Bollinger V. San Diego Civil Service Commission Cal.App. 4th,
1999 DAR 3710 (April 20, 1999)
*Plaintiff's Attorney: Everett L. Bobbitt
*Jurisdiction: City of San Diego
*Trial Court Decision: In favor of officer
*Court of Appeal Decision: In favor of Civil Service Commission
*Primary Legal Issues: Brown Act and procedural due process
Bollinger Facts
* The department demoted Bollinger due to misconduct.
* A hearing on Bollinger's demotion was held before one of the Civil
Service Commission commissioners.
* The commissioner issued a 22-page written proposed decision.
* Bollinger did not receive a copy of the commissioner's proposed
decision.
* Bollinger was informed orally that the decision was on the
Commission's agenda.
* The Commission adopted the commissioner's proposed decision.
* Bollinger objected he had not been given an opportunity to respond
to the commissioner's proposed decision; the Commission rejected this
argument.
* Only after the Commission had taken its action was Bollinger given
a copy of the commissioner's decision.
Bollinger Analysis
Issue No. 1: Was Bollinger entitled to 24-hour written notice
of his right to have an open meeting?
Answer: No.
* The Brown Act at Government Code section 54957 provides for a
personnel exception to the Brown Act's general requirement of open
meetings.
* The second sentence of section 54957 requires that, in the case of
a closed session on "specific complaints or charges", 24-hour
advance written notice must be given to an employee of the employee's
right to have an open meeting before a public agency can lawfully hold a
closed meeting.
* The appellate court interpreted the second sentence of section
54957 not to apply to a public agency when the agency is not
hearing charges against an employee but is only deciding, presumably
after a hearing, whether to adopt the proposed decision.
* Since the San Diego Civil Service Commission was only deciding
whether to adopt a proposed decision, the second sentence of section
54957 did not apply, and the commission could lawfully hold a closed
session, even though it had not given Bollinger prior written notice.
Issue No. 2: Even if the Commission could lawfully conduct a
closed hearing, was Bollinger entitled to respond to the commissioner's
decision before the Commission went into closed session?
Answer: No.
* The due process provisions of the state and federal constitutions
require that a public employee be permitted to present his or her side
of a controversy to an impartial and non-involved reviewer.
* Bollinger contended that he had a due process right to address the
Commission concerning the commissioner's proposed decision.
* The appellate court was sympathetic to his contention:
Where an administrative agency relegates the evidentiary hearing to
one or more of its members, we observe the better practice would be to
give the employee the opportunity to respond orally or in writing to
the factual findings and recommendation before a final decision is
made. A hearing officer's report may contain critical inaccuracies and
the employee's ability to address them would benefit everyone and
result in a fairer process.
* The appellate court, however, based upon prior precedents
interpreting the due process clause, the Administrative Procedure Act,
and the Civil Service Act, felt itself "constrained" to reject
Bollinger's contention.
* In summary, all the due process that Bollinger is entitled to
receive is to argue his case to the hearing officer and thereafter to a
court on a petition for writ of administrative mandate; he does not
possess a due process right to argue his case to the administrative
agency itself.
