In November 2006, Cathedral City, California Police Officer Thomas Ferguson was arrested during a videotaped sting operation conducted in the City of Ontario after Ferguson agreed to pay an undercover police officer $40 for oral sex. Ferguson exited the I–10 freeway in Ontario and parked near a woman he had seen standing on the street. An undercover officer was posing as a prostitute. Ferguson motioned to the officer and she approached his car. Ferguson asked the officer if she was a cop. The officer said she was a “working girl” who charged $40 for a “blow job” and $80 for sex. Ferguson said, “I’ll take the $40 blow job.” The officer directed Ferguson to meet her down the street. A uniformed police officer stopped Ferguson and arrested him for solicitation for prostitution.
In December 2006, the Department served Ferguson with a notice of intent to discharge him. At a hearing, Ferguson and the City reached a separation agreement and general release of claims by which Ferguson agreed to serve a 160-hour suspension for “conduct unbecoming a police officer” and to waive his right to assert an administrative appeal in exchange for the City agreeing to rescind his discharge. The separation agreement included a provision that, if Ferguson was convicted at trial or by a plea of guilty or nolo contendre for violating certain penal code sections, or any offense limiting his ability to possess a firearm, he agreed he would resign and not seek reemployment. Further, Ferguson agreed that “if criminal charges are filed in connection with his arrest by the Ontario Police Department, he shall take all reasonable steps to bring the criminal proceedings to an expeditious conclusion.”
Ferguson served his 160-day suspension and returned to work. On June 23, 2007, Ferguson’s lawyer wrote a letter to the Police Chief, stating: “It has come to our attention that on more than one occasion management personnel from the Cathedral City Police Department has been in contact with the San Bernardino District Attorney’s office. This certainly gives the appearance that there was and has been an attempt to influence the DA’s decision as to how the office would prosecute this case, if at all. Due to the Department’s efforts to undermine Ferguson’s agreement he now considers the agreement, including the condition that he resign in the event he is convicted of or pleads guilty to any related offense, null and void.”
The Department responded by sending a letter to Ferguson’s lawyer stating: “The City accepts your repudiation of the Agreement and a notice of intent to terminate is being served on your client. Since the Department is not bound by the Agreement it is free to decide that a suspension was not adequate.”
After a hearing, the City decided to terminate Ferguson. Armed with a different lawyer from the same law firm, Ferguson challenged his discharge in the California Court of Appeals. The Court found little sympathy for Ferguson’s position, though, and upheld his discharge.
The Court held that “the record establishes substantial evidence that Ferguson repudiated the separation agreement. In exchange for the City rescinding his discharge, Ferguson had agreed to forego an administrative appeal, to serve a 160-day suspension, to expedite the criminal proceedings against him, and to resign if he was found guilty by conviction or plea of the enumerated offenses. In June 2007, Ferguson had served his suspension but his criminal case was still ongoing (and not finally resolved until March 2008.) In Ferguson’s lawyer’s letter of June 23, 2007, the lawyer unambiguously stated the separation agreement was ‘null and void,’ meaning Ferguson no longer agreed to take reasonable steps to expedite his case nor would he resign if he was found guilty. Even if the lawyer’s statement was based on Ferguson’s misinterpretation of the City’s actions, the language used in the letter was an unequivocal repudiation of the separation agreement.
“According to the legal principles which govern anticipatory repudiation, once Ferguson committed his anticipatory breach on June 23, 2007, the City could then elect its remedies, which in this instance meant the reinstatement of Ferguson’s discharge. The City was no longer bound by the separation agreement and was excused from further performance.”
Ferguson v. City of Cathedral City, 2011 WL 2582134 (Cal. App. 4 Dist. 2011).
This article appears in the September 2011 issue