Judge James C. Chalfant, Case 21STCP01675 2022-08-09 Tentative Ruling

Petitioner Pamela Brookwell (“Brookwell”) seeks a writ of mandate directing Respondents County of Los Angeles (“County”), the Los Angeles Sheriff’s Department (“LASD” or the “Department”), and Los Angeles County Civil Service Commission (“Commission”) to set aside her discharge as Sergeant.

The court has read and considered the opening brief, opposition, and reply, and renders the following tentative decision.

Petitioner Brookwell filed her Petition on May 24, 2021 alleging a cause of action for a writ of mandate under CCP sections 1085, 1094.5, and 1094.6. The verified Petition alleges in pertinent part as follows.

Brookwell has been a sergeant with LASD since April 2000. From July 24, 2005, until February 12, 2015, Brookwell was assigned to East Los Angeles (“ELA”) Station as the Court Liaison Sergeant and served as the ELA Station Traffic Sergeant starting in January 2006.

Following an audit on March 9, 2015, LASD concluded that Deputy Jimmy Yee (“Yee”), one of Brookwell’s subordinates, was inadequately investigating certain traffic cases and that Brookwell was purposefully not updating traffic cases in the Department’s traffic case management system, LARCIS. LASD began an internal investigation on April 30, 2015. Upon its conclusion, LASD alleged that Brookwell failed to appropriately oversee the ELA Station Traffic Unit, allowed false information to be entered into the LARCIS database, and deliberately misrepresented her Traffic Sergeant responsibilities during the investigation.

On April 22, 2016, Brookwell received a Letter of Intent to Discharge based on the allegations, followed by a May 24, 2016 Letter of Imposition discharging her. On May 31, 2016, she filed an appeal with the Commission.

The Commission’s hearing officer submitted his proposed decision on September 13, 2018, then submitted a revised proposed decision upholding Brookwell’s discharge on October 24, 2018. The Commission adopted the revised proposed decision on January 9, 2019. Following oral argument and written objections, the Commission proposed a new decision imposing a 30-day suspension and demotion one position during an in-person meeting on February 5, 2020.

After the parties’ briefing on the new proposed decision, the Commission’s virtual meeting was scheduled for December 9, 2020. The Commission voted at this hearing to alter its March 13, 2020 decision and uphold discharge. On February 25, 2021, the Commission issued its final decision to impose discharge.

On March 9, 2021, Brookwell filed a motion for reconsideration. The Commission denied the motion.

Brookwell seeks a writ of mandate directing Respondents to (1) reimburse her for all pay and benefits lost since June 20, 2016; (2) stay enforcement of the Commission’s February 25, 2021 Final Commission Action discharging her; and (3) remand to the Commission for a new objections hearing at which Brookwell may present her arguments. Brookwell also seeks attorney’s fees, costs, and interest on all damages.

On July 7, 2021, Respondents County and LASD demurred to the Petition. They subsequently filed an Answer and withdrew the demurrer.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143; see CCP §1094.5(c). The independent judgment standard of review applies to administrative findings in cases involving a law enforcement officer’s vested property interest in his employment. Barber v. Long Beach Civil Service Comm’n, (1996) 45 Cal.App.4^th 652, 658.

Under the independent judgment test, “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 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“In exercising its independent judgment, the trial court must afford a strong presumption of correctness concerning the administrative findings, 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, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Commission, (“Lake”) (1975) 47 Cal.App.3d 224, 228. The Commission’s decision must be “an arbitrary, capricious, or patently abusive exercise of discretion” to be overruled by the trial court. If there is “any reasonable basis to sustain it,” the penalty should be upheld. County of Los Angeles v. Civil Service Com. of County of Los Angeles, (“Montez”) (2019) 40 Cal.App.5th 871, 877. “Only in an exceptional case will an abuse of discretion be shown because reasonable minds cannot differ on the appropriate penalty.” Ibid.

In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly v. State Personnel Board, (“Skelly”) (1975) 15 Cal.3d 194, 217-18. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, (“Nightingale”) (1972) 7 Cal.3d 507, 515. The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions. Cadilla v. Board of Medical Examiners, (“Cadilla”) (1972) 26 Cal.App.3d 961.

LASD’s Manual of Policy and Procedures (“MPP”) requires that all LASD members conduct themselves in a manner consistent with the Department’s Core Values. AR 708 (MPP §3-01/000.13). Conduct inconsistent with these core values includes conduct or behavior so egregious that it constitutes a severe and immediate threat to LASD’s integrity or jeopardizes the health, safety, or welfare of the public, including but not limited to criminal misconduct of members and/or the misuse of Department assets, resources, or intellectual property. AR 708 (MPP §3-01/000.13). Additionally, a member shall not act or behave while on or off duty in such a manner as to bring discredit upon himself or the Department. AR 709 (MPP §3-01/030.05).

LASD members agree to abide by federal statutes, state laws, local ordinances, the Charter of Los Angeles County (“County”), the Los Angeles County Code, and the Rules of the Department of Human Resources. AR 710 (MPP §3-01/030.10(a)-(b)). Members shall obey and properly execute all lawful orders issued by any supervisor of higher rank. AR 710 (MPP §3-01/030.10(c)). Members assigned to duty with other members are subject to discipline for any violation by the other member unless unaware of it or unless said member attempts in good faith to prevent the violation and, at the earliest reasonable time, reports the violation to his supervisor. AR 710 (MPP §3-01/030.10(d)).

All LASD members are required to maintain sufficient competency to properly perform their duties and assume the responsibilities of their positions. AR 713 (MPP §3-01/050.10). Incompetence may be demonstrated by a lack of knowledge of laws to be enforced and their application, unwillingness or inability to perform assigned tasks, failure to conform to work standards established for the member's rank or position, repeated poor evaluations, written record of repeated infractions of LASD’s rules and regulations, or failure to conform to work standards established for the member's rank or position. AR 713 (MPP §3-01/050.10).

LASD members shall not make false official records or enter or cause to be entered in any Department books, records, reports, computer or electronic data systems, any inaccurate, false or improper police information or material matter. AR 715 (MPP §3-01/100.35).

In the early 1990s, LASD began using the Los Angeles Regional Criminal Information System (“LARCIS”) to track criminal cases, court cases, and search warrants. AR 1984. The system allows users to track active and pending cases but not inactive ones. AR 1984-85.

Field Operations Directive 11-01 charges supervisors with ensuring that all case assignments to detectives are entered into LARCIS without unnecessary delay. AR 1376, 1378. Supervisors shall review the LARCIS “active/assigned” report at least twice per month and ensure that only currently assigned detectives have cases that are “active”. AR 1378. Case clearance codes shall be consistent with suspect codes used to clear each case, and only approved codes shall be used. AR 1378.

The Commission’s Procedural Rule (“CPR”) 5 governs an employee’s hearing before a hearing officer. Failure of a party to appear at a hearing may be cause for a finding in favor of the opposing party or the matter being deemed withdrawn. CPR 5.04.

In the event of a natural disaster, public health crisis, war, act of terrorism, or other catastrophic event, including the declaration of a national, state or local emergency proclaimed by the President of the United States, Governor of California or appropriate local official(s), in order to provide timely access to justice and protect the health, safety and welfare of hearing officers, the Commission and its personnel, witnesses, and other members of the public, the Commission may require hearings to be conducted remotely. If circumstances necessitate, a hybrid of both remote and in-person hearings may be imposed.”

The conduct of a remote hearing includes, but is not limited to, the following: (1) the use of video, audio, and telephonic means for remote appearances; (2) the electronic exchange and authentication of documentary evidence; (3) electronic filing; (4) electronic service; and (5) the use of remote interpreting, remote reporting, and electronic recording to make the official record of a hearing. CPR 5.11.

CPR 4 governs Commission meetings. CPR 4 does not have a provision entitling a party to attend a hearing or prohibiting the Commission from reaching a decision in the party’s absence.

Article 13 of the Memorandum of Understanding (“MOU”) Regarding Supervisory Peace Officers provides that LASD’s individual departmental grievance procedures will be fully effective as the grievance procedure for its supervisory employees. Reply Ex. A, p. 36. If the Professional Peace Officers Association (“PPOA”) requests that a grievance meeting the requirements be submitted to arbitration, it shall send a timely written request to the County’s Employee Relations Commission. Reply Ex. A, p. 107 (App. B, §6(3)). Arbitration procedures thereby conducted shall be held at an appropriate location in the County Hall of Administration, except when another location is mutually agreed upon by the parties to the case. Reply Ex. A, p. 108 (App. B, §6(3)(c)).

Brookwell had been employed with LASD since 1988 and became a sergeant in 2000. Since then, she consistently received “Outstanding” on her performance evaluations. She was assigned to the ELA Station as its Traffic Sergeant at times material to this action. See AR 187.

Captain John Roberts (“Roberts”) was the lieutenant supervising Brookwell and the ELA Station Traffic Office from 2011 to 2013. AR 1980-81. Upon his arrival, he noticed that the Traffic Sergeant Brookwell was not clearing out cases on LARCIS after the assigned investigator had completed the case. AR 1981-82. Roberts discussed this with Brookwell, who claimed she did not know that was the process. AR 1982. Roberts believed her, thinking that this was a training issue.

Roberts had Brookwell write a July 10, 2012 memorandum reflecting her understanding of her duties, and she included assigning and clearing cases in LARCIS in this list of duties. AR 1316-17, 1982, 1993-94. Roberts clarified that Brookwell was required to follow Field Operations Directive 11-01 only with respect to her duties under LARCIS. AR 1991-92. Roberts also directed Brookwell attend a LARCIS course for supervisors. AR 1982. On November 8, 2012, Brookwell completed LARCIS Supervisor Case Management training, claiming afterwards that she understood how to enter, assign, and clear cases. AR 1386, 1983.

After her training, whenever Roberts checked on active unassigned cases, he saw no issues and trusted Brookwell. AR 1983. Between 2009 and 2014, Brookwell continued to receive “Outstanding” on her performance evaluations. AR 1392-34. Her October 8, 2015 evaluation was only a “Competent” rating. AR 1436.

Lieutenant Carlos Parga (“Parga”) supervised Brookwell at the ELA Station from 2013 to 2015. AR 1687-88.

In April 2015, Parga began an investigation into Detective Jimmy Yee (“Yee”) after Brookwell’s successor, Sergeant T.J. Smith (“Smith”), informed him of issues in how some fatality and hit-and-run investigations were being handled. AR 1635-37, 1690. LARCIS was showing that every case for the ELA Station was inactive. AR 1654.

As Parga began looking at the cases with Smith, they found a lack of investigation for at least five fatalities where the files had no supplemental reports and were not properly maintained per LASD requirements. AR 1691-92. Hit-and-run investigations usually require documentation that someone went out to contact the registered vehicle owner to see if they were actually involved, and yet those files only had the report and a letter to the registered vehicle owner. AR 1692.

Parga and Smith had the matter investigated by Sergeant Michael Fredericks (“Fredericks”) of the Internal Affairs Bureau (“IAB”), who discovered that most reports were being entered into LARCIS as inactive either the same day or the day after the incident. AR 1470, 1480. This meant that those cases were not receiving LASD follow-up to ensure that investigators were actively working on the case and following leads to answer necessary questions. AR 1481-82.

For example, a traffic report from on November 21, 2014 detailed a collision that day in which one of the cars left before the officer could get the driver’s statement. AR 995, 998, 1712. Yee reviewed the file on December 1, 2014 and marked it as inactive two days later on December 3, 2014. AR 1008. On December 9, 2014, however, LASD sent a letter to the owner of the car asking him to contact Yee to resolve the issue and avoid criminal prosecution. AR 1007, 1712.

As part of the investigation, Sergeants Fredericks and Brenda Gibson (“Gibson”) interviewed Brookwell on February 26, 2016. AR 1011. She admitted that she never made entries in LARCIS or managed cases using it; she only used it to pull logs. AR 1021. She was never taught to enter reports and assign them to detectives under her command, so she never did that. AR 1025.

On April 21, 2016, ELA Station Operations Lieutenant Bardon (“Bardon”) sent a report to IAB stating that inactive cases totaled 611 of 647 traffic collisions in 2012, 773 of 822 in 2013, 909 of 1,046 in 2014, and 940 of 1,238 in 2015. AR 1288. In contrast, inactive cases totaled 186 of 323 from January 1 to April 13, 2016. AR 1288.

On April 21, 2016, LASD issued a Letter of Intention to Brookwell that she had failed to meet performance standards, input false information in records, violated general rules on behavior, failed to uphold the core values underlying professional conduct, failed to obey laws and regulations, committed acts of dishonesty, and failed to uphold the duties of all members. AR 724, 730-31. Except for the failure to uphold the duties of all members, each violation supports discipline up to and including discharge. AR 730-31.

On May 24, 2016, LASD sent Brookwell a Letter of Imposition upholding its recommended discipline of discharge based on violations of MPP sections (1) 3-01/060.10, Performance to Standards; (2) 3-01/030.06, General Behavior; (3) 3-01/000.13, Professional Conduct – Core Values; (4) 3-01/060.20, Duties of all Members; and (5) 3-01/030.10, Obedience to Laws, Regulations, and Orders. AR 718-19.

The Commission’s hearing officer held hearings on various days from January 2017 to March 2018. The issues were identified as: (1) Were the allegations in LASD’s May 24, 2016 letter true? and (2) if so, is the discipline appropriate? AR 180. Some, but not all, of the pertinent testimony is as follows:

LARCIS has different features. AR 1639. A deputy’s training on LARCIS mostly enables him or her to pull report numbers, check that reports are accurate, and input the status. AR 1639. Traffic cases are entered just like any other report, including the parties’ information, date and time of the incident, location, vehicle plate numbers, and registered owners of the cars. AR 1646. A deputy should not wait to submit a report for lack of information. AR 1646. Deputies should file a supplemental report if more information arises after filing the initial report on LARCIS. AR 1646.

The simplest classification codes in LARCIS are active, inactive, and pending. AR 1640. “Active” means cases where additional work is necessary and the detective has information to work from, and pending cases can become active if new evidence arises. AR 1641-42. “Inactive” means cases that are non-crime related accidents that will not result in follow-up or prosecution. AR 1642-43.

The watch sergeant approves the report, including the classification given by the deputy. AR 1640-41. The sergeant is also responsible for tracking active cases after 30, 60, and 90 days and filing a memo to extend cases that are still active beyond 90 days. AR 1644.

During the annual traffic service audit, there was no traffic-related crime listed in LARCIS for the ELA Station’s area because all cases had been listed as inactive. AR 1643-44. There was no way to run a report to evaluate whether the area had a hit-and-run problem or a lot of drunk drivers because they were all classified as inactive. AR 1643.

Lorrie Waldie (“Waldie”) was no longer with the ELA Station when Smith joined, and she did not influence him to begin the investigation into the LARCIS entries. AR 1639-40.

The traffic sergeant’s responsibilities for LARCIS are to review reports, enter a case as active or pending, assign it to an investigator, and clear the case when the investigator completes his or her work. The system is used to determine the status of traffic investigations. At least twice a month, the supervisor should check the status of cases on LARCIS. AR 1690-91. Parga would use LARCIS to see if active investigations were approaching 30, 60, or 90 days. AR 1690. The system does not show this aging for inactive cases. AR 1691.

Although Parga checked LARCIS when filling in Brookwell’s annual performance evaluations, he did not see anything suggesting that she was not properly managing her workload to ensure that driving under the influence and hit-and-run incidents were thoroughly investigated. AR 1704-05. He had no notations in LARCIS that cases were 39, 60, or 90 days old. AR 1705. He he would not have given her an “Outstanding” rating had he known what he learned from the investigation. AR 1705, 1707.

Alice Rogers (“Rogers”) occasionally helped the ELA Traffic Office with daily input when the paperwork was piling up. AR 1782, 1784. In her experience, Yee, the only deputy responsible for determining whether a case was active, would always mark it as inactive. AR 1788. Rogers would go to his desk and Yee would give her a stack of cases and tell her they were all inactive, and he did so in front of Brookwell’s desk and clearly within earshot. AR 1793-94. Brookwell could not help but have heard him. AR 1794.

When the ELA Station Traffic Office first became his responsibility in the beginning of 2012, then Lieutenant, now Captain, Roberts noticed that traffic cases were not being properly handled in LARCIS. AR 1981-82. Roberts discussed the situation with Brookwell. She told him that she was not aware of the procedure and had never been trained in LARCIS. He directed her to attend LARCIS training as soon as possible, and he also showed her how to assign a traffic case to the investigator in LARCIS and how to clear it. AR 1982-83. AR 1982-83. Roberts further showed her Field Operations Directive 11-01 and told her that she should comply with the LARCIS portion of the directive. AR 1378, 1991-92. On July 10, 2012, he had Brookwell write him a memorandum in which she acknowledged that the duties of Traffic Office personnel include entering approved traffic collision reports into LARCIS. AR 1317, 1993-94. Brookwell received LARCIS Supervisor Management training on November 7, 2012. AR 1386, 1983.

If a case is active, the sergeant’s duties are to assign an investigator. AR 1986. It would be unusual for a fatal collision to be made inactive on LARCIS the day after the collision. AR 1986. If that was done in error, the sergeant should make it active again. AR 1986.

If LARCIS shows a station has mostly inactive cases, a reviewer would assume that the sergeant is handling the station’s cases. AR 1985. If a case is not listed in LARCIS, a reviewing officer would assume the investigator did not write the report and the reviewer would look for it. AR 1985. A case marked as inactive will not show as missing a report. AR 1986.

The designation of cases such as fatal hit-and-runs as inactive without any investigation would not keep Roberts from rating someone as “Outstanding” if they fixed the problem on request. AR 2001. However, a pattern of failing to do so after training would lower his rating. AR 2001. At the time he prepared Brookwell’s performance evaluations, it appeared that her LARCIS entries were perfect. AR 2001.

During her Skelly hearing with Central Patrol Division Chief Bobbie Denham (“Denham”), Brookwell did not take responsibility for her conduct, instead claiming that Yee was in his position for a long time, had served as acting sergeant, and was capable of performing his duties as a traffic investigator. AR 2033, 2043-44.

This did not relieve Brookwell of her oversight responsibilities, and her efforts to distance herself combined with the seriousness of the offense prompted Denham to impose discharge. AR 2044. Brookwell had a past discipline but the charges in this case alone were sufficient for discharge. AR 2044.

The LARCIS reports are crucial to LASD’s ability to monitor cases, and the failure to ensure that their proper status violated the public’s trust in LASD and its ability to handle traffic reports. AR 2055. The annual reports from ELA during Brookwell’s time showed that the station was in good standing because the cases were being solved within the time frames. AR 2053-54.

These facts resulted in good evaluations for Brookwell. AR 2054. Had her supervising officers known of her failure to supervise and ensure the investigation of what should have been active cases, that would have affected her performance evaluations. AR 2053-54.

ELA Station Captain Steven Biaghani (“Biaghani”) testified that the Traffic Unit was Brookwell’s main job; she had collateral Court Sergeant and Sub-Emergency Operations Center duties. AR 2124, 2180. If a subordinate (Yee) performed 95% of all Traffic Unit investigations, that would be irresponsible for Brookwell and a failure to supervise. AR 2180.

At one point, Brookwell approached Biaghani and said she had a lot of work and needed help. AR 2184. There were plans to have a second investigator join the station, but they fell through. AR 2184. The entire ELA Station was understaffed and staffing was a concern that often arose during sergeant meetings, but Biaghani did not have the resources to assign another detective to the Traffic Unit. AR 2192-93. This understaffing did not justify entering cases as inactive the day they arise. AR 2184.

When Gabriel Rendon (“Rendon”) worked in the Traffic Unit, no one seemed to care how many cases were active, inactive, and pending. AR 2318, 2349. Superiors only asked questions when there was an inquiry about a report being late. AR 2350. The Unit otherwise was its own entity. AR 2350.

Brookwell did not receive any training on LARCIS when she first joined the Traffic Office in 2006. She just received a memory stick and office keys from her predecessor. AR 2588-89. She understood that her sole responsibility as Traffic Sergeant was oversight if Yee needed help. AR 2589. She had Yee read and approve 95% of the reports while she performed various other tasks. AR 2755.

The ELA Station secretary (Maria Chavez) would pull LARCIS Data Exception Reports once to twice a week to make sure reports were turned in timely. AR 2596-97. Brookwell’s responsibilities included reviewing the report and asking her staff about any reports not turned in. AR 2597. She also used the LARCIS station log to track cases and fill in “paper” logs (documents on Microsoft Word) whenever Yee was too busy. AR 2611-12. Most of the time the secretary and Yee would populate the log. AR 2611. Brookwell would keep an eye on the log multiple times per day. AR 2612. The only way for LASD to determine how the ELA Station was doing was to review the paper logs. AR 2781.

The ELA Station’s numbers were skewed because every case in LARCIS was marked as inactive. She therefore did not rely on the LARCIS numbers when rating Yee as outstanding. AR 2778-79. When reviewing Waldie, Brookwell just checked whether all the reports were entered in LARCIS in a timely manner. AR 2779.

The hearing officer issued an initial report and recommendation on September 13, 2018, and then a revised report and recommendation on October 29, 2018. AR 175. In the revised report, he acknowledged that Brookwell presented as a bright, industrious employee who fulfilled many roles while at the ELA Station for 9.5 years and was evaluated as outstanding throughout. AR 183. However, her primary duty was as a Traffic Sergeant, and oversight of traffic investigations and accountability for the progress of those investigations was her ultimate responsibility, contrary to her claim that these were secondary responsibilities. AR 184.

Field Operations Directive 11-01 had been used by the detective bureau since the 1990s before it was applied to the Traffic Office in 2011. AR 184. When this Directive is combined with the training Roberts required Brookwell to take in 2012, Brookwell could not have misunderstood that LARCIS entries were relied upon by superiors to review the quantity of work performed by the Traffic Office and the speed with which it conducted and closed investigations. AR 184.

The simultaneous use of other computer systems (Crossroads) did not excuse Brookwell’s failure to oversee entries in LARCIS. AR 185. The misuse of LARCIS resulted in skewed entries that indicated almost every investigation was inactive with no work needing to be done. AR 185. The credible evidence showed that it is impossible for a fatality accident and highly unlikely in a serious hit-and-run for the investigation to be closed within 24 hours. Yet, those were the types of cases uncovered by Smith when he succeeded Brookwell as Traffic Sergeant. AR 185.

Notwithstanding that she should have understood her LARCIS role, Brookwell did not make any willful misrepresentations about Field Operations Directive 11-01 and her training. AR 185. Nor is the evidence sufficient that Brookwell told Waldie that initial investigatory reports were to be entered into LARCIS as inactive because Waldie was a biased witness. AR 186.

Another secretary testified that Yee gave the directive that all cases were to be marked inactive. Even if Yee gave the directive, Brookwell was in such close proximity that she could not have been ignorant of the command. AR 186. The hearing officer concluded that either Brookwell was a co-conspirator, or she failed to exercise oversight of Yee. AR 186-87.

For his factual findings, the hearing officer found that Brookwell ceded her managerial authority to Yee 95% of the time. AR 187. Virtually every traffic accident between 2011 and 2015 was closed and marked as inactive within 24 hours, leading station management to falsely praise Brookwell for the high closure rate. AR 188. A preponderance of the evidence supports the allegations that she (1) adopted patterns of practice which resulted in performance and productivity issues, (2) condoned a practice in which Yee falsely entered LARCIS entries as inactive even after her training, (3) failed to reconcile all traffic-related cases in LARCIS, manage Yee’s open cases, and review his case journals, (4) failed in her responsibility to review traffic reports by delegating her responsibility, and (5) caused false information entered into LARCIS. AR 189-90.

A preponderance of the evidence did not support the allegations that Brookwell (1) instructed Waldie to enter all incoming reports as inactive and (2) was dishonest by deliberately distorting the truth during the investigation. She did minimize her role as Traffic Sergeant, but she did not violate the MPP section on dishonesty. AR 190.

While Brookwell’s long service supported mitigation of discipline, it was offset by her history of discipline and the seriousness of her misconduct. AR 190-91. The credible evidence proved that she willfully violated LASD policies and procedures, and her conduct was so egregious that LASD and the public cannot trust Brookwell to serve. AR 190-91. The hearing officer recommended Brookwell’s termination. AR 191.

During its meeting on February 5, 2020, the Commission heard various objections by Brookwell and sustained them in part, rejecting the hearing officer’s recommendation to terminate her and issuing a new proposed decision to suspend her for 30 days and demote her. AR 412. The Commission sent notice of this new proposed decision on February 12, 2020. AR 64.

On March 13, 2020, the Commission added Brookwell’s appeal to the meeting agenda for May 6, 2020. AR 30. The hearing ultimately was continued to December 9, 2020.

On April 24, 2020, Brookwell filed a reply to LASD’s objections to the Commission’s new proposed decision. AR 6-27.

On October 2, 2020, the Commission sent a form to the parties for waiver of their right to personally appear at the December 9, 2020 hearing in light of the COVID-19 pandemic’s Stay at Home orders. AR 3. The waiver form noted that the party could still attend the appeal via teleconference. AR 3. Counsel for LASD signed, but Brookwell did not. AR 3.

At the Commission’s December 9, 2020 hearing, Brookwell could not log on to the videoconference platform WebEx. Her counsel was present and able to present arguments. AR 2918-28. He also informed the Commission that his client was attending via phone and available for questions, but she never was asked any questions or spoke. See AR 2921.

LASD’s counsel argued that Brookwell lied about what she was told about her duties as the Traffic Sergeant and in using LARCIS. AR 2906. Brookwell had claimed no one told her to use LARCIS, but Roberts clearly did. AR 2906, 2909. She also took no responsibility for her conduct. AR 2906. She first blamed Yee, and now she blames her superiors for not catching her sooner and argues that they should be investigated. AR 2906.

Brookwell admits that, although it was her primary responsibility, she ceded 95% of her responsibilities to Yee. AR 2908. To the extent that she claims LASD did not provide the proper help, there was no need to allocate more resources to a Unit which Brookwell bragged was doing exceptionally well. AR 2910.

Brookwell failed to present a single commendation for her years at LASD to support her supposed stellar record. AR 2913. She was doing 5% of her work and getting paid a large sum by the taxpayers. AR 2916. The Traffic Unit would enter fatalities as inactive the day afterwards with the result that no investigation was done. AR 2917. Cars were sitting in junkyards waiting to be looked at, which did not happen. AR 2917. Brookwell thought it sufficed to send a letter to a suspect in a hit-and-run instead of conducting a door knocking investigation. AR 2917. The reports were sitting there not being investigated and she was clearly told to do her job and she did not do it. AR 2917. The community of East Los Angeles was not being served. AR 2917.

Brookwell’s counsel replied that LASD was falsely assuming that in the 9.5 years that she worked there, the ELA Station had not investigated a single homicide or other incident just because all cases were marked inactive on LARCIS. AR 2918. In those years and all the annual evaluations of her work product, no supervisor claimed that she was doing anything improper. AR 2920. During the investigation, Roberts said he would have retrained Brookwell if he knew she was not using LARCIS – not moved for her termination. AR 2919, 2922. Only one of 11 stations followed Field Operations Directive 11.01, and that there was no evidence that the ELA Station followed it prior to Brookwell. AR 2921-22.

Her counsel also questioned the implication that an employee who worked for LASD for 32 years and received outstanding performance evaluations and recommendation letters was not an excellent employee just because she never had a commendation. AR 2919. Brookwell’s evaluations were not based on the “falsified” LARCIS reports, but on supervisors analyzing her overall performance. AR 2923-24. The only disciplinary case against her was a complaint from Waldie that resulted in a proposed ten-day suspension. Had LASD followed up on it, Brookwell would have appealed. AR 2926-27. She does take responsibility for delegating 95% of her duties to Yee, which is why she does not object to suspension and demotion, but termination would be punitive and not curative punishment for her misconduct. AR 2927-28.

LASD replied that Roberts sat with Brookwell and explain her duties regarding LARCIS, thereby providing training. AR 2928. When Brookwell began misusing LARCIS again, Roberts was no longer her commanding officer, and she never asked her new supervisor Biagini for training or support. AR 2929. Denham confirmed that Brookwell’s evaluations were positive because they were essentially based on cooked books reflecting her casework. AR 2929.

At the end of the meeting, the Commission voted 4-1 to sustain LASD objections, adopt the hearing officer’s report, and reinstate the discipline of discharge. AR 2932-33. On February 25, 2021, the Commission issued the Final Commission Action and Order reflecting this decision. AR 1-2.

Petitioner Brookwell seeks to set aside her discharge, arguing that (1) Commission failed to follow the procedure required by law, and that the hearing officer[2] (2) failed to consider relevant facts in mitigation of discipline, and (3) failed to explain his reasoning for discharge and address the pertinent Skelly factors.

Brookwell notes that the Commission failed to follow the hearing procedure required by its rules and the MOU. The Commission initially reduced her discharge to a 30-day suspension and demotion to deputy. AR 64. The Commission then reversed that decision and reinstated the discharge. AR 1-2. Pet. Op. Br. at 8.

Brookwell argues that the Commission did not proceed in the manner required by law by failing to continue her disciplinary appeal hearing until she could appear in online video or in-person. Specifically, the Commission failed to apply the provisions of CPR Rule 5.11 and ignored the Memorandum of Understanding (“MOU”) applicable to Brookwell and providing for a right to in-person disciplinary appeal arbitration hearings. Pet. Op. Br. at 9.

“In the event of a…., public health crisis, ….including the declaration of a national, state or local emergency …..in order to provide timely access to justice and protect the health, safety and welfare of hearing officers, ….the Commission may require hearings to be conducted remotely. Conducting hearings remotely includes, but is not limited to, (a) The use of video, audio, and telephonic means for remote appearances; (b) The electronic exchange and authentication of documentary evidence; (c) Electronic-filing (d) Electronic service; and (e) The use of remote interpreting, remote reporting, and electronic recording to make the official record of a hearing.” (emphasis added).

“Arbitration procedures conducted under the authority of this Section shall be held at an appropriate location in the County Hall of Administration, except when another location is mutually agreed upon by the parties to the case.” (emphasis added).

Brookwell argues that CPR 5.11 was implemented with the goal of conducting Commission proceedings in a way that balances the use of online platforms with as many of the safeguards afforded by in-person hearings as possible. Pursuant to CPR 5.11, Commission hearings and meetings have been conducted based upon the voluntary choice of the parties for appearance by video, audio, or telephone. Brookwell’s hearing was not continued to a date when she could make a choice to use the video online hearing capabilities for which CPR 5.11 provides. Pet. Op. Br. at 10.

The Commission’s failure to continue Brookwell’s disciplinary appeal hearing until she could appear by video is contrary to established public policy and procedurally unfair. Her 30-year law enforcement career was ended over the telephone despite CPR 5.11’s provision for the right to engage the Commission through visual, audio, and (not “or”) telephonic options. Pet. Op. Br. at 10. A civil service employee has a property right to their job and “the state must comply with procedural due process requirements before it may deprive its permanent employee of this property interest by punitive action.” Skelly v State Personnel Board, (1975) 15 Cal. 3d 194, 208. The Commission had every opportunity, with no prejudice to LASD, to continue or re-hear Brookwell’s disciplinary appeal hearing. Pet. Op. Br. at 11; Reply at 10.

There are numerous problems with Brookwell’s argument. First, while Brookwell contends that she could not log on to the videoconference platform WebEx for the Commission’s December 9, 2020 hearing, she provides no evidence of that problem. Her counsel appeared and argued (apparently by video), and he make no objection to her inability to be present by video. AR 2918-28. He indicated that Brookwell was attending via phone and was available for questions, but none were asked and she never spoke. See AR 2921. Thus, Brookwell failed to object to her inability to appear. The Commission need not continue a hearing when it does not know of a problem. Moreover, Brookwell was represented by counsel, and she cites no law or Commission procedure permitting her to argue alongside her attorney.

Second, a public employee has a due process right to challenge the factual basis for the termination in a full evidentiary hearing at which her employer bears the burden of proof. Townsel v. San Diego Metro. Transit Dev. Bd., (1998) 65 Cal.App.4th 940, 949. But it is sufficient that the evidentiary hearing takes place before a hearing officer. The tribunal reviewing the hearing officer’s recommendation may adopt it without reviewing the record and there is no requirement that it hear argument from the employee (whether or not represented by counsel). Greer v. Board of Education, (1975) 47 Cal.App.3d 98, 105, 110. Brookwell does not dispute that she had a fair trial before the hearing officer and due process contemplates a single fair trial, not two or three fair trials. Id. at111 (citation omitted).

Third, CPR 5.11 does not apply to the Commission’s appeal hearing. As the Commission argues, CPR 5.11 applies to the evidentiary hearings before a hearing officer. CPR 4 governs Commission meetings, and it does not have any provision prohibiting the Commission from reaching a decision in the party’s absence. Brookwell has not cited any CPR that bars the Commission from making final decisions at its meetings if the appellant is unable to appear by Webex.

Fourth, Brookwell’s reliance on the MOU is unsupported by any citation the administrative record.[3] In reply, Brookwell argues that the MOU provides for the right to conduct in-person disciplinary appeals. Reply at 1. Not so. The provision of the MOU cited by Brookwell applies to employee grievances, not the departmental discipline of employees. See MOU, App. B, §6.3.C, p. 108.

Finally, to the extent that Brookwell relies on due process, prejudice is always required. A due process violation requires a showing of prejudice. Krontz v. City of San Diego, (2006) 136 Cal.App.4^th 1126, 1141 (delay in notice and opportunity to be heard requires prejudice). Prejudice will not be presumed; actual prejudice must be shown in order to be balanced against a due process violation. People v. Belton, (1992) 6 Cal.App.4^th 1425, 1433 (delay in filing criminal charges requires balancing of prejudice against justification for delay). “Reversible error requires demonstration of prejudice arising from the reasonable probability the party ‘would have obtained a better outcome’ in the absence of the error”. F isher v. State Personnel Bd., (2018) 25 Cal.App.5th 1, 20. Brookwell makes no showing how she reasonably could have affected the outcome if she appeared on video.

In reply, Brookwell argues that Commission hearings and meetings have been conducted during the pandemic based upon the voluntary choice by the parties to appear via video, audio or telephone. The Commission expressly asked Brookwell to waive her right to personal appearance for the December 9, 2020 meeting and she did not do so. AR 3.

The waiver form is new evidence that may not be presented for the first time in a reply brief and may be disregarded. See Regency Outdoor Advertising v. Carolina Lances, Inc., (“Regency”) (1995) 31 Cal.App.4th 1323, 1333. In any event, the Commission’s request for a waiver of personal appearance does not mean that it was required to permit such an appearance when the waiver is unsigned. This is particularly true where the employee is represented by counsel. Moreover, CPR 5.11(a) refers to remote appearance through the use of video, audio, and telephonic means without favoring one over the other and the Commission is not compelled to continue a hearing when one is not available.

The Commission did not fail to proceed in the manner required by law when it did not continue the December 9, 2020 hearing for Brookwell to appear in-person or by video.

The Hearing Officer concluded that the Department did not prove that Brookwell (a) violated LASD policy by instructing secretary Waldie to enter all incoming reports as inactive, (b) was dishonest during LASD’s investigation by deliberately distorting the truth, and (c) violated MPP’s dishonesty during a departmental investigation provision by intentionally minimizing her responsibilities as a Traffic Sergeant. ( The hearing officer found that she did minimize, but not dishonestly in violation of the MPP). AR 190. The hearing officer further found that Brookwell “presented herself as a bright, industrious employee who is consistently evaluated as outstanding. She wore many hats as a supervisor while residing at the East Los Angeles Station traffic office which she occupied 9.5 years.” AR 183.[4] Pet. Op. Br. at 11; Reply at 3.

Brookwell contends that, as argued in the first Commission hearing on January 13, 2017, the hearing officer’s findings that she was not dishonest and that the complaining party (Waldie) was not credible should lead to a conclusion that her failures were a training issues not subject to a punitive termination. The hearing officer provided no explanation why her discipline was not reduced from discharge in light of the dismissal of the most serious allegations of dishonesty. Pet. Op. Br. at 11; Reply at 1-2.

Brookwell wrongly focuses on what the hearing officer found she did not do. Brookwell was not discharged for dishonesty, for directing Waldie to enter all incoming traffic reports as inactive, or for minimizing her duties in her investigative interview. The fact that the hearing officer found these allegations not sustained means that they cannot be considered for discipline. That does not make them mitigating factors.

As the County argues (Opp. at 10-11), the hearing officer found that Brookwell committed misconduct that violated Department policies: (1) Brookwell failed to carry out the duties of Traffic Sergeant and refused to carry out Lieutenant Robert’s order that she use LARCIS to track traffic cases. She not only did not use LARCIS appropriately, she affirmatively disclaimed any responsibility to do so. AR 189 (Finding 7); (2) Brookwell directed or condoned a pattern and practice in which Yee repeatedly falsely entered inactive entries into LARCIS in dereliction of duty after she had been directed and trained in the use of LARCIS. AR 189 (Finding 8); (3) Brookwell’s mismanagement of the Traffic Office defeated the purpose of the LARCIS system and threatened the Department’s integrity by giving a false picture of the traffic operations in the ELA Station to managers and executives; and (4) by her refusal to perform her duties as Traffic Sergeant with respect to LARCIS, Brookwell caused hundreds of false entries to be entered into the system.

In the face of this willful misconduct, the only relevant mitigation was Brookwell’s long 30-year career, a fact which the hearing officer noted. AR 190. He also found, however, that her prior discipline offset this mitigation. AR 190. The court does not know what this prior discipline was because neither party cites it. Brookwell also failed to accept responsibility as testified by Central Patrol Division Chief Denham. AR 2033, 2043-44. The hearing officer did not fail to consider mitigating facts.

Brookwell further argues that she had no clear understanding how LARCIS was to be used. She relies on the following evidence. Upon hear arrival to the ELA Station Traffic Office, she was made aware of the Department’s expectations regarding the Traffic Office by Traffic Investigator Yee and Traffic Secretary Karen Sam.[5] Pet. Op. Br. at 12.

Detective Townsley, who worked as a Traffic Investigator and Traffic Deputy at various Department stations from 2001-2006 and also worked in the Department’s Risk Management Traffic Services Detail auditing all Department Traffic Offices from 2006-2016, testified:

“You go into the office and you got to try and figure it out yourself… It doesn't teach you how to do a Traffic office. So a lot of people would go there and try to figure out how to do an investigation, or how to do an investigations by trial and error. …There was no standardized way to do an investigation up until this [Field Office Directive], and that's the reason we felt this [Field Office Directive] was important.” Pet. Op. Br. at 12.

“And the reason for that is because throughout my eight years as a traffic travels investigator, we were on our own so to speak….We were always on our own. Nobody ever came to me really to challenge me, because as long as I generated that management report every month and the numbers were there, nobody really seem to challenge that.” Pet. Op. Br. at 12.

“To be honest with you, not too many people knew what LARCIS was or how to use it, to be honest with you. Pet. Op. Br. at 12.

According to Brookwell, this testimony demonstrates that she followed the existing ELA Station Traffic Office procedures throughout her tenure as Traffic Sergeant as instructed by more experienced traffic personnel. It was not until Brookwell met with Captain Roberts that she was made aware of any statistical deficiencies regarding any one of her many duties at ELA Station. After this conversation, she immediately implemented the LARCIS managements prerogatives for court deputies to Roberts’ 100% satisfaction. AR 2011-12.[6] Her contemporaneous notes from this meeting reflect no mention, and she had no understanding, that the LARCIS case management tracking system would apply to the ELA Traffic Office. AR 202. Pet. Op. Br. at 13.

Brookwell argues that the hearing officer never considered as a mitigating factor that the Department did not define its expectations for her regarding LARCIS for the ELA Station Traffic Office. At a minimum, she did not act with malice or an intent to mislead. Three separate case tracking systems existed within the Traffic Office -- Crossroads, LARCIS, and physical hard copy files – and that made case management difficult and inefficient. Furthermore, many other Department traffic offices used LARCIS in the same manner as the ELA Station. Brookwell’s failure to use LARCIS was justified based on past Traffic Office practice, her faultless utilization of Crossroads to manage cases, and the ELA Station management’s failure to clearly define any LARCIS expectations. Pet. Op. Br. at 12-13; Reply at 3.

Brookwell cannot rely on snippets of testimony and other facts without presenting a full and fair statement of facts with citations to the record, as ordered by the court at the trial setting and included in Local Rule 3.231(i)(2). When a petitioner challenges an administrative decision as unsupported by the evidence in light of the record as a whole, it is the petitioner’s burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency’s decision. State Water Resources Control Board Cases, (2006) 136 Cal.App.4th 674, 749. A recitation of only the part of the evidence that supports the petitioner’s position is not the “demonstration” contemplated by this rule. According, if a petitioner contends that some issue of fact is not sustained, she is required to set forth in his brief all the material evidence on the point and note merely his own evidence. Unless this is done, the error is deemed to be waived. Id. (quoting Foreman & Clark Corp. v. Fallon, (1971) 3 Cal.3d 875, 881).

Brookwell also ignores Captain Roberts’ testimony showing that she knew or should have known her LARCIS obligations. When the Traffic Office first became his responsibility in the beginning of 2012, Roberts noticed that traffic cases were not being properly handled in the LARCIS system and discussed the situation with Brookwell. AR 1981-82. She told him that she was not aware of the procedure and had never been trained in LARCIS. He directed her to attend LARCIS training as soon as possible, and also showed her how to assign a traffic case to the investigator in LARCIS and how to clear it. AR 1982-83. Roberts further showed her Field Operations Directive 11-01 and told her that she should comply with the LARCIS portion of the directive. AR 1378, 1991-92. He had Brookwell write a July 10, 2012 memorandum in which she acknowledged that the duties of Traffic Office personnel include entering approved traffic collision reports into LARCIS. AR 1317, 1993-94. Brookwell then received LARCIS Supervisor Management training on November 7, 2012. AR 1386, 1983.

Thus, by mid-2012, and certainly by November 2012, Brookwell should have been well versed in her LARCIS responsibilities. Yet, from 2012 then until early 2015 Brookwell completely failed to perform these responsibilities. Only after she was removed from the Traffic Office did Lt. Parga (who replaced Roberts) find out that every traffic case had been marked “inactive”, causing him to generate an Internal Affairs investigation. See AR 1654.

The hearing officer addressed Brookwell’s position that she was not given explicit instructions in 2012 about LARCIS and that the problem was an institutional failure by the Department. AR 182-83. He found her argument untenable because oversight of traffic investigations was her primary duty, she was given Field Operation Directive 11-01, was sent to LARCIS training, and could not have failed to understand that LARCIS entries were relied upon by her supervisors. AR 184.[7]

In reply, Brookwell argues that she should have been given additional staff support in the Traffic Office, noting that she had responsibilities as Court Liaison for the ELA Station, Emergency Operations (EOC and DCS) Sergeant, OARRS Sergeant, TEW Liaison and Citation Sign-Out/Void Book Sergeant. She also had her own personal issues that included dealing with her husband’s terminal illness. It is not a coincidence that the Department gets substandard work when it sets up employees for failure despite repeated requests for help. Reply at 4-5.

Captain Biagini, who was the captain for ELA Station, repeatedly testified as to the increasing workload experienced by the Traffic Office, a fact confirmed by many other witnesses. AR 2124, 2184, 2192-93, 2318, 2349-50. The Department’s decision to add additional Traffic investigators to the ELA Station Traffic Office after Brookwell’s departure shows that it was understaffed. AR 2406-07, 2444-45. Reply at 5-6.

Additionally, there is no reason why Brookwell would have used LARCIS for case management purposes in contradiction to the Traffic Office practices at other stations. The practice of entering cases into LARCIS on the “Statistical node,” but not the “Investigator node,” was common for Traffic Offices throughout the Department. This was confirmed by Traffic Services Detail Investigator Townsley testified that only one out of 22 stations were using LARCIS for 30, 60, 90 day case tracking purposes. AR 2487, 2514-15. Brookwell’s use of LARCIS was no different than many other Traffic Offices through this period. Reply at 6-7.

Brookwell’s contentions that the Traffic Office was understaffed and that the other stations used LARCIS the same way are new issues raised for the first time in reply and are waived. Regency, supra, 31 Cal.App.4th at 1333. In any event, her understaffing argument is rebutted by Captain Biaghani’s testimony that the entire ELA station was understaffed, but that fact did not justify violating LASD policy. AR 2184. It is difficult to ask for more staff when the employee’s falsification of records shows 100% performance. As for the contention that “the other stations do it”, Brookwell’s argument is inconsistent with the testimony of Roberts and Parga, as well as Denham, who explained that the LARCIS reports are crucial to LASD’s ability to monitor cases, and the failure to ensure that their proper status violated the public’s trust in LASD and its ability to handle traffic reports. AR 2055.

3. The Hearing Officer Did Not Fail to Explain His Reasoning for Discharge and the Skelly Factors Do Not Show a Manifest Abuse of Discretion

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake, supra, 47 Cal.App.3d at 228. The Commission’s decision must be “an arbitrary, capricious, or patently abusive exercise of discretion” to be overruled by the trial court. If there is “any reasonable basis to sustain it,” the penalty should be upheld. Montez, supra, 40 Cal.App.5th at 877. “Only in an exceptional case will an abuse of discretion be shown because reasonable minds cannot differ on the appropriate penalty.” Ibid. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale, supra, 7 Cal.3d at 515.

Brookwell notes that the hearing officer is required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 514-15. She argues that the hearing officer’s findings do not clearly explain his reasoning. His report finds no dishonesty and no cover-up for the two main charges and yet continues to advance termination as the appropriate penalty without sufficient reasoning. The Commission’s initial decision was to suspend and demote Brookwell and the final decision to discharge was made without any difference in evidence and failed to bridge the analytic gap between the raw evidence and ultimate decision. Pet. Op. Br. at 8; Reply at 2.

While Topanga requires adequate findings for an administrative decision, they need not be stated with formality and it is sufficient that the findings enable the court to determine that the agency found the necessary facts to support its determination. Kateen v. Department of Real Estate, (1985) 169 Cal.App.3d 481, 485. The discipline must be supported by the findings, but Govt. Code section 11518 governing state administrative decisions, does not require penalty findings. Williamson v. Board of Medical Quality Assurance, (1990) 217 Cal.App.3d 1343, 1346. There is no reason to concluded differently for a local agency. The agency is only required to justify the penalty actually imposed, including a statement of the factual and legal basis for the decision, but there is no legal obligation to outline the reasons for rejecting a lesser discipline. Oduyale v. California State Board of Pharmacy, (2019) 41 Cal.App.5^th 101, 113.

The hearing officer found that Brookwell ceded her managerial authority to Yee 95% of the time, she directed and/or condoned a pattern of practice in which LARCIS entries were entered falsely as inactive, she failed in her responsibility to review traffic reports and supplemental reports by delegating her responsibility, and that she caused false information to be entered in LARCIS. AR 187-90. The Department’s guidelines[8] provide a discipline range from written reprimand to discharge for these violations. AR 730-31. In light of the extensive period over which Brookwell mismanaged the Traffic Office, her flouting of her lieutenant’s directive to use LARCIS, and the effect on the data about the Traffic Office’s performance, the findings are sufficient to support the determination for discharge. The hearing officer adequately rendered “findings sufficient both to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the board’s action.” Topanga, supra, 11 Cal.3d at 514.

Brookwell notes that the Skelly factors are the important consideration in the determining penalty and argues that the hearing officer failed to address them. Therefore, his findings were insufficient to satisfy Topanga. Pet. Op. Br. at 8.

The hearing officer had no obligation to consider the Skelly factors. These factors are used by the reviewing court to determine whether the agency committed a manifest abuse of discretion. Skelly, supra, 13 Cal.3d at 219; Kolender v. San Diego County Civil Service Com., (2007) 149 Cal.App.4th 464, 471. Brookwell cites no legal requirement that the administrative agency must do so. See Opp. at 12.

In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly, supra, 15 Cal.3d at 217-18. “[T]he overriding consideration in these cases is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[harm] to the public service.’” Id. at 218.

The court’s review of the Skelly factors shows no manifest abuse of discretion.

Brookwell argues that the hearing officer articulated no discernable harm to public service. Not one case was dismissed or prejudiced by Brookwell’s conduct. No complaints were filed, and no issues brought up other than an audit that showed a policy was not being followed. Throughout Brookwell’s tenure as Traffic Sergeant, the Traffic Office received zero citizen complaints regarding case management or investigation. The Department’s witnesses Parga and Roberts both testified to this fact. AR 1716, 2012. Pet. Op. Br. at 13-14.

The court agrees with the County that Brookwell fails to refer to the findings or the evidence in making this argument. The evidence and findings both show that, for three years after she instructed to use LARCIS and how to do so, Brookwell allowed grossly inaccurate information to render the system essentially non-functional. Because she was not properly monitoring the activities of the traffic office, cases were not properly investigated and allowed to languish. AR 189.

The Department’s counsel argued to the Commission that Brookwell was doing only 5% of her primary work. AR 2916. As a result of her failures, traffic fatalities were entered as inactive the day afterwards and no further investigation was done. AR 2917. Cars were sitting in junkyards waiting to be looked at, which did not happen. AR 2917. The reports were sitting there not being investigated. All this after she was clearly told to do her job, and yet she did not do it. AR 2917. The community of East Los Angeles was not being served. AR 2917.

While this closing argument may be somewhat hyperbolic, Brookwell clearly harmed the public service by making it impossible for her managers to accurately assess the operations of the Traffic Office at the East Los Angeles Station. The public harm stemmed from an inability to know if investigations were properly performed. No complaints need arise to know that failure to do a job is harmful to the public service.

Brookwell notes that the likelihood of reoccurrence is a separate factor. See Martin v. State Personnel Bd., (1982) 132 Cal.App.3d 460, 464; Kolender v. San Diego County Civil Service Com'n, (2007) 149 Cal.App.4th 464, 474. Harm to the public service exists if the employee’s conduct is likely to result in harm if repeated. Skelly, supra, 15 Cal.3d at 218.

Brookwell argues that her multiple “Outstanding” performance evaluations are a clear and convincing portrayal that when she is properly assigned a duty, she performs it in an outstanding fashion. AR 1391-1434. She argues that, if her termination was based on her mismanagement of the Traffic Office despite these positive performance evaluations, then progressive discipline necessitates analyzing her history of supervising subordinates. Prior to this case, there is no evidence that Brookwell had any issues as a supervisor and she had never received any discipline related to a supervisorial deficiency. The hearing officer even recognized that Brookwell “presented herself as a bright, industrious employee who was consistently evaluated as outstanding.” Clearly, she is not likely to repeat the misconduct. Pet. Op. Br. at 14-15.

Brookwell’s Outstanding performance evaluations must be discounted by the fact that her supervisors thought she was doing a great job clearing cases and they did not know that she permitted them to be cleared as inactive. Both Roberts and Parga testified that they would not have given her those evaluations had they known the truth. AR 1705, 1707, 2001.

Moreover, the longstanding nature of Brookwell’s violations over several years, coupled with her defiance of Roberts’ directions to follow LACIS, comply with Field Operations Directive 11-01 for the LARCIS portion of the directive, and write him a July 10, 2012 memorandum acknowledging her LARCIS duties, as well as her LARCIS training on November 7, 2012, indicates that she is likely to repeat any misconduct that minimizes her level of effort.

Aggravating this factor is the fact that she refused to accept any responsibility by blaming Yee and distancing herself from her LARCIS duties. AR 2043-44. Her failure to acknowledge her wrongdoing makes it more likely that she would repeat it.

Brookwell contends that the “circumstances surrounding her misconduct show it was not significant. These circumstances include the past practice of not using LARCIS at the ELA Station, the lack of clear training and direction on the use of LARCIS, and the fact that she was off of work on approved leave for a significant period prior to the audit revealing the alleged violation. Pet. Op. Br. at 14.

Some of Brookwell’s contentions are not supported by any citations – e.g., the fact that she was off work on approved leave. More important, the longstanding nature of Brookwell’s failures coupled with her disregard of Roberts’ directives underscores the significance of her misconduct. Denham testified that her efforts to distance herself combined with the seriousness of the offense prompted him to impose discharge. AR 2044. The LARCIS reports are crucial to LASD’s ability to monitor cases, and her failure to ensure that their proper status violated the public’s trust in LASD and its ability to handle traffic reports. AR 2055.

The court cannot conclude that the discharge was a manifest abuse of discretion.

The County’s counsel is ordered to prepare a proposed judgment, serve it on Brookwell’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for September 29, 2022 at 9:30 a.m.

[1] Brookwell presents few facts and instead accepts the Commission’s findings. As a result, the court’s Statement of Facts is for informational purposes only.

[2] For convenience, the court will refer to the hearing officer’s report for the second and third issues and not the Commission’s decision.

[3] Brookwell argues that the Commission’s opposition provides no justification for the Commission’s decision to reject her motion for reconsideration that asked for an in-person or a full remote opportunity with video. Reply at 9. As the Commission points out, Brookwell fails to cite to this motion in the administrative record. Opp. at 9.

[4] Brookwell correctly notes that the Commission did not read the record and adopted these hearing officer findings. Reply at 2.

[5] Brookwell cites “Day 1” and “Day 2” instead of properly citing the record as directed by both the court and the Local Rule 3.231(i)(2). The court has no idea whether her quotations are accurate.

[6] These cited pages are not in the Joint Appendix.

[7] In reply, Brookwell notes that dishonesty for purposes of discharging of a state employee (Govt. Code §19572) “…connotes a disposition to deceive. It denotes an absence of integrity; a disposition to cheat, deceive or defraud…” Gee v. California State Personnel Board, (1970) 5 Cal. App. 3d 713, 718-719. She argues that her violation of MPP 3-01/100.35 (False Information in Department Records) required LASD to prove that she had a disposition to deceive by her failure to supervise case entries into LARCIS, not merely the result of inadvertence or excusable mistake. Based on the hearing officer’s recognition that the “…evidence does not prove any willful misrepresentation of fact by [Brookwell] as to her stated disagreements as to the directive and training given her...” (AR 185-86), and her lack of disciplinary history for dishonesty, Brookwell concludes that she should have been found guilty unless she had an intent to deceive. Reply at 7-8.

This argument is raised for the first time in reply and may be disregarded. Regency, supra, 31 Cal.App.4th at 1333. It is particularly egregious because Brookwell does not challenge the hearing officer’s findings in her opening brief. Moreover, the hearing officer’s conclusions that Brookwell did not lie during the investigation about Roberts’ directive and her LACIS training (AR 185) have nothing to do with her misconduct in permitting false records to be entered. The hearing officer expressly found that she knew what Yee was doing (AR 186-87, 189-90), that she acted willfully, and that her conduct was egregious. AR 191.

[8] Brookwell suggests that the Department used illegal disciplinary guidelines but makes no supporting argument or citation to evidence. Pet. Op. Br. at 8. The court need not consider conclusory arguments lacking support. When a party asserts a point but fails to support it with reasoned argument and citation to authority, the point may be treated as waived. Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784, 85; Solomont v. Polk Development Co., (1966) 245 Cal.App.2d 488 (point made which lacks supporting authority or argument may be deemed to be without foundation and rejected).