(Super. Ct. No. PC20090576)
The opinion of the court was delivered by: Duarte , J.
Greenwood v. El Dorado County Civil Service Commission
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
By this appeal, plaintiff Jeff Greenwood (Greenwood) seeks reinstatement as a deputy with the El Dorado County Sheriff's Department (Department). Greenwood's dismissal was ordered by Sheriff Jeff Neves, and sustained by the El Dorado County Civil Service Commission (Commission). Greenwood then filed a petition for writ of administrative mandamus to overturn the Commission's decision. (Code Civ. Proc., § 1094.5.) The trial court denied relief, and Greenwood timely filed this appeal.
Greenwood went to comfort a fellow officer who evidently had long-term trauma from an on-duty shooting in which she and two other deputies had been wounded, and their assailant was killed. Greenwood witnessed the off-duty officer smoking marijuana and offering it to him, but did not timely report her. He later called a dispatcher to complain about the ensuing internal affairs investigation, and disparaged the Department and undermined his own credibility during that recorded conversation.
On appeal, Greenwood contends his termination was too harsh a penalty for his transgressions. Our task is not to determine whether we would have reached the conclusion that his misconduct warranted dismissal, but rather to determine whether the penalty imposed by the Sheriff and affirmed by the Commission represents an abuse of discretion. As we shall explain, we find no abuse of discretion. Accordingly, we shall affirm the judgment.
Although Greenwood challenges the penalty of termination and not the facts surrounding his misconduct, throughout his briefing he skews the facts in his favor. Accordingly, in addition to describing the factual findings of the Commission, we also describe some of the evidence supporting those findings.
On April 2, 2008, at about 1:30 a.m., after his patrol shift was over, Greenwood visited Deputy M, a close friend, because he had been told M was suicidal.*fn1 When Greenwood arrived, M was extremely agitated. She then calmed herself down by smoking marijuana, and offered some to Greenwood. Although he refused it, he did not seize it, call for assistance, or promptly report her criminal activity.*fn2 Greenwood left at about 5:00 a.m., slept for several hours, and then began his next shift.
Greenwood testified M was his best friend and the godmother to his son, the marijuana seemed to help her, and although he knew he was required to report her criminal activity, he was torn about to whom he should report it.
Early on the morning of April 3, 2008, Greenwood was asked to go to Marshall Hospital to assist with M, who had been taken there by others. Greenwood testified Sergeant Byers was at the hospital, and that after Greenwood learned M had already disclosed her drug use, he confirmed that he had seen her use marijuana. Although one witness corroborated this testimony, Byers testified Greenwood made no such statement, and the Commission disbelieved Greenwood.
The Commission found that Greenwood's failure to report M's crimes violated a provision of the Department's Policy Manual (PM), section 340.32(f), that requires any employee to report activity of any other employee that "may result in criminal prosecution or discipline[.]" The Commission found Greenwood's conduct also violated a provision of a Personnel Management Resolution (PMR), section 1104(c), that proscribes "conduct tending to bring the County service into disrepute" because the public might conclude the Department treated its officers with favoritism, noting that a "civilian witness" was present during the incident. The Commission also found this incident was a neglect of duty and failure to comply with reasonable regulations (PMR, § 1104(h) & (j)).
The Commission also found that if it credited Greenwood's testimony that he told Sergeant Byers about M's drug use after M had already disclosed it, the result would not have changed. During an internal affairs investigation, Greenwood had admitted he had violated policy by not reporting M's drug use as soon as possible. However, Greenwood testified before the Commission that he merely violated a "common practice" requiring notification as soon as possible. The Commission further found that Greenwood allowed his personal feelings to influence his decision, thereby violating the Law Enforcement Code of Ethics
(the Code), but concluded the Code was merely hortatory. We discuss the Code more fully, post.
B. Dispatcher Blalock Incident
On the afternoon of April 24, 2008, Greenwood replied to an e-mail informing him of the time of an internal affairs interview about Deputy M's drug use in his presence.
About six hours later, Greenwood called Brea Blalock, a friend working as a dispatcher for the Department, and spoke to her for about 10 minutes, during which time she also handled several dispatch calls.*fn3 Greenwood knew the call was being recorded, and the recording and a transcript of it were introduced as evidence before the Commission.
The Commission found Greenwood distracted Blalock, and therefore disrupted the efficiency of the Department (PM, § 340.35(g)), and made comments (described immediately below) tending to bring the Department into disrepute (PMR, § 1104(c)) thus violating reasonable departmental regulations (PMR, § 1104(j)). The Commission rejected the Department's claim that Greenwood knowingly made false statements calculated to harm the Department and engaged in dishonest or notoriously disgraceful conduct (PM, § 340.45 (h) & (o)). The Commission found that Greenwood "hardly seems emotional or angry in the recording of the conversation, but rather self-indulgent and full of bravado."*fn4
Without quoting everyone, the statements found by the Commission to merit discipline were generally as follows:
1) Greenwood knew the call would be heard and stated, "Fuck this, I want them to hear this on the recorded line."
2) After Blalock handled a medical call, Greenwood said he hoped "one of them pukes dies down there [sic]."
3) Greenwood said that during an upcoming Christmas party, he would sign up for overtime and arrest members of the Department's administration for drunkenness as they left, and mention their names over the police radio.
4) Greenwood said that, although he would not lie, he was not going to tell internal affairs everything, and he would not "sell [M] down the river[.]"
5) Greenwood said he was "fucking proud" of the allegation in his disciplinary notice that he had not reported M's conduct, and he wanted it distributed widely because it proclaims, "'Here you are, bitches, I'm not a snitch.'"
There was undisputed testimony that the recording of Greenwood's call was available to any member of the public under the California Public Records Act.*fn5
A great deal of testimony was heard on the so-called Brady and Pitchess questions arising from the recording.*fn6
Before Sheriff Neves decided to terminate Greenwood, these questions had been considered by several legal experts who unanimously advised him that Greenwood's statements could harm his credibility as a witness in criminal or civil litigation arising out of his duties. Four experts testified before the Commission, as follows: (1) Franklin Gumpert, the County's longtime outside counsel who had extensive experience in federal litigation, including claims of civil rights abuse by peace officers; (2) William Clark, the Chief Assistant District Attorney, who had over 20 years of experience as a prosecutor and 10 years of experience as a peace officer before then; (3) Ed Knapp, the longtime Chief Assistant County Counsel, who had expertise in Pitchess motions; and (4) Captain Mark Getchel, who handled Pitchess and Brady issues for the Department. In addition, although District Attorney Vern Pierson did not testify, Pierson was present at a meeting about Greenwood's future credibility problems, and concurred in the advice others had given Neves. Neves also consulted two other attorneys, including "Marty Mayer, who is the attorney who represents the 58 sheriffs" of California, and received the same advice.
There had already been disclosure issues in two criminal cases in which Greenwood was a potential witness. In the first, a judge had refused to disclose the recording of Greenwood's call, in response to a Pitchess motion, because Greenwood had not lied in the subsequent internal affairs interview. But in the second, Greenwood had been dropped as a witness by the People due to Brady concerns. There was also testimony ...