Judge James C. Chalfant, Case 22STCP00259 2023-04-06 Tentative Ruling

Petitioner Colette Vasquez (“Vasquez”) seeks a writ of mandate to compel Respondent Los Angeles County Civil Service Commission (“Commission”) and Real Parties-in-Interest Los Angeles County (“County”) and its Probation Department (“Department”) to set aside the Commission’s decision discharging Vasquez from her position as Department employee.

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

Petitioner Vasquez filed the Petition on January 25, 2022. The operative pleading is the First Amended Petition (“FAP”) filed on September 29, 2022, alleging a single cause of action for administrative mandate under CCP section 1094.5. The FAP alleges in pertinent part as follows.

Vasquez was at all relevant times a permanent civil service employee with the Department. On June 23, 2017, she drove five minors in a van from Central Juvenile Hall (“CJ Hall”) to Barry J. Nidorf Juvenile Hall (“BJNJ Hall”). Enroute, the minors removed their restraints, removed the metal grate that separated them from the driver, shattered the sliding door window, and attempted to escape. Vasquez used pepper spray to subdue them and complete the trip, which led to an investigation for misconduct.

On June 8, 2018, the Department notified Vasquez that it intended to discharge her and did so on September 25, 2018. Vasquez appealed.

A Commission hearing officer heard the appeal in September and October 2019, and again in February and March 2020. The Department contended that Vasquez did not follow safety protocols on June 23, 2017, and that she was dishonest in the investigation that followed. Vasquez asserted that she exercised reasonable judgment in response to the minors’ attempts to escape from a moving vehicle, that she complied with safety protocols and policies, and that she was not dishonest during the Department’s investigation.

On March 3, 2021, the hearing officer recommended sustaining the discharge. On or about October 25, 2021, the Commission issued an order that sustained the discharge.

Vasquez contends that the Commission committed a prejudicial abuse of discretion because the evidence does not support the findings and the findings do not support the decision. Vasquez seeks (1) a writ of administrative mandamus compelling the Commission to set aside its decision, reinstate her as Supervising Detention Services Officer with the Department, and reimburse her for lost salary and benefits.

On May 19, 2022, Vasquez filed a proof of service of the Petition on the Commission.

On May 20, 2022, the Commission gave notice that it has no beneficial interest in the outcome and declared that it would not make further appearances in the matter.

On June 24, 2022, Vasquez filed a proof of service of the Petition on the County Board of Supervisors.

On August 17, 2022, Vasquez filed notice that her attempts to serve the Probation Department had failed.

On September 29, 2022, Vasquez filed her FAP. On September 30, 2022, Vasquez electronically served the FAP on the Commission, County, and Department with the permission of their attorney.

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.4^th 652, 658.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Bixby, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

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

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

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

The Commission consists of five members appointed by the Board of Supervisors, each for a four-year term. Los Angeles County Charter (“Charter”) §31. The Commission shall serve as an appellate body in accordance with the provisions of Charter sections 35(4) and 35(6). Charter §34.

The Commission may promulgate civil service rules (“CSRs”) to govern its proceedings. Charter §34. The purpose of the CSRs is to carry out the Charter provisions, assure the continuance of the merit system, promote efficiency in the dispatch of public business, and assure that all employees in the classified service system receive fair and impartial treatment at all times. CSR 1.02. To this end, the CSRs are liberally construed, and the Commission may make and enforce any order appropriate to effectuates those rules. CSR 1.02.

The term “discharge” is defined as a separation from service for cause. CSR 2.19. Before the discharge of a permanent employee in a nonsupervisory class becomes effective, the employee shall receive a written notice from the appointing power of intent to invoke discharge or reduction, and specific grounds and particular facts therefor. CSR 18.02(A). The employee shall then be allowed a reasonable time, not to exceed ten days, to respond orally or in writing to the appointing power before the discharge or reduction shall become effective. CSR 18.02(A). After the permanent employee receives a notice of discharge, the employee has 15 business days in which to reply thereto in writing and request a hearing before the Commission. CSR 18.02(B).

The Commission shall determine whether the discharge was justified. CSR 18.02(C)(1).

The Commission may not consider any information or charges made by the appointing power unless they are contained in the letter of discharge, or any made by the employee unless the employee has previously provided them to the appointing power for consideration, unless such information or charges were not then known and could not reasonably have been expected to be known by the appointing power or the employee. CSR 18.02(C)(1).

The job functions of a Transportation deputy include the custody and welfare of juvenile delinquent and non-delinquent wards for the purpose of transporting them to courts, clinics, juvenile halls and other destinations. AR 293. A Transportation deputy must maintain close supervision and security over wards to prevent self-injuries, accidents, fights, escapes, and other incidents while wards are in courts and clinics or in transport. AR 293.

A Supervising Detention Services Officer (“SDSO”) supervises one or more living units of a Department facility maintained for the care and custody of youth. AR 301. A SDSO reports to a probation director and is responsible for providing full supervision to detention services staff assigned to monitor and manage youth in their daily activities. AR 302. SDSOs must have a thorough knowledge of laws, statutes, and Department rules, regulations, and procedures relating to the detention and release of youth. AR 302. Among other job functions, a SDSO ensures the transportation of youth to other probation facilities. AR 302.

Pursuant to Detention Services Bureau (“DSB”) Policy 208, a SDSO, also referred to as a building supervisor, reports to a facility Director and is assigned to supervise living units and ensure that staff maintain proper control and security of both youth and the facility and that staff comply with policies. AR 1287. The SDSO is responsible for the movement of youth admitted into and released from the facility. AR 1287.

DSB Policy 805 outlines the procedure for transporting youth. AR 500-01. Youth transported individually shall be in shackles and belly chains, and youth transported in groups or two or more shall be daisy-chained together. AR 501. When the transported youth is not daisy-chained to another, staff shall remain within arms-length of the youth except when riding in the same vehicle. AR 501.

The Department authorizes the use of mechanical restraints to keep youth safe for transportation purposes. AR 505 (DSB Policy 1006). Mechanical restraints shall not be applied as a form of discipline, retaliation, or punishment. AR 505. They shall be used to limit the movement of a youth’s extremities only for transportation purposes or other appropriate circumstances. AR 505 (DSB Policy 1006).

Authorized restraints include hard mechanical restraints (handcuffs, leg-irons, shackles, waist-chains, daisy chains, and plastic flex-cuffs). AR 505-06 (DSB Policy 1006), 569 (Department Directive No. 1194). At least two staff members must be present when mechanical restraints are applied. AR 505. Mechanical restraints shall not be used to secure a youth to a fixed, immovable object or inside a transporting vehicle. AR 506.

Flex-cuffs for use in juvenile facilities come in flat flex-cuff and handcuff flex-cuff form. AR 508 (DSB Policy 1006). Flex-cuffs are cuffed behind the back and are to be used only for short periods. AR 508.

Shackles consist of handcuffs that couple the youth’s hands together and leg-irons affixed to each leg, with the handcuffs and leg-irons chained together to limit the movement of the youth's upper and lower extremities. AR 508 (DSB Policy 1006). When available, shackles may be used for movement of youth between facilities or to medical appointments. AR 508 (DSB Policy 1006). When shackles are not available, the Department shall use handcuffs and leg-irons for these movements. AR 508 (DSB Policy 1006).

Daisy chains are several pairs of handcuffs connected to a strong chain at approximately three-foot intervals. AR 509 (DSB Policy 1006). They may be used for transporting groups of youth from one location to another within the facility during sleeping hours or times of unrest. AR 509 (DSB Policy 1006). They may also be used for the transportation of youth between facilities. AR 509 (DSB Policy 1006).

Oleoresin Capsicum spray (“pepper spray”) is the Department’s final and ultimate authorized alternative among the continuum of force policy for juvenile facilities, for use only after all other crisis intervention and de-escalation techniques. AR 522 (DSB Policy 1007). Authorization for the use of pepper spray is contingent on several criteria. AR 522 (DSB Policy 1007). The use of pepper spray in a moving vehicle is strictly prohibited. AR 523 (DSB Policy 1007). Should it be necessary to use pepper spray during the transport of youth from one location to the other, the vehicle must be moved to the side of the road, completely stopped, and the gear shifted to the park position before the spray is discharged. AR 523 (DSB Policy 1007).

Staff shall use only the minimum amount of pepper spray necessary to gain control of the situation and halt the youth's escalating behavior. AR 526 (DSB Policy 1007). Some situations occur quickly and require staff to respond immediately and use more restrictive alternatives on an escalating basis to protect members of the community and prevent injury to youth or staff, including physical assault on a staff member or another youth, self-harming behavior that is life-threatening or may result in serious harm, and a youth’s attempt to escape. AR 526-27 (DSB Policy 1007).

The sequence of escalating responses is verbal command, then a show of force via staff presence, then application of physical intervention, then a cease activity warning that includes “pepper spray” in a loud and commanding voice, and finally pepper spray. AR 527 (DSB Policy 1007), 578-579 (Department Directive No. 1194). In instances where a disturbance occurs involving several youth, or where a staff member is under physical assault by a youth or group of youth, the immediate use of chemical intervention is permissible following the issuance of a pepper spray warning. AR 528 (DSB Policy 1007).

Employees shall enter and maintain factual, accurate, and complete information on all official Departmental documents, records, or reports. AR 587 (DSB Policy 615). Employees that knowingly enter or cause entry of false, inaccurate, misleading, or improper information are subject to disciplinary action up to and including discharge from County service. AR 587 (DSB Policy 615). Business records must not be removed, secreted, or destroyed for the purpose of concealing information from the court, administrators, or Department managers or supervisors. AR 587 (DSB Policy 615).

Vasquez has worked for the Department in various roles since 1998. AR 336-37. She was a SDSO at the time of the incident. AR 336.

Vasquez’s performance evaluations in 2014-2015 and 2015-2016 ranged from Competent to Very Good. AR 362-63, 368-69, 1259.

On February 7, 2018, the Department suspended Vasquez for ten days based on several related incidents. AR 1256. In the first incident, after staff moved minor Emily G. (“Emily”) to her room, Vasquez had the Detention Services Officers (“DSO”) who was assigned to one-on-one supervision of Emily G. meet with her for a debriefing. AR 1258. Emily was left unsupervised for 14 minutes, during which time she began scratching her arms and pulling her hair. AR 1258. In the second incident that same day, Emily began covering her door window with toilet paper and sanitary napkins and a DSO removed the paper and all other belongings from the room. AR 1258. The DSO then left Emily unattended for six minutes, which Emily used to clog her toilet and cause an overflow. AR 1258. A third incident occurred in which Emily tied some material around her neck, but Vasquez had left the facility by then. AR 1259.

On June 23, 2017, Vasquez filed a physical intervention report (“PIR”) involving five juveniles (Keilon, Corbin, Jaylon, Armoune, and Isaac)[2] for their attempted assault on staff, escape attempt, serious property damage, out-of-bounds conduct, and out-of-control behavior during transport. AR 241. The PIR stated that Vasquez’s colleagues applied flex-cuffs on Keilon (“Keilon”). AR 241. Vasquez stated that she used pepper spray on Keilon and a colleague used pepper spray on Corbin. AR 242. Both sprays occurred at 7:35 p.m. AR 453.

Vasquez and her team used pepper spray to cease multiple life-threatening attempts to escape. AR 242-43. There were several barriers that prevented the success of less severe methods of preventing escape. AR 243. These included inaccessible shackles, undependable communication devices, the reachable location of the van’s door handle, the poor condition of the van, and orders by the BJNJ Hall facility not to allow the van past the gate while the minors actively tried to escape. AR 243. The PIR contended that the attack can be explained by the Department’s reinforcing of anti-social behaviors by delaying enforcement of law and making minors feel rewarded for their tantrums. AR 243.

Vasquez explained that Keilon was the prime culprit, and that he has disrupted the unit by instigating gang tensions and displaying defiant behavior. AR 243. When the minors went to enter the van, Keilon stated that he would comply and then jumped in the van, landing on the other minors. AR 243. He also pushed Vasquez’s arm away and said inappropriate sexual things. AR 243. He and other minors persisted in opening the door. AR 243.

The juveniles broke the metal grate, used it to cut cuffs, broke the window, and reached down and out of the window to open the van’s sliding door three times while it was on the freeway. AR 243. Keilon engaged in the most acts of terror and life-threatening events, Corbin was instrumental in those activities, two of the other juveniles engaged in those activities to a less intense extent, and one did not participate at all. AR 243-44. The PIR did not document any use of pepper spray after the van arrived at its destination, BJNJ Hall. See AR 243.

In a supplemental PIR, Vasquez explained that after an uneventful first half of the ride, one of the minors asked DSO Shane Broomfield (“Broomfield”) to turn on the radio. AR 284. Because this was her first juvenile transport, Vasquez wanted to limit distractions and told Broomfield not to turn on the radio. AR 284. The minors responded with death threats, terrorist threats, and an explosive tantrum. AR 284. The minors rocked in their seats to rock the van from side to side as it moved. AR 284. They kicked the glass window behind Vasquez’s head, squeezed a t-shirt through the moveable screen, and began to pull off the metal sheeting covering the glass of the sliding van door. AR 284. DSO Broomfield’s attempts to deescalate had no effect. AR 284. Vasquez instructed another DSO to have someone call BJNJ Hall to appraise them of the situation. AR 284.

The minors managed to break the glass shield off the sliding van door, and it nearly hit the trailing sedan behind them. AR 284. A minor opened the sliding door and Vasquez ordered the use of pepper spray. AR 284. The pepper spray caused the minors to scream and throw their bodies onto the seats. AR 285. The BJNJ Hall gate remained unopened. AR 285. When it finally did and they entered BJNJ Hall, the minors threatened to hurt Vasquez and to allege that she tried to choke them out or touch them in the private areas. AR 285.

After the van arrived at BJNJ Hall, SDSOs Rivera and Kenneth Moffett (“Moffett”) decontaminated the minors. AR 285. Vasquez informed Director Carlos Coronado (“Coronado”) that the minors almost escaped at the front gate because the van was not allowed inside. AR 285. Coronado asked if she used pepper spray during transport and Vasquez confirmed that she did and that she ordered the staff to spray to keep the minors in the moving vehicle. AR 285. She later read that Department policy prohibits the use of pepper spray in a moving vehicle, but she stood by her decision because it kept the minors from escaping in a way that endangered themselves and their driver. AR 285. She would do it again in the same life-or-death scenario. AR 285.

On June 24, 2017, DSO Broomfield submitted a PIR confirming that the juveniles kicked the metal security frame on the inside of the vehicle until they could remove it. AR 438, 440. At that point, Vasquez told Broomfield to deploy a burst of pepper spray into the rear passenger compartment through the safety glass. AR 440. The juveniles used the sharp edges of the metal frame they removed to cut their plastic restraints, and they threw that frame at the sliding door window until it shattered. AR 440. They then tried to break the protective glass between the driver and the passengers. AR 440. They reached through that sliding door broken window to open the van’s sliding door from the outside. AR 440. Vasquez ordered another pepper spray burst to prevent them from doing so. AR 440.

The pepper spray did not stop the juveniles, who were rotating between seats, from opening the sliding door three times. AR 440. Broomfield reached out of his window and held the door shut with one hand and fired more bursts of pepper spray with the other. AR 440. When they arrived, he got out of the van because he was blinded by the pepper spray and began to decontaminate himself with drinking water. AR 440.

On June 24, 2017, DSO Shanillo Fairweather (“Fairweather”) submitted a PIR as the officer who was assigned to transport minors to BJNJ Hall. AR 444. She was outside the transportation van to supervise the minors who boarded for transfer from CJ Hall. AR 442, 444. The officers told the minors to sit back so that the officers could secure their feet with leg-irons or iron cuffs. AR 444. While the other minors complied, Keilon hopped around and even managed to get out of the van. AR 444. The officers managed to get the cuffs on him as he leaned against the door. AR 444.

At 7:35 p.m., DSOs Fairweather, Veronica Nunez (“Nunez”), Ona Davis (“Davis”), and Marcus Harvey (“Harvey”) were in a sedan following the van with the minors. AR 444. Fairweather observed that the minors kept switching seats, with one pulling metal off the window and another kicking the window out. AR 444. Fairweather saw glass from the broken van window hit her sedan’s window. AR 444. One minor reached out the broken window and grabbed the handle outside the van to open it. AR 444. DSO Broomfield then deployed pepper spray into the cabin of the van to stop the minor from opening the door. AR 444.

At 7:38 p.m., SDSO Vasquez ordered Fairweather to call and notify BJNJ Hall about the incident so that Movement Control would be prepared when the van arrived. AR 444. When the juveniles would not stop moving, Vasquez ordered Fairweather at 7:45 p.m. to call again and report that the minors were trying to escape. AR 444.

When the van arrived at BJNJ Hall, a staff member reported that she had orders not to let them into the facility. AR 444. The minors were still attempting to escape. AR 444. When the staff member asked if anything was wrong with the minors, Fairweather reported they had been sprayed. AR 444. The staff then moved aside and allowed the van into the facility. AR 444.

Also on June 24, 2017, SDSO Moffett emailed James Jacob Jr. (“Jacob”) what he knew about the incident. AR 433. On June 23, at 7:43 p.m., he received a call from SDSOs Vasquez and Colette. AR 433. They told him that they were enroute with five “hot” minors who had kicked out the window of the van, removed the iron security railing that covers the glass window, and attempted to escape from the van. AR 433. Vasquez stated that she used pepper spray in the van while in the freeway. AR 433. Moffett informed BJNJ Hall Director Coronado and proceeded to the Boys’ Receiving Area. AR 433.

The van arrived through the sally port gate at a high rate of speed and with a minor hanging out of the side sliding door of the van. AR 433. Two other probation vehicles escorted the van into the facility while six officers ran behind the van. AR 433. Moffett saw only one officer in the driver’s area of the van, who was yelling at the minors to sit down as one tried to escape. AR 433. The officer made a quick u-turn, which slammed the sliding door shut. AR 433. The minor hanging out the door window remained agitated until the officer gave another verbal pepper spray warning, while the other four continued to verbally disrespect the officer. AR 433.

Coronado arrived to assess the situation and advised that the minors should not be removed from the van until cleared by him. AR 433. Once he gave the okay for the minors to exit, Moffett observed that Keilon had his t-shirt off and the tuff-cuffs on his ankles and wrists were broken, Armoune had only leg-irons on, Isaac had tuff-cuffs on only his legs, Corin’s leg tuff-cuffs were broken, and Jaylon had blood on his t-shirt. AR 433. The officers took them for decontamination and medical triage. AR 433.

The Department interviewed several of the officers involved as part of its investigation. Pertinent statements are as follows.

Vasquez was the Officer of the Day (“OD”) and was delegating movement of the minors to people who knew about movements. AR 606. She is not a transportation deputy and had never done transport before. AR 606, 638. She does not know the Department policy on how minors are supposed be transported. AR 637-38. But she has been in Movement Control as OD and for every transport she makes sure that wrists and ankles are secured with whatever is available. AR 638.

For the incident at issue, she employed numerous staff to help. AR 606. Some of them reviewed the boys’ possessions to ensure they did not take anything that could cause harm. AR 606. It was not clear who would transport the juveniles until just before departure. AR 606.

When Vasquez first arrived, the juveniles at issue were defiant and refused to go to their rooms, go outside, or eat. AR 615-16. Vasquez had them brought out to eat at the same time and locked the doors to their rooms so they would not return to them. AR 606, 616. Staff members then went to collect their things from their rooms. AR 606.

After dinner, Vasquez removed all staff from the room and explained to the juveniles that they were on schedule to move due to overcrowding in their unit. AR 616-17. The juveniles began to make demands, assert that they were not fed, and raise other grievances. AR 614, 617. Staff then took one or two at a time to the back hallway to change them into orange clothes. AR 617-18.

Vasquez did not shackle the juveniles inside the facility because they willingly walked. AR 618-19. Staff only shackle juveniles inside the facility when transporting them at night. AR 618. Two of the kids on the list raised a fuss about going. AR 620. Because Vasquez understood that she could not restrain any juveniles to compel them to be transported, those two stayed behind. AR 620.

The other five juveniles went outside, where they continued to complain about food and the need for a bathroom. AR 620. The staff organized bathroom visits. AR 621. The van was on the sidewalk area outside of the front of the building. AR 623. The juveniles walked to the van and then went back inside so that staff could change them out. AR 622.

At this point, the staff still had not found enough shackles. AR 621. In Vasquez’s experience with past movements, she would secure the juveniles’ feet, ankles, and wrists. AR 621. At first, the staff only had two restraints. AR 622. The juveniles waited in the van with the engine running for an hour during the search for restraints. AR 621.

Vasquez made sure the restraints were secured on each leg and wrist by pulling on the restraint. AR 622, 625, 629. She did not check how the minors were secured and does not know who secured them because she was also getting other supplies and responding to other issues in the facility. AR 624. She also did not remember what restraints they used; they were whatever the Movement Control office had available. AR 630. Most of the juveniles had flex-cuffs, and Vasquez cannot remember if any mechanical cuffs were used. AR 631-32.

Vasquez was only present for Keilon’s shackling because he was the most rebellious. AR 625. She would have helped but stepped back when he started acting gross and said inappropriate sexual things. AR 625. Vasquez also held her arm up in an L-formation because Keilon kept pushing his body into the staff, but she did not choke him. AR 627-28. When Keilon began to resist, Vasquez warned him that she would use pepper spray. AR 625. As soon as she gave the warning, he said that he was kidding and would cooperate, and gave her his hands for cuffing. AR 626, 655. Vasquez then walked away and told her colleagues to take over. AR 627, 637.

She did not know who closed the van door because she went to obtain permission to deploy from Assistant Superintendent James Phelps (“Phelps”). AR 648. When she came back, the van door was closed, and she began to assign roles. AR 648. As far as she knew, no one used the pepper spray to this point. AR 655.

Vasquez assumed the van was secure and did not know there was a way to lock the door with a key. AR 649. She did not know the van had a sliding glass door with a grate as a locking mechanism. AR 657. She would have locked it if she knew, but it was lucky that she did not. AR 657.

During transport, four officers were in the chase car and one was in the van with Vasquez. AR 648. Because there was no back row in the van, no one sat with the juveniles. AR 648.

As the van passed the transition from the 2 freeway to the 210 freeway, one of the minors asked DSO Broomfield to turn on the radio. AR 661. Vasquez told him not to do so because it was her first time transporting minors and she did not want any distractions. AR 661. Keilon expressed intent to kill her, called her a “fucking old weirdo bitch,” and proceeded to have an explosive tantrum. AR 661.

The juveniles first rocked the van, then kicked the back of the glass window behind Vasquez’s head, then stuffed a t-shirt between the movable seam and the driver's seat. AR 661-63. At this point, the van was at the transition of the freeways. AR 663. The minors covered the glass window between the driver cab and the passengers and continued to kick it. AR 664. DSO Harvey also told Vazquez that the minors had pulled off the metal crate partition. AR 664.

Vasquez was going to pull over, but within minutes of the tantrum Harvey told her that the juveniles had opened the sliding door and were standing by it. AR 663, 667-68. Vasquez did not want to pull over because that would let them out. AR 663. She thought the juveniles would try to jump out of the vehicle thinking that they could roll, but she knew that they would either die or be mangled. AR 666-67. To discourage them, she drove the car into the fast lane. AR 665. She did not yet know that the juveniles had freed their hands from the restraints. AR 666.

Vasquez told Broomfield to use the pepper spray. AR 666, 675. Broomfield gave her a dirty look, but he gave a pepper spray warning and then deployed. AR 666, 668. She later learned that she was not supposed to use the spray during transport, but she believes that it saved the juveniles’ lives and does not regret it. AR 666. It got them to move away from the door when a spray warning did not. AR 668.

Vasquez also threatened to break the juvenile’s fingers if they put hands through the seam because it distracted her as the driver and endangered everyone in the van. AR 668-69.

As the van approached the BJNJ Hall gate, its staff said they could not let the van in. AR 676. The juveniles tried to leave again when they heard this, so Vasquez had Broomfield spray them again. AR 676. The spray deflected and hit Bloomfield, so he exited the vehicle. AR 676.

Vasquez asked Fairweather for her pepper spray and moved to shut the door. AR 676, 681. She discovered that Keilon had crawled across the floor to the door. AR 676. When she told him to back up, he moved to the handle to try to open the door. AR 677. Vasquez sprayed Keilon because she knew she could not hold him off with physical strength. AR 677. He screamed and hit the floor, and the rest followed suit as Vasquez got back into the driver’s seat. AR 677.

Before the van left CH Hall, the juveniles all said they had to go to the bathroom. AR 801. The officers let them go one at a time. AR 802. Without a warning, Davis took her pepper spray from her holster and held it in her hand. AR 802. She was concerned they might try to run. AR 802.

On June 8, 2018, the Department sent Vasquez a Notice of Intent to Discharge (“Notice of Intent”) her. AR 390. The grounds for discharge were Vasquez’s delay in or failure to follow supervisor instructions, carelessness or inattention that led to improper service, failure to follow pepper spraying protocol, inappropriate or unnecessary use of pepper spray, discourtesy to clients, failure to complete required incident reports, falsifying an official business record, providing false information in the course of an administrative investigation, conduct that is dishonest or unbecoming of a Department employee, failure to exercise sound judgment, and failure to follow established rules or regulations. AR 390. The Notice of Intent listed the Department policies that Vasquez was alleged to have violated. AR 390-91.

The Notice of Intent asserted that the week before the transfer, CH Hall Superintendent Dalila Alcantara (“Alcantara”) ordered the closure of the CH Hall unit where the five juveniles were housed. AR 392. Because past attempts to move them had not succeeded, Phelps ordered that no one should move the minors unless they were cooperative and could be moved without the use of force. AR 392. When Vasquez asked for permission to transfer them on June 23, 2017, she said they were cooperative and willing. AR 392. Phelps gave authorization contingent on reassurance that they were cooperative and that Vasquez would not use force. AR 392.

When the juveniles were at dinner, Vasquez had her staff lock their rooms and gather their personal belongings. AR 392. Vasquez also had the staff change the juveniles into orange transportation clothing and escorted to a Department van parked outside the building. AR 392. The minors remained seated inside the van for some time while staff prepared files, attempted to locate restraint devices, and packaged the minors’ personal items. AR 392. They were resistant at this time, which led DSO Davis to spray Jaylon on Vasquez’s orders. AR 392-93. Jaylon complained about the resulting discomfort, but the staff loaded him and the others in the van without treatment or decontamination. AR 393.

Vasquez drove the van with DSO Broomfield as a passenger while the other DSOs followed in a Department sedan. AR 393. Enroute, the juveniles removed their restraints, removed the metal grate located inside on the sliding door window, shattered the sliding door window, and attempted to escape the moving van. AR 393. When they opened the door, Broomfield positioned himself halfway outside his window to spray them through the door on Vasquez’s orders. AR 393. Instead of stopping the van, Vasquez swerved it in and out of traffic. AR 393.

When the van arrived at BJNJ Hall, the minors continued attempts to open the door. AR 393. Vasquez exited the vehicle and used DSO Fairweather's pepper spray canister to spray Keilan. AR 393. Once the minors were inside, the nurse examined and decontaminated them. AR 393. The minors suffered no major injuries. AR 393.

During the investigation, Vasquez provided evasive, inconsistent, and untrue statements insofar as she denied any knowledge of Davis spraying Jaylon before they left CH Hall or the minors complaining about its effects. AR 393. Vasquez also failed to document Davis spraying Jaylon in her PIR. AR 394. Vasquez also initially failed to report that she sprayed Keilan at BJNJ Hall. AR 394.

On September 21, 2018, the Department issued Vasquez a Notice of Discharge effective that day, stating the same grounds as the Notice of Intent. AR 380-81. It explained that the discharge was based on violations of DSB Policies 805 (Transporting Youth), 1006 (Mechanical Restraints), and 1007 (Chemical Restraint Procedures), and Probation Directive 1194 (Safe Crisis Management). AR 381. Per CSR 18.031, Vasquez’s failure to perform assigned duties in accordance with standards of performance constituted adequate grounds for discharge. AR 382. The factual assertions matched those of the Notice of Intent. AR 382-84.

The Notice of Discharge stated that discharge was among the range of discipline for carelessness or inattention that led to improper service, failure to follow pepper spraying protocol, inappropriate or unnecessary use of pepper spray, discourtesy to clients, failure to follow restraint procedures, failure to complete required incident reports, falsifying an official business record, providing false information in the course of an administrative investigation, violation of the recognized code of ethics of the professional group, failure to exercise sound judgment, and failure to follow established rules or regulations. AR 384-85.

On October 9, 2018, Vasquez appealed the Notice of Discharge. The Commission notified the parties that they must meet and confer in an attempt to prepare a written statement that set forth the specific facts or contentions at issue. AR 20. If that failed, each party must file such a statement for the hearing officer to consider. AR 20.

The pre-hearing statements identified the two issues before the Commission as whether (1) the factual allegations in the Notice of Discharge are true and (2) discharge is the appropriate discipline. AR 23, 26.

At the time of the incident, Phelps was CH Hall’s Probation Director and Acting Assistant Superintendent. AR 1419. The Assistant Superintendent is responsible for operations, which includes training, staffing, and security. AR 1420.

Movement Control does intake and coordinates intra-facility movements. AR 1433. The OD is assigned to Movement Control. AR 1433.

On June 23, 2017, Vasquez called Phelps to discuss transporting five to seven juveniles to BJNJ Hall. AR 1421-23. These juveniles were from the HOPE unit, which houses youth that show escalation of inappropriate behaviors. AR 1422. CH Hall had just closed some housing units and did not have enough space to house these juveniles in the regular housing units. AR 1423. CH Hall transferred these juveniles to HOPE because it had space available. AR 1424. CH Hall had already transferred some of these juveniles to other facilities, but it did not use force to compel minors to move when they were uncooperative or unwilling. AR 1424-25. As a practice, the Department reserves use of force for when a court order requires a transfer. AR 1425. It does not use force to transfer juveniles as part of a population balance. AR 1425. This is why the Department had not transferred the juveniles at issue prior to June 23, 2017. AR 1497.

Phelps authorized Vazquez to move the juveniles at issue as long as they were cooperative. AR 1426, 1496-97, 1506. If an officer makes a decision to transport kids, and a circumstance arises during the transfer that makes the officer think force is requires, Phelps expects due diligence. AR 1510. If policy allows it, force may be used. AR 1510.

Sandra Collins (“Collins”) was a Transportation supervising deputy in 2017. AR 1404, 1539.

Juvenile hall movement coordinators submit assignment lists with the number of kids to move from a facility to a court, camp, or other juvenile hall. AR 1543-44. Movement coordinators do not work out of the Movement Control office but are a part of the same team. AR 1545. An OD could also make a request to move juveniles, but that request would be based on necessity and would still go through a movement coordinator unless there is no coordinator on duty. AR 1546.

Transportation supervising deputies then assign a Transportation deputy to complete that assignment. AR 1544. The Transportation deputy will contact the movement coordinator, who by then should have the minors’ records ready to move. AR 1547. After the Transportation deputy confirms this, he or she gets the mechanical restraints from their vehicles and go to Boys’ Receiving. AR 1547. The Transportation deputy confirms the juveniles are dressed in orange, takes roll call, places the restraints on them, and performs structuring by telling them the expectations during transport. AR 1547. The Transportation deputy then escorts the juveniles to the van, which is in the sally port. AR 1552. The Transportation deputy would place minors in a van other than in the sally port only if a court order compels the juvenile hall to extract a minor against the minor’s will. AR 1569. A juvenile who willingly changes into the orange clothes and steps onto the van is not uncooperative. AR 1604.

The required restraints for transfer include metal handcuffs and leg-irons. AR 1549-50. In 2017, they also included daisy-chains, which use two handcuffs on each end to secure the wrists to a chain wrapped around the waist. AR 1549, 1551. Transportation uses plastic flex-cuffs – a hard plastic temporary restraint that requires a key -- only for emergency purposes like evacuation during a fire. AR 1550. DSB does not transport high-risk offenders if mechanical restraints are not available because issues can arise in the back of a van such as fights, attacks, and sexual assaults. AR 1558, 1563. A high-risk minor is any minor with a 707 charge, which is an arrest for serious felonies like murder and rape. AR 1554.

Because the ratio for Transportation deputies to transferee juveniles is one to three unless there are mitigating circumstances, two deputies are required to transfer five juveniles. AR 1553. A high-risk offender requires two staff members, but two staff members also suffices for five juveniles charged with mayhem or rape. AR 1554. The deputies will walk the juveniles in single file line, with a deputy at the beginning and end of the line. AR 1556. Transportation deputies do not ride in the back of the van with the juveniles. AR 1603.

The vans have sliding doors that lock from the outside with a key. AR 1557. Before deputies use a van, they must perform an inspection. AR 1558. They must check the tires, lights, bars, and doors. AR 1558. They must also ensure that the inside of the vehicle has no contraband, the windows are secure, and there is nothing loose. AR 1558. There should also be a fire extinguisher, standard first aid kit, biohazard kit, and ambulance bag on board. AR 1558.

Transportation policy allows Transportation deputies to carry pepper spray with the Transportation director or bureau chief’s approval, but most deputies do not. AR 1564-65. This is because officers are not supposed to use pepper spray in a moving vehicle and there is nowhere else a Transportation deputy could use it. AR 1566-67. In a moving van, the vapors could either reach the driver and cause an accident or contaminate the passenger and the other kids. AR 1572.

If Collins had five non-problem juveniles, six officers, and two vehicles, she would place all the juveniles in one vehicle while the other acts as a ghost van. AR 1574. If some of the juveniles are problem kids who talk disrespectfully or incite violence from the others, she would put them in the sedan with two officers and have everyone else in the van. AR 1574.

A SDSO is not typically part of a transport convoy. AR 1575. Collins has not heard of a case where a SDSO transported other than Vasquez’s incident. AR 1575-76. She did not know why Transportation deputies were not called. AR 1604.

Collins was asked what she would advise if five kids in a van with two staff members were not handcuffed and had removed the security gate off the window and opened the side barnyard door. AR 1577-78. She replied she would contact dispatch to contact the California Highway Patrol (“CHP”). AR 1578. She would continue driving until either the CHP arrived or she made contact with the ghost vehicle so that she could pull the van over to the side of the road where the other vehicle could ensure the juveniles do not escape. AR 1578-79. The ghost vehicle would have a key to the van door. AR 1579. If the CHP arrived, it would take over the emergency situation. AR 1579.

Nunez is the movement coordinator and works to help balance the population of CH Hall and BJNJ Hall when one is overloaded and the other has space. AR 1652.

On the date of the incident, Vasquez at first told Nunez that a movement would take place but did not say which minors were part of the transportation or how the movement would be controlled. AR 1661. Nunez called movement coordinator Nakita Smith (“Smith”), who explained that the juveniles were supposed to leave CH Hall a week ago. AR 1661. Nunez knew some kids had not moved because she prepares their information packets for transfer but removes them when a kid does not go for whatever reason. AR 1663.

Smith at first told Nunez to not execute the transfer because BJNJ Hall had not confirmed it would receive the kids, but she called again at dinner to say they could go. AR 1661, 1664. Nunez used a flex-cuff on Keilon and waited about 30 minutes for the van to leave. AR 1678. She was in the passenger in the sedan. AR 1680. She has never seen a movement canceled for lack of metal restraints. AR 1801.

The minors voluntarily boarded the van without pushing. AR 1787. Nunez did not see anyone use pepper spray prior to leaving CH Hall. AR 1788. Vasquez did not reveal that she would drive the juveniles to BJNJ Hall until they told her that one of the juveniles said he needed to go to the restroom. AR 1670.

Vasquez and Harvey used their cell phones on speaker mode to communicate. AR 1686. They drove about 55-65 miles per hour on the freeway without weaving through traffic. AR 1690.

When the juveniles arrived at BJNJ Hall, they complained that they had been pepper sprayed. AR 1712. Coronado directed his staff to examine and decontaminate the boys. AR 1712. He then instructed the CH Hall staff to go into a conference room to do their paperwork. AR 1713.

Coronado instructed Vasquez to gather Child Safety Assessment Forms (“CSA”) and affidavits from the five minors. AR 1713. CSAs require that an employee interview a minor when the minor has injuries or makes other allegations against any staff involved in an incident. AR 1713. Supervisors typically fill them out, so this would be Vasquez’s responsibility. AR 1714. At the time, Coronado did not know who used the pepper spray. AR 1714. Coronado understood that deputies do not carry pepper spray in transport vehicles. AR 1714. If Coronado had known that Vasquez was involved in the pepper spray deployment, he would have asked another supervisor to conduct the CSA interviews. AR 1721.

Moffett was OD for BJNJ Hall on June 23, 2017. AR 1854. He had no prior notice that CH Hall would transport juveniles there that day until the van was enroute. AR 1854-55. Vasquez called to tell him that the van was coming in hot. AR 1855. Moffett informed Director Coronado to ask if he was aware that kids were coming in from another facility. AR 1856-57. Coronado was not aware, so he told Moffett to go outside to receive them but not to let them out of the van until Coronado arrived. AR 1857.

Moffett went to the area behind the Movement Control office and waited for five minutes. AR 1858. The van arrived at a high speed and stopped, which shut the van door. AR 1865. One kid stood up, so the van made a U-turn that caused the fire extinguisher to come out. AR 1865. This also slammed the door shut again and jammed it. AR 1866. The minors requested to come out, but Moffett told them they needed to sit and wait. AR 1866.

Moffett spoke with Vasquez, who told him the minors were out of control and had kicked out the window. AR 1867. Someone deployed pepper spray enroute, but Vasquez did not say who. AR 1867-68. Vasquez did not say if anyone used pepper spray immediately outside BJNJ Hall. AR 1868.

When the juveniles left the van, only two had mechanical restraints. AR 1872. Whenever minors are going outside other than transport by Transportation, the staff can use tuff-cuffs alongside mechanical ones but not in place of them. AR 1876, 1921. The OD must ensure that the mechanical restraints are in place prior to transport. AR 1933. These trips outside of Transportation transport can happen daily, including hospital runs and between juvenile halls. AR 1933, 1937.

When Superintendent Alcantara started at CH Hall on June 17, 2017, she inspected units to ensure they were in livable condition. AR 1958. She determined that the XY unit needed major maintenance, so she ordered that the juveniles inside be transferred to the RS unit. AR 1957-58. Staff then began to look for volunteers among the 12 inmates to move to BJNJ Hall. AR 1959. The group was disruptive when in the same unit, so Alcantara ordered that staff move some kids to BJNJ Hall to separate them. AR 2053.

The kids at issue were the last ones still at CH Hall and they were upset they could not live in the XY Unit anymore. AR 1959. There was no urgency to move them. AR 2053. The Department did not want to transfer them by force. AR 1959. If the Department had felt the use of force was appropriate when it closed the XY unit, it would have used force at that time. AR 2003.

SDSOs do not have the authority to move juveniles between facilities and must obtain approval from a supervisor, director, or superintendent. AR 1974.

When Alcantara reviewed the five juveniles’ paperwork, she saw that they were extremely high-profile kids with serious crimes. AR 1978. This made it more confusing that CH Hall moved them on a Friday night when they resisted. AR 1978.

The juveniles were not willing to go. AR 1951. Vasquez had started to convince the juveniles to go, but they replied that they did not want to do so. AR 1951. At some point, someone used pepper spray on one of them and did not decontaminate him. AR 1951, 1953. Vasquez was in a struggle with one kid to put on mechanical restraints and ordered DSO Davis to spray him. AR 1965. A weigh-in of Davis’s can and the juveniles’ testimony show that she used spray. AR 1967. The Department’s case management system does not show any PIR mentioning the use of Davis’s canister. AR 1971.

It is unusual to bring a van up to the building to transport the juveniles. AR 1960. For most transfers, the staff takes transferees to the Boys’ Receiving Unit, where the transferees change, and the staff brings their personal items for transport. AR 1960-61. That is also where staff will apply mechanical restraints to the hands and feet unless a kid is high profile, in which case the staff will apply the restraints in the unit beforehand. AR 1962. The staff will do the intake paperwork in the Receiving Unit before going to a van that is waiting in the transportation area. AR 1961. The fact that the van drove up to the CH Hall building was unusual and a security risk. AR 1960, 1962. This confirmed there was a special circumstance, which was that the kids did not want to go. AR 1962.

Vasquez gave the required pepper spray warning, but that still shows that the youths resisted the transfer. AR 1965-66. Being disrespectful and talking back would not warrant a spray or warning. AR 1967.

The number of guards for the transfer was unusual. AR 1971. If the juveniles are willing, the officer driving the van only needs one or two other staff members inside the van. AR 1971. That Vasquez had another vehicle with three staff members drive behind indicates that something else was going on. AR 1971-72.

As OD, Vasquez should not have left CH Hall. AR 1953, 1964. She did not inform Phelps that she would leave with the group for the movement or ask for his permission. AR 1953, 1964. She did leave a backup officer in charge, but this still presents an issue because there could be too few supervisors to respond to any emergency. AR 1964. An OD should understand that she is responsible for responding to incidents and cannot do so if not on site. AR 1964-65.

Vasquez later asserted that she did not use Transportation because the movement coordinator had not approved the transportation for that night. AR 1972. This means that the move should have happened the following Monday morning instead of that Friday night if the juveniles were willing. AR 1972. Vasquez asserted that she moved them earlier because they were bullying developmentally disabled kids in CH Hall, but there was no record of that. AR 1972-73. A SDSO should also communicate such an urgency for movement to the Assistant Superintendent. AR 1973.

Vasquez was in charge of the movement once it began, and all DSOs on the movement were required to take direction from her. AR 1977-78. They should have inspected the van to ensure it was in good condition and had locked windows. AR 1978. They also should have ensured they had the necessary metal restraints and paperwork. AR 1978. As SDSO, Vasquez should have known that this was all part of policy. AR 1979.

During transport, Vasquez ordered Broomfield to use pepper spray. AR 1954. It is against policy to do this in a moving vehicle because it could hit the DSO staff and the driver and cause a crash. AR 1979-80. Vasquez should have asked the other vehicle for support and sprayed the juveniles only after she stopped the vehicle. AR 1980. If she was swerving between lanes, she could have stepped off the freeway. AR 1981.

Vasquez should have recorded in a timely PIR the pepper spray deployment at BJNJ Hall and prior interventions. As SDSO, Vasquez also reviews other DSO PIRs for completeness. AR 1983-1984. The PIRs were due before the end of shift. AR 1984. Alcantara’s Vasquez’s initial PIR did not have the details needed to understand what occurred. AR 1985-86. It had no description of the spray at CH Hall or at the BJNJ Hall gate. AR 1994. Vasquez later said this was because she was tired. AR 1984. She sent additional details on July 29, 2017, after Alcantara twice told her to submit a PIR with all the details. AR 1985, 1987-88, 1990.

Vasquez’s original PIR also lists inaccessible shackles as a major area of concern. AR 1995. If Vasquez was unable to acquire shackles, she should not have transported the juveniles. AR 1995. Vasquez’s and her staff’s PIRs also reflect several red flags that should have signaled the minors’ unwillingness to go. AR 2002. This included having to bring the van up to the building, trying to shackle the juveniles while inside the van, the overabundance of staff, and a pepper spray warning before they even left CH Hall. AR 2002-03. Even if the Department wanted to move the juveniles by force, their unwillingness to comply was enough to let them stay at CH Hall through the weekend and have Transportation move them on Monday. AR 2003.

Vasquez made a decision against her supervisor's instruction to move the youth, which resulted in injury to the youth and multiple violations of Department directives. AR 2008. She had prior discipline for poor judgment, so this established a pattern. AR 2008. Alcantara determined that Vasquez violated each policy listed in the Notice of Discharge. AR 2009.

Vasquez’s dishonesty, poor judgment, failure to follow clear instructions from a supervisor, her decision to put herself and her staff and kids in a dangerous situation, and prior discipline all led Alcantara to decide that discharge was the proper discipline. AR 2010. Alcantara would have recommended discharge even without the prior discipline. AR 2010.

One aggravating factor was that Vasquez gave orders to spray inside the van, which is against policy. AR 2010. She also was present when pepper spray was used before they left CH Hall and did not order the staff to decontaminate the minor. AR 2011. The risk to the public and harm to the public service was clear in choosing to transport high-risk kids during a high-traffic time when they were unruly and there was no urgency to transport them. AR 2012. Vasquez’s failure to accept responsibility for her mistakes during her interview played a large role in Alcantara’s decision to discharge. AR 2012.

When Davis walked the juveniles to the van outside of CH Hall, two or three boarded before one said he needed to use the restroom. AR 2531. The staff let them all use the restroom. AR 2531. They came back and got back on the van without the use of force. AR 2531. Davis did not see anyone use pepper spray at CH Hall. AR 2543.

When Davis checked the van after the incident, there was glass, clothing, and OD spray everywhere. AR 2560. The sliding door would no longer open because it was jammed. AR 2560. The glass on the side door and the grate protecting it were gone, and the metal partition between the drivers and passengers was damaged. AR 2560-61.

As movement coordinators, Smith and her colleagues initiate any population balance movements. AR 2637. If they fail to make any final decision, the superintendent will try to resolve it. AR 2637.

Smith asked Phelps if she should move the kids who had refused to leave the week before. AR 2647. Because it was 3:00 p.m., Smith told Phelps that she could not make Transportation’s 4:00 p.m. cutoff for new calls. AR 2647, 2665. Phelps called Transportation on speakerphone, which confirmed it was too late to transport that day. AR 2647.

Smith and Phelps called Vasquez to explain this, but Vasquez said she could get her staff to do it. AR 2648. Phelps told Smith that CH Hall staff could move the kids as long as they were willing. AR 2648.

Smith worked with nursing staff to get all the medication together. AR 2644. She also obtained the juvenile charts from the unit to provide before the juveniles left. AR 2644.

Smith passed the van outside of CH Hall on her way back to her office. AR 2653. She did not see or smell pepper spray, which has a discernible scent. AR 2653.

The juveniles changed themselves into the orange clothes. AR 2687. Harvey and other staff gave them the clothes and told the kids to change. AR 2687. They did so despite oral disagreement; the juveniles asked why they needed to transport and said that they did not want to go anywhere. AR 2687.

Broomfield parked the van outside the unit. AR 2690. Harvey loaded the juveniles’ personal belongings behind the seats in the back. AR 2761-62. The van stayed there for about 30 to 45 minutes. AR 2690. Harvey was present for 20 to 25 minutes but had to get the keys to the sedan and drive it from the sally port to meet the van. AR 2762. He then went inside the building. AR 2762-63. About two minutes after the juveniles went back outside, Harvey followed them and found them in the van again. AR 2763-64. No one used force to get the juveniles into the van. AR 2690.

Once in the van, the juveniles became mad that they were leaving. AR 2764. They saw their personal belongings in the back and tried to climb over the seats to get them. AR 2764. This is not cooperative behavior, and the juveniles would have known that they were not allowed to grab them. AR 2764. They were yelling, cursing, saying they do not want to go, asking why they had to, and in some cases threatening to “get” the staff whenever the van stopped. AR 2765. At this point, they were not cooperative. AR 2765.

Some juveniles asked to use the restroom. AR 2765-2766. They did so under escort from Davis and the “PQ” unit stationed downstairs at CH Hall. AR 2766-67.

Harvey was in front of the sliding door when the juveniles became upset, with Vasquez ten feet behind her. AR 2768. Vasquez did not give any instructions to or about the minors at this time. AR 2768.

Harvey was not responsible for mechanically restraining the minors that day, and Vasquez was in control as the supervisor. AR 2773. He saw flex-cuffs on the minors’ wrists. AR 2769-2770. He remembered two minors had metal mechanical restraints, but he did not remember if it was on the ankles or wrists. AR 2769-70. Harvey knew that the other DSOs looked for metal restraints but could not find them. AR 2774.

Harvey saw Broomfield close and lock the sliding door with the key. AR 2780. Vasquez first asked Fairweather to drive, but she refused because she was too nervous to drive. AR 2784. Vasquez then asked Harvey to drive the sedan, so he did. AR 2783-84. The juveniles’ protests and screams continued from when the vehicles left CH Hall to when they got onto the freeway. AR 2802-03.

As the van and sedan approached the intersection of I-2 N and I-210 W, Harvey observed the juveniles, who should have been seat-belted, move around in the back of the van. AR 2790. Vasquez told Harvey that the kids were trying to escape. AR 2793. Harvey could hear the kids yelling, cursing, and rustling around in the background. AR 2794-95. Two minutes later, Harvey saw glass shards fly from the van towards the sedan as the juveniles kicked it. AR 2791-2792. The juvenile then kicked the metal grate behind the glass once the van transitioned onto the 210 freeway. AR 2792, 2794.

Vasquez never told Harvey that she would pull to the side of the freeway. AR 2795. Because the sedan was three to four car lengths behind the van, they could have pulled over at the same time. AR 2795.

Harvey never saw the van’s sliding door open or one of the juveniles stand in front of it as if he was about to jump out. AR 2797. All he saw was a minor stick his arm out the broken window. AR 2797. Vasquez did ask the sedan to drive next to the van so no one could get out through that window. AR 2797. Because the vehicles were driving 70 miles per hour, he would not have been able to stop them from getting out. AR 2797-98. For five to ten minutes, Harvey alternated between driving next to the van and behind it. AR 2802.

Vasquez performed about 10-15 lane changes on the freeway, only one or two of which went straight from the fast lane to the slow lane. AR 2798. She never performed a CHP traffic rig in which the vehicle goes back and forth across lanes. AR 2798.

Harvey saw Broomfield lean out the van’s passenger side front window. AR 2799. He did not see Broomfield use the pepper spray but assumes that he did so. AR 2799. He also assumed that Broomfield wanted to push the juvenile’s arm back inside from where it stuck out the broken door window. AR 2800. Harvey only saw this happen once, but he was focused on the road. AR 2800.

Metal handcuffs still allow the wearer to move their hands to grab things. AR 2826. Although daisy-chains and leg shackles restrict juveniles’ movements, they can still lift their legs and move them around. AR 2826-27. Harvey does not necessarily believe those restraints would have made it less likely that the juveniles could break the glass and take off the grate. AR 2827.

The staff found a couple of leg-irons and double-locking handcuffs as they prepared the juveniles for movement, but Fairweather does not remember how many or which minors wore them. AR 2910-12. Staff tried to get a key to a box in Movement Control with more mechanical devices. AR 2915. Staff found the restraints before they loaded the juveniles in the van, but Vasquez applied them after the juveniles were onboard. AR 2913. The other juveniles had flex-cuffs, also known as tuff-cuffs. AR 2914.

Aaron Stocks (“Stocks”) is a DSO assigned to CH Hall’s Medical Appointment Transportation (“MAT”) team. AR 3401.

MAT uses different types of restraints when transporting minors to the University of Southern California Medical Center. AR 3402. The leg shackles have a double lock that requires a key. AR 3402-03. The handcuffs for such transport also have a key. AR 3403-04. Compound minors, those with serious charges, also have belly chains that wrap around the body and are cuffed to each hand to keep them to the person’s side. AR 3404-05.

Flex-cuffs function like the zip ties that can be purchased at Home Depot. AR 3405-06. They do not have a key lock. AR 3407. They can be tightened but not loosened, and removal requires scissors. AR 3408. Metal cuffs are more secure because they cannot be cut. AR 3420-21.

CH Hall does not have access to MAT restraining devices, but Stocks will make them available if someone asks while he is on site. AR 3418-19.

When Nunez told Vasquez that there was a movement order for the juveniles to go to other facilities, Vasquez thought it was a court-ordered movement. AR 2983. Vasquez never asked to see the movement order or asked how long the juveniles at issue had been on that order. AR 3162. She did not know that the order already was two weeks old. AR 3162-63. She had no instruction that the movement had to be on June 23, 2017, the day she first learned about the movement. AR 3163, 3177, 3189.

On that day, Vasquez was OD for that evening shift. AR 2983. As a SDSO, she would need authorization from someone at the director level to make a movement. AR 3028. This includes Assistant Superintendent Phelps. AR 3027-28.

Vasquez asked Nunez why the minors had not been moved before and Nunez rolled her eyes and said there were lots of reasons. AR 3177. She made the decision between 1 and 2 p.m. to move the minors that day if she could do so. AR 3189. One of the reasons was that she had the perception that they were bullying developmentally disabled kids. AR 3189.

She asked Nunez to stay and coordinate the movement because she had never done one before. AR 3037. Nunez explained that movement coordinators organize movements and agreed to stay only if they were going to move the minors. AR 3037-38. Vasquez said that was not up to her, but she would find out if they could move them. AR 3038.

Vasquez then called Phelps. AR 3042. He said to go ahead with the movement by putting things together and gave approval for overtime to do so. AR 3044. Vasquez hired more DSOs to provide the necessary support. AR 3172. She did not plan on using them for the movement itself, which Transportation would do. AR 3172.

Vasquez gathered the juveniles and performed a “structuring” to explain what they could expect. AR 3045. She then coordinated some staff to change the juveniles and others to get their belongings. AR 3045. She did not know of any issues that arose when the juveniles changed or came downstairs in the elevator. AR 3046.

Vasquez asked her officers to park the van next to the unit because she liked doing things in front of a camera where Movement Control and the sally port could see. AR 3079. She was present when the staff moved some of the minors to the van, and she did not see any use of force. AR 3046. She does not know of any use of force or pepper spray to get the minors to change or get into the van. AR 3052, 3070.

After she had all the necessary documents and was ready to go, she called Phelps for final approval. AR 3046. Phelps confirmed with her that she did not use force to get the juveniles onto the van and approved the transportation. AR 3047. Phelps said nothing about whether Vasquez could use force from that point. AR 3047. A supervisor cannot give a subordinate blanket instruction not to use force. AR 3048.

Vasquez waited until after she had Phelps’ final authorization to restrain the juveniles because she did not want them in restraints for an extended period. AR 3054. Nunez provided mechanical plastic flex-cuffs. AR 3054. Vasquez also had a few shackles from Movement Control, as well as two leg shackles and two metal handcuffs from the staff’s own stock. AR 3056-57. The plastic mechanical restraints that they used differ from the smaller and thinner flex-cuffs which require no key. AR 3057-58. Department policy identifies these thicker plastic restraints as hard mechanical ones. AR 3059.

Two juveniles had metal foot shackles from Movement Control, and the other three had the plastic restraints. AR 3059-60. Vasquez made sure that every minor had restraints on his hands and feet before they left. AR 3065. She did not witness any struggle beyond what it normal for these juveniles. AR 3067.

Vasquez did not order the use of pepper spray before the van left CH Hall. AR 3071. At one point, as Keilon pumped his hips, she told the officers that they could issue a pepper spray warning if he made physical contact. AR 3073. As soon as Keilon heard that, he said “okay, okay,” which showed that he was just testing the boundaries. AR 3073. Vasquez told him that was not cooperative behavior and reminded the staff to give a pepper spray warning if he touched anyone. AR 3073.

On the transition between freeways, one of the juveniles asked Broomfield to put music on. AR 3082. Vasquez answered “no” before Broomfield could say anything because she wanted to be able to hear. AR 3082. The juvenile immediately started kicking the back of the window behind Vasquez’s head with both feet. AR 3082. The incident began after the van was on I-210 because a use of force incident only begins when the use of force begins, not when the conversation began on the on-ramp. AR 3092. Vasquez estimated that this was about halfway between CH Hall and BJNJ Hall. AR 3093.

The juveniles pulled their shirts off and used them to cover the window behind Vasquez so she could not see what they were doing. AR 3093. Harvey told Vasquez over the speakerphone that they were moving around and pulling on the metal grate. AR 3093. Vasquez could hear when they broke the window because the wind and the sounds of traffic filled the cab. AR 3094. Broomfield tried to talk them down, and Vasquez had Harvey call CHP for backup. AR 3094, 3096.

When the minors slid the door open, Broomfield told Vasquez as he reached out his window to grab one of the grate bars and keep it closed. AR 3096, 3100. Vasquez tried to brake to help close the sliding door. AR 3100. Vasquez then told Broomfield to use pepper spray. AR 3096, 3100. Broomfield hesitated, and Vasquez had to give the order twice more. AR 3100. When he sprayed, it forced the juveniles back enough to close the door. AR 3105. From there until BJNJ Hall, Vasquez kept making lane changes with blinkers to slow traffic. AR 3106.

When Coronado came out to meet the van, Vasquez tried to vent her grievances about not being allowed inside the gate of BJNJ Hall. AR 3128. The juveniles said she sprayed them, and Vasquez admitted that she did so at the gate. AR 3128. They also said she threatened to break their fingers. AR 3128. She clarified that she said that she would have sacrificed their fingers to save their lives because messing with the driver put them all at risk. AR 3128. Coronado ordered her to fill out the paperwork for the incident, even after Vasquez told him she could not because she was involved. AR 3128.

Vasquez and her team returned to CH Hall sometime after midnight. AR 3130. Vasquez did not finish her PIR until the next afternoon because she needed the information from everyone else’s report. AR 3133. Vasquez’s PIR detailed the level of participation of each individual because she believed that the Department would take her allegations of attempted murder seriously. AR 3133.

While Vasquez was Jonathan Alvarez’s (“Alvarez”) supervisor, she was professional, responsible, sympathetic, reasonable, understanding, and flexible with both staff and minors. AR 3005.

On March 3, 2021, the hearing officer issued a proposed decision recommending that Vasquez’s discharge be sustained. AR 83-31.

The hearing officer summarized the testimony of Assistant Superintendent Phelps, Acting Director of Transportation Collins, Movement Coordinator Nunez, Assistant Superintendent Coronado, BJNJ Hall OD Moffett, Acting Superintendent of CJ Hall Alcantara, Investigatory Mendez, Vasquez, Alvarez, Stocks, and a Mariam Sifuentes. AR 90-110.

The parties presented different versions of facts and different interpretations of what constitutes sound judgment. AR 112.

The Department’s central point was that there was no need to move the juveniles involuntarily or on that day, especially in a high-traffic scenario without Transportation. AR 113. Vasquez was negligent in that she allowed use of flex-cuffs, did not ensure the van door was locked, and did not place staff between minors and the nearest escape route. AR 113.

Vasquez violated policy when she had Broomfield use pepper spray in a moving van. AR 113. She should have stopped the van and had the sedan stop as well in case the juveniles tried to escape. AR 114. That put BJNJ Hall in a difficult situation where it had to decide whether to delay or admit her “hot” van when it did not know all the circumstances. AR 114.

Vasquez failed to timely turn in her PIR and did not describe the use of pepper spray. AR 114. While Vasquez indicated that she used pepper spray, she failed to provide a narrative of its use outside BJNJ Hall. AR 114. This was true even after she was told to do so by Alcantara. AR 114-15. Further, Vasquez was untruthful during her interview when she denied her involvement in Davis spraying Jeylon at CH Hall. AR 115.

The Department asserted that Vasquez’s transgressions constituted a potential and real harm to the public. AR 115. Although she was a widely respected and effective DSO, her recent suspension for similar violations suggested a likelihood of reoccurrence. AR 115. She demonstrated poor judgment inconsistent with an employee of her tenure and rank. AR 115.

Vasquez argued that she facilitated a scheduled move that the Department had wanted to occur for weeks, and she did so to protect developmentally disabled minors from bullying. AR 116. She increased the staff to support the move and chose to drive the van when her staff was too uncomfortable to do so. AR 116. The minors were not resistant beyond their everyday defiance, and Vasquez never used force to get them into the van. AR 116. Vasquez also obtained permission from her supervisor before her departure, and this was not the first time she had left her post while OD. AR 116.

Vasquez denied that she used or ordered pepper spray before the van left CH Hall. AR 116. The staff’s statements support this, and the minors had time at BJNJ Hall to conspire and allege that she did. AR 116. As for restraints, Department practice treats flex-cuffs and metal restraints interchangeably. AR 116-17. Department staff regularly must finish the expected tasks with limited resources and defiant minors. AR 117.

Vasquez asserted that she did not improperly invoke a pepper spray warning while structuring the minors and only mentioned pepper spray as part of a range of possible outcomes. AR 117. The juveniles’ criminal and reckless behavior during the drive allowed her to invoke the DSB Policy exception that authorizes the use of pepper spray in extreme life-threatening circumstances. AR 117. The Department failed her because BJNJ Hall did not let the van in the moment it arrived, even though she alerted it to a dangerous situation. AR 117. The delay left her and her staff in a dangerous position with further opportunity for the juveniles to escape. AR 117.

Vasquez should not have filled out a PIR for an incident in which she was personally involved. AR 117. She stayed up late to review her staff’s PIRs, and her supplemental PIR identified the use of pepper spray. AR 117. The Department is wrong that she was evasive about the use of pepper spray at CH Hall because that never happened. AR 117.

As for discipline, this is not an instance of employee greed, laziness, theft, or action for personal benefit. AR 118. Vasquez was trying to serve the Department and advance its agenda of moving minors to separate them from the developmentally disabled after alleged bullying. AR 118. She smartly handled an extremely difficult and dangerous situation that could have resulted in great harm. AR 118. Character evidence from colleagues shows that Vasquez has great interpersonal relationships and is effective when dealing with minors and staff in difficult circumstances. AR 118.

Vasquez rejected Collins’ testimony because she did not have training in transportation protocol and should not be held to the standard of a Transportation deputy. AR 118.

Vasquez exercised poor judgment in making this ill-advised transport. AR 119. None of this would have happened without Vasquez’s poor decision to move the juveniles when they would not voluntarily go. AR 119. Vasquez ignored strong signals of resistance from the minors even after she told Phelps that they were cooperative. AR 119. The facts that Vasquez had to mention the possibility of an pepper spray at structuring, that someone called her a bitch, and that Keilon rubbed his genitals aggressively all clearly signaled potential problems. AR 119.

While employees must make do sometimes with inadequate resources, the policy is clear that proper restraints must be applied and this did not happen. AR 119. The cuffs that later were cut off, rather than the required metal restraints with a lock, shows a potential problem. AR 119. Coupled with this, Vasquez had never done a movement, did not have the training to do so, and there was no urgent need to do it on a Friday night in traffic and dark without proper resources. AR 119-20. While Vasquez did call a supervisor for final approval of the move, she did not adequately convey the facts and the permission was explicitly based on the minors’ willingness to be moved. AR 120. As demonstrated by the mayhem that followed, Vasquez erred in her lack of preparation and judgment. AR 120.

There was insufficient evidence to demonstrate that the DSOs used pepper spray before the van left CH Hall. AR 120. The difference in cannister volume could be from heat or measurement inaccuracies, and nothing else corroborates the juveniles’ statements on this. AR 120. This also means there was insufficient evidence that Vasquez lied to investigators about whether she authorized that use of pepper spray. AR 120. However, proof of this allegation is not necessary to sustain Vasquez’s discharge. AR 121.

It is understandable that Vasquez felt the situation in the moving van was desperate enough to merit the use of pepper spray, but her prior lapses in judgment caused the situation. AR 121. The hearing officer also was not convinced that Vasquez could not have just stopped the van by the side of the road with the trailing sedan and its four DSOs as backup. AR 121. She instead chose the risks of using pepper spray in a moving vehicle, including that it would incapacitate her as the driver and endanger the lives of everyone in the van and other persons in traffic. AR 121.

The Department did not charge Vasquez with use of the pepper spray at BJNJ Hall. AR 121. This does not reduce the seriousness of her other Department violations. AR 121.

Finally, Vasquez did not fulfill the clear requirement that she properly and timely document the incident and her own use of pepper spray, which made the hearing officer question her forthrightness. AR 121. Although it was late when she returned to CH Hall, Vasquez should have finished documenting the entire situation with a narrative of the pepper spray’s use before she finished her shift, when her recollections were most complete. AR 121.

While the juveniles waited in the van outside of CH Hall, they were unruly and disrespectful, acted out, and at least initially said they refused to go. AR 124. Vasquez interpreted this as normal general resistance. AR 124. There is insufficient evidence that anyone used pepper spray during this time, that the juveniles complained about its adverse effects, or that Vasquez was evasive or lied about it in her investigative interview. AR 124.

Restraints were put on minors just prior to leaving CH Hall. AR 125. All minors had leg shackles and handcuffs. AR 125. At least three minors had only flex-cuffs or tuff-cuffs, not the required metal mechanical restraints. AR 125. Vasquez checked each juvenile’s hands and feet for restraints, but some were improvised with flex-cuffs. AR 125.

Vasquez should have put mechanical restraints on them before loading them into the van. AR 125. She knew that DSB Policy 805 requires daisy-chains, shackles, and belly chains for the movement of groups of juveniles. AR 125. It also required that she position a staff member between them and the closest escape route. AR 125-26. In contrast, the flex-cuffs used had no locking or safety mechanisms. AR 126. The OD is responsible for the transport being done in compliance with the policy for mechanical restraints. AR 126. If mechanical restraints are not available, the transport should not be made. AR 126.

Vasquez failed to check that the van door was secured and locked before she drove the van. AR 126.

Enroute to BJNJ Hall, one of the minors asked for music and became agitated when Vasquez refused. AR 126. The minors started banging on the divider to the driver and removed the metal grate inside the sliding door window. AR 126. They shattered the sliding door window and tried to open the van door. AR 126. Vasquez ordered Broomfield to use pepper spray, which he did once the minors opened the sliding door. AR 126. When use of pepper spray becomes necessary during transport, Directive 1194 requires that the driver first park the vehicle on the side of the road. AR 127. Vasquez turned on the hazard lights and was swerving on the freeway, but she did not pull over. AR 127.

Vasquez asked Harvey to call BJNJ Hall to alert them of the problem. AR 127. Fairweather called BJNJ Hall and said that the van was coming in hot with out-of-control minors. AR 127. Due to safety concerns, the gate was closed when the van first arrived. AR 127. Vasquez got out to close the van door, saw Keilon approach the door to open it more, grabbed Fairweather’s pepper spray, and sprayed Keilon. AR 127. When the gate opened, Vasquez drove through it and used a U-turn to slam the door shut. AR 127. Vasquez failed to disclose this last use of the pepper spray in her first PIR. AR 128.

Vasquez violated Department policy when she moved the resisting juveniles, told her supervisor they did not resist, failed to use proper restraints, failed to place staff in the back seat between the juveniles and the van door, failed to lock the door, sprayed pepper spray inside the moving van, and omitted the last use of pepper spray in her original PIR. AR 128.

The Department guidelines list discharge as the penalty for the first instance of most of the applicable violations. AR 128. The third instance of failure to exercise sound judgment also merits discharge. AR 128. Vasquez had prior discipline for failure to fulfill supervisory duties and responsibilities, carelessness or inattention to duties that resulted in improper service to clients, failure to have work performance meet job expectations, failure to exercise sound judgment, and failure to follow established rules or regulations. AR 129.

Discharge was appropriate based on Vasquez’s violations of Department policies for the transportation of minors, use of restraints, use of pepper spray in a moving vehicle, Safe Crisis Management, and completion of required PIRs in a thorough manner. AR 129.

The Department met its burden of proving that the allegations in the Notice of Discharge were true and that the imposed discipline was appropriate. AR 129. The hearing officer recommended that the Commission sustain the Department’s termination of Vasquez’s employment. AR 130.

Vasquez objected to the proposed decision. AR 135. The Department responded (AR 157) and the Commission heard and overruled the objections on August 4, 2021. AR 3578, 3582, 3626-27. On October 25, 2021, the Commission sent notice that it had adopted the hearing officer’s proposed decision as its final decision. AR 185-86.

Petitioner Vasquez seeks to set aside her discharge as a SDSO for the Department. Although the court has set forth detailed facts in this tentative, Vasquez’s opening brief does not contend that any of the hearing officer’s[3] findings as not supported by the weight of the evidence. Instead, she argues that (1) the Department did not proceed in the manner required by law because the Notice of Intent and Notice of Discharge did not notify her that she was charged with (a) with ordering pepper spray of the minors while the van was moving van, and (b) not using metal restraints on the minors, (2) the hearing officer violated Topanga by failing to fill the analytic gap between the authorized transport of the minors and her discharge, and (3) discharge was an excessive penalty.[4]

Discipline imposed on public employees affects their fundamental vested right in employment (McMillan v. Civil Service Com., (1992) 6 Cal.App.4th 125, 129) and due process requires “notice of the proposed action, the reasons therefore, a copy of the charges and materials upon which the action is based, and the right to respond….” Skelly v. State Personnel Board, (“Skelly”) (1975) 15 Cal.3d 194, 215.

A due process violation requires a showing of prejudice. Krontz v. City of San Diego, (2006) 136 Cal.App.4^th 1126, 1141 (delay in notice and opportunity to be heard requires prejudice). Prejudice will not be presumed; actual prejudice must be shown in order to be balanced against a due process violation. People v. Belton, (1992) 6 Cal.App.4^th 1425, 1433 (delay in filing criminal charges requires balancing of prejudice against justification for delay). The burden is on the party seeking reversal to demonstrate prejudice. Pool v. City of Oakland, (1986) 42 Cal.3d 1051, 1069. “Reversible error requires demonstration of prejudice arising from the reasonable probability the party ‘would have obtained a better outcome’ in the absence of the error”. F isher v. State Personnel Bd., (2018) 25 Cal.App.5th 1, 20. Unless a defect in notice is prejudicial, it is not reversible error. Cooper v. Board of Medical Examiners, (1975) 49 Cal.App.3d 931, 941-42; Smith v. State Board of Pharmacy, (1995) 37 Cal.App.4^th 229, 243 (notice insufficient where accusation did not disclose that board was relying on negligence theory as opposed to personally dispensing illegal drugs).

The CSRs provide that, before the discharge of a permanent employee in a non-supervisory class becomes effective, the employee shall receive a written notice from the appointing power of intent to invoke discharge or reduction, “with specific grounds and particular facts therefor.” CSR 18.02(A). The Commission shall determine whether the discharge was justified. CSR 18.02(C)(1). The Commission may not consider any information or charges made by the appointing power unless they are contained in the letter of discharge, unless such information or charges were not then known and could not reasonably have been expected to be known by the appointing power. CSR 18.02(C)(1).

In granting the hearing, the Commission ordered that the hearing be limited to whether the allegations of the discharge letter were true and if any or all were true, whether the discipline was appropriate. AR 20, 23.

Vasquez argues that the hearing officer did not proceed in the manner required by law because the Notice of Discharge did not notify her that she was charged with (a) with ordering pepper spray of the minors while the van was moving van, and (b) not using metal restraints on the minors. CCP §1094.5(b). This failure violated due process, CSR 18.02, and the Commission’s order. Pet. Op. Br. at 15.

Vasquez argues that the Notice of Intent and Notice of Discharge (AR 392-94, 5-7), do not cite her instruction to DSO Bloomfield to pepper spray the minors during the transport as a basis for her proposed or final discharge. Instead, the hearing officer developed her own rationale that Vasquez’s direction for the use of pepper spray during transit was a major consideration for discharge. AR 126 (finding 30). Similarly, Vasquez argues that the Notice of Intent and Notice of Discharge do not allege that she used improper non-metal restraints. AR 392-94, 5-7. Instead, the hearing officer made another post-discharge rationale to find Vasquez’s use of non-metal restraints to be improper. (AR 125 (finding 21)). Pet. Op. Br. at 12, 14, 15, 17.

The Notice of Intent and Notice of Discharge are essentially identical with respect to the charges. Both list the grounds for discharge as Vasquez’s delay in or failure to follow supervisor instructions, carelessness or inattention that led to improper service, failure to follow pepper spraying protocol, inappropriate or unnecessary use of pepper spray, discourtesy to clients, failure to complete required incident reports, falsifying an official business record, providing false information in the course of an administrative investigation, conduct that is dishonest or unbecoming of a Department employee, failure to exercise sound judgment, and failure to follow established rules or regulations. AR 380, 390. Both then list the Department Policies that Vasquez was alleged to have violated. AR 381-82, 390-91. Finally, they summarize the facts supporting the violations. AR 382-84, 92-94.

The Department’s practice of listing grounds, policies, and then pertinent facts is not a good way to provide notice in an accusation. Neither the Notice of Intent nor the Notice of Discharge ties Vasquez’s particular conduct to a policy or rule violation. As a result, it is difficult to know what conduct violated a specific policy. Nonetheless, the Notice of Intent and Notice of Discharge generally suffice to place Vasquez on notice of much of what she was accused to have done and why there are grounds for discipline.

Specifically, Vasquez’s argument that she did not receive notice that her instruction to DSO Bloomfield to pepper spray the minors during transport was a basis for discipline is undermined by the allegations that she failed to follow pepper spray procedures, she inappropriately or unnecessarily used pepper spray, and she violated DSB 1007 (Chemical Restraint Procedures) through the following conduct: “At that time, you ordered DSO Broomfield to OC spray the subject minors to subdue them.” AR 380-81, 383.

In contrast, Vasquez’s argument that she did not receive notice that her failure to place the minors in metal restraints prior to transport was a basis for discipline is well taken. The Notice of Intent and Notice of Discipline state as pertinent grounds for discipline that she was careless or inattentive to her duties, that she failed to exercise sound judgment, and that she violated DSB 1006 (Mechanical Restraint Procedure), DSB Policy 805 (Transporting Youth), DSB Policy 1006 (Mechanical Restraints), and Directive 1194 (Safe Crisis Management). Yet nowhere do they set forth any facts supporting these grounds through the use of improper restraints.

The County argues that the hearing officer found that mechanical restraints shall be placed on minors prior to entering the transport vehicle, the minors were required to be daisy-chained together with shackles and belly chains, the OD is responsible for the transport being done correctly, including the use of mechanical restraints and, if mechanical restraints are not available, the transport should not be made. Vasquez was charged with violating her duties as a SDSO, and as OD Vasquez was responsible for coordinating the movement of populations between facilities. The County concludes that the Department notified her that she failed to exercise sound judgment by not following standard procedures and Department policies. Opp. at 8.

The hearing officer’s findings have nothing to do with the notice of charges required by due process, CSR 18.02, and the Commission’s order. It is insufficient notice to charge a public employee with failure to exercise sound judgment without a factual allegation about how that judgment was wrongly exercised. Vasquez had no notice from the Notice of Intent and the Notice of Discharge that her use of restraints was improper.

On the other hand, Vasquez makes no showing that she objected to the lack of notice in the Notice of Intent or Notice of Discharge, either during the hearing or in her objections to the hearing officer’s proposed decision. AR 135-55. 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. While the County fails to raise the exhaustion issue, it is quasi-jurisdictional. Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 291-93 (the exhaustion doctrine has been described as “a jurisdictional prerequisite to resort to the courts”). Since both sides presented detailed testimony on the restraints issue, it is only fair to require Vasquez to show that she objected to any lack of notice, and she has not done so.

Vasquez also has the burden to demonstrate prejudice from lack of notice. Pool v. City of Oakland, supra, 42 Cal.3d at 1069; Cooper v. Board of Medical Examiners, supra, 49 Cal.App.3d at 941-42. She does not seriously attempt to do so. Given that the restraints issue was disputed at the hearing, her lack of notice did not prejudice her.

In reply, Vasquez lists additional charges that she contends were not in the Notice of Intent or Notice of Discharge:

(a) Vasquez should have inserted staff between the minors in the back of the van. Vasquez argues that this is untrue because Collins testified that Transportation deputies do not ride in the back of the van. AR 1603;

(b) Vasquez failed to lock the van’s door from the outside which contributed to the incident. Vasquez argues that this is untrue because DSO Harvey testified that he witnessed DSO Broomfield close the sliding door and lock it from the outside. AR 2780;

(c) Vasquez used poor judgment in failing to use Transportation to conduct the movement of the minors. Vasquez argues that Transportation refused to transport the minors after 4:00 p.m., so Phelps gave the assignment to Vasquez. AR 2644, 2665. Any failure to use Transportation rests solely with Superintendents Phelps and Alcantara, who both approved the inter-facility movement;

(d) Vasquez improperly or dishonestly documented the incident. Vasquez argues that the movement began in the late afternoon and at NJHJ Hall Coronado assigned Vasquez to do the reporting, which she completed after midnight and submitted the next day. AR 3130, 3133. There is no significant inconsistency between her documentation, interview, and hearing testimony; and

(e) Vasquez should have stopped and obtained help from the following sedan of officers would have been a worse field judgment. Vasquez argues that to stop the van on the freeway as minors were attempting to flee and possibly run out onto lanes of traffic or otherwise cause an accident is a wrong-headed view. Reply at 16.

Vasquez argues that the use of pepper spray was authorized under Safe Crisis Management policy:

“The following situations occur quickly and require staff to respond immediately, utilizing more restrictive alternatives, on an escalating basis, to protect members of the community, prevent injury to your and/or staff….Physical assault on a staff member, Youth attempting to escape outside of the immediate area of supervision/living area…. AR 526-27.

“Note: In instances where a disturbance occurs involving several youth or a staff member is under physical assault by a youth or group of youth, the immediate utilization of chemical intervention is permissible following the issuance of a verbal OC warning.” AR 528.

Vasquez notes that the Notice of Discharge correctly states that, when the youths opened the van door, Broomfield OC sprayed the minors “back inside the van through the opened siding door.” AR 6. She argues that this was the most dangerous moment. To allow them to leap out of the moving van was extremely dangerous. To spray them back into the van may have been against policy preference, but policy is a guideline. The option Vasquez chose of ordering Broomfield to spray the minors kept them from attempting to leap out on the freeway. Even Phelps admitted: “If force is required during transport because of circumstances that require force and its within our policy, I would expect due diligence.” AR 1510. Reply at 10.[6]

Vasquez argues that her order for Broomfield to pepper spray the minors to stop their dangerous disruption during travel was permitted by the Safe Crisis Management policy and was a decision that preserved overall safety. While the transport policy does not authorize pepper spray in transit (Directive 1194), the hearing officer failed to analyze the clash of these two policies. When Vasquez instructed Broomfield to spray the minor who opened the van’s sliding door at freeway speeds, she made a reasonable field judgment in exigent circumstances to follow the Safe Crisis Management policy and not Directive 1194. She needed to regain control immediately and chose a course of action for the safety of all concerned. It is irrational to fire Vasquez for not following Directive 1194 by pulling over on the freeway and give the minors the chance to scatter in dangerous ways. As a result, the hearing officer’s choice to apply the wrong policy was arbitrary. Pet. Op. Br. at 13-14.

Vasquez is incorrect. The hearing officer correctly determined that that Vasquez violated both DSB Policy 1007 (Chemical Restraint Procedures) and Directive 1194 (Safe Crisis Management), which strictly prohibit the use of pepper spray in a moving vehicle, when she ordered DSO Broomfield to pepper spray the minors through the open sliding van door on the freeway. Directive 1194 required Vasquez to park on the side of the freeway before deploying pepper spray. AR 522-523, 575. Directive 1194 does not conflict with the Safe Crisis Management policy, which also expressly states that the use of pepper spray “in a moving vehicle is strictly prohibited.” AR 523. There is no Department policy permitting an exception, and that is because pepper spray vapors in a moving van could cause the driver to have an accident. AR 1572 (Collins), 1979-80 (Alcantara). The potential for pepper spray overpowering the driver was corroborated by Vasquez herself, who testified that she felt like throwing up after pepper spray got on her face. AR 656. DSO Broomfield also testified that he left the van when it arrived at BJNJ Hall because he could not see. AR 676.

The hearing officer correctly noted that it is understandable that Vasquez wanted to pepper spray the minors in the desperate situation of the minors unshackled in the moving van battering the partition to the driver, removing the metal grate, and attempting to open the door while driving. However, the problem was caused by Vasquez’s poor exercise of judgment. AR 121. Moreover, she could have pulled over to the side of the freeway, stopped the van, and had the trailing sedan prevent any escape. Vasquez violated Department policy by pepper spraying in a moving van.

Vasquez argues that the hearing officer’s rationale was incorrect because the restraints she used were authorized.

The Department authorizes the use of mechanical restraints to keep youth safe for transportation purposes. AR 505 (DSB Policy 1006). Authorized restraints include hard mechanical restraints (handcuffs, leg-irons, shackles, waist-chains, daisy chains, and plastic flex-cuffs). AR 505-06 (DSB Policy 1006), 569 (Directive 1194). At least two staff members must be present when mechanical restraints are applied. AR 505. Mechanical restraints shall not be used to secure a youth to a fixe immovable object or inside a transporting vehicle. AR 506.

Flex-cuffs for use in juvenile facilities come in flat flex-cuff and handcuff flex-cuff form. AR 508 (DSB Policy 1006). Flex-cuffs are cuffed behind the back, are to be used only for short periods. AR 508.

Shackles consist of handcuffs that couple the youth’s hands together and leg-irons affixed to each leg, with the handcuffs and leg-irons chained together to limit the movement of the youth's upper and lower extremities. AR 508 (DSB Policy 1006). When available, shackles may be utilized for movement of youth between facilities or to medical appointments. AR 508 (DSB Policy 1006). When shackles are not available, the Department shall utilize handcuffs and leg-irons for these movements. AR 508 (DSB Policy 1006).

Daisy-chains are several pairs of handcuffs connected to a strong chain at approximately three-foot intervals. AR 509 (DSB Policy 1006). They may be used for transporting groups of youth from one location to another within the facility during sleeping hours or times of unrest. AR 509 (DSB Policy 1006). They may also be used for the transportation of youth between facilities. AR 509 (DSB Policy 1006).

Vasquez argues that the restraints she used to transport the minors were within this policy. Vasquez argues that both metal and plastic restraints are considered hard mechanical restraints and plastic flex-cuffs (also known as tuff-cuffs) are authorized for use in the Safe Crisis Management Policy and Directive 1194. AR 506, 569. Movement Coordinator Nunez provided the restraints (AR 3054), which consisted of two metal leg shackles, two metal handcuffs (AR 3056), and the rest were “mechanical restraints that are plastic used by the transport office”. AR 3056-57. The plastic mechanical restraints are considered hard mechanical restraints under the policy. AR 3058-59. Daisy-chains were not used but they also were not required. See AR 509. Vasquez checked all hands and feet of the minors to ensure restraints were in place prior to leaving CJ Hall. AR 3065.

Vasquez contends that the hearing officer completely ignored the fact that plastic flex-cuffs are authorized hard mechanical restraints and did not fairly analyze the fact that the type of restraints used were a combination of metal and soft plastic cuffs and authorized under Department policy. AR 125. OD Moffett testified that they use tuff-cuffs with mechanical restraints whenever they move minors for hospital runs. AR 1876. Moffett testified that tuff-cuffs are used in conjunction with metal restraints. AR 1921. Transportation Director Collins testified that flex-cuffs are acceptable in an emergency or for a large movement. AR 1550. DSO Nunez testified that she has seen tuff-cuffs used in transport out of a facility and she has never seen a movement cancelled due to lack of metal restraints. AR 1800-01. Additionally, there is no clear record that the type of restraints used would have prevented a determined escape attempt. Even daisy-chained metal handcuffs and shackles would not have completely prevented the minors from kicking with their legs or hitting with their hands and arms. AR 2826-27 (Harvey). The hearing officer ignored the opinions of the involved officers, none of whom complained of any impropriety in the restraints. Pet. Op. Br. at 16; Reply at 14-15.

DSB Policy 805 expressly requires that minors be transported in shackles and belly chains, and those transported in groups or two or more shall be daisy chained together. AR 501. Vasquez clearly did not comply with this policy. The testimony, however, shows that deviation from this policy occurred. Moreover, there was some confusion about the use of flex-cuffs. Vasquez is correct that flex-cuffs are authorized hard mechanical restraints that may be used in transporting minors. AR 505-06 (DSB Policy 1006), 569 (Directive 1194). However, flex-cuffs may be used only restrain a minor’s hands. See AR 508 (DSB Policy 1006). Transport of a minor also requires shackles (handcuffs chained to leg-irons) or handcuffs and leg-irons when shackles are not available. AR 508 (DSB Policy 1006). Flex-cuffs may substitute for handcuffs but not leg-irons, as DO Moffet testified.

The Hearing Officer correctly found that Vasquez exercised bad judgment when she decided to transport minors who were not properly restrained. AR 125. While the hearing officer may have improperly concluded that Vasquez violated DSB Policy 805 (Transporting Youth) because the minors were not restrained in shackles and daisy chains (AR 125), they should at least have had the hard plastic flex-cuffs and leg-irons when they were transported. Vasquez admitted that three of the minors were only restrained in flex-cuffs (it is unclear whether they were the hard plastic variety). Moffett corroborated that the minors who got off the van at BJNJ Hall either were not restrained or had broken or missing flex-cuffs: Armoune had leg-irons but no handcuffs; Keilon had broken and separated flex-cuffs on his legs and hands; Jaylon had intact tuff-cuffs on his legs but no handcuffs; Isaac had broken tuff-cuffs on his legs but no handcuffs; and Corin had broken tuff-cuffs on his legs and no handcuffs. AR 433-34, 1871-74. All of these minors should have had leg-irons, not plastic leg restraints.[7]

Vasquez notes that CJ Hall Superintendent Alcantara ordered closure of the minors’ housing at CJ Hall a week before the movement, and the minors had refused to move. AR 1425. Vasquez did not have authority to move the minors from one facility to another. AR 1974, 3027.

Assistant Superintendent Phelps controlled the coordinated movement of minors between facilities. AR 1433. On June 23, 2017, while Vasquez was doing the scheduling, Movement Coordinator Perez told her that the minors were to be moved that day but they did not have the staff. AR 3037. While Transportation will often transport youths, Phelps was told by CJ Hall Movement Coordinator Smith that it was too late in the day for Transportation to make the movement. AR 2644. Phelps called Vasquez, who was OD, and she said she had the staff to move the minors. AR 2644, 2648. Vasquez asked Movement Coordinator Nunez to stay and help coordinate the movement and Nunez agreed. AR 3037-38. Vasquez spoke to Assistant Superintendent Phelps, who approved said go ahead with getting the minors’ “stuff together”. AR 3042, 3044. Phelps testified: “I gave authorization [for the move].” AR 1496.

While at CJ Hall, the minors changed into orange travel clothes, were brought down from a second floor into a van, waited an hour in the van, took restroom breaks while escorted, cooperated with all instructions without the use of force, and presented no physical resistance or aggressive act reported by any officer on-scene. AR 2687, 2690, 2525, 2531. Vasquez argues that back-talk from minors is common but does not imply defiance of Phelps’ conditional movement order. Vasquez heeded Phelps’ caution and left behind some of the minors that would not cooperate. AR 1664, 2644. After obtaining all paperwork and medical files on the minors (AR 3046), Vasquez again spoke to Phelps and confirmed that no force was used to load the minors. Phelps then gave final approval to move the minors so long as she had not used force. AR 3047. Reply at 6-7.

From this evidence, Vasquez concludes that the evidence shows that no force was used to get minors to change clothes or board the van. AR 3052. She argues that there is an analytic gap between due process violations and the findings and conclusions, between charges unproved and conclusions, and between maximal punishment for actions approved by higher authority constituting an abuse of discretion, Topanga, supra, 11 Cal.3d at 514-15. Pet. Op. Br. at 18.

It is not clear what Vasquez means by reference to an analytic gap because she does not adequately explain where the gap lies. In any event, the hearing officer sufficiently analyzed the approval issue. The hearing officer found that the Department wanted to move the minors, but CHJ Superintendent Alcantara and Assistant Superintendent Phelps made clear that the minors could not be moved if they did not want to go voluntarily and resisted the move. AR 122, 123. Vasquez ignored strong signals of resistance from the minors even after she told Phelps that they were cooperative. AR 119. The fact that Vasquez had to mention the possibility of a pepper spray at structuring, that someone called her a bitch, and that Keilon rubbed his genitals aggressively all clearly signaled potential problems. AR 119. This is a sufficient analysis of Vasquez misleading Phelps into believing that the minors were cooperative.

In reply, Vasquez attempts to argue the weight of the evidence rather than a Topanga violation. Reply at 12. Vasquez contends that the minors physically cooperated with all orders and the hearing officer improperly converted Phelps’ condition into Vasquez’s guarantee that no resistance or disruption would occur after they left CJ Hall. Phelps did not prohibit the minors from expressing their preference not to move and it is possible for a minor to protest and still cooperate. AR 2685 (Harvey). Vasquez correctly reported the youths’ cooperation and no other officer on scene at CJ Hall disagreed. Nor did Vasquez order and initiate the transport because she had no authority to do so – Phelps and Alcantara did. Reply at 7-9.

The weight of the evidence on Phelps’ authorization to transport was not raised in the moving papers and has been waived. Regency, supra, 31 Cal.App.4th at 1333. In any event, Vasquez is wrong.

Approximately a week before June 23, 2017, Superintendent Alcantara issued the movement order. AR 1957-59. There was no urgency for the minors to be moved on Friday night, June 23, 2017; they could have been moved by Transportation deputies on the following Monday. AR 1972-73. The hearing officer found that Superintendent Alcantara and Assistant Superintendent Phelps made clear that the minors could not to be moved if they did not go voluntarily and resisted. AR 122. Vasquez admitted she never saw the movement order, and no one told her that the minors had to be moved on that Friday night. AR 3162-63, 3189. Vasquez was the DO and was the supervisor in charge. Despite having no training in transporting minors (AR 637-38), she took control of the operation and was responsible for ensuring that her subordinate DSOs followed policy. AR 1977-79, 2773-74, 3265.

When Phelps and Vasquez first spoke on the afternoon of June 23, 2017, Phelps conditionally authorized Vasquez to transport the minors to BJNJ Hall only if they were willing to be moved, were cooperative, and no force was used. AR 1426, 1495-97, 1506. Phelps was unaware that Vasquez intended to personally transport the minors to BJNJ Hall. AR 1953. The OD never personally transports minors and is not supposed to leave the facility. AR 1953, 1963-65.

Phelps also was never informed of the irregularities about the move, including that Vasquez parked the van outside the building unit rather than in the sally port, that she had issued a pepper spray warning during her structuring, that Keilon resisted the move, that she (Vasquez) was going to participate, that they did not have the necessary hard mechanical leg-irons, and that she was taking three DSOs in a trail sedan. Therefore, it is unfair for Vasquez to shift responsibility for the move to Phelps or Alcantara. The County correctly describes Vasquez’s argument as an attempt to shift blame for her decision to move the minors. Opp. at 7-8.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Commission, (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, supra, 15 Cal.3d at217-18. 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, (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.

Vasquez notes that she had 20 years of exemplary County service (AR 336-38, 33), with “Very Good” Performance Evaluations and a total of eight commendations in 2015 and 2016. AR 362-63, 368-69. She achieved bachelor’s and master’s degrees, was very well regarded by colleagues, known as a very professional supervisor, responsible, sympathetic with her officers and minors, and someone who went above and beyond her duties. AR 3005. Her only blemish was a ten-day suspension in 2018 for (a) not supervising a subordinate who left a minor unsupervised for 14 minutes who scratched her arms, (b) another incident where a subordinate left a minor alone for six minutes where the minor clogged a toilet, and (c) a third incident where a minor wrapped a cloth around her neck that the Department portrayed as a suicide attempt, despite knowing that Vasquez had left the unit. AR 1258-59. The ten-day suspension was unrelated to the policies herein. Pet. Op. Br. at 19-20.

Vasquez notes that the Notice of Discharge correctly states that she drove the van with officer Broomfield when minors removed restraints, removed the metal grated inside the sliding door window, shattered the door window and attempted to escape the moving van, and Vasquez ordered Broomfield to pepper spray the minors. She just was driving and there is no suggestion that she provoked the youths in any way. The attempt to escape was an intentional and coordinated effort by the minors, and it could have happened whatever type of restraints were used. The youths kicked the metal grate over the door window off and kicked the glass to shatter it, and it was not shown that these movements would have been prevented by a different restraint. It is against policy to shackle minors to the inside of the van. Reply at 9.[8]

Vasquez notes that the overriding factor to be considered for public employee discipline is harm to the public service, and she argues that there was no injury to minors or staff. While the potential harm could be fantasized as potentially large, Skelly does not permit public employers to fantasize a worst-case scenario to maximize punishment. The circumstances of the incident and the likelihood of recurrence temper any harm. Vasquez could be trained on the relevant transport policies to avoid a recurrence. Superintendent Alcantara, Assistant Superintendent Phelps, and Movement Control Officer Nunez should have insured appropriate arrangement of staffing inside the van, especially after Vasquez explained that she had less experience in moving minors between facilities, and the volatility of the minors was a shared responsibility of all supervisors. The axe falling on Vasquez is unreasonable, arbitrary, and improperly deflective of greater responsibility held by others. Pet. Op. Br. at 19-20.

As the County argues, Vasquez failed to follow numerous policies and the procedures she used for the movement were unusual. The minors were not sent to the Boys Receiving Unit so that they could change clothes and be properly restrained in metal shackles, handcuffs, and daisy chains. The van was parked outside building PQRS rather than in the sally port. The minors waited in the van for an hour while staff attempted to locate mechanical restraints. Three of the five minors were only restrained in flex-cuffs because Vasquez was unable to locate shackles, daisy chains, or leg-irons for them all. Opp. at 9.

The loading of the minors into the van was chaotic and disorderly. The Safe Crisis Management policy requires staff members to exhaust all less restrictive alternatives prior to issuing a pepper spray warning unless they are being physically assaulted. AR 578-79. Vasquez admitted that she told Keilon that she would pepper spray him when he uttered sexual references and made profane sexual gestures and then resisted the restraints. AR 625, 627-28, 655. Other DSOs took actions because the movement was disorganized, and the minors were not cooperative. DSO Davis removed her pepper spray canister from her holster because the minors would not come out of the bathroom, and she thought they might run. AR 801-03. DSO Harvey testified that DSO Fairweather was nervous because the minors were not cooperating, and she did not want to drive. AR 2783-85.

The events of the minors’ criminal misconduct then unfolded. Vasquez argues that the intervening intentional criminal or tortious actions of third-party youths undercuts her negligence. She neither caused, provoked, or exacerbated the minors’ disruption and destruction and it is grossly unfair to hold her responsible for the behavior of these troubled youths. Reply at 9-10.

To some extent this is true. Yet, the incident would not have occurred but for her failures. Alcantara, the Department’s decision-maker, articulated the reasons why she determined discharge was the appropriate discipline (AR 2008-13), and that discharge was within the recommended range of discipline in the Department’s Guidelines. AR 2013.

Alcantara noted that there was no urgency to move the minors and the Department did not want to transfer them by force. AR 1959, 2053. The minors were extremely high-profile kids with serious crimes, and Vasquez should not have transferred them on a Friday night in traffic when they resisted and did not want to go. AR 1978, 1951.

There were several red flags that signaled the minors’ unwillingness to go. AR 2002. It was unusual to bring a van up to the building to transport the juveniles because it creates a security risk. AR 1960, 1962. The fact that Vasquez did so confirms that the minors resisted. AR 1962. Vasquez gave a pepper spray warning, which also shows that the minors were resisting. AR 1965-66. The number of guards -- a trailing sedan with three staff members -- shows that there was a concern. AR 1971-72. Even if the Department wanted to move the juveniles by force, their unwillingness to comply was enough to let them stay at CH Hall through the weekend and have Transportation move them on Monday. AR 2003.

As OD, Vasquez should not have left CH Hall. AR 1953, 1964. She did not inform Assistant Superintendent Phelps that she would transport the minors or ask for his permission. AR 1953, 1964. As OD, she should have understood that she was responsible for responding to incidents and cannot do so if not on site. AR 1964-65.

Vasquez asserted that she did not use Transportation because the Movement Coordinator had not approved the transportation for that night. AR 1972. To Alcantara, this meant that the move should have happened the following Monday morning instead of that Friday night. AR 1972. Vasquez asserted that she moved the minors because they were bullying developmentally disabled kids in CH Hall, but there was no record of that. AR 1972-73. She should also have communicated such an urgency for movement to Phelps. AR 1973.

Alcantara noted that Vasquez was in charge of the movement. AR 1977-78. She should have ensured they had the necessary metal restraints and paperwork. AR 1978. If Vasquez was unable to acquire shackles, she should not have transported the juveniles. AR 1995.

Finally, Vasquez should have recorded in a timely PIR the pepper spray deployment at BJNJ Hall and prior interventions. The PIRs were due before the end of shift. AR 1984. Vasquez’s untimely initial PIR did not have the details needed to understand what occurred. AR 1985-86. Vasquez only sent additional details on July 29, 2017, after Alcantara twice told her to submit a PIR with all the details. AR 1985, 1987-88, 1990.

Alcantara found the order to spray inside the van as an aggravating factor. AR 2010. The risk to the public and harm to the public service was clear in choosing to transport high-risk kids during a high-traffic time when they were unruly and there was no urgency to transport them. AR 2012. Vasquez’s failure to accept responsibility for her mistakes during her interview also played a large role in Alcantara’s decision to discharge. AR 2012.

Alcantara concluded that Vasquez made a decision, contrary to her supervisor's instruction, to move the youth, and that decision resulted in injury to the youth and multiple violations of Department directives. AR 2008. Vasquez had prior discipline for poor judgment, which established a pattern. AR 2008. Alcantara determined that Vasquez violated each policy listed in the Notice of Discharge. AR 2009. Her dishonesty, poor judgment, failure to follow clear instructions from a supervisor, her decision to put herself and her staff and kids in a dangerous situation, and prior discipline all led Alcantara to decide that discharge was the proper discipline. AR 2010. Alcantara would have recommended discharge even without prior discipline. AR 2010.

There are some errors in Alcanara’s testimony. She wrongly believed that someone used pepper spray on a minor at CJ Hall and that Vasquez did not decontaminate him. AR 1951, 1953. She also wrongly concluded that Vasquez was dishonest in failing to report this act of pepper spraying. AR 1994. The hearing officer found none of these to be true.

Despite Alcantara’s errors, the hearing officer agreed with the penalty of discharge. She concluded that Vasquez exercised poor judgment in making this ill-advised transport. AR 119. This incident would not have happened without Vasquez’s poor decision to move the juveniles when they would not voluntarily go. AR 119. Vasquez ignored strong signals of resistance from these minors even after she told Phelps that they were cooperative. AR 119. Vasquez violated Department policy when she moved the resisting juveniles, told her supervisor that they did not resist, failed to use proper restraints, failed to place staff in the back seat between the juveniles and the van door, failed to check if the van door was locked, sprayed pepper spray inside the moving van, and omitted the last use of pepper spray in her original PIR. AR 128. The hearing officer concluded that discharge was appropriate based on Vasquez’s violations of Department policies. AR 129. The Commission agreed. AR 185-86.

In spite of all her errors of judgment, the court would not have discharged Vasquez if it were the initial decision-maker. This is not an instance of employee greed, laziness, theft, or action for personal benefit. AR 118. She was trying to do her job and get something accomplished. She foolishly placed herself in a dangerous situation in doing so, but she also ultimately handled it. AR 118. Indeed, the Department’s policy of not moving minors who do not want to be moved literally smacks of the inmates running the asylum. Small wonder that Movement Officer Nunez rolled her eyes when Vasquez asked Nunez why the minors had not been moved earlier. AR 3177. There is reason to believe that Vasquez is an employee who tried hard and simply was not trained in the proper procedure.

Yet, the court is not the initial decision-maker and may not substitute its judgment for that of the Commission. Nightingale v. State Personnel Board, supra, 7 Cal.3d at 515. Moreover, the importance of the numerous policies Vasquez violated is a matter solely within the Department’s expertise and it believes the restraint and pepper spray policies to be important. See Cadilla v. Board of Medical Examiners, supra, 26 Cal.App.3d at 961.

The court cannot conclude that discharge was a manifest abuse of discretion. The circumstances demonstrate that Vasquez exercised poor judgment and committed numerous violations of Department policies in conducting the transport. There was clear harm to the public service, including actual damage to the van and the unrealized risk of accident on the freeway and eye injury to Broomfield and the minors. An unrealized risk is still harm to the public service because the Department need not wait until harm actually manifests. The County correctly notes that Vasquez’s recent ten-day suspension for similar policy violations made it more likely that her misconduct will recur. Opp. at 14.

The FAP is denied. The County’s counsel is ordered to prepare a proposed judgment, serve it on Vasquez’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 and writ along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for May 11, 2023 at 9:30 a.m.

[1] Petitioner Vasquez’s 16-page opening brief and 11-page reply (which does not even have a signature line) exceed the respective 15- and ten-page limits in CRC 3.1113(d). Her counsel is warned that the court will not consider briefs exceeding the page limits in the future.

[2] The juveniles’ last names are redacted. AR 241.

[3] For convenience, the court will refer to the hearing officer’s proposed decision and not the Commission’s final decision adopting it.

[4] In making her arguments, Vasquez correctly points out that the hearing officer did not find that pepper spray was discharged at CJ Hall or that she lied or was evasive about this issue. Pet. Op. Br. at 18. As the County did not a cross-petition on these issues, the hearing officer’s conclusion is final and need not be further addressed.

[5] Vasquez’s contentions are not entirely accurate. Harvey did testify that Bloomfield locked the sliding door (AR 2780), but it is hard to see how a minor could reach through the broken window and open the sliding door from the outside if it was locked. In any event, the hearing officer only concluded that Vasquez did not check if the sliding door was locked (AR 126), and he was correct (AR 648-49). The hearing officer did err in concluding that a deputy should have ridden in the back of the van (AR 126), but Collins undermined this error by testifying that problem minors should have been split between the van and the sedan (AR 1574).

Vasquez is incorrect that Phelps gave the transport assignment to her because Transportation refused to transport the minors after 4:00 p.m. Rather, Vasquez called Phelps to transport the minors (AR 1421-23), Phelps authorized the move only if the minors were cooperative (AR 1426, 1496-97, 1506), it was too late in the day to ask Transportation to make the move, and Vasquez she could get her staff to do it. AR 2468. Hence, Vasquez used poor judgment in failing to use Transportation to conduct the movement of the minors.

Vasquez did improperly document the incident. Her PIR was untimely (AR 1983-84) and, more important, she failed to document the pepper spray usage at BJNJ Hall until her supplemental PIR. AR 1985, 1987-88, 1990.

Finally, the hearing officer was correct that Vasquez should have stopped and obtained help from the following sedan of officers. AR 121. Collins testified that, in lieu of pepper spraying in a moving vehicle, she would have continued driving until either the CHP arrived, or she contacted the ghost vehicle so that she could pull the van over to the side of the road where the other vehicle could ensure the juveniles do not escape. AR 1578-79. The hearing officer agreed, noting that Vasquez instead chose the risks involved in the use of pepper spray in a moving vehicle, including that it would incapacitate her as the driver and endanger the lives of everyone in the van and other persons in traffic. AR 121.

[6] Vasquez also adds that the Notice of Discharge alleges that Vasquez pepper sprayed a minor who attempted to open the sliding door at BJNJ Hall. Vasquez contends that the minor had just finished trashing the inside of the van, which was not yet inside the facility, so Vasquez had to control what she perceived as a continued possibility of escape. Reply at 11. This point is not significant because Vasquez was not charged with improperly pepper spraying a minor at BJNJ Hall. AR 121.

[7] The County also points out that Vasquez’s claim that she had to use flex-cuffs because the Movement Control office did not have an adequate supply of metal handcuffs and shackles is not an excuse under DBS Policy 805. She could have obtained metal shackles, leg-irons, and daisy chains from MAT upon request. AR 3418-19 (Stocks). Opp. at 11-12.

[8] Vasquez notes that the Notice of Discharge alleges that she was serving the van on the freeway and turned on her hazard lights. AR 5. The hearing officer made the same conclusion. AR 127. Vasquez argues that she turned on the hazard lights but was not swerving. AR 1690, 3106. Reply at 10-11. The court agrees.