Demotion, Not Termination, Usually The Appropriate Punishment For Supervisory Failures

Shaun Sundahl worked for the Calexico, California Police Department as a sergeant. The City terminated Sundahl for three incidents: (1) Sundahl’s order that a subordinate officer use a taser to control a burglary suspect who was attempting to escape into Mexico by wading through a polluted river; (2) Sundahl’s handling of a high-tension confrontation with several citizens after police responded to a domestic violence call; and (3) Sundahl’s failure to report to his superiors that one of his subordinates had recorded a conversation with a fellow officer while discussing the fellow officer’s off-duty violation of traffic laws.

Sundahl appealed to Calexico’s Police Commission. After a lengthy hearing, which included the testimony of numerous witnesses, the Commission determined that although the Department had cause to discipline Sundahl, the appropriate level of discipline was demotion from Sundahl’s position as sergeant to the last nonsupervisory position that he held, not termination. The City challenged the Commission’s decision in the California Court of Appeals, arguing that termination was the only logical punishment for Sundahl’s offenses.

The Court upheld the Commission’s order of demotion. The Court noted that “the question before us is whether the Commission abused its discretion in determining that demotion was the appropriate penalty to impose on Sundahl. The Commission abused its discretion only if we determine that reasonable minds cannot differ on the propriety of the penalty of termination for Sundahl’s misconduct. As we will explain, we conclude that the Commission was within the bounds of reason to determine that demotion was the proper discipline, and therefore the Commission did not abuse its discretion.

“Here, the Commission concluded that Sundahl’s problems involved his performance as a supervisor, and that, accordingly, demotion from a supervisory position was sufficient to prevent the recurrence of such incidents, protect the public from the risk of injury and protect the City from the risk of incurring liability as a result of Sundahl’s conduct. The City criticizes the Commission’s decision because it believes that Sundahl’s mishandling of the three incidents did not arise from deficiencies limited to his supervisory skills. According to the City, Sundahl’s conduct shows his unfitness for any type of police work. As we will explain, we disagree. The Commission clearly explained the manner in which Sundahl’s mishandling of the three incidents related to his supervisory skills, and substantial evidence supports the Commission’s assessment of the facts.

“First, the Commission’s findings as to the first incident focused on Sundahl’s performance as a supervisor, concluding that he ‘failed to take control of the scene in a manner the City would reasonably expect its sergeants to do.’ The evidence supports that assessment. According to our review, Sundahl’s principal failures during the incident were to fail to gather information from officers about the identity of the suspect to determine whether obtaining an arrest warrant was a better option to employing the taser in a polluted river, and to fail to communicate his rescue plan to the other officers so that it could be put into action in case the suspect began to drown in the river. Neither of these failings demonstrate an overall unfitness for police work, but rather the lack of communication and organizational skills necessary to succeed as a supervisor.

“Sundahl’s mishandling of the second incident also arose from a lack of supervisory skills. Specifically, the Commission found that Sundahl did not ‘organize and direct his subordinates so that the safety of officers and citizens could be protected’ because he ‘failed to take charge of the scene, garner information, order release of Christian and order his officers to vacate the scene.’ Substantial evidence supports this view of the facts. Sundahl arrived on the scene of an already tense situation, with his role as a supervisor to take control to prevent the situation from escalating. The officer who conducted the internal affairs investigation for the Department testified that if Sundahl had used his supervisory position to take control from the time he arrived on the scene, the altercation could have been avoided.

“Finally, the Commission was within its discretion to view Sundahl’s handling of the tape recording incident as a lapse in his performance as a supervisor, criticizing ‘the manner in which Sundahl exercised his discretion as a supervisor’ in that incident. Importantly, the evidence showed that the officer disclosed the tape recording incident to Sundahl because Sundahl was his supervisor and he wanted his supervisor’s advice. Sundahl made the decision, as a supervisor, to handle the situation informally. Further, to the extent that Sundahl violated Department policy by failing to report either the officer’s possible violation of the law, the Commission reasonably could conclude that the misconduct was relatively trivial, and therefore Sundahl was not rendered unfit for employment as a police officer because he failed to report that misconduct.

“Based on the facts we have described above, we do not agree that the Commission was required to find Sundahl unfit for non-supervisory police work. As we have discussed, although Sundahl’s handling of the three incidents showed flawed judgment, the deficiencies primarily dealt with Sundahl’s strategic and organizational skills as a supervisor, not the fundamental skills needed for effective police work.”

City of Calexico v. Calexico Personnel Commission, 2013 WL 6044112 (Cal. App. 2013).