Reynolds

Patrick M. Reynolds, a police officer, was, on February 18, 1972, charged by his watch officer, Captain Holmes, with five violations of department regulations which directly put his veracity in issue; eight others of failure to attend court after proper subpoena or adequate instruction and one violation of failure to be alert on duty; all occurring between June 28, 1971, and December 18, 1971.

Concurrently with delivery to Reynolds of the said charges in written form on Februaiy 18, 1972, Reynolds was suspended from duty and placed on notice that he would be required to answer those charges before a board of rights.

On or about the same day, Reynolds selected Lieutenant Salvino, a watch officer for whom Reynolds was then working, to represent him before the board. The record shows that Salvino had had experience in appearances before the Board in other matters and that Reynolds had great confidence in Salvino. 2 The two thereafter had a number of long conferences specifically on each of the charges and on all the facets of Reynolds’ defense, including strategy. In one of these conferences prior *885 to February 29, Salvino advised Reynolds that he had been requested…

In my opinion, on the basis of this record, the majority’s deference to the trial court’s fact finding power is not justified. True, the trial court as the determiner of the credibility of the witnesses, credited Lieutenant Salvino’s testimony as to what occurred in the critical conversation which preceded Reynold’s resignation, but an analysis of that conversation, even as portrayed by Lieutenant Salvino, leads to the inescapable conclusion that Reynolds was the victim of a constructive fraud.

It should be observed at the outset that following the critical conversation Reynolds executed the resignation form and thereby took, what was for him, a very critical and serious step, i.e., the surrendering of a valuable contractual employment right..(O’Dea v. Cook, 176 Cal. 659 [ 169 P. 366 ]; Kern v. City of Long Beach, 29 Cal.2d 848 [ 179 P.2d 799 ]; Wallace v. City of Fresno, 42 Cal.2d 180 [ 265 P.2d 884 ].) It is not surprising then that, as Lieutenant Salvino testified, Reynolds gave indications of being emotionally upset during the conversation.

Also significant is the fact that Reynolds apparently reposed a high degree of confidence in Salvino. Salvino was aware of that fact and…