Jason Briley worked for the City of West Covina as a deputy fire marshal. As deputy fire marshal, Briley oversaw the operations of the Fire Prevention Bureau, which included checking building code plans for Fire Code compliance, inspecting existing buildings for compliance, and conducting fire investigations. Briley was initially supervised by Larry Whithorn, then the fire marshal and assistant fire chief.
In June 2014, Briley complained to the City’s HR director that Whithorn and other City officials had failed to address his reports of fire code violations and had allowed a building permit to issue for a development before the building plans had passed fire inspection. The City hired a private firm to investigate Briley’s allegations.
While the investigation was pending, Briley additionally complained that Whithorn and others had retaliated against him by canceling his scheduled overtime, moving him to a smaller office, and changing his take-home vehicle. In January 2015, the investigating firm delivered its findings to then-Assistant City Manager Chris Freeland, who also served as the acting HR director at the time. The firm concluded that Briley’s allegations were largely unfounded, and Freeland adopted these findings. Whithorn later testified that his working relationship with Briley had become “strained,” that Briley had undermined his authority by bringing “trumped up charges,” and that Briley had tried to intimidate him.
While the investigation of Briley’s allegations against City officials was still pending, Whithorn and others informed Freeland of multiple complaints against Briley involving allegations of misconduct and unprofessional behavior. A private investigator retained by Freeland concluded Briley had exhibited a pattern of unbecoming conduct, unprofessional behavior, and incompetence, and that he had been untruthful in denying the allegations against him.
Whithorn, who by now had been promoted to Fire Chief, issued Briley a notice of termination. Around the same time, Freeland was elevated to City Manager. In December 2015, Briley initiated an administrative appeal to the City’s HR Commission.
The HR Commission scheduled hearings on Briley’s appeal for May 2016. However, in April 2016, Briley’s counsel notified the Commission that Briley would not be proceeding with his appeal because doing so would be futile. Among other complaints, the attorney claimed it would be futile to proceed because Freeland, the ultimate decisionmaker in the appeal, had already found Briley’s retaliation allegations unfounded, and because one attorney from the firm that served as West Covina’s city attorney had advised Freeland in making that determination, while another served as the Commission’s counsel.
Briley sued, claiming he was the victim of retaliation in violation of California’s whistleblowing laws. A jury awarded him over $500,000 in economic damages, $2 million in past noneconomic damages, and $1.5 million in future noneconomic damages. The City appealed, claiming that Briley should have exhausted his administrative appeal to the City’s HR Commission and, by not doing so, had forfeited his claims.
The California Court of Appeals rejected the City’s arguments. The Court found that “the exhaustion doctrine is subject to several recognized exceptions. Under one such exception, the exhaustion requirement is excused if the relevant administrative remedy fails to satisfy the standards of due process. As relevant here, due process entitles a person seeking administrative review to a reasonably impartial, noninvolved reviewer.
“Whithorn’s expected role in deciding Briley’s administrative appeal presented an unacceptable risk of bias that excused Briley from exhausting this remedy, given both Whithorn’s personal embroilment in the controversy and the significant animosity between Whithorn and Briley stemming from the same controversy. Briley initially accused Whithorn of failing to perform his professional duties. He then complained that Whithorn had retaliated against him for these initial allegations by cancelling his overtime, moving him to a smaller office, and changing his take-home vehicle. Briley also filed grievances asserting the same claims of retaliation and alleging that Whithorn had engaged in additional retaliation by giving him a poor performance review.
“Briley’s series of attacks against Whithorn’s integrity would have been enough to raise concerns about Whithorn’s ability to be impartial in reviewing any claim by Briley. As a matter of fundamental due process, it is inherently improper for a person who has been charged by an accused in a collateral proceeding to participate as a committee member in the accused member’s disciplinary hearing. Given that Whithorn had been among those who had triggered the investigation against Briley, had been repeatedly accused of misconduct and retaliation by Briley, and had initiated Briley’s termination – the allegedly retaliatory decision he was to review – he could hardly be seen as a reasonably impartial decisionmaker in Briley’s appeal.
“Under the City’s municipal code, Whithorn was to review the HR commission’s findings and recommendations with the city manager, and upon the city manager’s approval, was to affirm, revoke or modify his own decision to terminate Briley. This procedure would have given Whithorn a key role in deciding Briley’s appeal, thus failing to satisfy the standards of due process and excusing Briley from exhausting this remedy.”
Briley v. City of West Covina, 2021 WL 2708945 (Cal. Ct. App. 2021).