County of Sacramento August 29, 2005 Honorable Michael Virga, Presiding Judge Sacramento County Superior Court County*

The votes of three of the five commissioners are required to decide an appeal from disciplinary action. Therefore, where only three hear an appeal, all three must vote unanimously to reach a decision. In such a case, there is a significant incentive for each of the three commissioners to reach the same decision. Such an incentive is inconsistent with the duty of each commissioner to exercise his or her individual judgment and consideration. Response: The Commission disagrees partially with Finding 1. It is true that when there is a quorum of three commissioners, a unanimous vote is required for any Commission action, including on appeals from discipline. While the Commission agrees that attendance by its full membership is not only preferable, but clearly enhances the decision making process, the Commission disagrees that proceeding with a minimum quorum creates a "significant incentive" for concurrence to the degree that it is inconsistent with or impedes the exercise of independent judgment.

discipline to historical consistency. This policy is at odds with its duty to determine in each case the discipline which is "appropriate in light of all relevant facts and circumstances" of that case. The Commission disagrees wholly with Finding 2. The Commission believes that it Response: gives appropriate weight to its consideration of historical consistency, which is merely one element among many relevant facts and circumstances considered in a given case. The Commission has no policy regarding consideration of historical consistency, both in the context of prior Commission action and as it relates to an issue of disparate treatment. Rather, when appropriately relevant to the deliberative process and helpful in the normal exercise of its discretion, the Commission will entertain such considerations. Prior Commission action, if sound, informs but does not dictate the outcome of a current matter, and suitable regard for consistency and perspective does not command that prior errors be repeated. The Commission should determine whether the discipline imposed is

event of an actual, potential, or appearance of, bias in a particular case. The Commission disagrees wholly with Finding 3. Civil Service Commission Rule Response: 14.11 provides for and governs conflicts of interest: "If a member of the Commission determines that he or she should not participate in deliberations or vote in relation to a pending matter because of a conflict of interest, as soon as practical after the matter is called the member shall advise the chairperson of the member's inability to participate and the reasons therefore. The member shall thereupon leave the rostrum and refrain from any participation or discussion with any Commission member until the Commission has completed its consideration of, and action on, the matter." The Commission should adopt and enforce a recusal policy to be followed in

information contained in the full transcript of a disciplinary appeal hearing before a hearing officer. The transcript contains "all relevant facts and circumstances" which the Commission should be able to 2 consider in making a final decision. The hearing officer's proposed decision may contain only those facts and circumstances deemed pertinent to that officer's proposed decision, and rarely contains "all" of the relevant facts and circumstances. By limiting the basis for its review only to the material in the hearing officer's proposed decision, the Commission has limited its ability to make a duly informed final decision. The Commission agrees partially with Finding 4. The Rules do not provide for a Response: hearing de novo by the Commission and limit the proceedings to consideration of the proposed decision and, as relevant, issues of prejudice caused by the unavailability of material evidence and prior discipline of the employee. (Rules 11.12(c),(f).) "All relevant facts and circumstances" relating to a case heard by a hearing officer would be contained in the administrative record, of which the reporter's transcript is only a part. This complete record can and will be considered if a judicial remedy is sought by a party through an administrative writ. (Code Civ. Proc. §1094.5.) However, as is permitted by the Charter and Rules, the Commission provides for the impartial hearing and determination of appeals by use of hearing officers, subject only to its final approval. Nothing in the Charter's provision for delegation of the administrative hearing to a hearing officer suggests the voters intended to provide a party with two evidentiary hearings – the first before a hearing officer and then a rehearing before the Commission. The Rules properly design a system providing for a single evidentiary hearing. The proposed decision of the hearing officer is required by the Rules to be in such form that it may be adopted by the Commission as the decision in the case and its contents are limited to specific factual findings relating to the facts alleged in the order of discipline, facts asserted by the appellant for purposes of defense or mitigation, determinations of any legal issues, whether the facts found constitute good cause for discipline and the appropriate discipline in light of all relevant facts and circumstances, and an order affirming, modifying or setting aside the disciplinary action. (Rule 11.12(a).) The Commission's Rules permit the hearing officer to act as the final arbiter of the factual findings. The Commission's role is to review the hearing officer's proposed decision for final approval, require clarification as desired, and change non-factual determinations and the order of disciplinary action as consistent with the facts of the case. Therefore, the Commission has not limited its ability to make a duly informed final decision, but permits the hearing officer to act as the final arbiter of the factual findings.

disciplinary action relating to evidentiary, procedural, or legal issues which were raised or could have been raised before the hearing officer, or to the weight of the evidence, or the credibility of a witness. Thus, the hearing officer's determinations as to all issues of evidence, procedure, or law, including the weight of the evidence, or the credibility of witnesses, are not subject to review by the Commission. By refusing to consider any such argument, the Commission has ceded too much of its authority and 3 responsibility to exercise its own judgment in making a final decision, to the discretion of the hearing officer. The Commission agrees partially with Finding 5. The proceeding before the hearing Response: officer is the evidentiary hearing on the appeal. At the hearing before the Commission, oral argument is limited as stated in Finding 5. However, it is an overstatement to say that the hearing officer's determinations as to all issues of evidence, procedure, or law are not subject to review by the Commission. Rather, the Commission's review is limited by the contents of the proposed decision and the factual findings made therein. Within that context, and so long as consistent with the factual findings, the Commission may change non-factual determinations. The intent of Rule 11.12(c) is to bar attempts to relitigate the case before the Commission. The Commission has authority to accept or reject, in whole or in part, the proposed decision, and can refer the matter back to the hearing officer for clarification or, as appropriate, order a new hearing. Therefore, the Commission disagrees that too much authority has been ceded to the hearing officer. The Commission should amend its Rules to allow for argument before the

cases reviewed related to the following causes for disciplinary action: (a) "Failure of good behavior . . . which is of such a nature that it causes discredit to [the employee's] agency or employment", and (b) "Conviction of a misdemeanor which is of such a nature as to adversely affect the employee's ability to perform the duties and responsibilities of his position." The Commission disagrees wholly with Finding 6. While reasonable persons may hold Response. contrary opinions as to the correctness of a given decision by the Commission or its hearing officer, only the courts can authoritatively decide whether there was improper conduct or error in the application of law by a hearing officer or the Commission. None of the reviewed cases were reversed by a court of law. They are final and presumed correct. The Commission: