Judge James C. Chalfant, Case 22STCP03008 2023-04-18 Tentative Ruling

Petitioner Jeannine Bedard (“Bedard”) seeks a writ of mandate compelling Respondents City of Los Angeles (“City”) and Los Angeles Police Department (“LAPD” or “Department”) Chief of Police Michel Moore (“Chief of Police”) to set aside her termination from the, restore her position with backpay, and remove the disciplinary penalty from her record.

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

Petitioner Bedard filed the Petition against Respondents on August 10, 2022. The operative pleading is the Frist Amended Pleading (“FAP”) filed on December 8, 2022, alleging causes of action for traditional and administrative writ of mandate. The FAP alleges in pertinent part as follows.

Bedard was a Sergeant II with 24 years of service with LAPD. On August 26, 2021, the City passed Ordinance Number 187134 (the “Ordinance”) which required every City employee to either vaccinate against COVID-19 or request medical or religious exemption by October 19, 2021. During meet and confer sessions with the Los Angeles Police Protective League (“LAPPL”), Respondents proposed that employees who claim an exemption either agree to a $260 bi-weekly salary cut or be invoiced for employer-mandated COVID-19 testing while awaiting their exemption or appeal determination.

On October 28, 2021, Respondents unilaterally imposed their “Last, Best and Final Offer Over Outcomes for Non-Reporting and Non-Compliance” (“LBFO”) on LAPPL and its members/employees. The next day, LAPPL filed a verified complaint and petition for writ of mandate in LASC 21STCV39987 (“LAPPL Lawsuit”). The LAPPL Lawsuit alleged violations of Labor Code section 2802 (“section 2802”) and Government (“Govt.”) Code section 3500, et seq., because the City withheld necessary information about its testing contractor during the meet and confer process. LAPPL sent this petition to all its members and Bedard relied on its analysis of the legal issues in her Petition.

On November 10, 2021, Respondents served Bedard with a Complaint Adjudication Form and Notice of Proposed Disciplinary Action for failure to conform with the Ordinance’s requirements. Although the form gave Bedard until November 15, 2021 to respond, the Chief of Police signed a Complaint and Relief from Duty, Proposed Removal, Suspension, or Demotion form (“Complaint”) directing Bedard to a Board of Rights hearing. The Complaint alleged failure to comply with the requirements of the new Ordinance and identified termination as the proposed penalty.

After a hearing on July 13, 2022, the Board of Rights found Bedard guilty of the charge. The Board of Rights also found that Bedard had not been given enough time to respond to the charges and ordered that LAPD award her backpay. On July 20, 2022, Moore signed the order finalizing Bedard’s termination, but a handwritten note stated that LAPD would not award backpay as the Board of Rights ordered.

The trial court in the LAPPL Lawsuit ruled that the Ordinance’s requirement that employees must pay for employer-mandated COVID-19 testing violates section 2802(a). Labor Code section 2804 invalidates provisions of an agreement that waive employee protections such as those under section 2802(a).

Govt. Code section 12940(a) also prohibits discharge of an employee, or discrimination in compensation, because of religious creed. The City discriminated against Bedard and other unvaccinated employees with medical concerns or religious beliefs when it required COVID-19 testing for unvaccinated employees but not vaccinated employees. LAPD also only gave Bedard 48 hours to comply with the change of employment conditions, which was unreasonable.

Bedard did not receive an investigatory interview pursuant to Memorandum of Understanding (“MOU”) 24-22 section 10.0, Article 10.2, and was not advised of the nature of the investigation. Bedard was also denied due process and 30 days to file a written response. These actions violated Skelly v. State Personnel Board of Rights, (“Skelly”) (1975), 15 Cal.3d 194, and Govt. Code section 3306.

Bedard seeks a writ of mandate compelling the City to (1) set aside her termination and restore her position with backpay; (2) set aside the Board of Rights’ finding of guilt; and (3) remove the record of this charge or penalty from her record. Bedard also seeks attorney’s fees and costs.

On August 12, 2022, Bedard served Respondents City and the Chief of Police with the Petition and Summons.

On November 29, 2022, the court sustained Respondents’ demurrer to the Petition with leave to amend.

On December 8, 2022, Bedard filed the FAP and electronically served both Respondents.

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

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

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Bixby, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Rights of Board of Rightsers, (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 Rights of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“In exercising its independent judgment, the trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-51; Bank of America v. State Water Resources Control Board of Rights, (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 Rights of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

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

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Board of Rights, (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 at 217-18. The penalty should be upheld if there is “any reasonable basis to sustain it”. County of Los Angeles v. Civil Service Com. of County of Los Angeles, (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 of Rights, (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 Rights of Medical Examiners, (1972) 26 Cal.App.3d 961.

POBRA is located at Govt. Code section 3300 et seq and sets forth a list of basic rights and protections which must be afforded to all peace officers by the agencies that employ them. Bagett v. Gates, (1982)32 Cal.3d 128, 135. The various procedural protections of POBRA “balance the public interest in maintaining the efficiency and integrity of the police force with the police officer’s interest in receiving fair treatment.” Jackson v. City of Los Angeles, (2003) 111 Cal.App.4th 899, 909.

“No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.” Govt. Code §3304(b). A “‘punitive action’ means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” Govt. Code §3303. The administrative appeal instituted by a public safety officer under POBRA shall be conducted in conformance with rules and procedures adopted by the local public agency. Govt. Code §3304.5.

Govt. Code section 3304(b)’s limited purpose is to afford peace officers subject to punitive action an opportunity to establish a formal record of circumstances surrounding his or her discipline and attempt to convince the employing agency to reverse its decision through evidence that the charges are false or through mitigating circumstances. Binkley v, City of Long Beach, (1993) 16 Cal.App.4th 1795, 1806. While the precise details of the procedure required by Govt. Code section 3304(b) are left to local law enforcement, the administrative appeal requires at a minimum an “independent re-examination” of an order or decision made, conducted by someone who has not been involved in the initial determination. Caloca v. County of San Diego, (2002) 102 Cal.App.4th 433, 443-44.

Generally, LAPD officers cannot be suspended, demoted, or removed from service except for good cause upon a showing of guilt before a Board of Rights. City Charter §1070(a). An exception to this rule permits the Chief of Police to demote a police officer or suspend him or her for up to 22 days following appropriate pre-disciplinary procedures. City Charter §1070(b). Any such action is subject to pre-disciplinary procedures required by law and a Board of Rights hearing if sought by the police officer. Id. This procedure, where the police officer elects to have a Board of Rights hearing, is commonly referred to as an “opted” hearing. A Board of Rights hearing occurring after the Chief of Police demotes or imposes less than a 22-day suspension satisfies the requirement of an administrative appeal under Govt. Code section 3304(b). Jackson v. City of Los Angeles, (1999) 69 Cal.App.4th 769, 780; Holcomb v. City of Los Angeles, (1989) 210 Cal.App.3d 1560, 1566.

If the Chief of Police intends a penalty greater than a 22-day suspension, including termination, the matter is automatically referred to a Board of Rights hearing. This procedure, where the police officer has no choice in the referral decision, is commonly called an “ordered” Board of Rights hearing. There is a one-year limitations period for termination, suspension, and demotion. City Charter §1070(d).

Whether the Board of Rights hearing is opted or ordered, it is a de novo evidentiary hearing. City Charter §1070(f). The Board of Rights consists of two officers with the rank of captain or above and one civilian. City Charter §1070(h). LAPD has the burden of prove by a preponderance of evidence. City Charter §1070(l). Upon a finding of guilt, the Board of Rights recommends discipline, ranging from reprimand to removal. City Charter §1070(n). The Chief of Police has discretion to impose a lesser penalty than recommended, but not a greater penalty. City Charter §1070(p). The officer can ask the Chief of Police for a rehearing at any time within three years. City Charter §1070(t).

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. §2802(a). The purpose of this provision is to protect employees from suffering expenses in direct consequence of doing their jobs. Edwards v Arthur Anderson, (“Edwards”) (2008), 44 Cal.4th 937, 952-52. It shows a legislative intent that duty-related losses ultimately fall on the business enterprise, not on the individual employee. Id. at 952 (citation omitted).

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.

The Skelly, or Employee Investigation Review, process is the last opportunity for an employee to discuss an investigation against her, rebut the charges, or present additional evidence before the commanding officer submits recommendations for disposition of a personnel complaint. AR 1098 (MOU §10.3). The employee shall be given a reasonable time to consider and prepare a Skelly response. AR 1098 (MOU §10.3). The employee shall have 30 calendar days from service of the Employee Investigation Review to submit a response if the employee so chooses. AR 1098 (MOU §10.3).

The City’s 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 City Council. LAAC §8.27. The City 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 City 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 the Ordinance, which added Article 12 to LAAC Chapter 7, Division 4. AR 691-696, 741-746 (LACC §4.700 et seq). The Mayor approved the Ordinance on August 18, 2021, and it became legally effective on August 24, 2021. AR 746, 753.

The Ordinance states that, to protect the City’s workforce and the public, 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. AR 692, 742 (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. AR 742 (LAAC §4.701(b)). An employee who qualifies for an exemption must still report their vaccination status. AR 742 (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. AR 743 (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. AR 743 (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. AR 743 (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. AR 743 (LAAC §4.702(b)).

On October 14, 2021, the City adopted a resolution entitled “Resolution Implementing Consequences For Non-Compliance With the Requirements of Ordinance No. 187134” (the “Resolution”). AR 752-55. The Resolution explained that the City had declared a local emergency due to COVID-19 since March 4, 2020. AR 700, 722. Compulsory vaccination has long been recognized as the gold standard for preventing the spread of contagious diseases. AR 700, 722. As of October 18, 2021, out of a total of 53,168 City employees, 37,524 employees reported their status as “fully vaccinated,” 1,250 as “partially vaccinated,” 4,872 as “not vaccinated,” and 1,839 as “decline to state.” AR 753. The remaining 7,683 employees had not reported their status. AR 753.

A total of 5,388 City employees had filed Notices of Intent to request a medical or religious exemption from the mandatory vaccination requirement. AR 753. The City would be subject to significant financial burden if it had to provide a weekly testing option for all unvaccinated City employees or place all unvaccinated City employees on paid leave while paying other employees overtime to cover labor shortages. AR 754.

Between August 18 and October 18, 2021, the CAO met and conferred with City labor organizations over the negotiable impacts of the Ordinance, including the consequences for non-compliance with the mandatory reporting and vaccination conditions of employment. AR 753. These negotiations had reached a stalemate, and the City could not wait to address the imminent threat to public health and safety. AR 755. The City therefore implemented the terms and conditions in the City’s LBFO for the consequences of non-compliance with the Ordinance. AR 755.

Under the LBFO, any employee who is not fully vaccinated and does not submit proof of vaccination or request for exemption by October 20, 2021 is non-compliant. AR 705, 757. That employee will be issued a Notice of Mandatory COVID-19 Vaccination Policy Requirements (“Vaccination Notice”). AR 705. The Vaccination Notice will instruct the employee to submit proof of full compliance, meaning full vaccination, by December 18, 2021. AR 705. The employee must sign the Vaccination 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. AR 705. The employee shall reimburse the City $260 per pay period for four tests at $65 each via payroll deduction. AR 706, 758.

On October 28, 2021, the Mayor issued a memorandum to all department heads to implement the LBFO. AR 697-98. They were directed to issue the Vaccination Notice to all unvaccinated employees who had not filed for an exemption. AR 698. The employee would have either 24 or 48 hours to review the Vaccination Notice, depending on whether the employee asked for time to review it with a union representative. AR 698. If the employee signs the Vaccination Notice, the mandatory testing as outlined in the LBFO shall begin immediately after the Personnel Department distributes the protocols, with testing currently scheduled to begin during the week of November 7, 2021. AR 698. Any employee who refused to sign the Vaccination Notice would be placed off duty without pay pending service of a Skelly package with a Notice of Proposed Separation. AR 698. Sworn employees would be subject to applicable Board of Rights proceedings. AR 698.

On September 24, 2021, the City contracted with PPS Health, LLC (“Bluestone”) to track the health status of employees who had applied for exemptions from the vaccination requirement on medical or religious grounds. AR 762-827. The contract identified Pejman Salimpour, MD (“Salimpour”) as Bluestone’s representative for formal service and communication. AR 767-68.

On October 28, 2021, LAPPL sent the CAO and the City a formal demand that the City not issue a notice of impasse as to negotiations over how the City should implement the Ordinance and the consequences for noncompliance with it. AR 833. LAPPL explained that it recently received information that the contract between the City and Bluestone reflected either a conflict of interest or criminal and unethical conduct. AR 833. This led LAPPL to believe that the City did not negotiate in good faith which COVID-19 testing company would be the sole authorized vendor of mandatory testing for unvaccinated employees. AR 833. Additionally, LAPPL demanded that the City cease and desist from unilateral implementation of the Ordinance without exhausting collective bargaining impasse procedures because it could not demonstrate an emergency within the meaning of Govt. Code section 3504.5(b) and/or LAAC section 4.850(b). AR 834. Further, the City’s requirement for twice weekly testing at the employee’s expense violated section 2802. AR 834.

On November 5, 2021, LAPD Commander Donald Graham (“Graham”) served Bedard with the Vaccination Notice. AR 709-11. The Vaccination Notice afforded a final opportunity for City employees to become fully vaccinated by December 18, 2021 prior to appropriate corrective action being taken against them. AR 709. It required Bedard to certify that she is not fully vaccinated and has not filed an intent to seek medical or religious exemption to the Ordinance’s vaccination mandate. AR 709. In signing the Vaccination Notice, she agreed to be fully vaccinated by December 18, 2021. AR 709. Prior to the deadline, she agreed that she would undergo COVID-19 testing twice a week through the City’s vendor on her own time and would reimburse the City $260 per pay period for four $65 tests. AR 709.

If Bedard did not follow these conditions and was not fully vaccinated by December 18, 2021, the City would immediately place her off-duty without pay pending pre-separation due process procedures. AR 709. It would also serve her with written notice of proposed separation from City employment. AR 709. The City would abide by all applicable City Charter provisions if she proceeded to a Board of Rights hearing for lack of fitness for duty due to failure to meet the condition of employment to be fully vaccinated. AR 709.

In lieu of vaccination, Bedard could choose to resign or retire from LAPD. AR 710. If she became vaccinated or the vaccination order was lifted after her resignation or separation, Bedard could be eligible for rehiring in the same classification as she was before separation, provided that she passed all required reinstatement background processes. AR 710.

The Vaccination Notice also stated that if Bedard failed to sign or disagreed with any part of it, LAPD would place her off-duty without pay pending pre-separation due process procedures. AR 710. The Department also would serve her with written notice of proposed separation from City employment. AR 710. Bedard did not sign and caused Graham to write “Refused” in the signature block. AR 355, 711.

On November 7, 2021, Bedard emailed Graham that she had decided not to take the vaccine. AR 712. She explained that her daughter suffered an adverse reaction to the Pfizer vaccine, and she did not want to take the same risk. AR 712.

On November 10, 2021, Chief Woodyard served Bedard with a Complaint Adjudication Form and Notice of Proposed Disciplinary Action (“Notice of Proposed Discipline”). AR 366, 994-95. The Notice of Proposed Discipline gave Bedard until November 15, 2021 to respond orally or in writing. AR 995. It also stated that a signature only meant that Bedard received the materials, not that she agreed with the proposed discipline. AR 995. Bedard caused Chief Woodyard to write “Refused” in the signature block. AR 366-67, 995. However, she did acknowledged by initialing the Notice of Proposed Discipline that she had received a copy of investigation materials, was informed of her right to representation, and intended to submit a response. AR 995.

On November 16, 2021, LAPD served Bedard with a Complaint and Relief from Duty (“Complaint”) alleging as follows: On or about November 7, 2021, you, while on duty, failed to sign and/or comply with the requirements of the [Vaccination Notice], a condition of employment.” AR 1. Bedard was temporarily relieved from duty, effective November 17, 2021, pending a Board of Rights hearing. AR 1.

At the December 27, 2021 hearing, the Board of Rights denied as irrelevant Bedard’s offer of a November 22, 2021 LAPPL letter to the City’s Personnel Department that voiced concerns about the contract with Bluestone for COVID testing. AR 646, 648. The Board of Rights also rejected a November 15, 2021 LAPPL letter to the City Ethics Commission on the same subject. AR 648-49. It agreed with LAPD that any connection between the COVID testing contract Bedard’s case was a stretch. AR 649. The Board of Rights further rejected a supplementary declaration filed in the LAPPL Lawsuit. AR 650.

Brian Taft (“Taft”) is a Senior Personal Analyst II with six years at LAPD. AR 103. LAPD and the City use a “Snow” system to track the vaccination status of employees. AR 120-121. The Snow system in turn takes information from the Bluestone system into which LAPD employees enter their results from biweekly tests. AR 120. Bluestone forwards any vaccination documents to Snow. AR 120.

Per section 4.703(d) of the City’s policy, the CAO monitors status reports and progress of reported vaccination statuses and discusses such information with labor organizations. AR 121. The CAO updates the policy as necessary to achieve the City’s goal of a fully vaccinated workforce. AR 121.

Taft’s office has received 300 requests for medical exemptions and 2,600 requests for religious exemptions, but it has not yet processed any. AR 187. The office is still accepting exemption requests. AR 188.

Graham was Commander of the Transit Services Group at the relevant time. AR 238. Because several officers were on long-term sick leave from COVID-19, the secretary of the Transit Services Group Captain was responsible for tracking vaccination status in the division. AR 238.

Graham was asked to go visit the secretary’s desk and give his own vaccination card to her to record. AR 238. LAPD’s central support team, possibly the Personnel Division, received an updated roster on a regular basis. AR 238. The roster would also show which employees claimed they were not vaccinated, including Bedard. AR 240. He learned through meetings with the Chief of Police and senior staff that vaccination is a condition of employment. AR 244-45.

Bedard did not sign her Vaccination Notice. AR 242. Graham did not ask why, and they just left it as Bedard having personal reasons not to sign. AR 242-43. Bedard understood that she had a religious or medical exemption as an option and the City would evaluate her request for either exemption. AR 242-43. If it was denied, she could appeal to the Chief of Police as the City department head. AR 243.

Bedard later sent Graham an email explaining that she would not take the vaccine because of her daughter’s distress after she took the Pfizer vaccine. AR 244.

Season Nunez (“Nunez”) was responsible for the investigation of Bedard. AR 331. LAPD commanding officers met with the City Attorney to discuss how to conduct investigations into employee non-compliance with the City’s vaccination requirements. AR 331-32. The investigators received direction that employees who fail to comply would be assigned to their home pending due process procedures. AR 332-33.

There were two notices. AR 332. The first told employees that, if they did not apply for exemptions, they must vaccinate by December 18, 2021, which was the LBFO. AR 332. The second notice applied to those who applied for an exemption. AR 32. Flow charts were created for command to help with what was going to happen and how to serve the notices. AR 332.

The direction to investigators was that they would not interview employees served with the notices because the notices were clear on what was required. AR 332. Nunez simply would draft complaints to send to commanding officers for adjudication. AR 332.

Nunez was not present for conversations between Graham and Bedard. AR 335. She only received the Vaccination Notice showing that Graham signed that he had served Bedard on November 5, 2021 at 1:00 p.m. AR 335. This notice would have told Bedard that she had until December 18, 2021 to be vaccinated per the LBFO. AR 341-42.

On February 14, 2022, the Bluestone testing requirements for unvaccinated employees changed from twice a week to once a week. AR 347.

Bedard has been a LAPD officer since April 1998. AR 348-49. Her last assignment was as a LAPD Liaison Transit Officer, acting as LAPD’s liaison with the Metropolitan Transit Authority. AR 349.

On October 29, 2021, LAPPL sent an Bedard and other employees an email recommending that they not submit documentation to Bluestone until further notice. AR 373-75. Bedard explained that testing was not an issue for her, but the vaccination was. AR 374.

On November 5, 2021, Graham served Bedard with the Vaccination Notice. AR 350. She reviewed it and understood the requirements listed in the document. AR 351-52. The Vaccination Notice said that Bedard agreed to abide by all terms and conditions therein and authorize the City to deduct $260 from her paycheck per pay period for testing. AR 380. Although Graham presented Vaccination Notice’s terms as conditions of employment, Bedard could not accept them until she “went through what I needed to go through” because of what she heard from the LAPPL. AR 351.

Graham gave her the option not to sign and have him write “refused” instead. AR 352. Bedard did not agree to what was being asked in the Vaccination Notice, primarily the payment for testing. AR 352. She was being asked to sign a document that she knew LAPPL had issues with. AR 352. She also already knew from emails and her own research that there were issues as well. AR 352. The testing was the main issue for her, and she could not understand why she would be charged $560 for testing if LAPD was offering free testing to everyone else. AR 352-53, 359.

Graham explained that if Bedard had him write “refused,” it meant that she refused the contents of the document but was still served. AR 353-54. She had him write “refused” because she objected to paying for testing and submitting the tests to Bluestone, not signing the Vaccination Notice itself. AR 353-55. If the notice said that she would not be charged for testing or submit information into a third-party vendor, she would have agreed to the Vaccination Notice. AR 354, 356. She understood that taking the vaccine, paying for testing, and putting her information into a Bluestone account were conditions of employment. AR 357.

When one of her four daughters received the vaccine and had an adverse effect, Bedard started paying to have her see a specialist. AR 359. These visits continued through March 2022. AR 360. When offered a chance to file a medical exemption, Bedard chose not to because it was her adult daughter who had a physical medical condition and not Bedard herself. AR 362. She did not apply for a religious exemption because even with either exemption, she would still have to pay for testing. AR 362, 641. If LAPD had said that Bedard would not have to pay for the testing if she had a medical or religious exemption, she would have given more thought to applying for one of them. AR 362.

When Bedard received the Notice of Proposed Discipline (AR 994-95), Chief Woodyard gave her the option to have him write “refused” in the employer’s signature block on the second page. AR 366. She told him to do it because this was the same process as the Vaccination Notice. AR 366. In her mind, there was no point signing something with which she did not agree. AR 366. Chief Woodyard said that the decision to write “refused” would not affect anything. AR 366-67.

Sergeant Ron Pickering (“Pickering”), an LAPD representative at the hearing, served Bedard with the Complaint relieving her of duty. AR 620. She relinquished her weapon, badge, and identification. AR 624. Her last paycheck was on December 29, 2021. AR 624.

Bedard is two years away from being eligible to collect a full pension. AR 361, 393. If the Board of Rights sustains her removal, her pension goes down to 47%. AR 361. She has had a stellar career, and her boss has said he would rehire her in a heartbeat if necessary. AR 361.

Bedard knows of a lot of unvaccinated people who are not being tested. AR 361. LAPD tried to charge her and other non-vaccinated employees for testing that everyone now gets for free. AR 363-64. To date, no employee has been charged for testing. AR 364. If that was the case when Bedard received the Vaccination Notice, she could have stayed at her job. AR 371. After they found out that it was illegal to charge for testing, and no one had been charged, she requested to come back to work multiple times and every request was denied. AR 626. Employees now need only test once a week with no medical supervision. AR 363.

She has no problem following rules when they make sense to her, and she would never violate a law if she believed it was actual law that she would be comfortable following. AR 363, 391. As a supervisor, her training has taught her that she should bring something that seems wrong or illegal to someone’s attention instead of staying quiet. AR 626. She would hope that LAPD rewards that attitude, but it did not in her case. AR 626. She did not try to cause trouble. AR 631. She only tried to raise an issue on which every supervisor privately agreed with her. AR 631.

The choice LAPD gave unvaccinated employees was to sign the Vaccination Notice or go home. AR 631. When employees are put in a corner over their livelihood, Bedard does not consider that a real choice. AR 631. There are times when superiors cannot expect everyone to get along and an employee has to introduce commonsense into the situation. AR 631.

As a sergeant, Bedard has conducted hundreds of personnel investigations herself. AR 381. She has never heard of an investigation that directed an employee to a Board of Rights hearing without any interviews or without interviewing the accused employee. AR 382. During Graham’s communications with Bedard, he never told her that LAPD intended to use her responses to questions in a punitive manner. AR 383. No one informed her of her right to representation or that she was the subject of an investigation. AR 383.

The Vaccination Notice includes a section that states that if the unvaccinated employee becomes vaccinated, or the vaccination order is lifted, after the employee resigns or separates from City employment, the employee could be eligible for rehiring in the same classification as prior to the separation. AR 401-02. This applies to a sworn employee like Bedard only if the employee passes all required reinstatement background processes. AR 403.

The Board of Rights asked if Bedard would do anything differently now given the changes with respect to the ability to go to an independent vendor for testing. AR 642. Bedard replied that if she could do use her own insurance, she would go back to work, test, and continue to wear a mask. AR 642-43.

Detective Edward Yoon (“Yoon”) has been an employee of LAPD for 28 years. AR 413. He is a Detective Supervisor with the Officer Representation Section (“ORS”) since 2013. AR 413. ORS represents employees in disciplinary matters and related Internal Affairs interviews. AR 413. It also assists employees with disciplinary processes such as the Skelly process and appeals. AR 413-14. ORS is part of LAPD, and Yoon often has to correct other officers’ perceptions that ORS employees is part of LAPPL. AR 462, 465.

Yoon has handled a few hundred cases while at ORS. AR 414. Yoon also teaches procedural policy as part of the officer representation portion of the month-long supervisor school that all LAPD officers or detectives must attend before promotions to a supervisor role. AR 454. The Board of Rights accepted Yoon as an expert witness. AR 459.

LAPD will frame some type of allegation based on the complaint and let the employee know the complaint against him or her before any interview. AR 421. Based on the interview, LAPD then reframes the allegation based on the interview for review by the employee’s watch commander. AR 422. The watch commander, who did not partake in the investigation, will review the statements, allegations, and evidence to decide what the proposed penalty should be. AR 422.

The watch commander drafts a letter of transmission which goes to the captain. AR 422. The captain receives the letter of transmission and usually agrees and signs it. AR 422. The captain or the employee’s supervisor will let the employee know about the allegation and proposed penalty. AR 422. The employee receives the Skelly package, which includes all the documents LAPD used to adjudicate the recommendation. AR 422, 424. This includes the investigation, the letter of transmission, any interviews, videos, and other evidence used to recommend the penalty. AR 424.

The employee has 30 days to review the investigation and provide a written or oral response. AR 422. The employee’s response can be what things the investigation missed, whether the paraphrased statement is wrong, or what the employee admits he or she did wrong. AR 423. Although due process and Skelly itself may not provide a 30-day period, the MOU between LAPD and LAPPL does. AR 426, 428. The only time he has seen the response period shortened is when LAPD is too close to the one-year statute of limitations to adjudicate the complaint and provide the final penalty. AR 429.

After the response period ends, the captain sends the letter of transmission to the Bureau, and the Bureau sends it to the chief. AR 422.

Bedard’s Notice of Proposed Discipline gave her until November 15, 2021, or only five days, to provide a Skelly response. AR 435. Nothing in the record supports this shorter timeline. AR 435. The Chief of Police made up his mind and submitted and signed his final adjudication on the same day, November 10, 2021, that LAPD provided the Skelly material to Bedard. AR 435. Her November 7, 2021 email could not qualify as a Skelly response because LAPD did not provide her with the investigation materials until November 10, 2021. AR 470, 510.

When asked if an employee need not be interviewed, Yoon said that he could not fathom such a scenario. AR 468-69. LAPD interviews an accused employee even when there is video evidence of the allegation. AR 469.

When an employee is temporarily relieved from duty pending a Board of Rights hearing, the employee shall not lose compensation until 30 days after service of the charge. AR 520-21. That is the same period in which the employee can provide a Skelly response. AR 521. If the Department stops pay before the employee’s receipt of the Skelly package, that would violate City Charter section 1070. AR 522.

The LAPD is constantly updating policies. AR 632. An email dated May 17, 2022 is not relevant to a termination that occurred six months earlier. AR 632. As an example, although LAPD has disallowed use of force techniques over time, it does not revisit cases prior to those changes and recategorize the use of force in them as out of policy. AR 632. The relevant law is the policy that was in effect at the time that LAPD framed the allegations against Bedard. AR 632.

On July 13, 2022, the Board of Rights deliberated and made findings. AR 673. The City Council passed the Ordinance on August 18, 2021. AR 674. Common sense and Black’s Law Dictionary both dictate that a City ordinance has the full force and effect of law once lawfully passed. AR 674. The Board of Rights did not have jurisdiction to determine if the Ordinance was valid. AR 674.

The Board of Rights unanimously found that Bedard failed to comply with the mandated requirements of the Ordinance. AR 674. The only exemptions are for medical reasons or religious beliefs. AR 674. Employees who qualify for medical or religious exemptions may be subject to weekly testing, unless they are working remotely. AR 674.

Bedard did not apply for an exemption and did not work remotely, so she either had to get vaccinated or seek an exemption and submit to regular testing. AR 675. She did neither. AR 675.

The Mayor directed that a City employee who refuses to sign the Vaccination Notice shall be placed off-duty without pay pending service of a Skelly package with notice of proposed separation. AR 675. When Bedard chose not to sign the Vaccination Notice, she violated a condition of employment. AR 675-76.

Bedard asserted that she was unwilling to be vaccinated because her daughter had an adverse reaction to the vaccine, and that she also might have an adverse reaction. AR 676. There was no evidence suggesting that the risk for Bedard would constitute a medical exemption. AR 676.

As for Bedard’s assertion that she refused to bear the cost of testing, section 2802 only applies to prevent private and not public entities from charging employees for mandatory testing. AR 676. Therefore, it was inapplicable to her case. AR 676.

Bedard also argued that the Bluestone testing contract was an unlawful no-bid contract and that the cost of testing was prohibitive and burdensome. AR 676. These were issues in the LAPPL Lawsuit but were beyond the Board of Rights’ jurisdiction. AR 677.

Although the issue of testing reimbursement has changed, the Board of Rights’ only concern is the policy in effect at the time of the violation. AR 677.

The Board of Rights agreed with Bedard that LAPD violated her Skelly due process rights when it removed her from her position on November 17, 2021 without an opportunity to respond to the charge. AR 677.

As to discipline, Bedard had over a hundred commendations through her career. AR 679. A lot of these were from citizens who, unlike LAPD, do not give commendations as a routine matter. AR 679-80. Her only negative record was a traffic collision during a car chase in December 2006. AR 680. Bedard explained that they were chasing a bad guy and clipped a wall. AR 680.

While these commendations showed that she was an excellent employee, the facts of the case were clear. AR 686. Bedard was aware of the mandated vaccination requirements for all City employees but chose not to vaccinate or file for an exemption. AR 686. When her commanding officer presented those requirements and the Vaccination Notice, she declined to adhere to the order and would not even sign the Vaccination Notice. AR 686. The Ordinance is unambiguous that this is a minimum requirement for all City employees. AR 686-87. The Board of Rights had no choice but to uphold the termination of Bedard’s employment. AR 687.

Because there was merit to Bedard’s argument that LAPD violated her Skelly due process rights, the Board of Rights awarded backpay from the November 10, 2021 discipline to the date the decision became final after the Board of Rights hearing. AR 687-88.

The Board of Rights’ July 13, 2022 written decision reiterated that Bedard was guilty of the single count against her but that she was owed backpay due to Skelly violations. AR 1168. The Board of Rights imposed Bedard’s discipline as removal from her position, effective December 17, 2021. AR 1168.

On July 20, 2022, LAPD sent a modified order to Bedard signed by the Chief of Police. AR 1168. The modified order retained the part of the Board of Rights’ order that removed Bedard from her position as a LAPD Sergeant, effective December 17, 2021. AR 1168. It also had a handwritten notation that the Board of Rights did not have the authority to order backpay, and that LAPD would not comply. AR 1168.

On September 30, 2022, the trial court in the LAPPL Lawsuit filed its statement of decision. RJN Ex. A. The statement of decision explained that on October 28, 2021 LAPPL sent a written demand to the City to refrain from declaring an impasse in the negotiations. Ex. A. LAPPL also asked the City not to implement the consequences for non-compliance with the Ordinance until the City exhausted statutory impasse procedures. Ex. A. The City nonetheless filed a notice of impasse and implemented the Resolution. Ex. A.

Pursuant to the LBFO, the Vaccination Notice sent by the City to unvaccinated employees requires them to acknowledge that, if they did not show proof of vaccination within the listed time frame, they would be placed off-duty without pay pending pre-separation due process procedures. Ex. A. The Vaccination Notice also said that the employees must undergo twice weekly COVID-19 testing through the City or its chosen vendor and would reimburse the City $260 per pay period for four $65 tests. Ex. A. The City and LAPD began deducting the cost of those tests from the paychecks of unvaccinated employees without an exemption. Ex. A.

The City argued that section 2802 does not apply to a chartered city like itself because the state constitution gives charter cities plenary authority over the compensation of municipal employees. Ex. A. The trial court rejected this argument because the reimbursement was not substitute for something the employees would otherwise need to acquire with personal resources. Ex. A. The City made a contract with a provider for exclusive services for testing and results reporting and this was a cost the City incurred to protect its workforce without negotiation with the employees at issue. Ex. A.

Employees necessarily incurred the cost of testing insofar as they had to either pay it, undergo vaccination, or apply for a medical or religious exemption as part of employment. Ex. A. The imposition of this fee violated section 2802. Ex. A.

The court would issue a writ of mandate enjoining the City from imposing the cost of required COVID-19 testing on unvaccinated employees. Ex. A. The writ would also compel the City to indemnify and reimburse unvaccinated employees who have paid such costs and hold them harmless for any costs of future testing. Ex. A.

Petitioner Bedard seeks a writ of mandamus compelling the City and LAPD to reinstate her to her position of sergeant and award her backpay or, in the alternative, award her backpay for a Skelly violation.

On July 13, 2022, the Board of Rights ruled that it had no jurisdiction to adjudicate the validity of the Ordinance requirement that all City employees to be vaccinated against COVID. The Board of Rights also ruled that the Notice of Vaccination’s requirement that Bedard pay for the testing did not violate section 2802, which applies to private entities, not public entities. AR 676. Finally, Bedard’s defense that the City’s testing contract with Bluestone was an unlawful no-bid contract and the cost of testing was prohibitive were the subject of the LAPPL Lawsuit and beyond the Board’s jurisdictional boundaries. AR 677.

The Board of Rights found Bedard guilty of the charge that, on or about November 7, 2021, Bedard, while on duty, failed to sign and/or comply with the Vaccination Notice. AR 674. Not only did Bedard refuse to be vaccinated or tested or seek an exemption, she chose not to sign the Notice of Vaccination. In doing so, she violated a condition of her employment. AR 675-76.

Bedard argues that the cost of City-mandated testing was a condition of the Vaccination Notice. AR 359. Yet, the CAO now has acknowledged that this requirement violated section 2802 and proposed that all City employees who used their own time and money to be tested under the compulsion of the Mayor’s October 28, 2021 directive be reimbursed. RJN Ex. B. Pet. Op. Br. at 14-15.

On May 17, 2022, LAPD’s Communications Division informed employees via email that unvaccinated employees could test with a third party if they first notified the Vaccination Mandate Task Force. AR 1158. The employee must upload PCR test results onto LAPD’s self-service portal within 72 hours of the test. AR 1158. Employees that chose to use a third-party vendor must test on their own time, are accountable for any cost, and are solely responsible for uploading their results. AR 1158.

On January 18, 2023, the CAO sent a memorandum to the City Council recommending a resolution to discontinue the COVID-19 testing requirements implemented pursuant to the Ordinance. RJN Ex. B. The CAO memorandum noted that, on February 11, 2022, the City’s EERC relaxed the LBFO’s testing requirements to address cost constraints. Ex. B. Although a decision was made to reduce the frequency of testing from twice to once a week, the City still spent millions to cover to cost of testing unvaccinated employees. Ex. B.

The CAO memorandum stated that, on October 1, 2022, the County stopped its surveillance-testing requirement for unvaccinated employees and replaced it with testing for exposure and when a symptomatic employee returns to work. Ex. B. EERC recommended that the City eliminate its own requirement and replace it with the County’s new testing infrastructure. Ex. B. The proposed Resolution’s recitals referred to the change in County policy to eliminate mandatory weekly COVID-19 surveillance testing requirements and acknowledged that the ruling in the LAPPL Lawsuit prohibited the City from charging employees for the costs of required COVID-19 testing. Ex. B.

The CAO memorandum’s proposed Resolution would end the LBFO’s mandatory testing requirements for unvaccinated City employees, even as modified by the trial court’s statement of decision on the LAPPL Lawsuit. Ex. B. The proposed Resolution stated that the City reserved the right to reimpose the requirements if the COVID-19 situation evolved. Ex. B. The proposed Resolution would also reimburse any City employee who incurred costs for mandatory testing or used their own time to undergo required testing. Ex. B.

On February 14, 2023, the City Council adopted a Resolution ending the mandatory testing requirements for unvaccinated City employees. RJN Ex. C. The recitals and provisions of the Resolution are almost identical to the CAO’s proposed Resolution. Ex. C. The only difference is that, while the Resolution stated that the City would reimburse any City employee who incurred costs related to the LBFO’s mandatory testing requirements, it did not state that employees would be compensated for the use of their own time to undergo required testing. Ex. C.

The fact that the City has now stopped mandatory testing of unvaccinated employees is irrelevant to this case. The policies of government agencies concerning COVID have evolved over time as the pandemic has changed and as new health information is provided to them. As the Board of Rights found (AR 677), the only issue is whether Bedard was guilty of violating her conditions of employment on the November 7, 2021 date charged.

The Ordinance provides that all employees must be fully vaccinated for COVID-19, or request an exemption, and report their vaccination status no later than October 19, 2021. AR 692, 742 (LAAC §4.701(a)). The Ordinance makes vaccination a condition of City employment unless the employee is approved for a medical or religious exemption. AR 742 (LAAC §4.701(b)).

Bedard apparently reported her vaccination status by October 19, 2021, that she was unvaccinated and did not apply for a medical or religious exemption. AR 240.

The City Council’s October 14, 2021 Resolution implemented the terms and conditions in its LBFO for the consequences of non-compliance with the Ordinance. AR 700, 722, 755. Under the Resolution, any employee who is not fully vaccinated and does not submit proof of vaccination or request for exemption by October 20, 2021 is non-compliant. AR 705, 757. That employee will be issued a Vaccination Notice instructing the employee to submit proof of full vaccination by December 18, 2021, which he or she must sign. AR 705.

Graham served Bedard with the Vaccination Notice on November 5, 2021. AR 709-11. The Vaccination Notice afforded Bedard a final opportunity to become fully vaccinated by December 18, 2021. AR 709. It required Bedard to certify that she is not fully vaccinated, has not filed an intent to seek medical or religious exemption, and that she would be fully vaccinated by December 18, 2021. AR 709. Prior to the December 18 deadline, she would undergo COVID-19 testing twice a week through the City’s vendor on her own time and would reimburse the City $260 per pay period for four $65 tests. AR 709. If she did not follow these conditions and was not fully vaccinated by December 18, 2021, or if she failed to sign or disagreed with any part of the Vaccination Notice, LAPD would place her off-duty without pay pending pre-separation due process procedures. AR 710. It would also serve her with written notice of proposed separation from City employment. AR 710. Bedard did not sign the Vaccination Notice and asked Graham to write “Refused” in the signature block. AR 354-55, 711.

Bedard contends that the City had a duty to refrain from violating its obligations under section 2802 and from refusing to indemnify its employees for the cost of testing as a necessary expenditure incurred as a direct consequence of its directions. As a result, the City unlawfully made Bedard’s continued employment contingent upon her written agreement in the Vaccination Notice to pay for COVID testing, which is illegal. In fact, any agreement to waive rights protected by section 2802 is void under Labor Code section 2804. Therefore, mandamus lies to compel the City to set aside her discharge. Pet. Op. Br. at 5.

Bedard notes that she testified that she did not sign the Vaccination Notice presented to her on November 5, 2021 because it required her to pay for testing. She was being asked to pay for her own testing at work “where I know no one else was being charged for testing….So it just didn’t make any sense to me, it really didn’t.” AR 359. Bedard had been paying for her daughter’s treatment for an adverse COVID vaccination from June 2021 to the present. AR 359-61. If returned to work, she would be okay with testing if she were not required to pay for it. AR 371. Pet. Op. Br. at 12.

Bedard also testified that she objected to providing information to Bluestone. AR 354, 356. She was aware that LAPPL had issues with Bluestone. AR 356.[2] By the date of the hearing, the City had withdrawn its requirement that COVID testing be done by Bluestone and Bedard said that she would agree to be tested using her own insurance if she were allowed to return to work. AR 642-43. Pet. Op. Br. at 12.

The City argues that Bedard’s reliance on section 2802 is meritless. In Stoetzl v. Dept. of Human Resources, (2019) 7 Cal.5th 718, 752, the California Supreme Court reaffirmed that “[g]enerally…provisions of the Labor Code apply only to employees in the private sector unless they are specifically made applicable to public employees.” (citations omitted). Opp. at 9. The City is a public entity and section 2802 does not expressly include public entities. The City therefore is not subject to section 2802. The City also argues that the trial court’s statement of decision in the LAPPL Lawsuit is not binding and not a citable authority. Furthermore, a city can require costs of material to be borne by the employees. In re Work Uniform Cases v. State of California, (2005) 133 Cal.App.4^th 328. Opp. at 9, n. 3Opp. at 9.

Bedard replies that the City, despite knowing about the trial court’s September 30, 2022 decision in the LAPPL Lawsuit, inexplicably claims that Bedard’s reliance on section 2802 is misplaced. To Bedard’s knowledge, the City has not challenged the trial court’s statement of decision. In fact, the CAO has proposed a City Council Resolution discontinuing mandatory COVID testing for unvaccinated employees that essentially confirms that section 2802 applies to the City.[3] As such, it is inequitable, and perhaps misleading, for the City to assert otherwise. Reply at 4-5.

The court agrees with Bedard that the City Council appears to have at least acquiesced to the reasoning of the trial court in the LAPPL Lawsuit. See RJN Ex. C. 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. This means that Bedard’s refusal to test with Bluestone twice weekly and reimburse the City $260 per pay period for four $65 tests did not violate her conditions of employment. However, the illegality under section 2802 does not affect the Vaccination Notice’s other two conditions of employment. See AR 709.

Bedard’s refusal to agree to be vaccinated by December 18, 2021 violated her conditions of employment. She did not seek a medical or religious exemption. Instead, on November 7, 2021, Bedard emailed Graham that she had decided not to take the vaccine. AR 712. She explained that her daughter suffered an adverse reaction to the Pfizer vaccine, and she did not want to take the same risk. AR 712. This email was a direct violation of her conditions of employment. As the City argues (Opp. at 5), Bedard opposed vaccination policy to “make a stand” based upon her personal opinions and her actions were insubordinate.

Bedard’s refusal to sign the Vaccination Notice also violated her conditions of employment. Graham discussed the contents of the Vaccination Notice with Bedard, and she understood them. AR 351-52. She understood that taking the vaccine, paying for testing, and putting her information into a Bluestone account all were conditions of employment. AR 357. Yet, she refused to sign. AR 352.[4]

Bedard testified that Bedard did not agree to that which was asked in the Vaccination Notice, primarily the payment for testing. AR 352. She was being asked to sign a document with which she knew LAPPL had issues. AR 352. The testing was the main issue for her, and she could not understand why she would be charged $560 for testing if LAPD was offering free testing to everyone else. AR 352-53, 359.

Bedard also testified that she had Graham write “refused” because she objected to paying for testing and submitting the tests to Bluestone, not signing the Vaccination Notice itself. AR 353-55. If the notice said that she would not be charged for testing or submit information into a third-party vendor, she would have agreed to the Vaccination Notice. AR 354, 356.

The court concludes that Bedard could not have meant this last point in her testimony -- that she would have signed the Vaccination Notice if she were not charged for testing. Doing so would mean that she would agree to be vaccinated by December 18, 2021, which is completely inconsistent with her rationale for not being vaccinated, both in her email to Graham and her testimony. Bedard could only have meant that she would not dispute the Vaccination Notice’s testing requirement if she could have free testing. But Bedard would not have signed the Vaccination Notice even in that circumstance because she would be agreeing to be vaccinated.

As the City contends (Opp. at 6-7), Bedard made plain in her testimony that her attitude toward the City’s policy was about the vaccination, not testing costs. She testified that she has, “no problem complying and following the rules when they make sense to me,” implying that she will not follow rules with which she does not agree. AR 363. She emphasized that she “took a stance by the grace of God,” and stated that “not to tout that I am this saint, [but] what I am saying is that we can’t all just go along to get along, sometimes we have to bring some commonsense back in.” AR 631. This testimony was all about vaccination, not testing.[5]

Although she does not so argue, Bedard could contend that the illegality of the testing requirement infected the rest of the Vaccination Notice and permitted her to refuse to sign it. However, the court believes that Bedard seized on section 2802 issue in her testimony before the Board of Rights as a matter of convenience. Tellingly, she did not object to Graham on November 5, 2021 that she did not want to pay for testing, and her November 7, 2021 email to Graham says nothing about the cost of testing. It makes no sense for Bedard to make a personal choice that she did not want to be vaccinated and then rely on the cost of testing as the reason she did not sign the Vaccination Notice. The court concludes that Bedard’s testimony about the cost of testing was a post hoc makeweight that was not her real reason for refusing to sign the Vaccination Notice on November 5, 2021.

The City also is correct (Opp. at 9-10) that the express language of section 2802 only creates a duty for an employer to indemnify an employee for costs; it does not require that costs be advanced or made available for free.[6] See Edwards, supra, 44 Cal.4^th at 952 (section 2802 codifies policy that favors indemnification of employees for claims and liabilities from the employees’ acts within the course and scope of their employment). Under the plain language of section 2802, the City can mandate employees to periodically test and then be required to indemnify their cost. Bedard presents no evidence that she intended to or did incur any testing costs before December 18, 2021.

Bedard violated her conditions of employment on November 7, 2021 when she refused to sign the Vaccination Notice and refused to be vaccinated. Because the court assumes the mandatory testing requirement was illegal, she did not violate the conditions of her employment by refusing to be tested and reimburse the City through her paycheck.

In considering the penalty, the Board of Rights found that Bedard was a “highly qualified and excellent employee.” AR 686. It reviewed Bedard’s personnel records, noting that she had received over a hundred commendations, many of which were from citizens. The only negative thing in her file was an on-duty vehicle accident in December 2006, which she said occurred “when we were chasing a bad guy.” AR 679-80. Because she had not complied with the vaccine mandate, the Board of Rights concluded that it was “left with no alternative but to uphold her removal from employment with the Department.” AR 687.

In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly, supra, 15 Cal.3d at 217-18.

Bedard contends that the penalty of dismissal was excessive and disproportionate to her conduct in declining to agree to the City’s illegal requirement to pay for City-mandated testing to keep her job. Reply at 8. She argues that her conduct was her failure to sign the Vaccination Notice that had not been negotiated with her and contained at least one illegal provision. There is no evidence that her conduct resulted in harm to the public service. Nor is it likely that her conduct would be repeated because it is unlikely that the City’s Vaccination Notice with its illegal provision would ever be presented to her again. Pet. Op. Br. at 15.

Bedard mischaracterizes the reasons for her discharge, which are that she refused to be vaccinated and refused to sign the Notice of Vaccination, both of which were conditions of employment. Because they were conditions of her employment, any analysis of Bedard’s performance or qualifications as an employee is irrelevant. She did not meet the conditions and could not remain an employee.

Additionally, an analysis of the abuse of discretion issue weighs in favor of discharge. The City promulgated the vaccination policy as a means to deal with the COVID-19 pandemic. The harm to public service by an employee who refuses to vaccinate is self-evident. Her decision puts all other public employees, and the members of the public who deal with them, at risk.

The City also points out that Bedard refused to vaccinate because she had a personal objection to the City’s policy. She testified: “[I]t’s a choice they say we were given, sign the document or be sent home, to me, that’s not really a choice...so to be put in the corner like that, that’s not a choice, that’s their livelihood. I took a stance by the grace of God. I was given the opportunity to be able to stand strong in what I believe.” AR 631.

The City notes that Bedard cannot pick and choose which laws or work rules to follow based upon her own personal opinions, especially because she was a supervisor. This attitude is likely “to have a deleterious effect upon public service,” and is likely to cause “impairment or disruption of public service.” Blake, supra, 25 Cal. App. 3d at 550-51. Her actions simply were insubordinate. Opp. at 8.

Finally, there is a likelihood that such conduct will recur in the event of a renewed COVID pandemic, or another health pandemic where Bedard does not agree with the City’s remedy. While the City’s use of the same Vaccination Notice is unlikely, it is likely that the City would require employee vaccination. Yet, there is no reason to believe that Bedard would change her mind and be vaccinated.

The essence of due process is notice and the opportunity to be respond. Horn v. County of Ventura, (1979) 24 Cal.3d 605, 612. The Board of Rights hearing satisfies the administrative appeal requirements set forth in POBRA. See Gonzalez v. City of Los Angeles, (2019) 42 Cal.App.5th 1034, 1047. As for pre-disciplinary due process, Skelly holds that the minimum pre-discipline safeguards are written notice of the proposed disciplinary action, the reasons therefor, a copy of the charges and written material upon which the action is based, and the right to respond within a reasonable period of time. 15 Cal.3d at 194.

Yoon’s undisputed expert testimony was that, after an investigation, the watch commander, who did not partake in the investigation, reviews the statements, allegations, and evidence to decide that the proposed penalty should be. AR 422. The watch commander drafts a letter of transmission which goes to the captain. AR 422. The captain usually agrees and signs the letter of transmission. AR 422.

The captain or the employee’s supervisor lets the employee know about the allegation and proposed penalty. AR 422. The employee receives the “Skelly package,” which includes all the documents used to adjudicate the recommendation. AR 422, 424. This includes the investigation, the letter of transmission, any interviews, videos, and other evidence used to come to a recommendation for the penalty. AR 424.

The employee then has 30 days to review the investigation and provide a written or oral response. AR 422. Although due process and Skelly may not provide a 30-day period, the MOU between LAPD and LAPPL does. AR 426, 428. After the response period ends, the captain sends the letter of transmission to the Bureau and the Bureau sends it to the chief. AR 422.

Yoon opined that the Notice of Proposed Discipline served by Chief Woodyard on November 10, 2021 gave Bedard until November 15, 2021, or only five days, to provide a Skelly response. AR 435, 994-95. Nothing in the record supports this shorter timeline. AR 435. On the form, Bedard checked that she had received a copy of the investigative materials, was informed of her right to representation, and intended to provide a response. AR 995. Bedard’s November 7, 2021 email to Graham could not qualify as a Skelly response because LAPD did not provide her with the investigation materials until November 10, 2021. AR 470, 510. On the same day, the Chief of Police signed his final adjudication of the Complaint and directing Bedard to a Board of Rights hearing. AR 435. Bedard was served with the Complaint on November 16, 2021 and temporarily relieved of duty effective the next day, November 17, 2021. AR 1.

The Board of Rights found that the Department violated Bedard’s Skelly rights because the Department removed her from her position on November 17, 2021 without an opportunity to respond to the charge. AR 677, 687.[8]

The City argues that Bedard was afforded notice of the City’s vaccination policy and had a chance to respond, and her response was non-compliance. She was given the Notice of Proposed Discipline and then the Complaint with an opportunity to challenge the disciplinary action in the Board of Rights hearing. Opp. at 10.

This is insufficient. Skelly requires that the employee have the right to respond within a reasonable period after receiving written notice of the proposed disciplinary action, the reasons therefor, a copy of the charges and written material upon which the action is based. 15 Cal.3d at 194. Assuming that Bedard received these materials with the Notice of Proposed Discipline – she denies that she did[9] – she did not have sufficient time to respond. She was given only five days, not the 30 days required by the MOU. In fact, she did not even have five days. The Chief of Police directed her to a Board of Rights hearing on the same day, November 10, 2021, that she was served with the Notice of Proposed Discipline. As Bedard points out, City Charter section 1070(b) permits the Chief of Police to relieve an officer from duty after “pre-disciplinary procedures otherwise required by law”. Reply at 6.

All due process violations are subject to a harmless error analysis. People v. Woodward , (1992) 4 Cal.4th 376, 387; Krontz v. City of San Diego, (2006) 136 Cal.App.4^th 1126, 1141 (delay in notice and opportunity to be heard requires prejudice). “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. A reviewing court need not reverse an employer’s disciplinary decision for violation of its own internal procedures unless it resulted in actual prejudice to the employee. El-Attar v. Hollywood Presbyterian Medical Ctr., (2013) 56 Cal. 4th 976, 990-91. Opp. at 8.

The Skelly violation was not harmless error. The California Supreme Court has made plain that a constitutional vice lies in the imposition of discipline without complying with Skelly procedure. Barber v. State Personnel Board of Rights, (“Barber”) (1976) 18 Cal.3d 395, 402. The nature of such a violation makes any analysis of harmless error speculative, and probably unnecessary. It is sufficient for Bedard to show that the City violated her Skelly rights. In any event, had Bedard been given an opportunity to respond, there is a reasonable probability that she could have addressed the section 2802 issue, negotiated free testing or testing on work time, or even applied for an exemption.

The remedy for a violation of Skelly rights is back pay from the date that she the employee taken off the payroll until due process is satisfied through affirmance of discharge by administrative appeal. Barber, supra, 18 Cal.3d at 402. The Board of Rights ruled that Bedard was entitled to backpay from the date of her removal, November 10, 2021, to the time “discipline is validated by a full hearing and the decision becomes final.” AR 687-88.

The Board of Rights was wrong about the initial date. Although she was removed from duty effective November 17, 2021, she was still paid for some period. Bedard testified that her last paycheck was on December 29, 2021. AR 624. The court assumes that this paycheck date is for an earlier pay period as is customary for City and County employees. Bedard argues that she is entitled to backpay from December 17, 2021, to July 20, 2022. Pet. Op. Br. at 13. Absent objection from the City that these dates are wrong, the court agrees.[10]

Petitioner Bedard was properly discharged but the City violated her Skelly rights. A writ will issue directing the City to provide her with backpay from December 17, 2021, to July 20, 2022. In all other respects the Petition is denied.

Bedard’s counsel is ordered to prepare a proposed judgment and writ, serve them on Respondents’ 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 25, 2023 at 9:30 a.m.

[1] Bedard requests judicial notice of (1) the trial court’s statement of decision in the LAPPL Lawsuit (RJN Ex. A), and (2) a letter from the City Administrative Officer (“CAO”) to the City Council, dated January 19, 2023, with a proposed resolution to discontinue COVID-19 testing requirements for unvaccinated employees pursuant to the Ordinance (RJN Ex. B). In reply, Bedard asks the court to judicially notice City Council File No. 21-0921, reflecting a resolution passed on February 14, 2023 to discontinue COVID-19 testing requirements for unvaccinated employees pursuant to the Ordinance (RJN Ex. C).

The City objects that RJN Exhibit A is not a final judgment on the merits for purposes of collateral estoppel, is not dispositive of any of the issues in this case and is irrelevant. RJN Obj. at 7-8. This is true. However, the statement of decision is relevant to the City’s subsequent actions. See post. The request for judicial notice is granted. Evid. Code §452(d).

The City objects to the CAO’s letter (RJN Ex. 2) under Evid. Code section 452(h) because Bedard misstates its contents, fails to provide sufficient information to be able to take judicial notice, and it is irrelevant because it was generated after the Board of Rights’ decision on July 13, 2022, and after Bedard filed her Petition. RJN Obj. at 9.

The CAO’s letter is relevant because it discusses whether the Ordinance violates Labor Code section 2802. However, the CAO’s letter is not an official act unless it is part of the legislative history for subsequent City Council action. The City Council’s February 14, 2023 Resolution (RJN Ex. C) is that action. Therefore, both Exhibits 2 and C are judicially noticed. Evid. Code §452(b).

The City also moves to strike the Declaration of Jeannine Bedard. Traditional mandamus is unavailable where there has been a hearing required by law and administrative mandamus applies. Additionally, the City is correct that the declaration does not adequately authenticate the podcast of Chief Moore. The motion to strike the declaration is granted.

The City also moves to strike portions of Bedard’s opening brief. Bedard’s brief consists of argument and the court need not address whether the argument is supported by evidence. The City’s motion to strike portions of Bedard’s brief is denied.

[2] On October 28, 2021, LAPPL, the union representing LAPD employees of the rank of sergeant and lieutenant, sent a letter to the City objecting to the contract with Bluestone due to issues of conflicts of interest and criminal or unethical conduct involving City officials. AR 833. In a follow-up letter, LAPPL voiced objection to the no-bid contract, noting that Bluestone’s “representative” was Dr. Pejman Salimpour, a Fire and Police Pension Board of Rights Commissioner. AR 768. Pet. Op. Br. at 8. These facts are irrelevant to this case. Bedard makes no showing that she objected to Bluestone before her termination or that the City’s contract with Bluestone was unlawful.

[3] As stated ante, the City Council adopted the CAO’s recommendation in a February 14, 2023 Resolution.

[4] The City also relies on Bedard’s refusal to sign the Complaint on November 10, 2021. Opp. at 5. Unlike the Vaccination Notice, Bedard’s signature on the Complaint was not a condition of employment.

[5] The court agrees with the City that, if the only dispute was the cost of testing as Bedard now claims, the prudent way to handle the situation would have been to cooperate by getting vaccinated and following the testing protocol while the issue of costs was being negotiated and litigated. Opp. at 6. Bedard replies that nothing was being negotiated with LAPPL as negotiations had ceased once an impasse was reached. That was the reason why the issue was being litigated in the LAPPL Lawsuit. Reply at 5. True, but Bedard could have agreed to be vaccinated and then followed the testing requirement while objecting to the deduction from her paycheck.

[6] It is possible under California’s labor policy that an appellate court has held that a city must advance costs and not merely reimburse them under section 2802, but Bedard cites no authority for that proposition.

[7] Per the Chief of Police’s order, Bedard could not raise a Skelly violation before the Board of Rights. Even if the Chief of Police was correct, and the Skelly issue is not part of administrative mandamus, Bedard has made a traditional mandamus claim which addresses the issue.

[8] Yoon also testified that LAPD frames an allegation based on the complaint and lets the employee know about the complaint before any interview. AR 421. Based on the interview, LAPD then reframes the allegation for review by the watch commander. AR 422. He could not fathom a scenario in which a Department employee was not interviewed. AR 468-69. LAPD interviews an accused employee even when there is video evidence of the allegation. AR 469. Bedard also testified that she has conducted hundreds of personnel investigations herself and has never heard of an investigation that directed an employee to a Board of Rights hearing without interviewing the accused employee. AR 381-82.

There is no due process or Department requirement that Bedard was entitled to an interview as part of the disciplinary process. Bedard cites no statute, case law, MOU, or a Department rule that requires an investigative interview. There was no due process violation on this issue.

[9] Bedard testified that she had conducted hundreds of personnel complaint investigations and was not aware of any in which the accused officer was not advised that he was under investigation, that his statements could be used against him, and of his right to representation, before being ordered to face a Board of Rights. AR 381-82. She received none of these Skelly rights. AR 381, 383. Bedard’s testimony is partly inconsistent with her initials on the Notice of Proposed Discipline that she had been informed of her right to representation.

[10] Bedard also argues that the Chief of Police imposed a greater penalty than ordered by the Board of Rights in violation of City Charter section 1070(p), which states: “Within ten days of delivery of a certified copy of the decision of a Board of Rights of Rights to the Chief of Police, the Chief shall either uphold the Recommendation of the Board of Rights of Rights or may, at his or her discretion, impose a penalty less severe than that ordered by the Board of Rights of Rights, but may not impose a greater penalty.” Based on this provision, Bedard asks the court to find that the due process violation continues to the present day and to award her back pay consistent with that finding. Reply at 7.

The court cannot do so. The Chief of Police stated that the Board of Rights did not have authority to award Skelly relief and Bedard does not show that the Chief of Police was wrong. Even if he was wrong, and he imposed a greater penalty than the Board of Rights, the remedy is still an award of backpay through the final decision upholding her discharge.