Case Number: BS144984    Hearing Date: September 16, 2014    Dept: 82

John Eum
v.
City of Los Angeles, et al.

Tentative Decision and Order Granting Writ of Mandate under Topanga

Petitioner John Eum, a police officer with the Los Angeles Police Department (“LAPD” or “Department”), seeks a peremptory writ of mandate under Code of Civil Procedure sections 1085 and 1094.5 commanding Respondents City of Los Angeles and Chief of Police Charles Beck to set aside their June 19, 2013 order downgrading Petitioner from the position of Detective II to the position of Detective I. Petitioner also seeks back pay with restoration of his Detective II status and attendant benefits, as well as statutory penalties and damages under Gov. Code § 3309.5.

Having reviewed the pleadings, the administrative record, and the parties’ briefs, the Court rules as follows:

Requests for Judicial Notice

The parties’ unopposed requests are granted.

Evidentiary Objections

Petitioner’s objections to the declaration of Beatrice Girmala are overruled.

Statement of the Case

This lawsuit arises out of Petitioner’s downgrade from the position of Detective II to the position of Detective I resulting from alleged misconduct. Petitioner contends that the Department improperly took this action against him under the now invalid Special Order No. 47 (“SO47”). Special Order No. 47 removed Section 7/763.60 of the Department Manual, which provided that officers in an advanced pay rank could not be reclassified to a lower pay rank without good cause. In removing the good cause requirement, Special Order No. 47 vested a commanding officer with discretion to determine whether to reclassify a police officer to a lower pay grade. In an unpublished opinion filed on May 16, 2013, the Court of Appeal found that Special Order No. 47’s unilateral removal of the good cause requirement constituted an unconstitutional impairment of contract. LAPPL v. City of Los Angeles, 2013 WL 2099749 at *9-12.

Petitioner has been an officer with the LAPD since 1988. He was promoted to Detective I in February 1996, and then to Detective II in November 2006, an advanced pay grade position. (AR 78, 129; Eum Decl. ¶3). In September 2009, Petitioner was moved from being the Officer in Charge (“OIC”) of the sexual assault table in the Van Nuys division to an elder abuse investigator in Major Assault Crimes (“MAC”); however, he remained a Detective II. (AR 79-80). According to Petitioner’s supervisor, Lieutenant Steven Harer, the primary reason Petitioner was moved was due to a conflict Petitioner had with a deputy district attorney. (AR 15).

On December 18, 2009, Petitioner arrested Shane Sparks (AR 84), a dance studio teacher and minor celebrity accused of having sex with underage students. (AR 96-97). On December 23, 2009, Petitioner released Sparks’ booking photo to TMZ (AR 84). Petitioner testified that he told Lieutenant Munoz that he was going to release the photo prior to doing so, but, according to Petitioner, Munoz does not remember (AR 97). In addition, Petitioner released the crime report to a reporter. (AR 95).

On December 29, 2009, a Personnel Complaint (CF No. 09-00428) was initiated against an unknown officer regarding the release of information involving the Sparks’ case. (AR 84-86, 127). On January 27, 2010 and February 24, 2010, Internal Affairs conducted interviews of Petitioner regarding the Personnel Complaint. (AR 86-88). Petitioner testified that as soon as Department investigators approached him about the allegations, he told them exactly what happened and admitted to it. (AR 86).

Petitioner was charged with the following misconduct:

ALLEGATION 1. The Department alleges that on or between November 1 through November 30, 2009, [Petitioner], while on duty, inappropriately released confidential record [sic] of investigation to an unauthorized person, reporter Chirs [sic] Blatchford.

ALLEGATION 2. The Department alleges that on December 23, 2009, [Petitioner], while on duty, inappropriately released an arrestee’s booking photograph.

(AR 127). According to the Commanding Officer’s Adjudication in the Letter of Transmittal regarding Petitioner’s Complaint, it was recommended that Allegations 1 and 2 be classified as sustained (AR 127), Petitioner receive a penalty of 22 suspension days (AR 128), and “[i]n addition to the penalty recommendation, I have prepared a request that [Petitioner] be deselected from the advanced paygrade position of Detective II through the separate administrative process set forth by the Department Manual Section 3/763.55” (AR 129). However, Petitioner received two official reprimands instead of a 22 day suspension. (AR 98).

Petitioner received a “Temporary Restriction of Duties for [Petitioner]” on May 10, 2010 directing him not to perform the duties of detective supervisor (AR 154), and Petitioner also acknowledged receiving a copy of the administrative transfer and reassignment to a lower paygrade request on June 8, 2010 (AR 124). On August 31, 2010, Captain William A. Eaton issued a document titled “Request for Downgrade and Administrative Transfer of [Petitioner] . . .” requesting that Petitioner “be downgraded from his position as a Detective Supervisor in accordance with Department Manual Section 3/763.55. This downgrade is requested because of substantial misconduct (CF# 09-004928) for not following Department rules, policies and procedures relative to the release of Department investigative information.” (AR 122).

On November 22, 2010, the Department issued Transfer Order No. 13, indicating that effective December 5, 2010 Petitioner would be downgraded from Detective II to Detective I. (AR 133). Thereafter, Petitioner requested an administrative appeal hearing contesting his downgrade. (AR 134).

The hearing on Petitioner’s downgrade took place on June 4, 2013. (AR 1). On June 10, 2013, Hearing Officer Captain Steven S. Sambar issued a three-page decision (AR 205-208), stating in part:

Based exclusively on an examination of all evidence proffered at the hearing, the hearing officer finds by a preponderance of the evidence that there is sufficient cause to support [Petitioner’s] reassignment from Detective II to Detective I as set forth in Department Manual Section 3/763.55. It is recommended that [Petitioner’s] paygrade reduction be sustained by the Chief of Police.

(AR 205). Chief Beck adopted the Hearing Officer’s findings in his June 19, 2013 Order. (AR 209). This lawsuit followed.

Standard of Review

Petitioner seeks a writ of mandate pursuant to California Code of Civil Procedure sections 1085 and 1094.5. For purposes of determining whether Respondents’ conduct amounted to a violation of the Public Safety Officers Procedural Bill of Rights (Government Code section 3300 et seq.) (“POBRA”), the Court’s review is governed by Code of Civil Procedure section 1085. In contrast, the Court reviews the evidentiary findings of the Hearing Officer by exercising its independent judgment pursuant to Code of Civil Procedure section 1094.5. Both standards of writ review are set forth below.

1. Code of Civil Procedure Section 1085

A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board or person. A writ of traditional mandate will lie only “to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust or station.” Wasko v. Department of Corrections, 221 Cal. App. 3d 996, 1000 (1989).

There are two essential requirements to the issuance of an ordinary writ of mandate under CCP section 1085: (1) a clear, present and ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty. California Ass’n for Health Services at Home v. Department of Health Services, 148 Cal. App. 4th 696, 704 (2007). “Generally, a writ will lie when there is no plain, speedy, and adequate alternative remedy …” Pomona Police Officers’ Ass’n v. City of Pomona, 58 Cal. App. 4th 578, 583-84 (1997). A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety when a given state of facts exist. Trnasdyn/Cresci JV v. City and County of San Francisco, 72 Cal. App. 4th 746, 752 (1999). Discretion, by contrast, is the “power conferred on public functionaries to act officially according to the dictates of their own judgment.” Id.

Judicial review is limited under section 1085 to “an examination of the proceedings before the agency to determine whether its actions have been arbitrary or capricious, entirely lacking in evidentiary support, or whether it failed to follow proper procedures, or failed to give notice as required by law.” Taylor Bus Service, Inc. v. San Diego Board of Education, 195 Cal. App. 3d 1331, 1341 (1987). Under Code of Civil Procedure section 1085, if the function of this Court is to decide a question of law, the applicable standard of review is de novo. Woodland Park Management, LLC v. City of East Palo Alto Rent Stabilization Bd., 181 Cal. App. 4th 915, 919 (2010); Burden v. Snowden, 2 Cal. 4th 556, 562 (1992).

2. Code of Civil Procedure Section 1094.5

Section 1094.5 of the Code of Civil Procedure governs judicial review by administrative mandate of any final decision or order rendered by an administrative agency. A trial court’s review of an adjudicatory administrative decision is subject to two possible standards of review depending upon the nature of the right involved. Code Civ. Proc., § 1094.5(c). If the administrative decision substantially affects a fundamental vested right, the trial court must exercise its independent judgment on the evidence. Strumsky v. San Diego County Employees Retirement Assn., (1974) 11 Cal.3d 28, 32; Bixby v. Pierno, (1971) 4 Cal. 3d 130, 143.

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 trial 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 (internal citations/quotations omitted).

In reviewing the propriety of an administrative agency’s issued penalty, the agency’s findings must be sufficient to support the penalty imposed. Williamson v. Board of Medical Quality Assurance, (1990) 217 Cal.App.3d 1343, 1347. “The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. [Citations.]” Ibid. “'[I]n reviewing the penalty imposed by an administrative body which is duly constituted to announce and enforce such penalties, neither a trial court nor an appellate court is free to substitute its own discretion as to the matter; nor can the reviewing court interfere with the imposition of a penalty by an administrative tribunal because in the court’s own evaluation of the circumstances the penalty appears to be too harsh. [Citation.] Such interference, . . . will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion.’ [Citation.]” Ibid. (Emphasis original).

Analysis

Petitioner challenges the June 19, 2013 final order on the following grounds: (1) Respondents acted contrary to the law in applying Special Order 47 to downgrade Petitioner; (2) Respondents cannot successfully argue that the Department applied the pre-Special Order 47 sections, 763.55 or 763.60; (3) Respondents violated Gov. Code § 3304(f)—when they failed to provide Petitioner with timely written notice of the effective date of his downgrade; and (4) the penalty imposed by the Department was excessive.

Respondents counter that the Petition must be denied because: (1) the Department followed both the old rules and the new rules (SO47) in downgrading Petitioner; (2) the Hearing Officer applied the old rules in affirming Petitioner’s downgrade; (3) the City did not violate Gov. Code § 3304(f) because it does not apply to downgrades, and, even if it did apply, Petitioner has not met his burden of showing he did not receive written notice within 30 days after the Department decided to downgrade him; additionally, Petitioner is not entitled to any penalty or damages for POBRA violations; and (4) the downgrade was not a penalty or excessive.

In Topanga Assn. for a Scenic Community v. County of Los Angeles, (1974) 11 Cal. 3d 506, 515, the Supreme Court held that “implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” The court explained that “among other functions, a findings requirement serves to conduce the administrative body to draw legally relevant sub-conclusions supportive of its ultimate decision; the intended effect is to facilitate orderly analysis and minimize the likelihood that the agency will randomly leap from evidence to conclusions. [Citations.] In addition, findings enable the reviewing court to trace and examine the agency’s mode of analysis. [Citations.] Absent such road signs, a reviewing court would be forced into unguided and resource-consuming explorations; it would have to grope through the record to determine whether some combination of credible evidentiary items which supported some line of factual and legal conclusions supported the ultimate order or decision of the agency. Moreover, properly constituted findings enable the parties to the agency proceeding to determine whether and on what basis they should seek review. [Citations.] They also serve a public relations function by helping to persuade the parties that administrative decision-making is careful, reasoned, and equitable.” 11 Cal. 3d at pp. 516-517 (fns. omitted.) When the administrative agency’s findings are not adequate, an appropriate remedy is to remand the matter so that proper findings can be made. See Eureka Teachers Assn. v. Board of Education, (1988) 199 Cal. App. 3d 353, 367-369; see also McMillan v. American Gen. Fin. Corp., (1976) 60 Cal. App. 3d 175, 183 (adequacy of administrative findings considered on appeal even though not raised in proceedings below.).

Here, the parties’ main dispute involves whether the Department applied SO47 in downgrading Petitioner’s position. Because the Hearing Officer’s decision, as adopted without modification by the Chief of Police, is inadequate to allow the Court to review the decision in a meaningful manner, the petition for writ of mandate is granted under Topanga.

SO47 went into effect on October 30, 2009, deactivating Department Manual Section 3/763.60 and revising 3/763.55. (AR 202-204). Prior to SO47, section 3/763.55 stated:

REASSIGNMENT TO A LOWER PAYGRADE POSITION. An officer below the rank of lieutenant in an advanced paygrade position may be reassigned to a lower paygrade position within his/her classification when one of the following conditions exist:
* An officer requests reassignment; or,
* An officer completes a fixed tour of duty in a position; or,
* A position is eliminated; or,
* When an officer clearly demonstrates his/her failure or inability to satisfactorily perform the duties of the position.

(Pet. RJN Exhibit A). Following SO47, section 3/763.55 was revised to state, in relevant part:

DESELECTION FROM ADVANCED PAYGRADE OR BONUS POSITION. An officer below the rank of lieutenant may be reassigned to a position of lower paygrade, to a non-bonus position, or both, in any of the following conditions: . . . .

B. A commanding officer, in his/her discretion, decides that reassignment is appropriate after determining that a subordinate officer committed an act that merits the reassignment to a lower paygrade position, a non-bonus position, or both. Such a reassignment may be done with or without a personnel complaint. . . .
(AR 202-203).

Here, the Letter of Transmittal (erroneously dated March 15, 2009), which sustained Allegations 1 and 2 against Petitioner, stated in part:

In addition to the penalty recommendation, I have prepared a request that [Petitioner] be deselected from the advanced paygrade position of Detective II through the separate administrative process set forth by the Department Manual Section 3/763.55.

(AR 129). It was not until the Department issued SO47 that Section 3/763.55 was amended to include the procedure a commanding officer was required to follow in pursuing an advanced-rank officer’s downgrade; that procedure was previously set forth in Section 3/763.60, which SO47 deleted. (Compare AR 202-204 with AR 130-131). Indeed, the opening paragraph of the Request for Downgrade dated August 31, 2010 provides: “It is requested that [Petitioner] be downgraded from his position as a Detective Supervisor in accordance with Department Manual Section 3/763.55.” (AR 122). The Request then goes on to state, “[p]ursuant to Department Manual Section 3/763.55, I advised [Petitioner] on June 8, 2010 on [sic] his right to provide a written response to the proposed personnel action within 30 days.” (Ibid.). The Request for Downgrade also does not contain the “satisfactorily perform” language from the pre-SO47 section 3/763.55, but instead refers to “sustained misconduct.” (Ibid.). Finally, although Captain Eaton passed away before Petitioner’s hearing, Lieutenant Harer testified at the hearing that Captain Eaton’s downgrade of Petitioner was based on SO47. (AR 28-29). Indeed, Lieutenant Harer further testified that Petitioner was downgraded “in conjunction with Special Order 47.” (AR 40).

However, Commander Weinstein’s opined that “the old rules . . . are basically the same as the new rules when it involves a personnel complaint” (AR 67), and [s]o the answer to the question whether or not the Department followed the rules, the answer is yes.” (AR 76-77). Further, on May 10, 2010, in a document titled “Temporary Restriction of Duties . . .” the Department directed Petitioner “not to perform the duties of a detective supervisor” and that “[a]fter the final adjudication of this complaint you will be notified of your restoration of duties or continued duty restrictions.” (AR 154).

In addition, the written decision from June 10, 2013 by Commanding Officer Steven S. Sambar (AR 205-208) states, in relevant part:

Based exclusively on an examination of all evidence proffered at the hearing, the hearing officer finds by a preponderance of the evidence that there is sufficient cause to support [Petitioner’s] reassignment from Detective II to Detective I as set forth in Department Manual Section 3/763.55.

It is recommended that [Petitioner’s] paygrade reduction be sustained by the Chief of Police. . . .

The downgrade was not done to punish, but to remove [Petitioner] from an advance paygrade position of significant supervisory responsibility, due to his irresponsible performance in releasing confidential documents resulting in a sustained personnel complaint.

A Detective II position is a senior detective supervisor rank. The performance of the duties of the elevated paygrade include following Department policies, rules, and procedures coupled with setting an example for subordinate personnel and maintaining public trust. The preponderance of the evidence showed that [Petitioner] failed to satisfactorily perform his duty as a detective supervisor and subjected the Department to significant liability for his actions as a supervisor.

Department Manual Section 3/763.55 specifies a procedure for reassigning to a lower paygrade. The evidence showed that [Petitioner] failed to perform the function of his advance paygrade, and that the Department’s interest included the need to reassign him to a non-supervisory position immediately in order to avoid liability for his actions as a supervisor.

(AR 205-206). The Court cannot determine if the reference to Section 3/763.55 is a reference to the old rules because of the language “failed to perform the function of his advance paygrade” and “reassign him to a non-supervisory position immediately” which mimic the Exception contained in Section 3/763.60.

Disposition

For these reasons, the petition for a writ of mandate is granted. Judgment shall be entered ordering a writ of mandate to issue from this Court, remanding this matter to Respondents and commanding them to set aside the decision and to reconsider their actions in light of this decision and order.

On remand, Respondents shall comply with the requirements of Topanga by making findings which bridge the analytic gap between the raw evidence and the ultimate decision. Respondents, through the Hearing Officer, should specifically address whether the Department applied the pre or post SO47 grounds and procedures in downgrading Petitioner’s position, whether the Department complied with the requirements or procedures of the pre-SO47 rules in downgrading Petitioner, and whether the Department reclassified or downgraded Petitioner to a lower pay rank with or without good cause within the meaning of the applicable Department Manual.

Petitioner shall file and serve a proposed judgment and a proposed writ of mandate within 10 days with a proof of service showing that they were served on all parties. 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.