Case Number: BS140835 Hearing Date: March 20, 2014 Dept: 82

Rebecca Reyes

v.

City of Los Angeles; Charles Beck, Chief of Police for the City of Los Angeles; and Does 1 through 20.

Tentative Decision and Order Denying Petition for Writ of Mandate

In February 2009, singer Robyn Rihanna Fenty, also known as Rihanna, was the victim of a much publicized domestic violence incident perpetrated by singer Chris Brown. As part of its criminal investigation, Los Angeles Police Department (“LAPD” or “Department”) officers took numerous photographs of the victim. Petitioner Rebecca Reyes (“Petitioner”), a former police officer with the LAPD, used her personal cell phone to take a picture of a photograph showing the victim’s injuries. Petitioner showed or forwarded the cell phone picture to others. Thereafter, media outlet TMZ posted the cell phone picture on the TMZ website and television show.

The LAPD charged Petitioner with 11 counts of misconduct arising out of her involvement in disclosing or forwarding the photograph depicting Ms. Fenty’s injuries to third parties. (AR 5-7). Petitioner challenged the Department’s allegations in an administrative proceeding conducted before the Board of Rights (“Board”) in August 2012. Eventually, Petitioner pled guilty to Counts 1, 2, 3, 4, 5, 8 and 11. (AR 8-10). After the administrative hearing was completed, the Board found Petitioner not guilty of Counts 6 and 7; she was found guilty of Counts 1 through 5, and 8 through 11. (AR 660-671). In light of the serious nature of Petitioner’s misconduct, the Board recommended Petitioner’s termination. The Chief of Police agreed with the Board’s recommendation and fired Petitioner from her job as a Police Officer III.

In this lawsuit, Petitioner seeks a writ of mandate ordering Respondents City of Los Angeles (“City”) and Chief of Police Charles Beck (“Beck”) to set aside Beck’s final order upholding the Board’s August 31, 2012 decision terminating her employment. Specifically, Petitioner challenges the Board’s findings as to Counts 9 and 10, arguing they are not supported by the evidence. Having reviewed the pleadings, the administrative record, and the parties’ briefs, the Court rules as follows:

Statement of the Case

As a preliminary matter, the Court notes that the lodged administrative record contains only the hearing transcript. It does not contain any other document concerning the LAPD’s investigation and discharge of Petitioner such as the Department’s charging document or the final decision by the Chief of Police. The administrative record also does not contain any of the exhibits admitted in evidence during the administrative hearing.

The Underlying Domestic Violence Incident

Around midnight on February 8, 2009, LAPD Officer Fernando Chavez and an Officer Prak of the Wilshire Division responded to a radio call reporting a woman screaming on June Street in the City of Los Angeles. (AR 28-29). Upon arriving at the scene, Officers Chavez and Prak determined that a domestic violence incident involving a man and a woman had recently taken place. (AR 30). By the time the officers arrived, the man had already fled the scene. (AR 30). Officers Chavez and Prak interviewed the woman and Officer Calvert Tooley took 33 photographs of the woman’s injuries and the vehicle in which the incident occurred. (AR 30, 34-35, 72, 125). The woman, later identified as Ms. Fenty, identified the male suspect as Chris Brown. (AR 30-31, 586). The victim requested that the LAPD’s investigation of the incident remain confidential. (AR 33-34).

Following the LAPD’s initial investigation of the incident, Sergeant Gabriel Lara, the Wilshire Division’s watch commander on the night of the dispute, requested that Officer Tooley print some of the photographs taken at the scene depicting the nature and extent of Ms. Fenty’s injuries. (AR 128). Officer Tooley downloaded all of the images to an LAPD computer and printed 5 or 6 color photographs of Ms. Fenty’s injuries. (AR 128-132). After downloading the images, Officer Tooley transferred them to a compact disk (“disk”) and deleted them from the computer’s and the camera’s dedicated memories. (AR 130-132). He then placed the printed photographs on Sergeant Lara’s desk. (AR 128). After Sergeant Lara viewed the photographs, he immediately returned them to Officer Tooley so that they could be used by Officers Chavez and Prak to write their initial reports. (AR 586-590). Sergeant Lara testified that he never left the photographs lying around his office or any other area of the Wilshire Station. (AR 586-587). After Officers Chavez and Prak completed their initial reports, Officer Tooley shredded the printed photographs and gave Officers Chavez and Prak the disk containing all of the photographs taken at the scene. (AR 132-133).

Petitioner’s Involvement in the Domestic Violence Investigation

On the night of the domestic violence incident, Petitioner was working patrol out of the Wilshire Division. (AR 395). Following the Department’s initial investigation, Petitioner was assigned to a team responsible for arresting Chris Brown. (AR 396). Petitioner first viewed the photographs of Ms. Fenty during her briefing on the dispute before she was dispatched to arrest Chris Brown. (AR 398). Petitioner and her partner were called back to the station before they could arrest Mr. Brown. (AR 399).

Upon returning to the station, Petitioner saw some of the printed photographs of Ms. Fenty lying on a desk near Sergeant Lara’s office. (AR 399). Using her cell phone, Petitioner took two photographs of one of the Department’s photographs of Ms. Fenty’s face. (AR 408-411). Although Petitioner stated that she knew it was against Department policy to use a personal phone to photograph evidence, she explained that she took the photographs because she was “star-struck” and wanted to show the Division’s other officers who were working different shifts. (AR 409, 415, 417). Although Petitioner never showed the photographs to those other officers working different shifts, she did show the photographs to other people, including non-LAPD employees. (AR 417-418). Specifically, Petitioner showed the photographs to her niece and a student worker assigned to the Olympic Division, and sent the photographs to two other LAPD officers, Officer Jason Perez and a Sergeant Acosta. (AR 417-420, 444-450, 457). Petitioner also sent the photographs to her personal email address through her work account. (AR 450-456). Petitioner claimed at the Board hearing that she did not realize her work account automatically forwarded messages to her personal address; however, she also testified that she had been receiving all of her work emails through her personal email address since 2005. (AR 456).

On the morning after the incident involving Ms. Fenty and Chris Brown, Petitioner called Officer Lopez, with whom she had previously been in a relationship, several times. (AR 204, 206, 383, 434-436). Although Petitioner could not remember whether she told Officer Lopez about the dispute involving Ms. Fenty and Chris Brown, (AR 436-437), Officer Lopez testified that Petitioner did tell her about the incident on the morning it occurred. (AR 206-207, 221).

During the time Petitioner and Officer Lopez were exchanging calls on the morning of the incident, Officer Lopez called several media outlets, including TMZ. (AR 208). According to Officer Lopez, her only purpose in calling TMZ was to determine whether Petitioner was exaggerating her description of the incident involving Ms. Fenty and Chris Brown. (AR 208, 220). However, Officer Lopez admitted that she dialed “star-6-7” when she called TMZ to block her number. (AR 218). Between her attempts to contact TMZ, Officer Lopez called Petitioner ten times, and Petitioner called Officer Lopez seven times. (AR 221-222). Petitioner testified that Officer Lopez never mentioned that she was trying to contact TMZ during these conversations. (AR 443-444).

Petitioner also claims that during these phone calls, she never told Officer Lopez about the photographs of Ms. Fenty on her phone. (AR 440). However, Petitioner did admit that after the Department began investigating her, she told Officer Lopez that “she was in trouble because of a picture that she had on her phone that TMZ aired.” (AR 225-226). Officer Lopez testified that Petitioner never showed her the photographs. (AR 224).

The Department’s Response to the Leak

On February 19, 2009, members of the LAPD discovered that a photograph matching the one of Ms. Fenty on Petitioner’s phone had been released by TMZ. (AR 84, 159-160, 457, 591). Soon after the photograph’s release, Petitioner was contacted by Officer Perez who told Petitioner that the photograph she had taken had been released by TMZ. (AR 456-460).

On February 20, 2009, during one of the Wilshire Division’s roll calls that Petitioner attended, Captain Eric Davis told officers to come forward if they knew who took or released the photograph. (AR 169, 457, 461). At the Board hearing, Captain Davis stated that he did not tell the officers he was giving them a direct order or command to come forward with information about the leak. (AR 174, 180-182, 184). Although he believed at the time of the roll call that he gave a directive to the officers, he testified that he could have used more direct language to indicate to the officers the seriousness and urgency of his request. (AR 185).

After Captain Davis’ appearance at the February 20, 2009 roll call, Petitioner and Officer Perez spoke again. (AR 470). According to Petitioner, one of them asked the other something to the effect of “How much did you get for it?” or “Did you do it,” referring to the leak of the photograph. (AR 469-470, 472).

On February 24, 2009, Captain Evangelyn Nathan spoke at a Wilshire Division roll call that Petitioner also attended, where she directed officers to come forward with information. (AR 250-251, 469). Captain Nathan testified that although she did not tell the officers she was giving them a direct order, she used words to the effect of: “If you have any information about who did it or if you are the person who did it, come forward.” (AR 254). She believed that due to the fact that she was instructing subordinate officers, such instructions were sufficient to constitute a direct order. (AR 252). Captain Nathan testified that Petitioner never came forward to admit that she had either taken the photograph or released the photograph to TMZ. (AR 252-253).

At the Board hearing, Petitioner admitted that she heard both Captain Davis’ and Captain Nathan’s requests for information concerning the leak of the photograph to TMZ. (AR 469). She also admitted that she violated Captain Nathan’s directive by not coming forward with information concerning the leak. (AR 575).

The Department’s Investigation of Petitioner

On June 25, 2009, the LAPD served a search warrant for Petitioner’s residence. (AR 322). After the search warrant was served, Petitioner was interviewed by Internal Affairs Commanding Officer (“CO”) Michael Moriarty. (AR 323). During the interview, Petitioner told CO Moriarty that she had forwarded the photograph on her phone to several people; however, she denied ever leaking the photograph to TMZ. (AR 330).

With regard to the LAPD’s execution of the search warrant on Petitioner’s residence, the search did not reveal any evidence definitively connecting Petitioner to the TMZ leak. (AR 329). The LAPD also served search warrants for Petitioner’s lockers, cars, computers, and cell phones. (AR 503). According to Petitioner, none of the search warrants revealed any evidence connecting Petitioner to the leak. (AR 503-504). The LAPD also served search warrants on TMZ, Fox, and Petitioner’s bank accounts. (AR 331). According to CO Moriarty, none of the searches revealed financial information linking Petitioner to TMZ. (AR 331).

The Board’s Findings

On August 30, 2012, the Board found Petitioner guilty of Counts 9 and 10. (AR 667-670). Count 9 charged Petitioner as follows: “Between February 8, 2009 and February 19, 2009, you participated in the release of an evidentiary photograph to a news media, Thirty Mile Zone, (TMZ).” (AR 6). Count 10 charged Petitioner as follows: “On or about February 24, 2009, you, while on duty, failed to comply with a lawful order from your commanding Officer, Captain E. Nathan.” (AR 6).
As to Count 9, the Board stated the following:

The evidence presented at the hearing builds a very strong circumstantial case that Officer Reyes participated in the disclosure of the photograph depicting R. Fenty’s injuries to T.M.Z. First, the photograph Officer Reyes admits to taking a picture of is identical to the photograph leaked to T.M.Z. Second, Department [Exhibit] 22 is a graphic representation of the cell phone calls between Officer Reyes and Officer Lopez on February 8, 2009, the date the evidentiary photo was captured by Officer Reyes. This exhibit shows the two officers spoke an astounding 51 times during the course of the day.

Although Officer Reyes explains the telephone conversations as having been the result of their ongoing emotional discussions regarding their recent breakup, the Board took note that it was the same day that Officer Lopez admitted during testimony that she contacted Fox Communications and TMZ.

Officer Lopez’s assertion that she was contacting these media outlets to see if Officer Reyes was exaggerating regarding the R. Fenty domestic violence incident defies logic and speaks to Officer Lopez’s lack of credibility. The Board cannot imagine a situation where a law enforcement officer would call a media outlet to verify a news story that was already, quote, “the buzz” at Wilshire and Hollenbeck.

Department [Exhibit] 15, an exhibit detailing the cell phone calls made by Officer Reyes and Officer Lopez during a portion of February 8, 2009, shows very clearly that the two officers spoke immediately before, during, and after Officer Lopez’s attempts to contact T.M.Z. Moreover, Officer Lopez admitted to dialing star 67 to block identification of her telephone number, something that would be unnecessary if she merely wanted to verify a news story.

While the Board was not able to conclusively determine that Officer Reyes personally released the photograph to T.M.Z., it is clear that Officer Reyes facilitated the release of the photograph to the media. T.M.Z. reported that the photograph originated from a law enforcement source.

(AR 667-669).

As to Count 10, the Board observed the following:

The Board listened to the testimony of Captain Nathan wherein she described her appearance at roll call on February 24, 2009. Captain Nathan stated that she did not give a direct order but, quote, “It was just the fact that I uttered the words was sufficient,” closed quote. Captain Nathan was unequivocal in her testimony when she stated that she told the assembled officers that, quote, “If you have information, come forward.”

The Board took note that this was the second time in which a captain from Wilshire area had appeared before roll call and broached the subject of officers’ responsibility to come forward regarding the release of the evidentiary photograph. While Captain Davis stated that his language was not as forceful as it should have been in conveying his message, the message that Captain Nathan conveyed four days later was much stronger and not open to interpretation on the part of Officer Reyes.

Officer Reyes testified she felt she did not have to come forward because what she claimed to have heard Captain Nathan state was, quote, “Whoever released the photograph,” closed quote, should come forward. Officer Reyes’s assertion lacks credibility in her attempt to not accept responsibility to come forward.

(AR 669-670).

On August 31, 2012, the Board issued its recommended penalty. In light of the fact that Petitioner’s misconduct involved breaching a victim’s confidentiality and illegally disseminating evidence, the Board unanimously recommended that Petitioner be discharged from the LAPD. (AR 716-719). Although Petitioner pled guilty to several of the counts charged against her, the Board found that her pleas did not sufficiently mitigate her misconduct because she never voluntarily came forward with information about the photograph’s leak prior to the Department’s investigation. (AR 717-718). On September 12, 2012, Chief Beck issued his final decision upholding the Board’s findings and recommendation. (Petition ¶ 9).

Petitioner, in pro per, filed a verified Petition for writ of mandate on December 7, 2012. On December 31, 2012, Petitioner filed a substitution of attorney indicating that she had retained Ira M. Salzman as counsel. Although Petitioner, through her counsel, filed an opening brief and lodged the administrative record, she has not filed a reply to Respondents’ opposition brief. The matter was argued and submitted on March 20, 2014.

Standard of Review

Petitioner seeks a writ of mandate pursuant to California Code of Civil Procedure section 1094.5. In her opening brief, Petitioner only challenges the sufficiency of the evidence supporting the Board’s guilty findings under Counts 9 and 10; Petitioner does not challenge the propriety of the Board’s decision to discharge her from the LAPD.

Section 1094.5 of the California Code of Civil Procedure governs judicial review by administrative mandate of adjudicatory decisions rendered by administrative agencies. A trial court’s review of an adjudicatory administrative decision is subject to two possible standards of review depending on the nature of the right involved. Code Civ. Proc., § 104.5(c). Where the case deals with a vested, fundamental vested right, the court is directed to exercise its independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal. 3d 130, 143; Strumsky v. San Diego County Employees Retirement Assn., (1974) 11 Cal.3d 28, 32. Under this standard, the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the entire record to determine whether the weight of the evidence supports the administrative findings. Bixby, supra, 4 Cal. 3d at p. 143. If, however, the agency’s decision neither involves nor substantially affects a fundamental vested right, the trial court’s review is limited to determining whether the agency’s decision and findings are supported by substantial evidence. Id., at p. 143; Strumsky, supra, 11 Cal.3d at p. 32.

Whether an agency’s decision substantially affects a fundamental vested right must be determined on a case-by-case basis. Bixby, supra, 4 Cal. 3d at p. 144. A right may be deemed fundamental “on either or both of two bases: (1) the character and quality of its economic aspect; [or] (2) the character and quality of its human aspect.” Intrastate Brands v. Unemployment Ins. Appeals Bd., (1980) 26 Cal.3d 770, 780. “The ultimate question in each case is whether the affected right is deemed to be of sufficient significance to preclude its extinction or abridgment by a body lacking judicial power.” Id., at p. 779, fn. 5.

Because the Respondents’ decision to terminate Petitioner from her employment with the LAPD affects a fundamental vested right, the Court exercises its independent judgment on the evidence. See Wences v. City of Los Angeles, (2009) 177 Cal.App.4th 305, 313-319. Under the independent judgment standard, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Bixby, supra, 4 Cal. 3d at p. 143. The court has the power to “draw its own reasonable inferences from the evidence” and to make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Bd. Of Comm’ners, (2003) 107 Cal. App. 4th 860, 868. In short, the court substitutes its own judgment for that of the agency regarding the basic findings of fact and witness credibility. Guymon v. Bd. Of Accountancy, (1976) 55 Cal. App. 3d 1010, 1016. However, the court must still grant administrative findings a “strong presumption of correctness” and the party challenging the administrative findings bears the burden of demonstrating that the administrative findings were “contrary to the weight of the evidence.” Fukuda v. City of Angels, (1999) 20 Cal. 4th 805, 816-17.

Analysis

1. The Weight of the Evidence Supports the Board’s Guilty Finding under Count 9

Petitioner contends the Department failed to produce sufficient evidence to support the Board’s finding that Petitioner committed the conduct alleged in Count 9. Under Count 9, the Department charged Petitioner as follows: “Between February 8, 2009 and February 19, 2009, you participated in the release of an evidentiary photograph to a news media, Thirty Mile Zone, (TMZ).” (AR 6). Specifically, Petitioner argues the Department failed to produce forensic or physical evidence corroborating the Department’s allegation that Petitioner participated in the release of the photograph of Ms. Fenty’s injuries to TMZ. Petitioner asserts that the Board’s guilty finding cannot be sustained because numerous individuals possessed, and had access to, the photograph released to TMZ, and there is no evidence Petitioner ever contacted TMZ. Petitioner is mistaken.

At the hearing, the Board found that Petitioner’s denial of her involvement in the release of the photograph to TMZ was not credible. The Board rejected Petitioner’s explanation that her phone calls with Officer Lopez on the morning of February 9, 2009 were about Petitioner’s and Officer Lopez’s ongoing breakup and not about the incident between Ms. Fenty and Chris Brown. (AR 667-668). The Board found this explanation lacked credibility because Officer Lopez admitted that she repeatedly tried to contact TMZ between phone calls with Petitioner. (AR 668). The Board also found that Officer Lopez’s statement that she attempted to contact TMZ to verify Petitioner’s story lacked credibility, especially in light of the fact that Officer Lopez blocked her phone number before calling the media outlet. (AR 668). Although the Board could not conclude that Petitioner personally released the photograph to TMZ, it determined that sufficient evidence demonstrated that Petitioner facilitated the release of the photograph to the media. (AR 669).

This finding is supported by the weight of the evidence. First, Petitioner admitted that she took the photograph that was ultimately leaked to TMZ. (AR 408-411, 457-460). Second, Petitioner admitted sending that photograph to two other LAPD officers and her personal email account prior to the photograph’s release by TMZ on February 19, 2009. (AR 330, 444-457). Third, Petitioner admitted calling Officer Lopez several times hours after the domestic violence incident between Ms. Fenty and Chris Brown. (AR 434-436). Although Petitioner testified that she could not remember what she spoke about during those phone conversations, Officer Lopez testified that Petitioner talked about the incident. (AR 206-207, 221, 436-437). During the time between Officer Lopez’s and Petitioner’s phone calls on February 9, 2009, Officer Lopez tried to contact various media outlets, including TMZ. (AR 208). Although Officer Lopez testified that her only purpose in attempting to contact these outlets was to verify whether Petitioner was telling the truth, Officer Lopez admitted that she dialed “star-6-7” while making these calls to block her phone number. (AR 218). Officer Lopez did not explain why she blocked her phone number if she was only trying to verify the accuracy of Petitioner’s story. Finally, following the photograph’s release by TMZ, Petitioner discussed her involvement in obtaining copies of the photograph prior to the leak with a number of individuals. (AR 225-226, 456-460, 491). For example, soon after the photograph was leaked on February 19, 2009, Officer Jason Perez contacted Petitioner to tell her that the photograph she had taken on her phone had been released by TMZ. (AR 456-460). Also, during the Department’s investigation of the leak, Petitioner told Officer Lopez that “she was in trouble because of a picture that she had on her phone that TMZ aired.” (AR 225-226). Although the Department never discovered physical evidence connecting Petitioner to the leak during its execution of the search warrants on Petitioner’s property, (AR 329-331), the foregoing evidence and admissions constitute sufficient evidence to establish that Petitioner at least participated in or facilitated the photograph’s release to TMZ.

In short, after conducting an independent review of the evidence, the Court finds that Petitioner participated in the release of the photograph showing Ms. Fenty’s injuries to TMZ.

2. The Weight of the Evidence Supports the Board’s Guilty Finding under Count 10

Petitioner next contends the weight of the evidence does not support the Board’s finding that Petitioner committed the conduct alleged in Count 10. Under Count 10, the Department charged Petitioner as follows: “On or about February 24, 2009, you, while on duty, failed to comply with a lawful order from your commanding Officer, Captain E. Nathan.” (AR 6). Petitioner argues that the Board’s finding as to Count 10 is improper because it contradicts the Board’s finding as to Count 7. Under Count 7, the Department alleged that Petitioner failed to comply with a lawful order given by Captain Davis on February 20, 2009. (AR 5). Again, Petitioner is mistaken.

At the conclusion of the August 30, 2012 proceeding, the Board found Petitioner not guilty under Count 7 because Captain Davis testified that the wording of his request for officers to come forward with information regarding the leak was not very clear or forceful and likely did not constitute an official order. (AR 665). The Board also noted that Captain Davis testified that during his adjudication of the initial complaint against Petitioner, he did not sustain the allegation that Petitioner failed to comply with his order because he felt he was not clear with his expectation that officers come forward with information regarding the leak. (AR 665; see also AR 198). On the other hand, in finding Petitioner failed to comply with Captain Nathan’s February 24, 2009 order, the Board determined that Captain Nathan’s request for information regarding the leak constituted an order because Captain Nathan used stronger and less equivocal language than Captain Davis and the officers who heard Captain Nathan’s request, including Petitioner, were already on notice that the Department expected officers to come forward with information. (AR 669).

Substantial evidence supports the Board’s finding that Petitioner failed to comply with Captain Nathan’s February 24, 2009 order. First, as the Board acknowledged, Captain Nathan, in contrast to Captain Davis, testified that she clearly directed the Wilshire Division officers to come forward with information regarding the leak. (AR 252-254). According to Captain Nathan, she used words to the effect of: “If you have any information about who did it or if you are the person who did it, come forward.” (AR 254). Although Captain Nathan admitted that she did not explicitly tell the officers she was giving them a direct order, she believed her words were clear enough to inform the officers that they were required to comply with her request. (AR 252). Second, Petitioner admitted that she heard this request from Captain Nathan. (AR 469). Third, Captain Nathan testified that Petitioner never came forward with information regarding the leak. (AR 252-253). Finally, near the end of her testimony at the Board hearing, Petitioner stated that she believed she violated Captain Nathan’s directive when she failed to inform Captain Nathan that she had taken the photograph released to TMZ. (AR 575).

After conducting an independent review of the evidence, the Court finds that Petitioner failed to comply with Captain Nathan’s order or directive.

3. Petitioner Does Not Challenge the Propriety of the Board’s Penalty Decision

Although Petitioner alleges in her verified pleading that Respondents abused their discretion in discharging her from the LAPD, she does not challenge the imposed penalty in her opening brief. Thus, Petitioner has waived her right to review the imposed penalty. See Interinsurance Exchange v. Collins, (1994) 30 Cal.App.4th 1445, 1448 (“parties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant’s . . . issue as waived”).

In any event, the Court finds that Respondents did not abuse their discretion in firing her. At the hearing, the Board considered Petitioner’s involvement in releasing the photograph of Ms. Fenty’s injuries to the media against her otherwise positive work history. (See AR 716-719). The Board determined that Petitioner’s actions constituted serious misconduct that severely undermined the trust that victims need to have in LAPD officers. (AR 716). Further, the Board found that Petitioner’s misconduct constituted a violation of the “Law Enforcement Code of Ethics” because she breached her duty of confidentiality with regard to official police conduct. (AR 716-717). Moreover, the Board determined that Petitioner violated state law and Department policy by photographing and disseminating evidence of a victim’s injuries. (AR 717). Aside from implications of Petitioner’s involvement in the photograph’s media release, the Board took issue with Petitioner’s failure to be forthcoming with information about the leak during the Department’s investigation. (AR 718-719). In light of these circumstances, the Board unanimously recommended that the Department discharge Petitioner. (AR 719).

The Court agrees that Petitioner should have been fired for participating in the release of the photograph showing Ms. Fenty’s injuries to TMZ and failing to comply with Captain Nathan’s order as alleged in Counts 9 and 10. At a minimum, the public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability.

4. The Administrative Record is Incomplete

Finally, it is well established that the administrative findings are entitled to “a strong presumption of correctness,” and “the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 817. Here, Petitioner has lodged an incomplete administrative record. Indeed, none of the exhibits marked and admitted at the administrative hearing are included in the record, including exhibits 15 and 22 which were cited by the Board in finding Petitioner guilty of Count 9. (AR 667-669). This omission is fatal. See Elizabeth D. v. Zolin, (1993) 21 Cal.App.4th 347, 355 (partial record of an administrative proceeding is sufficient only if it provides the reviewing court a basis for the affirmance or reversal of the order or decision).

Disposition

For these reasons, the Petition for writ of mandate is denied. Respondents shall file and serve a proposed judgment within 10 days with a proof of service showing that it was served on Petitioner. The administrative record shall be returned to the party who lodged it, to be preserved without alteration until the judgment is final, and to be forwarded to the Court of Appeal in the event of an appeal.

IT IS SO ORDERED.