Bollinger V. San Diego Civil Service Commission Cal.App. 4th, 1999 DAR 3710 (April 20, 1999)

* Plaintiff's Attorney: Everett L. Bobbitt

* Jurisdiction: City of San Diego *Trial Court Decision: In favor of officer

* Court of Appeal Decision: In favor of Civil Service Commission

* Primary Legal Issues: Brown Act and procedural due process

Bollinger Facts

* The department demoted Bollinger due to misconduct.

* A hearing on Bollinger's demotion was held before one of the Civil Service Commission commissioners.

* The commissioner issued a 22-page written proposed decision.

* Bollinger did not receive a copy of the commissioner's proposed decision.

* Bollinger was informed orally that the decision was on the Commission's agenda.

* The Commission adopted the commissioner's proposed decision.

* Bollinger objected he had not been given an opportunity to respond to the commissioner's proposed decision; the Commission rejected this argument.

* Only after the Commission had taken its action was Bollinger given a copy of the commissioner's decision.

Bollinger Analysis

Issue No. 1: Was Bollinger entitled to 24-hour written notice of his right to have an open meeting?

Answer: No.

* The Brown Act at Government Code section 54957 provides for a personnel exception to the Brown Act's general requirement of open meetings.

* The second sentence of section 54957 requires that, in the case of a closed session on "specific complaints or charges", 24-hour advance written notice must be given to an employee of the employee's right to have an open meeting before a public agency can lawfully hold a closed meeting.

* The appellate court interpreted the second sentence of section 54957 not to apply to a public agency when the agency is not hearing charges against an employee but is only deciding, presumably after a hearing, whether to adopt the proposed decision.

* Since the San Diego Civil Service Commission was only deciding whether to adopt a proposed decision, the second sentence of section 54957 did not apply, and the commission could lawfully hold a closed session, even though it had not given Bollinger prior written notice. Issue No. 2: Even if the Commission could lawfully conduct a closed hearing, was Bollinger entitled to respond to the commissioner's decision before the Commission went into closed session?

Answer: No.

* The due process provisions of the state and federal constitutions require that a public employee be permitted to present his or her side of a controversy to an impartial and non-involved reviewer.

* Bollinger contended that he had a due process right to address the Commission concerning the commissioner's proposed decision.

* The appellate court was sympathetic to his contention: Where an administrative agency relegates the evidentiary hearing to one or more of its members, we observe the better practice would be to give the employee the opportunity to respond orally or in writing to the factual findings and recommendation before a final decision is made. A hearing officer's report may contain critical inaccuracies and the employee's ability to address them would benefit everyone and result in a fairer process. * The appellate court, however, based upon prior precedents interpreting the due process clause, the Administrative Procedure Act, and the Civil Service Act, felt itself "constrained" to reject Bollinger's contention.

* In summary, all the due process that Bollinger is entitled to receive is to argue his case to the hearing officer and thereafter to a court on a petition for writ of administrative mandate; he does not possess a due process right to argue his case to the administrative agency itself.