Judge: Curtis A. Kin, Case: 22STCP04394, Date: 2023-12-05 Tentative Ruling

Hon. Curtis Kin The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 22STCP04394    Hearing Date: December 5, 2023    Dept: 82

Petitioner City of Los Angeles, acting by and through the Los Angeles Police Department, petitions for a writ of mandate directing respondent Los Angeles City Employee Relations Board to set aside its decision finding that the termination of an employee represented by real party in interest Engineers and Architects Association violated the Employee Relations Ordinance.

I.       Factual Background

James Abrams was employed by petitioner City of Los Angeles as a Polygraph Examiner in the Technical Investigation Division (“TID”) of the Los Angeles Police Department (“LAPD”). (AR 25, 100.) As a Polygraph Examiner, Abrams’ duties involved conducting police officer candidate polygraph examinations, as well as internal examinations for current LAPD employees seeking assignments in specialized divisions. (AR 100.) The job required Abrams to testify truthfully and under oath in court as an expert witness. (AR 42.)

In September 2020, Abrams was informed that he was being investigated for falsifying records. (AR 25, 27.) Abrams was a member of real party in interest Engineers and Architects Association (“EAA”), the representative of Abrams’ bargaining unit at LAPD. (AR 25.) As part of the investigation, on October 8, 2020, with his EAA representative present, Abrams was interviewed by his supervisor Rodrigo Betancourt and denied falsifying records. (AR 26-28, 122.) On October 13, 2020, also with his EAA representative present, Abrams was interviewed a second time by Betancourt and admitted he had falsified records. (AR 308.)

TID Commanding Officer Tatiana Garcia adjudicated the initial personnel complaint against Abrams. (AR 92-93, 95-96.) Based on the investigation results, Garcia recommended that the charge for failure to properly conduct five assigned independent quality control assignments be sustained against Abrams, with imposition of a five-day suspension. (AR 124-25, 440.) Garcia submitted a Letter of Transmittal to LAPD’s Internal Affairs Division (“Internal Affairs”) regarding the proposed five-day suspension. (AR 120-22.) On February 18, 2021, Abrams was served with notice of LAPD’s intent to suspend him for five days for failure to perform job duties properly, to which Abrams filed a written Skelly response on March 4, 2021.[1] (AR 26, 158.)

On April 6, 2021, Garcia received a request from LAPD’s Professional Standards Bureau to conduct a follow-up investigation due to inconsistencies between Abrams’ Skelly response and his original investigatory interview on October 8, 2020. (AR 104, 122.) On April 27, 2021, Garcia instructed Betancourt to schedule a supplemental interview with Abrams. (AR 66.) That same day, Betancourt met with Abrams to notify him of the need for a supplemental interview due to inconsistencies between his Skelly response and his interview statements. (AR 72-74, 89, 164.)

On May 11, 2021, EAA filed its initial Unfair Employee Relations Practice (“UERP”) Claim 2132 alleging that, on April 27, 2021, Betancourt violated Abrams’ Weingarten rights and the Employee Relations Ordinance (“ERO”) when attempting to interview Abrams regarding pending discipline without an EAA representative present.[2] (AR 148-49, 152.)

On May 26, 2021, LAPD conducted a supplemental investigatory interview with Abrams. (AR 110.) During the supplemental interview, Abrams admitted that he made a false statement to the investigator and explained how he made the false statement. (AR 229.)

On June 11, 2021, Abrams was served with notice of LAPD’s intent to discharge him for making a false statement to the investigator during his October 8, 2020 investigatory interview. (AR 50, 55, 223-24.) Specifically, Abrams received a copy of a June 9, 2021 memo from Commanding Officer, Internal Affairs to Commanding Officer, Detective Bureau, entitled “Change in Penalty,” which stated:

This correspondence has been prepared to inform you of a decision by the Chief of Police to reword Count 1, add Count 2, and change the penalty on a complaint investigation involving a member of your command.

COUNT 1: On or about June 25, 2020, you, while on-duty, failed to properly conduct five assigned independent quality control assignments.

COUNT 2: On or about October 8, 2020, you while on duty, made a false statement to the investigator, during your complaint investigation interview.

The original findings and recommendations of the Command Staff of Technical Investigation Division and Detective Bureau were reviewed by the Chief, who agreed with the recommended classification of SUSTAINED for Count 1. The Chief has also directed that Count 2 be SUSTAINED. With the addition of Count 2, the Chief disagreed with the recommended penalty of Five (5) Suspension Days. The Chief directed the penalty be modified to DISCHARGE.

(AR 223-24.) Abrams was given an opportunity to submit a supplemental written Skelly response by June 25, 2021, but did not do so. (AR 221.)

On July 1, 2021, LAPD served Abrams with a Notice of Discharge, effective July 2, 2021. (AR 445.) On July 2, 2021, Abrams filed a timely application with the Civil Service Commission (“CSC”) pursuant to Charter § 1016(c), requiring the CSC to hold a hearing to investigate the grounds for his discharge. (AR 215.) That same day, EAA filed an amended UERP charge alleging that, on June 11, 2021, LAPD served Abrams with a new charge that he had made a false statement in his Skelly response and would be discharged instead of suspended for five days. (AR 151, 153.) The EAA’s amended UERP charge alleged that the LAPD added the new charge and increased the penalty in retaliation for EAA’s filing the initial UERP charge on Abrams’ behalf. (AR 153-54.) On July 20, 2021, LAPD filed its Employer Response to the amended UERP charge, indicating Abrams had appealed his discharge to the CSC, requesting the CSC appeal process “be allowed to run its course,” and otherwise denying the allegations on the merits. (AR 176-80.)

At its August 23, 2021 meeting, respondent Los Angeles City Employee Relations Board (“ERB”) considered whether to send UERP 2132 to hearing in light of Abrams’ pending CSC appeal. EAA took the position that the hearings in both UERP 2132 and Abrams’ CSC appeal could proceed simultaneously. (AR 490-91.) In opposition, LAPD again requested the ERB continue the UERP hearing to allow Abrams’ CSC appeal proceeding to “run its course.” (AR 495.) The ERB then voted to send the matter to hearing, without waiting for the CSC to rule on Abrams’ CSC discharge appeal. (AR 497.)

In December 2021, LAPD contacted the ERB on two occasions to request the UERP hearing scheduled for February 4, 2022 be continued pending the completion of Abrams’ pending CSC proceeding. (AR 460, 469.) EAA objected to the delay. (AR 460.) The ERB’s Executive Director informed the parties he was denying LAPD’s continuance request, absent EAA’s agreement. (AR 460.)

On January 19, 2022, LAPD notified the ERB that the hearing in Abrams’ CSC appeal originally scheduled for February 2-3, 2022, had been postponed to a later date due to COVID-19. (AR 462.) LAPD indicated that, due to the pending CSC appeal, LAPD’s Internal Affairs had refused to provide LAPD’s Employee Relations Group, who was defending against the UERP claim, any information pertaining to EAA’s retaliatory discharge claim. (AR 462.) LAPD again requested that the UERP hearing be continued pending the completion of Abrams’ pending CSC appeal. (AR 462.) In the alternative, LAPD requested the Hearing Officer be instructed to limit the scope of the UERP hearing to the Weingarten violation claim only. (AR 462.)

On February 4, 2022, ERB-appointed Hearing Officer Jan Stiglitz held an evidentiary hearing on UERP 2132 via Zoom. (AR 305-06.) The matter was taken under submission on May 13, 2022, after receipt of the hearing transcript and the parties’ closing briefs. (AR 306, 371-403.) On May 16, 2022, the Hearing Officer issued a Report and Recommendation (“Report”). (AR 305-321.) The Hearing Officer found that LAPD had attempted to question Abrams about pending discipline without the presence of a union representative. (AR 317.) The Hearing Officer also found LAPD had failed to “support the existence of any legitimate basis for its decision to change a proposed 5-day suspension to a termination,” and that LAPD’s “decision to terminate Abrams’s employment was in retaliation for his filing the initial UERP charge.” (AR 320.) The Hearing Officer concluded LAPD had violated the ERO by (1) violating Abrams’ Weingarten rights; and (2) retaliating against Abrams for filing the initial UERP charge by increasing a 5-day suspension to a discharge. (AR 320-21.) The Hearing Officer then, in addition to other recommendations, recommended the ERB order LAPD to reinstate Abrams to his former position with full back pay and benefits. (AR 321.) LAPD timely filed exceptions to the Hearing Officer’s Report, to which EAA filed a rebuttal. (AR 322-57.)

On September 19, 2022, the ERB adopted the Hearing Officer’s Report as its Decision and Order. (AR 364-65.)

II.      Procedural History

             On December 16, 2022, petitioner filed a verified Petition for Writ of Mandate pursuant to CCP § 1094.5. On October 5, 2023, petitioner filed an opening brief. On November 6, 2023, real party filed an opposition. On November 20, 2023, petitioner filed a reply. The Court has received a hard copy of the administrative record and joint appendix.

III.     Standard of Review

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

The challenging party here is City, the employer. “It is well-established that an employer’s right to discipline or manage its employees ... is not a fundamental vested right entitling the employer to have a trial court exercise its independent judgment on the evidence. (County of Los Angeles v. Civil Service Com. (1995) 39 Cal.App.4th 620, 633, quoting Los Angeles County Dept. of Parks & Recreation v. Civil Service Com. (1992) 8 Cal.App.4th 273, 279, emphasis in original.)

“Where no fundamental vested right is involved, the superior court’s review is limited to examining the administrative record to determine whether the adjudicatory decision and its findings are supported by substantial evidence in light of the whole record.” (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1057.) Because City does not have a fundamental vested right in disciplining Abrams, the Court reviews the ERB’s decision for substantial evidence.

Substantial evidence is “relevant evidence that a reasonable mind might accept as adequate to support a conclusion” (California Youth Authority v. State Personnel Board (2002) 104 Cal.App.4th 575, 584-85), or evidence of ponderable legal significance which is reasonable, credible and of solid value (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633). “Courts may reverse an [administrative] decision only if, based on the evidence…a reasonable person could not reach the conclusion reached by the agency.” (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “‘the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence.’ [Citation.]” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) 

“On questions of law arising in mandate proceedings, [the Court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 71.)

IV.     Analysis

            Petitioner asserts that it is entitled to a writ of mandate compelling the ERB to set aside its Decision and Order on the following grounds: (1) the ERB exceeded its jurisdiction and violated the City Charter by deciding EAA’s retaliatory discharge claim while Abrams’ CSC appeal was pending; (2) the ERB used an incorrect legal standard to decide the retaliatory discharge claim; (3) the ERB’s finding that Abrams was discharged in retaliation for protected activity was not supported by sufficient findings; (4) the ERB’s finding that LAPD increased Abrams’ five-day suspension to a discharge in retaliation for protected activity was not supported by substantial evidence; and (5) the ERB’s make whole remedy exceeds the ERB’s authority under the ERO.

A.           CSC’s Exclusive Jurisdiction to Determine EAA’s Retaliatory Discharge Claim

With respect to the first ground, petitioner contends that the ERB should not have decided real party’s retaliatory discharge claim while Abrams’ CSC appeal was pending. Under the analogous case of State Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512, petitioner is correct.

            In State Personnel Board, the Supreme Court examined whether the memoranda of understanding (“MOUs”) of four state employee bargaining units and implementing statutes enacted by the Legislature allowed covered employees to challenge disciplinary actions through a grievance/arbitration procedure set forth in the MOUs instead of the State Personnel Board (“SPB”). (State Personnel Bd., 37 Cal.4th at 516.)

            Article VII, section 3 of the California Constitution provides that the SPB “shall enforce the civil service statutes and, by majority vote of all its members, shall prescribe probationary periods and classifications, adopt other rules authorized by statute, and review disciplinary actions.” (Cal. Const., art. VII, § 3(a).) Based on the italicized language, the Supreme Court held that the Legislature was precluded from authorizing some entity other than the SPB to review disciplinary actions against state civil service employees. (Id. at 523.) In other words, the SPB had “exclusive authority to review disciplinary actions.” (Id. at 527, emphasis in original.)

            Article VII, section 1 of the California Constitution states: “In the civil service permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination.” (Cal. Const., art. VII, § 1(b).) “The merit principle…embodies the concept under which public employees are recruited, selected, and advanced under conditions of political neutrality, equal opportunity, and competition on the basis of merit and competence.” (State Personnel Bd., 37 Cal.4th at 526, quoting Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 184, fn. 7, internal quotations omitted.)

            Based on the merit-based system of civil service, the Supreme Court explained why the MOU-created review boards could not supplant the SPB:

It would be inimical to California's constitutionally mandated merit-based system of civil service, which is administered by the State Personnel Board, to wholly divest that board of authority to review employee disciplinary actions in favor of an MOU-created review board. This is so because a state civil service based on the merit principle can be achieved only by developing and consistently applying uniform standards for employee hiring, promotion, and discipline. By vesting in the nonpartisan State Personnel Board the sole authority to administer the state civil service system (Cal. Const., art. VII, § 3), our state Constitution recognizes that this task must be entrusted to single agency, the constitutionally created State Personnel Board. Because employee discipline is an integral part of the civil service system, the State Personnel Board's exclusive authority to review disciplinary decisions is a critical component of the civil service system.

(State Personnel Bd., 37 Cal.4th at 526-27.)

Applying the reasoning from State Personnel Bd. to the instant matter, “the charter represents the supreme law of the City, subject only to conflicting provisions in the federal and state constitutions and to preemptive state law.” (Domar Electric, Inc. v. City of Los Angeles (1994) 9 Cal.4th 161, 170.) “[I]t is well settled that a chartered city may not act in conflict with its charter,” and “[a]ny act that is violative of or not in compliance with the charter is void.” (Id. at 171.) Accordingly, for purposes here, the City Charter is thus analogous to the California Constitution in State Personnel Bd.

Section 541 of the Charter bestows upon the CSC “the power and duty to make and enforce the civil service rules and to establish and maintain the civil service system in accordance with the civil service provisions of Article X of the Charter.” Under Article X, appointments and promotions in the City civil service are based on merit, as ascertained by competitive examination. (Charter §§ 1005, 1009.) With respect to discipline, “[n]o person in the classified civil service shall be discharged or suspended except for cause,” with the written statement of cause filed with the CSC and served on the disciplined employee. (Charter § 1016(a), (b).)

Section 1016(c) of the Charter states: “Within five days of service of the written statement [of cause] upon any person so discharged or suspended, the person shall file a written application with the board in order to require the board to hold a hearing to investigate the grounds for the discharge or suspension.” (See also Charter § 1016(b) [filing of written statement of cause with CSC effectuates discharge or suspension].)

            Abrams filed an appeal within five days of service of the written statement of cause on him. (AR 215, 445.) It is undisputed that the CSC appeal was pending while the hearing on real party’s UERP claim took place before the ERB. (AR 460, 462.) Based on the CSC’s authority under section 541 of the Charter to enforce the civil service rules and maintain the civil service system in accordance with Article X of the Charter, the CSC had exclusive jurisdiction to investigate the grounds for the discharge and determine whether there was cause for Abrams’ discharge. As EAA asserted in the amended UERP claim that Abrams was wrongfully discharged for engaging in the protected activity of filing the initial UERP claim (AR 154), CSC was necessarily charged with determining whether the cause for Abrams’ discharge was retaliatory and therefore wrongful.

            Real party does not meaningfully distinguish State Personnel Bd. Rather, real party contends that the ERB has primary and exclusive jurisdiction over unfair employment relations practices pursuant to state law, specifically the Meyers-Milias-Brown Act (“MMBA”).

Employment relations between the City and its recognized bargaining units for its employees are governed by the MMBA. (Singletary v. International Brotherhood of Electrical Workers, Local 18 (2012) 212 Cal.App.4th 34, 41.) Except in the City and County of Los Angeles, the MMBA is administered by the Public Employment Relations Board (“PERB”). (See Gov. Code §§ 3501(f), 3509.) In the City, the equivalent of PERB is the ERB, the respondent in City’s Petition, which is statutorily empowered to take actions on unfair practices and to issue “determinations and orders” as ERB deems necessary, “consistent with and pursuant to the policies of this chapter [MMBA, set forth in Gov. Code §§ 3500-3511].” (Gov. Code § 3509(d).) Thus, the ERB is the separate agency “empowered to resolve public employment labor disputes” in the City “just as PERB does for all other counties in California.” (City of Los Angeles v. City of Los Angeles Employee Relations Bd. (2016) 7 Cal.App.5th 150, 161.)

            While ERB may have jurisdiction over unfair labor practices pursuant to the MMBA, such jurisdiction supplemented rather than supplanted the SPB’s central adjudicative function of reviewing disciplinary action. (State Personnel Bd., 37 Cal.4th at 524, citing Pacific Legal Foundation, 29 Cal.3d at 196-97.) When the ERB’s jurisdiction overlaps with the CSC’s administration of the City civil service system and enforcement of the merit principle, the ERB’s jurisdiction must yield to the jurisdiction of the CSC, just like the state legislation enacted to implement the MOUs in State Personnel Bd. yielded to the SPB’s constitutional duty to review disciplinary actions for state civil servants. (State Personnel Bd., 37 Cal.4th at 526-27.) Indeed, as of December 20, 2021, prior to the evidentiary hearing in the instant matter, the Chair of the ERB recognized that when there is a CSC appeal pending, the ERB’s practice is to allow the CSC appeal to move forward first. (Petition, Ex. F., Item 10(b).)

            For the foregoing reasons, the CSC had exclusive jurisdiction to determine the merits of real party’s retaliatory discharge claim. Because the ERB proceeded without jurisdiction, the Decision and Order of the ERB must be set aside, pursuant to CCP § 1094.5(b).

V.      Conclusion

Because the Court finds that the ERB lacked authority to decide whether Abram’s discharge was unlawful due to retaliation, the Court does not reach the issues of whether the Hearing Officer applied the incorrect legal standard to decide whether there was retaliation, whether there were sufficient findings or substantial evidence to support the retaliation determination, or whether the ERB could impose a make whole remedy.

The petition is GRANTED. Pursuant to Local Rule 3.231(n), petitioner shall prepare, serve, and ultimately file a proposed judgment and writ of mandate directing respondent Los Angeles City Employee Relations Board to set aside its decision.