I based my information about the case being dismissed from the a posting on the City Hall Blog at blogs.esanjoaquin.com, so I went back to check on something and noticed that the dismissed had been stricken out, so I have done the same since I relied upon the information there to form my own posting.
The lawsuit that was filed by Hittle against the City, wasdismissed "sided with the city", but in a shocking turn around, Judge gave Hittle, twenty days to address the issue:
"to draw a better connection between the city’s decision to suspend and investigate Hittle and any alleged violations of the chief’s employment rights."(Thigpen, 2011)
I read the response from the City Counsel that was retained for this suit, and the attorney seemed very confident, and almost to sure, so sure, that he was dealt this blow. In Response to the Erich Shiners, comment that "not only do the new charter rules a apply to [Hittle], but that the whole matter is not something that should even be before the Court. Shiners, supports the latter with reasoning that because the City,
"the city has not even decided what, if any, action to take related to Hittle’s employment". (Thigpen, 2011)
So in plain language because the fact that Hittle does not have an aggrieved claim, and because their has not been a decision as what to do with the Chief since the Notice of investigation in November 1, 2010, all the way until this date; Hittle therefore does not have grounds to bring a presumptive, if not theorized claim or seek remedy to address issue, for that which nothing has occurred. I think this just shows the kind of inept people the City Council decides to outsource some of the City's dirty laundry, and drama, none of which are cheap either.
As a paralegal if I was allowed to give legal, advice, I never would have written the response to Hittle's complaint, and Memorandum of Points, on any theory, instead there is so much case law out there, and if you look hard enough, the attorney could have found a much better argument. Nothing worse than for an attorney to be basically told that your full of "S*&t", by a Judge. The response to this theory, from Judge Holland
"You can't take the position that this is no big deal . . . something is cooking here" (Thigpen, 2011).
The Judge todismiss side with the city, but then takes the step to allow for an additional period of time for which the Plaintiff has, xx amount of days, and here is what you must answer, and these are the issues, that I will rule, is in my opinion, the Judge, admitting, there may in fact be some form of aggrieved action, even though, there has been no action by the City. It is not normal for a Judge to extend time after a dismissal, unless for an error for which was not harmless, or some other exigent circumstances; But what is even more surprising is the fact the Judge basically, like an attorney would tell me, go and look here, this is what I want you to ask, and answer is something I have not ever heard or read of yet. When I am told about a case, I told what it is about, and it is my responsibility to draft a document which addresses, or is sufficient enough for the attorney, to go over it, have corrections made and then present it to court. It is my responsibility though, to ask the questions, and then answer them with all the facts.
Hittle argues that "case law is clear an amendment to a charter has prospective effect, unless [otherwise] expressly state in the code." The amended code is albeit any language to the contrary and as Hittle points out " , Section 1602 is completely silent . . .to retroactive effect", to the contrary Hittle asserts the code specifically states the amendment is effective on 12/10/2010. This would according to Hittle, mean that his is not subjected to the new 2010 amendment, and thus he still enjoys his civil service employee status, with the guarantee of his prior position. The only issue, that I have is that I do believe he would still retain his civil service status, but I am not for sure if a court would be willing to reach that far into this situation as to decide if he enjoys what I consider as absolute continuity, and there be no action to be taken against him, other than demotion, and then it must be based upon misconduct.
But the other side to that idea, is since the City has yet to find or release any factual findings of misconduct, or that Hittle did not fulfill his duties in accordance with Section 1602, the old section; It maybe hard to just strip him of his rights or not take his position very seriously like Judge Holland did, but making it clear that this is very important issue, and that "something is cooking".
Without the new amended language that would have allowed the change to take effect against Hittle, not within the presented amended materials that were given to the voters. It was in the voters guide or booklet, that gives pros/cons arguments, and then detailed analysis. To attempt to determine what the intent of the body was(City Government, and Citizens), who voted for this amendment, if they were not allowed the information that is now being questioned, and they did not consider the information that is being argued, will be an issue for the defense. In order for intent to be addressed, and then found by a court or legislated body, on an issue that is unclear, or possibly ambiguous; It must have been a part of the original amended materials that was given to the voters. Without this there is no way to establish what the intent was of the voters, regarding whether Hittle would loose his classification as a civil service employee, and the guaranteed protection of his job.
I feel that based upon the judge siding with the City, but giving an extension to refile, this may come down to the Court having to determine what the intent of both the City, and Citizens were when they decided to pass the measure. While, it may seem very plainly clear as to the intent of Measure H, I can say I never even considered what Hittle argues in his case, and the argument is sound under well established case law. So I feel he has a chance, and if he does get his job back, there maybe some other issues that he may have remedy for, such as retaliation, age discrimination, emotional and health stress from, economic damages, and any defaming comments, or slanderous comments, however the latter may not be possible, because he would be considered a public official, but even then it would depend upon the court.
I cannot take the view that the City has not been frustrated or angry at Hittle for may years; Because of him following through with section 1602, and not allowing a City Government, who maybe qualified in a lot of things, but one could argue are not qualified to run a fire department. I have not seen one report that has came from City hall that shows they know how to manage and deal with the issues of the department. Their only response is to play the victim of a corrupt union, who is far more concerned with themselves than the welfare of the whole. Hittle also refused to go against his rank and file, and follow the suit of the Police Chief, who in my opinion is brown noser, and this is the only way he has stayed on.
He has cow-towed, got in line, and did everything to protect his job, while, he being the expert knows the consequences of what has already happened, and is going to happen if the City Council has their way and continues to cut funding to public safety. The Chief makes vain attempts to cover his rear from both ends, but he is much more passionate and concerned not about his officers safety, nor the citizens, but doing the bidding of a City Council who wants him to further undermine, the huge deficiency that existed long before the financial crisis.
Hittle, in my opinion as I blogged long before he was taken out, was on the chopping block for a long time, the City Council just needed to turn the opinion of the public, through lies, misinformation, all the while covering their own egregious actions, all of which it would not be hard to say absolutely played a role in in the City's, demise to where it no longer is a matter of inconvenience, the choices, now are questions of just how much more can we cut, because we are already past the point of detriment, and now were are walking in a realm unknown. How much can we take before we really can bring down, and cause detriment, on levels never applied before by a government in this Country, on its citizens.
It leads one to question even if Hittle did commit something that was incorrect, would it rise to the level of what the City Manager, and City Council has done? The facts are all around us, and they are in black and white, but no one wants to hold them accountable.
The Record keeps harping on the Unions, the Fire Fighters, and others, this is why no City should ever depend on one news source, it should be law that there are two opposing ideas, or competitors, because I apologize, the Record does not report a lot of things, sometimes it is a bunch of incorrect information, and I have learned this from putting audio recordings of incidents in the City since 2008, and at least a majority of the time, what actually happened, is not reported. That is why I feel so passionate about postings as much information I can, not to undermine any public agency, but to ensure that we are at least allowed the potential to discover what is real, and what is somewhat fabricated. The News paper should try as hard as possibly to remain, impartial or take a certain view, and while the Record has tried to do this, they have failed miserably, most if not all of the negativity only being able to pollute the public because of the misguided, or one sense of overwhelming , belief in a cause or the current situation that it blinds and clouds the issue even further. That is our paper.
Hittle, Unlike the Chief of Police who is only popular with the City Government, not his subordinates, was unwilling to put his knowledge and experience against the opposing ideals from the City which he new would only further undermine, the thin line that is barely keeping this whole thing together.
Hittle should feel proud, and happy with the decision, because at least the Judge was not as inept as the Attorney the City Hired to address his claim. The Judge felt that there was some real issues that needed to be addressed and answered, so this is good for him. Judge may also be, being very cautious with this case, so that on appeal it would not get overturned, or pushed back down to the lower court. Our City Leaders have done nothing but point the finger, they have had some great ideas, but they talk about the ideas of the Police and Fire Department not fitting with the current fiscal times, and so on, but guess what it is not the Police and Fire Departments to be money handlers, and it should never befall upon them to have to worry about a budget crisis, when we have a continually nationally high murder rate, and the services of both are absolutely vital to the well being of all.
Sources
Thigpen, D. (2011, June 22). Partial setback in hittle lawsuit. Retrieved from http://blogs.esanjoaquin.com/stockton-city-hall-blog/2011/06/22/partial-setback-in-hittle-lawsuit/
The lawsuit that was filed by Hittle against the City, was
"to draw a better connection between the city’s decision to suspend and investigate Hittle and any alleged violations of the chief’s employment rights."(Thigpen, 2011)
I read the response from the City Counsel that was retained for this suit, and the attorney seemed very confident, and almost to sure, so sure, that he was dealt this blow. In Response to the Erich Shiners, comment that "not only do the new charter rules a apply to [Hittle], but that the whole matter is not something that should even be before the Court. Shiners, supports the latter with reasoning that because the City,
"the city has not even decided what, if any, action to take related to Hittle’s employment". (Thigpen, 2011)
So in plain language because the fact that Hittle does not have an aggrieved claim, and because their has not been a decision as what to do with the Chief since the Notice of investigation in November 1, 2010, all the way until this date; Hittle therefore does not have grounds to bring a presumptive, if not theorized claim or seek remedy to address issue, for that which nothing has occurred. I think this just shows the kind of inept people the City Council decides to outsource some of the City's dirty laundry, and drama, none of which are cheap either.
As a paralegal if I was allowed to give legal, advice, I never would have written the response to Hittle's complaint, and Memorandum of Points, on any theory, instead there is so much case law out there, and if you look hard enough, the attorney could have found a much better argument. Nothing worse than for an attorney to be basically told that your full of "S*&t", by a Judge. The response to this theory, from Judge Holland
"You can't take the position that this is no big deal . . . something is cooking here" (Thigpen, 2011).
The Judge to
Hittle argues that "case law is clear an amendment to a charter has prospective effect, unless [otherwise] expressly state in the code." The amended code is albeit any language to the contrary and as Hittle points out " , Section 1602 is completely silent . . .to retroactive effect", to the contrary Hittle asserts the code specifically states the amendment is effective on 12/10/2010. This would according to Hittle, mean that his is not subjected to the new 2010 amendment, and thus he still enjoys his civil service employee status, with the guarantee of his prior position. The only issue, that I have is that I do believe he would still retain his civil service status, but I am not for sure if a court would be willing to reach that far into this situation as to decide if he enjoys what I consider as absolute continuity, and there be no action to be taken against him, other than demotion, and then it must be based upon misconduct.
But the other side to that idea, is since the City has yet to find or release any factual findings of misconduct, or that Hittle did not fulfill his duties in accordance with Section 1602, the old section; It maybe hard to just strip him of his rights or not take his position very seriously like Judge Holland did, but making it clear that this is very important issue, and that "something is cooking".
Without the new amended language that would have allowed the change to take effect against Hittle, not within the presented amended materials that were given to the voters. It was in the voters guide or booklet, that gives pros/cons arguments, and then detailed analysis. To attempt to determine what the intent of the body was(City Government, and Citizens), who voted for this amendment, if they were not allowed the information that is now being questioned, and they did not consider the information that is being argued, will be an issue for the defense. In order for intent to be addressed, and then found by a court or legislated body, on an issue that is unclear, or possibly ambiguous; It must have been a part of the original amended materials that was given to the voters. Without this there is no way to establish what the intent was of the voters, regarding whether Hittle would loose his classification as a civil service employee, and the guaranteed protection of his job.
I feel that based upon the judge siding with the City, but giving an extension to refile, this may come down to the Court having to determine what the intent of both the City, and Citizens were when they decided to pass the measure. While, it may seem very plainly clear as to the intent of Measure H, I can say I never even considered what Hittle argues in his case, and the argument is sound under well established case law. So I feel he has a chance, and if he does get his job back, there maybe some other issues that he may have remedy for, such as retaliation, age discrimination, emotional and health stress from, economic damages, and any defaming comments, or slanderous comments, however the latter may not be possible, because he would be considered a public official, but even then it would depend upon the court.
I cannot take the view that the City has not been frustrated or angry at Hittle for may years; Because of him following through with section 1602, and not allowing a City Government, who maybe qualified in a lot of things, but one could argue are not qualified to run a fire department. I have not seen one report that has came from City hall that shows they know how to manage and deal with the issues of the department. Their only response is to play the victim of a corrupt union, who is far more concerned with themselves than the welfare of the whole. Hittle also refused to go against his rank and file, and follow the suit of the Police Chief, who in my opinion is brown noser, and this is the only way he has stayed on.
He has cow-towed, got in line, and did everything to protect his job, while, he being the expert knows the consequences of what has already happened, and is going to happen if the City Council has their way and continues to cut funding to public safety. The Chief makes vain attempts to cover his rear from both ends, but he is much more passionate and concerned not about his officers safety, nor the citizens, but doing the bidding of a City Council who wants him to further undermine, the huge deficiency that existed long before the financial crisis.
Hittle, in my opinion as I blogged long before he was taken out, was on the chopping block for a long time, the City Council just needed to turn the opinion of the public, through lies, misinformation, all the while covering their own egregious actions, all of which it would not be hard to say absolutely played a role in in the City's, demise to where it no longer is a matter of inconvenience, the choices, now are questions of just how much more can we cut, because we are already past the point of detriment, and now were are walking in a realm unknown. How much can we take before we really can bring down, and cause detriment, on levels never applied before by a government in this Country, on its citizens.
It leads one to question even if Hittle did commit something that was incorrect, would it rise to the level of what the City Manager, and City Council has done? The facts are all around us, and they are in black and white, but no one wants to hold them accountable.
The Record keeps harping on the Unions, the Fire Fighters, and others, this is why no City should ever depend on one news source, it should be law that there are two opposing ideas, or competitors, because I apologize, the Record does not report a lot of things, sometimes it is a bunch of incorrect information, and I have learned this from putting audio recordings of incidents in the City since 2008, and at least a majority of the time, what actually happened, is not reported. That is why I feel so passionate about postings as much information I can, not to undermine any public agency, but to ensure that we are at least allowed the potential to discover what is real, and what is somewhat fabricated. The News paper should try as hard as possibly to remain, impartial or take a certain view, and while the Record has tried to do this, they have failed miserably, most if not all of the negativity only being able to pollute the public because of the misguided, or one sense of overwhelming , belief in a cause or the current situation that it blinds and clouds the issue even further. That is our paper.
Hittle, Unlike the Chief of Police who is only popular with the City Government, not his subordinates, was unwilling to put his knowledge and experience against the opposing ideals from the City which he new would only further undermine, the thin line that is barely keeping this whole thing together.
Hittle should feel proud, and happy with the decision, because at least the Judge was not as inept as the Attorney the City Hired to address his claim. The Judge felt that there was some real issues that needed to be addressed and answered, so this is good for him. Judge may also be, being very cautious with this case, so that on appeal it would not get overturned, or pushed back down to the lower court. Our City Leaders have done nothing but point the finger, they have had some great ideas, but they talk about the ideas of the Police and Fire Department not fitting with the current fiscal times, and so on, but guess what it is not the Police and Fire Departments to be money handlers, and it should never befall upon them to have to worry about a budget crisis, when we have a continually nationally high murder rate, and the services of both are absolutely vital to the well being of all.
Sources
Thigpen, D. (2011, June 22). Partial setback in hittle lawsuit. Retrieved from http://blogs.esanjoaquin.com/stockton-city-hall-blog/2011/06/22/partial-setback-in-hittle-lawsuit/
PDF Files from which I answered and asked questions in this posting here.
__________________________________________________
News Story the Record Wrote Published 06-23-2011
STOCKTON - A San Joaquin County judge delivered a partial setback Wednesday to beleaguered Stockton Fire Chief Ron Hittle's lawsuit against City Hall but declined to toss out the suit entirely.
Superior Court Judge Lesley Holland sided with the city's objections to the litigation, but said he would allow the fire chief to make changes to his civil complaint in the next 20 business days, which Hittle's lawyer said he would do.
At the center of Hittle's lawsuit is whether voter-approved city charter changes last year, which make it easier for City Hall to remove a fire chief, apply to Hittle, who has held the position since 2006.
Hittle has been on paid leave since March and is the subject of investigations into alleged misconduct and poor job performance. He filed suit in April, in part to block Hittle being fired.
In court papers, Hittle's lawyers asked the judge to rule on whether the old charter rules still apply to the chief. If so, the most severe penalty the city can levy is to demote him to his previous position.
But during a brief hearing Wednesday, Erich Shiners, an outside attorney for the city, argued that not only do the new charter rules apply to him, but the entire matter did not belong in court because the city has not even decided what, if any, action to take related to Hittle's employment.
"You can't take the position that this is no big deal," Holland told Shiners. "Something's cooking."
Still, Holland sided with the city and asked Hittle's lawyer, Randy Thomas, to draw a better connection between the city's decision to suspend and investigate Hittle and any alleged violations of the chief's employment rights.
Measure H, approved by voters in November, stripped civil-service protections from the position of fire chief, making it an at-will city job. Under the old charter rules, Stockton's fire chief could be suspended or removed from office only with cause and still was guaranteed his previous position in the department.
Thomas said it was imperative for a judge to rule on Hittle's employment rights now. If Hittle is determined to have retained his civil service protections, Thomas said the chief may challenge his suspension and the city's investigations before Stockton's Civil Service Commission, where the lawyer said he expected Hittle to prevail.
Otherwise, Hittle needs to know whether to seek other work or consider retirement, his lawyer said.
"He's in total limbo, judge," Thomas said. "He doesn't know what to do with his life."
Hittle was placed on paid leave in March shortly after it was publicized that he had attended a Christian leadership conference in Livermore in August at taxpayers' expense.
At Wednesday's hearing, Shiners said Hittle is now on worker's compensation leave, though Thomas said he was not aware of the chief currently receiving any such benefits. He said Hittle is not considering a medical early retirement.
Hittle, in civilian garb wearing a blazer and brown slacks, declined to comment as he left the courtroom.
City leaders have said Measure H was not crafted to remove Hittle, whom they have criticized as being too close to the firefighters union - a criticism union leaders have disputed - but rather was an attempt to regain management control of a routinely over-budget Fire Department.
City Manager Bob Deis last month named David Rudat, a former fire chief and retired city manager from the city of Orange, as Stockton's interim fire chief.
In an earlier interview, Thomas claimed Hittle's suspension and investigation "is clearly motivated by an attempt to get another fire chief in to control the budget. ... This is part of the clean house opportunity of City Hall."
City officials have repeatedly declined to comment on Hittle's employment or lawsuit.
Contact reporter Daniel Thigpen at (209) 546-8254 or dthigpen@recordnet.com. Visit his blog at recordnet.com/thigpenblog.
This is work that is copyrighted by the Record, 2011 and Here is the orginal link to the article that is posted within this posting Fire chief's suit against city takes hit.
06/22/11
ScanStockton.com
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