Bollinger v. San Diego Civil Service Com

In Bollinger v. San Diego Civil Service Com. (1999) 71 Cal.App.4th 568, a public employee was demoted for misconduct. He appealed and exercised his right to a noticed public evidentiary hearing. The hearing officer issued a written report after the evidentiary hearing, recommending that the demotion be affirmed. The report, however, was not provided to the employee. Nor was the employee given written notice that the civil service commission would meet in a closed session to consider whether to ratify the demotion. After the commission acted in the closed session, the employee received a copy of the hearing officer's report. The employee contended the Brown Act prohibited the commission from considering his demotion in a closed session. The Court of Appeal disagreed. The Bollinger court first noted that in section 54957 the Legislature used the verb "hear" in connection with "complaints or charges," but the verb "consider" in connection with "dismissal of a public employee." (Bollinger, supra, 71 Cal.App.4th at p. 574.) The Court of Appeal concluded the word choice was significant because the dictionary defines "to consider" as "to 'deliberate upon,' while to 'hear' is to 'listen to in an official ... capacity.' A 'hearing' is 'a proceeding of relative formality ... , generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented.'" (Ibid.)