Tuesday, August 2, 2011

Court of Appeal Upholds Police Officer's Termination Despite Settlement at Skelly Hearing

In Ferguson v. City of Cathedral City (2011, E051039) 2011 WL 2582134, the Fourth District Court of Appeal upheld the termination of a police officer even after he agreed to settle his discipline case for a 160-hour suspension.  The Court’s decision relied on a letter sent by the officer’s attorney declaring the settlement “null and void.”

A Southern California police officer was arrested and charged with soliciting a prostitute. At the officer's Skelly hearing the parties reached a separation agreement under which the officer would serve a 160-hour suspension and waive his right to appeal in exchange for the City rescinding his discharge.

The officer later heard the Department contacted the District Attorney’s office about his criminal case.  As a result, his lawyer sent a letter to the Department, which read in pertinent part, "[d]ue to the departments [sic] efforts to undermine [the officer’s] agreement he now considers the agreement ... null and void.” (emphasis added).  The City interpreted the letter as an unequivocal repudiation of the separation agreement, triggering anticipatory breach.  It then elected to to treat the agreement as void, proceeding with the discipline case and terminating the officer.  The Court upheld the termination, noting the agreement was void once the City’s chose to treat the repudiation as a breach.

While the decision upholds a severe penalty for the officer, the case has a limited impact on other officers as it does not appear the officer effectively withdrew his repudiation of the settlement agreement despite the opportunity to do so.  According the fact recitation in the appellate decision, the City appears to have waited more than two weeks to elect to treat the repudiation as a breach.  Likewise, the decision alludes to attempts by appellate counsel to characterize a letter sent two years after the "null and void" letter as a withdrawal of the repudiation.

While the Court rejected the officer’s “11th-hour argument” due to the lack of a record below, had the record been developed or had the officer withdrawn the repudiation before the City responded, the legal issue would be much different.  It is well established "that repudiation of a contract may be nullified by withdrawal of the repudiation before the injured party has changed his position in reliance thereon."  (Pichignau v. City of Paris (1968) 264 Cal.App.2d 138, 141.)  As a result, had the officer withdrawn the repudiation early enough in the process, perhaps even after learning of City's plan to terminate him, the outcome of the case would likely have turned on whether the City had relied on the repudiation to its detriment, a much more fact-intensive and individualized inquiry.