Judge James C. Chalfant, Case Number: 23STCP03315, Date: 2025-04-08 Tentative Ruling

Petitioner Timothy Hamson (“Hamson”) seeks a writ of mandate compelling Respondents City of Los Angeles (“City”) and its Fire Department (“LAFD” or “Department”), Fire Chief Kristin Crowley (“Crowley”), Battalion Chiefs James Flores (“Flores”), Kenneth Miller (“Miller”), and Albert Ward (“Ward”), Captains Brandon Silverman (“Silverman”) and Glenn Baham (“Baham”); and Fire Special Investigator Michael Henderson (“Henderson”) (collectively, “City”) to set aside the decision imposing his four-month suspension.

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

On September 11, 2023, Hamson filed the Petition against Respondents, alleging causes of action for traditional mandamus and administrative mandamus. The verified Petition alleges in pertinent part as follows.

Hamson works for the City beginning on November 14, 1983. Pet., ¶1. In September 1986, Hamson started working for LAFD. Pet., ¶1. Beginning in 2015, Hamson worked in LAFD’s Rescue Maintenance. Pet., ¶1.

On August 16, 2021, the City passed Ordinance 187134 (the “Ordinance”) which required City employees to become vaccinated against COVID-19 unless they petitioned for and received a medical or religious exemption. Pet., ¶¶ 1, 7. The Ordinance also required all employees to report their vaccination status regardless of any exemption. Pet., ¶7. The Ordinance made these requirements conditions of employment with the City. Pet., ¶7.

On October 14, 2021, the City issued a Last, Best and Final Offer (“LBFO”) for collective bargaining negotiations relating to the Ordinance which included further conditions of employment for unvaccinated employees. Pet., ¶12. The LAFD union, United Firefighters of Los Angeles City (“UFLAC”), never agreed to the employment conditions set forth in the Ordinance or the LBFO. Pet., ¶12. Hamson alleges that the City specifically targeted firefighters for firing. Pet., ¶14.

The City Council resolution adopting the LBFO required LAFD to comply with City Charter section 1060 (“section 1060”) when taking action against unvaccinated firefighting personnel. Pet., ¶23. Section 1060(b) requires a Skelly[1] hearing before removing an employee from duty. Pet., ¶23. The same subsection restricts the Fire Chief from imposing a suspension greater than 30 days. Pet., ¶26. It further requires the Fire Chief to file a verified complaint signed under oath within five days of removing an employee from duty. Pet., ¶27. Failure to do so requires reinstatement. Pet., ¶27.

On October 28, 2021, Mayor Eric Garcetti (the “Mayor”) issued a memorandum stating that City employees would have until December 18, 2021 to comply with the COVID-19 vaccine-related employment conditions. Pet., ¶¶ 11, 12, 23.

On December 16, 2021, then Fire Chief Ralph Terrazas (“Terrazas”) suspended Hamson without pay for refusing to be vaccinated against COVID-19. Pet., ¶¶ 1, 23.

LAFD notified Hamson that his Skelly hearing would be conducted on March 10, 2022. Pet., ¶24. Between Hamson’s suspension and the notification of his Skelly hearing, LAFD changed its policy to assert that the City had no obligation to inform Hamson in advance of threatened disciplinary action. Pet., ¶24.

The Fire Chief failed to file a verified complaint within five days Hamson’s suspension, and still had not filed a verified complaint by at least May 9, 2023. Pet., ¶27. LAFD refused to reinstate Hamson despite this defect. Pet., ¶27.

After his suspension, Hamson sought an immediate hearing before a Board of Rights (sometimes, “Board”). Pet., ¶28. LAFD convened a Board of Rights hearing on December 5, 2022. Pet., ¶28. Hamson alleges the Board of Rights was biased with “preconceived marching orders on how to punish an employee who refused to vaccinate” as required. Pet., ¶32.

Prior to cases involving the COVID-19 vaccination requirement, LAFD’s practice was to continue to pay personnel who were under temporary relief from duty. Pet., ¶28. LAFD did not convert Hamson’s suspension without pay to a paid temporary relief from duty. Pet., ¶28. The Board of Rights rejected testimony concerning disparate treatment on this change of practice. Pet., ¶28.

On December 5, 2022, Hamson moved to dismiss the complaint against him on the grounds that it was untimely and unverified. Pet., ¶31. The LAFD advocates argued that the Board of Rights lacked jurisdiction to determine whether LAFD complied with due process protections. Pet., ¶31.

The Board refused to allow Hamson to call Assistant City Attorney Vivianne Swanigan (“Swanigan”), drafter of the Ordinance, as a witness. Pet., ¶33. Swanigan held animosity toward Hamson as a result of prior interaction. Pet., ¶33.

The Board indicated it consulted with legal counsel but refused to name that counsel. Pet., ¶33. This prevented Hamson from ensuring compliance with section 1060(j), under which Swanigan and Assistant City Attorney Jennifer Gregg (“Gregg”) could not consult with the Department’s advocates. Pet., ¶33. Swanigan and Gregg were actively advising City departments in defending other actions related to vaccination requirements. Pet., ¶33.

The Board of Rights did not allow Hamson to present evidence related to the safety, efficacy, or effects of the vaccine. Pet., ¶¶ 34-35, 37-38. The Board likewise did not allow Hamson to present evidence of disparate treatment. Pet., ¶¶ 34, 36-38. Conversely, the Department’s advocates were permitted to submit evidence of the Ordinance’s validity. Pet., ¶34. The Board also did not allow Hamson to submit evidence that he was “perceived to be disabled within the meaning of” the Americans with Disabilities Act and the Fair Employment and Housing Act. Pet., ¶34.

On June 6, 2023, the Board of Rights found that Hamson violated a condition of employment and proceeded to the penalty phase. Pet., ¶39. The Board then recommended Hamson’s reinstatement with imposition of a four-month suspension. Pet., ¶29. Fire Chief Crowley adopted the recommendation on June 14, 2023. Pet., ¶29.

Hamson seeks a writ of mandate compelling the City to set aside the decision imposing a four-month suspension, compensate him for all lost wages and benefits, including service credit and continuing health insurance coverage, with interest at the legal rate retroactive to December 16, 2021, and restore his seniority. Prayer, ¶¶ 1-3. Hamson also seeks an order compelling the City to comply with section 1060. Prayer, ¶4. Hamson further seeks an order compelling the City to cease and desist from discriminating or retaliating against him and to purge his personnel record of the actions against him. Prayer, ¶5. Finally, Hamson seeks attorney fees, costs, and further relief as the court deems proper. Prayer, ¶¶ 6-8.

On October 20, 2023, Hamson served Respondents Henderson, Baham, and Silverman with the Petition and Summons through substituted service. No other proofs of service are on file. However, all Respondents have appeared and filed an Answer.

On January 18, 2024, at the request of Hamson’s counsel, the court dismissed Flores, Miller, Ward, Silverman, Baham, and Henderson.

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 unless the matter is quasi-legislative.¿

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 court uses its independent judgment on matters affecting a public employee’s vested property interest in his employment. Barber v. Long Beach Civil Service Comm’n, (1996) 45 Cal.App.4^th 652, 658.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” 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 (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion.” Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Commission, (1975) 47 Cal.App.3d 224, 228. In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly v. State Personnel Board, (“Skelly”) (1975) 15 Cal.3d 194, 217218. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, (1972) 7 Cal.3d 507, 515. The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions. Cadilla v. Board of Medical Examiners, (1972) 26 Cal.App.3d 961.

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, (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. Id. 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). Cf. Krug v. Board of Trustees of California State University, (April 1, 2025) __ Cal.App.5^th __, 2025 DJDAR 2863, 2868 (Labor Code section 2082 does not apply to public employers).

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. §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. §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. §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. §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. §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. §1060(m). The Fire Chief may, at his or her discretion, impose a penalty less severe but may not impose a greater penalty. §1060(o).

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. §1060(s).

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. §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. §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. §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. §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. §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. §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. §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. §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. §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. §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. §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. §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. §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. §1060(m). The Fire Chief may, at his or her discretion, impose a penalty less severe but may not impose a greater penalty. §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. §1060(s).

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 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 March 6, 2020, the City Council ratified the Mayor’s Declaration of Local Emergency in which he declared that conditions of disaster or extreme peril to the safety of persons have arisen in the City as a result of the introduction of the novel coronavirus (“COVID-19”). Under LAAC section 4.27, the City Council is required to review the need for continuing the state of local emergency every 30 days. The City Council repeatedly renewed the Mayor’s March 4, 2020 Declaration of Local Emergency through February 1, 2023. Girard Decl., ¶¶ 2-3.

On July 28, 2021, the Mayor issued a directive instructing the City Administrative Officer (“CAO”) and the City’s Personnel Department to develop an implementation plan for a vaccination program covering all City employees, in consultation with the City’s labor unions. That same day, the City Council adopted a motion directing the CAO, the Chief Legislative Analyst, the Personnel Department, and the City Attorney, in consultation with labor representatives, to report back on a proposed policy to require that all City employees and contractors, as a condition of employment, be fully vaccinated for COVID-19 with the goal of protecting the City’s workforce and the public at large. Girard Decl., ¶4.

On August 16, 2021, the City passed the Ordinance, which added Article 12 to LAAC Chapter 7, Division 4. LACC §4.700 et seq. 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 14, 2021, negotiations between the City and its various employee unions resulted in the CAO’s release of the City’s LBFO regarding consequences for City employees’ non-compliance with the vaccine mandate. Girard Decl., p. 3, Ex L. Under the LBFO, employees who failed to comply with the vaccine requirement by the October 20, 2021 compliance deadline, and were not seeking a medical or religious exemption, would receive a notice granting them additional time to comply with the vaccine requirement until December 18, 2021, if they agreed to certain conditions, including twice weekly testing at their own expense. Employees who failed to show proof of full vaccination by close of business on December 18, 2021 were subject to corrective action -- i.e., involuntary separation from City employment for failure to meet a condition of employment. Employees with pending exemption requests were exempt from the vaccination requirement until their request was approved or denied, and they could remain in the workplace pending an exemption decision under conditions which included weekly testing. Testing for employees awaiting exemption request decisions would be invoiced at a rate of $65 per test, with such invoices held in abeyance until an exemption determination had been made. Employees with granted exemptions would not be charged at all and their invoices canceled, and invoices for employees with denied exemptions would be held until a determination on the applicability of Labor Code section 2802. Girard Decl., ¶¶ 6-9.

On October 26, 2021, the City adopted an Enabling Resolution implementing the City’s LBFO for the consequences of non-compliance with the Ordinance. Any employee who was not fully vaccinated and did not submit proof of vaccination by October 20, 2021 would be issued a Notice of Mandatory COVID-19 Vaccination Policy Requirements that would instruct the employee to submit proof of full compliance by December 18, 2021. The employee would be required to sign the notice and to test for COVID-19 twice per week on their own time, administered by the City or a vendor of the City’s choosing. The employee would have to reimburse the City $260 per pay period for four tests at $65 each via payroll deduction. Girard Decl., ¶11.[3]

On August 18, 2021, the City adopted the Ordinance requiring City employes to become vaccinated against COVID-19 and to report vaccination status. AR 269-74. The Ordinance required full vaccination by October 20, 2021 as a condition of employment. AR 270. The Ordinance allowed employees to petition for a medical or religious exemption, as determine on a case-by-case basis and documentation prescribed by the City would be required. AR 271-72. Exempt employees would be subject to weekly testing. AR 271.

On October 14, 2021, the City issued its LBFO regarding outcomes for non-reporting and non-compliance. AR 240.[4] UFLAC never agreed to the LBFO (AR 589), but the City nonetheless adopted it.

On October 20, 2021, the vaccination requirements became conditions of employment. AR 270. The vaccination requirements included both becoming fully vaccinated and reporting vaccination status. AR 194, 270.

On October 29, 2021, City employees who did not become vaccinated and had not filed for a medical or religious exemption were offered an extension to become fully vaccinated by December 18, 2021 if they agreed to submit to twice-weekly testing. AR 203.

On November 9, 2021, Hamson received a Notice and Order informing him that he was not in compliance with the vaccine requirements and giving him 48 hours to take steps toward compliance by activating his Bluestone account and signing the Vaccination Policy Requirements (“VPR”) agreement, unless he had applied for an exemption. AR 210. Hamson was warned that if he did not comply within 48 hours, he would be placed off-duty without pay pending disciplinary review for failure to meet a condition of employment. AR 210.

Hamson did not take the required steps to comply or apply for an exemption, and the City placed Hamson off-duty without pay on December 16, 2021 for non-compliance with the Ordinance and vaccination policy and for failure to meet a condition of employment. AR 187, 214.

On February 7, 2022, LAFD issued Hamson a Proposed Board of Rights notice. AR 174. The notice included a complaint and supporting documents and set Hamson’s Skelly hearing for February 23, 2022. AR 170-72, 174-89. The documents stated the date of the incident for purposes of the one-year statute of limitations in FPBRA as October 20, 2021. AR 181, 188.[5]

On March 23, 2022, LAFD issued a complaint charging Hamson with failing to meet the vaccination requirement, a condition of employment. AR 171, 216-22. The notice included a signed and verified form Complaint Against Member and a Notice of Discharge stating the penalty was “TBD” (to be determined). AR 216-22. Hamson was served with the complaint and supporting papers on March 27, 2022. AR 221. In compliance with section 1060(c), the Board of Fire Commissioners was notified of the verified complaint and service on Hamson on March 30, 2023. AR 224.

On May 9, 2022, Hamson sent an email to the Mayor, City Attorney Mike Feuer (“Feuer”), Controller Ron Galperin (“Galperin”), the Employee Relations Division, the City Council, Fire Chief Crowley, the Personnel Department, the Personnel Department’s General Manager, and Manuel Castaneda at LAFD stating that he had a religious exemption to the vaccine mandate. AR 262-67, 516. The email included the City’s Religious Exemption Form (sometimes, “Form”) as an attachment with the instructions redacted from the Form and without answering any of the questions on the Form that were intended to assist the City in evaluating his religious accommodation request. AR 264, 308-11. Specifically, Hamson redacted the portion of the Form stating: “To be eligible for this exemption, complete and submit both his form and a completed Religious Accommodation Certification Form. The granting of an exemption request will be based on the entirety of the application and not based on any single piece of information provided.” AR 307.

Also on May 9, 2022, Hamson sent a separate email to the Personnel Department with the same redacted instructions stating: “This hereby constitutes my request for a religious exemption from the forced vaccination ordinance.” AR 313.

The next day, May 10, 2022, the Personnel Department asked Hamson to upload his religious exemption documentation into Bluestone. AR 313. He did not do so.

Also on May 10, 2022, Hamson sent an email to employees in the LAFD Personnel Department and PSD, the Mayor, City Attorney Feuer, Fire Chief Crowley, Deputy Fire Chief Armando Hogan (“Hogan”), and various attorneys declaring he had a religious exemption from the Ordinance. AR 105. He did not include the Religious Exemption Form or any information to assist the City in evaluating his request. Id.

The Board of Rights considered the charge that Hamson failed to meet the conditions of employment established by the Ordinance to comply with the City’s COVID-19 vaccination requirement. AR 347.

During the hearing, Hamson attempted to introduce witnesses to testify to a variety of topics, including disparate impact and the medical value of the vaccine. AR 353. The Department objected to these witnesses and subjects. AR 319-22. Hamson also tried to challenge the validity of the LABF and the vaccine mandate, but the Board refused to consider such challenges. AR 800-06.

Battalion Chief Flores and Hamson’s counsel discussed whether use of the City’s Religious Exemption Form was necessary to claim a religious exemption. AR 841-43. Hamson’s attorney argued that the exemption procedure did not require the use of a form. AR 841.

A City witness (not identified by the parties) testified that the Religious Exemption Form was not available when the Mayor’s October 29, 2021 memorandum was issued but was available by the December 16, 2021 date Hamson was taken off duty. AR 772-73.

Hamson testified that there was nothing in the October 29, 2021 notice that said a particular exemption form was required. AR 621. He had heard that the CAO said an application for a religious exemption “on a cocktail napkin” would be accepted. AR 621.

Hamson testified that he did not upload his religious exemption because there was “[n]o way” he was signing on to Bluestone. AR 523. He claimed he did not need to follow any further instructions after submitting the incomplete Form. AR 523.

Hamson testified that, on March 8, 2022, an attorney named Curren submitted a “blanket email that Hamson characterized as a request for an exemption on his behalf. AR 919. The attorney said his Skelly hearing was unlawful. AR 950-51.[6]

Hamson testified that he partially filled out and modified the Religious Exemption Form when he sought an exemption in May 2022. AR 22-24. Hamson admitted that he did not follow the instructions on the Form and did not complete any of the questions seeking information. AR 308-11, 519-20. He testified that the entirety of the Form did not apply to him based “upon [his] oath to office” and his “right as a sovereign human being.” AR 519-20. He modified the Form because he was not asking permission; he was making a statement that he was exempt. AR 519-20. Hamson also objected to submitting his information to Bluestone. AR 313, 523.

The Board of Rights found Hamson guilty of failing to meet the vaccination requirement as a condition of employment. AR 1085-86. The Board imposed discipline of a four-month suspension without pay. AR 1098. The Board explained that Hamson attempted to submit a religious exemption more than once and accordingly chose a penalty of four months of suspension without pay. AR 1098-99. One Board member disagreed with the penalty and would have discharged Hamson. AR 1099-1102.

Knowing that the City’s Employee Relations Ordinance and the governing laws of the state afford employees the right to a representative of their own choosing in disciplinary matters and grievances, a number of Hamson’s Christian colleagues collectively united as Firefighters4Freedom under the leadership of John Knox (“Knox”), who is a God-fearing Christian. Hamson Decl., ¶1.

When Hamson discovered the City was considering implementing mandatory vaccinations, he determined that he opposed the COVID-19 vaccine on religious grounds because it would “hi-jack our God-given DNA”. Hamson Decl., ¶3. He also was concerned about any program that would demand vaccination with a COVID-19 shot, even though it only had experimental use authorization, had not been studied, and not been proven to be capable of addressing the COVID-19 virus which has since been labeled as an act of biowarfare designed to reduce the human population. Hamson Decl., ¶3.

Hamson discussed his concerns with his supervisor Deputy Chief Richard Fields (“Fields”) before the City mandated vaccinations. Hamson Decl., ¶3. Hamson further discussed his concerns with Captain Joe Hill (“Hill”) and Battalion Chief Peter Hsaiao (“Hsaiao”). Hamson Decl., ¶3.

Since at least March 2021, Hamson’s superiors, as well as many other LAFD members, were fully aware that Hamson insisted on a religious exemption in the event of any vaccination requirement. Hamson Decl., ¶4. Hamson also provided written documentation to Assistant City Attorney Swanigan of his request for religious exemption. Hamson Decl., ¶4. Due to various difficulties, including delay by the City in providing exemption forms, the City’s Chief Executive Officer indicated that any written notice, including on a cocktail napkin, would suffice to request an exemption based on sincere religious belief. Hamson Decl., ¶4.

Swanigan likely has a grudge against Hamson. Hamson Decl., ¶5. While in a previous position at LAFD, Hamson prevailed in an action against Swanigan for improperly disclosing his personnel file. Hamson Decl., ¶5. As a result, Hamson believes Swanigan intentionally prevented him from receiving a religious exemption from the vaccine requirement. Hamson Decl., ¶5. Hamson further believes that Swanigan would remove him entirely from LAFD if she could do so. Hamson Decl., ¶5.

Swanigan continues to control the terms of Hamson’s employment. Hamson Decl., ¶6. He has not received all the retroactive pay and benefits he is entitled to under the Board of Rights decision. Hamson Decl., ¶6.

Hamson does not understand why he received a four-month suspension when Engineer Watkins and Firefighter Collins did not receive any suspension. Hamson Decl., ¶4.

At all relevant times, the City had declared an emergency relating to COVID-19. Kepner Decl., ¶4; Girard Decl., ¶ 2-3. On August 18, 2021, the City passed the Ordinance requiring all City employees to report their vaccination status and to be fully vaccinated by October 20, 2021. Kepner Decl., ¶5; Girard Decl., ¶5. On October 20, 2021, the vaccination and reporting requirements became conditions of employment. Kepner Decl., ¶6 Girard Decl., ¶5. The City provided exceptions to these requirements based on medical or religious grounds. Kepner Decl., ¶6; Girard Decl., ¶5.

Negotiations between the City and employee unions brought the CAO to issue the LBFO. Girard Decl., ¶6. Under the LBFO, firefighters who were not vaccinated and had not applied for exemption when the requirements became conditions of employment were allowed up to December 18, 2021 to comply if the firefighters signed the VPR agreement consenting to twice-weekly COVID-19 testing. Kepner Decl., ¶7; Girard Decl., ¶8. The 367 firefighters who were not designated as vaccinated as of October 20, 2021 were permitted to show proof of vaccination at any time. Kepner Decl., ¶8. If any firefighter’s request for exemption was denied, that firefighter was granted additional time to comply. Girard Decl., ¶10.

On October 26, 2021, the City Council adopted a Resolution directing the Mayor to implement the LBFO. Girard Decl., ¶11. The Mayor directed the Departments to implement to LBFO on October 28, 2021. Girard Decl., ¶11.

Every firefighter who had not applied for an exemption, had not shown proof of vaccination, and was determined to be unvaccinated was given 48 hours to decide whether he or she would accept the VPR agreement. Kepner Decl., ¶9. All firefighters who accepted were given access to Bluestone, a third-party testing vendor, and all firefighters who refused were placed off-duty pending separation. Kepner Decl., ¶¶ 10-11.

On November 9, 2021, Hamson was served a notice specifying that he was not in compliance with the vaccination employment condition, and that he had 48 hours to show he had complied or had taken steps to comply. Kepner Decl., ¶12.

Hamson did not show compliance or any intent to comply. Kepner Decl., ¶13. Therefore, LAFD placed Hamson off duty without pay, effective December 7, 2021, for failure to meet a condition of employment. Kepner Decl., ¶13. At the time Hamson was placed off duty, he had not filed a request for a medical or religious exemption, or otherwise indicate his non-compliance was for a religious reason. Kepner Decl., ¶14.

On December 16, 2021, LAFD notified Hamson he was subject to an investigation for his failure to comply. Kepner Decl., ¶15.

On February 7, 2022, LAFD issued a Proposed Board of Rights notice stating that a Skelly hearing was scheduled for February 23, 2022. Kepner Decl., ¶16. The notice included a description of the basis for the proposed action and the supporting documents. Kepner Decl., ¶17.

On March 23, 2022, LAFD issued Hamson notice of a charge for failing to comply with the vaccination requirements. Kepner Decl., ¶18. The Board of Fire Commissioners acknowledged receipt on March 30, 2022. Kepner Decl., ¶18.

On November 30, 2022, LAFD notified Hamson that the Board of Rights hearing would take place on October 5, 2022 [sic]. Kepner Decl., ¶20. The notice informed Hamson that he was relieved of duty, effective September 26, 2022. Kepner Decl., ¶20. Fire Chief Crowley issued a Notice of Temporary Relief from Duty, effective the same day. Kepner Decl., ¶21.

On January 18, 2024, the parties appeared for a trial setting conference. Aguayo Decl., ¶2. Hamson’s counsel, Helene Wise, Esq. (“Wise”), represented at the conference that the administrative record prepared by the City’s counsel was deficient. Aguayo Decl., ¶2. The court gave the parties 60 days to complete the record. Aguayo Decl., ¶2. The City’s counsel, Ulysses Aguayo, Esq. (“Aguayo”), attempted to meet and confer with Wise regarding the asserted deficiencies. Aguayo Decl., ¶2.

On March 19, 2024, the parties appeared at a further trial setting conference. Aguayo Decl., ¶2, Ex. A. The City represented that it had requested Wise to the produce documents she believed should be included in the record, but she had produced none. Aguayo Decl., ¶2. The court instructed Wise to supply any missing documents and issued an order to show cause re: dismissal. Aguayo Decl., ¶2.

On April 18, 2024, the court issued a minute order setting the briefing schedule for trial. Aguayo Decl., ¶3. Hamson’s opening brief was due on August 22, 2024 with a maximum of 15 pages, the City’s opposition was due on October 11, 2024 with a maximum of 15 pages, and Hamson’s reply was due on November 14, 2024 with a maximum of ten pages. Aguayo Decl., ¶3, Ex.B. The court ordered electronic service of the briefs. Aguayo Decl., ¶3.

On August 18, 2024, Wise informed the City’s counsel that she was hospitalized and unable to timely file and serve Hamson’s opening brief. Aguayo Decl., ¶4. Based on her prognosis, Wise requested a joint stipulation to continue the briefing deadline. Aguayo Decl., ¶4. The parties stipulated to a continuance and the court ordered a new opening brief due date of September 23, 2024. Aguayo Decl., ¶4, Ex. C.

On September 22, 2024, Wise informed the City’s counsel that she could not timely file and serve Hamson’s opening brief due to her ongoing medical appointments. Aguayo Decl., ¶5. The parties again stipulated, and the court continued the date for opening brief filing and service to October 7, 2024. Aguayo Decl., ¶5, Ex. D.

At 11:44 p.m. on October 7, 2024, Wise sent the City’s counsel three PDF documents via electronic mail consisting of a declaration, a declaration with a signature not matching its title, and a request for judicial notice with accompanying declaration. Aguayo Decl., ¶6, Ex. E. None contained a proof of service. Aguayo Decl., ¶6.

At 12:01 a.m. on October 8, 2024, Wise sent a second electronic mail, stating that she would send a revised table of contents because the current brief being non-compliant. Aguayo Decl., ¶7, Ex. F. This electronic mail had attached a file titled “Petitioner’s Opening Brief In Support of Petition For Issuance Of Writs Of Mandate”. Aguayo Decl., ¶7. The file was dated July 11, 2024, was unsigned, and contained no proof of service. Aguayo Decl., ¶7.

At 2:25 p.m. on October 8, 2024, Wise sent the City’s counsel a third electronic mail stating that she had corrected the issues with the opening brief and offering the City an additional day for its opposition. Aguayo Decl., ¶8, Ex. G. This message contained a PDF document titled, “Petitioner’s Opening Brief In Support Of Petition For Issuance Of Writs Of Mandate” which contained no proof of service. Aguayo Decl., ¶8.

As of November 26, 2024, Hamson had not filed his opening brief. Aguayo Decl., ¶9, Ex. H.

At the end of November 2024, the City served its opposition to Hamson’s opening brief that Wise had served on October 7, 2024. Wise Decl., ¶2. Wise acknowledges that she neglected to file Hamson’s opening brief. Wise Decl., ¶2. She was hospitalized on August 15, 2024 and she attributes her neglect to the condition leading to her hospitalization. Wise Decl., ¶3. As a result of her condition, Wise underwent multiple surgical procedures. Wise Decl., ¶¶ 3-6. While only the first procedure predates the deadline for Hamson’s opening brief, they reflect a continuous course of treatment for the duration. Wise Decl., ¶¶ 3-6. In addition, Wise dealt with the death of a family friend in late November. Wise Decl., ¶7.

The City’s counsel, Aguayo, made conflicting and misleading statement about which Assistant City Attorneys were involved in Hamson’s case. Wise Decl., ¶¶ 8-9. Aguayo was also aware of Wise’s ongoing difficulties but did nothing to bring to inform her that Hamson’s brief had not been filed with the court. Wise Decl., ¶¶ 8-9.

The City’s counsel altered the administrative record while simultaneously accusing Wise of frustrating efforts to prepare it. Wise Decl., ¶10. Aguayo indicated that missing record materials could be added through record augmentation but did not inform Wise that the court may not choose to grant augmentation. Wise Decl., ¶10. Nonetheless, Wise is supplying the missing exhibits now. Wise Decl., ¶10.

Wise points out that the issues raised by Aguayo could have been resolved with a simple meet and confer, which Aguayo never sought. Wise Decl., ¶11.

Petitioner Hamson seeks a writ of mandate compelling the City to set aside the decision to impose his four-month suspension.

The City notes that a court has authority to dismiss an action for failure to comply with the Local Rules. “[I]f any counsel [or] a party represented by counsel…fails to comply with any of the requirements [of the Local Rules], the court on motion of a party or on its own motion may…dismiss the action or proceeding or any part thereof….” CCP §575.2. “Judges shall have all the powers to impose sanctions authorized by law, including the power to dismiss actions or strike pleadings, if it appears that less severe sanctions would not be effective after taking into account the effect of previous sanctions or previous lack of compliance in the case. Judges are encouraged to impose sanctions to achieve the purposes of this article.” Govt. Code §68608. “The court may impose appropriate sanctions for the failure or refusal to comply with the rules in this chapter, including the time standards and/or deadlines, and any court order made pursuant to the rules.” LASC Rule 3.10. Opp. at 9.

The City argues that LASC Rule 3.4(c) mandates electronic filing of briefs and Hamson failed to comply with the court’s orders to file his opening brief, despite two extensions to do so. Aguayo Decl., ¶9. Nor did Hamson timely or properly serve the City with his opening brief and supporting documents. At 11:44 p.m. on October 7, 2024, Wise sent the City’s counsel three declarations, none of which contained a proof of service. Aguayo Decl., ¶6. At 12:01 a.m. on October 8, 2024, Wise sent the City’s counsel an email with an unsigned, incomplete opening brief and no proof of service. Aguayo Decl., ¶7. At 2:25 p.m., Wise sent the City’s counsel another version of the opening brief with no proof of service. These documents were all late and/or improperly served. Opp. at 9.

The City argues that less severe sanctions would not be effective since Hamson has previously been issued an OSC re: dismissal for failure to provide the City with missing documents required by the court. See Govt. Code §68608; see also Aguayo Decl., ¶2. Accordingly, the court should dismiss the Petition. Opp. at 9.

Hamson replies that the City’s counsel has been in possession of his opening brief and supporting documents since October 7, 2024, although the brief initially exceeded the 15-page page limit. The parties entered into stipulations extending time for the trial, but the City never once pointed out that Hamson’s counsel’s failure to upload the brief for filing was defective let alone sanctionable. If anything, the emails between counsel show that any error was excusable and cured because it occurred at a time when Hamson’s counsel was diagnosed and being treated for a major life-threatening medical condition. Wise Decl., ¶¶ 2-6.

While Hamson did not timely file his opening brief, the court will not dismiss the case. The City has suffered no prejudice and the continuance of trial more than once without any notice or complaint about the brief by the City negates any possible sanction.

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. §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. §1060(a), (b), (h).

Pursuant to section 1060, Hamson’s remedy to contest his charge of failure to meet a condition of employment was through the Board of Rights hearing. The Board of Rights lacks authority to rule on non-disciplinary matters. 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, 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 by 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. City of Los Angeles, (1999) 69 Cal.App.4th 776, 780. As a result, procedural defenses under section 1060 and FPBRA may be raised before the Board of Rights.

Less certain is whether Hamson could have raised other defenses before the Board of Rights. According to his Petition, Hamson sought to present evidence at his Board of Rights hearing concerning (a) Assistant City Attorney Swanigan, who authored the Ordinance (Pet., ¶33), (b) the identification of the Assistant City Attorneys who consulted with the Board of Rights (Pet., ¶33), (c) the “safety and efficacy of the vaccination and its effect upon one’s bodily integrity,” including medical experts to testify about the scientific evidence (Pet., ¶¶ 34, 35), and (d) unlawful discrimination against unvaccinated first responders (Pet., ¶34), disability, association, genetic testing, and religious discrimination (Pet., ¶34), disparate treatment (Pet., ¶¶ 36-38), and violation of his Skelly rights (Pet., ¶38).[7]

The Board of Rights should have permitted Hamson to raise his issue concerning the identification of the names of Assistant City Attorneys who consulted with it, and probably also should have permitted him to raise defenses of disparate treatment (Pet., ¶¶ 36-38), and violation of his Skelly rights (Pet., ¶38). The rest of Hamson’s defenses are not within the scope of a Board of Rights review. In any event, since it is undisputed that the Board of Rights refused to hear these defenses, the court will consider them as part of Hamson’s traditional mandamus claim.

It was uncontroverted that Hamson is unvaccinated. Hamson also admitted at the Board of Rights hearing that every member of LAFD must be familiar with the rules, regulations, policies, and procedures, and that he received the notices regarding the City’s Vaccine Mandate. AR 38-46.

The timeline for Hamson’s attempt to seek a religious exemption to the vaccination requirement is as follows.

Hamson failed to comply with the Ordinance’s vaccination requirement or request a medical or religious exemption by October 19, 2021. AR 187. On or about October 29, 2021, the Personnel Department sent Hamson information about his non-compliance and provided instructions on how to comply. AR 203-08. Hamson did not comply or request a medical or religious exemption.

On November 9, 2021, the Personnel Department issued a “Notice and Order” to Hamson which required him to comply within 48 hours or he would be ineligible to work for the City. AR 210-11. Hamson refused to comply and, on December 16, 2021, the Personnel Department issued to Hamson a “Non-Compliance with the City Ordinance and Vaccine Policy” which advised that, pursuant to the Ordinance, he was being placed off-duty without pay for failure to meet a condition of employment. AR 214.

Approximately six months later, on May 9, 2022, Hamson sent an email to the Mayor, City Attorney Feuer, Controller Galperin, the Employee Relations Division, the City Council, Fire Chief Crowley, the Personnel Department, the Personnel Department’s General Manager, and Manuel Castaneda at LAFD stating that he had a religious exemption to the vaccine mandate. AR 262-67, 516. The email included the City’s Religious Exemption Form as an attachment with the instructions redacted from the Form and without answering any of the questions on the Form that were intended to assist the City in evaluating his religious accommodation request. AR 264, 308-11. Specifically, Hamson redacted the portion of the form stating: “To be eligible for this exemption, complete and submit both his form and a completed Religious Accommodation Certification Form. The granting of an exemption request will be based on the entirety of the application and not based on any single piece of information provided.” AR 307.

The next day, May 10, 2022, the Personnel Department asked Hamson to upload his religious exemption documentation into Bluestone. AR 313. Hamson testified that he did not upload his information because there was “[n]o way” he was signing on to Bluestone. AR 523. He claimed he did not need to follow any further instructions after submitting the incomplete Form. AR 523.

On May 10, 2022, Hamson sent an email to employees in the LAFD Personnel Department and PSD, Garcetti, Feuer, Crowley, Deputy Chief Hogan, and various attorneys declaring he had a religious exemption from the Ordinance. AR 105. He did not include the Religious Exemption Form or any information to assist the City in evaluating his request. Id.

At the Board of Rights hearing, Hamson admitted that he did not follow the instructions on the Religious Exemption Form and that he did not complete any of the questions seeking information. AR 308-11, 519-20. He testified that the entirety of the Form did not apply to him based “upon [his] oath to office” and his “right as a sovereign human being.” AR 519-20.

Based on Hamson’s own testimony, he failed to meet a condition of employment by becoming vaccinated or by properly submitting a religious exemption with the information requested to help the City ascertain the basis of that request. The Board of Rights, in its discretion, decided to suspend Hamson for four months because he attempted to request a religious exemption. The Board of Rights’ decision is fully supported by the evidence.

As stated, Hamson’s Petition alleges that he sought to present evidence at his Board of Rights hearing concerning (a) Assistant City Attorney Swanigan who authored the Ordinance (Pet., ¶33), (b) the identification of the Assistant City Attorneys who consulted with the Board of Rights (Pet., ¶33), (c) the “safety and efficacy of the vaccination and its effect upon one’s bodily integrity,” including medical experts to testify about the scientific evidence (Pet., ¶¶ 34, 35), and (d) unlawful discrimination against unvaccinated first responders (Pet., ¶34), disability, association, genetic testing, and religious discrimination (Pet., ¶34), disparate treatment (Pet., ¶¶ 36-38), and violation of his Skelly rights (Pet., ¶38).

Hamson’s opening brief also alleges (a) the City failed to collectively bargain over the Ordinance as required by labor law (Pet. Op. Br. at 11-12), (b) improper testing through the City’s vendor (Bluestone) and imposition of testing costs (which Hamson admits do not apply to him since he was claiming a religious exemption) (Pet. Op. Br. at 12-13), (c) the Board of Rights rulings were improper on his motion to dismiss, discovery, and exclusion of witnesses that would testify whether the vaccines were safe and FDA approved (Pet. Op. Br. at 14-16), (d) the charge was untimely (Pet. Op. Br. at 14-15), (e) discovery was thwarted by the Board of Rights (Pet. Op. Br. at 15), (e) the City’s religious exemption procedure was infirm (Pet. Op. Br. at 16, 17), (f) due process violations under the Fourteenth Amendment (Pet. Op. Br. at 16-17), and (g) unlawful disability and religious discrimination under the Americans with Disability Act (“ADA”) and Fair Employment and Housing Act (“FEHA”) (Pet. Op. Br. at 17-18). In reply, Hamson adds an ADA argument that the City failed to engage in the interactive process for an accommodation of his religious beliefs. Reply at 6.

Hamson’s allegations concerning the ADA and FEHA cannot be raised in a mandamus claim. Hamson may pursue those causes of action in state or federal court after any requisite administrative exhaustion. See, e.g., E.E.O.C. v. Farmer Bros., (9th Cir. 1994) 31 F.3d 891, 899; Merrell Dow Pharmaceuticals, Inc. v. Thompson, (1986) 478 U.S. 804, 808. Hamson also does not have standing to raise the City’s violation of collective bargaining requirements, particularly since he notes this issue already has been addressed in binding arbitration between LAFD and UFLAC. RJN Ex. 2.

Some of Hamson’s other defenses are supported in whole or in part by the Declaration of Armando Carranza (“Carranza”), which consists almost entirely of argument and unsupported conclusions and opinions lacking personal knowledge and foundation. Carranza never even states that he attended Hamson’s Board of Rights hearing or how he knows what happened with Hamson’s religious exemption, or any other firefighter’s disciplinary matter. Therefore, Hamson’s opening brief’s reliance on Carranza for references to firefighter Mammone (Pet. Op. Br. at 7), lack of an exemption form (Pet. Op. Br. at 9), stalled issuance of exemption forms, rulings on appeal, and disparate treatment (Pet. Op. Br. at 12),[8] and disability and religious discrimination (Pet. Op. Br. at 16) have been disregarded.

Hamson attempts to support other defenses in whole or in part through the allegations in the Petition. Pet. Op. Br. at 6-7, n. 2. Aside from the fact that a petition pleads ultimate facts, not evidentiary facts, these conclusory arguments may be disregarded as unsupported by foundation or analysis. When a party asserts a point, but fails to support it with reasoned argument and citation to authority, the point may be treated as waived. Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784, 85; Solomont v. Polk Development Co., (1966) 245 Cal.App.2d 488 (point made which lacks supporting authority or argument may be deemed to be without foundation and rejected).

This leaves Hamson’s arguments concerning the exclusion of witnesses and evidence at the Board of Rights hearing, the timeliness of the charge, the Skelly issue, the non-existence of Religious Exemption Form, the failure to produce discovery, denial of Hamson’s motion to dismiss, and infirmity of the religious exemption process. The court will address each of them.

Hamson argues that he has been fired (sic.) for not vaccinating and for refusing to completely fill out a form that was not even available when he was removed from duty without pay on December 16, 2021. The only Religious Exemption Form presented was submitted by Carranza in the Spring of 2023, only days before Engineer Watkins decided to turn in the Form he learned about at his April 2022 Skelly hearing, and only days before Hamson sent in two requests for an accommodation from vaccinating on May 9 and 10, 2022. See RJN Ex. 4.[9] Hamson could not comply because there was no Religious Exemption Form to fill out. AR 772-73.[10] Hamson’s sincere religious beliefs were clearly known to his superiors, including Deputy Chief Fields, Captain Hill and others, well-predating the flurry of emails demanding that firefighters provide notice of their sincere religious beliefs to LAFD. Hamson Decl., ¶7. Yet, Deputy Chief Fields did not direct Hamson to fill out or complete any form. Pet. Op. Br. at 9; Reply at 6.

Hamson argues that, as of the October 20, 2021 date when he was accused of failing to comply with a condition of employment, he could not have been in violation for failing to submit a Religious Exemption Form because there was no form for him to fill out. If there was a Form, then surely the City would not have inquired in September and October 2021 about how many employees intended to seek an exemption. Pet. Op. Br. at 9.

This argument is a red herring. Hamson was charged with failing to meet the Ordinance’s condition of employment by failing to comply with the City’s mandatory COVID-19 vaccination requirement. AR 347.

Hamson failed to comply with the Ordinance’s vaccination requirement or request a medical or religious exemption by October 19, 2021. AR 187. On or about October 29, 2021, the City’s Personnel Department sent Hamson information about his non-compliance and provided instructions on how to comply with the Ordinance. AR 203. The information expressly stated that he was required to comply or request and be approved for a religious or medical exemption. AR 203. Hamson did not comply or request a medical or religious exemption. His discussions with colleagues or superiors did not qualify as a request to the City for a religious exemption from the vaccine mandate.

On November 9, 2021, the Personnel Department issued the notice to Hamson which required him to comply within 48 hours or he would be ineligible to work for the City. AR 210-11. The notice informed him that unvaccinated members who have not submitted a request for exemption must sign the VPR agreement. AR 210. Hamson refused to sign the VPR agreement and did not make any type of formal request for a religious exemption. As a result, on December 16, 2021, he was placed off-duty without pay for failure to meet a condition of employment. AR 214.

There is no evidence that the City required Hamson to file a particular Religious Exemption Form during the period of October to December 2021. As he testified, he could have done so on a cocktail napkin. Nor is there any evidence that Hamson wanted to request a religious exemption during that time but did not know how to do so. Only on May 9, 2022 did Hamson make a formal request, and he did so by using a modified Religious Exemption Form. AR 264, 308-11, 313. He separately claimed a religious exemption again on May 10, 2022. AR 105. He further refused to upload the request to Bluestone as required. The Board of Rights credited him with this partial effort.

The fact that a Religious Exemption Form making it convenient to make a religious exemption request did not exist at all times does not significantly bear on Hamson’s failure to make a formal request prior to May 9, 2022.

Hamson argues that he sought discovery of all forms and supporting documents relative to condition of employment changes, including the Religious Exemption Form. Despite the fact that the Board of Rights Manual permits discovery, LAFD refused to cooperate and withheld virtually all documents sought, except for condition of employment language pertinent to driver’s licenses. See AR 84-95 (Requests for Production, Motion to Compel Production, and Requests for Admissions). LAFD even declined to supplement data procured by associations Firefighters4Freedom and Freedom2Choose through a California Public Records Act (“CPRA”) request showing the number of employees intending to file for exemptions, the number of employees who were disciplined for seeking an exemption, and the number and timing of granted exemptions that had been. The documents previously produced showed that Chief Crowley had no intention of granting religious exemptions, having only granted one in 18 months.[11] AR 722-23, 744, 747-49. Pet. Op. Br. at 15.

At the hearing, this line of questioning was deemed irrelevant, even though it was germane to the reason why Hamson would decline a vaccination. AR 800-06 (Knox testimony). Pet. Op. Br. at 9-10, 15. The refusal to compel LAFD to cooperate with the discovery process also shows that the administrative process was infirm because the Department wanted to control the outcome of the hearing. Pet. Op. Br. at 15.

Whether LAFD lived up to its discovery obligations is not an issue in reviewing the Board of Rights decision. The proper issue would be whether the Board of Rights erred in denying Hamson’s discovery motions. Hamson fails to present evidence that the Board of Rights actually denied his motion to compel, any authority that the Board of Rights erred in ruling on his motion, and that he suffered prejudice from the ruling by the exclusion of relevant evidence.

Hamson notes that he designated as witnesses Assistant City Attorney Swanigan, who wrote the Ordinance, and Deputy Chief Hogan, who headed up the Unit setting up Skelly hearings. Although the Board of Rights initially stated that both witnesses could testify, it arbitrarily changed its mind. Hamson speculates that the Board’s reversal was to prevent meritorious cross-examination of those City and LAFD personnel who caused the removal of Hamson and his colleagues without regards to procedural protections, while treating far better those employees committing more egregious offenses. Pet. Op. Br. at 15. Had the head of the City’s Civil Service Commission, Bruce Whidden, testified, ample testimony would have been adduced about the failure of the City to grant religious exemptions because he served as the City’s responder to CPRA requests. See AR 135-66. Reply at 5.

Hamson adds that expert medical and scientific testimony concerning the deleterious effects of the vaccination, and testimony by executives within LAFD, were capable of establishing his affirmative defenses of religious, association and disability discrimination, unlawful retaliation, and disparate treatment in LAFD and other City departments. These witnesses were excluded, and the Board of Rights repeatedly threatened Hamson’s advocates for trying to create a record ono these issues. AR 317-22 (City’s objections to Hamson witnesses). This is especially true when LAFD advocates falsely asserted the vaccines were safe and that Comminarity had been FDA-approved, even though it is not even available in the United States. AR 400-02. Permitting Hamson’s experts to testify would have cleared up the falsehood LAFD perpetuated. Pet. Op. Br. at 15. These events transpired notwithstanding guarantees of due process and a fair hearing in FBPRA, section 1060, and constitutional provisions. Pet. Op. Br. at 7-8.

Hamson has not shown any error in the exclusion of witnesses or evidence. Expert medical and scientific testimony concerning the deleterious effects of the vaccination was irrelevant. The Ordinance required vaccination or a medical/religious exemption and Hamson was expected to follow it. Whether the Ordinance was wise policy from a medical or public health viewpoint is not something he could challenge.

Hamson fails to identify the witnesses, including executives within LAFD, who would have established religious, association and disability discrimination, unlawful retaliation, and disparate treatment in LAFD. Nor does he provide an offer of proof as to what they would have said. While he does identify Assistant City Attorney Swanigan, her authorship of the Ordinance is irrelevant to Hamson’s proceeding. Hamson contends that Bruce Whidden would have testified to statistic concerning the failure of the City to grant religious exemptions, but Hamson fails to make an offer of proof of what those statistics were and how they would show disparate treatment or religious discrimination. While Hamson’s own Skelly hearing was relevant, Hamson apparently wanted Deputy Chief Hogan, who headed up the Unit setting up Skelly hearings, to testify more broadly concerning other employees. This would not have been relevant to Hamson’s Skelly matter.

Finally, Hamson fails to show any prejudice from witness or evidence exclusion. A due process violation requires a showing of prejudice. Krontz v. City of San Diego, (2006) 136 Cal.App.4^th 1126, 1141 (delay in notice and opportunity to be heard requires prejudice). It is insufficient merely to show that a violation occurred and conclude that the witness or evidence would have changed the outcome. Prejudice will not be presumed; actual prejudice must be shown in order to be balanced against a due process violation. People v. Belton, (1992) 6 Cal.App.4^th 1425, 1433 (delay in filing criminal charges requires balancing of prejudice against justification for delay). “Reversible error requires demonstration of prejudice arising from the reasonable probability the party ‘would have obtained a better outcome’ in the absence of the error”. F isher v. State Personnel Bd., (2018) 25 Cal.App.5th 1, 20.

Hamson argues that Judge Byrdsong issued a September 2022 ruling in a case involving the Police Protective League that Bluestone testing was infirm and unilaterally implemented, at a time when alternatives to these tests clearly existed.[12] Because of that judicial ruling, LAFD tried to disassociate the Bluestone infirmities from this hearing. However, doing so was not palatable because Hamson was removed on December 16, 2021 for not complying with the vaccination mandate and was expected to upload his exemption into Bluestone even though he sought an exemption and was already uploaded into the system by LAFD personnel. AR 313, 558.[13] Pet. Op. Br. at 13.

Hamson and others were given 48 hours to agree to vaccinate or to register an exemption and commence paying Bluestone for testing, although Hamson had already given notice of his unvaccinated status continuously to Chief Fields from March 2021 to December 16, 2021. Hamson was never given notice that he could still seek a formal exemption. More importantly, Ordinance 185574, which was passed in 2018, prohibits registration of one’s religious beliefs. RJN Ex. 3. Hamson elected to share his faith in God, rather than dwell on the fact that his May 9 and 10, 2022 declarations seeking an exemption were ignored by the very author of the Covid Ordinance. Pet. Op. Br. at 13, 16.

It is not clear what point Hamson is making with respect to the Religious Exemption process. He cannot rely on an infirmity of the Bluestone testing process because he never intended to comply with the LBFO by signing the VPR agreement and agreeing to be vaccinated by December 18, 2021 with twice weekly testing in the interim by Bluestone. Uploading his religious exemption request into Bluestone has nothing to do with Bluestone testing, which had no application to him. The court has addressed the Religious Exemption Form issue ante.

Hamson argues that he raised procedural violations of section 1060 in a motion to dismiss which were the backbone of his due process claims. The Mayor stated in issuing the LBFO that Skelly and Board of Rights protections would be adhered to. AR 233-34.[14] But they were not. Hamson ’s Skelly hearing was not even calendared until March 2022. Why? Because the City claimed this was a condition of employment case to which Skelly procedural safeguards do not apply. Pet. Op. Br. at 13.

Hamson disagrees with the City’s condition of employment argument since his removal without pay was tantamount to punitive action as defined by the FPBRA. Although the City claims that the term “TBD” is not infirm, given the FPBRA’s and section 1060’s reliance upon the concept of punitive action, relief without pay for the entire time that an employee is precluded from working constitutes unlawful punitive action. The seminal case of Burlington Northern vs. White, (2016) 548 U.S. 53, found that reassigning an employee away from their customary job for even 37 days without pay constituted unlawful retaliation against an employee then complaining about discrimination. Hamson was removed for more than 530 days. Pet. Op. Br. at 14.

Hamson argues that the Board should have granted his motion to dismiss. The failure to conduct a Skelly hearing before removing him, and the failure to give him notice of the penalty that would be prescribed -- i.e., discharge vs. “TBD” -- were part of the motion to dismiss. AR 2-20.[15] The Board of Rights rejected the motion without even reading it. AR 353.[16] The court should reject the claim that the Board of Rights did not have authority to dismiss the proceedings even though the Board of Rights Manual (RJN Ex. 6, §120) confers such jurisdiction. Caselaw submitted to the Board of Rights (AR 784-87) refused to adopt a condition of employment label when questioning the legality of vaccination mandates in New York, San Diego, San Francisco and elsewhere.[17] Pet. Op. Br. at 13-14.

While not entirely clear, the court concludes that the Board of Rights had authority to address an untimely Skelly hearing or a violation of section 1060. The Board of Rights Manual provision cited by Hamson merely confers “Incidental Authority” for the Board to (a) ascertain whether the complaint has been properly prepared and served, (b) whether it is sufficiently specific, (c) rule on motions, (d) require the reporter to perform his or her duties, and (e) determine whether the hearing should be public or private. RJN Ex. 6, §120. The Board’s procedural authority to rule on motions does not give it substantive jurisdiction over the subject of the motion. Nonetheless, the Board should not proceed with the merits of a disciplinary charge without addressing these procedural issues.

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 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, section 1060(b)(1)’s relief from duty also is without pay.

The City argues that, when Hamson failed to meet a condition of employment pursuant to the Ordinance, he was sent home. This was not a suspension or relief from duty under section 1060 because Hamson could fix his non-compliance. It was not conceptually different than a firefighter losing a valid driver's license. That Hamson lost income because he could not work does not make the City’s action punitive. Therefore, the motion to dismiss was properly denied. Opp. at 13-14.

The court agrees with Hamson that his failure to comply with the Ordinance’s vaccination mandate, or a religious or medical exemption from vaccination, while a condition of employment, was a disciplinary matter. Hamson’s failure to vaccinate, sign the VPR agreement agreeing to vaccinate, or file an exemption was the reason why he was placed off duty on December 7, 2021. Nothing in section 1060 describes the form a charge must take to fall within section 1060(b). The November 9, 2021 notice expressly warned Hamson that, if he did not comply within 48 hours, he would be placed off-duty without pay pending disciplinary review for failure to meet a condition of employment. This was an accusation of wrongdoing and cannot be reasonably described as anything other than relief from duty for non-compliance per section 1060(b). The October 28, 2021 memorandum expressly stated that an employee who refuses to sign the notice would be placed off duty without pay pending service of a Skelly package and notice of discharge. While the memorandum did not expressly refer to section 1060, it did not need to do so. Section 1060 embodies those protections.

The fact that the December 16, 2021 memorandum informed Hamson that he was placed off-duty pending a disciplinary review of his non-compliance with the Ordinance (AR 214) does not affect the analysis. It is true that the formal complaint against Hamson charging him with failing to meet the vaccination requirement as a condition of employment was not issued until March 23, 2022. AR 171, 216-22. But section 1060(b) became applicable on December 7 when the City placed Hamson off duty without pay for non-compliance with the November 9 notice’s 48-hour deadline. Any interpretation of section 1060(b)(1) that formal charges must be on file before its requirements become applicable would unduly narrow its “predisciplinary protections” and the protections of section 1060(c).

Hamson failed to be vaccinated by October 20, 2021 as required by the City’s vaccine mandate. The City argues that, in the emergency situation then existing, employees were given the November 9, 2021 notice giving employees 48 hours to respond and say: “It’s erroneous, I’m vaccinated.” Hamson received the notice on November 9, 2021, and had 48 hours to respond to his failure to be vaccinated. He did not comply and was placed off-duty without pay on December 16, 2021 for failure to meet a condition of employment. Opp. at 13-14.

Hamson argues that this action ignored his Skelly rights. In issuing the LBFO, the Mayor stated that Skelly and Board of Rights protections would be adhered to. AR 233-34. But they were not. Hamson’s Skelly hearing was not even calendared until March 2022.[18] Why? Because the City claimed this was not a discipline case but rather a condition of employment case to which procedural safeguards do not apply. Hamson’s removal without pay was tantamount to punitive action as defined by the FPBRA. Pet. Op. Br. at 15; Reply at 6-7.

The Ordinance expressly made vaccination a condition of City employment unless an employee was approved for an exemption as a reasonable accommodation for a medical condition or restriction or sincerely held religious beliefs. LAAC §4.701(b). On October 29, 2021, City employees who did not become vaccinated and had not filed for a medical or religious exemption were offered an extension to become fully vaccinated by December 18, 2021 if they signed the VPR agreement and agreed to submit to twice-weekly testing. AR 203.

On November 9, 2021, Hamson received a Notice and Order informing him that he was not in compliance with the vaccine requirements and giving him 48 hours to take steps toward compliance by activating his Bluestone account and signing the VPR agreement, unless he had applied for an exemption. AR 210. Hamson was warned that if he did not comply within 48 hours, he would be placed off-duty without pay pending disciplinary review for failure to meet a condition of employment. AR 210.

Hamson did not sign the VPR agreement, did not take steps towards compliance, and did not seek an exemption. When Hamson failed to meet this condition of employment pursuant to the Ordinance, he was relieved of duty on December 16, 2021 and sent home without pay. Subsequently, on February 7, 2022, LAFD issued a Skelly hearing notice for February 23, 2022. The notice included a form complaint against him and supporting reports. AR 174-89. After service attempts failed (AR 175, 178-79), Hamson’s Skelly hearing was rescheduled for March 10, 2022. Pet., ¶30; Kepner Decl., ¶17. It apparently went forward on that date.[19]

Section 1060(b)(2) 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….”

The issue is whether Hamson’s relief from duty without pay on December 16, 2021 until he was offered a Skelly hearing -- initially noticed for February 23, 2022 and actually held on March 10, 2022 -- satisfied the requirements of section 1060(b)(1) for temporary relief from duty pending a Board of Rights hearing. It was, so long as it occurred “following predisciplinary procedures otherwise required by law”. §1060(b)(1). This reference to “predisciplinary procedures” does not necessarily mean Skelly requirements.[20] The Skelly decision “evolved from a nonemergency situation” and thus is not direct authority for the issue of a public health emergency due to COVID-19. See Mitchell v. State Personnel Bd., (1979) 90 Cal.App.3d 808, 812.

Due process is flexible and generally balances the private interest of the affected individual, the risk of an erroneous deprivation through the procedure used, the probable value of additional procedures, and the government’s interest. Bostean v. Los Angeles Unified School District, (1998) 63 Cal.Appp.4^th 95, 112-13.

Hamson had a substantial interest in the uninterrupted receipt of his paycheck, but the interruption was not final.

The City’s interest was substantial also. Hamson was one of potentially thousands of employees who were non-compliant with the conditions of their employment due to their failure to accept the terms of the LABO. The City determined that placing all such employees on paid leave would put it under a significant financial burden and compromise its ability to provide essential public services. The City had a strong interest in taking immediate action based on the COVID-19 pandemic and its fiscal limitations.

These interests must be balanced against the risk of erroneous deprivation and the probable value of additional safeguards. The issues before the City were whether Hamson was vaccinated or willing to be vaccinated and whether he had timely requested a medical or religious exemption. The undisputed evidence is that Hamson was not vaccinated and had not submitted a request for religious exemption by the deadline in the Ordinance and LFBO. He was given 48 hours to sign the VPR agreement which would allow him to come into compliance by December 18 if he agreed to its terms. He did not do so. He had 48 hours to alert the City of any error and there is no evidence that he could not have gathered any pertinent information in that timeframe. Thus, the risk of erroneous deprivation was small. No additional procedural safeguards were necessary or of value.

Therefore, Hamson received the pre-disciplinary procedures otherwise required by law pursuant to section 1060(b) for the approximately ten to 12-week period between his relief from duty without pay and his Skelly hearing, at which he was given the opportunity to be heard and respond to the allegations.[21]

Under section 1060(c), where an order of temporary relief from duty or suspension is involved, the requirement that a “verified complaint” be filed means the charges must be signed by the Fire Chief or his/her designee. Therefore, if the Fire Chief intends to and does impose a temporary relief from duty or a suspension on the accused member (as opposed to a direct referral to a Board of Rights), a verified complaint (i.e., signed complaint) must be filed with the Board of Fire Commissioners. Opp. at 14-15.

Hamson argues that the City cannot change the fact that he was removed without complying with section 1060 requirements. He never received a relief from duty form or a verified complaint. Nor was a verified complaint filed with the Fire Commission within five days. In fact, LAFD had to amend the complaint on November 30, 2022, after the one-year statute of limitations had expired (AR 170-72), because it cited the wrong ordinance. Even then the Notice of Discharge form that was supposed to be verified by the Fire Chief was deficient because the penalty contemplated was missing. The City then waited until the start of the Board of Rights hearing to amend the complaint against Hamson, after the statute of limitations had passed.[22] Section 1060 limits the Fire Chief to imposition of a 30-day suspension. Since LAFD historically has provided pay until a Board of Rights is selected, as noted by Arbitrator Kenneth Perea, LAFD’s refusal to compensate Hamson for the more than 500 days of disciplinary suspension is unconscionable. Pet. Op. Br. at 14-15; Reply at 6-7.

Fire Chief Terrazas’ December 16, 2021 memorandum placed Hamson off duty without pay for failure to meet the Vaccine Mandate as a condition of employment. AR 1070. It was not intended as a formal charge, however. The formal process began with the March 23, 2022 complaint alleging that Hamson failed to meet a condition of his employment by failing to comply with the vaccine requirement. AR 171, 216-22. The notice included a signed and verified form Complaint Against Member and a Notice of Discharge stating the penalty was TBD. AR 216-22. Hamson was served with the complaint and supporting papers on March 27, 2022. AR 221. The Board of Fire Commissioners was notified of the verified written complaint and service on Hamson in compliance with section 1060(c) on March 30, 2023. AR 224.

This effort would have complied with section 1060(c) except that Hamson had been temporarily placed off duty on December 16, 2021 under section 1060(b)(1). Under section 1060(b), the Fire Chief may temporarily relieve a member from duty pending a Board of Rights hearing on any charge pending against the member after following pre-disciplinary procedures required by law.

The City met these pre-disciplinary procedures. See ante. But the City must also meet the requirements of section 1060(c) that, where an order for temporary relief from duty or suspension is involved, the order shall contain a statement of the charges assigned as causes. The Fire Chief shall, within five days after the order is served as provided in subsection (d), 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. §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. §1060(c).

Did the City comply with section 1060(c)? Arguably, the December 16 memorandum functioned as a statement of the charge that Hamson failed to comply with the Vaccine Mandate as a condition of employment. However, it was not verified and was not served on Hamson personally or by certified mail. The memorandum, therefore, did not comply with section 1060(c). Instead, the formal complaint issued on March 22, 2022 and served on March 27, 2022 performed this task. The December 16 memorandum also was not filed with the Board of Fire Commissioners within five days of the order for temporary relief from duty. Therefore, Hamson’s temporary relief from duty was void and he should have been restored to duty without loss of pay. See §1060(c).

In sum, while the City complied with section 1060(b) and due process, it did not comply with section 1060(c). For a Skelly violation, the constitutional infirmity of the disciplinary procedures is the imposition of discipline prior to affording the employee notice of the reasons for the punitive action and an opportunity to respond and this infirmity is not corrected until the employee has been given an opportunity to present his arguments to the authority initially imposing discipline. Barber v. State Personnel Board, (1999) 18 Cal.3d 396, 403. Hamson should have been restored to duty without loss of pay.

Section 1060(c) states that the restoration is without prejudice, meaning that the City could have relieved Hamson from duty again as part of the formal complaint process. The formal complaint was issued on March 22, 2022 and LAFD could have relieved him from duty at that time. Therefore, Hamson is entitled to back pay for the period from December 16, 2021 to March 22, 2022.

The Petition is denied on the issue of suspension but granted on the issue of back pay. The four-month suspension without pay is upheld, but Hamson is entitled to back pay for the period from December 16, 2021 to March 22, 2022 for a violation of section 1060(c).

The City’s counsel is ordered to prepare a proposed judgment and writ of mandate, serve them on Hamson’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment and writ along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for May 8, 2025 at 9:30 a.m.

[1] Skelly v. State Personnel Board, (“Skelly”) (1975), 15 Cal.3d 194.

[2] Hamson requests judicial notice of the following exhibits: (1) an unpublished decision from the Second Appellate District dated June 21, 2023 in Firefighters4Freedom v. City of Los Angeles (“F4F”), LASC No. 21STCV34490 which reversed a trial court demurrer ruling (RJN Ex.1); (2) an arbitrator’s decision dated November 21, 2023 finding that the removal without pay of unvaccinated firefighters violated the City’s Memorandum of Understanding (RJN Ex. 2); (3) the City Council’s May 25, 2018 decision and recorded vote adopting Ordinance 185574, making it unlawful for a City employee to participate in any government program to register individuals based on their religion or spiritual faith (RJN Ex. 3); (4) reporter’s transcripts dated August 16 and 17, 2022 from the Board of Rights hearing of City employee Nicholas Watkins (“Watkins”) (RJN Exs. 4-5); (6) the Board of Rights Manual governing Board proceedings (RJN Ex. 6); (7) disciplinary forms concerning LAFD employee Nicholas Kobe (RJN Ex. 7); and a proposed decision by a hearing officer dated January 14, 2024 in In re David Shubin and the General Services Department (RJN Ex. 8).

The arbitrator’s decision (RJN Ex. 2) is final and is judicially noticed. Evid. Code §452(c), (d). The City Council’s adoption of Ordinance 185574 (RJN Ex. 3) is judicially noticed. Evid. Code §452(b). Finally, the Board of Rights Manual (RJN Ex. 6) is judicially noticed. Evid. Code §452(c).

The remaining requests for judicial notice are denied. The unpublished decision in F4F (RJN Ex. 1) would be subject to judicial notice if it was relevant. It is not. The decision cannot be cited (CRC 8.1115) and it only reversed a demurrer ruling and did not make a merits decision. The reporters’ transcripts (RJN Exs. 4-5) from an administrative proceeding other than from the pending case are not subject to judicial notice. Nor are the disciplinary forms of another employee (RJN Ex. 7). Finally, the proposed decision of a hearing officer (RJN Ex. 8) is not a final decision that can be judicially noticed.

In reply, Hamson seeks to augment the administrative record with exhibits that the Board of Rights marked and then changed its mind about (Aug 4-30). Hamson also attaches as exhibits a reporter’s transcript from a previous case, Robert Kilpatrick v. City of Los Angeles, (“Kilpatrick”) 22STCP01992 and mentions a second case pending in Department 19, Knox et al v. City of Los Angeles, (“Knox”) 23STCV13328.

This is improper. The record must be augmented through a separate motion to augment. LASC 3.231(g)(3). Nor can the issue of record augmentation be raised for the first time in reply. New evidence/issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded. Regency Outdoor Advertising v. Carolina Lances, Inc., (“Regency”) (1995) 31 Cal.App.4th 1323, 1333. Finally, the court long ago required the parties to finalize the administrative record and Hamson cannot rely on a purported defect in reply. The request to augment is denied. Additionally, the reporter’s transcript from Kilpatrick is inadmissible and the existence of the Knox case is irrelevant.

[3] Ultimately, the City eliminated or reimbursed all testing charges pursuant to Labor Code 2802. Girard Decl., ¶¶6-9.

[4] The cited page is not in the Joint Appendix.

[5] After service attempts failed (AR 175, 178-79), Hamson’s Skelly hearing was rescheduled for March 10, 2022. Pet., ¶30; Kepner Decl., ¶17.

[6] This email is not cited by either party from the administrative record.

[7] In reply, Hamson argues that Assistant City Attorney Swanigan assured the court in Kilpatrick that Kilpatrick’s defenses would have been fully explored in a Board of Rights hearing and that Kilpatrick had forfeited those defenses by not showing up. The court responded that the question was whether the defense could have been presented to the Board of Rights and specifically asked about a religious exemption defense, a section 1060 claim, and a FPBRA claim, all of which Swanigan stated could have been presented. Yet, the City blocked these issues at Hamson’s hearing. Reply at 3-4.

The Kilpatrick transcript is not in evidence and Hamson also improperly presents this issue for the first time in reply. See Regency, supra, 31 Cal.App.4th at 1333. Moreover, Hamson does not show that Swanigan’s statements somehow estop the Board of Rights from denying jurisdiction.

[8] The City argues (Opp. at 15), and the court agrees, that Hamson fails to point to any evidence of disparate treatment. Although Hamson could have been terminated for his failure to meet a condition of employment, the Board of Rights exercised its discretion to conclude that his incomplete exemption emails were an attempt to submit his religious exemption request and gave him a four-month suspension instead.

Hamson argues that his four-month suspension should be contrasted with Engineer Watkins who received no discipline even though he did not have an approval of his exemption request either. RJN Ex. 5. Pet. Op. Br. at 10. The court declined to judicially notice RJN Exhibit 5 and, in any event, Hamson does not provide sufficient facts to draw any conclusion about disparate treatment.

In reply, Hamson contends that other firefighters committed far more egregious offenses than that committed by himself and his colleagues. Newspaper articles pertaining to the actions of Deputy Chief Fred Mathis, Assistant Chief Ellsworth Fortman, and Deputy Chief Hogan show LAFD policies that were excluded when the Board of Rights disallowed Hamson’s witnesses and evidence show that LAFD has not treated other conditions of employment situations -- i.e., failure to possess a driver’s license or have a current EMT certificate -- in the same harsh fashion as the COVID-19 vaccination. Reply at 8-9. Hamson’s reply evidence has not been admitted nor considered for the reasons stated that it is not subject to judicial notice, it was not the proper subject of a motion to augment, and it is not properly presented for the first time in reply. See Regency, supra, 31 Cal.App.4th at 1333.

[9] The court declined to judicially notice this transcript.

[10] The citation is to an unidentified witness who testified that the Exemption Form was not available for the Mayor’s October 28, 2021 memorandum but was available on the December 16, 2021 date Hamson was taken off duty. AR 772-73. See AR 307 (Religious Exemption Form). No employee was placed off duty until they had an opportunity to fill out the Exemption Form. AR 773.

[11] Hamson speculates that Fire Chief Crowley refused to cooperate with the discovery process envisioned by the Board of Rights Manual because it would have shown her intention not to comply with City Council mandates authorizing religious and medical exemptions at a time when she was openly hostile to the belief that God has a role to play in the workplace. See AR 599 (Chief Perez). Pet. Op. Br. at 10, n. 3. The court need not address this speculation.

[12] Hamson’s citation for this evidence, RJN Ex. 1, is not correct. Hamson also relies on RJN Ex. 8 which was not judicially noticed.

[13] The citation does not show that LAFD personnel had already uploaded Hamson’s exemption into Bluestone. The citation is merely Hamson’s counsel’s statement that vaccinated employees did not have to register with Bluestone. AR 558.

[14] The cited pages are not in the Joint Appendix.

[15] The motion to dismiss attaches the Notice of Discharge stating that the penalty is “TBD” (AR 19) but the motion itself makes no reference to TBD. AR 2-5. Therefore, Hamson fails to show that he exhausted this issue before the Board.

[16] The citation shows that Hamson’s counsel argued the motion to dismiss should not be denied without the Board reading it, but it does not show that the Board failed to read the motion. AR 353.

[17] The citation concerns Knox’s testimony about firefighters and statistics about their Skelly hearings and has nothing to do with caselaw.

[18] The Skelly hearing initially was set for February 23, 2022 but the City had difficulty serving Hamson. AR 174. After service attempts failed (AR 175, 178-79), Hamson’s Skelly hearing was rescheduled for March 10, 2022. Pet., ¶30; Kepner Decl., ¶17.

[19] On March 27, 2022, the complaint and supporting papers were served on Hamson. AR 216-22. This complied with the one-year statute in FPBRA. The fact that the charge was amended at the Board of Rights hearing that began in December 2022 does not affect this conclusion.

[20] Hamson is aware that the unpublished decision in Kilpatrick v. City of Los Angeles, B327480, Second Appellate District, cannot be cited. Reply at 7.

[21] Hamson argues that Arbitrator Ken Perea (RJN Ex. 2) found that the City violated the MOU with UFLAC. The Arbitrator found that firefighters subject to discipline are entitled to be paid at least up until their Board of Rights is selected, and not simply up through the date of a Skelly hearing, under the same Ordinance and its conditions of employment requirement as this case. The City failed to challenge that award in a timely fashion. Although the City has tried to pay some of the firefighters who were placed off duty without pay consistent with the Arbitrator’s ruling, Hamson was not so compensated. Reply at 2. Whether Hamson is entitled to pay under the Arbitrator’s ruling is an issue outside the scope of this mandamus case.

[22] Hamson argues that, after Kilpatrick, LAFD became quite dilatory in scheduling Skelly and Board of Rights hearings, including well beyond the one-year statute of limitations governing these matters. Compare AR 181 (LAFD concession that one-year statute commenced running on October 20, 2021) and AR 171 (complaint suggested the violation occurred on December 15, 2021). At the same time, it should be noted that Hamson’s Board of Rights did not even commence until December 2022, with no plausible excuse for such a delay. Reply at 7.