, Chief Sanvictores concluded that Petitioner failed to take a report as required by MPD policy and made dishonest statements during his IA interview, which warranted his termination from MPD. (AR 685-695.)  MPD issued a Notice of Termination to Petitioner on November 18, 2019. (Ibid.)

Administrative Hearing and Decision

Petitioner appealed the discharge, and the City Manager assigned Petitioner’s appeal to the State of California Office of Administrative Hearings (“OAH”).  (See OB 10:7-8 and AR 101-112, 818.)  ALJ Erlinda Shrenger of OAH heard the appeal from February 1-5, 2021, and March 15-17, 2021. She received oral and documentary evidence and rendered her proposed decision in favor of MPD on July 6, 2021. (AR 800-817.) The ALJ found that MPD’s decision to terminate Petitioner’s employment was appropriate and supported by the evidence. (AR 815.)  On July 13, 2021, the City Manager adopted the ALJ’s decision upholding Petitioner’s termination. (AR 818.)

Writ Proceedings

            On September 28, 2021, Petitioner filed his petition for writ of administrative mandate.  Respondent answered. 

            On December 30, 2022, Petitioner filed his opening brief in support of the petition.  The court has received Respondent’s opposition, Petitioner’s reply, the administrative record, and the joint appendix.

Standard of Review

Under CCP section 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 termination of Petitioner from his position as a police officer for City concerns a fundamental vested right, the court exercise 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, supra, 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.)   A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)  When an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [his] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) 

“On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’”  (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)  “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.”  (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)  The interpretation of statute or regulation is a question of law.  (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.)

Analysis       

Petitioner’s Due Process and Fair Trial Claims

            Petitioner challenges the fairness of the administrative proceedings.  Under CCP section 1094.5(b), the court’s inquiry extends to “whether there was a fair trial.”  “Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action ... and an opportunity to present their objections.’”  (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.) “Fair hearing requirements are ‘flexible’ and entail no ‘rigid procedure.’” (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1062.)  Procedural errors, “even if proved, are subject to a harmless error analysis.”  (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.)  “The question is whether the violation resulted in unfairness, in some way depriving [Petitioner] of adequate notice or an opportunity to be heard before impartial judges.”  (Rhee v. El Camino Hosp. Dist. (1988) 201 Cal.App.3d 477, 497; see also Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200.)  

Denial of Discovery Motion

Petitioner contends that he was “denied due process when the original ALJ failed to apply the rules of discovery under the Administrative Procedures Act (APA), yet applied them in all other regards.”  (Opening Brief (“OB”) 3 and 10; Reply 7-8.)  Petitioner sought a broad range of discovery from MPD, including access to the boots Petitioner wore during the March 6, 2019, incident.  (AR 9-10.)  Petitioner argued that Government Code section 11507.6 of the APA provided his right to discovery.  (AR 7-8.)  MPD opposed the motion, arguing inter alia that the APA did not apply.  (AR 88-94.)  The ALJ denied Petitioner’s discovery motion.  (AR 147-151.)

Petitioner does not show any prejudicial abuse of discretion in the ALJ’s discovery ruling.  The City is a “local agency” within the meaning of the APA.  (Gov. Code § 11410.30(a).)  The APA does not apply to a local agency except as provided by statute or if adopted by the local agency. (Gov. Code §§ 1141.30, 11410.40).  The parties’ MOU does not incorporate the procedures of the APA (AR 680-683) and Petitioner cites no statute or ordinance making the APA applicable to City.  That the City Manager designated OAH to hear the appeal, as permitted by the MOU (AR 683), does not establish that City also adopted the APA for purposes of discovery.  Petitioner does not cite any other authority under which he could conduct discovery.  (AR 147-151.)

Nor does Petitioner show denial of due process or a fair trial from the ALJ’s discovery ruling.  Since the APA did not apply, Petitioner was not denied due process or a fair hearing when the ALJ did not allow discovery under the APA.  Petitioner states, without record citation, that the ALJ “made other rulings consistent with APA rules.”  (OB 10:18.)  The argument fails because there is no record citation.  Moreover, even if the ALJ made rulings “consistent” with the APA, that would not establish that City incorporated the APA or APA discovery rules.  Nor has Petitioner shown, with record citation, how he was prejudiced by any ruling that was “consistent” with the APA.

Petitioner implies that the ALJ or Department failed to comply with Penal Code section 135.5, but he does not develop the point with legal analysis and citation to the record.  (See OB 10; Reply 7-8; Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)  Even if considered, the argument is not persuasive.  Section 135.5 states: “Any person who knowingly alters, tampers with, conceals, or destroys relevant evidence in any disciplinary proceeding against a public safety officer, for the purpose of harming that public safety officer, is guilty of a misdemeanor.”  Petitioner has not shown the applicability of this statute to the discovery request in question. 

            Denial of Request for Rebuttal Witness

            Petitioner also contends that he “was denied due process when the ALJ at trial denied his reasonable request for a rebuttal witness of less than an hour in an eight-day trial made necessary due to the unexpected testimony of the Chief of Police.”  (OB 3.)  Later in his brief, Petitioner states: “[W]hen the Chief testified at trial that it was his opinion that [polygraph] exams were not reliable, it was a surprise, given what had transpired at the Skelly Hearing, forcing Officer Castaneda to move to call an expert witness to rebut his testimony…. The motion was denied from the bench, even though it would have consumed less than an hour of time in an eight-day trial.”  (OB 11, citing AR 727-35, 1845-49.)

However, as the ALJ noted, the Chief of Police explicitly stated in Section 5 of the Notice of Termination that polygraph exams are “inherently unreliable.”  (See AR 1846, 693.)  Accordingly, the weight of the evidence supports the ALJ’s finding that the issue of reliability was not a “surprise,” as Petitioner argues, and Petitioner should have listed his proposed witness on the final witness list.  (AR 1846, 693.)  In addition, as the ALJ noted, Petitioner had the opportunity to cross-examine the Chief of Police about the reliability of polygraph exams.  (AR 1846.)  Finally, exercising its independent judgment, the court does not find the polygraph evidence to weigh materially against the administrative findings, as discussed below.  The court reaches that conclusion regardless of the Chief’s opinion that polygraph exams are unreliable.  In these circumstances, the ALJ did not prejudicially abuse her discretion in denying Petitioner’s request to examine a rebuttal witness and Petitioner was not denied due process or a fair trial as a result of that ruling.

            Petitioner received a fair administrative hearing and was not denied due process. 

The Weight of the Evidence Supports the Administrative Findings

Petitioner Failed to Properly Investigate the Report of Arson Made by Fernandez and Green

            The ALJ found that Petitioner “violated Department policy by failing to take a report of the arson reported by Ms. Green and Mr. Fernandez, [and] by failing to collect the evidence of the arson, i.e., the burnt cushion….”  (AR 815.) 

            MPD Policy Manual section 344 sets forth the requirements for “Report Preparation.” Section 344.2.1 states, in pertinent part: “When a member responds to a call for service, or as a result of self-initiated activity becomes aware of any activity where a crime has occurred, the member shall document the incident regardless of whether a victim desires prosecution.”  Policy Manual section 804 sets forth requirements for the handling of “Property and Evidence.” Section 804.4.1 states, in pertinent part: “All property must be booked prior to the employee going off-duty unless otherwise approved by a supervisor.”  (AR 803-804.)

Fernandez testified that, at approximately 11 pm on March 6, 2019, he was getting ready to go to bed when he noticed the “reflection of a campfire” outside.  In his underwear and shirt, Fernandez ran outside and sprayed in the direction of the fire.  After about five minutes, the fire “was gone.”  (AR 1660-61.)  Fernandez told his wife, Jennifer Green, what happened and they both observed a burnt cushion against the fence which smoke coming off it.  (AR 1663, 1566.)  Fernandez flagged down Petitioner, who was in the process of leaving the suspicious person call. (AR 1664, 2233.) Fernandez testified that he told Petitioner “I just put out a fire” and asked Petitioner to “check it out.” (AR 1664.)  Green and Fernandez testified that they showed Petitioner, who had a flashlight, the smoldering cushion and explained that there had been a fire. (AR 1568, 1664-65.) Green and Fernandez testified that Petitioner stomped out the smoldering cushion with his boot. (AR 1569, 1585, 1665; see also AR 358-360 [photos].)  This evidence supports a finding that Petitioner received a report of arson by Fernandez and Green and evidence of arson (the cushion). 

It is undisputed that Petitioner did not prepare a report of the interaction with Fernandez and Green or book the cushion into evidence.  Nor did Petitioner activate his digital recorder.  (See e.g. AR 806, 1571-72, 626, 2311.) This evidence supports the findings of an improper investigation and failure to collect evidence.

Petitioner challenges the credibility of Fernandez and Green.  The court analyzes that issue below with respect to the charge of dishonesty.

Petitioner Was Dishonest During the IA Investigation

            The ALJ found that Petitioner engaged in misconduct during the IA investigation “by his dishonesty in covering up his failure [to investigate] by repeatedly denying there was a fire.”  (AR 815.)

Petitioner stated during his IA interview that Fernandez and Green never told him about a fire or campfire.  Rather, Petitioner stated that Fernandez told him he saw someone near their driveway and saw a light. (AR 624:2-3.)  Petitioner also denied that he was shown a burnt cushion.  (AR 624, 632.) As discussed above, Fernandez testified that a fire occurred on March 6, 2019, that he put out the fire, that he reported this to Petitioner, and that he showed the burnt cushion to Petitioner.  Green corroborated Fernandez’s account.   The testimony of Fernandez and Green support the finding of dishonesty. 

Petitioner argues that Fernandez and Green were not credible witnesses for several reasons.  The court has considered all of Petitioner’s record citations and arguments. 

Exercising its independent judgment on the record, the court finds that the weight of the evidence supports the ALJ’s determination that the testimony of Fernandez and Green, as corroborated by Officer Anaya, was more credible that Petitioner’s contrary testimony.  (AR 812.)  Petitioner does not dispute that a fire occurred at Fernandez and Green’s property on March 6-7, 2019, as shown in photographs and the report taken by Officer Anaya.  (AR 355-367.)   Petitioner argues that the evidence does not prove that the fire occurred before he was flagged down by Fernandez.  However, Fernandez testified clearly about the time and circumstances in which he saw and put out the fire (e.g., while he was getting ready for bed.)  Fernandez’s account is corroborated by other evidence, including statements of Green, the fact Fernandez flagged Petitioner down to report criminal activity, the investigations of Officer Anaya and Lt. Alfaro suggesting the arson suspect was near the 700 block of W. Lemon Ave. at the time, and other incidents of arson in the area.  (See AR 367, 975-980, 641-648, 861-865.)  It is also corroborated by the video surveillance of the arson suspect removing a cushion from a neighbor’s patio the night in question shortly before Fernandez saw the cushion on fire near his fence.  (AR367.) The neighbor subsequently identified the charred cushion as having been removed from their patio.  (AR367.) 

Petitioner, who had the opportunity to cross-examine Fernandez, does not show any reason to disbelieve his testimony.  Fernandez had never met Petitioner before and had no apparent motive to lie.  (AR 1678.)  Petitioner argues that Fernandez gave inconsistent statements in his interviews and testimony, and that he denied speaking with Officer Anaya.  (OB  6-7.)  In his interviews and testimony, Fernandez stated consistently that he told Petitioner there was a fire and that he put out the fire, and that he showed Petitioner the burnt cushion. (AR 1660-65, 1686, 388-393, 301-302.) That Fernandez did not recall speaking with Anaya in his testimony on February 4, 2021, almost two years after the fire, does not detract from his credibility with respect to the incident on March 6, 2019.  (AR 1685-1686.)   “People often forget things or make mistakes in what they remember.”  (CACI 107.)

Petitioner argues that “[i]t was demonstrated beyond the ability to rebut at the hearing that the view from the kitchen made it IMPOSSIBLE to see the driveway and fence area in question.”  (OB 6, citing AR 2234-39.)  Petitioner cites his own testimony, which discusses a statement in Officer Anaya’s report that Fernandez said he was looking out the kitchen window when he saw the fire.  (AR 2237-38, 366.)  At the hearing, Fernandez testified that he “go[es] through the kitchen through the … living room to get ready” for bed and that he saw the fire from a window while doing so. (AR 1661.)  Fernandez did not state in his testimony that he saw the fire through a kitchen window.  In his IA interview, Fernandez stated that he viewed the fire from his living room.  (AR 301, 387-388.)  The discrepancy with Anaya’s report concerning the window through which Fernandez saw the fire does not undermine Fernandez’s credibility. 

Petitioner contends that Fernandez admitted that Petitioner did not “stomp out” a fire on the cushion.  (OB 5 and Reply 7, citing AR 1690.)  Fernandez testified that Petitioner was investigating with his foot; the cushion was still warm; and Petitioner got “tarry, sticky stuff” on his boot.  (AR 1690-91.)  Petitioner does not cite any prior statement of Fernandez that is materially inconsistent or that would detract from his credibility on the core issue that he told Petitioner a fire occurred and showed him a burnt cushion. 

Petitioner also argues that Green gave inconsistent statements, including about whether she was asleep at the time of the fire.  (OB 1-2, 7-8; Reply 3-4; see e.g. AR 1464-65, 1640.)  Officer Anaya’s report states that Green claimed to be asleep when the fire occurred.  (AR 366.)  However, Petitioner does not cite interview transcripts showing that Green stated she was asleep.  The minor inconsistency does not detract from her credibility.  Green consistently testified she went out to the yard after her husband came into the house and said he had put out a fire.   Petitioner also suggests Green was not credible because she “monitored local events closely on her neighborhood app.” (OB 7, citing AR 2245-47, 1577-78.)  This evidence does not disclose a motive to lie.  Significantly, Green remained consistent in her core statements that she observed the remnants of a fire at her residence after her husband put the fire out, and that they informed Petitioner that there had been a fire. (AR 1563-70, 293-304, 390-400.)

            Petitioner asserts that other witnesses, specifically Gomez and Officer Lopez, did not see the fire on Fernandez’s and Green’s property.  (OB 1-2.)  However, neither witness was present on the property when Fernandez stated that the fire occurred. 

Petitioner, in contrast to Fernandez and Green, had a motive to lie about and cover up the deficiencies in his investigation.  During the night watch briefing at approximately 6:00 p.m. on March 6, 2019, Lt. Jaime Alfaro asked the officers to be “extra vigilant” during their watch that night with respect to the suspected arsons.  (AR 864.)  Petitioner’s failure to investigate a report of arson and collect evidence of arson was inconsistent with this order given by Lt. Alfaro.   Petitioner was aware he could be subject to discipline for failure to prepare a report and had motive to cover up his mistake. 

            Petitioner argues that the ALJ ignored evidence that he was not being “lazy” when he failed to investigate Fernandez’s and Green’s report of arson.  (OB 4-5, citing record.)  MPD did not charge Petitioner with laziness, but rather dishonesty and failure to perform an adequate investigation.  Petitioner’s evidence that he performed other aspects of his duties on March 6, 2019, does not prove that he completed an adequate investigation of the arson incident or was honest in his IA interview.  (See e.g. AR 2253-54.)

            Petitioner contends that the weight of the evidence does not support the ALJ’s finding that Lt. Alfaro conducted a proper IA investigation.  (OB 9; see AR 813, ¶ 41.)  Petitioner cites testimony of his expert, retired police officer Mark Hodges, and Peace Officer Standards and Training (“POST”) guidelines.  (AR 1866-1928, 201-218.)  Petitioner argues that Lt. Alfaro improperly interviewed witnesses together, such as Fernandez and Green; asked leading questions; failed to collect potentially exculpatory evidence, including Petitioner’s boots; and did not properly “reenact” Fernandez’s use of the water hose, among other deficiencies.  (OB 9, citing AR 1920-21, 375, 1528.)  The weight of the evidence supports the finding that Lt. Alfaro conducted a thorough, unbiased, and well-documented investigation.  (AR 813, ¶ 41; see AR 809-811, 292-648, 855-987.) Moreover, Petitioner had the opportunity to cross-examine Lt. Alfaro about his findings and investigation, and to present other evidence in defense, including his own supporting witnesses.  (AR 988-1021.)  Although the IA investigation may not have been flawless, Petitioner has not established prejudice from the alleged deficiencies. 

To the extent Petitioner argues that he was prejudiced by not having access to his boots, Petitioner fails to develop the argument with citation to the record.  Moreover, Petitioner admitted he saw a cushion and was “moving things around with my foot and my hand,” which is consistent with the account of Fernandez and Green.  (AR 624-629, 2313-23, 2233-34.) 

            Petitioner argues that more weight should have been given to his polygraph examination.  (Mot. 10-12, citing AR 2301-2305, 702-704.)  The ALJ considered the evidence, including Petitioner’s statements, and credited Fernandez’s and Green’s version of events. (AR 812-815.)  The court has also considered the polygraph evidence.  Given the consistent and detailed testimony of Fernandez, as corroborated by other witnesses, the polygraph evidence does not materially detract from the ALJ’s findings. 

Exercising its independent judgment on the record, the court concludes that the weight of the evidence supports the ALJ’s findings and decision.  The weight of the evidence supports the findings that Petitioner failed to conduct a proper investigation of the report of arson made by Fernandez and Green on March 6, 2019 and failed to collect evidence of arson.  The weight of the evidence also supports the findings that Petitioner was dishonest during the IA investigation. 

Propriety of the Penalty

“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.”  (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.)  “[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.) 

Petitioner does “not seek here a review of the penalty imposed.”  (Reply 5.) 

Conclusion

            The petition is DENIED.