Legal filing in case between city of SLO, ex-police officer

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OFFICE OF THE CITY ATTORiJEY Exemptfrom Filing Fee City of San Luis Obispo Pursuant to Govt Code sect 6103 J Christine Dietrick (206539) Andrea S Visveshwara (227412) 990 Palm Street FILED San Luis Obispo CA 93401 Telephone (805) 781-7140 FEB 102014Attorneys for City of San Luis Obispo

MNbYIScdietrickslocityorg avisveshwaraslocityorg sectyen-shy

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN LUIS OBISPO

) Case No CV 130381 DANIEL MCDOW )

) RESPONDENTS OPPOSITION TO Petitioner ) PETITION FOR WRIT OF

) ADMINISTRATIVE MANDATE vs )

DATE March 172014CITY OF SAN LUIS OBISPO ~ TIME 1000 am

) DEPT 1 Respondent --)

Respondent City of San Luis Obispo (City) opposes Petitioner Daniel McDows

(McDow) Petition for Writ of Administrative Mandate as follows

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RESPONDENTS OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE

bmiddotmiddot Clerk

TABLE OF CONTENTS

I INTRODUCTION

II STATEMENT OF FACTS 2

A The Border Detention 3

B The Discipline 5

III DISCUSSION 7

A The Findings that McDow Violated Both the 7 Departments Rules and Regulations and the San Luis Obispo Municipal Code Are Supported by Substantial Evidence

1 Standard of Review 7

2 McDow Does Not Dispute That He Engaged In 8 Conduct Unbecoming An Officer

3 The Substantial Evidence Supports the Finding That 10 McDows Absence From Duty on September 16 2009 Violated Department Rules and Regulations

4 The Violations Committed by McDow Amount to 12 Serious Misconduct Warranting Discipline

B Termination of an Officer Who Engaged in Serious 12 Misconduct and Pled to a Federal Misdemeanor Does Not Constitute an Abuse of Discretion


2 Termination Was Appropriate Because the Weight 13 of the Evidence Supported Findings That There Was Harm to the Public Service and the Likelihood of Recurrence

17IV CONCLUSION

RESPONDENTS OPPOSITION TO PETITION FOR WRIT OF ADMIN ISTRA TIVE MANDATE

TABLE OF AUTHORITIES

Cases Page

Ackerman v State Personnel Board (1983) 145 CalApp3d 395 13

Barber v State Personnel Bd (1976) 18 CaL 3d 395 404 12

Barr v City ofSan Diego (1960) 182 CalApp2d 776 781 9

Bixby v Pierno (1971) 4 Ca13d 130 143 7

County ofSanta Clara v Willis (1986) 179 CalApp3d 1240 13

Fukuda v City ofAngels (1999) 20 Ca14th 805 817 8

Hankla v Long Beach Civil Service Commission (1995) 34 CalAppAth 1216 13

Kazensky v City ofj1erced (1998) 65 Cal App 4th 44 53 12

Kestler v City ofLos Angeles (1978) 81 CalApp3d 62 66 14

Kolendar v San Diego County Civil Service Commission (2007) 149 CalAppAth 464 471 13

Riveros v City ofLos Angeles (1996) 41 CalAppAth 1342 1357 14

Schmitt v City ofRialto (1985) 164 CalApp3d 494 502 14

Skelly v State Personnel Board (1975) 15 Cal3d 194218 613


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Strumsky v San Diego County Employees Retirement Assn (1974) 11 Ca13d 28 32 7

Talmo v Civil Service Commision ofLos Angeles County (1991)231 CalApp3d2l0 13

Thornbrough v Western Placer Unified School District (Dec23 2013 No C068317) _CalAppA1h

_) 12

Wences v City ofLos Angeles 177 Cal App 4th 305313 (Cal App 2d Dist 2009) 8

Statutes

Civil Procedure Code Section 1 0945(b) 1

Evidence Code Section 1220 11

San Luis Obispo Municipal Code Section 236350E5 11 Section 236380A 18

Other Authorities

United States Code Title 21 Section 331 5 United States Code Title 21 Section 331(a) 6


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1 I INTRODUCTION

2 Through this Petition McDow seeks to be reinstated as police officer with back pay

3 after the City terminated him following a series of serious judgment errors and misconduct that

4 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

6 City Council found that McDow violated four San Luis Obispo Police Department

7 (Department) Rules and Regulations and section 236380A of the San Luis Obispo

8 Municipal Code Two of the violations including the municipal code violation relate to rules

9 prohibiting conduct that is commonly referred to throughout this brief as conduct unbecoming

an officer Two other violations relate to McDows unauthorized absence arising from his

11 inability to report to duty due to him being detained at the Mexican border The fifth violation is

12 derivative of the other violations in that he violated Department Rules and Regulations that are

13 subject to discipline After making such findings the City Council determined that such conduct

14 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

16 (4 Administrative Record (AR) 943)

17 McDow contends that the City Councils Order should be set aside because the Order

18 constitutes an abuse of discretion (Petition ~4J 1 15 McDow Brief p 2) Pursuant to Civil

19 Procedure Code section 10945(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

21 findings or the findings are not supported by substantial evidence in the record Furthermore it

22 is not sufficient that there be error but rather the petitioner must demonstrate that any alleged

23 error somehow prejudicial (Thornbrough v Western Placer Unified School District (Dec 23

24 2013 No C068317) CalAppAth__)

Of the official 62 findings that the City Council makes McDow takes aim at a few minor

26 findings by challenging the admissibility of the evidence cited by the City Council in its decision

27 to support a particular finding McDow is simply trying to distract from the big picture that he

28 was a police officer who engaged in serious misconduct and who was convicted of a federal

RESPONDENTS OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATNE MANDATE

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misdemeanor These are facts that McDow does not dispute McDow admitted that he engaged

2 in conduct unbecoming of an officer when he testified I soiled my family tree because this

3 department is and always has been my family And if tarnish myself I tarnish them (1 AR

4 81217-20) Furthermore McDow admitted that police officers should not be convicted of

federal misdemeanors (1 AR 81423-81510) As it relates to unauthorized absence from duty

6 again McDow admits that he was scheduled to report for duty and could not do so as a result of

7 his misconduct and ensuing detention (1 AR 4752 4 AR 27725-2782)

8 In light of the City Councils determination that McDow engaged in serious misconduct

9 and McDows admissions that he did so the fundamental issue for the Court to determine is

whether the Citys imposed discipline - termination constituted an abuse of discretion

11 McDow argues that the termination was too severe because he pled to a strict liability crime

12 opposed to one that requires proof of intent as one of the elements (McDow Brief pp 2 8-10)

13 His argument swayed the administrative hearing officer to recommend leniency in discipline

14 However in the context of these proceedings his argument is legally insufficient to warrant

vacating the City Councils decision to terminate and must be rejected As the Court of Appeal

16 recently stated Once a valid ground of misconduct is shown an agency has great latitude to

17 determine the appropriate penalty (Thornbrough v Western Placer Unified School District

18 (Dec 232013 No C068317) _ CaLAppAth_) The City Council has determined that San

19 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

21 police officers should not be convicted of federal misdemeanors (4 AR 81423-81510)

22 Accordingly McDows Petition must faiL

23 II STATEMENT OF FACTS

24 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

26 those findings with the citations modified to conform with the administrative record fonnat

27 IIII 28


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A The Border Detention

McDow started his employment with the San Luis Obispo Police Department

(Department) in 2002 as a dispatcher (4 AR 7646middot7) 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 7647-10) 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 67middot69)

Both Limon and McDow testified during the Administrative Investigation that shortly after

arriving in Mexico they visited a pharmacy to get diet pills for Limons wife (l AR 63middot64 and

67middot68) McDow testified during the Administrative Investigation that Limons wife had been

given the diet pill Yeduc by her parents and she wanted to get some more (l AR 67middot68)

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 l 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 its okay as

long as youre 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 8488 8496) Methylphenidate Hydrochloride is

the generic form of Ritalin (4 AR 8497middot25) McDow testified he should have known that the

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


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tablet was Ritalin (4 AR 78913-142) There were 34 tablets of Methylphenidate Hydrochloride

in the bottle in McDows pocket when he was detained at the border (4 AR 8505) There were

165 tablets of Tenuate or Diethylpropion in McDows 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 85923-25)

McDow testified that he knew that SOMA required a prescription at the time he was at the

border (4 AR 83213-83314) McDow testified that he became worried the pills he was

carrying could have been ecstasy (4 AR 86113-20)

When McDow arrived at the US border inspection area he was greeted by a uniformed

border officer at the drivers 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 wasnt 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 1 0-279 17) The Administrative Investigation

determined that the San Luis Obispo Police Department Communications Technician who

answered the call from Hovore confirmed that McDows 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

2 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 85515-85715)

RESPONDENTS OPPOSITION TO PETITION FOR WRlT OF ADMINISTRATIVE MANDATE

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situation he was in was a massive case of ignorance (1 AR 75) Tapia further heard McDow

say to his girlfriend Im going to jail and it all goes down from here (2 AR 27720-22)

Tapia noticed text messages on Limons 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 hasnt been responding so I just wanted to be sure

thx (1 AR 15)

The pills seized from the bottle in McDows pocket were analyzed by a laboratory and

they ultimately were detennined to be 165 tablets of Diethylpropion (Tenuate) and 34 tablets of

Methylphenidate HCI (Ritalin) (1 AR 22) McDow failed to declare medications that he was

bringing from Mexico (1 AR 6) The medication seized from McDow was hidden among

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

162009 (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)

B The Discipline

When McDow and Limon arrived at Limons 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 McDows 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

RESPONDENTS OPPOSITION TO PETITION FOR WRIT OF ADMINISTRA TIVE MANDATE

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

McDows 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

USC 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

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 Citys 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 Lindens review ofthe Internal

Investigation McDow was served with a Notice ofIntent to Administer Disciplinary Action and

Right to Respond dated July 22010 (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) McDows 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


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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

enforcement community (1 AR 6)

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 81423shy

8154) McDow testified that police officers shouldnt get convicted for federal misdemeanors

of any kind (4 AR 8157-10) 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 8125-12)

III DISCUSSION

A The Findings that McDow Violated Both the Departments 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 Ca13d 28 32 Bixby v Pierno (1971) 4 Cal3d 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


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

305313 (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 ofcorrectnes

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 805817) Thus although

the Court employs independent judgment in reviewing the Citys finding that McDow engaged

in serious misconduct nonetheless McDow bears the burden of establishing an abuse of

discretion

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 IVLL of the Department Rules and

Regulations conduct detrimental to the Department and Section 236380A - An official or

employee of the city shall not engage in conduct which would tend to discredit or dishonor

hislher position with the City (4 AR 925927938939) 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 IVLL of the Department Rules and Regulations and

Section 236380A 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 IVLL of the Department Rules and

Regulations and Section 236380A of the San Luis Obispo Municipal Code (McDow Brief


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bull 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 Departments

Rules and Regulations and the Municipal Code (4 AR 938939) 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 herein3 (4 AR 81423-81510)

Furthermore the City Councils 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

related to the SOMA and it is undisputed that he has a prescription for it (McDow Brief p

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 McDows possession of SOMA in the

disciplinary action (Barr v City ofSan Diego (1960) 182 CaLApp2d 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 13shy

833 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

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) McDows 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)


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1 attempted to take the SOMA pills across the border without a prescription and attempted to

2 conceal his conduct by failing to declare the SOMA pills (l AR 69 4 AR 83213-83314)

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3 The Substantial Evidence Supports the Finding That McDows Absence 4 From Duty on September 16 2009 Violated Department Rules and Regulations

6 McDow was charged with two separate violations of Department Rules and Regulations

7 stemming from his inability to report to duty on September 16 2009 because he was detained at

8 the border The Council found McDow violated Department Rules and Regulations Section

9 IVY - 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

11 absence from duty (1 AR 102 [emphasis added] 4 AR 938) Similarly the Council found

12 McDow violated Section VILC6 which states in part Causes for disciplinary action against

13 any employee may include but shall not be limited to unauthorized or inexcusable absence

14 without leave or unauthorized use of sick leave (l AR 82 4 AR 939)

Here the undisputed evidence demonstrates that McDow was scheduled to report for 16

duty but that the detention at the border was going to preclude him from reporting for duty (l17

AR 67 [McDow was scheduled to work a payback shift on September 16 2009 at 1100 18

hours] 4 AR 801 [When I spoke to Holly I asked her to let work know that Im not going to 19

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 80225-03 13 [I absolutely think the21

mental state of the situation and everything that just happened to me theres no way I could have22

23 possibly gone in to work So I actually think if had called in sick that still would have

24 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

26 detention was itself the direct consequence of his own misconduct Accordingly there is no

27 evidence to suggest that there was any other factor causing a condition that would have qualified

28 McDow for sick leave (2 AR 27918-24) Although McDow ultimately took a vacation day for


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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 eg 1 AR 47 49526770 75 76 2 AR 27916-17 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 McDows argument that [t]here is no competent

evidence that Hovore called in sick on McDows 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

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

was sick (McDow Brief pp 13-14) First ICE Special Agent Tapias 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 wasnt going to be in today that he was going to be sick]) Given the

direct admissible evidence ofICE Special Agent Tapias testimony the City Council clearly

could consider statements made in the Administrative Investigative Report that buttress the

Agents 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 236350E5] 1

AR 471 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 48497576 2 AR 27916-17 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 29213-29417]) Simply put- there was no

improper direction from the City prosecutor and ICE Special Agent Tapias testimony is both

admissible and credible to support the charged violation


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

The City Council also found that McDow violated Section VIIC1 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

Council found by the weight of the evidence that McDow had engaged in conduct unbecoming

of an officer and did not report to duty without prior authorization this violation is also

supported by substantial evidence

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 Reviewmiddot

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 4453) 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 reasonable 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)

IIII

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bull 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 CalAppAth 464 471 Hankla v Long Beach Civil Service Commission (1995) 34

CalAppAth 1216 County ofSanta Clara v Willis (1986) 179 CalApp3d 1240 Talmo v Civil

Service Commision ofLos Angeles County (1991) 231 CalApp3d 210 and Ackerman v State

Personnel Board(1983) 145 CalApp3d 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

cases cited (McDow Brief pp 11-13) 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 ofdiscretion

occurred in the context of public employee discipline the overriding consideration is the extent

to which the employees 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 Ca13d 194218]) McDow argues

that there is no evidence of harm to public service and there is no evidence of the likelihood of


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bull r~currence because there is no evidence that McDows 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 CalApp3d 6266 upheld th

police chiefs 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 CalApp4th 1342 1357 upheld the termination of a police officer who

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 CaLApp3d 494 502 articulated the rationale behind a termination of

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 persons

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 McDows

lapse of good judgment is likely to happen again As McDow explains Its 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

McDows exercise of poor judgment began with deciding to go to Mexico McDow was

scheduled to report for duty on September 162009 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 Limons residence between 0700-0800


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bull hours and crossed the border at 1300 hours on September 152009 (1 AR 67) Taking a

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 Limons 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 publics 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 iftheres 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 7738-9 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 83213-83314) 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 77216-25) 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 its a

brick-and-mortar store doesnt mean I still couldnt 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


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bull McDows lack of good judgment did not end with the pharmacy trip When the border

2 patrol agent asked if McDow had anything to declare McDow responded no (1 AR 69)

3 McDow responded no because he claims that he only had to declare agricultural products and

4 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

6 knowing that he purchased SOMA that it requires a prescription and the advice from the

7 pharmacist that taking the pills across the border is okay unless it requires a prescription (1

8 AR 64 68 4 AR 83213-83314) He also said no knowing Limon had his off duty weapon

9 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

11 that his traveling companion already had made questionable decisions on this trip such as

12 bringing his off duty weapon with him to Mexico instead of asking Limon whether he had

13 purchased any pharmaceuticals that would need to be declared McDow took a course of action

14 in which he could assert ignorance and deniability (4 AR 85911-8609) Such conduct

demonstrates willful ignorance at best and willful concealment and evasion at worst and in

16 either situation demlt=mstrates poor judgment

17 Furthermore even after the detention McDow did not appreciate the seriousness of his

18 lack ofjudgment and testified that on the drive back from the border he and Limon talked about

19 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 20shy

21 822 1) Even during the administrative hearing McDow attempted to diminish the gravity of his

22 error in judgment testifying that [pleading guilty to a federal misdemeanor] was more of a

23 small incident that can happen to anybody I dont know that thats necessarily a negative light

24 to be presented (4 AR 81415-22)

In sum McDows misconduct was the result of repeated decisions that demonstrated a

26 lack of good judgment which McDow portrays as a case of bad luck rather than a direct result

27 of his poor decisions (See eg 4 AR 812 11-12 [But I tarnish myself by allowing this to

28 happen] [emphasis added] 813 14-15 [This is a one in quadrillion possibility that it would


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happen in the first place]) The repeated exercise of poor judgment is what harms public

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 publics 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 81217-19) He admits that police officers should not

plead guilty to any federal misdemeanor (4 AR 81423-81510) Police officers who engage in

serious misconduct and plead to federal misdemeanors simply do not meet the higher standard

for police officers (See eg 4 AR 80 I 15-21 [McDow complaining people refelTing to him as

ex-cop during detention] 80225 [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 Councils termination of McDow represents a sound exercise of

discretion in the interest of the public not an abuse of discretion

IV CONCLUSION

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 102014

Attorneys for Respondent City ofSan Luis Obispo


17

bull 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)


on the interested parties as follows

Michael A Morguess Attorneys for Dan McDow Law Office of Michael A Morguess 1440 N Harbor Blvd Ste 900 Fullerton CA 92835

[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 businesss 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 laYs ofthe State of California that the foregoing is true and correct Executed on February amp 2014 at San L$O California

~ ~amp Claudia Prows

TABLE OF CONTENTS

I INTRODUCTION

II STATEMENT OF FACTS 2

A The Border Detention 3

B The Discipline 5

III DISCUSSION 7

A The Findings that McDow Violated Both the 7 Departments Rules and Regulations and the San Luis Obispo Municipal Code Are Supported by Substantial Evidence


2 McDow Does Not Dispute That He Engaged In 8 Conduct Unbecoming An Officer

3 The Substantial Evidence Supports the Finding That 10 McDows Absence From Duty on September 16 2009 Violated Department Rules and Regulations

4 The Violations Committed by McDow Amount to 12 Serious Misconduct Warranting Discipline

B Termination of an Officer Who Engaged in Serious 12 Misconduct and Pled to a Federal Misdemeanor Does Not Constitute an Abuse of Discretion


2 Termination Was Appropriate Because the Weight 13 of the Evidence Supported Findings That There Was Harm to the Public Service and the Likelihood of Recurrence

17IV CONCLUSION

RESPONDENTS OPPOSITION TO PETITION FOR WRIT OF ADMIN ISTRA TIVE MANDATE


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misdemeanor






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IV CONCLUSION







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IV CONCLUSION







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16

17

18

19

21

22

23

24

26

27

28



























3

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28




























4

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28






thx (1 AR 15)











B The Discipline












5

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























6

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28


















III DISCUSSION









7

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28









discretion




















8

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

























9

5

10

15

20

25



3

























10

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28




AR 801)














AR 471 AR 75-76)











11

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























IIII

IIII


12

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























13

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























misdemeanor






14

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























before])

IIII


15

5

10

15

20

25






























16

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17















5

10

15

20

25



























27 IIII 28


2

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























3

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28




























4

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28






thx (1 AR 15)











B The Discipline












5

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























6

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28


















III DISCUSSION









7

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28









discretion




















8

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

























9

5

10

15

20

25



3

























10

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28




AR 801)














AR 471 AR 75-76)











11

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























IIII

IIII


12

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























13

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























misdemeanor






14

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























before])

IIII


15

5

10

15

20

25






























16

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17















5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























3

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28




























4

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28






thx (1 AR 15)











B The Discipline












5

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























6

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28


















III DISCUSSION









7

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28









discretion




















8

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

























9

5

10

15

20

25



3

























10

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28




AR 801)














AR 471 AR 75-76)











11

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























IIII

IIII


12

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























13

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























misdemeanor






14

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























before])

IIII


15

5

10

15

20

25






























16

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17















5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28




























4

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28






thx (1 AR 15)











B The Discipline












5

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























6

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28


















III DISCUSSION









7

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28









discretion




















8

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

























9

5

10

15

20

25



3

























10

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28




AR 801)














AR 471 AR 75-76)











11

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























IIII

IIII


12

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























13

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























misdemeanor






14

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























before])

IIII


15

5

10

15

20

25






























16

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17















5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28






thx (1 AR 15)











B The Discipline












5

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























6

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28


















III DISCUSSION









7

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28









discretion




















8

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

























9

5

10

15

20

25



3

























10

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28




AR 801)














AR 471 AR 75-76)











11

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























IIII

IIII


12

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























13

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























misdemeanor






14

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























before])

IIII


15

5

10

15

20

25






























16

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17















5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























6

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28


















III DISCUSSION









7

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28









discretion




















8

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

























9

5

10

15

20

25



3

























10

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28




AR 801)














AR 471 AR 75-76)











11

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























IIII

IIII


12

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























13

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























misdemeanor






14

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























before])

IIII


15

5

10

15

20

25






























16

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17















5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28


















III DISCUSSION









7

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28









discretion




















8

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

























9

5

10

15

20

25



3

























10

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28




AR 801)














AR 471 AR 75-76)











11

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























IIII

IIII


12

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























13

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























misdemeanor






14

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























before])

IIII


15

5

10

15

20

25






























16

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17















5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28









discretion




















8

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

























9

5

10

15

20

25



3

























10

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28




AR 801)














AR 471 AR 75-76)











11

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























IIII

IIII


12

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























13

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























misdemeanor






14

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























before])

IIII


15

5

10

15

20

25






























16

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17















5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

























9

5

10

15

20

25



3

























10

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28




AR 801)














AR 471 AR 75-76)











11

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























IIII

IIII


12

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























13

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























misdemeanor






14

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























before])

IIII


15

5

10

15

20

25






























16

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17















5

10

15

20

25



3

























10

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28




AR 801)














AR 471 AR 75-76)











11

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























IIII

IIII


12

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























13

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























misdemeanor






14

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























before])

IIII


15

5

10

15

20

25






























16

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17















5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28




AR 801)














AR 471 AR 75-76)











11

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























IIII

IIII


12

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























13

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























misdemeanor






14

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























before])

IIII


15

5

10

15

20

25






























16

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17















5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























IIII

IIII


12

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























13

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























misdemeanor






14

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























before])

IIII


15

5

10

15

20

25






























16

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17















5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28





























13

5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























misdemeanor






14

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























before])

IIII


15

5

10

15

20

25






























16

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17















5

10

15

20

25

1

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28
























misdemeanor






14

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























before])

IIII


15

5

10

15

20

25






























16

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17















5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28



























before])

IIII


15

5

10

15

20

25






























16

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17















5

10

15

20

25






























16

5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17















5

10

15

20

25

2

3

4

6

7

8

9

11

12

13

14

16

17

18

19

21

22

23

24

26

27

28

















IV CONCLUSION







17





























Documents

Legal filing in case between city of SLO, ex-police officer