Judge: Curtis A. Kin, Case: 22STCP03299, Date: 2023-09-26 Tentative Ruling

Case Number: 22STCP03299    Hearing Date: September 26, 2023    Dept: 82

Petitioner Nathaniel Helton petitions for writ of mandate directing respondents City of Los Angeles (“City”) and Kristin M. Crowley, in her official capacity as Fire Chief, to set aside the termination of petitioner and restore him to his prior position of Firefighter with back pay.  

I.       Factual Background

            Petitioner Nathaniel Helton was employed by the Los Angeles Fire Department (“LAFD”) as a Firefighter. (Helton Decl. ¶ 1.)

            On August 18, 2021, the Los Angeles City Council adopted Ordinance No. 187134 (“Ordinance”). (Girard Decl. ¶ 5; Kepner Decl. ¶ 7.) The Ordinance required City employees to be fully vaccinated for COVID-19, or to have requested an exemption, and to have reported their vaccination status no later than October 19, 2021. (Girard Decl. ¶ 5 & Ex. K; Kepner Decl. ¶ 8; see also Los Angeles Administrative Code [“LAAC”] 4.701(a).) As of October 20, 2021, compliance with the COVID-19 vaccination and reporting requirements were conditions of employment. (Girard Decl. ¶ 5 & Ex. K; LAAC § 4.701(b).)

             On October 14, 2021, during negotiations between the City Administrative Officer and City employee unions, the City issued its Last, Best, and Final Offer regarding the consequences of failing to comply with the vaccine mandate (“LBFO”). (Girard Decl. ¶ 6 & Ex. L.) Under the LBFO, employees who had not submitted proof of full vaccination status or a request for exemption by October 20, 2021 would be issued a Notice of Mandatory COVID-19 Vaccination Policy Requirements (“Notice”). (Girard Decl. Ex. L at 1.) Employees who received the Notice were required to sign it and comply with the terms therein as a condition of employment. (Girard Decl. Ex. L at 2.) The terms included testing for COVID-19 twice a week with the City or a vendor chosen by the City, i.e., Bluestone, and deduction of the cost of the testing from the employee’s paycheck. (Girard Decl. Ex. L at 2; Kepner Decl. ¶ 12.) Employees who did not show proof of full compliance by December 18, 2021 would be subject to corrective action. (Girard Decl. Ex. L at 2.)

            On October 26, 2021, the City Council adopted “Resolution Implementing Consequences for Non-Compliance with the Requirements of Ordinance No. 187134” (“Resolution”). (Girard Decl. ¶ 11 & Ex. A to Ex. N.) Having reached an impasse with City labor organizations but having found a need to address the threat to public and workplace safety posed by the COVID-19 pandemic, the City Council ordered the Mayor, through appointing authorities, to implement the LBFO. (Girard Decl. ¶ 11 & Ex. A to Ex. N.)

            On October 28, 2021, the Mayor issued a memorandum ordering all department heads to immediately implement the LBFO and to issue the Notice to each employee who is unvaccinated and has not requested an exemption. (Gerard Decl. ¶ 11 & Ex. N.) Employees who failed to report their vaccination status by October 19, 2021 would be treated as unvaccinated. (Gerard Decl. ¶ 11 & Ex. A to Ex. N.) Upon receiving the Notice, the employee would have 24-48 hours to review and sign the Notice. (Gerard Decl. Ex. N at 2-3.) If an employee who had not filed an exemption form refused to sign the Notice, the employee would be placed off duty without pay pending service of a Skelly package. (Gerard Decl. Ex. N at 2.) The Mayor’s memorandum also provided that sworn employees would be subject to applicable “Board of Rights proceedings.” (Gerard Decl. Ex. N at 2.)

            On December 1, 2021, petitioner received the Notice. (Helton Decl. ¶ 2 & Ex. C.) On the same date, petitioner received a “Notice and Order to All Affected Members” dated November 9, 2021 (“Notice and Order”). (Helton Decl. ¶ 3 & Ex. D.) The Notice and Order indicated that petitioner was not fully vaccinated against COVID-19 and/or had not reported his vaccination status. (Helton Decl. Ex. D.) The Notice and Order gave petitioner 48 hours to activate his Bluestone account and sign the Notice. (Helton Decl. Ex. D at 1.) If petitioner did not complete the requirements of the Notice and Order within 48 hours of service, petitioner would be “placed off-duty without pay pending disciplinary review for failure to meet a condition of employment.” (Helton Decl. Ex. D. at 1.)

            Petitioner did not sign the Notice. (Helton Decl. ¶ 5.) In refusing to sign the Notice, petitioner was advised and believed that having to pay for employer-required testing would violate the California Labor Code. (Helton Decl. ¶ 5.)

            On December 6, 2021, petitioner received a phone call from his captain stating that he was being placed on leave without pay. (Helton Decl. ¶ 6; see also Kepner Decl. ¶ 15 [“[B]ecause Petitioner did not comply with the requirement that he been [sic] vaccinated for COVID-19 and did not indicate that he had begun compliance or planned to comply, he was placed off-duty without pay effective December 7, 2021 for failure to meet the condition of employment that he be vaccinated for COVID-19 pending a Board of Rights hearing”].) Petitioner had not requested a medical or religious exemption. (Kepner Decl. ¶ 15.) Petitioner advised the Fire Chief by email that he was exercising his right to have the matter adjudicated by a Board of Rights. (Helton Decl. ¶ 6.) Petitioner also complained about being placed on unpaid leave without procedural pre-discipline procedures. (Helton Decl. ¶ 6.)

            Petitioner filed an informal grievance on December 9, 2021 and a formal grievance on December 17, 2021. (Helton Decl. ¶¶ 7, 9; Kepner Decl. ¶ 18 & Ex. P [formal grievance].) Both grievances were denied. (Helton Decl. ¶¶ 8, 12.)

            On December 14, 2021, LAFD issued an “Investigation Notification” to petitioner, which notified petitioner that he was the subject of an investigation into whether he complied with the vaccination requirement. (Kepner Decl. ¶ 17 & Ex. O.) Petitioner received the Investigation Notification on December 30, 2021. (Helton Decl. ¶ 11.) Petitioner was not interviewed during the investigation. (Helton Decl. ¶ 11.)  

            On February 22, 2022, LAFD issued to petitioner a “Proposed Board of Rights” indicating that the Skelly hearing was scheduled for March 10, 2022. (Kepner Decl. ¶ 20.) Petitioner’s counsel objected, indicating that petitioner would not participate in the hearing. (Kepner Decl. ¶ 20 & Ex. Q.) According to petitioner, the objection was based on respondents’ failure to provide due process under Skelly v. State Personnel Board (1975) 15 Cal.3d 194. (Helton Decl. ¶ 14.)

            On March 10, 2022, LAFD issued to petitioner a “Rescheduled Proposed Board of Rights” along with documents upon which the proposed action was based. (Kepner Decl. ¶ 21 & Ex. R.) The hearing was rescheduled for April 1, 2022. (Kepner Decl. ¶ 21 & Ex. R.) Petitioner’s counsel objected based on respondents’ failure to comply with due process. (Helton Decl. ¶ 15.) Petitioner failed to appear on April 1, 2022. (Kepner Decl. ¶ 22.)

            On April 4, 2022, LAFD issued a notice to petitioner regarding his failure to comply with the vaccine mandate. (Kepner Decl. ¶ 23 & Ex. S.) The documents were served on petitioner’s counsel and the Board of Fire Commissioners. (Kepner Decl. ¶ 23.) LAFD attempted to serve petitioner personally with the documents on April 6, 9, 13, 20, 24, and 27, 2022. (Kepner Decl. ¶ 23.) On May 4, 2022, due to the inability to personally serve petitioner, LAFD served petitioner by certified mail, in accordance with City Charter § 1060(d), and regular mail. (Kepner Decl. ¶ 23.) Petitioner received the notice on May 9, 2022. (Helton Decl. ¶ 16.)

            On May 10, 2022, LAFD issued to petitioner a “Board of Rights Selection Drawing,” which sought a mutually agreeable date on which the Chief Officers who would constitute the Board of Rights would be selected. (Kepner Decl. ¶ 24 & Ex. T.) On May 11, 2022, petitioner’s counsel objected to convening a Board of Rights and indicated that petitioner would not participate in the hearing. (Kepner Decl. ¶ 25.) According to petitioner, the objection was based on respondents’ failure to comply with due process. (Helton Decl. ¶ 17.)

            On May 31, 2022, LAFD issued to petitioner a “Notification of Board of Rights Hearing,” which specified that the hearing would take place on June 9, 2022. (Kepner Decl. ¶ 26 & Ex. U.) Petitioner was charged “[f]or failure to meet a condition of employment as set forth in City of Los Angeles Ordinance 187134 (effective August 25, 2021), by failing to comply with the City’s COVID-19 Vaccination Requirement, set forth in the Ordinance and codified as Section 4.701(a) and (b) of the Los Angeles Administrative Code.” (Kepner Decl. ¶ 26 & Ex. U.) Petitioner was also advised that he was relieved from duty as of May 31, 2022. (Kepner Decl. ¶ 26 & Ex. U.) LAFD attempted to personally serve petitioner with the documents on May 31, 2022 and June 1, 2022. (Kepner Decl. ¶ 26.) On June 1, 2022, when the server encountered petitioner, petitioner refused to sign and accept the papers. (Kepner Decl. ¶ 26 & Ex. U.) On June 1, 2022, LAFD served petitioner and his counsel by certified mail and regular mail. (Kepner Decl. ¶ 26 & Ex. U.) On June 7, 2022, petitioner’s counsel indicated that petitioner would not appear at the Board of Rights hearing. (Kepner Decl. ¶ 27.)

            On June 9, 2022, petitioner failed to appear at the Board of Rights. (Kepner Decl. ¶ 28; AR 5:13-14, 6:23-25, 8:19-21, 9:16-18, 10:2-4.) Pursuant to City Charter § 1060(h), the Fire Chief elected to dissolve the Board of Rights and remove petitioner from his position. (Kepner Decl. ¶ 31.) The Fire Chief issued a Notice of Renewal indicating that petitioner was discharged as of May 31, 2022. (Kepner Decl. ¶¶ 33, 34 & Ex. W.) On June 16, 2022, petitioner received the notice of his discharge. (Helton Decl. ¶ 19.)

II.      Procedural History

             On September 6, 2022, petitioner filed a Verified Petition for Peremptory Writ of Mandate.       On July 27, 2023, petitioner filed an opening brief. On August 28, 2023, respondents filed an opposition. On September 11, 2023, petitioner filed a reply.

III.     Analysis

A.           Evidentiary Matters

Petitioner’s request to take judicial notice of Exhibit A, the Statement of Decision in Los Angeles Police Protective League v. City of Los Angeles et al., LASC Case No. 21STCV39987 is GRANTED, pursuant to Evidence Code § 452(d).  The Court notes that the rulings of other trial courts are not binding on this Court.

Petitioner’s request to take judicial notice of Exhibit B, the Resolution Discontinuing COVID-19 Surveillance Testing Requirements Implemented Pursuant to Ordinance No. 187134 is GRANTED, pursuant to Evidence Code § 452(b).

Respondents’ requests for judicial notice are DENIED as “unnecessary to the resolution” of the issues before the Court. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1075.) The rulings of other trial courts are not binding on this Court.

B.           Standard of Review

As a preliminary matter, in the petition and the opening brief, petitioner invoked CCP § 1094.5 in seeking administrative mandamus. (Pet. ¶¶ 5-27; OB at 15:5-13.) However, because petitioner did not appear at the Board of Rights hearing, the Fire Chief dissolved the Board of Rights. (Kepner Decl. ¶¶ 32, 33.) Accordingly, there is no adjudicatory decision that is subject to review under CCP § 1094.5. Accordingly, the Court reviews the petition under CCP § 1085.

CCP § 1085(a) provides: “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 specially 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 that inferior tribunal, corporation, board, or person.”

“There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually 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 Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where…the claim is that an agency has failed to act as required by law.” (Id. at 705.)

“When a party seeks review of an administrative decision pursuant to Code of Civil Procedure section 1085, judicial review is limited to examining the agency proceedings to ascertain whether the agency's action has been arbitrary, capricious or lacking entirely in evidentiary support, or whether the agency failed to follow the proper procedure and give notices required by law. And, where the case involves the interpretation of a statute or ordinance, our review of the trial court's decision is de novo.” (Ideal Boat & Camper Storage v. County of Alameda (2012) 208 Cal.App.4th 301, 311, citing Pomona Police Officers' Assn. v. City of Pomona (1997) 58 Cal.App.4th 578, 584.) In independently reviewing legal questions, “An administrative agency's interpretation does not bind judicial review but it is entitled to consideration and respect.” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) In a CCP § 1085 writ petition, the petitioner generally bears the burden of proof. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)        

C.           Pre-Discipline Due Process

Petitioner contends that, instead of being provided with the pre-discipline removal procedures mandated by Skelly, he was terminated through a phone call. (Reply at 8:5-13; Helton Decl. ¶ 6.) Respondents respond that petitioner had 48 hours from service on December 1, 2021 of the Notice and Order to All Affected Members to sign the Notice of Mandatory COVID-19 Vaccination Policy Requirements. (See Helton Decl. Ex. D.) According to respondents, petitioner had the opportunity to respond to the Notice by indicating that he was vaccinated. (Opp. at 14:8-12.) Respondents also argue that petitioner was notified of the Board of Rights hearing and refused to participate. (Opp. at 14:15-22.)

The Los Angeles City Charter states, in relevant part:

The right of a member of the Fire Department, except the Fire Chief and any other member in a position exempt from civil service, to hold his or her office or position and to receive compensation attached to the office or position is hereby declared to be a substantial property right of which the holder shall not be deprived arbitrarily or summarily, nor other than as provided in this section. No member of the Fire Department shall be suspended, removed, or otherwise separated from the service of the Fire Department (other than by resignation), except for good and sufficient cause shown upon a finding of guilty of the specific charge or charges assigned as cause or causes after a full, fair and impartial hearing before a Board of Rights except as provided in subsection (b) and (h) of this section.

(City Charter § 1060(a), emphasis added.) Section 1060(b) of the City Charter allows the Fire Chief to “temporarily relieve from duty any member pending a hearing before and decision by a Board of Rights on any charge or charges pending against the member” “[a]fter following predisciplinary procedures otherwise required by law.” (Id. § 1060(b).) Section 1060(h) allows the Fire Chief to suspend or remove the member without a Board of Rights hearing if “the accused, without reasonable excuse, fails, or refuses to appear before the Board of Rights at the time and place designated.” (Id. § 1060(h).)

Mandatory pre-removal safeguards for a permanent civil service employee include “notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215.)

The Court finds that petitioner’s right to pre-discipline due process was violated here. It is true the Notice and Order to All Affected Members, dated November 9, 2021 provides notice of the proposed action, i.e., placement off-duty without pay pending disciplinary review. (Helton Decl. Ex. D.) It is also true the Notice and Order also provides the reasons for the action – failure to comply with the requirement under Ordinance No. 187134 to get vaccinated against COVID-19 and to report vaccination status. (Helton Decl. Ex. D.) However, no copy of the charges or materials upon which off-duty placement was based were provided. (See Helton Decl. Ex. D.)

Perhaps most importantly, the Notice and Order did not give petitioner the right to respond to the charges, as required by Skelly. (See also Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99, 107 [appellant “given notice of the charges, a copy of the materials upon which the action was based, and a right to respond to the charges” but after hearing, Chief of Police “considered new material, which had not previously been provided to appellant and as to which appellant had been given no opportunity to respond”].) Instead, the Notice and Order referred to a previously sent email and provided an email address if petitioner had questions about submission of documents or activation of the Bluestone account. (Helton Decl. ¶ 3 & Ex. D.) The Notice and Order also referred petitioner to the Help Desk if he had been off-duty for an extended period of time and needed assistance accessing his City email account. (Helton Decl. Ex. D.) Simply put, the Notice and Order did not provide petitioner any opportunity to respond to the charges against him.

            After work on December 6, 2021, petitioner received a phone call from his captain placing him on leave without pay. (Helton Decl. ¶ 6; Kepner Decl. ¶ 7 [petitioner placed off-duty without pay effective 12/7/21].) At this point, petitioner’s position and compensation were deprived arbitrarily and summarily, in violation of City Charter § 1060(a). Although section 1060(b) of the City Charter allowed the Fire Chief to suspend petitioner pending the hearing and decision by the Board of Rights, the option to suspend is only available “[a]fter following predisciplinary procedures otherwise required by law.” (City Charter § 1060(b).) Pursuant to Skelly, such procedures included having a copy of the charges and the materials upon which the action is based, as well as the right to respond to the charges. For the reasons stated above, petitioner was not provided these safeguards.

            Respondents argue that petitioner evaded service and refused to participate in the Skelly proceedings afterward. (Opp. at 15:17-21.) Even if true, “post-removal safeguards do nothing to protect the employee who is wrongfully disciplined against the temporary deprivation of property to which he is subjected pending a hearing.” (Skelly, 15 Cal.3d at 215.) Pre-removal procedural protections “minimize the risk of error in the initial removal decision.” (Ibid., quoting Arnett v. Kennedy (1974), 416 U.S. 134, 170.)

Respondents also point out that the charging documents had to be assembled for 367 firefighters (Opp. at 15:14-17) and that petitioner’s placement off-duty without pay occurred during an emergency, i.e., the COVID-19 pandemic. (Opp. at 14:4-7 [“The City’s Skelly process in this emergency situation satisfied the City’s Skelly obligations pending a more detailed Skelly”].) Nonetheless, the City Charter did not allow respondents to deprive petitioner of his position and compensation without the pre-removal safeguards mandated in Skelly. Furthermore, even if the existence of a pandemic emergency might have justified immediate placement of petitioner at home off-duty, respondents still had the option to assign petitioner to home without loss of position and pay until the pre-removal procedures and the Board of Rights hearing were completed. (Reply at 9:24-26.)  Respondents did not do so.

The remedy for a Skelly violation is the award of back pay while petitioner was wrongfully placed off-duty without pay. (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 402.) “[D]amages consist only of back pay for the period discipline was improperly imposed, i.e., from the date of actual discipline to the time discipline was validated by the hearing.” (Ibid.) Accordingly, petitioner is entitled to back pay from December 7, 2021 (the day his placement off-duty was effective) to June 9, 2021 (the day the Fire Chief elected to discharge petitioner after he failed to appear at the Board of Rights).

D.           Decision to Terminate Petitioner’s Employment

            Petitioner also seeks reinstatement of his position.  The Court finds he is not entitled to such relief.

Despite proper notice under City Charter § 1060(d), petitioner failed to appear at the Board of Rights hearing. (Kepner Decl. ¶¶ 26, 28.) “In general, a party must exhaust administrative remedies before resorting to the courts.” (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080.) The exhaustion doctrine “requires that a party must not only initially raise the issue in the administrative forum, but he must proceed through the entire proceeding to a final decision on the merits of the entire controversy.” (McHugh v. County of Santa Cruz (1973) 33 Cal.App.3d 533, 539.) “[E]xhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts.” (Abelleira v. District Court of Appeal, Third Dist. (1941) 17 Cal.2d 280, 293.) “The exhaustion doctrine is principally grounded on concerns favoring administrative autonomy (i.e., courts should not interfere with an agency determination until the agency has reached a final decision) and judicial efficiency (i.e., overworked courts should decline to intervene in an administrative dispute unless absolutely necessary).” (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 391.)  Here, by having failed to appear before the Board of Rights and challenge the disciplinary action against him and reasons therefor, petitioner failed to exhaust his administrative remedies.

             With respect to petitioner’s argument that no evidence of his guilt was presented at the Board of Rights (OB at 13:1-5), this was because, under City Charter § 1060(h), the Fire Chief was entitled to discharge petitioner without the Board of Rights Hearing due to petitioner’s failure to appear. By failing to appear at the hearing, petitioner may not now assert that respondents failed to prove that he failed to comply with the Ordinance at the hearing.  The Fire Chief was well within her rights to discharge petitioner once he failed to show after having received proper notice of the Board of Rights hearing.

IV.     Conclusion

For the foregoing reasons, the Petition for Writ of Mandate is GRANTED IN PART.  Due to the violation of petitioner’s pre-discipline due process rights, he is entitled to back pay from December 7, 2021, to June 9, 2021.  The Petition is otherwise DENIED.

Pursuant to Local Rule 3.231(n), petitioner shall prepare, serve, and ultimately file a proposed judgment and proposed writ of mandate.