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Petition for Review

Petition for Review


Agency appeal of Hearing Officer’s reversal of its dismissal of appellant on several charges and substitution thereof with suspensions is moot, since the Hearing Officer affirmed the agency’s dismissal of him on another charge, and it can only discharge him once. In re Keller, CSB 47-14A, 7 (6/20/19).

Hearing officer’s findings and conclusions that are not clearly erroneous will not be overturned by the
CSB. In re Gerovic, CSB 77-17A, 3 (6/20/19).

Appellant’s claim that the Hearing Officer gave insufficient weight to a witness’s testimony does not render the Officer’s findings and conclusions clearly erroneous. In re Gerovic, CSB 77-17A, 2 (6/20/19).

A Hearing Officer’s decision is clearly erroneous if the record lacked factual support for his findings. In re Gerovic, CSB 77-17A, 2 (6/20/19).

Hearing Officer’s alleged misinterpretation of matrix language regarding aggravated penalties is immaterial where the Hearing Officer did not issue any aggravated penalty. In re Hammernik & Trujillo, CSB 41-17A & 42-17A, 5 (2/7/19).

Hearing Officer adequately considered the agency’s assignment of a probationary deputy to a special management unit, in violation of agency policy, by using it to mitigate the deputy’s 18-day suspension to a Written Reprimand. In re Hammernik & Trujillo, CSB 41-17A & 42-17A, 5 (2/7/19).

Hearing Officer did not err does by not absolving deputies of their use of force violation because it had not trained them on managing inmates who prevented the deputies from closing their cell door flaps. In re Hammernik & Trujillo, CSB 41-17A & 42-17A, 5 (2/7/19). 

Hearing officer was not clearly erroneous in finding deputies could have retreated instead of using force on inmate’s arms though cell door flap where deputies used excessive force on a confined inmate which caused injury to inmate, in violation of policy and put agency at financial risk. In re Hammernik & Trujillo, CSB 41-17A & 42-17A, 4 (2/7/19). 

To overturn a hearing officer’s decision based on insufficient evidence, the CSB must find that the decision was “clearly erroneous.” In re Colquitt, CSB 34-15A, 4 (1/4/18), citing In re Redacted, CSA 56-11, 3 (12/20/12).

 

 A factual finding is clearly erroneous when it is unsupported by substantial evidence in the record as a whole; that is, where the factual finding has no support in the record. In re Colquitt, CSB 34-15A, 4 (1/4/18), citing In re Purdy, CSB 67-11A (4/4/13).

The CSB overturns factual findings only if they are clearly erroneous and does not re-weigh the evidence or make a de novo determination of the facts found by the hearing officer. In re Colquitt, CSB 34-15A, 4 (1/4/18), citing In re Koonce, CSB 36-13A, 2-3 (10/16/14).

A decision that is based on evidence in the record is not clearly erroneous, and will not be disturbed on review by the CSB. In re Colquitt, CSB 34-15A, 4 (1/4/18), citing In re Redacted, CSB 57-11A, 2 (12/20/12).

Appellant is prohibited from raising a discrimination claim for the first time on appeal. In re Rodriguez, CSB 60-17A, 4 (9/20/2018).

Pursuant to CSR 19-61D [now 21-21D], the Hearing Officer’s decision is not clearly erroneous where the record contains substantial evidence supporting the decision. In re Tamburino,, CSB 40-17A, 2-3 (5/16/19).

The CSB does not assess credibility, re-weigh evidence, or resolve conflicts in the evidence, all of which lie squarely in the province of the Hearing Officer. In re Tamburino,, CSB 40-17A, 3 (5/16/19).

CSR 19-61(D) [now 21-21D] empowers the CSB to overturn a hearing officer’s decision that is not supported by record evidence, i.e. when the factual findings are clearly erroneous. In re Tamburino,, CSB 40-17A, 2 (5/16/19).

Evidence was sufficient to support finding that appellant did not commit deceptive act where eye witness testified two others took bullets from impounded car when appellant was not present, and second witness affirmed the first eye witness. In re Tamburino,, CSB 40-17A, 3 (5/16/19).

Intent of an employee can be inferred from the employee’s actions and from the circumstances. In re Fazio, CSB 14-18A, 4 (4/17/19).

Circumstances that appellant argued were exigent, which had occurred before the misconduct and were for the most part resolved, did not excuse appellant’s misconduct. In re Fazio, CSB 14-18A, 4 (4/17/19).

Mitigation of appellant’s discipline balanced both parties’ failures to abide by the regulations, the agency through its improper assignment of a probationary deputy with the deputy’s failure to make the required rounds in the detention facility. In re Fazio, CSB 14-18A, 4 (4/17/19).

Appellant waived his spoliation argument because he did not raise it before the hearing officer, but he also failed to show the missing evidence was relevant. In re Fazio, CSB 14-18A, 5 (4/17/19).

CSR 20-56(B)(1)(a)’s prohibition on a hearing officer’s substitution of his judgment for that of the Executive Director of Safety does not mean that a hearing officer cannot change the discipline, as it and CSR 20-59 authorize. In re Fazio, CSB 14-18A, 6 (4/17/19).

Hearing officer’s finding that the agency’s penalty was clearly erroneous and not an alternative available to a reasonable and prudent administrator, with support in the record, was not a misinterpretation of CSR 20-56. In re Fazio, CSB 14-18A, 6 (4/17/19).

Hearing Officer properly considered the agency’s failure to follow its own rules in finding its discipline clearly erroneous pursuant to CSR 20-56(B)(1)(c)(ii), and in partly mitigating appellant’s misconduct, who the agency improperly assigned to where he should not have been assigned. In re Fazio, CSB 14-18A, 6-7 (4/17/19).

The agency’s acknowledgment that it believed it was entitled to and justified in violating its own rules with its improper assignment of appellant is distinct from factoring into its determination of discipline the fact that, but for its violation, appellant would not have been in the situation from which his discipline arose. In re Fazio, CSB 14-18A, 8 (4/17/19). 

Hearing Officers are not expected to reference every bit of testimony and every exhibit admitted into evidence and explain why each piece of evidence was or was not important and explain why he or she treated the evidence in a particular manner. In re Simons, CSB 71-16A, n.5 (1/18/18).

It is sufficient for purposes of the CSB’s review of a Hearing Officer’s decision that it is supported by record evidence and offers sufficient justification to the parties and the CSB why the Hearing Officer ruled a particular way. In re Simons, CSB 71-16A, n.5 (1/18/18).

Hearing Officer did not commit error in finding inmate credible despite a claimed discrepancy in that testimony where Hearing Officer relied on the testimony of the inmate and other witnesses for that conclusion. In re Simons, CSB 71-16A, 4 (1/18/18).

CSB lacks authority to issue remedies based on equity alone. In re Bohner, CSB 13-17A, n.7 (1/18/18). 

Hearing Officer lacks authority to refer any matter to the Department of Labor on behalf of the City. In re Bohner, CSB 13-17A, n.8 (1/18/18).

Hearing Officer lacks authority to require the City to seek guidance from the Department of Labor on a classification issue. In re Bohner, CSB 13-17A, n.8 (1/18/18).

Different standards of review apply to the agency decision-maker, the Hearing Officer and the CSB. The decision-maker is tasked with determining whether a deputy sheriff has violated DCSR or DSD rules by a preponderance of the evidence. The Hearing Officer reviews the decision-maker’s penalty decision with substantial deference, particularly with respect to a deputy sheriff.  The CSB may reverse the Hearing Officer for insufficiency of evidence only for a factual finding that has no support in the record; however, the CSB reviews conclusions of law and mixed questions of fact and law de novo.  In re Leyba, DDC 31-16A, 4 (11/15/17).

CSB may increase the penalty assessed against an appellant if it finds a deputy gamed the system by falsely accepting responsibility or claiming contrition for misconduct to obtain a mitigated penalty, only to disavow any wrongdoing at hearing. In re Williams, CSB 52-16A, 3 (6/15/17), citing In re Espinoza, CSB 42-15A (7/21/16).

In determining the nature and extent of discipline, Hearing Officers must focus on the employee’s own conduct. In re Webster, CSB 03-11A, 5 (4/14/12). 

19-61 (D)


The Board may reverse a Hearing Officer’s decision only if it is not supported by the evidence in the record and is clearly erroneous. In re Webster, CSB 03-11A, 3 (4/14/12).  

Hearing Officers are charged with judging the credibility of witnesses and deciding the weight assigned to testimony and other evidence. In re Webster, CSB 03-11A, 3 (4/14/12). 

Decision was not clearly erroneous where witnesses who appellant claimed were not made available by the agency, were known to appellant and he failed to subpoena them. In re Webster, CSB 03-11A, 4 (4/14/12). 

Where video evidence was clear and unambiguous, what non-appearing witnesses may have claimed to see is insufficient basis to reverse Hearing Officer’s conclusions. In re Webster, CSB 03-11A, 4 (4/14/12).

CSB may reject argument for reduction in penalty based upon discipline in unrelated cases and which is not cogent in relating them to the present case. In re Webster, CSB 03-11A, 5 (4/14/12).

GROUNDS FOR 

The grounds to overturn a Hearing Officer’s decision are limited to: (1) new evidence; (2) erroneous interpretation of applicable authority; (3) policy-setting precedent; (4) insufficient evidence; and (5) lack of jurisdiction. In re Gustin, CSB 02-17A, 1-2 (6/7/18).

Hearing Officer’s discovery and evidentiary rulings are within her/his discretion. In re Gustin, CSB 02-17A, 2 (6/7/18).

Hearing Officer did not commit error where his findings and conclusions were well-supported by the record. In re Gustin, CSB 02-17A, 2-3 (6/7/18).

Hearing Officer did not misinterpret DSD use of force policy where, once deputy stepped back from inmate who was trying to grab him through door flap, deputy was no longer under attack and instead became the aggressor when he re-approached inmate and used his Taser. In re Nguyen, CSB 19-17A, 2 (1/18/18).

Hearing Officer did not misinterpret DSD’s use of force policy in finding deputy’s use of Taser on an inmate through the door flap to secure the flap was unreasonable, where deputy had numerous less-forceful options available. In re Nguyen, CSB 19-17A, 2 (1/18/18).

Deputy’s claim that Hearing Officer’s finding - that deputy’s use of a Taser was unreasonable under DSD policy – sets “bad precedent” that will encourage inmates to refuse to follow orders was unsupported speculation where deputy presented no evidence of such disobedience. In re Nguyen, CSB 19-17A, 4 (1/18/18).

Deputy’s claim was frivolous, that Hearing Officer’s finding that she failed to complete ten of twenty-four required rounds was erroneous, where she admitted her failure to complete rounds in her pre-disciplinary meeting and did not dispute evidence at hearing supporting this finding. In re Barra, CSB 01-16A, 2 (8/3/17).

Hearing Officer’s findings are not clearly erroneous just because there may have been conflicting evidence in the record. In re Rocha, CSB 19-16A, 2 (7/6/17).

Hearing Officer’s modification of penalty from sixteen to ten-day suspension was consistent with principles of progressive discipline where agency’s discipline was overly punitive and lesser punishment was sufficient to ensure future compliance. In re Rocha, CSB 19-16A, 6 (7/6/17).

Hearing Officer did not discourage remedial measures  with conclusion that prisoner posed no threat justifying being handcuffed, where record evidence supported finding, and only action discouraged was to handcuff a prisoner in violation of agency rules. In re Rocha, CSB 19-16A, 5 (7/6/17).

Failure of two division chiefs to attend deputy’s pre-disciplinary meeting in violation of its internal procedures did not violate deputy’s right to fair hearing or otherwise cause reversible prejudice. In re Rocha, CSB 19-16A, 5 (7/6/17).

Agency failure to follow its internal polices do not concern Hearing Officer review, in the absence of showing violation of employee’s right to fair hearing, or other prejudice. In re Rocha, CSB 19-16A, 5 (7/6/17).

Hearing Officer did not err in dismissing charge of neglect or carelessness in performance of duty, where agency provided no notice in any charging document of its allegation that appellant failed to treat prisoner with dignity and respect. Such lack of notice violates basic tenets of due process, requiring dismissal of the charge. In re Rocha, CSB 19-16A, 5 (7/6/17).

In re Mounjim was not implicated in Hearing Officer’s dismissal of 16-60A [now 16-28A] charge, where agency failed to put appellant on notice of the basis for the charge before hearing. In re Rocha, CSB 19-16A, 5 (7/6/17).

It would be bad policy to prohibit aggravation of penalty for mistreatment of inmate for mere possibility of lawsuit, since every instance of mistreatment would then warrant imposition of aggravated penalty. In re Rocha, CSB 19-16A, 7 (7/6/17).

Hearing Officer did not err in reducing penalty from maximum aggravated sixteen-day suspension to presumptive ten-day suspension, where agency dismissed lack of candor charge before hearing, yet claimed it as basis to aggravate penalty. In re Rocha, CSB 19-16A, 7 (7/6/17).

No abuse of discretion for Hearing Officer to affirm unmitigated ten-day suspension where agency and Hearing Officer’s justification were reasonable, supported by the record and were not otherwise improper. In re Romero, CSB 28-16A, 2 (6/15/17).

No improper precedent by Hearing Officer affirming ten-day suspension which was based on the unique facts of the case and an individualized application of the principles in the Matrix. In re Romero, CSB 28-16A, 2-3 (6/15/17).

Ten-day suspension was within range of alternatives available to a reasonable administrator, where prior discipline cited by appellant was too lenient and the record reflected sufficient, reasonable, and articulated justification for ten-day suspension. In re Romero, CSB 28-16A, 2 (6/15/17), citing In re Lovingier, CSB 48-14A, n.5 (11/7/14).

Ten-day suspension did not set improper precedent where Hearing Officer’s decision was based on the unique facts of this case and an individualized application of the principles embodied in the agency’s disciplinary matrix. In re Romero, CSB 28-16A, 2-3 (6/15/17).

CSB affirms Hearing Officer’s decision where the parties’ petition and cross-petition for review both border on frivolous. In re Williams, CSB 52-16A, 2 (6/15/17).

Hearing Officer’s decision was supported by the evidence and did not involve erroneous rules interpretation where appellant admitted he entered incorrect information into inmate’s record, causing inmate to remain jailed for 18 days after his release date, and that error violated the alleged rules. In re Williams, CSB 52-16A, 2 (6/15/17).

That other deputies had an opportunity to catch appellant-deputy’s release error was immaterial to his misconduct. In re Williams, CSB 52-16A, 2 (6/15/17).

That someone could have corrected appellant-deputy’s mistake is not proof he did not make the mistake and does not absolve him from the consequences of his misconduct. In re Williams, CSB 52-16A, 2 (6/15/17).

Appellant showed no erroneous rules interpretation where his brief failed to mention a single rule he claimed Hearing Officer misinterpreted. In re Williams, CSB 52-16A, 2 (6/15/17).

Further reduction of deputy’s five-day suspension would be poor policy, as it would deprecate the seriousness of his mistake that cost inmate 18 days of freedom. In re Williams, CSB 52-16A, 2-3 (6/15/17).

Deputy did not attempt to game system to obtain mitigated penalty where his claims were consistent both before and after discipline was imposed, and no evidence suggested he duped or misled the Agency. In re Williams, CSB 52-16A, 3 (6/15/17).

Deputy did not attempt to game system to obtain mitigated penalty where he admitted, throughout the investigation and appeal, that he made an error but claimed others should have caught it. In re Williams, CSB 52-16A, 3 (6/15/17).

Deputy did not attempt to game system to obtain mitigated penalty where decision-maker was aware, when imposing a mitigated penalty on him, that he claimed he should not be responsible for keeping inmate beyond release date because others should have caught his error. In re Williams, CSB 52-16A, 3 (6/15/17).

Erroneous interpretation of CSRs not established where Hearing Officer merely applied findings to CSRs. In re Fuller, CSB 46-16A, 1-2 (3/16/17).

Hearing Officer is not required to credit appellant’s testimony or accept as true and reasonable his beliefs, especially when those beliefs are called into question by other evidence. In re Fuller, CSB 46-16A, 2 (3/16/17).

Appellant’s personal beliefs and statements, regardless whether they are genuine or credible, do not dictate the outcome of hearings. In re Fuller, CSB 46-16A, 2 (3/16/17).

Appellant did not have a legitimate purpose for shoving inmate in the back where inmate was walking away from appellant and appellant had to follow inmate in order to shove him. In re Fuller, CSB 46-16A, 2 (3/16/17).

Hearing Officer has the obligation of judging the propriety of appellant’s conduct. In re Fuller, CSB 46-16A, 2 (3/16/17).

Absence of analysis of evidence of particular witnesses does not demonstrate that Hearing Officer ignored the testimony, only that she was not persuaded by it. In re Fuller, CSB 46-16A, 3 (3/16/17).

Sufficient evidence in record supported findings that deputy observed, but failed to respond to inmate-conducted pat-searches, where video evidence showed him failing to react meaningfully, and showed inmate who collapsed in front of him was likely injured. In re Steckman, CSB 30-15A, 3 (1/19/17).

No negative policy implication resulted from Hearing Officer’s affirmation of deputy’s termination for failure to intervene in inmate-to-inmate pat searches conducted in front of him, which he claimed imposes an impossible standard on deputies to be aware of all conduct all the time, where actual burden is merely to look up once in a while and do something about wrongful, observed behavior. In re Steckman, CSB 30-15A, 3-4 (1/19/17).

A claim in petitioner’s brief which he did not state in the Petition for Review is not properly before the CSB. In re Webster, CSB 03-11A, 5-6 (4/14/12). 

A claim which does not materially impact the outcome or conduct of the hearing does not provide any basis to disturb the ruling of the Hearing Officer. In re Webster, CSB 03-11A, 5 (4/14/12).

Appellant’s claim that he did not timely receive his IAB file does not affect Hearing Officer’s decision where appellant did not argue any material prejudice from his late reception of the file and the record contained sufficient evidence to support the Hearing Officer’s findings. In re Webster, CSB 03-11A, 5 (4/14/12). 

Petitioner’s allegations did not constitute a claim under CSR 19-61A, new and material evidence, where he asserted the nonappearance of witnesses at hearing, but he failed to subpoena them or claim good cause for an extension of time to do so. In re Webster CSB 03-11A, 6 (4/14/12). 

Petitioner failed to state a claim under CSR 19-61B, erroneous rules interpretation, where he failed to identify a violation or erroneous interpretation of any rule. In re Webster, CSB 03-11A, 6 (4/14/12).

The constitutional requirements of criminal prosecutions have no applicability Career Service hearings. In re Webster, CSB 03-11, 4 (4/14/12).