Filed 2/9/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

SAMUEL JOSEPH,

Plaintiff and Appellant,

v.

CITY OF ATWATER,

Defendant and Respondent.

F080711

(Super. Ct. No. 18CV-04981)

OPINION

APPEAL from a judgment of the Superior Court of Merced County. Brian L. 

McCabe, Judge.

Rains Lucia Stern St. Phalle & Silver, Michael L. Rains and Johnathan R. Murphy 

for Plaintiff and Appellant. 

Churchwell White, Douglas L. White and Erin M. Dervin for Defendant and 

Respondent.

-ooOooPlaintiff Samuel Joseph filed a petition for writ of mandate after defendant City of 

Atwater (City) terminated his employment as chief of police. Plaintiff alleged City 

violated the Public Safety Officers Procedural Bill of Rights Act (POBRA; Gov. Code, 

§ 3300 et seq.).

1 Section 3304, subdivision (c) provides that no chief of police may be 

removed from office without being provided written notice of the reasons “and an 

1

 Undesignated statutory references are the Government Code.
2.

opportunity for administrative appeal.” Plaintiff alleges City failed to provide him with 

the type of hearing necessary to afford him “an opportunity for administrative appeal” 

because the hearing offered by City (1) was not mutually scheduled, (2) was not before a 

mutually selected neutral hearing officer, (3) did not require City to bear the burden of 

proof as to just cause for his termination, and (4) did not require City to present witnesses 

and allow them to be cross-examined.

The trial court denied plaintiff’s petition for writ of mandate, concluding plaintiff 

was an at-will employee pursuant to the terms of his employment contract and the 

hearing offered by City satisfied the statutory requirement of providing “an opportunity 

for administrative appeal.” (§ 3304, subd. (c).) Plaintiff contends the trial court erred in 

characterizing him as an at-will employee for all purposes and then determining the 

hearing offered by City was adequate for such an employee.

Plaintiff’s employment agreement stated he could be removed as police chief for 

any reason and, if the removal was not for willful misconduct, he had the option of 

continuing his employment by returning to the position of police lieutenant. Based on 

our de novo interpretation of the employment agreement, we conclude plaintiff (1) was 

an at-will employee only in the capacity of police chief and (2) had rights to employment 

as a lieutenant that could be terminated only for cause. Thus, plaintiff’s employment as a 

lieutenant was not at-will. Consequently, before City could terminate his right to 

employment as a lieutenant, it was required by POBRA to provide him with the type of 

administrative appeal afforded public safety officers who are terminable only for cause. 

City did not offer plaintiff that type of administrative appeal, which includes a full 

evidentiary hearing before a neutral fact finder. Thus, a writ of mandate should have 

been issued directing City to offer plaintiff such a hearing.

We therefore reverse the judgment.
3.

FACTS

On November 17, 2016, plaintiff and City entered into a “CHIEF OF POLICE 

EMPLOYMENT AGREEMENT” specifying the terms, benefits, and requirements 

regarding City’s employment of plaintiff as its chief of police. It was signed by plaintiff 

and Frank Pietro, city manager, and attested to by the city clerk. Section 2.2 addressed 

City’s removal of plaintiff from his employment as chief of police by stating:

“Joseph shall be designated an ‘at-will’ employee. Accordingly, the City 

Manager may terminate this [Chief of Police] Employment Agreement and 

remove Joseph from the position of Police Chief at any time, for any 

reason, with or without cause. If the City Manager removes Joseph from 

the position of Police Chief for any reason other than willful misconduct in 

office or conviction of a crime of moral turpitude, Joseph shall be given the 

option to either:

“2.2.1 Return to his previous position of Police Lieutenant, where 

his compensation will be based on Step 6 of Range 315 of the Salary 

Schedule for Police Lieutenant; or

“2.2.2 Terminate his employment with the City and receive four (4) 

months wage continuation pay, with such pay to be computed at the highest 

base salary received by Joseph during his service with the City. This 

Section 2.2.2 shall not apply in the event of a ‘Resignation’ as defined [in] 

Section 2.1.” 

On September 28, 2018, Lori Waterman, in her capacity as city manager, sent 

plaintiff and his attorney a notice of intended discipline along with a final copy of the 

investigation report and supporting exhibits relating to the allegations against plaintiff. 

The notice informed plaintiff of the city manager’s “intention to terminate [plaintiff’s] 

employment as Police Chief with the City for willful and other misconduct.” The notice 

listed violations of five policies and three Penal Code sections, described four types of 

willful misconduct, and set forth four other mismanagement issues. 

The notice of intended discipline described plaintiff’s right to appeal the 

termination decision. It stated that, in accordance with section 3304, subdivision (c), 

plaintiff was “entitled to present any testimony or documentary evidence [he] believe[d] 
4.

should be considered regarding [his] termination ... to a neutral arbitrator at the City’s 

expense.” Plaintiff also was informed that (1) he could submit testimony in person or in 

writing; (2) he could bring representation to the hearing; (3) the hearing would not be “a 

full evidentiary hearing in that you are not entitled to cross-examine witnesses and the 

City is not obligated to call any witnesses or present any evidence beyond this Notice and 

its attachments;” (4) the hearing officer would make a recommendation on the proposed 

termination to the city manager; and (5) the city manager would make the final, binding 

decision. 

The notice of intended discipline stated that if plaintiff wished to appeal the 

proposed termination, he should inform the city manager by October 10, 2018; the 

hearing would occur no later than 60 days after his request, unless the parties agreed to a 

continuance; the neutral hearing officer would be chosen and paid by City; and plaintiff 

would remain on the payroll until the city manager made a final decision. 

On October 4, 2018, plaintiff’s attorney sent City a letter stating plaintiff was 

appealing the proposed termination and was objecting to the appeal procedure offered by 

City. The letter asserted plaintiff was “entitled to a hearing before a ‘truly neutral 

arbitrator’ (not one selected by the City at the City’s expense), at which the City will be 

required to bear the burden of proving the charges, be required to call witnesses in 

support of the charges, and [plaintiff] will be afforded the opportunity to cross-examine 

those witnesses, and present witnesses to testify on his behalf.” 

On October 15, 2018, City sent plaintiff’s attorney a letter stating a retired justice 

of the Court of Appeal had been chosen as the hearing officer and proposing dates for the 

hearing. The letter requested a response identifying hearing dates acceptable to plaintiff. 

Plaintiff did not respond to the request for acceptable dates before the deadline set 

in the letter. A few days after the deadline, City sent plaintiff’s attorney a letter noting 

the lack of a response and stating hearing dates of December 5, 6, and 7, 2018, had been 

chosen based on the hearing officer’s availability. 
5.

Plaintiff’s attorney responded with a letter setting forth objections to City’s 

conduct and the proposed procedures for the hearing. The letter concluded by stating:

“In the event the City does not wish to hold a hearing in accordance with 

the process required by existing case and statutory law, or insists on having 

the hearing conducted by the hearing officer it has unilaterally selected and 

paid for, we will proceed to Superior Court to challenge the City’s 

proposed hearing procedure and the selection of its hearing officer, and will 

seek both fees and costs for having to do so.” 

In November 2018, the parties exchanged further correspondence. Ultimately, 

they were unable to agree on the type of hearing required by section 3304. Plaintiff 

refused to participate in a hearing that did not comply with his interpretation of POBRA 

and, as a result, no hearing was held. On November 15, 2018, the city manager issued a 

“Final Notice of Termination” stating plaintiff’s employment was being terminated, 

effective immediately, for willful and other misconduct. 

PROCEEDINGS

In December 2018, plaintiff filed a verified petition for writ of mandate against 

City. In January 2019, plaintiff filed a first amended verified petition for writ of 

mandate. City filed a verified answer, dated February 13, 2019, setting forth its 

disagreement with plaintiff’s interpretation of section 3304’s requirement that plaintiff be 

given an opportunity for an administrative appeal. 

In December 2019, after the parties had briefed the merits of the petition, the trial 

court held a hearing and took the matter under submission. Two days later, the court 

filed its written order denying plaintiff’s petition for writ of mandate and entered 

judgment in favor of City. Plaintiff appealed. 

DISCUSSION

I. TERMS OF EMPLOYMENT

An important issue in this appeal is how to characterize plaintiff’s employment 

with City. City and the trial court characterized him as an at-will employee. Plaintiff 

contends (1) he had the contractual right to be returned to the position of lieutenant if his 
6.

termination as police chief was without cause; (2) City’s decision to terminate his 

employment for willful misconduct deprived him of his right to employment as a 

lieutenant; and (3) the termination for cause created a situation where he was entitled to 

the same procedural rights as other public safety officers terminated or disciplined for 

cause, regardless of the existence or nonexistence of a property interest in that 

employment. 

A. Legal Principles

Labor Code section 2922 sets forth the general presumption that “[a]n 

employment, having no specified term, may be terminated at the will of either party on 

notice to the other.” This presumption of at-will employment, while strong, is limited by 

the fundamental freedom of contract. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 

317, 335 (Guz).) Thus, an employer and employee may agree to any limit, otherwise 

lawful, on the employer’s right to terminate the employment relationship for any or no 

reason. (Id. at p. 336.) Pursuant to these general principles, we conclude the 

employment agreement signed by the parties must be examined to determine whether the 

parties have contractually limited City’s right to terminate plaintiff’s employment for no 

reason. 

The interpretation of the employment agreement is guided by the following 

principle: “It is solely a judicial function to interpret a written contract unless the 

interpretation turns upon the credibility of extrinsic evidence, even when conflicting 

inferences may be drawn from uncontroverted evidence.” (Garcia v. Truck Ins. 

Exchange (1984) 36 Cal.3d 426, 439.) Here, the parties presented no extrinsic evidence 

addressing the agreement’s meaning. Therefore, the interpretation of the employment 

agreement poses questions of law subject to our independent review. (Parsons v. Bristol 

Development Co. (1965) 62 Cal.2d 861, 865.)

The threshold question when interpreting a written contract is whether its text is 

ambiguous—that is, reasonably susceptible to more than one interpretation. (Smith v. 
7.

Adventist Health System/West (2010) 182 Cal.App.4th 729, 754–755.) Whether 

contractual text is ambiguous presents a question of law subject to our independent 

review on appeal. (Id. at p. 755; see Silverstein, The Contract Interpretation Policy 

Debate: A Primer (2021) 26 Stan. J.L. Bus. & Fin. 222, 228–230 [initial stage of both 

textualist and contextualist approach to contract interpretation is whether an ambiguity 

exists].) 

B. Contractual Provisions Addressing Termination

The contractual text addressing City’s right to terminate plaintiff’s employment is 

contained in section 2.2 of the agreement, which begins by stating that plaintiff “shall be 

designated an ‘at-will’ employee. Accordingly, the City Manager may terminate this 

Agreement and remove [plaintiff] from the position of Police Chief at any time, for any 

reason, with or without cause.” (Italics added.) Next, section 2.2 limits City’s right to 

terminate plaintiff’s employment for any reason by stating: “If the City Manager 

removes [plaintiff] from the position of Police Chief for any reason other than willful 

misconduct in office or conviction of a crime of moral turpitude, [plaintiff] shall be given 

the option to either” return to his previous position as a lieutenant or receive four months 

of continuation pay. 

Based on the trial court’s ruling and District’s arguments, we consider whether the 

employment agreement is reasonably susceptible to the interpretation that plaintiff is an 

at-will employee in all capacities. The first sentence of section 2.2 of the employment 

agreement stating plaintiff “shall be designated an ‘at-will’ employee.” Reading this 

sentence in isolation, one might conclude that plaintiff is an at-will employee in all 

capacities. However, reading a sentence in isolation is not reasonable because California 

law requires contracts to be interpreted as a whole. (See Waller v. Truck Ins. Exchange, 

Inc. (1995) 11 Cal.4th 1, 18–19, [“language in a contract must be interpreted as a whole, 

and in the circumstances of the case, and cannot be found to be ambiguous in the 

abstract”].)
8.

The second sentence of section 2.2 addresses the extent to which plaintiff is an atwill employee by providing that the city manager may “remove [plaintiff] from the

position of Police Chief at any time, for any reason, with or without cause.” (Italics 

added.) The plain meaning of this sentence is that plaintiff’s employment as police chief

may be terminated at any time for any reasons and, therefore, his employment in that 

position is properly characterized as at-will. (See Guz, supra, 24 Cal.4th at p. 335 

[definition of at-will employment].)

The remainder of section 2.2 places a limitation on City’s right to terminate 

plaintiff’s employment for any reason. It provides that if plaintiff’s employment as 

police chief is terminated for reasons other than “willful misconduct in office or 

conviction of a crime of moral turpitude,” plaintiff has a right to continued employment 

as a lieutenant or a payment of four months’ salary, at his option. Thus, section 2.2 

necessarily implies that City’s right to terminate plaintiff’s employment as a lieutenant is 

limited to the specified reasons—that is, willful misconduct or conviction of a crime of 

moral turpitude, which necessitate certain procedural protections. This contractual 

limitation on City’s right to terminate plaintiff’s overall employment is more specific 

than the sentence stating plaintiff is an at-will employee and, therefore, must be given 

effect. (See Code Civ. Proc., § 1859 [if a general provision in a contract conflicts with a 

specific provision, the specific provision controls].) 

Consequently, we conclude that when section 2.2 is read as a whole, it is not 

reasonably susceptible to the interpretation that all of plaintiff’s rights to employment 

were at-will. Instead, the employment agreement unambiguously created a hybrid 

employment relationship between City and plaintiff. First, plaintiff’s employment as 

chief of police was at-will. Second, plaintiff’s employment as a lieutenant was not at-will 

because it could be terminated only on the grounds specified in the agreement. 

Interpreting the agreement otherwise would deprive plaintiff of the job security for which 

he bargained.
9.

II. OPPORTUNITY FOR AN ADMINISTRATIVE APPEAL

The parties agree plaintiff has a statutory right under section 3304, subdivision (b)

to “an opportunity for administrative appeal” and disagree about the procedural 

protections that apply to the administrative appeal. Their disagreement about the 

procedural protections is based, to a large degree, on the different ways they 

characterized plaintiff’s employment rights. As a result, our determination that plaintiff 

had a hybrid employment relationship in which his employment as chief of police was atwill and his employment as a lieutenant could be terminated only as specified in the 

employment agreement provides the foundation for our analysis of the procedural 

protections that must be applied to his administrative appeal. 

A. Statutory Text

In 1976, the Legislature enacted POBRA to set forth a list of basic rights and 

protections that public entities must provide to the peace officers they employ. (Oakland 

Police Officers’ Assn. v. City of Oakland (2021) 63 Cal.App.5th 503, 512.) One of those 

protections was “an opportunity for administrative appeal,” which is referred to twice in 

the current version of section 3304: 

“(b) No punitive action, nor denial of promotion on grounds other than 

merit, shall be undertaken by any public agency against any public safety 

officer who has successfully completed the probationary period that may be 

required by his or her employing agency without providing the public 

safety officer with an opportunity for administrative appeal.

“(c) No chief of police may be removed by a public agency, or appointing 

authority, without providing the chief of police with written notice and the 

reason or reasons therefor and an opportunity for administrative appeal.

“For purposes of this subdivision, the removal of a chief of police by 

a public agency or appointing authority, for the purpose of 

implementing the goals or policies, or both, of the public agency or 

appointing authority, for reasons including, but not limited to, 

incompatibility of management styles or as a result of a change in 

administration, shall be sufficient to constitute ‘reason or reasons.’
10.

“Nothing in this subdivision shall be construed to create a property 

interest, where one does not exist by rule or law, in the job of Chief 

of Police.” (Italics added.) 

We note that POBRA does not define “administrative appeal” or the phrase 

“opportunity for an administrative appeal.” Before 1998, courts acknowledged that 

POBRA “does not specify how the appeal process is to be implemented” and concluded 

that “[t]he details of administrative appeal under section 3304 ... are left to be formulated 

by the local agency.” (Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1806 

(Binkley); Browning v. Block (1985) 175 Cal.App.3d 423, 429.) In 1998, the same year 

the Legislature added subdivision (c) to section 3304, it also enacted section 3304.5. 

(Stats. 1998, ch. 263, § 1 [Sen. Bill No. 1662].) Section 3304.5 provides: “An 

administrative appeal instituted by a public safety officer under this chapter shall be 

conducted in conformance with rules and procedures adopted by the local public 

agency.” (See § 14 [“ ‘Shall’ is mandatory”].)

B. Absence of Local Rules and Procedures

The record on appeal, as acknowledged by the parties at oral argument, does not 

contain any rules and procedures for the conduct of administrative appeals adopted by 

City in accordance with section 3304.5. Our independent research of City’s municipal 

code did not locate any rules or procedures that might apply to an administrative appeal 

required by POBRA.

Counsel’s responses to questions during oral argument suggested that if a police 

lieutenant were to seek an administrative appeal after being terminated for cause, the 

lieutenant’s appeal would be governed by provisions in a memorandum of understanding. 

Such a memorandum of understanding is not included in the appellate record.

2

 In the 

2 We note the possibility that procedures set forth in a memorandum of 

understanding might qualify as “procedures adopted by” City for purposes of section 

3304.5 and, as a result, might govern plaintiff’s administrative appeal challenging the forcause termination of his right to employment as a lieutenant. Given the record before us, 
11.

absence of rules and procedures adopted by City pursuant to section 3304.5, we address 

the procedural protections that must be applied to the hybrid situation presented in this 

case to satisfy POBRA and due process. 

C. Application of POBRA to Hybrid Employment Relationship

The parties’ briefing did not identify the hybrid nature of plaintiff’s employment. 

Instead, the parties treated plaintiff’s employment rights as governed solely by 

subdivision (c) of section 3304. We disagree with this approach. 

We conclude that plaintiff’s rights to employment as chief of police are governed 

by subdivision (c) of section 3304. That provision addresses removal of a chief of police 

from office and clearly applies to the removal of plaintiff from that office. However, 

subdivision (c) does not cover plaintiff’s rights to employment as a lieutenant. We 

conclude those rights are governed by subdivision (b) of section 3304, which applies to 

punitive action against a public safety officer.

Section 3301 defines a public safety officer to mean all peace officers specified in 

certain provisions of the Penal Code. Those provisions include Penal Code section 830.1, 

which states that “a police officer ... is a peace officer.” (Pen. Code, § 830.1, subd. (a).) 

We conclude that a lieutenant is a police officer and therefore a public safety officer for 

purposes of section 3304, subdivision (b). 

POBRA defines “punitive action” as including “any action that may lead to 

dismissal.” We conclude that the termination of plaintiff’s right to employment as a 

lieutenant qualifies as punitive action for purposes of POBRA. (See Trejo v. County of 

Los Angeles (2020) 50 Cal.App.5th 129, 135, fn. 2 [right of administrative appeal 

provided by § 3304, subd. (b) is an important pre-termination safeguard, on any punitive 

action, guaranteed by POBRA]; Gonzalez v. City of Los Angeles (2019) 42 Cal.App.5th 

1034, 1043 [purpose of administrative appeal is to give officer an opportunity to establish 

these issues must be resolved on remand, either by the agreement of the parties or by the 

trial court. 
12.

a formal record of the circumstance surrounding his termination].) Therefore, we 

conclude the termination of plaintiff’s right to employment as a lieutenant entitled him to 

an administrative appeal pursuant to subdivision (b) of section 3304.

D. Procedural Protections

The analysis of the parties’ arguments is relatively straightforward because we 

have rejected the foundation for City’s argument—namely, that plaintiff was an at-will 

employee for all purposes. The employment agreement established plaintiff’s right to 

employment as a lieutenant could be terminated only for “willful misconduct in office or 

conviction of a crime of moral turpitude.” Consequently, plaintiff’s right to employment 

as a lieutenant is entitled to the procedural protections afforded other public safety 

officers whose employment can be terminated only for cause. (See Parker v. City of 

Fountain Valley (1981) 127 Cal.App.3d 99, 106 [police sergeant’s position described as 

permanent and tenured because he would be removed from his position only for cause].) 

District’s arguments, like the trial court’s decision, relies heavily on Holmes v. 

Hallinan (1998) 68 Cal.App.4th 1523 (Holmes) and Binkley to define the extent of 

procedural protections necessary to satisfy POBRA. We conclude those cases are 

distinguishable because they did not involve employment rights that could be terminated 

only for cause. (See Giuffre v. Sparks (1999) 76 Cal.App.4th 1322, 1330 [only where 

peace officer is an at-will employee have courts found no absolute right to a full 

evidentiary hearing].)

In Holmes, supra, 68 Cal.App.4th 1523, the parties agreed the peace officer “was 

an at-will employee, terminable without cause.” (Id. at p. 1530.) Similarly, in Binkley, 

supra, 16 Cal.App.4th 1795, the chief of police served at the pleasure of the city manager 

and, unlike plaintiff, did not retain a right to continued employment if removed as chief 

of police. (Id. at p. 1807.) Therefore, the lesser procedural protection approved in 

Holmes and Binkley do not satisfy the requirements of section 3304, subdivision (b) 

applicable to plaintiff’s rights to employment as a lieutenant. 
13.

Many courts addressing the procedural requirements for an administrative appeal 

have stated that public safety officers are entitled to an evidentiary hearing before a 

neutral fact finder. (Gonzalez v. City of Los Angeles, supra, 42 Cal.App.5th at p. 1043; 

Conger v. County of Los Angeles (2019) 36 Cal.App.5th 262, 269; Morgado v. City and 

County of San Francisco (2017) 13 Cal.App.5th 1, 7.) The more extensive procedural 

protections applicable to public safety officers who may be terminated only for cause are 

addressed in Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209 (Caloca I) and 

Caloca v. County of San Diego (2002) 102 Cal.App.4th 433 (Caloca II). We conclude 

that those procedural protections are the minimum applicable to the administrative appeal 

in which plaintiff challenges the termination for willful misconduct of his rights to 

employment as a lieutenant. Based on the freedom of contract applicable to California 

employment relationships, we conclude the parties’ agreement that plaintiff was an atwill police chief means a lower level of procedural protections applies to his removal 

from that position. (See Holmes, supra, 68 Cal.App.4th at p. 1530; Binkley, supra, 16 

Cal.App.4th 1807.) 

In Caloca I, four sheriff’s deputies filed a petition for writ of mandate to compel 

the county and its civil service commission to conduct liberty interest hearings or, 

alternatively, an administrative appeal of a civilian law enforcement review board’s 

findings of misconduct by the deputies. (Caloca I, supra, 72 Cal.App.4th at p. 1212.) 

The appellate court concluded the deputies were not entitled to a liberty interest hearing 

because there was no evidence that they suffered an actual loss of a government benefit 

as a result of the board’s adverse findings. (Id. at p. 1220.) However, the court also 

concluded the deputies were entitled to an opportunity for an administrative appeal under 

section 3304, subdivision (b) because the board’s findings constituted punitive action 

under POBRA and remanded for the issuance of a writ directing the civil service 

commission to conduct an administrative appeal. (Caloca I, supra, at p. 1223.) The 

court noted that the procedural details for implementing an administrative appeal are to 
14.

be formulated by the local agency and, therefore, did not impose specific procedural 

requirements. (Ibid.)

In Caloca II, three sheriff’s deputies filed a petition for writ of mandate 

challenging the procedures applied to the administrative appeal of the board’s findings of 

misconduct. (Caloca II, supra, 102 Cal.App.4th at p. 436.) The trial court granted the 

petition based on its conclusions “that the burden of proof could not be placed on a 

deputy and that without the consent of a deputy an administrative hearing could not be 

closed to the public.” (Ibid.) The appellate court affirmed, stating:

“At a minimum an administrative appeal requires independent fact finding 

in a de novo proceeding. In such a proceeding the proponent of any fact 

bears the burden of establishing it. Thus the commission could not place on 

officers the burden of refuting the civilian review board’s misconduct 

findings. Moreover, the commission has not shown any substantial need to 

close its hearings over the objection of a deputy who is challenging an 

adverse finding.” (Caloca II, supra, 102 Cal.App.4th at pp. 436–437.) 

As in Caloca I, the Fourth District stated that the precise details of the procedures 

required by section 3304, subdivision (b) are left to local law enforcement agencies. 

(Caloca II, supra, 102 Cal.App.4th at p. 443.) Nonetheless, the court concluded the law 

clearly recognized some minimum procedural protections necessary to satisfy POBRA’s 

requirement for an administrative appeal. A compliant administrative appeal required (1) 

an independent reexamination of the decision, (2) the reexamination be conducted by 

someone who was not involved in the initial determination, (3) the independent 

administrative decision maker to set forth findings to bridge the analytical gap between 

the raw evidence and the ultimate decision, (4) the hearing to “be treated as a de novo 

proceeding at which no facts are taken as established” and (5) the proponent of a 

particular fact to bear the burden of establishing it. (Caloca II, supra, 102 Cal.App.4th at 

pp. 443–444.) The court also concluded the hearing could not be closed over the 

officer’s objection. (Id. at p. 446, fn. 3.) 
15.

We conclude the foregoing minimum procedural protections must be provided to 

plaintiff in the administrative appeal provided to him in connection with the termination 

of his rights to employment as a lieutenant. The hearing offered by City did not satisfy 

these requirements and, therefore, did not comply with section 3304, subdivision (b). For 

example, the retention of final authority by the city manager did not provide plaintiff with 

a hearing by an independent decision maker as required by Caloca II and other case law 

because the city manager was involved in the initial decision to terminate plaintiff’s 

employment. (See Giuffre v. Sparks, supra, 76 Cal.App.4th at p. 1330 [sheriff’s deputy 

was entitled to a full evidentiary hearing before a neutral fact finder to satisfy due process 

and § 3304]; Runyan v. Ellis (1995) 40 Cal.App.4th 961, 967 [meeting between police 

officer and city manager was not sufficient to satisfy administrative appeal requirements 

of § 3304; officer was entitled to administrative appeal before civil service commission].) 

Also, City’s proposed hearing did not provide plaintiff with a full evidentiary hearing 

where he had the right to cross-examine witnesses and the burden of proving a particular 

fact was placed on its proponent. 

E. Specific Procedural Details

Plaintiff’s arguments about two procedural aspects of the administrative appeal 

raise issues that cannot be definitively resolved at this stage of the proceedings. All the 

circumstances relevant to determining the appropriate procedures for selecting a hearing 

officer and for selecting hearing dates are not contained in the appellate record and will 

not be known until other aspects of the administrative appeal are established. 

1. Selection of a Hearing Officer

Plaintiff contends that City cannot unilaterally select and pay for the hearing 

officer and cites Haas v. County of San Bernadino (2002) 27 Cal.4th 1017 (Haas) as 

support. In Haas, the Supreme Court considered “whether a temporary administrative 

hearing officer has a pecuniary interest requiring disqualification when the government 

unilaterally selects and pays the officer on an ad hoc basis and the officer’s income from 
16.

future adjudicative work depends entirely on the government’s goodwill.” (Id. at p.

1024.) The court concluded “the answer is yes.” (Ibid.) This conclusion cannot be 

applied to the hearing officer who might preside over the administrative hearing on 

remand because it is unclear whether City will hire a hearing officer, who the 

compensated or uncompensated hearing officer might be, and the terms under which a 

compensated hearing officer might be paid. 

For example, the administrative appeal might be heard by the city council with a 

member of the council acting as the hearing officer. In Gray, supra, 224 Cal.App.3d 621, 

the police chief alleged the city council was prejudiced against him and could not conduct 

the impartial hearing required by section 3304. (Gray, at p. 632.) This court concluded 

that the police chief “has thus far failed to establish good cause to recuse the city 

council.” (Ibid.; see Dole v. City of Chino (1981) 117 Cal.App.3d 673, 682–684 [city 

council was appropriate body to hearing police chief’s appeal].) Similarly, on the record 

presented in this appeal, we cannot conclude the city council is a biased decision maker 

unable to provide an impartial hearing of the administrative appeal. In addition, we 

cannot categorically declare that any hearing officer chosen and paid by City is biased 

because, under Haas, that determination depends on the terms of employment, the 

prospects for future employment, and other circumstances yet to be established in this 

case. Consequently, we will not direct the superior court to issue a writ of mandate 

prohibiting City from selecting and paying a hearing officer. In some circumstances such 

an arrangement might undermine the impartiality and independence of the hearing officer 

or final decision maker and in other circumstances it would not.

2. Selection of Hearing Dates

Plaintiff also contends City cannot unilaterally set dates for the administrative 

hearing. We cannot issue a blanket directive that the dates of the hearing must be the 

result of the parties’ mutual agreement. Ultimately, City retains the authority to set the 

date of the hearing in the event the parties, acting reasonably and in good faith, are not 
17.

able to agree on dates, and City’s exercise of that authority is subject to the general 

restrictions inherent in the concept of a fair hearing. At this stage, we cannot predict that 

every instance in which City might set hearing dates without plaintiff’s consent renders 

the hearing unfair. As a result, we will not direct the superior court to issue a writ of 

mandate prohibiting City from setting the hearing dates if the parties, acting reasonably 

and in good faith, cannot agree on dates.

F. Just Cause Standard

Plaintiff argues that subdivision (c) of section 3304 contains a just cause standard 

that applies to all chiefs of police. Plaintiff bases this argument on a description of the 

sponsor of the amendment set forth in an Assembly Public Safety Committee analysis 

that this court quoted in an earlier decision. (See Robinson v. City of Chowchilla (2011) 

202 Cal.App.4th 368, 379–380 (Robinson); Assem. Com. on Public Safety, Analysis of 

Sen. Bill No. 2215 (1997-1998 Reg. Sess.) as amended May 19, 1998, p. 3 (Committee 

Analysis).) Plaintiff contends the Committee Analysis “makes it clear that the 

[L]egislature enacted this law to provide a Police Chief with the same ‘just cause’ 

standard governing permanent employee discipline appeals.” Plaintiff also contends that 

if a police chief has no more rights in appealing a termination than a probationary 

employee, then subdivision (c) of section 3304 is wholly meaningless. We reject 

plaintiff’s interpretation.

Nowhere does section 3304 state that just cause is required to discipline a chief of 

police. Instead, subdivision (c) of section 3304 plainly states that no chief of police may 

be removed without written notice that includes the reasons for removal and “an 

opportunity for administrative appeal.” It also states the reasons for removal include 

“incompatibility of management styles or as a result of a change in administration.” 

(§ 3304, subd. (c).) 

Also, a Senate Floor analysis of Senate Bill No. 2215 (1997-1998 Reg. Sess.), 

which added subdivision (c) to section 3304, provides a description of the sponsor’s 
18.

statement that are materially different from those in the Committee Analysis. (See Sen. 

Rules Com., Off. of Sen. Floor Analysis, Unfinished Business Analysis of Sen. Bill No. 

2215 (1997-1998 Reg. Sess.) as amended July 7, 1998, pp. 4–5 (Senate Floor Analysis).) 

It set forth arguments in support of the amendments as follows:

“The sponsors of the bill indicate, ‘Senate Bill 2215 is a very simple bill. It 

provides that a Chief of Police may [not] be disciplined without written 

notice and the reasons therefor. Historically, California law enforcement 

has been the finest in the nation precisely because the Legislature has seen 

the wisdom of separating police organizations from the political process. 

This is why peace officers, once they pass probationary status, are protected 

from termination except for just cause.

“ ‘Ironically, a Chief of Police, who has reached the apex of his or her law 

enforcement career, reverts to the status of a mere probationary employee. 

In other words, a Chief of Police may be dismissed for any reason. Senate 

Bill 2215 does not guarantee that police chiefs cannot be fired. If a chief 

fails to perform as expected, fails to follow the policy direction of the city[] 

council, or fails to properly lead the department, they can, and should be 

terminated or otherwise disciplined by the city council. What Senate Bill 

2215 does is try to protect chiefs to some degree from whimsical pressures 

that diminish the professionalism of the law enforcement mission.’ ” 

(Senate Floor Analysis, supra, at pp. 4–5.) 

The italicized text in this quote denotes language that is different from that 

included in the earlier Committee Analysis quoted in Robinson. The Committee Analysis 

described the bill’s sponsor as stating the bill “provides that the Chief of Police may not 

be disciplined without just cause” (Committee Analysis, supra, at p. 3, italics added), 

rather than stating “that a Chief of Police may [not] be disciplined without written notice 

and the reasons therefor.” (Senate Floor Analysis, supra, at p. 4.) Also, the Committee 

Analysis did not include the phrase “to some degree.” We conclude the later issued 

Senate Floor Analysis more accurately describes the contents of subdivision (c) of section 

3304 than the sponsor’s statement included in the Committee Analysis. Consequently, 

plaintiff’s argument about a “just cause” standard does not accurately describe the 

version of section 3304, subdivision (c) actually enacted by the Legislature. 
19.

DISPOSITION

The order denying the petition for writ of mandate is reversed and the matter 

remanded for further proceedings. The superior court is directed to (1) vacate that order, 

(2) enter a new order granting the petition for writ of mandate, and (3) issue a writ of 

mandate directing City to (a) set aside its “Final Notice of Termination” dated November 

15, 2018, and (b) provide plaintiff with an opportunity for an administrative appeal that, 

at a minimum, includes procedural protections that are consistent with this opinion. 

On remand, if the parties are unable to agree on the specific procedures for the 

administrative appeal, the superior court has the authority to resolve that dispute upon 

application by one or both parties before the administrative hearing is held.

The superior court may, pursuant to the discretion granted by Code of Civil 

Procedure section 1108, require City to file a return describing the action taken to comply 

with section 3304 and satisfy the writ’s requirements. 

Plaintiff shall recover his costs on appeal.

FRANSON, ACTING P. J.

WE CONCUR:

PEÑA, J.

SMITH, J.