WILLIAM B. KOLENDER, as Sheriff, etc., v. SAN DIEGO COUNTY CIVIL SERVICE COMMISSION, (TIMOTHY BERRY, Real Party in Interest)132 C.A. 4 th 716 (2005)

While still on probation and subject to termination without cause, Dep. Berry accompanied Dep. Padilla in taking a disorderly and belligerent inmate out of a detention center housing module. Dep. Berry then witnessed Dep. Padilla yell provocative words at the inmate, forcefully hold the inmate, and intermittently tug at him. Dep. Berry left after being told he was no longer needed for cover and Dep. Padilla thereafter repeatedly bumped the inmate's head against a wall causing injuries for which the inmate required medical care.

When the inmate filed a grievance regarding the incident Dep. Berry 's Sergeant questioned him about it. Dep. Berry followed Dep. Padilla's request and lied about the incident, saying Padilla simply took the inmate to the medical holding area. As the investigation proceeded and investigators received other information regarding the incident, they confronted Dep. Berry and challenged the truth of his account. Dep. Berry then admitted that when first questioned regarding the incident, he had lied to protect Padilla. Dep. Berry then proceeded to tell the investigators the truth.

Sheriff Kolender terminated Dep. Berry for lying to cover up a fellow deputy's physical abuse of an inmate, and Dep. Berry appealed to the San Diego County Civil Service Commission. The Commission reduced the termination to a ninety-day suspension and the Sheriff filed a petition for writ of mandate and requested that the superior court vacate the Commission's order. The superior court denied the petition finding the Commission did not abuse its discretion.

The California Court of Appeal, Fourth District, agreed with the Sheriff that the Commission abused its discretion and reversed, holding that the Commission's discretion was not unfettered, and that reversal is warranted when the administrative agency abuses its discretion, or exceeds the bounds of reason. Here, the Commission abused its discretion in reinstating Berry , and ignored the controlling principles enunciated in Hankla v. Long Beach Civil Service Commission (1995) 34 Cal.App.4th 1216.

"An abuse of discretion occurs where, as here, the administrative decision manifests an indifference to public safety and welfare." In considering whether such abuse occurred in the context of public employee discipline, we note that the overriding consideration in these cases 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.' [Citation.] The public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability."

The Appellate Court concluded "... this is not a case where reasonable minds can differ with regard the appropriate disciplinary action. A deputy sheriff'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. Dishonesty is incompatible with the public trust."... Dishonesty is not an isolated act; it is more a continuing trait of character. False statements, misrepresentations and omissions of material facts in internal investigations, if repeated, would result in continued harm to the public service.

How this affects your agency: Finding that "dishonesty is incompatible with public trust" the court here reaffirms that when a law enforcement officer is terminated for false statements, misrepresentations and omissions of material facts during an internal investigation, reasonable minds cannot differ as to the penalty of termination. Court's will not interfere with a Chief or Sheriff's decision to demand the highest standard of behavior from their officers.