1

2
3

4 5 6 7
8

OFFICE OF THE CITY ATTORi'JEY City of San Luis Obispo J. Christine Dietrick (206539) Andrea S. Visveshwara (227412) 990 Palm Street San Luis Obispo, CA 93401 Telephone (805) 781-7140 Attorneys for City of San Luis Obispo cdietrick@slocity.org avisveshwara@slocity.org

Exemptfrom Filing Fee Pursuant to Gov't Code 6103

FILED
FEB 102014
MNbYIS

-b Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN LUIS OBISPO

9
10 DANIEL MCDOW, 11 Petitioner,
12

) Case No.: CV 130381

) ) RESPONDENT'S OPPOSITION TO ) PETITION FOR WRIT OF ) ADMINISTRATIVE MANDATE )

vs. 13 CITY OF SAN LUIS OBISPO, 14 Respondent. 15 16

~ )
--)

DATE: March 17,2014 TIME: 10:00 a.m. DEPT: 1

Respondent City of San Luis Obispo ("City") opposes Petitioner Daniel McDow's 17 ("McDow") Petition for Writ of Administrative Mandate as follows. 18 19 20 21

IIII IIII IIII IIII IIII IIII IIII IIII IIII IIII

22
23 24 25 26 27 28

RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE

TABLE OF CONTENTS

I. II.

INTRODUCTION STATEMENT OF FACTS A. B. The Border Detention The Discipline 2

3
5 7 7

III.

DISCUSSION A. The Findings that McDow Violated Both the Department's Rules and Regulations and the San Luis Obispo Municipal Code Are Supported by Substantial Evidence

1. Standard of Review
2. McDow Does Not Dispute That He Engaged In Conduct Unbecoming An Officer

7 8

3. The Substantial Evidence Supports the Finding That

McDow's Absence From Duty on September 16, 2009 Violated Department Rules and Regulations 4. The Violations Committed by McDow Amount to Serious Misconduct, Warranting Discipline B. Termination of an Officer Who Engaged in Serious Misconduct and Pled to a Federal Misdemeanor Does Not Constitute an Abuse of Discretion

10

12

12

1. Standard of Review
2. Termination Was Appropriate Because the Weight of the Evidence Supported Findings That There Was Harm to the Public Service and the Likelihood of Recurrence IV. CONCLUSION

12 13

17

RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMIN ISTRATIVE MANDATE

TABLE OF AUTHORITIES

Cases
Ackerman v. State Personnel Board (1983) 145 Cal.App.3d 395 Barber v. State Personnel Bd. (1976) 18 CaL 3d 395. 404 Barr v. City ofSan Diego (1960) 182 Cal.App.2d 776, 781 Bixby v. Pierno (1971) 4 Ca1.3d 130, 143 County ofSanta Clara v. Willis (1986) 179 Cal.App.3d 1240 Fukuda v. City ofAngels (1999) 20 Ca1.4th 805, 817 Hankla v. Long Beach Civil Service Commission (1995) 34 Cal.AppAth 1216 Kazensky v. City ofj\1erced (1998) 65 Cal. App. 4th 44, 53 Kestler v. City ofLos Angeles (1978) 81 Cal.App.3d 62, 66 Kolendar v. San Diego County Civil Service Commission (2007) 149 Cal.AppAth 464, 471 Riveros v. City ofLos Angeles (1996) 41 Cal.AppAth 1342, 1357 Schmitt v. City ofRialto (1985) 164 Cal.App.3d 494, 502 . Skelly v. State Personnel Board (1975) 15 Cal.3d 194,218

Page

13

12

13

13

12

14

13

14

14

6,13

RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE

ii

TABLE OF AUTHORITIES

Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Ca1.3d 28, 32 Talmo v. Civil Service Commision ofLos Angeles County (1991)231 Cal.App.3d2l0 Thornbrough v. Western Placer Unified School District (Dec.23, 2013, No. C068317) _Cal.AppA 1h_.) Wences v. City ofLos Angeles 177 Cal. App. 4th 305,313 (Cal. App. 2d Dist. 2009) Statutes Civil Procedure Code Section 1094.5(b) Evidence Code Section 1220 San Luis Obispo Municipal Code Section 2.36.350.E.5 Section 2.36.380.A Other Authorities
United States Code Title 21, Section 331 United States Code Title 21, Section 331(a)

13

1,2

11
11 1,8

RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE

11l

1
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I.

INTRODUCTION

Through this Petition, McDow seeks to be reinstated as police officer, with back pay, after the City terminated him following a series of serious judgment errors and misconduct that resulted in his guilty plea to a federal misdemeanor. Following a hearing in front of a hearing officer, in which both sides had the opportunity to question witnesses and present evidence, the City Council found that McDow violated four San Luis Obispo Police Department "("Department") Rules and Regulations and section 2.36.380.A of the San Luis Obispo Municipal Code. Two of the violations, including the municipal code violation, relate to rules prohibiting conduct that is commonly referred to throughout this brief as "conduct unbecoming an officer." Two other violations relate to McDow's unauthorized absence arising from his inability to report to duty due to him being detained at the Mexican border. The fifth violation is derivative of the other violations in that he violated Department Rules and Regulations that are subject to discipline. After making such findings, the City Council determined that such conduct by a police officer should be disciplined through termination because police officers are held to a higher standard of conduct than the ordinary citizen because of their stature in enforcing the law. (4 Administrative Record ("AR") 943.) McDow contends that the City Council's Order should be set aside because the Order constitutes an abuse of discretion. (Petition, ~4J 1 15; McDow Brief, p. 2.) Pursuant to Civil Procedure Code section 1094.5(b), to establish an abuse of discretion, McDow must show that the City did not proceed in a manner prescribed by law, the Order is not supported by the findings, or the findings are not supported by substantial evidence in the record. Furthermore, it is not sufficient that there be error, but rather the petitioner must demonstrate that any alleged error somehow prejudicial. (Thornbrough v. Western Placer Unified School District (Dec. 23, 2013, No. C068317) Cal.AppAth__.)

Of the official 62 findings that the City Council makes, McDow takes aim at a few minor findings by challenging the admissibility of the evidence cited by the City Council in its decision to support a particular finding. McDow is simply trying to distract from the big picture that he

was a police officer who engaged in serious misconduct and who was convicted of a federal
RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATNE MANDATE 1

misdemeanor. These are facts that McDow does not dispute. McDow admitted that he engaged 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE 2

in conduct unbecoming of an officer when he testified: "I soiled my family tree, because this department is and always has been my family. And if! tarnish myself, I tarnish them." (1 AR 812:17-20.) Furthermore, McDow admitted that police officers should not be convicted of federal misdemeanors. (1 AR 814:23-815:10.) As it relates to unauthorized absence from duty, again, McDow admits that he was scheduled to report for duty and could not do so as a result of his misconduct and ensuing detention. (1 AR 47,52; 4 AR 277:25-278:2.) In light of the City Council's determination that McDow engaged in serious misconduct, and McDow's admissions that he did so, the fundamental issue for the Court to determine is whether the City's imposed discipline - termination constituted an abuse of discretion.

McDow argues that the termination was too severe because he pled to a strict liability crime, opposed to one that requires proof of intent as one of the elements. (McDow Brief, pp. 2, 8-10.) His argument swayed the administrative hearing officer to recommend leniency in discipline. However, in the context of these proceedings, his argument is legally insufficient to warrant vacating the City Council's decision to terminate, and must be rejected. As the Court of Appeal recently stated: "Once a valid ground of misconduct is shown, an agency has great latitude to determine the appropriate penalty." (Thornbrough v. Western Placer Unified School District (Dec. 23,2013, No. C068317) _ CaLAppAth_.) The City Council has determined that San Luis Obispo police officers should be held to a higher standard of conduct "to ensure the confidence and respect of the citizens they serve." (4 AR 942.) As McDow has acknowledged, police officers should not be convicted of federal misdemeanors. (4 AR 814:23-815:10.) Accordingly, McDow's Petition must faiL

II.

STATEMENT OF FACTS

The City Council set forth its findings, which were followed by citations to the evidence in the record, in a written decision. (4 AR 932-939). Below, the facts are taken verbatim from those findings, with the citations modified to conform with the administrative record fonnat.

IIII

A. The Border Detention

McDow started his employment with the San Luis Obispo Police Department ("Department") in 2002 as a dispatcher. (4 AR 764:67.) He was a dispatcher for the Department for about a year and a half before going to the police academy to become a police officer. (4 AR 764:7-10.) On September 15, 2009, McDow took a less than24 hour trip to Mexico with fellow police officer Armando Limon ("Limon"). (1 AR 67; see also 1 AR 6769.) Both Limon and McDow testified during the Administrative Investigation that shortly after arriving in Mexico, they visited a pharmacy to get diet pills for Limon's wife. (l AR 6364 and 6768.) McDow testified during the Administrative Investigation that Limon's wife had been

3
4

5
6

7
8

9
10 given the diet pill "Yeduc" by her parents, and she wanted to get some more. (l AR 6768.) 11 12
13

McDow testified that while at the pharmacy he knew Limon was also buying Ritalin, because he saw him put it down on the counter at the pharmacy and was close enough to the counter to be able to see both the size of the boxes, and the word "Ritalin" on the boxes. (4 AR 855.) While waiting for Limon to purchase the diet pills and Ritalin, McDow bought "diet pills" called Tenuate, or Diethylproprion, a Schedule IV controlled substance and a bottle of SOMA (carisoprodol). (IAR 22; see also 1 AR 68.) McDow testified that buying the bottle of SOMA was a stupid thing. (1 AR 68). During the Administrative Investigation, Limon testified that he asked the pharmacist if they would get in trouble taking the pills across the border and the pharmacist said there was nothing to worry about unless they had prescription medication. (1 AR 64.) McDow testified that the pharmacist who sold him the pharmaceuticals said "it's okay, as long as you're not taking prescription medications across." (4 AR 833.) McDow testified that the bottle that he had in his pocket when he crossed the border had Methylphenidate Hydrochloride on it. (4 AR 848:8, 849:6.) Methylphenidate Hydrochloride is the generic form of Ritalin. (4 AR 849:725.) McDow testified he should have known that the
l

14 15 16 17 18 19 20 21

22 23
24 25 26 27 28

1 See also citations within the Statement of Facts section indicate additional evidence found in the record by counsel of record that supports the finding.

RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE 3

tablet was Ritalin. (4 AR 789:13-14 2.) There were 34 tablets of Methylphenidate Hydrochloride

2
3
4

in the bottle in McDow's pocket when he was detained at the border. (4 AR 850:5.) There were 165 tablets of Tenuate, or Diethylpropion, in McDow's possession when he crossed the border. (1 AR 22.) Methylphenidate hydrochloride is a Schedule II controlled substance. (1 AR 22.) Tenuate is a Schedule IV controlled substance. (1 AR 22.) McDow testified that he possessed SOMA, another prescription medication, when he came across the border. (4 AR 859:23-25.) McDow testified that he knew that SOMA required a prescription at the time he was at the border. (4 AR 832:13-833:14.) McDow testified that he became worried the pills he was

5
6

7
8
9

carrying could have been "ecstasy." (4 AR 861:13-20.) 10

11

When McDow arrived at the US border inspection area, he was greeted by a uniformed border officer at the driver's door of the car McDow was driving, and McDow was asked ifhe had anything to declare. McDow responded "No." (l AR 69.) Upon further questioning of the two officers, Limon admitted he had Ritalin in the trunk of the car. (1 AR 69.) McDow and Limon were then asked to exit the vehicle, and they were escorted to an interview room. (1 AR 13.) McDow was searched, and a plastic bottle was found in his front pocket, which contained numerous unidentified pills. (1 AR 13.) McDow was given the opportunity to make a telephone call. (1 AR 70.) He called his girlfriend, Holly Hovore. (1 AR 70.) Border Agent Sonia Tapia was in the room when McDow made the telephone call; Tapia testified that she overheard McDow ask Hovore to call in to the police department and tell them he wasn't going to be in to work that day, and that he was going to be sick. (2 AR 276: 13-17; see also 2 AR 276: 10-279: 17.) The Administrative Investigation determined that the San Luis Obispo Police Department Communications Technician who answered the call from Hovore, confirmed that McDow's girlfriend reported that McDow was sick. (1 AR 78.) At no time during the evening did McDow tell Tapia he was feeling sick. (2 AR 279: 18-21.) Tapia overheard McDow say to his girlfriend he was an "idiot," and the
McDow argues that this citation is taken out of context. (McDow Brief, p. 10, fn. 7.) However, McDow admits that he knew the pharmacist threw Ritalin into a couple of boxes. (4 AR 855:15-857:15.)

12 13 14 15 16 17 18 19 20 21

22
23 24 25 26 27 28

RESPONDENT'S OPPOSITION TO PETITION FOR WRlT OF ADMINISTRATIVE MANDATE 4

1 2
3

situation he was in was a "massive case of ignorance." (1 AR 75.) Tapia further heard McDow say to his girlfriend, "I'm going to jail and it all goes down from here." (2 AR 277:20-22.) Tapia noticed text messages on Limon's phone from "My Love". (1 AR 15.) The text messages were: "Have you passed the line yet?" and "Hey Mondo are you guys okay? Dan was going to text me when u were thru the border and he hasn't been responding so I just wanted to be sure ... thx". (1 AR 15.) The pills seized from the bottle in McDow's pocket were analyzed by a laboratory, and they ultimately were detennined to be 165 tablets of Diethylpropion (Tenuate) and 34 tablets of

4
5

6 7
8 9

Methylphenidate HCI (Ritalin). (1 AR 22.) McDow failed to declare medications that he was 10 bringing from Mexico. (1 AR 6.) The medication seized from McDow was hidden among 11 12 13
14

personal items in the vehicle, and on McDow. (1 AR 6.) McDow was uncooperative during the investigation part of the seizure. (1 AR 6.) McDow refused to answer questions made by the Duty Agent during the interview phase. (1 AR 6.) McDow and Limon were released by the border officials on the morning of September 16,2009. (1 AR 70.) McDow and Limon rented a vehicle to drive back home, as their vehicle had been impounded by the border officials. (1 AR 70.)

15 16 17 18 19 20 21 22 23 24 25 26 27 28

B. The Discipline
When McDow and Limon arrived at Limon's house in Santa Maria, they were met by Captain Staley and Lieutenant Tolley. (1 AR 8; see also 1 AR 70.) Staley gave McDow a notice placing McDow on administrative leave effective that day, pending completion of an investigation regarding McDow's conduct. (1 AR 8; see also 1 AR 70.) McDow was later charged with a violation of United States Code Title 21, Section 331, introduction and delivery for introduction into interstate commerce a misbranded drug. (1 AR 29.) McDow pleaded guilty to the charge and the plea agreement was entered on April 28, 2010.
(1 AR 28.) As part of the plea agreement, McDow admitted that on September 15, 2009, when

he crossed the border, he was in possession of Methylphenidate, a Schedule II controlled substance and Diethylpropion, a Schedule IV controlled substance. (1 AR 29.) As part of the
RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRA TIVE MANDATE


plea agreement, McDow admitted that on September 15, 2009, all of the pharmaceuticals in

2
3
4

McDow's possession were labeled in Spanish and not in English. (l AR 29.) McDow did not have instructions for using the pharmaceuticals either on his person or in the vehicle. (1 AR 29.) McDow did not have a prescription for any of the pharmaceuticals. (l AR 29.) As part of the plea agreement, McDow admitted the pharmaceuticals were misbranded for the purpose of 21 U.S.C. Section 331(a). (1 AR 29.) On May 12, 2010, McDow was informed that a personnel investigation was being conducted into the events that resulted in his guilty plea to a federal misdemeanor conviction. (l AR 38.) Lieutenant Tom De Priest conducted the internal investigation and he provided McDow

5
6 7 8

9
10 notification of his Miranda and Lybarger rights. (1 AR 41.) McDow waived his rights and agreed to talk with De Priest about the incident. (1 AR 41; see also 1 AR 42.) An internal affairs investigation was completed on June 28, 2010. (1 AR 52.) The internal investigation included interviews of key witnesses and of Officer McDow. (1 AR 52.) The internal affairs investigation report issued by De Priest sustained seven of the nine allegations filed against McDow. (1 AR 54.) Captains Parkinson and Staley reviewed the facts of the investigation and they both concluded that McDow had violated numerous provisions of the San Luis Obispo Police Department Rules and Regulations, as well as the City's Municipal Code. (1 AR 48.) They provided their review and recommendations in a written memorandum to Police Chief Deborah Linden. (1 AR 44.) Based on Police Chief Deborah Linden's review ofthe Internal Investigation, McDow was served with a Notice ofIntent to Administer Disciplinary Action and Right to Respond, dated July 2,2010. (1 AR 87.) The disciplinary action being proposed in this notice was termination of employment. (1 AR 87.) On July 30, 2010, McDow participated in a "Skelly" meeting with Police Chief Deborah Linden to allow him an opportunity to try and convince the Police Chief to modify or rescind the proposed disciplinary action. (1 AR 92.) McDow's attorney contested the findings on two ofth charged policy violations; one being the improper use of sick leave and the other being failure to report criminal conduct to the police department. (1 AR 87; see also 1 AR 92.) After the Skelly
RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE 6

11
12
13

14 15 16 17 18 19 20 21

22
23 24 25

26
27 28

meeting, Police Chief Linden did not find any basis to change the proposed discipline, stating that "the seriousness of the sustained violations constituted cause for termination with or without the two violations questioned by your attorney." (1 AR 92.) Police Officers are responsible to uphold the laws of the United States and not violate them. (4 AR 926.) Law Enforcement Officers must maintain high levels of integrity in order to maintain credibility with the public. (1 AR 6.) Integrity is considered the measure of an individual, an agency, an institution, a discipline, or an entire nation. (l AR 6.) Incidents of Police Officers being detained at the Border are of concern because these situations tarnish and create a negative image of Law Enforcement Officers in the eyes of the public and the law

2
3
4

5
6
7

8
9

10 enforcement community. (1 AR 6.)

11

12

The actions of McDow were the subject of public information which reflected negatively on the image of the San Luis Obispo Police department. (1 AR 6.) McDow testified that it was not a positive thing for a police officer to have a federal misdemeanor conviction. (4 AR 814:23815:4.) McDow testified that police officers shouldn't get convicted for federal misdemeanors of any kind. (4 AR 815:7-10.) McDow testified his conduct "soiled his family tree" and "tarnished" himself by his conduct and said "if I tarnish myself I tarnish them" (referring to the Police Department). (4 AR 812:5-12.)

13
14 15 16 17 18 19 20 21

III.

DISCUSSION

22
23 24 25 26 27 28

A. The Findings that McDow Violated Both the Department's Rules and Regulations and the San Luis Obispo Municipal Code Are Supported by Substantial Evidence.
1. Standard of Review

If the administrative decision substantially affects a fundamental vested right, the trial court must exercise its independent judgment on the evidence. (Strumsky v. San Diego County

Employees Retirement Assn. (1974) 11 Ca1.3d 28, 32, Bixby v. Pierno (1971) 4 Cal.3d 130, 143.)
The trial court must not only examine the administrative record for errors of law, but must also conduct an independent review of the entire record to determine whether the weight of the
RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE
7

evidence supports the administrative findings. (Wences v. City ofLos Angeles, 177 Cal. App. 4th

2
3
4

305,313 (Cal. App. 2d Dist. 2009). However, as the California Supreme Court has held: "In exercising its independent judgment, a trial court must afford a strong presumption of correctnes 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 ofAngels (1999) 20 CalAth 805,817.) Thus, although the Court employs independent judgment in reviewing the City's finding that McDow engaged in serious misconduct, nonetheless, McDow bears the burden of establishing an abuse of discretion.

5
6

8
9

10 11 12

2. McDow Does Not Dispute That He Engaged In Conduct Unbecoming An Officer. .

The most significant charges against McDow were the two charges that can be summarized as conduct unbecoming a San Luis Obispo Police Officer. Both the Hearing Officer and the City Council found that McDow violated Section IV.LL of the Department Rules and Regulations conduct detrimental to the Department and Section 2.36.380.A - An official or

13
14 15

employee of the city shall not engage in conduct which would tend to discredit or dishonor 16 17 18 19 20 21 hislher position with the City. (4 AR 925,927,938,939.) This finding is based on the undisputed fact that McDow pleaded guilty to a federal misdemeanor in which he admitted to transporting misbranded prescription drugs across the border without a prescription. (Ibid: see also 1 AR 29 [plea].) Although McDow argues for several pages in his opening brief as to why "pleading guilty to a strict liability offense is insufficient to support a finding of conscious culpability", whether he intentionally engaged in the conduct is irrelevant for purposes of determining whether he violated Section IV.LL of the Department Rules and Regulations and Section 2.36.380.A because neither regulation has an element of intent. (1 AR 106, 121; see also McDow Brief, pp. 8-10.) More importantly, McDow ultimately does not contend that there was insufficient evidence to support the findings that he violated Section IV.LL of the Department Rules and Regulations and Section 2.36.380.A of the San Luis Obispo Municipal Code. (McDow Brief,
RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE 8

22
23 24 25 26 27 28


1
pp. 8-10.) The Council found that the plea itself was substantial evidence to support the finding that McDow engaged in conduct unbecoming of an officer, in violation of both the Department's Rules and Regulations and the Municipal Code. (4 AR 938,939.) Moreover, McDow does not challenge this finding, nor could he given his admission that police officers should not be convicted of any kind of federal misdemeanor and the other substantial evidence of serious misconduct as discussed herein. 3 (4 AR 814:23-815:10.)

2
3 4

5
6
7

Furthermore, the City Council's findings as it relates to McDow possessing SOMA support the finding that McDow engaged in behavior unbecoming of an officer. McDow argues that the facts related to SOMA are a "red herring" because he was not charged with any crime

8
9

10 related to the SOMA and it is "undisputed" that he has a prescription for it. (McDow Brief, p.
11

12 13 14 15 16 17 18 19 20 21

10, fn. 8.) Although McDow did not plea to possessing SOMA, a controlled substance, the City Council may certainly consider the facts that relate to McDow's possession of SOMA in the disciplinary action. (Barr v. City ofSan Diego (1960) 182 CaLApp.2d 776, 781 [town council could terminate police officer for possession of marijuana even though criminal jury acquitted him of the charge].) Based on the weight of the evidence in the record, the City Council found that McDow had been advised by the pharmacist that it was okay to take pills across the border, as long as they were not prescription medications. (1 AR 64.) Yet, McDow purchased a bottle of SOMA, acknowledging it was a "stupid" thing. (1 AR 68.) McDow knew at that time that SOMA required a prescription because he had a prescription for it at one time. (4 AR 832: 13833: 14) There is no evidence in the record that he had a current, valid prescription for it when h crossed the border. Despite knowledge that SOMA was a prescription medication, and lack of any evidence that he had a prescription for SOMA at the time of the border crossing, McDow

22
23 24 25 26 27 28

3 McDow argues that the findings that McDow was uncooperative and the medication was hidden are not supported by the evidence. (McDow Brief, p. IS.) McDow's point in raising this argument is unclear, especially how it relate to the findings of conduct unbecoming an officer, in light of his admissions that he "soiled his family tree." (4 AR 812: 17-20.) In any event, beyond the evidence challenged by McDow, there is substantial evidence in the record to support the finding that McDow was uncooperative. For example, prior to being advised of his Miranda rights, McDow refused to identily the pharmaceuticals. (1 AR 74.) In addition, ICE Special Agent Tapia stated during the administrative investigation that during the detention, McDow minimized the situation, and kept laughing, which ICE Special Agent Tapia found frustrating. (1 AR 75.)

RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE 9

1 2 3

attempted to take the SOMA pills across the border without a prescription and attempted to conceal his conduct by failing to declare the SOMA pills. (l AR 69; 4 AR 832:13-833:14.)

5
6 7
8

3. The Substantial Evidence Supports the Finding That McDow's Absence From Duty on September 16, 2009 Violated Department Rules and Regulations.
McDow was charged with two separate violations of Department Rules and Regulations stemming from his inability to report to duty on September 16, 2009, because he was detained at the border. The Council found McDow violated Department Rules and Regulations Section IV.Y - Absence of Duty, which states "Department employees shall not be absent from required duty, except when on authorized leave of absence, days off, sick leave, or other authorized absence from duty." (1 AR 102 [emphasis added]; 4 AR 938.) Similarly, the Council found McDow violated Section VILC.6, which states in part: "Causes for disciplinary action against any employee may include, but shall not be limited to unauthorized or inexcusable absence without leave or unauthorized use of sick leave." (l AR 82; 4 AR 939.)

9
10 11 12 13 14 15

Here, the undisputed evidence demonstrates that McDow was scheduled to report for 16 17 18 19 20 21 22 23 24 25 26 27 28 duty, but that the detention at the border was going to preclude him from reporting for duty. (l AR 67 ["McDow was scheduled to work a payback shift on September 16, 2009 at 1100 hours."]; 4 AR 801 ["When I spoke to Holly, I asked her to let work know that I'm not going to be corning in."].) McDow then attempts to cover his tracks by alleging that his mental state would have precluded him from reporting for duty. (4 AR 802:25-03: 13 ["I absolutely think the mental state of the situation and everything that just happened to me, there's no way I could have possibly gone in to work ... So I actually think if! had called in sick, that still would have qualified"].) However, McDow should not be able to avoid the consequences of his conduct by arguing that he cannot be punished for being absent, because he was detained where his detention was itself the direct consequence of his own misconduct. Accordingly, there is no evidence to suggest that there was any other factor causing a condition that would have qualified McDow for sick leave. (2 AR 279:18-24.) Although McDow ultimately took a vacation day for
RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE 10

".

September 15, 2009, there is no evidence that he obtained prior authorization before taking such leave, and in fact, the weight of the evidence supports the finding that McDow was absent from duty without prior authorization. (See, e.g., 1 AR 47, 49,52,67,70, 75, 76; 2 AR 279:16-17; 4 AR 801.) Given that the charges relate to authorization to be absent from duty, opposed to abuse of sick leave, as characterized by McDow, McDow's argument that "[t]here is no competent evidence that Hovore called in sick on McDow's behalf' misses the point. (McDow Brief, pp. 13-15.) Specifically, McDow focuses on the competency ofa statement made in the Administrative Investigation report that Hovore called in sick for McDow and on the statement

2
3
4

6
7

8
9

10 made by ICE Agent Tapia that she overheard McDow telling Hovore to call work to tell them he
11

12 13 14 15 16 17 18 19 20 21

was sick. (McDow Brief, pp. 13-14.) First, ICE Special Agent Tapia's statement is clearly admissible as a party admission under Evidence Code section 1220. (2 AR 279: 16-17 ["To call in and tell them he wasn't going to be in today, that he was going to be sick."].) Given the direct admissible evidence ofICE Special Agent Tapia's testimony, the City Council clearly could consider statements made in the Administrative Investigative Report that buttress the Agent's statement even if some of those statements do not meet the standards for admissibility under the Evidence Code. (1 AR 117 [San Luis Obispo Municipal Code section 2.36.350.E.5]; 1 AR 47,1 AR 75-76.) McDow attempts to cast doubt on the credibility of ICE Agent Tapia by suggesting that her testimony was somehow directed by the City prosecutor. (McDow Brief, p. 15.) However, the record shows at the time closer to the events, Tapia unequivocally indicated that she had heard McDow direct Hovore to call McDow in sick. (l AR 48,49,75,76; 2 AR 279:16-17 The alleged "directed" testimony complained of by McDow was simply the City prosecutor refreshing the witness' recollection at the hearing, which occurred three years after the initial incident. (McDow Brief, p. 15 [citing to 2 AR 292:13-294:17].) Simply put- there was no improper direction from the City prosecutor and ICE Special Agent Tapia's testimony is both admissible and credible to support the charged violation.
RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE 11

22
23 24 25 26 27 28

2
3 4 5

4. The Violations Committed by McDow Amount to Serious Misconduct, Warranting Discipline.

The City Council also found that McDow violated Section VII.C.1 0 of the Department Rules and Regulations, which sets forth the types of violations that warrant discipline. This violation is dependent upon establishing the violations that relate to conduct unbecoming an officer and unauthorized absence from duty. For the foregoing reasons, given that the City

7 Council found by the weight of the evidence that McDow had engaged in conduct unbecoming 8 of an officer and did not report to duty without prior authorization, this violation is also supported by substantial evidence.

9
10
11

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

B. Termination of an Officer Who Engaged in Serious Misconduct and Pled to a Federal Misdemeanor Does Not Constitute an Abuse of Discretion.
1.

Standard of Review

Assuming the Court finds that the City properly found McDow engaged in serious misconduct, the Court then reviews the imposition of the penalty, termination. The imposition 0 the appropriate penalty for that misconduct is left to the sound discretion of the agency. (Kazensky v. City ofMerced, (1998) 65 Cal. App. 4th 44,53.) "The penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated." (Barber v. State Personnel Bd. (1976) 18 Cal. 3d 395. 404.) "Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed." (Ibid.) In other words, the court cannot substitute its opinion as to the appropriate disciplinary measure for that of the City Council. One of the tests for determining whether the administrative body acted within the area of its discretion is whether reasonable minds may differ as to the propriety of the penalty imposed. The fact that reas.onable minds may differ will fortify the conclusion that there was no abuse of discretion. (Kazensky v. City ofMerced, supra, 65 Cal. App. 4th at 75.)

27 28

IIII IIII
RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE 12

2
3 4 5 6

2. Termination Was Appropriate Because the Weight of the Evidence Supported Findings That There Was Harm to the Public Service and the Likelihood of Recurrence.
Based on the findings in the record, the City Council concluded that that termination of McDow was the appropriate level of discipline. In a detailed analysis, the City Council concluded that there was ample factual basis and legal authority to hold a San Luis Obispo police officer to a higher standard of conduct, "to ensure the confidence and respect of the citizens they serve." (4 AR 940-943 [citing to Kolendar v. San Diego County Civil Service Commission (2007) 149 Cal.AppAth 464, 471; Hankla v. Long Beach Civil Service Commission (1995) 34 Cal.AppAth 1216, County ofSanta Clara v. Willis (1986) 179 Cal.App.3d 1240, Talmo v. Civil

7
8
9 10

Service Commision ofLos Angeles County (1991) 231 Cal.App.3d 210, and Ackerman v. State Personnel Board(1983) 145 Cal.App.3d 395.) McDow does not dispute the conclusion that a
police officer may be held to a higher standard. Rather, McDow argues that termination is too severe of a penalty, and focuses on attempting to distinguish the foregoing cases relied upon by the City Council by arguing his conduct was not as egregious as the terminated employees in the

11
12 13 14 15

cases cited. (McDow Brief, pp. 11-13.) 16 17 18 19 20 21

However, the factual distinctions that McDow makes

in his brief, do not change the ultimate conclusion of those cases that police officers may be held to a higher standard of conduct and may be terminated for failure to meet those standards. Police officers are supposed to enforce the law, not break it. Therefore, it was legally sound for the City Council to rely on the cases cited to conclude that a San Luis Obispo Police Officer must be held to a higher standard of conduct "to ensure the confidence and respect of the citizens they serve" and to terminate McDow for his serious misconduct. (4 AR 942.) Specifically, the Council noted that "[i]n considering whether an abuse of discretion occurred in the context of public employee discipline ... the overriding consideration is the extent to which the employee's conduct results in harm to the public service. Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence." (4 AR 940 [citing to Skelly v. State Personnel Board (1975) 15 Ca1.3d 194,218].) McDow argues that there is no evidence of harm to public service and there is no evidence of the likelihood of
RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE 13

22
23 24 25 26 27 28


1 2 3 4 5 6 7 8 9
10
r~currence

because there is no evidence that McDow's acts were intentional. (McDow Brief, p.

16.) Simply put - McDow argues that the border incident was a onetime good faith error in judgment. (Ibid.) However, his argument strains the credulity of any rational observer. Although McDow may have had a prior clean record, for a police officer, because ofthe higher standard of conduct, one significant lapse in poor judgment can be sufficient to warrant termination. For example, Kestler v. City ofLos Angeles (1978) 81 Cal.App.3d 62,66 upheld th police chief's termination of a police officer after determining "that even a single act of drunk driving by a police officer evidenced such bad judgment as to make him a poor risk for further police duties." Relying on Kestler v. City ofLos Angeles, the court in Riveros v. City ofLos
Angeles (1996) 41 Cal.App.4th 1342, 1357 upheld the termination of a police officer who

11 12
13

admitted exercising "poor judgment in having off-duty contacts with a known drug addict and meeting that addict in a motel room which Riveros rented under a fictitious name." Schmitt v.
City ofRialto (1985) 164 CaLApp.3d 494, 502 articulated the rationale behind a termination of

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

an officer after a one time serious lapse injudgment: "The failure to exercise good judgment under circumstances of calm reflection and deliberation raises serious questions as to a person's ability to exercise good judgment in stress situations such as a police officer often faces." McDow attempts to evade his discipline by arguing that he is "unlikely to make the same mistake twice." (McDow Brief, p. 16.) However, substantial evidence shows that McDow's lapse of good judgment is likely to happen again. As McDow explains, "It's not one thing that led me down this unfortunate situation", which highlights how his lack ofjudgment was not a onetime event. (4 AR 772: 17-18.) The series of events that led to McDow pleading guilty to a federal misdemeanor shows that there were numerous questionable decisions made, repeatedly throughout the events that gave rise to the serious misconduct and a guilty plea to a federal misdemeanor. McDow's exercise of poor judgment began with deciding to go to Mexico. McDow was scheduled to report for duty on September 16,2009, at 1100 hours. (l AR 67; 4 AR 801.) The trip was not a well-thought out trip, but rather "spontaneous." (l AR 67.) McDow and Limon intended to go to a nightclub. (1 AR 62.) McDow left Limon's residence between 0700-0800
RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE 14


hours and crossed the border at 1300 hours on September 15,2009. (1 AR 67.) Taking a 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
28

spontaneous 5-6 hour road trip, with an overnight stay, to go to a nightclub in Mexico when one needs to report for duty in a public safety capacity at 1100 hours the next morning is evidence of questionable judgment at best. Next, despite learning that Limon had his handgun with him, which McDow acknowledged as potentially troublesome, McDow and Limon decided to remain in Mexico and visit a pharmacy before heading horne. (1 AR 67 ["McDow sensed the 'theme' of the trip had changed from having a good time to not having any fun because of Limon's handgun."]') While at the pharmacy, the pharmacist cautioned McDow that it was okay to transport the pills across the border, as long as they were not prescription medications. (4 AR 83318-25.) Yet, McDow was quite careless in ensuring he was not taking any prescription medications across the border and acknowledged it was a "stupid" decision. (1 AR 68.) McDow knew pharmaceuticals have to be branded to protect the public's safety. (4 AR 772: 10-15 ["I know by law pharmaceuticals have to be branded even if you are taking Tylenol, because you have to be able to access Poison Control ifthere's an emergency and identify what your child has taken or something."].) But he knowingly purchased pills with no markings, which included both prescription medications Ritalin and Viagra. (4 AR 773:8-9; 1 AR 22.) In addition, McDow knowingly purchased a bottle of SOMA. (1 AR 68.) Yet, he knew SOMA required a prescription, which he did not have in his possession. (4 AR 832:13-833:14.) McDow attempts to portray himself as a victim, testifying that it was reasonable for him to be trusting of the pharmacist because it was akin to being at Walgreens. (4 AR 772:16-25.) This may be true for an ordinary civilian, but for a police officer, who is held to a higher standard, such trust without verification or prior relationship, is unreasonable, and poor judgment. (See 4 AR 861: 2-4 ["[J]ust because it's a brick-and-mortar store doesn't mean I still couldn't be taken for a ride."]; see also 1 AR 63 "[Limon and McDow went to a random pharmacy that was closest to the motel. .. Limon did not do any research on the pharmacy prior to entering the business and had never been there before."]')
IIII
RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE 15


McDow's lack of good judgment did not end with the pharmacy trip. When the border 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 patrol agent asked if McDow had anything to declare, McDow responded no. (1 AR 69.) McDow responded no because he claims that he only had to declare agricultural products and alcohol. (1 AR 69.) But the record supports the reasonable inference that McDow responded "no" because he simply thought he would not get caught breaking the law. He said no despite knowing that he purchased SOMA, that it requires a prescription, and the advice from the pharmacist that taking the pills across the border is "okay" unless it requires a prescription. (1 AR 64, 68; 4 AR 832:13-833:14.) He also said no, knowing Limon had his off duty weapon with him and claiming he did not know the consequences of bringing a handgun to Mexico. (1 AR 67.) He also said no, knowing that Limon had purchased Ritalin. (4 AR 855.) Knowing that his traveling companion already had made questionable decisions on this trip, such as bringing his off duty weapon with him to Mexico, instead of asking Limon whether he had purchased any pharmaceuticals that would need to be declared, McDow took a course of action in which he could assert ignorance and deniability. (4 AR 859:11-860:9.) Such conduct demonstrates willful ignorance at best and willful concealment and evasion at worst, and in either situation, dem<=mstrates poor judgment. Furthermore, even after the detention, McDow did not appreciate the seriousness of his lack ofjudgment and testified that on the drive back from the border, he and Limon talked about "is this something that is made as a wisecrack in briefing, that you guys were detained at th~ border and then kicked out ... or is this actually even going to a full blown tA.." (4 AR 821 :20822: 1.) Even during the administrative hearing, McDow attempted to diminish the gravity of his error in judgment, testifying that "[pleading guilty to a federal misdemeanor] was more of a small incident that can happen to anybody. I don't' know that that's necessarily a negative light to be presented." (4 AR 814:15-22.) In sum, McDow's misconduct was the result of repeated decisions that demonstrated a lack of good judgment, which McDow portrays as a case of bad luck, rather than a direct result of his poor decisions. (See e.g., 4 AR 812: 11-12 [""But I tarnish myself by allowing this to happen."] [emphasis added]; 813: 14-15 ["This is a one in quadrillion possibility that it would
RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE 16

happen in the first place."]) The repeated exercise of poor judgment is what harms public 2 3 4 5 6 7 8 9 10
11

service. His continuing, glaring lack of insight and accountability suggest that serious lapses in judgment are more a character trait, rather than a deviation. This time, McDow engaged in serious misconduct off-duty when he was not under the stress of being on duty. Next time, the poor judgment could be on duty, in the heat of the moment, when the public's safety is at issue. McDow readily acknowledges that he has harmed public service. McDow testified "I soiled my family tree, because the department is and always has been my family. And if! tarnish myself, 1 tarnish them. " (4 AR 812:17-19.) He admits that police officers should not plead guilty to any federal misdemeanor. (4 AR 814:23-815:10.) Police officers who engage in serious misconduct and plead to federal misdemeanors simply do not meet the higher standard for police officers. (See e.g., 4 AR 80 I: 15-21 [McDow complaining people refelTing to him as ex-cop during detention], 802:25 ["People telling me my career is over."]; 4 AR 820: 18-20 [confirming he stated he was an idiot and should have been better informed], 831 [describing how his presence with Limon, who had his off duty weapon, presented danger to border patrol agents].) Accordingly, the City Council's termination of McDow represents a sound exercise of discretion in the interest of the public, not an abuse of discretion.
IV. CONCLUSION

12
13

14 15 16 17 18 19 20 21 22 23 24 25

For the foregoing reasons, the City respectfully requests that the Court deny the relie sought in the Petition and enter judgment in favor of the City.

Respectfully Submitted,

Dated: February 10,2014

26
27 28

Attorneys for Respondent City ofSan Luis Obispo

RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE 17


PROOF OF SERVICE Dan McDow v. City ofSan Luis Obispo, Case No. CV 130381

I am employed in the County of San Luis Obispo, State of California. I am over the age of 18, and not a party to the within action. My business address is 990 Palm Street, San Luis Obispo, California 93401. On FebruarylO ,2014, I served the following document(s):
RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRA TIVE MANDATE

on the interested parties as follows: Michael A. Morguess Law Office of Michael A. Morguess 1440 N. Harbor Blvd., Ste. 900 Fullerton, CA 92835 Attorneys for Dan McDow

[v1 By United States Mail:

I enclosed the documents in a sealed envelope addressed as indicated above and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid.

] By Personal Delivery; I personally delivered a true copy in a sealed envelope addressed as indicated above. [ ] By Overnight Delivery: I enclosed the documents in an envelope provided by an overnight delivery carrier and addressed as indicated above. I placed the envelope for collection and overnight delivery at an office of the overnight delivery carrier. [ ] By Facsimile Transmission: I personally sent a true copy to the parties authorized to accept service as set forth above at the fax numbers indicated above. The transmission was reported as complete and without error, and a transmission verification report was properly issued by the transmitting facsimile machine, stating the time and date of such transmission. [ ] By Electronic Service: Based on an agreement ofthe parties to accept electronic service, I caused the documents to be sent to the persons at the electronic service address as indicated above.

I declare under penalty of perjury under the la'Y,s ofthe State of California that the 2014, at San California. foregoing is true and correct. Executed on February

&

Claudia Prows

L::$O,

.~&