Linney

I. Introduction

Appellant Frank T. Linney, a San Francisco Airport police officer, was suspended for six months because he lied to a superior officer during a 1989 investigation concerning a lost bracelet. Appellant filed a petition in the superior court for writ of mandate to compel his employer (employer or respondents) 1 to set aside the discipline. Judgment was for respondents, including costs. Appellant contends that (a) the manner in which the hearing officer was selected deprived him of due process, (b) the hearing officer committed prejudicial error in exclusion of evidence, (c) the discipline imposed was excessive and constituted an abuse of discretion, (d) and the trial court erred in awarding costs to respondents. We affirm.

*766 II. Procedural and Factual Background

Appellant began working for the City and County of San Francisco (City) as an airport vehicular traffic control officer in early 1981, and became permanent in late 1982. The facts which gave rise to the disciplinary action, as found by the hearing officer, are not in dispute. On Friday April 28, 1989, a United Airlines baggage mechanic, Brian Underhill, found a valuable bracelet, reportedly…

I concur in the opinion of Justice Haerle rejecting appellant’s claim that he was denied due process because respondent had an “unrestricted choice” in the selection of the hearing officer as well with the discussion of the other issues resolved. I write separately only to stress that the “pecuniary conflict of interest” issue was never (directly or indirectly) raised in the mandamus proceedings before the superior court which we review. Accordingly, I believe that issue has been waived and we should not consider it.

That the pecuniary conflict of interest issue was not presented below is unmistakably clear from the record before us. The second verified petition *778 for writ of administrative mandamus focused entirely on the issue of “unrestricted choice” and the failure to give appellant “an opportunity to participate in the selection of the hearing officer.” Nowhere did appellant allege as a ground for setting aside his suspension that he had been denied due process because Hearing Officer Wharton had a financial conflict of interest since he was “under contract” with respondent. Throughout the lower court proceedings, appellant consistently and only pursued his theme that his…

Under the procedure we review in this case an “appointing authority,” or employer, that wishes to discharge a civil servant completely controls the selection of the hearing officer who finally determines whether the proposed discharge will be effectuated. If this were not enough to skew the process against employees, the pecuniary conflict of interest inherent in this process certainly does so. Because their income depends upon the number of cases they hear, hearing officers have an economic incentive to rule in favor of the employers who provide them remunerative work.

Justice Haerle’s statement that this selection process “does not sustain even an ‘appearance of bias’ ” (lead opn., ante, at p. 776) is incomprehensibly blind to what I consider an obvious reality. My conclusion that appellant and other civil servants are denied due process of law is not, as Justice Haerle says, the product of a “regrettable” exercise in “judicial activism” (lead opn., ante, at p. 777) but of respect for the Constitution, as that document has been unmistakably construed by the courts of this state and nation, in opinions the majority ignores or distorts.

As will be seen, the majority has not only…

[Opinion certified for partial publication. [*] ]

OPINION

HAERLE, J. —

Appellant Frank T. Linney, a San Francisco Airport police officer, was suspended for six months because he lied to a superior officer during a 1989 investigation concerning a lost bracelet. Appellant filed a petition in the superior court for writ of mandate to compel his employer (employer or respondents) [1] to set aside the discipline. Judgment was for respondents, including costs. Appellant contends that (a) the manner in which the hearing officer was selected deprived him of due process, (b) the hearing officer committed prejudicial error in exclusion of evidence, (c) the discipline imposed was excessive and constituted an abuse of discretion, (d) and the trial court erred in awarding costs to respondents. We affirm.

Appellant began working for the City and County of San Francisco (City) as an airport vehicular traffic control officer in early 1981, and became permanent in late 1982. The facts which gave rise to the disciplinary action, as found by the hearing officer, are not in dispute. On Friday April 28, 1989, a United Airlines baggage mechanic, Brian Underhill, found a valuable bracelet,…