Judge: Curtis A. Kin, Case: 23STCP01313, Date: 2024-04-23 Tentative Ruling

Case Number: 23STCP01313    Hearing Date: April 23, 2024    Dept: 86

Petitioner Sean Renaud petitions for a writ of mandate directing respondent County of Los Angeles to set aside its three-day suspension of petitioner and remove the discipline from petitioner’s personnel file. Petitioner also seeks an award of $10,000 pursuant to Labor Code § 96(b)(3).

I.       Factual Background

Petitioner Sean Renaud was a Training Captain who attended a recruit banquet for the Los Angeles County Fire Department (“Department”) on September 23, 2021. (AR 24, 27.) Petitioner attended the banquet while on vacation. (AR 27-28.) Senior Training Captain Sara Rathbun also attended the banquet. (AR 24.)

Following the banquet, at the hotel where the recruits were staying, a guest called the police to complain about noise. (AR 24, 27-28.) One of the hotel guests, Ms. Sabeti, stated that she was preparing to go to sleep, and there was a group in the parking lot screaming and falling as they went up the stairs. (AR 17.)  She claims she opened her door and said: “Hey, do you guys mind being quiet, you know, it’s late.” (AR 17.)

An argument ensued, and Ms. Sabeti alleges that one of the group, allegedly Carlos Bernal, called her a “stupid white bitch” or a “dumb white bitch.” (AR 17, 38.) Ms. Sabeti also claims that Bernal lunged at her. (AR 17, 37.) Bernal denied he did either, even though he admitted raising his voice. (AR 16-17.)

Ms. Sabeti called the Pasadena Police Department, which responded. (AR 18-19.) The Pasadena Police Department interviewed various recruits. Renaud was the only training captain present at the time the police were at the hotel. (AR 12 [Fire Fighter De La Rosa], 31.)

Renaud arrived after the police were on the scene and conducting interviews. (AR 28.) Outside of the hotel, petitioner heard from some of the recruits that one of the recruits had knocked on a room door, having caused a guest in the next room to wake up. (AR 27.) According to petitioner, a police officer told everyone that they were not getting into trouble and told the recruits it was time to go home. (AR 28.) Petitioner saw the guest who made the complaint and, when later interviewed, said she did not look upset (AR 28.) Petitioner was at the hotel for five to ten minutes. (AR 28.) Petitioner later told Senior Training Captain Rathbun that the noise complaint was a case of mistaken identity, that the recruits were not in trouble, and nothing had gone wrong. (AR 24.)

On September 29, 2021, the Acting Deputy Chief of the Training and Emergency Services Bureau authorized an administrative investigation concerning petitioner’s purported failure to supervise trainees on September 23, 2021. (AR 2.) On December 10, 2021, petitioner was notified that he was the subject of a Department investigation. (AR 2.)

During the investigative interview, in response to the allegation that he failed to supervise the recruit class, petitioner stated that Rathbun asked him to go to the hotel and find out what happened, which he did. (AR 29.) Petitioner reported the incident to Rathbun, telling her that everyone was going to bed, the incident was concluded, no one was arrested, and no charges were filed. (AR 29.) Petitioner produced phone records of a three-minute call to Rathbun at 1:23 a.m. on September 24, 2021. (AR 30; AR 111.)

When Rathbun was interviewed, she stated Renaud repeated to her that some of the recruits told him that there was just a misunderstanding, no one was in trouble, and there was nothing to report. (AR 25.) She added that it was her job to report any violations of the Standards of Behavior and that, because she was not aware of any violations, there was nothing to report. (AR 27.) Rathbun also affirmed that, as Senior Training Captain, she was in charge of coordinating the curriculum and the recruit schedule, but she was not the supervisor of the other training captains. (AR 25.) Battalion Chief Derrick Chapman was the supervisor of all training captains, including petitioner and Rathbun. (AR 25.)

On May 8, 2022, petitioner was notified of the Department’s intent to suspend him for three days. (AR 69.) On August 19, 2022, petitioner was served with a Notice of Suspension dated August 10, 2022. (AR 46.) The suspension was based on petitioner’s “failure to make proper notifications to [his] chain of command regarding an incident involving Recruit Class 163 and law enforcement.” (AR 69.)

            The Department asserted that petitioner violated the following Standards of Behavior:

1. Abide by and conform to the County’s and Department’s rules, regulations, policies, and procedures. (AR 125 [Standard of Behavior A(1)]; AR 47 [letter of suspension].)

2. Perform all assigned duties and responsibilities, specifically: “Exercise good judgment.” (AR 125 [Standard of Behavior A (3)(b)]; AR 47 [letter of suspension].)

3. Pursuant to reporting requirements, report to their immediate supervisor any unusual occurrence, or other matter that may adversely affect the operation of the Department, or any violation of County or Department rules, regulations, policies, and procedures. (AR 125 [Standard of Behavior A(6)]; AR 47 [letter of suspension].)

The above-mentioned standards apply to employees “carrying out their “official duties and responsibilities.” (AR 125.) The purpose of the Standards of Behavior is to “set forth the behavior norms that the Los Angeles County Fire Department (Department) expects from all employees.” (AR 123.) All employees are responsible for reading the Standards of Behavior and for adhering to them. (AR 123.)

On September 8, 2022, petitioner filed a letter of appeal to the Director of Personnel, which is functionally the Department of Human Resources (“DHR”). (AR 54-74.) Petitioner, through counsel, argued that the recruit training manual required that he report the incident to the Senior Training Captain, which was Rathbun. (AR 55.) The referenced training manual states, in relevant part:

The Training Captain who observed the infraction/violation shall determine if a Report…is required. If a Report is determined necessary, it shall be completed, signed by the Training Captain, and submitted to the Senior Training Captain as soon as possible.

(AR 143.) On September 7, 2022, Battalion Chief Chapman wrote a memorandum to Director Mike Cash of Local 1014, which stated: “Under the Department Recruit Training Manual that governs the reporting obligations , a Training Captain who becomes aware of a potential incident is required to report that incident to their Senior Training Captain.” (AR 148.) Battalion Chief Chapman indicated his understanding that petitioner reported the noise complaint to Rathbun. (AR 148.)

On November 2, 2022, DHR denied the appeal on the following grounds:

·         The investigation concluded that while Sean Renaud was a Fire Captain and serving as a Training Captain for Recruit Class 163, he failed to exercise sound judgment when he did not report his knowledge of law enforcement involvement in an incident to his chain of command pertaining to Recruit Class 163.

·         The Department determined he was at an off-duty event with Fire Department personnel and became aware of a potential situation involving law enforcement. Instead of contacting his chain of command to inform them of potential situations, he chose to notify his colleague, Fire Captain Sara Rathbun, who was not in his chain of command. As stated in your appeal, Mr. Renaud’s direct chain of command was Battalion Chief Chapman.

(AR 151-52.)

II.      Procedural History

            On January 20, 2023, petitioner filed a Verified Petition for Writ of Mandate or Other Extraordinary Relief and Damages. On February 8, 2023, respondent County of Los Angeles, Los Angeles County Fire Department filed a Return and Answer.

            On December 29, 2023, petitioner filed an opening brief. On January 30, 2024, respondent filed an opposition. On February 13, 2024, petitioner filed a reply. The Court has received a hard copy of the administrative record.

            On February 29, 2023, the Court continued the hearing on the petition and ordered supplemental briefing regarding whether the petition should be reviewed under traditional or administrative mandamus and whether petitioner was carrying out his official duties and responsibilities with respect to the subject incident, to which the Department’s Standards of Behavior would apply. On April 12, 2024, both parties filed supplemental briefs.

III.     Standard of Review

          In their supplemental briefs, filed April 12, 2024, both parties agree that the instant petition should be reviewed under CCP § 1085.[1]

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.)        

IV.     Analysis

            Petitioner was suspended for three days for not having reported that the police had spoken with or was speaking with members of Recruit Class 163 at the hotel where the recruits were staying, to his chain of command, i.e., Battalion Chief Chapman. (AR 33, 70.)

            The essential issue in this petition is whether Standards of Behavior A(1), A(3)(b) and A(6) apply to the subject incident. The Standards of Behavior “apply to all employees and pertain to both on- and off-duty conduct.” (AR 123.) However, subdivision A, where the cited standards are contained, applies to employees carrying out their “official duties and responsibilities.” (AR 125, cf. AR 129 [setting forth standards applying to off-duty conduct which “impairs, or potentially impairs, their performance of Department duties or which brings discredit to the Department”].)

            As a preliminary matter, both parties cite cases involving Government Code § 19572(t) for the proposition that an employee may be disciplined for off-duty misconduct when the conduct bears a rational relationship to the employment and can reasonably result in the impairment of public service. (Stanton v. State Personnel Bd. (1980) 105 Cal.App.3d 729, 740; Vielehr v. State Personnel Bd. (1973) 32 Cal.App.3d 187, 194; Gray v. State Personnel Bd. (1985) 166 Cal.App.3d 1229, 1232; Yancey v. State Personnel Bd. (1985) 167 Cal.App.3d 478, 483.) Government Code § 19572(t) states that “[o]ther failure of good behavior either during or outside of duty hours, which is of such a nature that it causes discredit to the appointing authority or the person's employment” constitutes cause for discipline of an employee. However, Government Code § 19572 applies to state employees, not county employees like petitioner. (See Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 49 [noting that Gov. Code § 19572(t) applies to State civil service employees, not City workers].) Accordingly, the Court does not apply the “rational relationship” or “harm to the public service” test under cases involving Government Code § 19572(t) to petitioner’s conduct at issue here.

The Court thus examines whether petitioner was carrying out official duties and responsibilities at the hotel. Weighing against a finding that petitioner was carrying out official duties and responsibilities, petitioner was on vacation on the night in question. (AR 27-28.) In addition, the banquet was also an off-duty event. (AR 21, 22, 24 [training captains state that the banquet was off-duty event].)

Notwithstanding the foregoing, petitioner believed it was his responsibility to be at the banquet for the recruits so he could prepare them to be out in the field. (AR 28.) According to petitioner, the recruits receive their assignments at the banquet, have many questions, and are eager to obtain information from the training captains. (AR 28-29.) Training captains other than petitioner attended the banquet, except those who were on annual vacation. (AR 24.) Further, petitioner was at the hotel at the request of Senior Training Captain Rathbun, to whom he reported what happened at the hotel. (AR 29.)  

Given the circumstances under which he attended the banquet and thereafter went to the hotel at the request of Rathbun, the Court finds that petitioner carried out official duties and responsibilities. Petitioner attended the banquet in his capacity as training captain. Recruits sought guidance from petitioner as a figure of authority during the banquet. Even though the banquet and events thereafter occurred off-duty, subdivision A is not phrased in terms of on- or off-duty conduct but rather whether the employee was carrying out official duties and responsibilities. (Cf. AR 129 [A(20) prohibits illegal use of drug or controlled substance “whether on- or off-duty].)

            The Court notes that the Recruit Training Manual provides that the Training Captain who observed any infraction or violation of Recruit Training Academy Rules, Regulations, Procedures, and Code of Conduct shall determine if a report is necessary. (AR 143.) If a report is deemed necessary, the Training Captain shall submit the report to the Senior Training Captain. (AR 143.) It is undisputed that petitioner reported his observations of the incident at the hotel to Rathbun, the Senior Trianing Captain. (AR 29, 148.) Petitioner’s compliance with the Recruit Training Manual, however, does not obviate his obligation to comply with the Standards of Behavior.

            For the foregoing reasons, under Standards of Behavior A(1), A(3)(b), and A(6), petitioner had the obligation to report to Battalion Chief Chapman, his supervisor, that the police spoke with or were speaking with recruits at the hotel where the recruits were staying. At the very least, based on petitioner’s attendance at the banquet in an official capacity and presence at the hotel at Rathbun’s request, petitioner has not met his burden to demonstrate that his suspension was the result of arbitrary or capricious action or action that was lacking entirely in evidentiary support.

V.      Conclusion

The petition is DENIED. Pursuant to Local Rule 3.231(n), respondent shall prepare, serve, and ultimately file a proposed judgment.