Employer’s Decision To Voluntarily Reinstate Officer Ends Possibility Of Appeal

Alexei E. Sviridov, a police officer with the San Diego Police Department, was charged with child abuse based on his teenage daughter’s accusation that he struck her. A jury found Sviridov guilty of battery and he was placed on probation and fined. Sviridov appealed his conviction, and while his criminal appeal was pending, investigators for the Department asked Sviridov whether he had struck his daughter. Sviridov denied his daughter’s accusation. The Department then terminated Sviridov’s employment on the grounds he was dishonest when answering the investigators’ questions. Sviridov contested his termination in an administrative proceeding.

While Sviridov’s administrative appeal was pending, an appeals court reversed Sviridov’s criminal conviction. The Court found the jury should have been instructed with respect to a parent’s right to discipline a child. On remand, the city attorney who had prosecuted the criminal charges, decided not to retry Sviridov. Shortly thereafter, at a contested hearing in criminal court, Sviridov obtained an order finding he was factually innocent. The city attorney, who contested the innocence finding, did not seek review of the trial court’s order.

Before Sviridov’s administrative appeal could be heard on the merits, the City decided to rescind its termination of Sviridov, restore him to his position and pay him back pay and benefits. The City also offered to destroy Sviridov’s internal affairs file; he refused this aspect of the City’s offer. In light of the City’s decision to reinstate Sviridov, the City asked the board considering Sviridov’s administrative appeal to order Sviridov’s reinstatement without reaching the merits of Sviridov’s contention the City had not acted properly in terminating him. Over Sviridov’s objections, the board agreed with the City and ordered Sviridov’s reinstatement without reaching the merits of his contentions.

An appeals court rejected Sviridov’s attempts to keep the appeal open to obtain a declaration that he was factually innocent. The Court found that “nothing in the regulations expressly prevents the Civil Service Commission from terminating an employee’s appeal, when, as is the case here, circumstances have rendered the appeal moot. Moreover, the fact the City provides in its charter and municipal code an administrative forum and detailed administrative procedures for resolving employment disputes between City agencies and City employees does not give rise to any inference that where a dispute between a City agency and an employee no longer exists, the administrative forum, once engaged, must nonetheless act.

“Moreover, it is plain that in fact Sviridov’s claim is moot. The Civil Service Commission at most had the power to provide Sviridov with reinstatement, back pay and benefits, and no loss of the opportunity for future raises or advancement. Thus the City, by agreeing to provide Sviridov with everything the Commission was empowered to order, rendered Sviridov’s administrative appeal moot.”

Sviridov v. San Diego City Civil Service Com’n, 2010 WL 4720268 (Cal. App. 4 Dist. 2010).

This article appears in the March 2011 issue.