Opinion
HAERLE, J.
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]*766II. 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 worth about $14,000, in the public roadway in front of one of the airport terminals. Underhill brought the bracelet to the attention of Traffic Control Officer Val ver and Underhill’s friend at the Avis counter, Donna Branston. After some discussion of the value and appropriate handling of the bracelet, Underhill turned it over to Branston, with the understanding that she would turn it in to the airport lost and found when she returned to work on Monday, May 1.
In the late evening hours of Saturday, April 29, appellant was assigned to investigate and prepare a written report concerning the lost bracelet. Appellant spoke with Underhill on the telephone shortly after midnight on Sundáy, April 30. Underhill revealed that the bracelet had been in his possession. He said he had given it to a friend and that she would turn it in on Monday.
A few minutes after appellant had the conversation with Underhill, appellant’s superior officer on duty, Lieutenant James Lynch, asked appellant about the status of his investigation. Appellant reported to Lynch that the bracelet was secure in Underhill’s toolbox at the airport. Underhill testified he did not have a toolbox and had not said anything about a toolbox to appellant. It was this statement made by appellant to his superior officer which the employer believed constituted a lie warranting appellant’s termination.
On Monday, May 1, Branston turned the bracelet in to the airport lost and found, but a review of the handling of the incident continued. Appellant’s written report stated nothing about the bracelet’s whereabouts. Sergeant Reilly prepared a crime report (theft of found property), again with no mention of the whereabouts of the bracelet. Lieutenant Lynch reported that appellant had given him inconsistent information and had told him the toolbox story. Lynch’s report described a meeting with appellant in which appellant spontaneously stated, “I fucked up, I should have told you everything.”
On August 10, 1989, Deputy Chief of Police James C. Gibbs gave appellant notice of his intention to recommend dismissal for cause. On September 19, 1989, respondent Turpén, director of airports, notified appellant that he was recommending dismissal for cause, based on his review of [767]*767the transcript of a show cause hearing held on August 30. The dismissal charges were brought on the ground that appellant lied to his superior officer in the course of carrying out his duties, thereby violating the following rules of conduct set forth in the airport police manual, and chief’s order No. 85-11:
Airport Police Manual Section 7150.41/Personal Integrity. “Consistent with the ‘Law Enforcement Code of Ethics’ is the commitment to honesty and integrity. Airport Police Members shall remain above reproach and shall avoid any conduct which might compromise the integrity of themselves or fellow Members. The dishonesty of a single Member is enough that it may impair public confidence and cast suspicion upon, not only the Airport Police but, the entire law enforcement profession.”
Section 7310.20/TruthJulness. “Members are required to be truthful at all times, whether or not under oath.”
Section 7380.47¡Assisting Suspects and Criminals. “Members shall not communicate in any manner, directly or indirectly, any information which might assist persons guilty of criminal or quasi-criminal acts to escape arrest or punishment, or which may enable them to dispose of any evidence or unlawful activity or money, merchandise, or property unlawfully obtained.”
Chiefs Order #85-11 ¡Professional Integrity. “As a professional Police Department the integrity of our members must be considered impeccable if we are to effectively realize our responsibility. Recent court decisions have consistently held Peace Officers to a higher standard of conduct and personal rectitude. Any compromise of any Officer’s honesty or truthfulness renders that Officer useless to law enforcement as the Officer’s credibility will most certainly be challenged. [ID Honesty and truthfulness shall be strictly adhered to. Termination will be the first consideration in the disciplinary process of any compromise of honesty or truthfulness. First offense will not be accepted as an alibi to attenuate termination.”
The charge of violation of these rules entitled appellant to a dismissal hearing under San Francisco Charter section 8.341.2 That section requires that the hearing “be conducted forthwith by a qualified and unbiased hearing officer employed under contract by the city and county and selected by [768]*768procedures set forth in the rules of the civil service commission.” (S.F. Charter, § 8.341, 1st unnumbered par.)
Civil service commission rules provide: “The hearing itself, as required by Charter, shall be conducted by a hearing officer under contract to the appointing officer chosen as follows in each case: [H 1. From organizations such as the American Arbitration Association or the State Conciliation Service which customarily provide hearing officers, Or [U 2. From a list of qualified hearing officers certified by the Civil Service Commission, such list to be kept current and to contain at all time at least three (3) names.” (S. F. Civil Service Com. Rules, rule 6, § 6.06, subd. C [Hearing Officer Sources].)3
In his letter of September 19, 1989, respondent Turpén informed appellant that a dismissal hearing had been scheduled for October 3, 1989, before Hearing Officer Dave Wharton III. During the hearing, which was held November 2, 1989, the hearing officer denied appellant’s motion to admit in evidence an affidavit of Sergeant Boyd, offered by appellant to prove that Boyd had received a two-week suspension for lying.
On November 16, 1989, the hearing officer issued his decision and order finding that appellant violated the rules and should be suspended without pay for six months. On May 2, 1994, the trial court denied appellant’s petition for writ of mandate. On June 27, 1994, the court denied appellant’s motion to tax costs. This timely appeal followed.
III. Discussion
A. Selection of Hearing Officer
Appellant concedes that the hearing officer was selected in accordance with rule 6, set out above. He argues, however, that the method of selection, and the fact that the employer pays the hearing officer, deprived appellant of due process. We review this question of law de novo and find no merit to the contention. (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [264 Cal.Rptr. 139, 782 P.2d 278].)
Appellant’s contention is based on the premise that respondents had an “unrestricted choice” in selecting a hearing officer. This is not true. [769]*769Section 8.341 of the San Francisco City Charter provides that the hearing shall be conducted by a “qualified and unbiased hearing officer employed under contract by the city and county and selected by procedures set forth in the rules of the civil service commission.” As noted above, rule 6, section 6.06, subdivision C, instructs the employer to select a hearing officer from one of two sources: (1) organizations which customarily provide hearing officers, or (2) a civil service commission list. Respondent stated without refutation at the hearing before the superior court on January 28, 1994, that Hearing Officer Wharton was selected from the second source, the civil service commission list. Appellant assumes arguendo that this selection occurred.
The method for creating the civil service commission list is set out in rule 6, section 6.06, subdivision D: “The Civil Service Commission shall certify its list of hearing officers by the following method: [*$ 1. The Commission shall cause to be published in a newspaper of general circulation an announcement of openings for hearing officers. This announcement shall run either for a period of five (5) working days or for two (2) weekends at the discretion of the Commission, ['ll 2. The Commission shall include in its list only such applicants as to satisfy the following criteria: [U a. Have at least one (1) year of experience in the conduct of judicial hearings in the capacity of a hearing officer. [*][] b. Have experience in the resolution of disputes involving the interpretation of labor-management contracts. [f] 3. The Executive Officer shall post the list of panel members so selected for a period of five (5) working days during which time employees, public employee organizations or city departments may seek to demonstrate in writing that any member of the panel is unacceptable. The Executive Officer shall review such challenges and shall determine whether on the basis of the challenge the individual should be eliminated from the approved list.”
This procedure for selection of hearing officers cannot reasonably be characterized as granting the City an “unrestricted” selection. To be placed on the list, hearing officers must meet certain criteria, and once they are placed on the list, employees and employee organizations have an opportunity to challenge them. It is apparent that appellant did not utilize that opportunity.
Appellant suggests that Hearing Officer Wharton was “deprived of impartiality” because he was selected only by employer who had sole responsibility for paying him. According to appellant, the hearing officer thereby “had a financial interest in deciding [the] case favorably for the appointing officer, Respondent Turpén, who hired Respondent Wharton and paid him.” Appellant ignores the fact that rule 6, section 6.06, subdivision E, [770]*770provided a mechanism by which appellant could have challenged the competence of the hearing officer before the hearing. It states in relevant part: “The employee may challenge the competence of the hearing officer who is scheduled to hear the employee’s case on the basis that the officer is in some demonstrable manner biased or prejudiced against the employee and that, therefore, the employee will not be afforded a fair hearing. The challenge must be made [by written affidavit received at least 24 hours before the hearing].”
Appellant’s failure to utilize this procedure deprived respondent of an opportunity to address the claim of lack of impartiality, or of bias or prejudice, and precludes appellant from raising the point on appeal. (Barnes v. Personnel Department (1978) 87 Cal.App.3d 502, 506 [151 Cal.Rptr. 94].) In any event, we find appellant’s due process contention to be without merit.
In Titus v. Civil Service Com. (1982) 130 Cal.App.3d 357, 362 [181 Cal.Rptr. 699] (hereafter Titus), the Court of Appeal accurately summarized the standard of due process pertinent to such an issue: “Minimal standards of due process require that a public employee receive, prior to imposition of discipline: (1) Notice of the action proposed, (2) the grounds for discipline, (3) the charges and materials upon which the action is based, and (4) the opportunity to respond in opposition to the proposed action. [Citations.] To be meaningful, the right to respond must afford the employee an opportunity to present his [or her] side of the controversy before a reasonably impartial and noninvolved reviewer who possesses the authority to recommend a final disposition of the matter. [Citation.]” Appellant argues that the last element of due process was missing. In our view, this contention is not supported by either the facts or the law.
As far as the facts are concerned, we have already noted that, contrary to appellant’s theory, respondent did not have an “unrestricted choice” of hearing officer. Appellant also argues that payment of the hearing officer by respondent renders the hearing officer biased, because the more cases he decides favorably to respondent, the more cases respondent will give him. While this is an interesting theory, appellant’s failure to raise the issue below precluded the creation of a meaningful record on the point.4
In any event, we do not find the theory compelling as a matter of law. Due process does not require a perfectly impartial hearing officer for, indeed, [771]*771there is no such thing. (Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 790-791 [171 Cal.Rptr. 590, 623 P.2d 151] (hereafter Andrews).) Rather, and as the foregoing quotation from Titus suggests, the principle our Supreme Court has established is that due process in these circumstances requires only a “reasonably impartial, noninvolved reviewer.” (Williams v. County of Los Angeles (1978) 22 Cal.3d 731, 737 [150 Cal.Rptr. 475, 586 P.2d 956], italics added (hereafter Williams).) This formulation of the rule has been quoted and followed not only in Andrews and Titus but in several other cases as well. (See, e.g., Coleman v. Regents of University of California (1979) 93 Cal.App.3d 521, 526 [155 Cal.Rptr. 589]; Civil Service Assn. v. Redevelopment Agency (1985) 166 Cal.App.3d 1222, 1227 [213 Cal.Rptr. 1]; Burrell v. City of Los Angeles (1989) 209 Cal.App.3d 568, 581 [257 Cal.Rptr. 427].)
Clearly the most significant case applying the rule articulated in Williams is Andrews. There, agricultural employers sought to disqualify an administrative law officer from hearing an unfair labor practices case, because his law firm had regularly represented Spanish-sumamed persons and farm workers. (Andrews, supra, 28 Cal.3d at p. 787.) The Supreme Court assumed, arguendo, that these allegations could result in an appearance of bias, and held that such an appearance was not a valid ground for disqualifying a judicial officer.
The court quoted with approval an earlier case which held: “ ‘In order for the judge to be disqualified, the prejudice must be against a particular party . . . and sufficient to impair the judge’s impartiality so that it appears probable that a fair trial cannot be held.’ (Italics added.)” (Andrews, supra, 28 Cal.3d at p. 792, quoting Ensher, Alexander & Barsoom v. Ensher (1964) 225 Cal.App.2d 318, 322 [37 Cal.Rptr. 327].) The Supreme Court explained this two-tier inquiry as follows, “The first inquiry consists of deciding whether the moving party has set forth legally sufficient facts to demonstrate the bias of the judicial officer. After that determination, the challenged judicial officer or a reviewing court must still decide whether such bias will render it probable that a fair trial cannot be held before that judge.” (Andrews, supra, 28 Cal.3d. at p. 792.)5
The court reviewed other leading cases and concluded that “our courts have never required the disqualification of a judge unless the moving party [772]*772has been able to demonstrate concretely the actual existence of bias.” (Andrews, supra, 28 Cal.3d at p. 793.)6 At this point the court acknowledged, in a footnote, that both decisional law and statute provide for disqualification of a judicial officer, even without proof of actual bias, where such is required to preserve the integrity of the legal system. The examples cited included an actual personal or financial interest in the outcome. (See Code Civ. Proc., § 170.1.)7
In Burrell v. City of Los Angeles, supra, 209 Cal.App.3d 568, workers attacked an administrative procedure which permitted the same official who instituted and investigated disciplinary proceedings and recommended a particular penalty, to have the final say on the severity of penalty imposed. The court found that federal law permitted the procedure and that state law follows the federal requirement of showing actual bias or prejudice. In so doing the court emphatically reasserted the ruling in Andrews. (Id. at pp. 575-582.) Although the facts of the instant case are distinguishable from those in Burrell, the decision is instructive here because it expressly applies due process analysis to the fairness requirement in an administrative disciplinary hearing. It is also significant because it highlights the less exacting due process requirements applicable to administrative hearings as compared to judicial proceedings. (Id. at p. 578.) This latter point was also stressed by Justice Newman in his Andrews concurrence. (Andrews, supra, 28 Cal.3d at pp. 796-797 (conc. opn. of Newman, J.).)
Appellant cites no California cases even remotely on point in support of his due process claim. On the other side of the coin, we find authority such as Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795 [20 Cal.Rptr.2d 903] (hereafter Binkley) persuasive. There, the city removed its police chief (Binkley) for various counts of misconduct. The city manager selected a hearing officer to conduct an appeal hearing, and retained the right to make the final decision. Binkley objected to the scope of the hearing and to the city manager’s final authority. The hearing officer recommended that the discharge be sustained, and the city manager agreed. The Court of Appeal found that Binkley had received due process in the removal procedure, [773]*773stating that “due process is flexible and calls for such procedural protections as a particular situation demands.” (Binkley, supra, 16 Cal.App.4th at p. 1807, citing Mathews v. Eldridge (1976) 424 U.S. 319, 334 [47 L.Ed.2d 18, 32-33, 96 S.Ct. 893].)
The court rejected claims that the hearing officer was not neutral and concluded that Binkley had been treated fairly when he was afforded a factfinding hearing before a professional hearing examiner, who was not “ ‘embroiled in the controversy.’ ” (Binkley, supra, 16 Cal.App.4th at p. 1810.) An allegation at the appellate level of bias could not prevail. “ ‘Bias and prejudice are not implied and must be clearly established. A party’s unilateral perception of bias cannot alone serve as a basis for disqualification. Prejudice must be shown against a particular party and it must be significant enough to impair the adjudicator’s impartiality. The challenge to the fairness of the adjudicator must set forth concrete facts demonstrating bias or prejudice.’ ” (Ibid.)
Here, as in Binkley, no facts support a claim that respondent hearing officer was biased. He was entitled to the benefit of a presumption that he was “ ‘ “of conscience and intellectual discipline” ’ ” and judged the case fairly. (Binkley, supra, 16 Cal.App.4th atp. 1810.) Nothing indicates he had a personal financial stake in the matter or harbored any animosity toward appellant.8
Appellant and our dissenting colleague rely heavily on cases dealing with First Amendment rights implicated in agency shops. (E.g., Teachers v. Hudson (1986) 475 U.S. 292 [89 L.Ed.2d 232, 106 S.Ct. 1066] (hereafter Teachers), affirming Hudson v. Chicago Teachers Union Local No. 1 (7th Cir. 1984) 743 F.2d 1187, 1195 (hereafter Hudson).) We do not find them persuasive. In those cases, the union and board of education had a collective bargaining agreement that named the union the exclusive agent of teachers and other employees. A union security clause in the contract required nonunion members of the bargaining unit to pay their proportionate share of the union’s cost in negotiating and administering the contract. Nonunion teachers brought suit against the board “challenging the procedure established pursuant to the collective bargaining contract for determining the proportionate share that nonunion employees must contribute to the support of the union as collective bargaining agent.” (Hudson, supra, 743 F.2d at p. 1190.) The district court upheld the procedure.
[774]*774The Court of Appeals for the Seventh Circuit reversed. The court framed the question and its holding as having two aspects, one dealing with free speech, the other with due process. The free speech holding was that the agency shop contract must provide a procedure which gives reasonable protection for nonunion members, making it unlikely that some of the money collected from them will be used to support political objectives outside the union’s function in the collective bargaining process; such an improper use would violate their First Amendment rights. (Hudson, supra, 743 F.2d at p. 1192.)
In the “due process” portion of the opinion, the court found that forcing a public employee to support a union deprives him or her of “liberty” (freedom of association) within the meaning of the Fourteenth Amendment and, therefore, requires the employer to give him or her due process of law in the sense of fair procedure “quite apart from any procedural safeguards required by the First Amendment directly.” (Hudson, supra, 743 F.2d at p. 1193.)
The procedure in question provided that the objecting employee went before an arbitrator picked by the union president from a list of arbitrators accredited by the state board of education; the union paid the arbitrator’s fee; the arbitrator’s decision was final. From start to finish the procedure was “entirely controlled by the union” (Hudson, supra, 743 F.2d at p. 1194.) By contrast, in the system at issue here the procedure is not entirely controlled by respondent and is followed by court review at the trial and appellate levels.
The Hudson court stated: “The arbitrator is paid for each arbitration, and this gives him a financial interest in deciding cases favorable to the union— which hires him, and incidentally which pays him.” (Hudson, supra, 743 F.2d at p. 1195.) For guidance on remand, the court suggested “that the constitutional minimum would be fair notice, a prompt administrative hearing before the board of education or some other state or local agency—the hearing to incorporate the usual safeguards for evidentiary hearings before administrative agencies—and a right of judicial review of the agency’s decision.” (Id. at p. 1196.)
The United States Supreme Court affirmed the judgment, but in a decision much less expansive than that of the Court of Appeals.9 The court held that the third of three “fundamental flaws” in the union procedure was that it “did not provide for a reasonably prompt decision by an impartial decisionmaker.” (Teachers, supra, 475 U.S. at p. 307 [89 L.Ed.2d at p. 247].) “The [775]*775nonunion employee, whose First Amendment rights are affected by the agency shop itself and who bears the burden of objecting, is entitled to have his objections addressed in an expeditious, fair, and objective manner.” (Ibid.) The court emphasized that it is the impingement on First Amendment interests that requires “reasonably prompt decision by an impartial decision-maker.” (Id. at p. 309 [89 L.Ed.2d at p. 249].)
The com! also held that the union’s “unrestricted choice [of an arbitrator] from the state list” was inadequate. (Teachers, supra, 475 U.S. at p. 308 [89 L.Ed.2d at p. 248].) But at the same time the court rejected the Court of Appeals suggestion that a “full-dress administrative hearing, with evidentiary safeguards” was required. (Id. at p. 308, fn. 21 [89 L.Ed.2d at p. 248].) The court noted that expeditious arbitration would be satisfactory if the arbitrator was not one party’s unrestricted choice. (Ibid.)
We find these teachers union cases inapposite for at least four reasons. First of all, in the case at hand the First Amendment is not involved. Second, the choice of hearing officer was not “unrestricted”; not only was the choice confined to two highly reputable panels, but the procedural scheme allowed for not one but two opportunities for challenge of the hearing officer by the employee or the employee organization. Third, although the Court of Appeals viewed the payment of the arbitrator by one party as establishing bias, the Supreme Court neither discussed nor affirmed that view. Fourth, and probably most importantly, we view the California Supreme Court’s rulings in Williams and Andrews, discussed above, to be controlling as to how expansive the courts of this state can and should be in applying the admittedly flexible concept of due process.10
Thus, in our view we are constrained to examine this issue in the terms our Supreme Court has told us to apply in such circumstances, i.e., the test of [776]*776whether the hearing officer is a “reasonably impartial, noninvolved reviewer.” (See Williams, supra, 22 Cal.3d at p. 737.) When that test is applied, it is clear that appellant has failed to show that he was not. More specifically, we note that (a) the hearing officer was selected from one of two preferred lists derived from reputable and presumptively impartial organizations, (b) no challenge to any perceived bias on his part was undertaken via either of two separate procedures provided for such challenges, (c) absolutely no record was made by appellant at either the administrative level or in the superior court as to any record of any bias on his part, and (d) there is no suggestion of any manifestation of bias in his conduct of the hearing below.
Where, as here, prejudice or actual bias is not shown, current law provides an alternative standard for possible disqualification: a judicial officer may be disqualified under the “objective” standard set out in Code of Civil Procedure section 170.1, subdivision (a)(6)(C). “A judge shall be disqualified if any one or more of the following is true: ... a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” Since the underlying events are undisputed, the question of whether the hearing officer could be impartial under the quoted provision is one of law. (Flier v. Superior Court (1994) 23 Cal.App.4th 165, 170-171 [28 Cal.Rptr.2d 383].)
In the case before us the record does not sustain even an “appearance of bias.” If, as noted earlier, appellant had shown how many cases Hearing Officer Wharton had decided, how many of those were for the San Francisco Airport, and how many rulings were in favor of that employer, an objective person might be able to perceive an appearance of bias. The record is devoid of even a scintilla of such information, yet the appellant and our dissenting colleague would have us rule not only that Hearing Officer Wharton was disqualified to serve, but that the entire system of selecting San Francisco civil service hearing officers was and is constitutionally defective. This we respectfully decline to do. Any such ruling would be based upon nothing more than a charge of an appearance of bias in a case where appellant failed to take advantage of not one but two distinct opportunities to challenge the hearing officer on such grounds.
[777]*777Our conclusion on this issue should not be construed as an embrace of the procedure employed by the San Francisco Airport in this case and, presumably, by the City and County of San Francisco in such cases generally. Common sense coupled with a minimal degree of experience in today’s burgeoning arena of alternative dispute resolution compels the conclusion that some form of mutual selection of an arbitrator, mediator or hearing officer is preferable to the current San Francisco Airport procedure. This would seem to be particularly so where, as here, that person is paid entirely by the selecting party. But we have no interest in accepting appellant’s invitation—now seconded by our dissenting colleague—to elevate a preference for mutual over unilateral selection to a matter of federal or state constitutional right, especially on the facts of this case and given the rather clear principles articulated by our Supreme Court in Williams and Andrews. The combination of that court’s holding that due process requires only a “reasonably impartial, noninvolved reviewer” (Williams, supra, 22 Cal.3d at p. 737) and the United States Supreme Court’s holding in Aetna that that doctrine does not mandate disqualification where any interest is “speculative and contingent” (Aetna, supra, 475 U.S. at p. 826 [89 L.Ed.2d at p. 836]) makes crystal clear to us, even if it does not to appellant and our dissenting colleague, that due process does not compel reversal here. That concept is not so pliant that it can be extended to cover a circumstance such as the present one where, at most, an inferior hearing officer selection process is prescribed. To hold otherwise would be an exercise in judicial activism that would be as regrettable as it is obvious.
B.-D.
IV. Disposition
The judgment is affirmed.
See footnote, ante, page 763.