Judge James C. Chalfant, Case 22STCP01992 2023-01-26 Tentative Ruling

Petitioner Robert Kilpatrick, Jr. (“Kilpatrick”) seeks a writ of mandate compelling Respondents City of Los Angeles (“City”) and Fire Chief Kristin Crowley (“Crowley”) (collectively, “City”) to set aside the decision to terminate Kilpatrick as a Battalion Chief of the Los Angeles Fire Department (“LAFD”).

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

On May 25, 2022, Kilpatrick filed the Petition against Respondents, alleging causes of action for traditional mandamus and administrative mandamus. The verified Petition alleges in pertinent part as follows.

On November 9, 2021, LAFD served Kilpatrick a “Notice and Order to All Affected Members” that gave him 48 hours to comply with the City's COVID-19 vaccination policy or be placed off-duty without pay. On November 12, 2021, the City placed Kilpatrick off-duty without pay.

On November 30, 2021, Kilpatrick learned that he was the subject of an investigation by LAFD’s Professional Services Division (“PSD”). On December 13, 2021, an Internal Affairs complaint against Kilpatrick was sent to PSD.

On December 14, 2021, Battalion Chief Cessor found that Kilpatrick failed to meet the conditions of his employment and recommended a “Pre-Disciplinary Hearing” and a “Board of Rights Hearing.” On December 15, 2021, Kilpatrick received a notification entitled “Proposed Board of Rights” stating that he did not have a right to a formal hearing but could respond to the charges and present any additional information to rebut them at a hearing set for December 21, 2021 under Skelly v. State Personnel Board (“Skelly”) (1975), 15 Cal.3d 194.

At the December 21 virtual Skelly hearing, Kilpatrick objected to the hearing because the City refused to produce requested discovery material required by Skelly. Kilpatrick requested a continuance of the Skelly hearing until the City provided the requested evidence. When the City refused, Kilpatrick left the hearing.

On January 5, 2022, Kilpatrick was served with a complaint for his failure to meet conditions of employment by failing to comply with the City’s vaccination mandate and vaccination policy requirements. On February 8, 2022, Kilpatrick selected the members for his Board of Rights.

On February 9, 2022, Kilpatrick received a Notification of Temporary Relief from Duty which charged him with failing to meet a condition of employment by not complying with the City’s Vaccination Order.

On February 17, 2022, the Board of Rights convened. Kilpatrick did not appear because the City failed to provide proper notice under City Charter section 1060.

On February 28, 2022, Kilpatrick submitted a Request for Religious Exemption Form to LAFD’s Personnel Services Section (“PSS”).

When the Board of Rights convened for a second meeting on March 2, 2022, Kilpatrick did not appear because he previously had submitted his Request for Religious Exemption Form. Then-LAFD Chief Ralph Terrazas (“Terrazas”) informed the Board of Rights that he had dissolved it.

On March 9, 2022, Chief Terrazas sent Kilpatrick a Fire Chief's Notice of Removal signed by Terrazas on March 3, 2022, declaring that Kilpatrick was no longer a Battalion Chief.

On March 11, 2022, Kilpatrick appealed the discharge. He never received a response.

Kilpatrick contends that he refused to acquiesce to LAFD’s vaccination policy because it requires employees to pay for mandated virus testing and is illegal under Labor Code section 2802(a). Labor Code section 2804 bars employers from making their employees waive their right to such reimbursement and any agreement to that effect is null and void. Labor Code section 1102.5(c) bars employers from retaliating against employees for refusing to participate in an activity that violates a state or federal law, and the City has retaliated against him for failing to agree to pay for testing.

When Kilpatrick was notified that he was under investigation, he was not afforded an investigatory interview under the MOU. He also was given only 48 hours to comply with the change of employment conditions, which is unreasonable. Contrary to Skelly’s requirements, his Skelly hearing was scheduled on December 21, 2021.

Pursuant to City Charter section 1060(c), the complaint against a member must be filed to the Board of Fire Commissioners. The Complaint was signed by a deputy chief, not the Fire Chief, and it was not stamped by the Board of Commissioners to show receipt.

Petitioner Kilpatrick contends that the City has not proceeded in the manner required by law and seeks (1) a peremptory writ of mandate that sets aside his termination, the finding of guilt for his failure to comply with a condition of employment, and removal of all relevant negative comments from his personnel package, (2) an order compelling the City to convene a properly noticed Skelly hearing should it pursue disciplinary action against Kilpatrick, (3) an order compelling the City to provide Kilpatrick with discovery material pursuant to his Skelly hearing, and (4) attorney’s fees and costs.

On May 26, 2022, Kilpatrick served the City with the Petition and on the next day served Crowley. Respondents filed an Answer and Kilpatrick filed a replication to the Answer.

On August 30, 2022, the City filed a notice of related cases for Firefighter4Freedom Foundation v. City, Case No. 21STCV34490, and Kilpatrick v. City, 22STCV27620. The City refiled the notice for Kilpatrick v. City, 22STCV27620 on November 1, 2022. On November 2, 2022, the court found the cases not related.

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus.¿ CCP §1085.¿ A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....”¿ CCP §1085.¿¿¿

A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty.¿ Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84.¿ Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance.”¿ Id. at 584 (internal citations omitted).¿ Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation.¿ AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.¿

¿Where a duty is not ministerial and the agency has discretion, mandamus relief is unavailable unless the petitioner can demonstrate an abuse of that discretion.¿ Mandamus will not lie to compel the exercise of a public agency’s discretion in a particular manner.¿ American Federation of State, County and Municipal Employees v. Metropolitan Water District of Southern California, (2005) 126 Cal.App.4th 247, 261.¿ It is available to compel an agency to exercise discretion where it has not done so (Los Angeles County Employees Assn. v. County of Los Angeles, (1973) 33 Cal.App.3d 1, 8), and to correct an abuse of discretion actually exercised. Manjares v. Newton, (1966) 64 Cal.2d 365, 370-71.¿ In making this determination, the court may not substitute its judgment for that of the agency, whose decision must be upheld if reasonable minds may disagree as to its wisdom.¿ Id. at 371.¿ An agency decision is an abuse of discretion only if it is “arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.”¿ Kahn v. Los Angeles City Employees’ Retirement System, (2010) 187 Cal.App.4th 98, 106.¿ A writ will lie where the agency’s discretion can be exercised only in one way.¿ Hurtado v. Superior Court, (1974) 11 Cal.3d 574, 579.

No administrative record is required for traditional mandamus to compel performance of a ministerial duty.¿

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, (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).

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.” Id. 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, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on 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 at 514-15. Implicit in 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 515.

An agency is presumed to have regularly performed its official duties (Ev. 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.

An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful. Labor Code §2802(a). The purpose of this section is to protect employees from suffering expenses in direct consequence of doing their jobs. Edwards v Arthur Anderson (“Edwards”) (2008), 44 Cal.4th 937, 977. It shows a legislative intent that duty elated losses ultimately fall on the business enterprise, not on the individual employee. Edwards, supra, 44 Cal.4th at 977. Any contract or agreement, express or implied, made by any employee to waive such benefits is null and void, and this article of the Labor Code shall not deprive any employee or his personal representative of any right or remedy to which he is entitled under the laws of this State. Labor Code §2804.

An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. Labor Code §1102.5(c).

The term “member” refers to all officers and firefighters of LAFD, except for those who have not completed the period of probation in an entry position. City Charter §1060(a). All members have a substantial property right to hold his or her office or position and to receive compensation attached to the office or position. City Charter §1060(a). No member shall be suspended, removed, or otherwise separated from the service except for good and sufficient cause shown upon a finding of guilty of the specific charge or charges assigned as cause or causes after a hearing before a Board of Rights, except for a temporary suspension pending a Board of Rights hearing or when the member fails to request or appear at the hearing. City Charter §§ 1060(a), (b), (h).

After following pre-disciplinary procedures otherwise required by law, the Fire Chief may temporarily relieve from duty any member pending a hearing before and decision by a Board of Rights on any charge or charges pending against the member. City Charter §1060(b)(1).

The Fire Chief also may suspend the member for a total period not to exceed 30 days with loss of pay and with or without reprimand, subject to the right of the member to a hearing before a Board. City Charter §1060(b)(2). In the event the member seeks a hearing before a Board of Rights, the suspension shall automatically become a temporary relief from duty pending hearing and decision by the Board of Rights. City Charter §1060(b)(2). In the event that the member fails to apply for a hearing within the period prescribed, he or she shall be deemed to have waived the hearing and the suspension shall remain effective, unless the Fire Chief requires that a hearing be held. City Charter §1060(b)(2).

In the event there is an order for relief from duty or suspension, the order shall contain a statement of the charges assigned as causes. City Charter §1060(c). The Fire Chief shall, within five days after the order is served, file with the Board of Fire Commissioners a copy of a verified written complaint upon which the order is based, with a statement that copies of the order and verified complaint were served upon the accused. City Charter §1060(c). The complaint shall be verified by the oath of the Fire Chief and shall contain a statement in clear and concise language of all the facts constituting the charge or charges. City Charter §1060(c). If the complaint and proof of service are not filed within the five-day period prescribed, the order of temporary relief from duty or suspension shall be void and of no effect and shall be automatically revoked, and the accused member restored to duty with the department without loss of pay and without prejudice, as if no order of relief from duty or suspension had been made. City Charter §1060(c).

In the event the accused fails to request a hearing before a Board within the period prescribed, the Fire Chief may require a hearing to be held before a Board and may for that purpose, within five days after the expiration of such period, draw three names from a box to constitute the board. City Charter §1060(h). If a Board has been constituted for the purpose of hearing and the accused, without reasonable excuse, fails, or refuses to appear before the Board at the time and place designated, the Fire Chief may, at his or her discretion, either direct the Board to proceed with the hearing in the absence of the accused, or the Fire Chief may, without a hearing, impose the penalty of suspension or removal as he or she deems fit and proper. City Charter §1060(h). The Fire Chief shall cause notice of the action to be served upon the accused and shall file a statement of the action with the Commissioners within five days. City Charter §1060(h).

The Board of Rights shall make findings at the conclusion of the hearing of guilty or not guilty on each charge based on the evidence presented at the hearing. City Charter §1060(m). If the accused is found not guilty, the Board of Rights shall order his or her restoration to duty without loss of pay and without prejudice, and the order shall be self-executing. City Charter §1060(m). If the accused is found guilty, the Board of Rights shall, prescribe a penalty of suspension not exceeding six months with total loss of pay, reprimand, or removal from office or position. City Charter §1060(m). The Fire Chief may, at his or her discretion, impose a penalty less severe but may not impose a greater penalty. City Charter §1060(o).

This section shall not affect any rights a member may have to other legal rights or remedies in relation to his or her office or position or to the compensation attached thereto, or to appeal or be heard by any court. City Charter §1060(s).

The City Mayor has the power to declare the existence of a local emergency or disaster when he finds that any of the circumstances described in Los Angeles Administrative Code (“LAAC”) section 8.22 exist or a disaster or local emergency is declared by the President of the United States or the Governor of California. LAAC §8.27. The General Manager of the Emergency Management Department shall prepare, with the assistance of the City Attorney, a resolution ratifying the existence of a local emergency and the need for continuing the state of local emergency. LAAC §8.27. The resolution shall be submitted by the mayor to the City Clerk for presentation to the Council. LAAC §8.27. The Council shall approve or disapprove the resolution within seven days from the date of the original declaration by the mayor and at least every ten regular Council meeting days, but no longer than 30 calendar days, thereafter unless the state of local emergency is terminated sooner. LAAC §8.27.

On August 16, 2021, the City passed Ordinance No. 187134 (the “Ordinance”), which added Article 12 to LAAC Chapter 7, Division 4. LACC §4.700 et seq. (Pet. Op. Br. Ex. A). The Ordinance states that, to protect the City’s workforce and the public that it serves, all employees must be fully vaccinated for COVID-19, or request an exemption, and report their vaccination status in accordance with the City’s Workplace Safety Standards, no later than October 19, 2021. LAAC §4.701(a). The Ordinance makes vaccination a condition of City employment and a minimum requirement for all employees, unless an employee is approved for an exemption as a reasonable accommodation for a medical condition or restriction or sincerely held religious beliefs. LAAC §4.701(b). An employee who qualifies for an exemption must still report their vaccination status. LAAC §4.701(b).

Employees with medical conditions or restrictions or sincerely held religious beliefs that prevent them from receiving the vaccine shall qualify for an exemption upon approval of documentation provided by the employee to the appointing authority or designee. LAAC §4.702(a). Employees with such exemptions who are required to regularly report to a City worksite shall be subject to weekly COVID-19 tests, to be provided at no cost to the employees during their work hours following a process and timeline determined by the City. LAAC §4.702(b). Those with exemptions who work remotely shall be subject to ad hoc COVID-19 testing when asked to report to a worksite on an as-needed basis. LAAC §4.702(b)(1). Because the goal is to have a vaccinated workforce, the City will not allow anyone who does not qualify for an exemption to opt out of vaccination in favor of testing. LAAC §4.702(b).

On October 26, 2021, the City adopted an Enabling Resolution implementing the City’s Last, Best, and Final Offer (“LBAFO”) for the consequences of non-compliance with the Ordinance. Pet. Op. Br. Ex. B. Any employee who is not fully vaccinated and does not submit proof of vaccination by October 20, 2021 will be issued a Notice of Mandatory COVID-19 Vaccination Policy Requirements (“Notice”). Ex. B. The Notice will instruct the employee to submit proof of full compliance by December 18, 2021. The employee must sign the Notice and must test for COVID-19 twice per week on their own time, administered by the City or a vendor of the City’s choosing. Ex. B. The employee would have to reimburse the City $260 per pay period for four tests at $65 each via payroll deduction. Ex. B.

On November 12, 2021, Kilpatrick was placed off-duty without pay. Kilpatrick Decl., ¶2. On February 17, 2022, Kilpatrick was served with notice that a Board of Rights hearing would convene that day to discuss LAFD’s complaint that he failed to meet a condition of employment on October 20, 2021. Kilpatrick Decl., ¶3. The unmet condition was compliance with the City’s COVID-19 testing mandate for all City employees. Kilpatrick Decl., ¶3.

LAFD Captain II Martin Mullen (“Mullen”) informed Kilpatrick via email that the matter was continued to March 2, 2022. Kilpatrick Decl., ¶5, Ex. C. The email stated that the Board of Rights gave the parties until February 24 to file any motions, stipulations, and witness lists. Ex. C.

Also on February 17, 2022, Kilpatrick was served with notice that he had been temporarily relieved of duty, effective February 8, 2022. Kilpatrick Decl., ¶4.

On February 25, 2022, Kilpatrick’s attorney sent an email to LAFP command staff explaining that, although Kilpatrick would apply for a religious exemption to the vaccine mandate, he would not use the LAFD form because it violated the law. Kilpatrick Decl., ¶5, Ex. C. The attorney stated that a religious exemption is self-certifying and must be granted by law. Ex. C. The religious exemption obviates any need for a Board of Rights hearing, and Kilpatrick would not participate. Ex. C. Any questions about what religion he practiced to qualify for an exemption would be a violation of constitutional privacy and against case law. Ex. C.

Further, the right to choose what goes into one’s body is a constitutional one that goes beyond freedom of religion. Ex. C. Members of Congress have invoked this right to avoid vaccination. Ex. C. The attorney reminded LAFD that it could not retaliate against Kilpatrick for his exercise of these rights. Ex. C. Kilpatrick was willing to wear masks, test for COVID-19, and maintain distance from his coworkers, but he would not let LAFD violate his rights or discriminate against his beliefs. Ex. C. The February 25 email quoted the text of an earlier email which claimed that the attorney assumed that the earlier hearings were pre-Skelly hearings. Ex. C. That LAFD considered them Skelly hearings showed that it was trying to ram-rod through the Skelly process without following required procedural protocols. Ex. C.

On February 26, 2022, Kilpatrick received notice that the Board would reconvene on March 2, 2022. Kilpatrick Decl., ¶6.

On February 28, 2022, Kilpatrick filed a declaration via email that he had a religious belief that prevented him from vaccinating against COVID-19. Kilpatrick Decl., ¶7, Ex. D. He therefore needed a religious exemption from the vaccination requirement for City employees. Ex. D. He attached a declaration from his church’s representative as to his faith. Ex. D.

On March 1, 2022, LAFD sent Kilpatrick the City’s application form for an exemption. Ex. D. It also confirmed that he was still relieved of duty since February 8, 2022 and that he had a Board of Rights hearing set for March 2, 2022. Ex. D. Kilpatrick provided the completed forms. Kilpatrick Decl., ¶7, Ex. D.

On March 3, 2022, Kilpatrick’s attorney sent an email to LAFD protesting a Notice of Removal alleging that he did not appear for his March 2 Board of Rights hearing. Kilpatrick Decl., ¶5, Ex. C. The attorney’s email reiterated that the hearing process had multiple procedural defects, LAFD must grant the religious exemption, this obviated the need for any hearing, and Kilpatrick had chosen not to attend the hearing as a result. Ex. C. The attorney reiterated that LAFD could not retaliate against Kilpatrick for his exercise of constitutional rights. Kilpatrick Decl., ¶5, Ex. C.

On March 9, 2022, Kilpatrick received notice by mail that LAFD had removed him from his position as Battalion Chief as of noon on February 8, 2022. Kilpatrick Decl., ¶8.

On March 24, 2022, Kilpatrick submitted an application for a service pension with the Los Angeles City Fire and Police Pensions (“LAFPP”), which was granted the same day. Kilpatrick Decl., ¶9.

On March 6, 2020, the City Council ratified Mayor Eric Garcetti’s (“Garcetti”) declaration of COVID-19 as a Local Emergency. Girard Decl., ¶2. The City Council has renewed the Emergency Declaration every 30 days, the latest on December 13, 2022. Girard Decl., ¶3, Ex. A.

On July 28, 2021, Mayor Garcetti issued a directive to all City department heads to verify and track the COVID-19 vaccination status of City employees. Girard Decl., ¶4. He also directed the CAO and the Personnel Department to develop an implementation plan for a vaccination program for all City employees. Girard Decl., ¶4.

That same day the City Council adopted a motion for the CAO, Chief Legislative Analyst, Personnel Department, and City Attorney to report back on a proposed policy that would require all City employees and contractors to be fully vaccinated as a condition of employment. Girard Decl., ¶4, Ex. B.

On August 18, 2021, the City Council adopted the Ordinance. Girard Decl., ¶5. On October 14, 2021, after negotiations with the applicable employee unions, the City issued its LBAFO for the consequences of a City employee’s non-compliance with the vaccine mandate. Girard Decl., ¶6, Ex. D.

Under the LBAFO, an employee who fails to comply with the vaccine requirement by October 20, 2021 and does not seek a medical or religious exemption would receive a Notice that extends the deadline to December 18, 2021. Ex. D. The employee must sign the Notice agreeing to become vaccinated by December 18 and (1) use his or her own compensated time to manage an absence from the workplace due to COVID-19 infection or exposure, (2) test for COVID-19 twice per week from the City or a vendor of its choosing on the employee’s own time, and (3) reimburse the City $65 per test, for a total of $260 per pay period, via paycheck deduction. Ex. D.

Employees who fail to show proof of full vaccination by December 18, 2021 would face corrective action, although the City would still comply with all applicable City Charter and other legal requirements when an employee invokes the right to a Board of Rights hearing. Ex. D. Corrective action could include termination, but such employees would be eligible for rehiring into the same civil service classification upon vaccination or the removal of the mandate. Ex. D.

Under the LBAFO, an employee with a pending exemption request is exempt from the vaccination requirement until the City decides it. Girard Decl., ¶8, Ex. D. The employee would have to sign the Notice and comply with the testing requirements, but the City would reimburse the employee for all tests if the exemption request were granted. Girard Decl., ¶8, Ex. D.

The testing for employees awaiting exemption decisions will be invoiced at $65 per test for twice weekly testing with such invoices held in abeyance until an exemption determination is made. Girard Decl., ¶9. When an exemption is granted, the invoices will be canceled. Girard Decl., ¶9. When an exemption is denied, the invoices will be held until a determination is made on the applicability of section 2802. Girard Decl., ¶9.

All City employees who request an exemption from the Ordinance’s vaccine mandate will have the request reviewed by their department for an initial determination. Girard Decl., ¶10, Ex. E. The department will send the request to the Personnel Department’s Review Committee for a final decision. Girard Decl., ¶10, Ex. E. If the committee denies the exemption, the employee may request an appeal before the department head or General Manager. Girard Decl., ¶10, Ex. E. The department head will submit the final decision to the Personnel Department before the employee receives notice. Girard Decl., ¶10, Ex. E. The notice would include an extension of the deadline to vaccinate where an exemption is denied. Girard Decl., ¶10.

On October 26, 2021, the City Council adopted a resolution to (1) instruct Garcetti to implement the LBAFO and (2) reaffirm Garcetti’s declaration of a public health emergency. Girard Decl., ¶11. On October 28, 2021, Garcetti issued a memorandum that directed all departments to implement the LBAFO. Girard Decl., ¶11, Ex. F. The memorandum stated that, as of October 18, 2021, out of 53,168 City employees, 37,524 were fully vaccinated, 1,250 were partially vaccinated, 4,872 were not vaccinated, 1,839 actively declined to state, and 7,683 failed to report their status at all. Ex. F.

LAFD firefighters are City employees who work together in close proximity in three shifts. Everett Decl., ¶3. The shifts work for 24-hours on followed by 24 hours off, 24-hours on followed by 24-hours off, then 24-hours on followed by four days off. Everett Decl., ¶4. Working and living together for 24 hours ensures that firefighters can respond to fire and medical emergencies 24 hours a day. Everett Decl., ¶5. COVID-19 has infected firefighters and reduced staffing. Everett Decl., ¶6.

On August 26 or 27, 2021, Kilpatrick appeared on the television news with his attorney to discuss his objections to the vaccine mandate and a lawsuit he had filed against the City. Everett Decl., ¶8. He did not mention a religious objection to the vaccine mandate. Everett Decl., ¶8.

On October 20, 2021, the COVID-19 vaccination and reporting requirements became conditions of employment for all City employees not exempt for medical or sincerely held religious reasons. Everett Decl., ¶9. Any firefighter who was not vaccinated and who had not filed for an exemption was contacted and offered an opportunity for an extension to be fully vaccinated by December 18, 2021, provided they signed an agreement that provided for twice weekly testing. Everett Decl., ¶10.

The 367 firefighters, including Fitzpatrick, who were not designated as vaccinated on October 20, 2021, and who had not filed for an exemption, were given at least 48 hours to decide whether to sign the agreement. Everett Decl., ¶12. Firefighters who accepted the offer were able to register with the City's third-party testing vendor, Bluestone. Everett Decl., ¶13.

LAFD placed all employees who were unvaccinated, did not request an exemption, and had not signed the Notice agreement off-duty pending separation. Everett Decl., ¶14. This included Kilpatrick. Everett Decl., ¶14.

On November 9, 2021, LAFD sent Kilpatrick notice informing him that he had not complied with the mandate as a condition of employment and had 48 hours to submit evidence that he either had or was taking steps to comply. Everett Decl., ¶15. He did not do so, and on November 12, 2021 LAFD placed him off-duty without pay for failure to meet a condition of employment. Everett Decl., ¶16. At the time, Kilpatrick had not submitted a request for a religious exemption or indicate that he had a religious reason for non-compliance. Everett Decl., ¶17.

On December 15, 2021, Kilpatrick received a proposed Board of Rights pursuant to Charter section 1060 stating that his Skelly hearing was set for December 21, 2021. Everett Decl., ¶18. Th Skelly hearing occurred as scheduled. Everett Decl., ¶19.

On January 5, 2022, Kilpatrick received notice of the charge against him: failure to meet a condition of employment by failing to comply with the vaccination requirements of the Ordinance by October 30, 2021. Everett Decl., ¶20.

On January 7, 2022, Chief Terrazas sent notice of the charge to the Commissioners and reported that Kilpatrick would go before a Board of Rights on the charge. Everett Decl., ¶21, Ex. A.

On February 8, 2022, Kilpatrick and LAFD selected members for the Board of Rights hearing. Everett Decl., ¶22. Kilpatrick then received a February 9, 2022 notice that LAFD had relieved him from duty for failure to meet conditions of employment by not complying with Ordinance No. 187134. Everett Decl., ¶23. Kilpatrick was given notice that the Board of Rights hearing would be on February 17, 2022. Everett Decl., ¶24.

Fitzpatrick did not appear at the February 17, 2022 Board of Rights hearing. Everett Decl., ¶25. The Board of Rights continued the hearing to March 2, 2022 to give him another chance to appear. Everett Decl., ¶¶ 25-26. On February 28, 2022, Kilpatrick received notice of the March 2, 2022 hearing. Everett Decl., ¶27.

That same date, Kilpatrick emailed PSS that he had a religious belief that prevented him from vaccinating against COVID-19. Everett Decl., ¶28. PSS replied with a reminder that Kilpatrick was relieved of duty pending the March 2 Board of Rights hearing. Everett Decl., ¶29. After business hours on March 1, 2022, Kilpatrick emailed a completed Request for Religious Exemption Form PSS. Everett Decl., ¶30.

Kilpatrick did not appear at the March 2, 2022 Board of Rights hearing, and no one presented evidence on his behalf. Everett Decl., ¶¶ 31-32. Per City Charter section 1060(h), the Board of Rights referred the matter to Chief Terrazas. Everett Decl., ¶33. On March 2, 2022, Chief Terrazas notified the Board of Rights that he was exercising his option to dissolve the Board of Rights and remove Kilpatrick from his position as LAFD Battalion Chief. Everett Decl., ¶34, Ex. B. The Board of Rights dissolved that day in compliance with Chief Terrazas’ decision. Everett Decl., ¶35.

On March 3, 2022, Chief Terrazas signed a Notice of Removal that reflected the Board of Rights dissolution and Kilpatrick’s termination. Everett Decl., ¶36. Per LAFD procedures and City Charter section 1060, Kilpatrick’s termination was effective as of February 8, 2022, the date the parties selected the Board of Rights. Everett Decl., ¶37.

On July 13, 2022, the trial court in Police Protective League conducted a bench trial on whether Labor Code section 2802 (“section 2802”) bars the City from holding unvaccinated employees liable for the cost of biweekly COVID-19 testing. Pet. RJN. The trial court ruled that section 2802 does apply to charter cities as employers. Pet. RJN. It then rejected the City’s argument that reimbursement of testing costs to unvaccinated employees was a form of compensation over which the state constitution gives charter cities plenary authority. Pet. RJN. The Enabling Resolution for the Ordinance causes these employees to necessarily incur the testing costs; they could either get vaccinated or apply for an exemption and get tested. Pet. RJN. Section 2802 prohibits the City from imposing payroll deductions or other financial liability on unvaccinated employees through the costs of mandated testing. Pet. RJN.

In 2021, a coalition of LAFD firefighters challenged the Ordinance’s vaccine mandate in Firefighter4Freedom Foundation v. City (“Firefighter4Freedom”), Case No. 21STCV34490. Opp. RJN. On February 15, 2022, the trial court sustained a demurrer to the Second Amended Complaint (“SAC”), noting the long history in California of upholding mandates. Opp. RJN.

The February 17, 2022 hearing was conducted with Battalion Chiefs Karen Richter (“Richter”), Alberto Valle (“Valle”), and Kenneth Miller (“Miller”) as the Board of Rights. AR 3. Chief Terrazas noted that LAFD and the Board of Rights were ready to proceed but neither Kilpatrick nor his attorney were present. AR 5.

The purpose of the Board of Rights hearing was to decide on Kilpatrick’s guilt or innocence as to the Complaint dated January 5, 2022, which the Board admitted into evidence. AR 7-8, 14. The Complaint alleged Kilpatrick’s failure, as of October 20, 2021, to meet conditions of employment by not complying with the vaccination requirements of the Ordinance, effective February 8, 2022 and codified at LAAC sections 4.701(a) and (b). AR 7-8, 14. Deputy Chief Graham Everett (“Everett”) as complainant verified the Complaint. AR 8.

Fire Special Investigator Valerie Ross (“Ross”), an LAFD representative, invoked City Charter section 1060(h), which authorizes a Fire Chief to either impose penalty without a hearing or order the Board of Rights to proceed with the hearing when the accused does not appear. AR 9-10. After an off-the-record consultation with Chief Terrazas, LAFD moved to dissolve the Board of Rights. AR 10. The Board meanwhile consulted with the City Attorney and decided to instead continue the hearing. AR 10.

After a further off-the-record discussion, the Board of Rights decided to continue the hearing to March 2, 2022, and request that the parties submit any witness lists, motions, and stipulations by 5:00 p.m. on February 24, 2022. AR 11. The Board of Rights presumed that Kilpatrick pled not guilty to the charges. AR 12.

When the Board of Rights reconvened on March 2, 2022 (AR 20-21), those present confirmed that they had not heard from Kilpatrick or his counsel. AR 25-26. Ross confirmed that, as far as she knew, Kilpatrick did not prepare or provide any of the documents that LAFD requested. AR 26. Ross again invoked Chief Terraza’s authority under City Charter section 1060(h) to impose penalty without a hearing or order the Board of Rights to proceed with the hearing when the accused fails to appear without reasonable excuse. AR 26-27.

After recess to discuss the action, Ross read Chief Terrazas’s Dissolution Notice to the Board, which asserted that Kilpatrick was given notice of the March 2, 2022 Board of Rights hearing by certified mail and that LAFD also tried multiple times to personally serve him. AR 27-28, 31. Because Kilpatrick failed or refused to appear before the Board of Rights without reasonable excuse, Chief Terraza imposed the penalty of removal and dissolved the Board of Rights. AR 28, 31. The Board agreed, entered the Dissolution Notice into the record, and dissolved. AR 28-29.

Petitioner Kilpatrick seeks administrative mandamus reinstating him to his Battalion Chief position with back pay until the date he began receiving his pension (Pet. Op. Br. at 7) and traditional mandamus rescinding the LBAFO’s testing requirements.[3]

On March 9, 2022, Kilpatrick received notice that LAFD had removed him from his position as Battalion Chief as of noon on February 8, 2022. Kilpatrick Decl., ¶8. On March 24, 2022, Kilpatrick submitted an application for a service pension with the LAFPP, which was granted the same day. Kilpatrick Decl., ¶9. Thus, Kilpatrick is a retired pensioner.

Pursuant to case law, a county commission loses jurisdiction to decide whether to set aside a public employee’s discipline once he or she retires. Zuniga v. Los Angeles County Civil Service Commission, (2006) 137 Cal.App.4^th 1255, 1257 (civil service commission lost jurisdiction to set aside ten-month suspension and award him backpay upon deputy sheriff’s retirement); County of Los Angeles Dept. of Health Services v. Civil Service Commission, (2009) 180 Cal.App.4^th 391 (commission lost jurisdiction over nurse’s discharge when she retired before commission decision rendered). Compare Hudson v. County of Los Angeles, (2014) 232 Cal.App.4^th 392 (commission did not lose jurisdiction over former deputy sheriff’s discharge where her disability retirement was filed by her employer and she sought reevaluation of her disabled status).

In this case, Kilpatrick retired after he was discharged. As such, the issue is not whether the Board of Rights or Chief Terraza had jurisdiction, but whether Kilpatrick has standing to challenge his dismissal in this court. Standing is a threshold issue necessary to maintain a cause of action, and the burden to allege and establish standing lies with the plaintiff. Mendoza v. JPMorgan Chase Bank, N.A., (2016) 6 Cal.App.5th 802, 810. As a general rule, a party must be “beneficially interested” to seek a writ of mandate. Friends of Oceano Dunes, Inc. v. San Luis Obispo County Air Pollution Control Dist., (2015) 235 Cal.App.4th 957, 962 (citing CCP §1086). “Beneficially interested” has been generally interpreted to mean that one may obtain the writ only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large. SJJC Aviation Services, LLC v. City of San Jose, (2017) 12 Cal.App.5th 1043, 1053. A petition has no beneficial interest if she will gain no direct benefit from the writ’s issuance and suffer no direct detriment if it is denied. Ibid.

Although the parties do not brief the issue, Kilpatrick may not have standing to challenge his discharge because he has no beneficial interest in being returned to his position now that he is retired. Compare Monsivaiz v. Los Angeles County Civil Service Com., (2015) 236 Cal. App. 4th 236, 242 (when employee died, he could not be restored to service and “[t]here was no act the superior court could mandate the Commission to perform that was within its authority to undertake."). Perhaps this is why his moving papers seek reinstatement to his Battalion Chief position only for the purpose of receiving back pay from the November 12, 2021 date he was relieved of duty until the date he began receiving his pension. See Pet. Op. Br. at 7. In any event, Kilpatrick concedes that he is not seeking reinstatement to his former position. Reply at 4.

Under the City Charter, a permanent officer or firefighter of LAFD has a substantial property right to hold his or her office or position and to receive compensation attached to the office or position. City Charter §1060(a). No member shall be suspended, removed, or otherwise separated from the service except for good and sufficient cause shown upon a finding of guilty of the specific charge or charges assigned as cause or causes after a hearing before a Board of Rights, except for a temporary suspension pending a Board of Rights hearing or when the member fails to request or appear at the hearing. City Charter §§ 1060(a), (b), (h).

The Board of Rights shall make findings of guilty or not guilty on each charge based on the evidence presented at the hearing. City Charter §1060(m). If the accused is found not guilty, the Board of Rights shall order his or her restoration to duty without loss of pay and without prejudice, and the order shall be self-executing. City Charter §1060(m). If the accused is found guilty, the Board of Rights shall prescribe a penalty of suspension not exceeding six months with total loss of pay, reprimand, or removal from office or position. City Charter §1060(m). The Fire Chief may, at his or her discretion, impose a penalty less severe but may not impose a greater penalty. City Charter §1060(o).

City Charter section 1060 shall not affect any rights a member may have to other legal rights or remedies in relation to his or her office or position or to the compensation attached thereto, or to appeal or be heard by any court. City Charter §1060(s).

Pursuant to City Charter section 1060, Kilpatrick’s remedy to contest his discharge for the charge of failure to meet a condition of employment was through the Board of Rights hearing. As the City argues (Opp. at 9-10), Kilpatrick was given not one, but two opportunities to appear before the Board of Rights and he made an affirmative decision not to appear. Kilpatrick was aware of both the February 17, 2022 and March 2, 2022 Board of Rights hearings and his lawyer specifically announced via email that “we will not participate”.

As a result, Kilpatrick cannot now claim that the City has not proved the charge or that discharge is not the appropriate penalty. He was entitled to a Board of Rights hearing and may not abandon it to claim lack of jurisdiction. Jackson v. City of Los Angeles, (1999) 69 Cal.App.4^th 769, 777. His failure to present these issues to the Board of Rights may be viewed as a failure to exhaust his 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. An administrative remedy is exhausted only upon termination of all available, non-duplicative administrative review procedures. Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., (2005) 35 Cal.4th 1072, 1080. The exhaustion doctrine has been described as “a jurisdictional prerequisite to resort to the courts.” Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 293. The exhaustion doctrine contemplates that the real issues in controversy be presented to the administrative body, which must be given the opportunity to apply its special expertise to correct any errors and reach a final decision, thereby saving the already overworked courts from intervening into an administrative dispute unless absolutely necessary. Farmers Ins. Exchange v. Superior Court, (1992) 2 Cal.4th377, 391.

Kilpatrick argues that the inquiry under CCP section 1094.5 extends to the questions of whether the agency has proceeded without or in excess of jurisdiction, whether there was a fair trial or whether there was any prejudicial abuse of discretion. He argues that CCP section 1094.5 applies not just to decisions following an evidentiary hearing, but also to whether the agency has proceeded in the manner required by law. The City did not proceed in the manner required by law because it (1) failed to keep him on the payroll until he was formally discharged, whether the discharge was through the Board of Rights or otherwise, and (2) discharged him for failing to participate in a City-mandated testing program at his own expense. He contends that he had no responsibility to attend the Board of Rights hearings of February 17 and March 2, 2022 because the City had already found him guilty of misconduct and taken him off payroll on November 12, 2021. The City further violated the law by refusing to accept, or even acknowledge, his request for religious exemption as required by Govt. Code section 12940 (a) and (h). Reply at 7.

This is an argument about the scope of what issues he was required to exhaust before the Board of Rights. The City Charter expressly grants the Board of Rights authority to decide a member’s guilt or not guilty of each charge and to impose a penalty which may include removal from office or position. City Charter §1070(m). The Fire Chief may impose a penalty of suspension or removal where the member fails to appear at the Board of Rights hearing. City Charter §1070(h).

While not entirely clear, the jurisdiction of the Board of Rights and Fire Chief appear to be limited to the elements of the charge and the penalty, for which some defenses may be raised. For Example, City Charter section 1060 imposes requirements for the complaint (§1060(c)), and one-year statute of limitations (§1060(a)) that may be raised in the Board of Rights hearing. Presumably, the Board of Rights hearing satisfies the requirements of the administrative appeal required for Govt. Code section 3254.5 in the Firefighters Procedural Bill of Rights Act (“FPBRA”) (Govt. Code §3250 et seq.) just as it does for the similar Board of Rights appeal for LAPD officers. See Gonzalez v. City of Los Angeles, (2019) 42 Cal.App.5^th 1034, 1047; Jackson v. Cityof Los Angeles, supra, 69 Cal.App.4 at 776, 780. As a result, procedural defenses under City Charter section 1060 and FPBRA may be raised before the Board of Rights. Less certain is whether Kilpatrick’s defense that he was not guilty of the charge because he was exempt for religious reasons could have been raised in the Board of Rights. A grant of the exemption would have negated the charge, so at least arguably it should have been presented. [4]

It does not appear, and the City makes no showing to the contrary, that other defenses --including that the City-mandated testing program compelling Kilpatrick to pay for his own testing violated section 2802 – could have been raised before the Board of Rights. Nor could pay issues be raised except insofar as the Board of Rights finds the accused not guilty and order his or her restoration to duty without loss of pay and without prejudice. See City Charter §1060(m). The conclusion that the defense that may be raised in the Board of Rights are limited is supported by City Charter section 1060(s), which provides that section 1060 does not affect any rights a member may have in court in relation to his or her office or position or to the compensation attached thereto.

Kilpatrick’s failure to exhaust his administrative remedies before the Board of Rights means that he may not seek to set aside his discharge on the basis that his guilt of the charge was not proven or that the penalty of removal was inappropriate. Kilpatrick was not required to raise a defense before the Board of Rights that the testing requirements are unlawful under section 2802. This argument can be raised for the first time in court, except that he may have no standing to do so because of his retirement and he disavows reliance on section 2802 to set aside his discharge anyway. See post. The defense of religious exemption may or may not have to be raised before the Board of Rights, but again Kilpatrick disavows reliance on a religious exemption to set aside his discharge. Finally, Kilpatrick was not required to raise his arguments about lost pay before the Board and may make them for the first time in court.

Kilpatrick also contends that there is no evidence in the administrative record that the statement of charges was filed with the Board of Fire Commissioners within five days as required by City Charter section 1060(c). Pet. Op. Br. at 6.

The City presents evidence that, on January 5, 2022, Kilpatrick received notice of the charge against him: failure to meet a condition of employment by failing to comply with the vaccination requirements of the Ordinance by October 30, 2021. Everett Decl., ¶20. On January 7, 2022, Chief Terrazas sent notice of the charge to the Commissioners and reported that Kilpatrick would go before a Board of Rights. Everett Decl., ¶21, Ex. A. This was well within the five days required by City Charter section 1060(c).

This is sufficient evidence. In any event, compliance with City Charter section1060’s requirements was an Kilpatrick was required to raise before the Board of Rights.

The Ordinance took effect on August 25, 2021. AR 14. On October 28, 2021, the Mayor issued a memorandum to all City department heads to implement the Ordinance’s vaccine mandate.[5] The Mayor attached the LBAFO adopted by the City Council on October 14, 2021 and which set forth the consequences of a City employee’s non-compliance with the vaccine mandate. Girard Decl., ¶6, Ex. D. Pursuant to the LBAFO, an employee who fails to comply with the vaccine requirement by October 20, 2021, and who has not sought a medical or religious exemption, would receive the Notice extending the deadline for vaccination compliance to December 18, 2021. Ex. D. The employee must sign the Notice and comply with its terms. Ex. D. Between October 20 and December 18, 2021, the employee must (1) use his or her own compensated time to manage an absence from the workplace due to COVID-19 infection or exposure; (2) test for COVID-19 twice per week from the City or a vendor of its choosing on the employee’s own time; and (3) reimburse the City $65 per test, for a total of $260 per pay period, via paycheck deduction. Ex. D.

On November 9, 2021, LAFD sent Kilpatrick a notice informing him that he had not complied with the mandate as a condition of employment and that he had 48 hours to submit evidence that he either had or was taking steps to comply. Everett Decl., ¶15. He did not do so, and on November 12, 2021 LAFD placed him off-duty without pay for failure to meet a condition of employment. Everett Decl., ¶16; Kilpatrick Decl., ¶2.

On January 5, 2022, Kilpatrick was charged with failing to comply with the Ordinance as required on October 20, 2021. AR 14. On February 17, 2022, Kilpatrick was served with notice of the Board of Rights hearing for the complaint. Kilpatrick Decl., ¶3. Also on February 17, 2022, Kilpatrick was served at his home with notice that he had been temporarily relieved of duty, effective February 8, 2022. Kilpatrick Decl., ¶4.

LAFD Captain Mullen subsequently informed Kilpatrick via email that the Board of Rights hearing was continued to March 2, 2022. Kilpatrick Decl., ¶5, Ex. C. The Board of Rights gave the parties until February 24 to file any motions, stipulations, and witness lists. Ex. C.

On February 17, 2022, the first day of the Board of Rights, Kilpatrick not being present, the Board was continued to March 2, 2022. AR 11. On March 2, 2022, Kilpatrick again not being present, the Fire Chief imposed the penalty of removal in a written memorandum. AR 28, 31.

Based on these facts, Kilpatrick contends that he had the right to hold his position and receive the compensation attached to that position until he was found guilty after a Board of Rights hearing. Yet, he was removed from his position and taken off the payroll on November 12, 2021, over four months before the Board of Rights was dissolved and Chief Terraza terminated his employment on March 2, 2022. Pet. Op. Br. at 6.

Kilpatrick, relying on advice of his prior counsel, contends that he had a reasonable excuse for refusing or failing to appear – to wit, he had been relieved of duty and taken off the payroll on November 12, 2021. As such, he was no longer amenable to orders from LAFD management. Additionally, based on the advice of his prior counsel, Kilpatrick contends that the City did to proceed in a manner required by law because the Board of Rights proceedings were illegal and violated due process, providing further reasonable excuse for refusing or failing to appear. Kilpatrick Decl., Ex. C.

Kilpatrick’s argument concerning his refusal to appear before the Board of Rights is spurious. The fact that he had been relieved of duty does not mean that he can refuse to appear before the Board of Rights, and he cites no authority to the contrary. As stated ante, he cannot contest his dismissal after his failure to appear before the Board of Rights.

Kilpatrick also claims that he is entitled to be reinstated to his position of Battalion Chief with back pay commencing on November 12, 2021 and continuing until the date he began to receive his pension. Pet. Op. Br. at 6-7. He argues that there is no provision in the City Charter to take a member off the payroll before he or she is served with a personnel complaint. He was entitled to receive the compensation attached to his position until he failed to appear at his Board of Rights hearing without reasonable excuse and the Fire Chief removed him from his position. This did not happen until March 2, 2022, almost four months after he had been placed off duty without pay. Stopping Kilpatrick’s pay in November 2021 violated City Charter section 1060 and he is entitled to pay during that period. Reply at 4-5.

Kilpatrick raises an issue of statutory interpretation. City Charter section 1060(b) states that “following pre-disciplinary procedures otherwise required by law, the Fire Chief may (1) temporarily relieve from duty any member pending a hearing before and decision by a Board of Rights on any charge or charges pending against the member….” This provision does not say one way or the other about whether the relief from duty is with or without pay. The plain words relief from duty implies, however, that the member has no work to perform and is unpaid. As such, it should be distinguished from an administrative leave which may or may not be with pay.

To the extent that City Charter section 1060(b)(1) is ambiguous, the court may result to rules of statutory construction. See MacIsaac v. Waste Management Collection and Recycling, Inc., (2005) 134 Cal.App.4^th 1076,1082-83. One rule of construction is to read section 1060 in context with other provisions around it. Section 1060(b)(2) provides that the Fire Chief may suspend the member for a period not to exceed 30 days “with loss of pay”, subject to the right of the member to appear before a Board of Rights. Where the member elects a Board of Rights hearing, the suspension shall automatically become a temporary relief from duty pending the Board of Rights decision. Id. Under section 1060(b)(2), a suspension with loss of pay automatically converts to a relief from duty pending a Board of Rights hearing. Such a relief from duty must be without pay; it would not make sense for a suspension without pay to automatically convert to a relief from duty with pay. Read in context, City Charter section 1060(b)(1)’s relief from duty also is without pay.

As a result, Kilpatrick’s relief from duty on November 12, 2021 was proper so long as it occurred “[a]fter following predisciplinary procedures otherwise required by law”. City Charter §1060(b)(1). This reference to “precisciplinary procedures” can only mean Skelly requirements.

The City argues that Skelly compliance for Kilpatrick was not initially required. On October 28, 2021, the Mayor instructed all department heads to issue a notice to each employee who was unvaccinated and had not filed an exemption in 24 hours, or 48 hours if they request time to consult with a union representative. Kilpatrick failed to meet the condition of employment by October 20, 2021 and was sent home. He also did not sign the Notice stating that he would be fully vaccinated or file an exemption by December 18, 2021. Opp. at 11.

The City argues that this failure to meet a condition of employment was not a relief from duty under City Charter section 1060 because Kilpatrick had time to fix the failure and come into compliance. When he did not, the Department moved forward with the Skelly process. Kilpatrick was given a full Skelly hearing on December 21, 2021 where he was aware of the charges and had an opportunity to be heard. Once Kilpatrick selected his Board of Rights on February 8, 2022, the Fire Chief was entitled to and did officially relieve Kilpatrick of duty pending a finding by the Board of Rights. Opp. at 11-12.

The City’s argument flies in the face of City Charter section 1060(b), which requires compliance with pre-disciplinary procedures before a member can be temporarily relieved from duty. Kilpatrick’s failure to sign the Notice stating that he would comply with the vaccination mandate or file an exemption by December 18, and that he would submit to the required testing in the interim, was the reason why he was placed off duty on November 12, 2021 without pay for failure to meet a condition of employment. Everett Decl., ¶16; Kilpatrick Decl., ¶2. This cannot be described reasonably as anything other than relief from duty under City Charter section 1060(b). As a result, the Skelly pre-disciplinary process was required before Kilpatrick lost pay.

The City notes that Skelly “evolved from a nonemergency situation” and thus is not direct authority for the issue of an unprecedented public health emergency due to COVID-19. See Mitchell v. State Personnel Bd. (1979) 90 Cal.App.3d 808, 813. The City argues that its Skelly process in this emergency situation satisfied the City’s obligations pending the full Skelly hearing on December 21, 2021. Unvaccinated employees were given notice that City records showed them to be unvaccinated and not in compliance with the vaccination mandate. The employee was given 48 hours and an opportunity to respond that the City records were erroneous. Kilpatrick had this opportunity from November 9 until November 12, 2021. Opp. at 12.

The court has no difficulty with the City’s decision to send Kilpatrick home on November 12, 2021. There was an emergent situation and the City’s policy choice was that non-compliant City employees could not remain in the workplace. That does not mean the employee should not be paid, however. There is no reason why the City could not have paid Kilpatrick until it could hold a Skelly meeting. The parties do not present evidence of what was presented to Kilpatrick on December 21, but it could not have been extensive or difficult to put together. The City controlled the timing of the Skelly meeting and was not entitled to take Kilpatrick off the payroll until there was compliance.

The remedy for a Skelly violation is back pay, not a dismissal of the charges or reinstatement after termination. See Barber v. State Personnel Bd., (1999), 18 Cal.3d 396, 403. In this case, Kilpatrick is entitled to back pay for the pertinent period of November 12 until December 21, 2021.[6]

Kilpatrick contends that the Ordinance initially provided that, when a City employee declined to be vaccinated against COVID on religious grounds, weekly testing would be required and would be provided at no cost to the employee. On October 26, 2021, the City adopted the Enabling Resolution that gave effect to the LBAFO’s non-compliance consequences that non-vaccinated employees must undergo twice-weekly testing on the employee’s own time and paid for by payroll deductions from the employee’s paycheck in the amount of $260 per pay period. Pet. Op. Br. at 8.

Kilpatrick argues that the Enabling Resolution conflicts with both the Ordinance and section 2802, which requires employers to reimburse employees for all expenses incurred in the discharge of their duties. Because the City mandated twice-weekly virus testing for its employees in the discharge of their duties, the City was and is obligated to shoulder the cost. Pet. Op. Br. at 8.

Kilpatrick notes that the City is prohibited from requiring its employees to waive the benefits of section 2802. Labor Code §2804. Nor may the City retaliate against an employee who refuses to participate in an activity that would result in violation of section 2802. See Labor Code §1102.5(c). Kilpatrick seeks a traditional writ of mandate to “compel the performance of an act which the law specially enjoins” and directing the City to rescind its Enabling Resolution. Kilpatrick admits that he may not personally benefit from the writ of mandate but contends that he has standing as a resident of the City to compel the City to adhere to the law. Pet. Op. Br. at 9.

The City responds that, while Kilpatrick claims that he objected to the LBAFO’s COVID-19 testing requirement, he offers no evidence that he ever did so prior to his discharge. City employees were required to be vaccinated or, alternatively, apply for an exemption. Those that applied for an exemption were guaranteed not to have to pay for their testing costs. Kilpatrick, who belatedly sought a religious exemption would have been covered by this policy. His assertion that he is protected by section 2802 is unsupported. Opp. at 10.

The City adds that section 2802 only would require reimbursement of testing fees charged to a City employee. Edwards v Arthur Anderson, (2008), 44 Cal.4^th937, 977 (section 2802 codifies public policy favoring the indemnification of employees by their employers and protects “employees from suffering expenses in direct consequence of doing their jobs). Kilpatrick presents no evidence that he ever paid or was charged for testing and his reliance on section 2802 lacks merit. Opp. at 11.

In reply, Kilpatrick clarifies that he is not claiming that section 2802 precluded his discharge or that he relied on it to prevent his discharge. While the Petition alleges that the City’s vaccination scheme violates the law, he never claimed that was the reason he declined to be vaccinated. Reply at 8-9.

Kilpatrick argues that his traditional mandamus claim seeks to prevent the City from requiring non-vaccinated City employees to bear the cost of twice weekly testing is unlawful under section 2802. The City implicitly admits that its invoicing employees for testing scheme is illegal yet has failed to amend the Ordinance and its Enabling Resolution. Kilpatrick recognizes that he may not personally benefit from such a writ because he did not participate in the mandatory testing program, but he seeks to compel the City to adhere to the law. He seeks a remedy that the City be required to bear the cost of twice weekly testing of non-vaccinated employees and refrain from taking adverse action against City employees who refuse to participate in an activity that would result in violation of section 2802. Reply at 4, 9.

Kilpatrick notes that the City’s opposition suggests that the testing invoices will be held in abeyance until an exemption claim is decided and, where an exemption is denied, “until a determination is made on the applicability of Labor Code section 2802 under these circumstances.” Girard Decl., ¶9; Opp. at 2. He was fired for not following the City’s illegal scheme and asks for a writ of mandate prohibiting this practice should the City no longer hold this plan in abeyance. Reply at 8.

The court will assume that section 2802 bars the City from requiring its employees to pay for their own COVID-19 testing in compliance with the Ordinance and the LBAFO. The problem with Kilpatrick’s argument is that he lacks standing to contest the City’s testing policy where it has no application to him. Just as he has no beneficial interest in setting aside his discharge because of his retirement, he has no beneficial interest in setting aside the City’s COVID-19 employee testing policy because he is no longer an employee. See Friends of Oceano Dunes, Inc. v. San Luis Obispo County Air Pollution Control Dist., supra, 235 Cal.App.4th at 962. Moreover, a prohibition against the City charging its employees for COVID-19 testing would require injunctive relief. Yet, the Petition does not seek any remedy of an injunction, let alone a specific injunction against such charges.

The Petition is granted in part. A writ shall issue requiring the City to pay Kilpatrick full compensation and benefits for the period of November 12 until December 21, 2021. In all other respects, the Petition is denied.

Kilpatrick’s counsel is ordered to prepare a proposed judgment and writ of mandate, serve them on counsel for the opposing parties 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 March 2, 2023 at 9:30 a.m.

[1] Kilpatrick seeks judicial notice of a trial court statement of decision dated September 30, 2022 in Los Angeles Police Protective League v. City of Los Angeles (“Police Protective League”), LASC No. 21STCV39987. Pet. RJN. Respondents object because the opinion is not a final judgment on the merits and cannot be used for collateral estoppel. RJN Opp. at 3. While Respondents are correct, the request is granted solely to provide context. Evid. Code §452(d).

Respondents seek judicial notice of a trial court ruling on the demurrer to the second amended complaint in Firefighter4Freedom Foundation v. City, Case No. 21STCV34490. Opp. RJN. The request is granted for the same reasons. Evid. Code §452(d).

[2] On January 23, 2023, Kilpatrick filed a request for judicial notice of the City Administrative Office (“CAO”) letter to the City Council concerning the proposed discontinuance of COVID-19 testing of unvaccinated employees under the Ordinance. The CAO request is not an official act of the City and the request for judicial notice is denied. Evid. Code §452(c).

[3] Although the Petition argues that Kilpatrick was not afforded an investigative interview under the MOU, his moving papers do not reflect this issue and the City correctly notes that it has been abandoned. Opp. at 11.

[4] The City defends the religious exemption request issue, noting that both Kilpatrick and the City were entitled to the Board of Rights process. Kilpatrick’s last-minute filing for a religious exemption on February 28, 2022, more than three and a half months after he was served with the 48-hour notice on November 9, 2021, does not qualify as a request for reasonable accommodation under California law. See, e.g., Wilkins v. Community Hospital of the Monterey Peninsula, (2021) 71 Cal.App.5^th 806, 829 (“Since reasonable accommodation is always prospective, an employer is not required to excuse past misconduct even if it is the result of the individual's disability”) (citation omitted). The City concludes that it was not required to process Kilpatrick’s untimely request for a religious exemption after his failure to meet a condition of employment occurred three and a half months earlier and after the Board of Rights process had commenced. Opp. at 14.

This is an argument that the religious exemption is irrelevant to the Board of Rights hearing, and that it lacks authority to hear the exemption request. It may be that Kilpatrick was required to pursue a religious exemption through the City before it was presented to the Board of Rights and that his request came too late after the Board of Rights had begun. The court need not decide this issue because Kilpatrick does not dispute his discharge. It may also be that the Board of Rights did not have jurisdiction to hear a religious exemption request even if it was denied by the City. The City presents no authority on the Board of Rights’ jurisdiction for the court to decide this issue.

[5] A City Council implementing resolution attached to the memorandum reported that “out of a total of 53,168 City employees, 37,524 employees have reported their status as ‘fully vaccinated,’ 1,250 employees have reported their status as ‘partially vaccinated,’ 4,872 employees have reported their status as ‘not vaccinated,’ 1,839 employees have reported their status as ‘decline to state,’ and 7,683 employees have failed to report their status.” Girard Decl., Ex. F. Reply at 5.

[6] Although Kilpatrick’s Petition alleges that the December 21, 2021 Skelly meeting was non-compliant, he offers no proof of the same. Therefore, December 21 is the date at which Kilpatrick’s lost pay ends.