After nearly three years of legal wrangling in which the city acknowledged spending more than $100,000 in legal fees as of July 2018, a visiting Lassen County Superior Court judge directed the Susanville City Council to reconsider its decision to fire two veteran police officers. (Both Lassen County Superior Court Judges — Tony Mallery and Mark Nareau — recused themselves from the case.)
On Monday, July 29, judge Candace Beason remanded the matter of the two fired Susanville police officers and former candidates for the chief of police position — Lieutenant Matt Wood and Sergeant Mike Bollinger — back to Susanville City Council and directed the council to “issue new findings and decision in compliance with the requirements established” in Topanga Association for a Scenic Community v. County of Los Angeles.
Mike Wilson, city administrator said, “The city was aware that the court was going to remand these cases to the city council for reconsideration, and has been awaiting that action. These matters will be placed on a closed session agenda in late August or early September for further review by the councilmembers who originally heard the disciplinary appeals. As this remains a personnel matter, further comment at this time would be inappropriate.”
According to the Topanga case, the Supreme Court of California ruled in 1974, “… the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.”
In her decision Beason wrote, “The court finds that Wood and Bollinger exercised a legal right when they individually filed grievances to the hiring process to fill the position of Susanville Police Chief. There is no evidence in the record to establish a malicious intent in filing the grievances or the police report to document the unauthorized use of Wood’s signature to obtain confidential information. The Susanville City Council’s factual findings demonstrate an imputation of malice to both petitioners that taints the findings of misconduct and the decision to terminate petitioners’ employment.”
Beason also wrote, “The record does not establish that either Wood or Bollinger harbored malice in regards to filing of the police report for unauthorized use of Wood’s signature or contacting the Lassen County Sheriff’s Department or the California Department of Justice. The report served the purpose of documenting the incident. It was not fatally flawed by failing to list potential Penal Code violations.”
On May 28, 2018, after the Susanville City Council voted 4-1 in closed session to terminate the officers, Jessica Ryan, the city’s attorney, reported councilmember Mendy Schuster cast the lone dissenting vote and Kathie Garnier, former mayor, Joe Franco, mayor pro tem, and councilmembers Brian Wilson and Kevin Stafford voted to deny the officers’ appeals.
According to the council, the two officers were fired because of their roles in the reporting of an alleged forgery and impersonation of a police officer in regard to documents that were used as part of the hiring process of former Susanville Police Chief John King and its aftermath.
After the city’s decision to terminate them, the officers filed a court action asking for a judgment “setting aside and vacating” the city’s decision to terminate them and (they) asked the court to issue a writ of mandate remanding the case back to the city for “further proceedings consistent with this decision;” for reasonable attorney fees; for the costs of the suit; and other and further relief as the court deems just and proper.
A writ of mandate is a judicial remedy in the form of an order from a superior court to any government, subordinate court, corporation or public authority — to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from doing) — and which is in the nature of public duty, and in certain cases one of a statutory duty.
Beason directed the council to “reconsider all of the evidence presented as it applies to the council’s factual findings and decision to terminate both Wood and Bollinger.”
Beason outlined the standard of review in the matter.
“At a minimum,” Beason wrote, “the reviewing court must determine both where substantial evidence supports the administrative agency’s findings and whether the findings support the decision. This analysis is governed by an ‘abuse of discretion’ standard … The administrative body must draw legally relevant sub-conclusions supportive of its ultimate decision so that the court can trace and examine the agency’s mode of analysis. This enables the court to efficiently examine the record for evidentiary support for factual findings and legal conclusions. Additionally, transparency of analysis persuades the parties that the administrative body conducted its decision in a careful, reasoned and equitable manner.”
Background check process
In her decision, Beason wrote the city is responsible for these events.
She criticized the city’s “woeful inadequacy in complying with sufficient protections to ensure the integrity of the background check procedure.”
After reviewing the administrative record (some 2,500 pages), Beason wrote, “Ms. Sue Todd was hired by the city of Susanville to conduct a background investigation for the successful candidate, Knight,” (sic) (should be John King, Susanville’s former chief of police), Beason wrote. “City complained to Todd that the process was taking too long. Todd responded that she was provided the wrong background packet and needed the correct packet. City employees instructed Todd to expedite the request for any disciplinary records other past employers had for Knight (sic). Todd then used a form that she had used several years earlier that had been authorized and signed by Wood in a completely different hiring matter.”
In her direction to the council, Beason wrote, “Contract employees (such as Todd) must be provided the correct document packets, time pressures should not serve as an excuse to use unauthorized signatures and documents must provide clear direction to responding police agencies to only return the completed documents to the investigator. Such minimal safeguards would have avoided the situation that occurred here.”
According to Beason, “At least two police departments faxed Knight’s (sic) confidential records directly to the Susanville Police Department rather than to Todd … The fax concerning Knight (sic) was delivered to Wood (essentially dropped in his lap) presumably because the request bore his signature.”
According to the council’s decision to fire the officers, Todd’s action “did not satisfy the elements of criminal fraud,” and officers were incompetent for filing a crime report.
Mark Siemens, the city’s investigator, asked Stacey Montgomery, former Lassen County district attorney, for a “prosecutor’s opinion” regarding the circumstances surrounding the form letter and if those facts constituted a crime.
On May, 9, 2017, Montgomery testified in response to Siemens’ questions, “With respect to the referenced investigation, I have reviewed the evidence provided and have determined that no violation of 470 PC (forgery), neither 538d PC (impersonating an officer) nor any other crime has been committed in this instance.”
According to the court file, Jim Uptegrove, interim chief of police, testified that he agreed with Siemens’ assertion that for forgery or fraud to occur, the victim must incur a loss. Uptegrove testified, at this point in the investigation there was no real victim and there was no real criminal intent.
During his testimony, Siemens asked Wood why he doubted Uptegrove’s judgment that no crime had been committed.
Wood said he didn’t necessarily doubt the interim chief’s judgment, he just didn’t agree with it.
“Did you have any information that led you to believe your disagreement was appropriate or right?” Siemens asked.
“Well, I felt like, as I said before, at the time, I mean she used my signature without my knowledge or consent. I didn’t think that was right.”
Siemens asked Wood, “So how is it reasonable that you believe Sue Todd committed a crime when you didn’t even look at the basic elements, you didn’t go to the criminal sections, you didn’t find out if what you were feeling is correct and the police chief already told you it wasn’t a crime. How’s that reasonable?”
“Well, I still feel Sue Todd should not have done what she did,” Wood said.
“Do you believe it was a crime?” Siemens asked.
“Um, I do. I don’t know. I’m not sure what, to be honest with you, but I just don’t think it’s right for you to use other people’s signatures … ”
The judge noted the charging determinations suggested in this line of questioning are made by prosecutors, not by the officers who write a report.
On Jan. 11, 2017, Wood received a FAX from a law enforcement agency regarding King, who was hired as chief of police a few days later, Jan. 23, 2017. The FAX included Wood’s signature, but he claims he did not sign the form.
When Uptegrove learned Wood had a problem with his signature being used, he signed a form letter himself and asked the background investigator to re-send the letters to all of the agencies.”
Uptegrove also testified in the city council’s hearing on the officers that he was “a little upset” because Wood had gone to Captain Kevin Jones at the Lassen County Sheriff’s Office (now Susanville’s Chief of Police), and he believed Wood should have contacted him first.
“So, we had a conversation about that and then I told him at this point, I would take care of it,” Uptegrove testified. “I would handle it from here on out and that I didn’t want him to call anybody or follow-up any further on it then, you know. Leave it in my shop, and I’ll take care of it.”
That direction from Uptegrove to Wood came up again later in the case — as investigators alleged Wood had been insubordinate for not following Uptegrove’s direction.
According to the city council’s decision to fire Wood, the city determined he failed to follow Uptegrove’s directions, which it considered “a valid order.”
The council also alleged Wood violated record handling procedures and state law by copying and distributing the personnel documents.
And the council alleged Wood violated the department’s security policies by making unauthorized copies of the documents.
According to Wood’s Notice of Intent to Terminate dated June 26, 2018, Wood is charged with “Insubordination: Failure to follow the directions given to you by Interim Chief of Police Jim Uptegrove,” and “Violation of record handling policies and state law by copying personnel documents and distributing such to persons not authorized to receive them.”
But Beason disagreed with part of those determinations by the city council.
The judge wrote, “There was nothing inappropriate in Wood filing a police report to document the unauthorized use of his signature to obtain confidential records for a superior candidate. While it would have been likely preferable to confer with Uptegrove upon receipt of the FAX, it was also reasonable to refer the matter to the sheriff’s department to avoid the appearance of a conflict of interest.”
Beason also characterized Uptegrove’s direction to Wood as “equivocal.”
“Uptegrove intended to convey to Wood that he should refrain from any other personal involvement in investigating or pursuing his complaint,” Beason wrote. “The record does not reveal that he actually so ordered Wood. Uptegrove testified that he did not believe Wood was insubordinate. Wood cannot be found to have committed misconduct in the above incident.”
But Beason did determine when Wood received a second FAX regarding King’s background check, his “failure to notify the chief was inappropriate conduct. Mailing copies of reports with confidential information to the Department of Consumer Affairs without the sender’s name and address was misconduct … (and) Wood breached standard police procedure by retaining a copy of the police report at his residence.”
Beason directed the council, “The above examples of inappropriate conduct by Wood are to be reviewed in light of the court’s finding of a lack of malice (by Wood) and (the) lengthy record of appropriate police behavior.”
On Dec. 22, 2016, Bollinger filed a grievance with Jared Hancock, former city administrator, alleging candidate King did not meet the minimum experience requirements contained in the city’s recruitment materials.
Hancock responded to Bollinger in a Jan. 19, 2017 letter. According to Hancock’s letter, Bollinger’s grievance cited three concerns — that King does not possess and will not be able to obtain a POST Management Certificate within one year of appointment, the minimum standard in the recruitment announcement; that the new chief should have seven years of extensive California law enforcement experience with a minimum of three years at the management or mid-management level and he does not; and that the new chief be experienced in maintaining municipal operating budgets, and he is not.
Hancock denied Bollinger’s grievance, asserting, “your grievance fails to recognize that the invitation for applications for the position of police chief for the city of Susanville explicitly provided that ‘any combination of experience and training that would provide the required knowledge and abilities will be considered.”‘
The Lassen County Times obtained four different recruitment brochures advertising the chief of police position, including one provided by Hancock that contained this language. However, the newspaper could not find any public posting of that particular recruitment brochure, even on the city’s website.
Beason commented on Bollinger.
“The council’s finding that Bollinger was evasive in his testimony and in his sworn statement to investigator Siemens must also be reconsidered in light of the court’s finding that the record is void of any evidence that Bollinger’s grievance was filed for other that legitimate reasons … If the hiring process had been compromised, then using Wood’s unauthorized signature could provide a key piece of evidence in a grieving proceeding.”
Beason also rejected the council’s finding that Bollinger was dishonest in answering investigator’s questions.
“Uptegrove testified that he never had any concern about Bollinger’s honesty,” Beason wrote. “The court cannot conclude that Bollinger was the instigator or mastermind of an attempt to ‘get back’ at the city administrator for having failed to advance Bollinger’s candidacy for the chief’s position. Witness testimony that Bollinger and Wood conferred in Wood’s office behind closed doors or that someone heard one of them say something to the effect of ‘We’ve got him,’ does not necessarily illustrate bad intent.”
Beason wrote, “The evidence does not support council’s finding that Bollinger failed to take reasonable steps to protect private information in a personnel file. The council specifically notes that this was not a major issue. The council concludes that “failing to state the elements of any crime was fatal to the efficiency of … the report.”
Beason disagreed. “In fact, the purpose of the report was to document the unauthorized use of Wood’s signature in connection with obtaining confidential information. The report served to protect Wood from potential allegations that he had misused his position. It further served to document possible criminal conduct by Todd in conducting background investigations. A prosecuting agency determines what, if any, charges are to be filed — not the officer taking the report.”
Beason also noted, “Both Wood and Bollinger were long serving, career law enforcement officers with good employment reviews.”