Judge James C. Chalfant, Case 21STCP03690 2022-10-18 Tentative Ruling

Petitioner Edmond Flournoy (“Flournoy”) seeks a writ of mandate compelling Respondents, City of Los Angeles (“City”), its Board of Civil Service Commissioners (“Board”), and Los Angeles World Airports (“LAWA”) to set aside the decision to terminate Flournoy.

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Petitioner Flournoy commenced this proceeding on November 9, 2021. The pertinent petition is the First Amended Petition (“FAP”) filed on December 3, 2021, alleging a cause of action for administrative mandamus. The FAP alleges in pertinent part as follows.

On January 21, 2020, Respondent LAWA issued a Notice of Intent to Administer Discipline. On June 2, 2020, Flournoy participated in a Skelly hearing. On July 28, 2020, after the conclusion of the Skelly hearing, LAWA served Flournoy with a Notice of Discharge.

Flournoy timely appealed and the matter was set for hearing. On August 12, 2021, the Board sustained two of the three causes of action for violations of LAWA policy.

Flournoy contends that Respondents abused their discretion by imposing a severe and unconscionable punishment of discharge. The Board’s decision is not supported by the findings, the findings are not supported by the weight of the evidence, the Board did not proceed in a manner required by law, and Flournoy was not provided with a fair trial.

Flournoy seeks (1) a writ of mandate setting aside the decision to terminate him and remanding to the Board for further proceedings; and (2) attorney’s fees and costs.

According to proofs of service on file, Respondents City and Board were served with the Summons, Complaint, and other papers on November 24, 2021.

On December 3, 2021, Flournoy filed the FAP. Respondents City and Board were served with the FAP on December 7, 2021.

On November 22, 2021, Fluornoy applied to file under seal (1) certain documents that are part of his confidential personnel file, (2) the administrative record, and (3) the parties’ yet to be filed trial briefs. On February 3, 2022, the court denied Fluornoy’s application.

On August 3, 2022, Flournoy amended the FAP to replace the fictitiously named “Doe 1” with LAWA. On August 10, 2022, Flournoy served Respondents City and Board with the Amendment to the FAP, and also served Respondent LAWA with the FAP, Amendment, and Summons.

On August 15, 2022, Respondents City, LAWA, and Board filed an Answer to the FAP.

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 on guilt 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.4th 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 Boarders, (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 Board, (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 Board, (“Lake”) (1975) 47 Cal.App.3d 224, 228. 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. The penalty should be upheld if there is “any reasonable basis to sustain it”. 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. 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, (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, (1972) 26 Cal.App.3d 961.

The City Charter created LAWA as a proprietary department the control and management of a board of commissioners. Resp. RJN Ex. B (City Charter §600(a)-(b)). LAWA has possession, management and control of all property and rights of every kind whatsoever (1) conferred upon the department by the City Charter; (2) purchased with funds under its control; or (3) received through ordinance, or with approval of the board, through other action of the City Council or from any other source, if consistent with LAWA’s purposes. Resp. RJN Ex. B (City Charter §602). LAWA has accounts and subaccounts for the purpose of segregating its revenues from other money of the City, and it has control over its special funds consistent with other provisions of the City Charter. Resp. RJN Ex. B (City Charter §603).

In November 2016, the Legislature passed the Adult Use of Marijuana Act (“AUMA”), which allowed anyone over 21 years of age to possess up to 28.5 grams, or one ounce, of cannabis or eight grams of concentrated cannabis. AR 802, 1129. LAWA police officers have no jurisdiction to arrest individuals complying with state law. AR 1137.

The Transportation Security Administration (“TSA”) may continue to contact LAWA officers when marijuana/cannabis products are discovered during the screening process. AR 804. The officers will continue to conduct thorough investigations and take the appropriate action if more than 28.5 grams of cannabis are discovered. AR 804, 1137.

As marijuana remains a Schedule 1 narcotic and a federal offense to possess or use, if a citizen finds and reports marijuana under the AUMA limits, LAWA officers shall take possession of the marijuana, provide a 10.10 receipt to the citizen, and book the property at LAPD Pacific Division for disposal purposes. AR 1137.

Any passenger detentions at a screening station shall take a reasonable time and the officer shall conduct a thorough investigation to determine if a crime was committed. AR 1140. If no crime occurred, the officer shall create a detailed log entry. AR 1140. Officers shall not provide legal advice or escort passengers in possession of marijuana under the legal limit. AR 1140.

Pursuant to the LAWA Manual, any LAWA officer assigned to any section requiring a Daily Field Activity Report (“DFAR”) shall complete it such that it accurately and truthfully reflects all activities during the assigned watch. AR 1153. DFARs shall be submitted to a supervisor at the end of the officer’s watch, or prior to the officer leaving the station for the day. AR 1153.

The discipline for a second instance of failure to perform work assignment adequately or promptly ranges from a one-day suspension to discharge. AR 1150 (LAWA Guide to Disciplinary Standards (“Discipline Guide”) §5.020 B.5).

The discipline for a second instance of violation of LAWA Manual section 14/3.9(A) regarding DFARs ranges from a six-day suspension to discharge. AR 1150 (Discipline Guide §5.020 B.1).

The City Charter empowers the Board to make and enforce the civil service rules and to establish and maintain the civil service system in accordance with the City Charter. Reply RJN Ex. A (City Charter §541). The City Charter applies to all City employees except for elected officials and specifically identified exempt positions. Reply RJN Ex. A (City Charter §§ 1000-1001(a)).

A board or officer having the power to appoint shall have the power to suspend or discharge any employee of the office or department. AR 1529 (City Charter §1016(a)). No person in the classified civil service shall be discharged or suspended except for cause, which shall be stated in writing by the board or officer having the power to make such discharge. Id. That board or officer shall then file the written statement of cause with the Board with certification that a copy has been served upon the person so discharged or suspended; only then does the discipline take effect. AR 1529 (City Charter §1016(b)).

The City Charter provides that the Board serve as an appellate body on appeals of discharges and reductions of permanent employees, subject to the Rules of the Civil Service System. Resp. RJN Ex. C (City Charter §§ 34, 35(6)). Within five days of service of the written statement upon the former employee, that person shall then file a written application with the Board to require a hearing to investigate the grounds. AR 1529 (City Charter §1016(c)).

When a disciplined City employee applies for the Board to investigate the grounds for such removal, discharge, or suspension, the Board shall first determine the extent to which the appointing authority taking the action complied with Personnel Department Policy. AR 1501 (Board Rule §§ 12.1, 12.4). The hearing examiner shall determine the agency’s compliance with Personnel Department Policy, adequacy of the evidence submitted in support of the charges, and the sufficiency of the grounds for removal, discharge, or suspension. AR 1502 (Board Rule §12.12). It is not necessary for the Board to make separate findings on each charge, and it may sustain or not sustain any and all charges. AR 1502 (Board Rule 12.17). For any sustained charges, the Board may sustain the discharge or suspension or, alternatively, initiate action to determine if the appointing authority would consent to a lesser discipline. Id.

If the Board finds that the grounds stated for the discharge or suspension were insufficient or were not sustained, it shall order the board or officer who made the discharge to reinstate or restore to duty the person. AR 1529 (City Charter §1016(d)). The person will also receive compensation from the City the same as if he or she had not been discharged or suspended. AR 1529 (City Charter §1016(e)).

When the Board denies reinstatement or restoration to duty after such application, the person may file a written claim for compensation and a demand for reinstatement. AR 1529 (City Charter §1017). The person must file the claim and demand within 90 days from the date of the decision of the Board following a hearing, or if no hearing is applied for, from the date on which it is claimed that the person was first illegally, wrongfully, or invalidly demoted, laid off, suspended, or discharged. Id. The demand for reinstatement must be filed with the Board and the claim for compensation must be filed with the City Clerk. Id. Failure to file a demand for reinstatement with proof of filing with the Board within the time specified shall be a bar to any action to compel reinstatement. Id. Proof of filing of the claim for compensation with the City Clerk within the time and manner specified shall be a condition precedent to recover of wages or salary. Id.

Service of notice in accordance with the City Charter may be made by handing a copy to the person or by sending a copy by certified mail to the person's last known residence if, after due diligence, the person cannot be found. AR 1529 (City Charter §1018).

On February 3, 2014, while an Airport Police Officer I, Flournoy entered into a Last Chance Agreement which expired on August 14, 2019. See AR 712. At the same time, he received a 30-day suspension for (1) Misuse of Official Position or Office; (2) Engaging in Illegal Behavior on or off the job; (3) Misuse of Authority; (4) Conduct Unbecoming of an Airport Police Division Employee; (5) Violation of Lost and Found Procedures; (6) Making False and Misleading Statements. See AR 712.

On October 25, 2018, Flournoy completed training with the state’s Narcotic Officers Association. AR 810.

On January 13, 2019, TSA Officer Alison Shaw (“Shaw”) pulled a passenger bag from the

airport security screening belt for secondary screening after the x-ray operator reported organic mass inside. AR 44. To conduct the secondary check, Shaw took the bag to the supervisor podium three meters away. AR 26, 44-45. Inside were vacuum-sealed cigarlike objects, ten to a bundle. AR 28, 1115-18, 1172-76. Some of these were labeled “Bud + Cigar + Glass,” or “Wax + Hash + Kief”. AR 1173-74. “Kief” is another word for cannabis crystals. AR 1169. Some cigars also said they were “for medical use only.” AR 1174.

The TSA officers informed Flournoy about the cigars at his adjacent podium. AR 98, 1187, 1191. He looked at the cigars and replied that he could not do anything because the cigars were a mixture of tobacco and alcohol and did not list the percentage of marijuana. AR 98. Shaw logged the bag of cigars as “unknown cigar substance/ indoor Kief” in the Lost and Unclaimed Daily Inventory Record for the Day. AR 1107, 1160, 1173-76. She also logged a vacuum-sealed bag of loose cannabis labeled “cannabis flower bag”. AR 1160.

Flournoy’s DFAR for January 13, 2019 does not reflect this incident. AR 1104-05.

On January 28, 2019, LAWA Officer Janette Schoenbaum (“Schoenbaum”) discovered luggage containing marijuana in the Lost and Found and she reported it to her supervisor, Sergeant Eren Barron (“Barron”). AR 167-69. Barron dispatched LAWA Officers John Carandang (“Carandang”) and Evererdo Montes (“Montes”) to investigate. AR 1253.

Schoenbaum directed Carandang and Montes to a black hard case roller bag with two clear vacuum-sealed bags. AR 1254. Carandang recognized one as loose marijuana and the other as 50 cigars laced with concentrated marijuana. AR 1111, 1254. The loose marijuana weighed 195.13 grams (6.883 ounces) and the cigars weighed 1541.71 grams (3 pounds, 6.382 ounces). AR 1111, 1200-01. Carandang also discovered circular light blue pills that resembled a narcotic. AR 1112.

Schoenbaum reported that TSA had delivered the luggage to the Lost and Found on January 14, 2019. AR 1111. The TSA Lost and Unclaimed Daily Inventory Record attached to the luggage showed that it was inspected by Shaw on January 13, 2019. AR 1111. Carandang confiscated the luggage, booked the narcotics with the LAPD Pacific Division, and generated a Property Report to that effect. AR 1111-12.

LAWA’s Internal Affairs Unit (“Internal Affairs”) investigated during 2019 and through January 2020.

Paris Noflin (“Noflin”) started working for LAWA as a civilian in September or October 2018. AR 852. He worked in the LAX Lost and Found on January 28, 2019. AR 849. Although the luggage made it to the Lost and Found on January 14, 2019, he did not check it until January 28 because the government shutdown caused LAWA to fall behind. AR 857.

He saw that the Lost and Unclaimed Daily Inventory Record attached to the luggage said that it contained “unknown cigars substance.” AR 849. At first Noflin and his colleague laughed it off as one of many odd descriptions sometimes found on those records. AR 851. When Noflin opened the luggage, however, he discovered a bag of weed that said “flower” or “cannabis flower” and another bag that had a lot of cigars in it. AR 852-53. The cigars said “Backwoods,” which normally have marijuana. AR 855-56. Noflin checked off the items on the Lost and Unclaimed Daily Inventory Record to show that they were in the luggage. AR 857.

On January 13, 2019, an x-ray scan detected organic mass in the luggage, which prompted a bag check. AR 899-900. When Shaw opened the luggage, she saw the cigars. AR 879. She went to Flournoy with a TSA supervisor nearby and told him about the cigars, including that they had slang words for cannabis on them. AR 879. Flournoy responded that he did not know what the substance was, and could not do anything with it, and Shaw should just log the bag. AR 879. Although the cigars said that 50% of the cigar was a street name for marijuana, Flournoy said he could not tell what was in the cigar just because of the label. AR 919.

Her manager, Aja Sellers (“Sellers”), was there when she found the cigars. AR 883. Shaw began to log the luggage’s contents as Flournoy directed. AR 879. While Shaw handled the clothes inside, a vacuum-sealed bag of loose marijuana fell out. AR 879. She reported it to Flournoy, who was still at the screening station. AR 917. Although Shaw identified it as marijuana, Flournoy again said that he did not know what it was and could not do anything with it. AR 879-80. Shaw and Sellers said the package said marijuana was inside it, but Flournoy did not relent. AR 885-86. Flournoy told Shaw to just log it as a “leafy substance.” AR 919.

Shaw finished logging the items that were in the luggage on the Lost and Unclaimed Daily Inventory Record. AR 880. She then gave the luggage to her supervisor Daniel Licera (“Daniel”) and told him about the cannabis items. AR 880, 882-83, 904. TSA’s protocol is for someone from Logistics to pick up unclaimed luggage at the end of the day or the next day and take it to the Lost and Found. AR 925.

Shaw could not remember if the same TSA manager was present when she showed Flournoy the cigars as when she showed him the loose marijuana. AR 885. There were a few supervisors present and she specifically remembered Daniel. AR 896. One manager was present and talked while she showed Flournoy the cigars, left before she found the package of loose marijuana, and returned as she showed the loose marijuana. AR 894, 896. Sellers was only present for the cigars and not for the bag of loose marijuana. AR 895.

Whenever a TSA officer inspecting a bag identifies marijuana, that officer alerts their supervisor. AR 802. Their supervisor then gives the luggage to LAWA, which always handles the situation from there. AR 902.

Whenever a TSA officer identifies marijuana in a bag, protocol dictates that the officer informs both their own manager and the LAWA officer and follows their instructions. AR 944. LAWA has refused some bags containing marijuana which were for medical purposes, but he has never seen a LAWA officer choose not to take possession of marijuana. AR 944.

Daniel saw some language on the cigars that said something related to marijuana, but he did not think the leafy bag had identifiers. AR 933.

When TSA told Flournoy at the podium that the luggage had a second bag with loose leafy material, Flournoy did not say it was marijuana. AR 929, 933. Flournoy said that it had no identifiers and refused to take possession. AR 929. The substance looked like marijuana to Daniel. AR 930.

Because LAWA had deemed that the luggage did not have narcotics, Shaw logged it for the Lost and Found. AR 929.

Once Flournoy refused to take the drugs, Daniel should have notified his manager. AR 930-31. He did not do so only due to a miscommunication in that he thought she knew. AR 936, 942. The manager was at the podium when Shaw showed the cigars, but Daniel could not recall if she also saw the loose bag. AR 931.

TSA officer Jonathan Licea (“Jonathan”), Sellers, and TSA supervisor Gloria Flores (“Flores”) were present when Shaw found the bag of loose marijuana in the luggage. AR 951, 963, 968, 972. Flournoy insisted that he did not know what it was beyond “a green, leafy substance.” AR 963. At this point, TSA had both the cigar bag and the bag of loose marijuana in hand. AR 964-65. Nevertheless, Sellers relented and told Shaw to just log it. AR 965. Jonathan did not remember if the bags had anything identifying the contents as marijuana. AR 970. Because the TSA managers were present, Jonathan did not feel the need to call a LAWA supervisor. AR 972.

Flournoy reviewed airport camera footage to identify the passenger who owned the luggage. AR 969. At one point Flournoy left for ten minutes and Jonathan assumed it was to look for the passenger. AR 969-70.

Flores was on the computer when Shaw first opened the luggage. AR 985. She smelled marijuana when Shaw took out the bag with the cigars. AR 985. They presented the bag to Flournoy, but he shunned them after they told him the passenger had left. AR 985.

After Shaw found the bag of loose marijuana, Flournoy identified it only as a “leafy substance.” AR 985. Flores then reviewed CCTV footage and identified the passenger who put the luggage on the belt for the x-ray. AR 985. Flournoy said he was going to the gate to see if he could find him. AR 986. He and a female officer were gone for ten minutes, and they did not find the passenger. AR 986.

Flores had only previously seen LAWA decline to seize marijuana if it was in a small container and the passenger had a medical card. AR 997.

Shaw called Sellers to the podium to see the cigars. AR 1005. Shaw then called Flournoy over, but he said that he could not seize the cigars because they did not show the accurate amount of marijuana in each cigar. AR 1005-06. Sellers felt that kind of made sense. AR 1020. She told Shaw to log the luggage for Lost and Found and left. AR 1006.

Shaw continued to go through the bag and discovered the bag of loose marijuana. AR 1006, 1010. Daniel and Flores were still at the podium, and they should have told Sellers about the second bag. AR 1013-14.

Sellers only found out about the bag of loose marijuana when a LAWA officer found the marijuana in the Lost and Found. AR 1006. Sellers heard another supervisor discuss the luggage and realized it was the same luggage from January 13, 2019. AR 1006. Sellers then told the supervisor that Flournoy said he could not take the cigars because they did not show the accurate amount of marijuana in each. AR 1006-07. The supervisor asked why Flournoy could not take the loose marijuana, which Sellers did not know about. AR 1007.

Sellers spoke to Daniel and Flores, who explained that they had Shaw log the marijuana for the Lost and Found because Flournoy refused to take it after they called him back to the TSA podium to look at the second bag. AR 1016, 1021. She informed them that the next time a LAWA officer refused to take marijuana, they must inform Sellers so she can intervene. AR 1008.

LAWA Officer Carley Casanova (“Casanova”) worked the podium with Flournoy on January 13, 2019. AR 1040. She never went to investigate a bag that TSA had screened for marijuana, nor does she remember Flournoy informing her of one. AR 1040-41. Casanova would have gone with Flournoy to help him if TSA approached with such a bag and she was present. AR 1042.

Throughout his training, Flournoy dealt with marijuana cases six times and he can identify the substance. AR 1051.

When a TSA agent reports that luggage has marijuana, the first step is to determine if the amount exceeds the approximately 27-gram limit. AR 1052. If the amount is legal, the LAWA officer should interview subjects, ask for their ID to verify ages, and leave it to TSA whether the passenger may travel with the marijuana. AR 1052. If the TSA decides in the negative, the LAWA officer should confiscate it. AR 1052.

Flournoy filled the DFAR for January 13, 2019. AR 1054. That day, a TSA manager asked him for perspective on whether the cigars in a piece of luggage were “narco.” AR 1054. The cigars were eight to a pack, wrapped like hotdogs, and colored brown or dirty olive. AR 1057-59. The labels on the cigars said they “may contain” six ingredients, one of which was marijuana. AR 1055. Flournoy did not take the “may contain” label as proof that they did contain marijuana or that the quantity was sufficient. AR 1054-56. He determined that there was nothing illegal and no need for him to take further action. AR 1061. It did not cross his mind to ask the passenger if the cigars contained marijuana. AR 1081.

Flournoy searched the luggage but found nothing else that may be prohibited for screening purposes. AR 1055, 1076. He also tried, but could not, smell any marijuana. AR 1072. Flournoy then left to address a call to a gate. AR 1066.

TSA did not call him back to the podium about any other marijuana in the luggage. AR 1067, 1085.

Flournoy did not record the incident in his DFAR because he only writes down investigations for absolute crimes or investigations that will take time and this event took 30 seconds. AR 1069. He admitted that he probably should have written the incident down. AR 1079.

He did not recognize pictures of the cigars. AR 1058. If Flournoy saw the cigars packed as they are in the pictures, he probably would have treated them differently. AR 1058. If the bag of loose marijuana was as in the pictures, he missed it when he checked the luggage himself. AR 1084. He did not recognize pictures of the luggage, which was open when he saw it. AR 1074.

When presented with a photo array of six candidates, Daniel, Jonathan, Shaw, Flores, and Sellers all identified Flournoy as the LAWA officer who advised TSA on what to do with the luggage after the screening revealed the marijuana cigars. AR 1099-1103.

On January 6, 2020, the LAPD Forensic Science Division tested the various items from the luggage. AR 808. It found (1) 141.43 grams of cannabis across the three packages of loose marijuana; (2) cannabis in one of the cigars, which had a total net weight of 2.6 grams; and (3) oxycodone in the 58 pills, which had a total net weight of 7.36 grams. AR 808.

On January 21, 2020, the Chief of Airport Police, Cecil W. Rhambo, Jr. (“Chief Rhambo”)

issued Flournoy a Notice of Intent to Administer Disciplinary Action (“Notice of Intent”). AR 793-99. The Notice of Intent alleged that Flournoy (1) failed to take possession and book narcotics found by TSA personnel during a screening in violation of LAWA Manual section 5.020.B.5 (Job Performance Below Standard); (2) failed to document the incident in his DFAR in violation of LAWA Manual section 5.020.B.1 (Job Performance Below Standard); and (3) made false or misleading statements during an administrative investigation by saying that he never saw the bag of loose marijuana in violation of LAWA Manual section 5/8.6. AR 793-95.

To determine the appropriate administrative action, the Notice of Intent considered Flournoy’s disciplinary history for the previous five years. AR 796. Flournoy had failed to follow Lost and Found Property procedures involving U.S. currency and received 30-day suspension on February 3, 2014 for (1) Misuse of Official Position or Office; (2) Conduct Unbecoming of an Airport Police Division Employee; (3) Violation of Lost and Found Procedures; and (4) Making False and Misleading Statements. AR 797.

The Notice of Intent considered that Flournoy’s conduct compromised LAWA’s relationship with the public and TSA. AR 796-97. Even more concerning was how Flournoy lied about not seeing the bag of loose marijuana despite the presence of four TSA agents. AR 797. The recommended discipline was termination from employment. AR 796.

On July 28, 2020, Flournoy received a Notice of Discharge Form 77 (“Notice of Disposition”). AR 618, 800. The form was a City form listing LAWA as the department issuing the notice. AR 800. Flournoy appealed his termination the same day. AR 616.

The hearing occurred on May 11 and 12, 2021. During the hearing, the parties stipulated that on August 4, 2014, LAWA and Flournoy entered into a five-year Last Chance Agreement for his failure to perform work assignments adequately or promptly. AR 373-75, 790. He was given a 30-day suspension as part of the agreement. AR 375. The agreement gave Flournoy a final chance to improve work performance and uphold all rules and regulations applicable to LAWA employees. AR 376, 790. The agreement was in effect on January 13, 2019, but not when LAWA served the Notice of Intent on January 21, 2020. AR 376.

Shaw is a former TSA officer and worked as such for five years. AR 23-24. Before the January 13, 2019 incident, Shaw had found marijuana in luggage about 10-15 times. AR 29. On those occasions, she called for law enforcement assistance and the LAWA officer took the marijuana and handled it without further TSA involvement. AR 30. That officer would interview the passenger if he or she was present and take the items and photograph them if not. AR 38.

On January 13, the x-ray operator scanned the luggage showing organic matter inside and asked for a TSA official to conduct a secondary screening of the luggage. AR 44. When Shaw retrieved the black roller luggage, she took it to the supervisor’s podium for a witness while she opened the bag. AR 44-45. Supervisor Daniel was present, and he told her to check the bag. AR 27.

Only a few items were inside the luggage. AR 46. She found a zip lock bag full of marijuana cigars – between 50 and 100 cigars wrapped in packs of 10 – close to the top. AR 27-28, 46. They were wrapped in large rubber bands, and the labels indicated the cigars had marijuana. AR 28. She could not smell anything. AR 28. She informed Daniel and LAWA Officer Flournoy. AR 28. The LAWA podium is right next to the supervisor podium. AR 52. No other LAWA officer was at the terminal. AR 31.

Flournoy did not take control of the bag because he claimed he did not know if the cigars had marijuana, even if the package said so. AR 31-32. She said the cigars were weed, but he would not agree. AR 32. He told her to log it in Lost and Found. AR 38-39. TSA supervisors were there the entire time, but Sellers was not present at the beginning when Shaw first saw the bag of cigars. AR 51-52. Both Sellers and Daniel took direction from Flournoy. AR 33, 54.

She questioned Flournoy’s direction, but everyone was standing around the bag and no supervisor told her otherwise because they were taking direction from Flournoy. AR 53-54. Because Flournoy refused to take the marijuana, she began checking the rest of the luggage contents for Lost and Found. AR 34. She found a pair of blue jeans and there was a large bag of marijuana in a vacuum-sealed bag when she unwrapped them. AR 34. Based on the consistency and color, Shaw knew it was marijuana. AR 35. In the presence of her supervisor and manager, and she told Flournoy: “Well, now, here’s weed.” AR 34. Flournoy said: “Well, we don’t know what that is. Log it as a leafy substance.” AR 34, 54. Flournoy never opened the vacuum-sealed packages of cigars or marijuana throughout the interaction. AR 41.

Based on Flournoy’s direction, she logged the marijuana on TSA Form 252, the Lost and Unclaimed Daily Inventory Record, using Flournoy’s description of “leafy substance.” AR 36-37, 56. For the cigars, she noted that the “unknown cigar substance” was “indoor kief” as was written on them. AR 34, 56.

This was the first time in her four or five years of duty that a police officer disputed that marijuana was present or told her to log marijuana into the Lost and Found. AR 32, 39, 53.

Flores is a TSA officer. AR 73. In 2019, marijuana was a prohibited item. AR 74. TSA officers receive training on how to manage marijuana in luggage. AR 73. The first step is to call for a TSA supervisor. AR 87. The TSA officer then contacts the LAWA officer on duty, who usually comes to the scene to take over and perform a background check of the passenger through NCIC. AR 73-74, 87. The LAWA officer may let the passenger go if it is only a little marijuana, but the officer will confiscate it. AR 87-88. The officer will arrest or cite the passenger if there is a lot. AR 87-88. Whatever the LAWA officer does with the passenger, the officer takes the marijuana. AR 73. TSA does not hold onto the marijuana or log it into the Lost and Found. AR 73, 87. If an officer were to reject marijuana, Flores would inform her manager, who in this case was Sellers. AR 88.

The TSA and LAWA podiums are connected. AR 69. On January 13, 2019, Shaw brought the luggage to the TSA podium to show Daniel and explain that she needed a witness for a bag check. AR 68-69. Flores, Daniel, and Sellers were present when Shaw opened the bag and found the cigars. AR 70. Sellers asked Flournoy to come over, but he went back to his podium after he saw the cigars and talked to his peer. AR 70. Shaw explored the bag further and found the bag of loose marijuana, so TSA called Flournoy back to show it to him. AR 70.

At that point, the passenger was gone, and they did not know to whom it belonged. AR 70. Flores and Daniel reviewed the CCTV footage to identify who put the luggage on the roller for the X-ray scan. AR 70-71. Flournoy then went to the gates to look for that passenger. AR 70.

Flournoy never took possession of the marijuana or tried to open the vacuum-sealed bags. AR 74, 76. He did not call for a supervisor and no other LAWA officer responded. AR 76.

Marijuana is still a federal Schedule 1 drug under the Controlled Substance Act. AR 101. The TSA website explains that TSA security officers do not search for marijuana or other illegal drugs, but if they find any during security screening, they will refer the matter to law enforcement. AR 101-02.

On January 13, 2019, Shaw’s supervisor Flores came into the office and informed Seller about the marijuana cigars in the luggage. AR 96. Sellers went to the podium, saw the cigars, and took them from Shaw. AR 97, 106. She walked to the connected LAWA podium and notified Flournoy by telling him: “We have marijuana cigars.” AR 97-98. Flournoy walked over and Sellers read the cigar labels off the package. AR 107. Flournoy said that the cigars had more than marijuana. They were mixed with tobacco and there was no actual percentage of marijuana given. AR 107. This made sense to her at the time. AR 107. Flournoy never took control of the cigars. AR 98, 102. Sellers gave the cigars back to Shaw for logging and left. AR 98, 107.

Sellers never saw the bag of loose marijuana during the inspection. AR 99. If a TSA supervisor discovers a bag that is clearly marijuana, he or she should first inform the LAWA officer and then Sellers no matter what the LAWA officer does. AR 110.

A few weeks after January 13, the TSA podium received a phone call from the Lost and Found while Sellers was nearby. AR 99. She recognized that the call concerned the luggage in question, and she took the phone. AR 99. The LAWA officer asked how a bag of marijuana in the luggage got to the Lost and Found. AR 99. Sellers, confused, said that there was no loose marijuana and asked if the officer meant the cigars. He said no, there was actual marijuana in the bag. AR 99.

Between the investigation and the hearing, Sellers reviewed CCTV footage from January 13, 2019 to understand what happened. AR 114. ARCC, a LAWA division, can provide such footage upon request. AR 117. In the video, she saw Shaw hold up the bag of loose marijuana, talk to the TSA supervisors, and put the bag down. AR 115. Sellers did not remember whether Shaw held the pouch up for Flournoy; she was more concerned about whether Shaw saw it and her supervisors were notified. AR 115. Internal Affairs never asked for the footage. AR 114.

This was the only time a LAWA officer refused to take possession of any item believed to contain marijuana after TSA informed the officer. AR 102.

Daniel’s job as a TSA supervisor is to ensure no prohibited items get on a plane and to supervise TSA officers. AR 120.

On January 13, 2019, Shaw approached the podium and said someone had left their luggage and she needed to inspect it. AR 121. During the inspection, she discovered the cigars. AR 121. The cigars said “indoor kief”, but Daniel is not 100% certain what that means. AR 125. Someone called Flournoy to the TSA podium, which is the practice whenever TSA intercepts narcotics and drug paraphernalia. AR 122-23. Flournoy was unable to identify whether the cigars had marijuana. AR 123. He said he could not take the cigars. AR 124. The cigars said that were dipped or coated in something, but Daniel was not 100% sure they contained marijuana. AR 124. There was a reference on one cigar “hash and kief” which is an indication of marijuana. AR 125.

Shaw then discovered the second bag, which Daniel believed could be marijuana. AR 126. When called over again, Flournoy said that he could not tell if it was marijuana and just called it a “green leafy substance.” AR 127. Flournoy never opened either bag to smell or look at the contents. AR 127-28.

Barron oversees the Lost and Found for LAWA. AR 168. On January 28, 2019, he received a call from Officer Schoenbaum about luggage with marijuana inside. AR 168-69. Barron told her to contact the sergeant on duty, Norm Ino (“Ino”). AR 169. Barron never saw the luggage himself. AR 169.

On April 27, 2019, Barron gathered and reviewed the TSA Forms 252 (Lost and Unclaimed Daily Inventory Records) for January 13, 2019. AR 171-73. The date on the corner of the forms could refer to either the date that TSA logged the bag or the date someone brought it to the Lost and Found. AR 186-88. None of the other forms that day mentioned marijuana. AR 174-84.

On January 28, 2019, LAWA Officers Carandang and Montes received a call to report to the Lost and Found to retrieve marijuana from luggage and book it with the LAPD Pacific Division. AR 197-98. Officer Schoenbaum showed them the luggage and opened it to reveal the two vacuum-sealed bags of marijuana. AR 198.

Carandang called the TSA supervisor for the terminal from which the luggage came. AR 199. The TSA supervisor explained that the LAWA officer, Flournoy, could not determine if the package was marijuana, so he turned it over as cigars. AR 201. Carandang’s investigation led him to conclude that the bags contained narcotics, so he took them and generated the Property Report. AR 201, 204. His investigation confirmed that there was 195-13 gross grams of marijuana and 1541.71 gross grams of cigars. AR 209-11.

Officer Carandang explained to Sgt. Ino that TSA had told him Flournoy refused to take custody of the narcotics. AR 232. That concerned Ino because LAWA is supposed to book narcotics and cannot just let them go. AR 232. Anytime narcotics are found, LAWA must complete a thorough investigation. AR 232.

The January 28, 2019 notice of the incident triggered the one-year investigation to determine whether LAWA should file misconduct and disciplinary charges. AR 236.

Ino’s investigation led him to believe that Flournoy’s decision to leave narcotics with TSA merited discipline. AR 244. Flournoy should have searched the bag to determine how much narcotics were in it and if there were weapons or other contraband. AR 244. He also should have thoroughly investigated who left the luggage. AR 244. Both LAWA and TSA have cameras and Flournoy could have put out a crime broadcast of the person’s picture, if necessary. AR 245. If the passenger was not located, Flournoy should have booked the property at LAPD Pacific Division. AR 245. There are no exceptions to this rule. AR 245.

Cooper is a LAWA training sergeant. AR 290. Whenever a TSA agent discovers narcotics, the LAWA Manual requires LAWA officers to conduct a thorough investigation to evaluate whether to take additional law enforcement action. AR 296-97. This includes determining if the marijuana is more than 28.5 grams. AR 296. The LAWA Manual policy has six bullet points, five of which are: (1) detain people only for reasonable amounts of time; (2) complete a thorough investigation to see if a crime was committed; (3) create a detailed log entry and DFAR if not; (4) give no legal advice to people with legal amounts of marijuana; and (5) do not escort passengers. AR 297-98.

The requirement of a thorough investigation does not depend on whether there is a passenger. AR 304. If the passenger has under an ounce and proper documentation, they may leave once the officer completes the investigation. AR 304.

If TSA suspects that a package has marijuana, the officer must make a log entry even if the officer never believed it and ultimately decided it is not marijuana. AR 306-07.

A LAWA officer’s skills come from both training presentations and field experience with a seasoned partner. AR 312. His five-year Last Chance Agreement was still in effect at the time of the January 13, 2019 incident. AR 376.

On January 13, 2019, Flournoy was sitting at the podium when Sellers approached with the bag of vacuum-sealed cigars and asked if the passenger could travel with them. AR 315. The label on the bag – not the cigars themselves – said “blended cigars, tobacco, may contain marijuana,” but he did not see any indication of how much. AR 315-16, 330-31, 393. LAWA no longer allowed him to conduct an NIK test, which entails cutting a piece of the cigar off and throwing it into a vial to see if it would change color to determine that. AR 316. All he could rely on was smell, training, experience, measurements on the packaging, and overall circumstances. AR 316.

Flournoy asked Sellers where the bag came from, and she showed him the luggage at the TSA podium. AR 317. He performed a quick cursory search of the luggage and did not see anything that would raise his suspicion, so he handed the cigars back to her. AR 317, 323. He believed that, if there was any marijuana in the cigars, it was a legal amount, and he did not need a supervisor. AR 350.

Flournoy explained to Sellers that he could not determine how much marijuana was in the cigars, and he had to be mindful not to violate someone’s rights. AR 317-18. He felt he did not have reasonable suspicion or probable cause to open the cigar package. AR 318, 390. Sellers did not object. AR 318. Flournoy went back to his podium to continue with updating his DFAR, but he received another call and had to go to the gates. AR 318. He did not see the matter as an official contact and did not note what happened with Sellers. AR 318.

Flournoy never asked who the passenger was, and no one showed him footage of the passenger. AR 319, 325, 376. He never had contact with any other TSA agent; his only conversation was with Manager Sellers. AR 321. Sellers never asked about or showed another bag of marijuana or other leafy substance. AR 321-22.

When he told investigators that he did not recognize the cigars, he meant he did not recognize how they were packaged in the picture shown to him. AR 328-29. In the picture, they are all bundled up and he did not recognize them. AR 337. He also did not recall them as color-coded as they are in the picture. AR 369. It is possible that the cigars depicted are the same as those he saw. AR 369-70.

The bag of loose marijuana, however, was new. AR 329. Had he seen the bag at the time, he would have launched a full narcotics investigation because of the large amount and its obvious nature as marijuana. AR 333-34, 380-81, 398. He would have contacted the passenger, detained him, confiscated the drugs, notified the station, and asked a Crime Scene Investigation team to come and take pictures. AR 333-34, 398.

Flournoy acknowledged that he should have recorded the incident. AR 388. An official flag-down usually occurs while the luggage is still on the screening belt. AR 319. On paper every contact merits a DFAR entry, but in training Flournoy learned that an officer must assess and prioritize the importance of what he writes down. AR 320. This hearing made Flournoy appreciate the need to write detailed DFARs to provide more information for situations like this. AR 320-21, 388.

When Flournoy saw the Skelly packet with the evidence that LAWA had against him, it made him reflect on how differently he would have handled the situation if he saw the package of loose marijuana. AR 397-98.

He has no prior history or reason for to believe that any of the TSA witnesses are biased. AR 321, 381-82.

Assistant Chief Imer Chavez (“Chavez”) testified to the decision to terminate Flournoy. AR 418. With respect to the first allegation, whether the owner of the luggage was present was irrelevant to Flournoy’s duty to investigate the marijuana and confiscate it if necessary. AR 414. His failure to do so compromised the relationship between TSA and LAWA; TSA is less likely to trust the police in the future. AR 415.

As to the second allegation, the TSA call was a flag-down that Flournoy should have entered into his DFAR. AR 416. He admitted that he failed to do so, which creates the perception of departmental dishonesty. AR 416-17.

As to the third allegation, several TSA witnesses countered Flournoy’s claim to investigators that he never saw the second marijuana bag and his dishonesty was itself a violation. AR 417. This was a credibility issue that Chavez decided in favor of the TSA witnesses. AR 418. Chavez did not remember any discrepancies between their statements. AR 422.

In determining discipline, he considered Flournoy’s prior discipline within five years, Flournoy’s untruthfulness, and his lost confidence in Flournoy’s ability to serve with integrity and honesty. AR 419. Chavez therefore recommended that Chief Rhambo terminate Flournoy. AR 419.

On June 28, 2021, the Board notified the parties of Hearing Examiner Stephen Biersmith’s Proposed Decision. AR 707.

The Hearing Examiner reviewed Shaw’s testimony that she opened the luggage in front of Daniel and found 50-100 marijuana cigars in a vacuum-sealed bag. AR 716. She told Daniel and Sellers, who had arrived on the scene, that she thought it was weed. AR 716. They called Flournoy over, but he refused to take control because he did not know it was marijuana despite the label on the cigars that said so. AR 716.

Shaw then checked the luggage and found the second bag that she could tell was marijuana, but Flournoy just told her to log it as a leafy substance. AR 716. The protocol for such substances was to contact a supervisor, take pictures, and interview the passenger, but Flournoy did not do any of this. AR 716. He told Shaw to just enter it all into the Lost and Unclaimed Daily Inventory Record, which she did with as much detail as possible. AR 717.

Flores is a TSA supervisor. AR 717. She testified that Daniel and Sellers were both present when Shaw brought the bag for inspection. AR 717. After Shaw pulled out some cyclical items, Sellers asked Flournoy to look at it. AR 717. By that point, the passenger was gone. AR 716. Flores could smell marijuana. AR 717. Flournoy never took possession, attempted to open the vacuum bags, or call a supervisor. AR 718. After Flores described the passenger to Flournoy, he went over to his partner and returned 10-15 minutes later saying he did not find the passenger. AR 718.

The LAWA officer makes the call. AR 717. This was the first time Flores ever saw a LAWA officer not take possession of discovered items, and drugs are never sent to Lost and Found. AR 717. On past occasions, the officer would release the passenger if it was a little marijuana. AR 717-18. If it was a lot, they would arrest the passenger and take the marijuana. AR 717-18. Flores was no longer involved after an officer took possession. Although she had to write a report to the Coordination Center, she did not know whether to write one when LAWA did not take possession. AR 718.

Sellers testified that she arrived as Shaw held the cigars up. AR 718. When she read the label to Flournoy, he told her they could not do anything because there was no indication of the percentage of marijuana mixed with tobacco. AR 718. That made sense to Sellers. AR 718. This was the first time an officer refused to take possession of drugs. AR 719. Sellers only learned about the other bag of marijuana a week later when the Lost and Found called. AR 719. She talked to Daniel and Flores and asked why she was not notified about this bag. AR 719. If she had known, she would have informed LAWA, and its officers would have taken over. AR 719. At no time should a TSA employee take possession of narcotics. AR 719. Sellers saw the video in which Shaw held the bag up and talked to her supervisors before putting it back down. AR 719.

Daniel testified that someone from TSA called Flournoy over, per the practice, after Shaw discovered the first bag. AR 719. Flournoy said he could not identify the amount of pot in the cigars. AR 719. Daniel was not 100% sure the cigars had marijuana. AR 719. He never saw Sellers pick up the items or comment on them after she arrived, or heard anyone say what to do. AR 720.

When TSA inventories a bag, they need to go through the whole thing. AR 720. Flournoy walked away during inventory. AR 720. When Daniel saw the second bag, he called Flournoy back. AR 720. Flournoy still said he could not identify the green leafy substance as marijuana. AR 720. Flournoy did not open the bags. AR 720.

The Hearing Examiner described the testimony of Baron, Carandang, Ino, and Noflin concerning the discovery of the cigars, 3.6 pounds of marijuana, and oxycodone in luggage that was in the Lost and Found. AR 721-23, 724. The Hearing Examiner also reviewed the testimony of Sgt. Cooper concerning Flournoy’s duty to conduct a thorough investigation to determine if a law has been broken. AR 723. Any amount of marijuana requires a log entry, and that is true even if the officer is not sure that it is marijuana; the final decision would be up to a supervisor. AR 723.

Flournoy testified that Sellers approached him with a vacuum-sealed bag of cigars that looked different than the one in those in the photographs in evidence, but they might be the same. AR 725. The cigars had a label noting blended tobacco, but they only said “may contain” marijuana and did not say how much. AR 725. Without testing, he could only rely on smell and experience. AR 725. He went through the luggage for 30 seconds and found nothing else. AR 725. He told Sellers that the new laws were murky, and he had to be mindful about violating rights. AR 725-26. He did not open the cigar bag because he was concerned about search and seizure law because he did not think a crime had been committed. AR 726. He admitted in his interview that Sellers told him the passenger was still present. AR 727.

He did not see the incident as an official flag down that merited a DFAR. AR 726. Sellers was the only TSA person with whom he had contact and she did not show him anything besides cigars. AR 726. He never saw a second bag labeled “high octane” or “cannabis flower”, never saw any pills, never received a passenger description, and never looked at the CCTV. AR 726. He was back at his podium for a minute and then left with his partner to a call at a gate. AR 726.

Assistant Chief Chavez testified as the decision-maker on the three allegations against Flournoy. AR 727. As to the first, however the TSA call initiated, Flournoy should have taken possession of the drugs because TSA is never supposed to handle narcotics. AR 727-28. The lab report showed marijuana and oxycodone. AR 727. His failure to take the items affected LAWA’s relationship with TSA. AR 728. As to the second, Flournoy’s failure to document the incident in his DFAR gave the perception that LAWA was not truthful in its recordings. AR 728. Flournoy admitted that he should have documented the incident in his DFAR. AR 728. As to the third, the testimony of four of the five officers was that Flournoy looked at the second bag. AR 728. Chavez had to make a credibility determination and decided that Flournoy lied about that during the investigation. AR 728. Chavez considered these allegations and Flournoy’s prior disciplinary history within five years but did not remember or focus on the Last Chance Agreement, when he decided that Flournoy’s dishonesty required discharge. AR 728-29.

Flournoy’s closing argument highlighted discrepancies between the TSA witnesses. AR 731. He accused Flores of testifying that her back was mostly turned to what was going on, yet she pulled up the video, talked about seeing the bag the next day, and was the only one who could smell marijuana. AR 731. Daniel was the supervisor in charge and may be trying to blame Flournoy because the TSA officers did not follow their own protocol. AR 731. While Shaw asserted that she showed Flournoy a second bag and he told her to put “green leafy substance”, she recorded “cannabis flower”. AR 732. Sellers’ testimony was actually similar to Flournoy’s in that she only saw the cigars. AR 731-32.

The Hearing Examiner concluded as follows. As to the first allegation – failure to take possession and book narcotics found by TSA personnel during the screening process – Flournoy saw the bag of cigars and did not take possession. AR 733. There was sufficient evidence that Flournoy also saw the second bag and again refused to take possession. AR 733. This is how both bags went to the Lost and Found until another officer discovered them. AR 733.

Flournoy had training to identify marijuana and various ways to package it and how to fulfill his duties when he sees marijuana. AR 733-34. He had some justification to think that the cigars did not have enough marijuana to exceed the 28.5 gram threshold, and Flores and Sellers both testified that LAWA officers often let a small amount go. AR 734. The cigars had an estimated 21.21 grams of marijuana. AR 734-35. They also had names such as “Kief” which were associated with marijuana products. AR 735. Still, Daniel was not 100% sure the cigars were illegal either. AR 736. Flournoy’s judgment call for the cigars had some support and was not totally unreasonable. AR 735-36.

The second bag of loose marijuana was different because there was no question that it had too much. AR 735-36. The core dispute was whether Flournoy saw that bag. AR 736. Shaw, Daniel, and Sellers all said he did see it but claimed that he could not determine its contents beyond “green leafy substance.” AR 736. If true, he knew he had a duty investigate and take custody of narcotics because the TSA lacked the authority to arrest people and could not possess such items. AR 736-37. Flournoy was required to take possession and book the property at LAPD Pacific Division. AR 737. It did not matter how much marijuana there was; he had to take it. AR 737. Flournoy did investigate briefly when he asked the TSA officers to whom the luggage belonged. AR 737. While they assert that he went off to find the passenger with no success, his DFAR log shows that he instead responded to another call. AR 737. Flournoy denied ever being shown a picture of the passenger/owner. AR 737.

The Hearing Examiner determined that there was no reason to believe the narcotics seized on January 28, the photographs of which were in evidence, differed from the narcotics Shaw found in the luggage. AR 737. The delay in the discovery of the marijuana was reasonable given the government shutdown and LAPD has kept custody of the items. AR 738. The discovery of oxycodone pills by LAWA officers demonstrates that Flournoy and TSA failed to thoroughly search the luggage. AR 738.

Even a suspicion of narcotics meant that Flournoy had a duty to investigate and search for other narcotics and weapons, but he did not do so. AR 738. Flournoy failed to identify the passenger, issue a crime broadcast, or book the items. AR 738.

As to the second allegation, Flournoy admitted that he did not enter the contact with Sellers about the marijuana into his DFAR. AR 739. Although the City believed that he deliberately chose to not log it to avoid discipline, his intent was irrelevant to the charge. AR 739.

As to the third allegation of false statements, the City needed to show that Flournoy knew his statement was false when he made it. AR 739-40. While the City did not prove this as to the cigars, the TSA witnesses showed that Flournoy lied when he said he never saw the bag of loose marijuana. AR 740. The inconsistencies Flournoy relied on did not damage their generally credible presentations they made as to what occurred. AR 740. While the Hearing Examiner and the LAWA investigation team never saw the video footage, Sellers did and saw Shaw holding up the package. AR 740. Shaw also let investigators know that the cameras existed, leading credence to her version of events. AR 740-41.

Shaw, as a retired TSA officer who discovered both packages of marijuana, was a credible witness with no motivation to lie. AR 741. Flournoy admitted there was no reason of bias between them. AR 741. Flournoy’s assertion that the TSA officers had reason to cover for their own mistakes had some merit as Flores failed to file the necessary report and the TSA agents did not find the pills in the luggage. AR 742. Still, there was no evidence that these officers conspired to blame Flournoy. AR 742.

As to discipline, Flournoy admitted that this would be the second occurrence of each alleged offense and that he received a previous 30-day suspension on February 3, 2014. AR 742. The Last Chance Agreement was in effect on January 13, 2019, the relevant date for the first two allegations, but not when he lied during the investigation. AR 742-43. Chavez considered the underlying conduct but not the Agreement itself. AR 743. He also considered that Flournoy’s actions damaged the relationship between LAWA and TSA and the trust the public has in the LAWAPD; the Proposed Decision agreed. AR 743-44.

Flournoy knew that LAWA’s Discipline Guidelines allowed for discharge if there was a second occurrence when he made a false and misleading statement. AR 743. Flournoy has also admitted that he should have logged the incident in his DFAR. AR 743. The Hearing Examiner agreed with LAWA’s concerns about allowing Flournoy to return to work. AR 744.

The Hearing Examiner found that Flournoy violated (1) LAWA Manual Section 5.020 B.5 for failure to perform his work assignment adequately; (2) LAWA Manual Section 5.020 B.1 for failure to log in a contact on his DFAR; and (3) LAWA Manual Section 5.020 B.1 for false and misleading statements during the investigation. AR 745-46. Discharge was consistent with LAWA’s Discipline Guidelines, and the Hearing Examiner recommended the same. AR 746, 748.

The Board’s notice of the Proposed Decision gave the parties until July 12, 2021 to file written briefs for the Board’s consideration at its July 22, 2021 meeting. AR 707. LAWA filed a brief. AR 752-67.

On July 22, 2021, the Board met to discuss the Proposed Decision. Board Member McClelland said that, while Flournoy claimed that no one presented the cannabis package to him, he had the obligation to find it. AR 528. Flournoy’s counsel reminded the Board that Flournoy has expressed that he now understands he should have further investigated. AR 529, 531.

Board President Perez responded that it was rather bizarre that five bundles of cigars and a passenger who flees his luggage did not raise suspicion for Flournoy. AR 529-30. If Flournoy could not recognize that, it raised concerns about his judgment in future decisions. AR 530. That should have led to him to discover the larger bag of marijuana, so whether he lied about seeing it was unimportant. AR 530-31.

When the Board asked why discharge should not be the discipline, Flournoy’s counsel asserted that it is uncommon to discharge an officer who misses narcotics in a search. AR 532. It seemed that the charge of dishonesty is what led LAWA to discharge in this instance. AR 532-33.

The Deputy City Attorney reminded the Board that TSA has responsibility for administrative screening, but LAWA is responsible for law enforcement functions. AR 538. The Board therefore should not focus on the TSA’s mistakes in deciding how to penalize Flournoy. AR 538.

The Board unanimously sustained the first and second causes of action for violations of violated (1) LAWA Manual section 5.020 B.5 for failure to perform his work assignment adequately, and (2) LAWA Manual section 5.020 B.1 for failure to log in a contact on his DFAR. AR 539-41. The Board voted 4-1 not to sustain the cause of action for false and misleading statements during the investigation. AR 541-42.

On August 12, 2021, the Board met with counsel for both parties to discuss the discipline because LAWA still sought discharge. AR 564, 566, 572-73. Board President Perez asked for a reminder on the Board’s options. LAWA’s counsel replied that the Board can decide that the penalty constitutes an abuse of discretion and vote not to sustain it. AR 573-74. The Board could also recommend lesser discipline but could not impose it without LAWA’s consent. AR 574.

LAWA’s counsel cited authority that the overriding consideration for discipline is the extent to which the employee's conduct resulted in public service harm or would do so if repeated. AR 576-77. LAWA found that Flournoy’s actions harmed the trust between it and TSA, and the Chief had determined that keeping Flournoy on the force would be an act of negligence. AR 577. Based on the first charge alone, reasonable minds could not differ on the penalty. AR 577. As to Flournoy’s failure to record the incident in his DFAR, that created a perception that LAWA is not truthful in its recordings. AR 578.

LAWA’s counsel read the Last Chance Agreement into the record, along with its stated purpose of giving Flournoy one last chance to improve his work performance and to maintain and uphold all rules, regulations, and employee guidelines. AR 590-91. He explained that the Agreement only affected the penalty LAWA recommended and was not a charge. AR 592-93.

Flournoy’s counsel argued that the Board should consider its vote to overturn the finding of dishonesty during the investigation. AR 579. With only second offenses for the other two charges, the maximum penalty of discharge would be an abuse of discretion. AR 579-80. Further, LAWA’s cited authority on the importance of public service harm was a case that involved use of force that was inapplicable here. AR 580.

On August 12, 2021, the Board issued a notice of decision to Flournoy and LAWA. AR 776. The notice gave Flournoy 90 days to seek judicial review pursuant to CCP section 1094.6, but only after he complied with City Charter section 1017’s requirement that he file a written claim for compensation and a demand for reinstatement. AR 776-77. The envelope in which Flournoy received the notice was postmarked August 20, 2021, and he did not receive it until after that date. Ewert Decl., ¶4, Ex. A (Flournoy Decl., ¶2, Ex. 1).

On August 23, 2021, in response to an email from Flournoy’s counsel about whether there would be a written decision, Board Executive Director Bruce Whidden (“Whidden”) emailed the August 12 notice to her, stating that he had some concerns with the mailroom. AR 1433-36.

On November 15, 2021, Whidden emailed both parties that he had learned that neither party had received the August 12 notice and the July 22, 2021 notice of the Board’s decision to sustain two of the three allegations. AR 1445. He therefore extended the deadline for a demand for reinstatement to December 12, 2021. AR 1445. Additionally, the window for filing a petition for writ of mandate would begin on January 13, 2022. AR 1445.

On November 15, 2021, Flournoy’s counsel informed Whidden that she had filed Flournoy’s Petition when she was unaware that Flournoy first needed to file a demand for reinstatement. Ewert Decl., ¶4, Ex. A (Munos Decl., ¶3, Ex. 1). Whidden admitted that the demand for reinstatement was an arcane step, but one that the court would look for. Ewert Decl., ¶4, Ex. A (Munos Decl., ¶3, Ex. 1). Whidden explained that the Board would deny the demand as a non-appearance item, but it was necessary in order to be able to file a petition with the court. Ewert Decl., ¶4, Ex. A (Munos Decl., ¶3, Ex. 1).

On October 19, 2021, Flournoy sent the City Clerk a claim for damages based on the discharge. AR 1437-40. The City Clerk filed it on October 22, 2021. AR 1439. The damages claim listed the date of the injury as July 28, 2020. AR 1439.

On January 11, 2022, Flournoy sent a notice of errata for the damages claim. AR 1473. It explained that Flournoy had received a response denying the damages claim because he accidentally listed the date of injury as July 28, 2020 instead of July 22, 2021. AR 1473.

On November 15, 2021, Flournoy sent the demand for reinstatement to Whidden. AR 1448-50.

At a Board meeting on December 9, 2021, the Board found that Flournoy timely filed the demand for reinstatement per City Charter section 1017 and denied it. AR 1465.

Petitioner Flournoy contends that (1) the Hearing Examiner did not adequately weigh witness credibility due to inconsistencies in the statements and motivation of TSA witnesses, (2) Flournoy reasonably believed that the cigars did not qualify for confiscation, (3) the City did not maintain chain of custody for the luggage, and (4) the sustained charges do not warrant termination.

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. CCP §389(a). A trial court must first determine that a party is necessary under subdivision (a) before assessing indispensability under subdivision (b). Citizens for Amending Proposition L v. City of Pomona, (2018) 28 Cal.App.5th 1159, 1178.

LAWA is a proprietary department of the City of Los Angeles, created under the City’s charter. City Charter §600(a) (Resp. RJN Ex. B). As a proprietary department, LAWA possesses, manages, and controls its funds separate from the City. See City Charter §§ 600(a), 602 and 603 (Resp. RJN Ex. B). LAWA is distinguishable from the City’s non-proprietary departments in that its funds do not come from the City’s general fund. Id. Any request by Flournoy for monetary relief or reinstatement to his former position directly impacts LAWA’s funds and operations, not the City generally.

The Commission has the power and duty to make and enforce the City’s 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. City Charter §541 (Pet. RJN Ex. A). The Board is a quasi-judicial body established under City Charter section 1016 designed to, among other things, “hold a hearing to investigate the grounds for the discharge or suspension” of a civil service employee. AR 1526, 1529. As such, the Board operates as a neutral, third-party entity (an independent body within the City’s Personnel Department) that adjudicates disputes between the employee and the employing department of the City. The Board members are the ministerial officers of the City responsible for administrative steps through which the appeal of City employee discipline, including LAWA, occurs. See Sacramento County Alliance of Law Enforcement v. County of Sacramento, (2007) 151 Cal. App. 4th 1012, 1020. In employment disputes before the Board, the hiring department within the City appears before the Board to defend its action to suspend or discharge an employee. Opp. at 7.

Respondents contend that it is insufficient to name the City and the Board as Respondents without also naming LAWA as a Real Party-in-Interest where the City Charter establishes an internal adjudicatory scheme before the Board. AR 1526, 1529, 1492-04. Courts have long drawn a distinction between a public entity and the autonomy of various elements of the entity’s governmental structure. Department of Health Services of Los Angeles County v. Kennedy, (“Kennedy”) (1984) 163 Cal.App.3d 799, 802[3]; Sacramento v. Hickman, (1967) 66 Cal.2d 841, 846, n. 3 (board of supervisors is autonomous legislative body entitled to join the county in a mandamus proceeding against county assessor); see also Board of Supervisors v. Archer, (1971) 18 Cal.App.3d 717, 720-21. The same principle has been applied to bodies created by county ordinance which exercise a quasi-judicial function. County of Los Angeles v. Tax Appeals Bd. No. 2, (1968) 267 Cal.App.2d 830, 834 (county may petition for judicial review of quasi-judicial decisions by property tax appeals boards). Opp. at 7-8.

According to Respondents, this line of cases supports the conclusion that when a public entity provides a quasi-judicial dispute resolution scheme, the public entity and its involved department must be treated as separate entities for purposes of the dispute resolution because they may have competing interests, despite being part of a whole. This is particularly true in mandamus, which issues against ministerial officers who are responsible for administrative steps through which the performance of the act sought is effected, and not against the governmental entity itself. Sacramento County Alliance of Law Enforcement v. County of Sacramento, (2007) 151 Cal.App.4th 1012, 1020. According to Respondents, there is no material reason why a specific department that seeks to either uphold or challenge the Board’s quasi-judicial decision should not be considered the separate entity that was maintained throughout the administrative proceeding. LAWA has the right to challenge any ruling by the Board based on the City Charter’s quasi-judicial dispute resolution scheme and should be named as a necessary real party in a challenge by Flournoy. See Kennedy, supra, 163 Cal.App.3d 802. Opp. at 8.

As Flournoy points out (Reply at 2), the cases cited by Respondents all concern mandamus standing by a county, its board of supervisors, or a county department against an autonomous element of a county’s governmental structure. See Kennedy, supra, 163 Cal. App. 3d at 799 (department, as an arm of the corporate county, had standing to bring a petition for administrative mandate against the county's civil service commission, which was an autonomous charter agency exercising quasi-judicial powers); Sacramento County v. Hickman, supra, 66 Cal. 2d at 846, n. 3 (county board of supervisors had sufficient beneficial interest for standing to proceed against county assessor); Board of Supervisors v. Archer, supra, 18 Cal. App. 3d at 717 (board had standing for mandamus action against assessor); Los Angeles County v. Tax Appeals Bd. No. 2 for Los Angeles Cnty., supra, 267 Cal. App. 2d at 834 (county may seek review of county tax appeals board decisions). These cases may support LAWA’s right to bring a mandamus action against the Board as an autonomous entity within the City, but they do not show that a public agency’s department, even a propriety department, is a necessary party for a mandamus proceeding.

As stated, the elements of a necessary party are that complete relief cannot be accorded in the party’s absence, or the party claims an interest relating to the subject of the action and is so situated that disposition in its absence may (i) as a practical matter impair or impede its ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” CCP §389(a).

Flournoy notes that any writ will issue against the Commission, not LAWA. Accordingly, complete relief can be accorded in LAWA’s absence. Reply at 2-3. LAWA has been represented by the same attorney throughout this case and has not been impaired or impeded in its ability to protect its interests. The disposition of this Petition will also not leave any of the parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of their claimed interests. Thus, LAWA is not a necessary party to the proceeding. Reply at 3.

Unlike other City departments (except DWP), LAWA is a proprietary department that possesses, manages, and controls its funds separate from the City. Any request by Flournoy for monetary relief or reinstatement to his former position directly impacts LAWA’s funds and operations and does not directly impact the City generally. This is sufficient to show LAWA’s interest in the subject of the action, and that disposition of the case in its absence may as a practical matter impair or impede its ability to protect that interest. For present purposes, the court will agree that LAWA is a necessary party.

If a necessary person cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. CCP §389(b). The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder. CCP §389(b).

Respondents contend that LAWA is an indispensable party. Although a court has the power to proceed with a case where an indispensable party has not been joined, for reasons of equity and convenience a court should not proceed with a case where it determines that an indispensable party is absent and cannot be joined. Inland Counties Regional Center, Inc. v. Office of Administrative Hearings, (1987) 193 Cal.App.3d 700, 706. Opp. at 9.

The first factor is whether a judgment in LAWA’s absence would prejudice it. Respondents argue that LAWA would suffer prejudice were the action to proceed in its absence because it is the interested party that would implement any court order. Opp. at 9. The court does not agree. While LAWA has an interest in who it employs and the use of its funds for reinstatement of a wrongfully discharged employee, every City department has an interest in the identity of its employees. Moreover, any funds required for Flournoy’s reinstatement ultimately belong to the City. While LAWA has sufficient interest to be a necessary party, it has not shown that it would be prejudiced in a final disposition of this case.

The second factor is the extent to which any judgment can be fashioned to avoid prejudice to LAWA. Respondents contend that the Board and LAWA do not have identical interests, unlike the city and billboard company opposing a voter proposition concerning billboards in Citizens for Amending Proposition L v. City of Pomona, (2018) 28 Cal.App.5th 1179-80. Opp. at 9-10. Respondents are looking at the wrong parties. LAWA and the Board do not have identical interests, but the City and LAWA do. There is minimal difference in the City’s and LAWA’s interests in the outcome of this case. As Flournoy notes, the City Attorney representing both the City and LAWA has appeared at every hearing in this case. At no point prior to the City’s August 15, 2022 ex parte application to continue the trial date did their counsel object to the fact that LAWA had not been named in the FAP. Reply at 4. This factor is dispositive and LAWA is not an indispensable party.

Although LAWA is not indispensable, the court will address Respondents’ arguments about the adequacy and sham nature of the Doe amendment naming LAWA.[4]

The 90-day statute of limitations for Flournoy to seek mandamus expired no later than November 10, 2021. AR 1445-52. Although he timely filed his Petition against the City and Board on November 9, 2021, he did not expressly name LAWA. When the statute of limitations has passed and a real party is indispensable, the case may be dismissed under CCP § 389(b) based on equitable considerations. Opp. at 9.

Flournoy relies on his Doe amendment to relate back to the filing of the Petition for the purpose of timely naming LAWA. When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint and such defendant may be designated in the pleading by any name. CCP §474. When his true name is discovered, the pleading or proceeding must be amended accordingly. Id.

Respondents note that the Doe amendment process under CCP section 474 only applies if “the plaintiff is actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant”. McClatchy v. Coblentz, Patch, Duffy & Bass, LLP, (“McClatchy”) (2016) 247 Cal.App.4th 368, 371-72. The question is whether the petitioner knew or reasonably should have known that he had a cause of action. See id. at 372-73 (plaintiff was not ignorant of the fact that defendant attorney conducted trust business at his law firm because plaintiff knew he used the firm address and letterhead); see also Optical Surplus, Inc. v. Superior Court, (1991) 228 Cal.App.3d 776, 784 (trial court was required to grant motion to quash because plaintiff’s demand letter clearly indicated that he knew of defendant’s identity and “actionable” activity). Opp. at 10-11.

As Respondents argue (Opp. at 11), Flournoy improperly attempted to amend his FAP on August 3, 2022 by substituting LAWA for a Doe. Resp. RJN Ex. D. The plaintiff’s complaint must state that he or she is ignorant of the true name of defendants sued as Does and that they are being sued under fictitious names. Kerr-McGee Chemical Corp. v. Superior Court, (1984) 160 Cal.App.3d 594, 598. The complaint must also allege that the Does are responsible for the acts complained of. Winding Creek v. McGlashan, (1996) 44 Cal.App.4^th 933, 941. The FAP does not allege that Flournoy is ignorant of the identities of Doe respondents, that they are being sued fictitiously, or that they are responsible for the acts of which Flournoy complains. The FAP merely states that “The Petitioner, Respondents, and Does 1-10 are the parties who will be affected by this Petition.” FAP, ¶4. Flournoy failed to adhere to the requirements set forth in CCP section 474.

Respondents are also correct (Opp. at 11-13) that the plaintiff must be genuinely ignorant of the defendant’s identity or liability. McClatchy, supra, 247 Cal.App.4th at 371-72. Flournoy knew LAWA’s identity because he attended and defended the evidentiary hearing at which LAWA was the City department prosecuting his discharge. The Notice of Intent is on LAWA letterhead, was issued by LAWA Chief Rhambo, and references LAWA throughout. AR 793-99. The notice of discharge was issued by the City but lists LAWA as the pertinent department. AR 800-01. Flournoy’s request for administrative appeal references LAWA by name. AR 616. The Board’s letter informing the parties of its final decision was issued to Flournoy and LAWA’s Executive Director. AR 776-77.

Clearly, Flournoy knew LAWA’s identity. He also knew that LAWA was a responsible party. Flournoy’s counsel has in the past included LAWA as a separately named defendant in an administrative mandamus matter, evidencing their knowledge of the need to do so. Resp. RJN Ex. F. Flournoy simply had no basis to wait until August 3, 2022 to attempt to name LAWA as a party.

Flournoy replies that it is natural for the head of a City department to sign the Notice of Intent and the mere mention of a department on disciplinary documents does not create a requirement that the department be individually named in a lawsuit. The City’s discharge form lists LAWA as the department where Flournoy was employed, but it is a City form maintained by the City’s Personnel Department. AR 800-01. This use of a City-wide form not specific to LAWA supports his position that it is not necessary to name the individual City department in an administrative mandate proceeding reviewing the Board’s decisions. The fact that other attorneys from the law firm representing Flournoy have named LAWA as a mandamus respondent does not show a need to do so in this case. The same law firm also filed a mandamus action against the City that did not name the department as recently as 2018. See Reply RJN Ex. B.

Flournoy’s arguments do not overcome the inadequacy of the Doe amendment, which fails to follow CCP section 474’s requirements and therefore does not relate back to the November 9, 2021 date the Petition was filed. The addition of LAWA therefore was untimely under the 90-day statute of limitations in CCP section 1094.6(a).

Respondents contend that the court lacks jurisdiction because Flournoy failed to exhaust his administrative remedies. A writ of mandate will only issue when the petitioner has no plain, speedy, or adequate remedy at law. CCP §1086. As a general rule, a court will not issue a writ of mandate unless a petitioner has first exhausted its available administrative remedies. See, e.g., Alta Loma School Dist. v. San Bernardino County Com. On School Dist. Reorganization, (1981) 124 Cal.App.3d 542, 554. Under this rule, an administrative remedy is exhausted only upon termination of all available, non-duplicative administrative review procedures. Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., (2005) 35 Cal.4th 1072, 1080.

The exhaustion doctrine has been described as “a jurisdictional prerequisite to resort to the courts.” Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 293. The exhaustion doctrine contemplates that the real issues in controversy be presented to the administrative body, which must be given the opportunity to apply its special expertise to correct any errors and reach a final decision, thereby saving the already overworked courts from intervening into an administrative dispute unless absolutely necessary. Farmers Ins. Exchange v. Superior Court, (1992) 2 Cal.4th377, 391.

Exhaustion is excused when an administrative remedy is unavailable, is inadequate, or it would be futile to pursue it. McAllister v. County of Monterrey, (2007) 147 Cal.App.4th. 253, 275. Other exceptions include "situations where the agency indulges in unreasonable delay...when the subject matter lies outside the administrative agency's jurisdiction, [or] when pursuit of an administrative remedy would result in irreparable harm...." Ibid; Green v. City of Oceanside, (1987) 194 Cal.App.3d 212, 222.

Respondents argue that the City’s prescribed administrative remedies track the 90-day statute for writs of mandamus under CCP section 1094.6 and is clearly stated in City Charter section 1017. AR 1529. Pursuant to City Charter section 1017, Flournoy was required to file the following within 90-days from the date of the decision of the Board before instituting this action: (1) a written claim for compensation and a demand for reinstatement. The Board issued its final decision on August 12, 2021. AR 602-03, 776-77. Accordingly, Flournoy had until November 10, 2021 to file his claim for damages and demand for reinstatement. Flournoy filed this action on November 15, 2021. Flournoy filed his claim for damages on or about October 22, 2021 (AR 1439-40), but he did not file his demand for reinstatement until almost a month later on November 15, 2021. AR 1448-50. Flournoy failed to exhaust his administrative remedies because he untimely filed his demand for reinstatement. Opp. at 12-13.

Respondents anticipate that Flournoy will rely on the fact that the Board’s Executive Director Whidden extended his time for filing a demand for reinstatement. The pertinent facts are as follows.

On August 12, 2021, the Board issued a notice of its decision. AR 776. The notice gave Flournoy 90 days to seek judicial review pursuant to CCP section 1094.6, but only after he complied with City Charter section 1017’s requirement that he file a written claim for compensation and a demand for reinstatement within 90 days of the Board’s decision. AR 776-77. The envelope in which Flournoy received the notice was postmarked August 20, 2021, and he did not receive it until after that date. Ewert Decl., ¶4, Ex. A (Flournoy Decl., ¶2, Ex. 1).

On August 23, 2021, in response to an email from Flournoy’s counsel about whether there would be a written decision, Whidden emailed the August 12 notice to her, stating that he had some concerns with the Board’s mailroom. AR 1433-36.

On November 15, 2021, Whidden emailed both parties that he had learned that neither party had received the Board’s August 12 notice and the July 22, 2021 notice sustaining two of the three allegations. AR 1445. He therefore extended the deadline for Flournoy to make a demand for reinstatement to December 12, 2021. AR 1445.

That same day, November 15, 2021, Flournoy’s counsel informed Whidden that she had filed Flournoy’s Petition when she was unaware that Flournoy first needed to file a demand for reinstatement. Ewert Decl., ¶4, Ex. A (Munos Decl., ¶3, Ex. 1). Whidden admitted that the demand for reinstatement was an arcane step, but one that the court would look for. Ewert Decl., ¶4, Ex. A (Munos Decl., ¶3, Ex. 1). Whidden explained that the Board would deny the demand as a non-appearance item, but it was a necessary step in order to file the petition with the court. Ewert Decl., ¶4, Ex. A (Munos Decl., ¶3, Ex. 1). In reply, Flournoy sent the demand for reinstatement to Whidden on November 15. AR 1448-50.

At a Board meeting on December 9, 2021, the Board found that Flournoy timely filed the demand for reinstatement per City Charter section 1017 and denied it. AR 1465.

Respondents note that Flournoy had actual notice of the Board’s decision. His counsel was present on August 12, 2021 when the Board voted and announced its final decision. AR 564-66, 571-72. Moreover, Whidden’s attempted action to extend Flournoy’s time to demand reinstatement lacks legal basis. Neither the City Charter nor the Board’s rules for disciplinary hearings grant such authority. AR 1526-29, 1492-504. Opp. at 13.

Respondents contend that, even if Whidden’s emails are availing, Flournoy is estopped from relying on the extended deadline because Flournoy cannot simultaneously claim he that lacked notice of the August 12 notice until receiving an email from Whidden extending the deadline on November 15, 2021, while also filing his Petition on November 9, 2021. Flournoy had notice of the time that began on August 12, 2021 because he filed a claim for damages well before the November 10, 2021 deadline and filed his Petition shortly before the deadline. Accordingly, Flournoy’s entire action should be dismissed for failure to exhaust administrative remedies. Opp. at 13-14.

The court agrees that Whidden lacked authority to extend any deadlines. However, Flournoy points out that he need not rely on Whidden’s extension. City Charter section 1018 provides that “[s]ervice of notice in accordance with this Article may be made by handing a copy to the person or by sending a copy by certified mail to the person’s last known residence if, after due diligence, the person cannot be found.” AR 1529 (Pet. RJN Ex. A). Flournoy was never personally served with the August 12 notice and did not receive it until some date after August 20, 2021. Reply Ewert Decl., Ex. A (Reply Flournoy Decl., ¶2, Ex. 1). The envelope containing the August 12 notice was post-mark regular mail, not certified mail, on August 20, 2021. Id. Service of the August 12 notice was not completed as required by City Charter section 1018 because it was not served personally or via certified mail, and there is no evidence indicating that Respondents could not locate Flournoy after exercising due diligence. Accordingly, proper service was never effectuated on Flournoy and City Charter section 1017’s 90-day clock for a demand for reinstatement did not begin to run. Reply at 7.[5]

Respondents argue that Flournoy had actual knowledge of the Board’s decision because his counsel was present on August 12, 2021. This is true, but it is not knowledge of the decision that is significant but rather notice of the deadline for filing a demand for reinstatement. As Flournoy argues (Reply at 7-8), he was never properly service with the August 12 notice, and he was improperly served with it at some point after August 20, 2021. The demand for reinstatement was submitted to the Board on November 15, 2022, at most 87 days after the notice was received. The Board expressly found on December 9, 2021 that Flournoy filed his demand for reinstatement within the 90-day period of City Charter section 1017. AR 1465.

Flournoy timely complied with City Charter section 1017 and exhausted his administrative remedies.[6]

Flournoy notes there is no dispute that Sellers advised him that TSA had located “blended cigars” and he decided that he was not required to confiscate them because he could not tell how much marijuana was in the cigars. AR 1254, 1054. Flournoy testified that Sellers initially approached him at his podium with the bag of cigars. AR 317. He saw the outer packaging of the vacuum-sealed bag which had labeling descriptive of the contents. AR 330, 367. He did not see the labels on the cigars inside the packaging, but he admitted that the cigars he was shown in the photographs at the hearing could be the same cigars Sellers showed him on January 13, 2019. AR 331, 369-70. After looking at the cigars, Flournoy approached the TSA podium and performed a cursory search of the luggage. AR 317. Flournoy only recalled speaking to Sellers and did not recall speaking to any TSA agent or supervisor. AR 321, 343, 347.

During her administrative interview on March 20, 2019, Shaw claimed that, although Sellers was present when she found the cigars, she (Shaw) was the one who “told [Flournoy] what was in the bag and [she] showed it to him.” AR 33, 879, 883. During the hearing, Shaw testified that TSA supervisor Daniel was present when she opened the luggage and located the cigars. AR 27, 51, 895. Shaw stated that Sellers was not present at the beginning when she (Shaw) located the cigars and arrived at some point before the Flournoy interaction. AR 51.

Flournoy contends that Shaw’s testimony as to who was present and/or who presented the cigars to Flournoy was not consistent. Pet. Op. Br. at 6. The court disagrees. Shaw testified to the TSA officers were present – herself, Daniel, and Sellers, who was not present at the beginning. In her March 20 interview, Shaw stated that a supervisor was present when she found the bag whom she identified as Daniel. AR 879, 883. She did say that her manager (Sellers) “was there when I found the cigars”, but it is unclear from context whether that meant right when she opened the luggage. There is no significant inconsistency in Shaw’s testimony and statements about Seller’s presence. Nor is there any significance about which TSA agent handed the cigars to Flournoy because Shaw clearly discovered them and the others, including Sellers, were present.

Flournoy notes that Shaw claimed in her March 20, 2019 interview that during her search of the luggage “something rolled out of it and it was a big vacuum sealed bag of marijuana.” AR 879. She advised Flournoy: “It’s weed”. Flournoy responded by indicating there was nothing for him to do, and she should log it as leafy substance for the Lost and Found. AR 34, 38, 879. Shaw also stated that she did not find the cigars and the loose bag of marijuana at the same time; it was after Flournoy indicated that he would not deal with the cigars that she started inventorying the luggage and found the vacuum sealed bag of marijuana. AR 884-85. When asked whether the same TSA supervisor was present when she found the cigars and the marijuana, Shaw stated “I can’t recall. I’m sorry.” AR 885. Shaw then stated that she did not believe the officer (Flournoy) was still standing there when she found the package of loose marijuana, but that he came back and did see the vacuum-sealed green, leafy substance. AR 894. Pet. Op. Br. at 6.

During a subsequent July 23, 2019 interview, Shaw claimed that Flournoy never left the screening station. AR 917. In her interview, Flores believed that TSA personnel had to call Flournoy back when they found the vacuum sealed bag of marijuana. AR 985, 1021. In his interview, Jonathan claimed that when the Flournoy responded to the screening station both the cigars and the vacuum sealed bag of a leafy green substance were out of the luggage and were in their hands. AR 964-65. In his interview, Daniel claimed that once Shaw “got down further there was another vacuum-packed seal of what appeared to be marijuana… and [he thought] at that point [they called the officer] back over” and the officer said something “on the lines of…it’s just a unknown leafy, green substance.” AR 929.

Flournoy argues that the statements of Shaw, Flores, Jonathan, and Daniel were not consistent on whether Flournoy was present when the vacuum-sealed bag of loose marijuana was located. Flournoy consistently testified that he was never called back to the podium after looking at the cigars with Sellers and that he never saw the vacuum-sealed bag of a green leafy substance. AR 321, 1066-67, 1085. Daniel, Jonathan, and Flores were supposedly present when Shaw located the second bag of marijuana. AR 896, 936, 951, 985. Shaw and Jonathan also claimed that Sellers was present when they found the vacuum-sealed bag of marijuana and discussed it with Flournoy. AR 34, 52, 963, 968. Yet, Sellers testified that she did not see a vacuum-sealed bag containing a green leafy substance and was not made aware of it until she spoke with Carandang on January 28, 2019. AR 99, 1007, 1015, 1020, 1254. Flournoy argues that Shaw and Jonathan’s testimony regarding Sellers’ presence when the vacuum-sealed bag of marijuana was located was inconsistent with that of Flournoy and Sellers. Pet. Op. Br. at 6-7.

As Respondents argue (Opp. at 16), the alleged inconsistencies about Flournoy’s presence when Shaw located the vacuum-sealed bag of loose marijuana are overblown for the simple reason that the TSA podium is right next to the LAWA podium. AR 26, 52, 1187. Thus, inconsistencies in testimony about whether Flournoy was present at the screening station or simply moved a few steps from the LAWA podium are immaterial. Both TSA Supervisors Flores and Daniel testified that Flournoy was present at the podium during Shaw’s search. AR 70, 128. Shaw specifically brought the discovery of the second bag to Flournoy’s attention and even had a disagreement with him about its contents. AR 26-29, 31-35. Thus, whether Flournoy was present at the TSA podium the entire time or, more likely, was called back from the LAWA podium when the second bag was discovered is immaterial. The important fact is that he was shown the second bag.

It is true that Shaw and Jonathan claimed that Sellers was present when they found the vacuum-sealed bag of marijuana and discussed it with Flournoy (AR 34, 52, 963, 968) and Sellers persuasively testified that she was not made aware of the second bag of marijuana until she spoke with Carandang on January 28, 2019. AR 99, 1007, 1015, 1020, 1254. However, Shaw was not specific in her testimony, saying only that “[t]he supervisor was there and the manager was there” (AR 34) and “the managers and the supervisor were all there during that point” (AR 52). This general reference to Sellers, who was the manager, is not sufficient to affect her credibility. Jonathan did state in his interview that Sellers was there when the second bag was found. AR 963, 968. But he did not testify, and his statement does not reflect an inconsistency in Shaw’s testimony as opposed to his own.

Flournoy notes that Shaw also claimed in her interview that Flournoy he kept saying about the second bag: “I can’t tell if this is marijuana or not”. Shaw responded: “It says it on the package.” AR 886. Assuming the items photographed by Carandang are the same items that were located in the subject luggage, Flournoy argues that Shaw’s statement regarding the writing on the package supports his position that he was only present for the cigars because the vacuum-sealed bag of loose marijuana did not have any identifiers on it. AR 1115-18, 929, 933. Pet. Op. Br. at 7-8.

Flournoy is wrong. According to Noflin, when he opened the bag of weed it said “flower” or “cannabis flower”. AR 852-53. Shaw also recorded the bag as “cannabis flower bag”. AR 1160.

Flores claimed that she showed Flournoy a video of the passenger placing the luggage on the rollers and Flournoy went to the gate to see if he could find the passenger. AR 986. Shaw testified that she did not have any information whether the passenger intentionally left the bag behind. AR 40. In their interviews, Jonathan and Shaw claimed that Flournoy went with his partner to look for the passenger who abandoned the luggage. AR 899, 969. However, Jonathan admitted that he was assuming Flournoy went to search for the passenger and did not actually recall Flournoy advising that he was going to look for the passenger (AR 970) and Shaw stated that she did not know what happened when Flournoy did so. AR 899. Flournoy denied that anyone directed him to video footage of the passenger. AR 325. LAWA Officer Carley Casanova was assigned to work with Flournoy on the date of the incident and she did not recall investigating or searching for an owner of an unattended bag at a screening station. AR 325, 1040-42.

From this evidence, Flournoy concludes that he was never shown a video or that he attempted to locate the passenger, and this supports his position that Daniel’s and Shaw’s testimony was not credible and was not afforded appropriate weight by the Hearing Examiner. Pet. Op. Br. at 9.

The court agrees that the evidence that he was shown a video of the passenger and went to look for him is weak, mostly based on Flores’ testimony. AR 70-71. This does not undermine Shaw, however. Shaw barely mentioned Flournoy going to look for the passenger in her interview (AR 899) and not at all in her testimony. Flournoy also probably did not go to look for the now missing passenger, but that is collateral to the issues.

Flournoy notes that TSA officers are supposed to notify supervisors, who in turn must notify managers and then LAWA supervisors when a large amount of marijuana is found. AR 110, 881, 883, 902. Daniel and Flores did not report Flournoy’s refusal to take possession of the luggage up their chain of command. AR 1008, 1013, 1014. In fact, nobody tried to contact a TSA manager or a LAWA supervisor regarding the bag of loose marijuana. AR 931, 972, 994, 1018. Flores claimed that she believed Daniel and Jonathan would have let Sellers know about the fact that the marijuana was logged into Lost and Found. AR 1000. Daniel equated this failure to notify a manager or supervisor to a miscommunication or misunderstanding. AR 936, 942. Sellers confirmed that normal protocol would be for her to notify a LAWA supervisor, but she had not been informed. AR 1018. Pet. Op. Br. at 9-10.

Shaw testified that Flournoy directed her to log the cigars and bag of loose marijuana into the Lost and Found. AR 39. In his interview, Daniel did not recall telling Shaw to inventory the luggage contents, but he was there when she did so. AR 929. He believed Sellers knew about the cigars and was unsure if she knew about the second bag. AR 929-30. Sellers’ position was that she was never informed about the vacuum-sealed bag, and Shaw – who was a good officer -- should know that she could not log marijuana into the Lost and Found. AR 1007, 1014. Flores also confirmed that marijuana should not be logged into the Lost and Found. AR 995. Daniel and Flores informed Sellers that they allowed Shaw to log the items into Lost and Found because the Flournoy refused to take possession of the subject luggage. AR 1016.

From these facts, Flournoy concludes that the failure to notify a TSA manager or LAWA supervisor constituted a violation of TSA protocol. The TSA witnesses knew they had failed to follow protocol regarding handling of the luggage. Instead of taking responsibility for the mistake, they blamed this failure on Flournoy. Pet. Op. Br. at 10.

Flournoy almost has the facts correct. No TSA employee stated or testified that they had a duty to go up Flournoy’s chain-of-command, except that Sellers as manager would have done so had she known about the second bag. Flores expressly testified that TSA has no duty to inform other LAWA officers. AR 128. However, the TSA officers did have a duty to go up their own chain-of-command and should not have taken the marijuana to Lost and Found. This was a violation of TSA protocol.

But the TSA officers committed this failure because Flournoy would not take the marijuana -- either the cigars or the second bag of loose marijuana. The TSA officers obviously were flummoxed by his decision and simply followed his direction. It was a wrong direction, but they can be excused for making an error in a situation that had never happened before: a LAWA officer refusing to confiscate marijuana. Ultimately, the responsibility for handling the marijuana lies with Flournoy, not TSA. There simply is no evidence that the TSA officers conspired to blame Flournoy to shift responsibility from themselves and the general consistency in their statements and testimony – with some inconsistencies that one would expect with unscripted narrations -- as well as Shaw’s paper trail -- shows that they had no collective motivation to lie.

Flournoy criticizes the Hearing Examiner’s finding that there was “little if any, reason not to believe Shaw. She was very credible and perhaps the most critical witness for the Department.” AR 740-41. Flournoy contends that Shaw was probably the least credible witness in this case. Despite the discrepancies in Shaw’s statements and Sellers’ testimony about the video, there is no evidence that LAWA made any attempt to locate or preserve the video. Flournoy argues that the fact that the Hearing Examiner afforded a significant amount of weight to Shaw’s testimony and considered her to be the most critical witness supports his position that the findings about Shaw’s testimony are not supported by the evidence. Pet. Op. Br. at 8.

The court disagrees. The Hearing Examiner assessed the inconsistencies in the TSA witnesses’ testimony and determined that they did not damage their credibility. AR 731-32. He assessed Shaw, a retired TSA officer, as a credible witness with no motivation to lie. AR 741. Flournoy admitted there was no reason for her to have a bias. AR 741.

Shaw’s paper trail also shows that she was telling the truth. On January 13, 2019, she recorded the luggage contents to included “unknown cigar substance, indoor kief” and “cannabis flower bag” for the Lost and Found. AR 1160. There was no reason to do so unless she could not persuade Flournoy to confiscate the marijuana.

The TSA witnesses, especially Shaw, were credible on the events of January 13, 2019.

The sustained charges were that Flournoy (1) failed to take possession and book narcotics found by TSA personnel during a screening, in violation of LAWA Manual section 5.020.B.5 (Job Performance Below Standard); (2) failed to document the incident in his DFAR in violation of LAWA Manual section 5.020.B.1 (Job Performance Below Standard).

The evidence shows that Flournoy repeatedly refused to take possession of marijuana during a TSA screening on January 13, 2019.[7] Flournoy admitted seeing the cigars that Shaw had located. AR 315-16. The cigars’ labeling clearly indicated they contained marijuana, using words like “Bud”, “Kief”, “Paranoia: OG”, and “For Medical Use Only.” AR 756, 1174. The total of 50 cigars (five sets of 10) suggested that the amount might exceed the legal limit allowed in California. AR 752, 802. Shaw knew that the cigars were “weed”, but Flournoy would not agree. AR 32. When booked, the cigars weighed 1541.71 gross grams (3 lbs, 6 oz), which is suggestive of an illegal amount. AR 1111, 210-11, 1200.

Sgt. Cooper testified to Flournoy’s obligations at that point. Whenever a TSA agent discovers narcotics, the LAWA Manual requires LAWA officers to conduct a thorough investigation to evaluate whether to take additional law enforcement action. AR 296-97. This includes determining if the marijuana is more than 28.5 grams. AR 296. The Manual policy has six bullet points, five of which are: (1) detain people only for reasonable amounts of time; (2) complete a thorough investigation to see if a crime was committed; (3) create a detailed log entry and DFAR if not; (4) give no legal advice to people with legal amounts of marijuana; and (5) do not escort passengers. AR 297-98. The requirement of a thorough investigation does not depend on whether there is a passenger. AR 304. If the passenger has under an ounce and proper documentation, they may leave once the officer completes the investigation. AR 304. If TSA suspects that a package has marijuana, the officer must make a log entry even if the officer never believed it and ultimately decided it is not marijuana. AR 306-07. Flournoy completely failed to investigate the marijuana in the cigars.

In his July 23, 2019 interview, Flournoy stated his understanding of the investigation process is that, if the investigation shows that the amount of marijuana is less than an ounce and the person is of age, then he would determine there was no crime and let TSA decide whether to allow the person to travel with the marijuana. AR 1052. Due to changes in the law, Flournoy felt he had to be mindful as to whether confiscation of the cigars might violate somebody’s rights. AR 317-18, 390.

Sgt. Cooper confirmed that officers have access to materials concerning California Prop 64 which state:

“The Transportation Security Administration (TSA) ·may continue to contact Airport Police when marijuana/cannabis products are discovered during the screening process. As loca1 law enforcement, we will continue to conduct thorough investigations and take the appropriate action if more than 28.5 grams are discovered during the screening process.” AR 296, 1137.

Cooper also testified that “if it’s under an ounce, if they have all the proper documentation, I believe they’re free to go once the officer does a thorough investigation.” AR 304. TSA supervisors Daniel and Flores confirmed that they have seen LAWA officers let passengers go if they have documentation and are only found to have a small amount of marijuana. AR 944, 997. The Hearing Examiner also stated that Flournoy’s judgment call that the cigars possibly contained less than the legal limit was not totally unreasonable. AR 735.

Flournoy described his search of the subject luggage as cursory and estimated it took him approximately 30 seconds to a minute to investigate the cigars and he did not attempt to locate the passenger to determine the amount of marijuana in each cigar. AR 317, 353. Flournoy concludes that, while his cursory search of the luggage may have contributed to the failure to identify the rest of the marijuana, it was reasonable for him to determine that he could not confiscate the cigars. Accordingly, the Hearing Examiner’s finding that his failure to investigate the cigars constituted a failure to perform is not supported by the evidence. Pet. Op. Br. at 10-11; Reply at 10.

This argument is a non-sequitur. Flournoy’s initial wrongdoing was a failure to investigate. Flournoy had training to identify marijuana and various ways to package it and how to fulfill his duties when he sees marijuana. AR 733-34. He had in his possession 50 cigars that clearly indicated they contained marijuana, the total of which may have exceeded the 28.5 gram threshold. Even a suspicion of narcotics meant that Flournoy had a duty to investigate and search for other narcotics and weapons, but he did not do so. AR 738. Yet, Flournoy merely asked the TSA officers to whom the luggage belonged. AR 737. Whether he had some justification to believe that the cigars did not have enough marijuana to exceed the 28.5 gram threshold is irrelevant because he failed to investigate. See AR 734.

Flournoy knew he had a duty investigate, which at a minimum included talking to the passenger and checking the luggage for other drugs and weapons. Once the passenger fled, he was required to take custody of the cigars because TSA lacks authority to arrest and could not possess marijuana. AR 736-37. Flournoy was required to book the property at LAPD Pacific Division. AR 737. It did not matter how much marijuana was in the cigars; he had to take them. AR 737. He could not direct TSA to log the cigars into Lost and Found. AR 38-39.

Once Shaw began inventorying the luggage contents for Lost and Found, she found the second vacuum-sealed bag of loose marijuana. AR 34. Flournoy again refused to take possession of the bag of loose marijuana, saying that “we don’t know what it is. Log it as a leafy substance.” AR 34. Shaw, Flores, Daniel, and Jonathan all agreed that Flournoy was shown the second bag and again refused to take it. AR 34-35, 70, 126-27, 963, 968, 972. Both Shaw and Daniel testified that Flournoy referred to the bag’s contents as a “green leafy substance”. AR 34-35, 127. No witness corroborated Flournoy’s testimony that he did not see the second bag, and he agreed that it should have been confiscated due to its amount. AR 333-34. Opp. at 14-15.

Flournoy argues that he is corroborated by Sellers’ testimony about the video she saw after being question by Internal Affairs. Sellers was interviewed on March 20 and July 12, 2019. AR 1005, 1034. At the hearing, Sellers testified that she viewed a video of the incident after she was questioned by Internal Affairs because she wanted to know what happened. AR 114-15. She was able to see Shaw “hold…what looks like the pouch of marijuana up and she’s talking to the supervisors and then she puts it back down.” AR 115. In response to questioning about who was present when Shaw held up the pouch of marijuana, Sellers stated: “I think it was just the supervisors.” AR 115. Sellers could not recall if the video depicted Shaw showing the pouch of marijuana to the Flournoy. AR 115. Sellers was never asked to save the video or provide it to anyone from Internal Affairs. AR 114. Pet. Op. Br. at 8; Reply at 10-11.

Flournoy fails to add that Sellers testified that she did not remember if Flournoy was present because she was more concerned about whether TSA employee Shaw and her supervisors saw it. AR 115. This is not significant corroboration of Flournoy.

Thus, Flournoy’s guilt for failure to take possession and book the marijuana found by TSA during screening in violation of LAWA Manual section 5.020.B.5 (Job Performance Below Standard) has two features: (a) his failure to investigate and (b) his failure to take possession of the drugs. Flournoy’s counsel admitted his failure to investigate to the Board: “Officer Flournoy has always maintained that he understands that that was something that he should have gone forward and conducted a more thorough search.” AR 531. Once the passenger fled, he had no choice but to seize whatever marijuana was present. As Board Member Perez noted: “Who flees their baggage? Shouldn’t that raise a read [sic] flag as well? If the passenger can’t be found there’s probably a reason why he fled. That’s – that is in my opinion without a doubt failing to perform work assignments adequately and job performance below standards….” AR 530.

It is undisputed that Flournoy failed to document the incident in his DFAR in violation of LAWA Manual section 5.020.B.1 (Job Performance Below Standard). Flournoy was trained to log detailed entries on his DFAR. AR 739, 1140). Flournoy’s DFAR is supposed to reflect all of his activity during his assigned watch. Yet, his DFAR for January 13, 2019 omitted any reference to his interactions with TSA regarding the cigar and his direction to place narcotics in Lost and Found. AR 1104-05, 1153. Flournoy admits he failed to document his interaction with TSA on his DFAR. AR 318, 728, 760.

Sgt. Cooper testified that any amount of “marijuana would definitely be a log entry” and that if an officer is suspicious but not able to ultimately determine that it’s marijuana it would still require a log entry. AR 306. Flournoy testified that while the training materials indicate that “you’re supposed to write down every single contact; but in training, [he] was trained…to assess and prioritize the importance of the stuff that you write down.” AR 319-20.

Flournoy argues that his DFAR for January 13, 2019 contains approximately 26 entries for the day. AR 1104-05. He was unable to detect an odor of marijuana on the cigars (AR 1072), he did not recall feeling anything besides a bright colored jogging jacket and clothing, and he did not find any prohibited items during his cursory search of the luggage. AR 1055, 1076, 1084, 1086. He did not write down any information regarding the incident in his DFAR because he did not view the incident as an official contact or flag-down. AR 318, 1069. This was a momentary lapse in judgment, not an intentional omission. AR 320. He understands the importance of completing a DFAR and admits it was mistake not to document the incident on his DFAR. AR 320-21, 1079. Pet. Op. Br. at 12.

Flournoy failed to document the incident in his DFAR in violation of LAWA Manual section 5.020.B.1 (Job Performance Below Standard).

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. 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. The penalty should be upheld if there is “any reasonable basis to sustain it”. 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 v. State Personnel Board, supra, 7 Cal.3d at 515.

Flournoy notes that Assistant Chief Chavez, who made the recommendation regarding level of discipline to Chief Rhambo, testified that he considered Flournoy’s lack of truthfulness and integrity. AR 419, 422. Yet, the Board voted 4-1 not to sustain the charge of false or misleading statements. AR 542. The remaining two charges are for failure to perform work assignments adequately. The suggested range of discipline for a second offense of failure to perform work assignment adequately or promptly (Discipline Guide §5.020.B.5) is a one-day suspension to discharge. AR 1150. The suggested range for a second offense of violation of LAWA Manual section 14/3.9(A) regarding DFARs (Discipline Guide §5.020 B.1) is a six-day suspension to discharge. AR 1150. Pet. Op. Br. at 12.

Flournoy argues that the Board has the authority to determine that LAWA’s termination of Flournoy constituted an abuse of discretion and vote not to sustain it. AR 573, 1529. The Board also was advised that it was precluded from imposing a lesser penalty without the appointing authority’s consent. AR 574. Flournoy’s failures to locate the marijuana and complete one log entry on his DFAR were mistakes that were insufficient to support discharge. He concludes that the decision to terminate him constitutes an abuse of discretion. Pet. Op. Br. at 12; Reply at 11.

The most important factor is harm to the public service. As the Hearing Examiner found, Assistant Chief Chavez testified that Flournoy’s misconduct damaged the relationship between LAWA and TSA and the public’s trust in LAWA. AR 743-44. LAWA’s counsel argued as much to the Board, which clearly agreed. AR 529-31, 577. So does the court. The TSA witnesses obviously were confused by Flournoy’s actions, so much so that they committed failures of their own. Flournoy’s actions were seriously harmful to the public service.

The circumstances surrounding the misconduct show Flournoy’s failure to understand and perform his job. He almost completely failed to investigate and compounded the problem by directing TSA to place the marijuana in the Lost and Found. His failure to document the incident merely added to these failures.

As for the likelihood of reoccurrence, this was Flournoy’s second serious offense of a similar nature. Assistant Chief Chavez indicated that Flournoy’s prior discipline of a 30-day suspension imposed with the Last Chance Agreement was of a similar nature to Flournoy’s present misconduct committed within five years of the previous discipline. The repetition of similar misconduct makes it likely that it will reoccur if Flournoy remains employed.

Respondents note that Flournoy had the opportunity to take responsibility for his failures as a mitigation effort, and he did so in part before the Board. AR 529-32. Nonetheless, the two sustained charges where within the range of penalty under LAWA’s disciplinary guidelines. AR 1150. The discharge was not a manifest abuse of discretion.[8]

The Petition is denied. Respondents’ counsel is ordered to prepare a proposed judgment, serve it on Flournoy’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 November 29, 2022 at 1:30 p.m.

[1] The parties note that the court granted oversized briefs. It did not, however, grant leave to violate CRC 2.104 by using less than 12-point type. The court has not considered the portions of Respondents’ opposition that violate CRC 2.104.

[2] Respondent LAWA requests judicial notice of (1) Flournoy’s Petition filed on November 9, 2021 (Resp. RJN Ex. A); (2) City Charter sections 600 and 602-03 (Resp. RJN Ex. B); (3) Charter of the County of Los Angeles (Resp. RJN Ex. C); (4) the notice of Summons and copy of CEB non-judicial “Doe 1” form filed in this case on August 3, 2022 (Resp. RJN Ex. D); (5) Flournoy’s FAP (Resp. RJN Ex. E); and (6) a petition for administrative mandamus filed by petitioner Rubert Steine (Resp. RJN Ex. F). The court does not need to grant Request Nos. 1 and 4-5; it can always review the filings of this case. Request Nos. 2-3 are granted under Evid. Code section 452(b). Request No. 6 is granted under Evid. Code section 452(d).

In reply, Flournoy requests judicial notice of (1) City Charter sections 541, 1000, 1001, 1017, and 1018 (Reply RJN Ex. A); (2) a petition for administrative mandamus filed by petitioner Douglas Watson (Reply RJN Ex. B); and (3) LAWA’s answer to Watson’s petition (Reply RJN Ex. C). Request No. 1 is granted under Evid. Code section 452(b). Requests 2-3 are granted under Evid. Code section 452(d).

[3] Respondents argue that, although Kennedy concerned the County of Los Angeles, the same principles apply to the City’s Charter. See Charter of the County of Los Angeles (Resp. RJN Ex. C). Opp. at 8.

[4] In denying the City’s August 15, 2022 ex parte application to continue trial, the court expressly permitted the City to raise the indispensable party issue. Although not expressly stated, this included the City’s right to raise the sham Doe argument.

[5] Although City Charter section 1017 required Flournoy to file the demand for reinstatement, it did not require him to do so before filing the Petition. Section 1017 only requires that the demand for reinstatement be filed “within 90 days from the date of the decision of the board following a hearing.”

[6] The court need not address Flournoy’s additional argument that the futility exception to the exhaustion of administrative remedies doctrine applies in this case. See Reply at 8-9.

[7] Flournoy suggests that there is a chain-of-custody issue for the luggage. Shaw testified that, after she advised Daniel about what she found in the bag and completed the TSA Record Form, the luggage was just left at the podium. AR 41, 881-82. (She also said the supervisor was standing over her. AR 904.) The LAWA and TSA Lost and Found are combined every morning (except weekends) and TSA’s Logistic Department responds to each terminal and picks up property that went unclaimed the prior business day. AR 1254. TSA then delivers the property to the LAWA Lost and Found and the property will be processed and inventoried. AR 1254. Shaw’s TSA Record Form indicates that the luggage was inventoried on January 13, 2019 and transported to the Lost and Found by TSA on January 14, 2019. AR 1254, 1107. Flournoy points out that the luggage was not fully inventoried or turned over to LAWA until approximately two weeks later, on January 28, 2019. The City attributed the delay between transportation and LAWA’s inventory of the luggage to the government shutdown. AR 434, 859. The circular light blue pills were not documented on the TSA Report form. AR 1107. Flournoy argues that the chain of custody was incomplete and does not support a finding that the luggage inventoried on January 28, 2019 contained the same items that were in that black roller bag on January 13th, 2019. Pet. Op. Br. at 11-12.

This is not a serious issue. Shaw inventoried the cigars and bag of loose marijuana on January 13, 2019 and identified the pictures of the drugs at the hearing. There is no serious doubt that it was the same cigars and marijuana. Even Flournoy conceded that it may be the same cigars (AR 369-70), and there is no realistic prospect that someone planted the bag of loose marijuana in the luggage while it was in Lost and Found for almost two weeks. As the Hearing Examiner found, the discovery of the oxycodone pills by LAWA officers demonstrates that both Flournoy and TSA failed to thoroughly search the luggage. AR 738.

[8] The court need not consider Flournoy’s request for attorney’s fees under CCP section 1021.5. See Pet. Op. Br. at 14.