However, the court noted that the parties had not addressed that aspect of the trial court's decision and left it for the trial court to decide on remand whether Seibert could be disciplined on this charge without even any finding of a policy violation.The City also charged Seibert with misconduct for exchanging sexual emails with a minor, whom he knew or should have known was a minor, while on-duty.The civil service commission sustained this charge, but the trial court overturned the commission, finding the evidence that Seibert knew or should have known the girl's age was less plausible than the contrary evidence. The Court of Appeal found that there sufficient evidence to support a finding that Seibert knew, or should have known, the girl was probably underage.
Seibert was charged with misconduct because he knew or should have known the girl was a minor and because he sent the emails during duty hours, irrespective of the girl's age.The Court of Appeal determined that Seibert's emails, excluding consideration of the girl's age, could not sustain a charge for a violation of any policy.First, the court opined that the City's sources of authority for discipline, including its code of ethics, municipal code, and the fire department's regulations, were vague, and that the City could not adequately explain how those policies were violated by a firefighter engaging in sexual conversations with (hypothetically) a consenting adult.The court rejected the City's argument that Seibert's on-duty status made the sexual email exchange improper, pointing to the wide range of activities in which firefighters commonly engage during idle time on-duty, including watching movies, online banking, online dating, and personal phone calls and emails.The appellate court also upheld the trial court's rejection of the City's argument that the sexual emails brought discredit to the department because they included sexual double-entendres about Seibert's duties as a paramedic.
The trial court had also found that the evidence was insufficient to establish that the emails (without considering the girl's age) violated any City policy, but nonetheless found that charge would support some discipline less severe than termination because of the potential for embarrassment to the City.The appellate court criticized the trial court's ruling, stating that it was uncertain whether an "abstract ‘risk of embarrassment'" without a policy violation could be grounds for discipline.Recently, the California Court of Appeal published its first case interpreting the unique provision of the Firefighters Procedural Bill of Rights Act (FBOR) limiting the statute's procedural employee protections "to the events and circumstance involving the performance of official duties." Although the clarification is welcome, it is limited. City of San Jose, a civil service commission upheld the termination of a firefighter/paramedic for five charges of misconduct: two related to salacious e-mails sent to a 16-year-old during duty hours, and three related to allegedly harassing conduct toward another firefighter.The trial court reversed the commission, finding that there was not sufficient evidence to support four of the charges, and that the fifth charge, while it might support some discipline, did not justify termination.The California Court of Appeal reversed the trial court and remanded the case for further proceedings.Grant Seibert, a firefighter/paramedic engaged in a salacious email exchange with a 16-year-old girl during duty hours.