Judge James C. Chalfant, Case Number: 24STCP00632, Date: 2025-04-22 Tentative Ruling

Petitioner John Knox (“Knox”) seeks a writ of mandate compelling Respondents City of Los Angeles (“City”) and its Fire Department (“LAFD” or “Department”) and Fire Chief Kristin Crowley (“Crowley”) to set aside the decision discharging him.

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

On February 27, 2024, Knox filed the Petition against Respondents, alleging causes of action for traditional mandamus and administrative mandamus. The verified Petition alleges in pertinent part as follows.

On 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., ¶¶ 9. The Ordinance also required all employees to report their vaccination status regardless of any exemption. Pet., ¶9. The Ordinance made these requirements conditions of employment with the City. Pet., ¶9.

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., ¶14. The LAFD employee union, United Firefighters of Los Angeles City (“UFLAC”), never agreed to the employment conditions set forth in the Ordinance or the LBFO. Pet., ¶14. Knox alleges the City specifically targeted firefighters for discharge. Pet., ¶16.

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., ¶26. Section 1060(b) requires a Skelly[1] hearing before removing an employee from duty. Pet., ¶26. The same subsection restricts the Fire Chief from imposing a suspension greater than 30 days. Pet., ¶29. It further requires the Fire Chief to file a verified complaint signed under oath within five days of removing an employee from duty. Pet., ¶30. Failure to do so requires reinstatement. Pet., ¶30.

On October 28, 2021, Mayor Eric Garcetti (“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., ¶¶ 26.

On December 1, 2021, then Fire Chief Ralph Terrazas (“Terrazas”) suspended Knox without pay for refusing to be vaccinated against COVID-19. Pet., ¶¶ 26.

LAFD notified Knox that his Skelly hearing would be conducted on March 30, 2022. Pet., ¶27. Between Knox’s suspension and the notification of his Skelly hearing, LAFD changed its policy and asserted that the City had no obligation to inform Knox in advance of threatened disciplinary action. Pet., ¶27.

The Fire Chief failed to file a verified complaint within five days of Knox’s suspension. Pet., ¶30. LAFD refused to reinstate Knox despite this defect. Pet., ¶32.

LAFD convened a Board of Rights (sometimes, “Board”) hearing on September 13, 2023. Pet., ¶28. The Board of Rights was biased with “preconceived marching orders on how to punish an employee who refused to vaccinate”. Pet., ¶35.

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., ¶31. LAFD did not convert Knox’s suspension without pay to a paid temporary relief from duty. Pet., ¶31. The Board of Rights rejected testimony concerning disparate treatment on this change of practice. Pet., ¶31.

Knox twice moved to dismiss the complaint against him, on October 14 and October 25, 2023. Pet., ¶34. The LAFD advocates argued that the Board of Rights lacked jurisdiction to determine whether LAFD complied with due process protections. Pet., ¶34.

The Board refused to allow Knox to call Assistant City Attorney Vivianne Swanigan (“Swanigan”), drafter of the Ordinance, as a witness. Pet., ¶36.

The Board indicated it consulted with legal counsel but refused to name that counsel. Pet., ¶33. This prevented Knox from ensuring compliance with section 1060(j), under which Assistant City Attorneys Swanigan and 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., ¶36.

The Board of Rights did not allow Knox to present evidence related to the safety, efficacy, or effects of the vaccine. Pet., ¶¶ 36-41. The Board did not allow Knox to present evidence of disparate treatment. Pet., ¶¶ 36-41. The Board also did not allow Knox 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., ¶37.

On November 27, 2023, the Board of Rights found that Knox violated a condition of employment and proceeded to the penalty phase. Pet., ¶42. The Board then recommended discharging Knox. Pet., ¶35. Fire Chief Crowley adopted the recommendation on May 12, 2023. Pet., ¶52.

Knox seeks a writ of mandate compelling the City to set aside the decision discharging him, reinstating and compensating him for all lost wages and benefits, including service credit and continuing health insurance coverage, with interest at the legal rate retroactive to December 1, 2021, and restoring his seniority. Prayer, ¶¶ 1-3. Knox also seeks an order compelling the City to comply with section 1060. Prayer, ¶4. Knox 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, Knox seeks attorney fees, costs, and further relief as the court deems proper. Prayer, ¶¶ 6-8.

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. 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).

Any contract or agreement, express or implied, made by any employee to waive such benefits is null and void, and this article of the Labor Code shall not deprive any employee or his personal representative of any right or remedy to which he is entitled under the laws of this State. Labor Code §2804.

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

The term “member” refers to all officers and firefighters of LAFD, except for those who have not completed the period of probation in an entry position. §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).

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 (sometimes, “Fire Commission”) 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 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).

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 18, 2021, the City passed the Ordinance, which added Article 12 to LAAC Chapter 7, Division 4 (LACC §4.700 et seq.). Girard Decl., ¶5, Ex. K. 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., ¶6, 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.

All City employees who requested exemptions from the vaccine mandate had their requests reviewed by their departments for an initial determination, and the exemption paperwork was thereafter sent to the Personnel Department’s Review Committee, responsible for reviewing the request and supporting papers, and rendering a final decision. Employees whose requests were denied by the Personnel Department’s Review Committee could next request an appeal of the denial to be heard by their respective Department Head or General Manager. Employees whose exemption requests were denied, or denied after an appeal, were given additional time to become vaccinated. Girard Decl., ¶10.

On October 26, 2021, the City adopted an Enabling Resolution implementing the City’s LBFO for the consequences of non-compliance with the Ordinance. Girard Decl., ¶11, Ex. N. 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, Ex. N.[3]

On October 28, 2021, the Mayor issued a Memorandum to all Department heads directing them to implement the terms of the LBFO. Girard Decl., p. 4, ¶ 11, Ex. N. The Memorandum stated that Skelly and Board of Rights protections would apply to employees who do not comply. Ex. N; AR 586-89.

The Board of Rights Guidelines ensure that defendants can be heard during a Board of Rights hearing. See AR 102-13. In the Kilpatrick superior court case, Assistant City Attorney Swanigan indicated that section 1060 and FPBRA claims may be heard at a Board of Rights hearing. AR 404.[4]

In an annual review dated October 11, 2022, the Office of the Independent Assessor (“Assessor’s Office”) advised the Board of Fire Commissioners that LAFD had a crisis of backlog in cases awaiting Board of Rights hearing. AR 356. The Assessor’s Office recommended urgent and effective measures to address this problem. AR 356.

On October 28, 2021, the City Personnel Department informed Knox that he was not in compliance with the vaccination mandate and gave him instructions on how to comply. AR 492.

On November 9, 2021, Knox received a Notice and Order (the “Notice”) informing him that he was not in compliance with the vaccine requirements and giving him 48 hours to take steps toward compliance. AR 499-500.

Knox did not take the required steps to comply or apply for an exemption and, on December 1, 2021, the City placed him off-duty without pay for failure to meet a condition of employment. AR 502-03.

On December 4, 2021, Knox sent an email to Chief Terrazas alleging that his placement off duty without pay violated the City Charter and the Firefighters Procedural Bill of Rights Act (“FPBRA”). AR 235-41.

On March 8, 2022, LAFD issued a “Proposed Board of Rights” notice stating that Knox’s Skelly hearing was scheduled for March 30, 2022. AR 1789. The notice included an unsigned Form 501 complaint and two investigative reports concluding that Knox failed to comply with the vaccination mandate. AR 1790.

LAFD attempted personal service at Knox’s residence from March 10 to March 19, 2022. AR 1791. On March 16, 2022, the Department sent Knox notice by certified mail. AR 1973. Knox received and signed for the notice on March 19, 2022. AR 1799.

On March 24, 2022, Michael Curran, Esq. (“Curran”) sent an email to Deputy Chief Everett stating that his firm represented Knox and other firefighters and noted that he had recently been served with a Skelly packet. AR 77-79. The email objected to the ramrod nature of the Skelly notice and requested discovery. AR 77-78. The email further requested exemption from the vaccine for all his firm’s represented firefighters based on a constitutional “right to choose what goes into their body.” AR 892. Curran’s email asserted that his clients would honor their constitutional oaths and would not be participating in unlawful Skelly hearings. AR 79.

On April 4, 2022, LAFD issued to Knox a signed Form 502 complaint form[5] and Notice of Discharge. AR 1828-35. The Notice of Discharge listed the penalty as “TBD” (to be determined). AR 46-79. This notice was served on Curran, then counsel for Knox. AR 1833. LAFD also attempted personal service on Knox from April 9 to April 18. AR 1834. On April 19, 2022, LAFD mailed the notice to Knox by certified mail. AR 1835. Knox received and signed the notice on April 26, 2022. On April 19, 2022, the Board of Fire Commissioners was notified of the charge against Knox. AR 1827.

On August 10, 2023, LAFD issued Knox a “Board of Right’s Selection” notice proposing the Board members be selected on August 22, 2023. AR 1853-54. On Knox’s request, LAFD issued a new Board of Rights Selection proposing September 8, 2023. AR 1857-58.

On September 8, 2023, LAFD issued Knox relief from duty notice pending his Board of Rights hearing, which contained the charge. AR 270.

The charge against Knox stated: “On November 30, 2021, John Knox failed to meet a condition of employment as set forth in Ordinance 187134 effective August 25, 2021, and codified in Section 4.701(a) and (b) of the Los Angeles Administrative Code, by failing to comply with the City’s COVID-19 vaccination requirement.” AR 1829.

Knox testified that the City had given him a reasonable accommodation for his immune system that was not related to COVID-19. AR 1269. He applied for it in September 2019 and received it in the middle of 2020. AR 1269.[6]

Knox testified that he never applied for a COVID-19 exemption. AR 1270. He did not seek a religious exemption because he would be violating “a previous ordinance” that says the City cannot ask an employee to file a religious exemption. AR 1270. Additionally, his attorney sought a constitutional religious exemption based on the First Amendment. AR 1271. He was not familiar with the medical exemption form and did not believe one needed to be filed because he stood on the fact that he already had a reasonable accommodation. AR 1272.

Deputy Chief Perez testified that a survey memorandum was sent to LAFD employees on August 3, 2021, which asked about their vaccination status. AR 1200, 1210. Knox declined to state his vaccination status, which he was entitled to do. AR 1210.

The Board rejected Knox’s evidence obtained in a CPRA request and testimony on the statistics concerning 600 initially unvaccinated City employees because the statistics do not show what happened with those employees. AR 136-97, 1114.

Amy Bohn, David Fabela, and Josh Satterly offered favorable character testimony for Knox. AR 1739-54.

The Board found that Knox “made no efforts to submit a medical exemption to Ordinance 18134”. AR 1757. In fact, after having received two direct orders, Knox failed to “articulate how [a] preexisting reasonable accommodation satisfied the medical exemption requirement of Ordinance 187134”. AR 1756-57. He also failed to submit a religious exemption because the documents submitted by his prior counsel did not qualify. AR 1757. Knox admitted at the hearing that he did not submit a religious exemption. AR 1757. Ultimately, he “did not put forth any effort to meaningfully participate in the exemption process with [his] employer, the LAFD.” AR 1757-58. The Board found that Knox intentionally violated the Ordinance. AR 1758.

The Board also found that, while Knox claimed disparate treatment, he did not prove his claim. Armondo Carranza (“Carranza”) testified that he did, in fact, interact with LAFD and provided documentation requested by the Department. AR 1758. The evidence of disparate treatment was insufficient. AR 1758.

The Board unanimously found Knox guilty. AR 1737. The Board ruled Knox be removed from his position effective September 8, 2023. AR 1758-59.

Carranza began as a firefighter with LAFD in 1992. Carranza Decl., ¶1. Carranza has represented other LAFD members in disciplinary matters, through which he became familiar with LAFD disciplinary procedures. Carranza Decl., ¶¶ 1-2.

In early 2020, many members of LAFD expressed concerns about a potential vaccine requirement. Carranza Decl., ¶3. Carranza supported Knox’s efforts to establish Firefighters4Freedom, an organization protesting COVID-19 vaccination requirements. Carranza Decl., ¶3.

Because of his religious beliefs, Carranza refused to comply with the Ordinance. Carranza asserted that the Civil Rights Act obligated LAFD to exempt him. Carranza Decl., ¶4. He refused to vaccinate, request accommodations, pay for testing, register with Bluestone, and sign the Vaccine Policy Requirement (“VPR”) agreement. Carranza Decl., ¶4. Carranza was never suspended nor terminated. Carranza Decl., ¶5.

Carranza represented many unvaccinated members in Boards of Rights hearings for non-compliance with the Ordinance. Carranza Decl., ¶5. Beginning in November 2021, Carranza helped LAFD members draft declarations and file grievances for violations of their rights. Carranza Decl., ¶6. Because of Carranza’s and Knox’s efforts, the union filed a group grievance where between 250 and 350 members were awarded backpay. Carranza Decl., ¶6.

Around early August 2023, a firefighter at Carranza’s station received a 48-hour notice to be placed off duty with no pay for non-compliance with the Ordinance. Carranza Decl., ¶7. This member requested Carranza’s assistance submitting a declaration without requesting an accommodation. Carranza Decl., ¶7. In spite of this declaration, West Bureau Chief Dean Zipperman threatened to immediately take the member off duty on August 10, 2023 if he did not comply with the Ordinance. Carranza Decl., ¶7. The COVID-19 Religious Exemption Review Committed denied his exemption. Carranza Decl., ¶7. Carranza appealed the denial on August 10, 2023. Carranza Decl., ¶7. The appeal was approved, and the member remained on duty and unrestricted. Carranza Decl., ¶7.

On April 9, 2024, Carranza assisted a member who chose to request an accommodation under protest with a declaration. Carranza Decl., ¶8. The request was initially denied on April 17, 2024, but the next day his appeal was approved. Carranza Decl., ¶8.

Although he was non-compliant, LAFD allowed Carranza to continue work without restriction even as he filed additional grievances and unfair labor practice charges. Carranza Decl., ¶9. Carranza maintained that his declaration was sufficient for an exemption. Carranza Decl., ¶9. Carranza assisted other members with declarations and exemptions, many of whom returned to work after wrongful suspensions. Carranza Decl., ¶9. LAFD eventually recognized Carranza’s declaration and exempted him without requiring other compliance. Carranza Decl., ¶9.

City Personnel Department Policy 33.1C explicitly requires administrative leave with pay. Carranza Decl., ¶11.

Th Ordinance has been inconsistently enforced. Carranza Decl., ¶11. Members have received varying responses from the City for non-compliance with the vaccine mandate:

· Timothy Hamson (“Hamson”) was found guilty and given a four-month suspension.

· Morgan Bradley received no discipline but resigned awaiting a Board of Rights.

· Ed Brockschmidt was found guilty, had his religious exemption approved, and was terminated. Carranza Decl., ¶11.

Carranza has been subject to two disciplinary actions and four investigations since he began representing his fellow firefighters, while previously he had a spotless record. Carranza Decl., ¶12.

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 exemptions 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 firefighter signed the VPR agreement consenting to twice-weekly COVID-19 testing. Kepner Decl., ¶7; Girard Decl., ¶8.

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

The 367 firefighters not designated as vaccinated as of October 20, 2021 were permitted to show proof of vaccination at any time. Kepner Decl., ¶8. If a firefighter’s request for exemption was denied, that firefighter was granted additional time to comply. Girard Decl., ¶10.

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, Knox 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.

Knox did not show compliance or any intent to comply. Kepner Decl., ¶13. Therefore, LAFD placed Knox off duty without pay, effective December 1, 2021, for failure to meet a condition of employment. Kepner Decl., ¶13. At the time Knox 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.

LAFD subsequently notified Knox that he was subject to an investigation for his failure to comply. Kepner Decl., ¶15.

On March 8, 2022, LAFD issued a Proposed Board of Rights notice stating that a Skelly hearing was scheduled for March 30, 2022. Kepner Decl., ¶16. The notice included a description of the basis for the proposed action and the supporting documents. Kepner Decl., ¶17. Knox did not appear at his March 30 Skelly hearing. Kepner Decl., ¶17.

On April 4, 2022, LAFD issued to Knox a notice of the charge against him for failing to comply with the vaccination requirements. Kepner Decl., ¶18. The notice included a Form 501 complaint and Notice of Discharge. Kepner Decl., ¶18. The Department twice tried to serve Knox personally from April 9 and 18, 2022 before resorting to service by regular and certified mail. Kepner Decl., ¶18.

On August 10, 2023, LAFD issued Knox a “Board of Right’s Selection” notice proposing the Board members be selected on August 22, 2023. Kepner Decl., ¶19. At the request of Knox’s counsel, the selection date was moved to September 8, 2023. Kepner Decl., ¶19.

On September 8, 2023, LAFD notified Knox that the Board of Rights hearing would take place on September 13, 2023. Kepner Decl., ¶20. The notice informed Knox that he was removed from his position, effective September 8, 2023. Kepner Decl., ¶20. Fire Chief Crowley issued a Notice of Temporary Relief from Duty, effective the same day. Kepner Decl., ¶20.

Assistant Chief Robert Nelson, Battalion Chief Vincent Alvarado, and Battalion Chief Damon Leach served on Knox’s Board of Rights. Kepner Decl., ¶21. The Board found that Knox intentionally failed to comply with the Ordinance, and never took any actions to come into compliance. Kepner Decl., ¶21. The Board ruled that Knox be removed from his position, effective September 8, 2023. Kepner Decl., ¶21.

On November 27, 2023, Chief Crowley issued a Notice of Removal, effective September 8, 2023. Kepner Decl., ¶22, Ex. O. On November 30, 2023, Chief Crowley issued to Knox a Notice of Discharge, effective the same day. Kepner Decl., ¶22, Ex. O.

Petitioner Knox seeks a writ of mandate compelling the City to set aside the decision to discharge him.

When a petitioner challenges an administrative decision as unsupported by substantial evidence in light of the record as a whole, it is the petitioner’s burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency’s decision. State Water Resources Control Board Cases, (2006) 136 Cal.App.4th 674, 749. A recitation of only the part of the evidence that supports the petitioner’s position is not the “demonstration” contemplated by this rule.

According, if a petitioner contends that some issue of fact is not sustained, he is required to set forth in his brief all the material evidence on the point and note merely his own evidence. Unless this is done, the error is deemed to be waived. Id. (quoting Foreman & Clark Corp. v. Fallon, (1971) 3 Cal.3d 875, 881). The "[f]ailure to do so is fatal" to any substantial evidence challenge and "is deemed a concession that the evidence supports the findings." Defend the Bay v. City of Irvine, (2004) 119 Cal.App.4th 1261, 1266. The reviewing court should "not independently review the record to make up for appellant's failure to carry his burden." Ibid.

Additionally, all citations to evidence in a memorandum must provide “the number or letter of the exhibit, the specific page, and, if applicable, the paragraph or line number.” CRC 3.1113(k). Absent such support, the court must disregard facts contained in an unverified statement. Smith, Smith & Kring v. Superior Court, (1997) 60 Cal.App.4^th 573, 578. A party’s failure to comply with CRC 3.1113 is an admission that the memorandum is not meritorious. Quantum Cooking Concepts, Inc. v. LV Associates, Inc., (2011) 197 Cal.App.4^th 927, 931, 934 (where memorandum was defective, court has no obligation to search the record “backwards and forwards to try to figure out how the law applies to the facts”).

Petitioner Knox fails to comply with the court’s trial setting order and Local Rule 3.231(i)(2) by presenting a full and fair statement of facts with citations to the record in his opening brief. His brief contains a section labelled as “Statement of Facts” which consists entirely of argument, incomplete citations to the record, and no facts that are favorable to the Department’s position. Pet. Op. Br. at 10-17; compare Opp. at 3-6. It is not the court’s job to fill in facts and citations left out by Knox. His procedural failure means that he has waived his administrative mandamus claim.

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, Knox’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 appears 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 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 Knox could have raised other defenses before the Board of Rights. According to the Petition, the Board of Rights improperly (a) excluded testimony that the vaccine mandate was not scientifically based, which was imposed as a condition of employment without labor union approval) (Pet. ¶¶ 7-20, 34-35, 45, 50-53), (b) overruled his objection to registering and testing with Bluestone (Pet., ¶¶ 21-23), (c) overruled objections to religious exemption requirements in light of City Ordinance 185574 (Pet., ¶¶ 24-25), (d) denied his claims that LAFD violated his Skelly rights and that LAFD failed to comply with the City Charter and FPBRA concerning issuance of a verified complaint and relief form duty form, service on the Fire Commission, and convening a timely Board of Rights hearing (Pet., ¶¶ 27-29, 31-32), (e) refused to allow testimony from Assistant City Attorney Swanigan, who authored the Ordinance (Pet., ¶¶ 33-39), (f) received preconditioning with special training on COVID-19 Board of Rights hearings Pet., ¶7), and (g) issued rulings striking witnesses, declining discovery, and refusing to compel the Assistant City Attorneys who consulted to sit near the Board of Rights (Pet., ¶¶ 33-39). Pet. Op. Br. at 6, n. 3. Knox’s opening brief also generally refers to pages 13-18 of the Petition, which alleges untimely Skelly hearing, untimely complaint, failure to timely convene a Board of Rights, and failure to comply with section 1060. Pet. Op. Br. at 5-6.[8]

The Board of Rights should have permitted Knox to raise his issue concerning the consulting Assistant City Attorneys. Some of Knox’s other defenses – e.g., scientific efficacy of the vaccine and religious discrimination under the Fair Employment and Housing Act (“FEHA”) -- are not within the scope of a Board of Rights review. Where the Board of Rights refused to hear a defense, the court will consider it as part of Knox’s traditional mandamus claim.

Knox has waived any claim concerning the sufficiency of evidence for the Board of Rights hearing, and its decision is fully supported by the weight of the evidence anyway.

The charge against Knox was as follows: “On November 30, 2021, John Knox failed to meet a condition of employment as set forth in Ordinance 187134, effective August 25, 2021, and codified in Section 4.701(a) and (b) of the Los Angeles Administrative Code, by failing to comply with the City’s COVID-19 vaccination requirement.” AR 1831.

As the City argues (Opp. at 9-11), it is uncontroverted that Knox was unvaccinated, and the evidence showed Knox never filed a religious or medical exemption request.

The pertinent timeline is as follows: Knox failed to comply with the vaccination requirement or request a medical or religious exemption by October 19, 2021. Kepner Decl. ¶¶ 7-9. On or about October 29, 2021, the City Personnel Department sent information to Knox about his non-compliance and provided instructions how to comply. AR 491-97. Knox still did not comply or request a medical or religious exemption, and on November 9, 2021, the Department issued the Notice to Knox which required him to comply within 48 hours or he would be ineligible to work for the City. AR 499-500.

Knox did not comply with the vaccination requirement or file for an exemption and did not show he had begun compliance or planned to comply, so he was placed off-duty without pay effective December 1, 2021 for failure to meet the condition of employment pending a Board of Rights hearing. Kepner Decl., ¶13; AR 502-03.

At the Board of Rights hearing, Knox testified that he never applied for an exemption. AR 1270. He did not seek a religious exemption because he would be violating “a previous ordinance” that says the City cannot ask an employee to file a religious exemption. AR 1270. Additionally, his attorney sought a constitutional religious exemption based on the First Amendment. AR 1271. He was not familiar with the medical exemption form and did not believe one needed to be filed because he stood on the fact that he already had a reasonable accommodation. AR 1272.

The Board found that Knox “made no efforts to submit a medical exemption to Ordinance 18134”. AR 1757. In fact, after having received two direct orders, Knox failed to “articulate how [a] preexisting reasonable accommodation satisfied the medical exemption requirement of Ordinance 187134”. AR 1757. He also failed to submit a religious exemption because the documents submitted by his prior counsel did not qualify. AR 1757. Knox admitted at the hearing that he did not submit a religious exemption. AR 1757. Ultimately, he “did not put forth any effort to meaningfully participate in the exemption process with [his] employer, the LAFD.” AR 1757-58. The Board found that Knox intentionally violated the Ordinance. AR 1758. While Knox claimed disparate treatment, he did not prove his claim. Carranza did, in fact, interact with LAFD and provided documentation requested by the Department. AR 1758. The evidence of disparate treatment was insufficient. AR 1758.

For his traditional mandate claim, the Petition alleges that the Board of Rights improperly (a) excluded testimony that the vaccine mandate was not scientifically based, which was imposed as a condition of employment without labor union approval) (Pet. ¶¶ 7-20, 34-35, 45, 50-53), (b) overruled his objection to registering and testing with Bluestone (Pet., ¶¶ 21-23), (c) overruled objections to religious exemption requirements in light of City Ordinance 185574 (Pet., ¶¶ 24-25), (d) denied his claims that LAFD violated his Skelly rights and that LAFD failed to comply with the City Charter and FPBRA concerning issuance of a verified complaint and relief form duty form, service on the Fire Commission, and convening a timely Board of Rights hearing (Pet., ¶¶ 27-29, 31-32), (e) refused to allow testimony from Assistant City Attorney Swanigan, who authored the Ordinance (Pet., ¶¶ 33-39), (f) received preconditioning with special training on COVID-19 Board of Rights hearings Pet., ¶7), (g) issued rulings striking witnesses, declining discovery, and refusing to compel the Assistant City Attorneys who consulted to sit near the Board of Rights (Pet., ¶¶ 33-39). Pet. Op. Br. at 6, n. 3. Knox’s opening brief also generally refers to pages 13-18 of the Petition, which alleges untimely Skelly hearing, untimely complaint, failure to timely convene a Board of Rights, and failure to comply with section 1060. Pet. Op. Br. at 5-6.

Many of Knox’s defenses alleged in the Petition are not pursued in his opening brief and are waived. Additionally, Knox relies on matter that was not judicially noticed -- including F4F (Pet. Op. Br. at 5, n. 1) and Arbitrator Perera’s decision (Reply at 4) -- and also improperly relies on his attorney’s argument as if it were evidence (e.g., Pet. Op. Br. at 12 (citing AR 1557-60)).

Knox further cites to testimony or evidence from other administrative proceedings that is in the administrative record, but was not necessarily received into evidence by the Board, including a Board finding from Watkins’ case (AR 359-65), testimony from the case of Robert Kilpatrick’s (“Kilpatrick”) (AR 407-09), the Perera arbitration decision (AR 434-35), a complaint against firefighter Kobe (AR 299-301), and a CPRA request and records that were expressly refused (AR 136-97).

Finally, Knox presents new evidence or issues in reply, including the need for a Temporary Relief from Duty Form 502 (Reply at 3) and discussion of Personnel Rules 33.1(C) and (D) (these rules are not in evidence) (Reply at 4), and a January 13, 2025 memorandum (Reply at 5, n. 3). This new evidence violates Regency, supra, 31 Cal.App.4th at 1333, and has not been considered.

The result is that Knox presents only a few issues: (a) his medical exemption should have been accommodated, (b) his religious exemption should have been granted, (c) the section 1060 process was not followed, (d) he was subjected to disparate treatment, (e) the exemption procedure was improper, and (f) the Board improperly rejected witnesses.

The court notes that Knox refers to a failure to engage in the interactive process for an accommodation of his religious beliefs Americans in violation of the Americans with Disabilities Act (“ADA”). Pet. Op. Br. at 17-19. A violation of the ADA cannot be raised in a mandamus claim. Knox may pursue that cause 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. The court will consider the interactive process only for Knox’s religious and medical exemption issues.

Knox argues that he was subjected to disparate treatment. Pet. Op. Br. at 9-11. 13. 17. 19.

The Board expressly addressed the disparate treatment issue, finding that Knox did not prove his claim. Carranza did, in fact, interact with LAFD and provided documentation requested by the Department and the evidence of disparate treatment was insufficient. AR 1758. Since the Board addressed disparate treatment, and since Knox has waived any claim concerning the sufficiency of evidence for his Board of Rights hearing, he may not claim error in its analysis of disparate treatment.

Assuming, arguendo, the court should consider this claim, Knox relies on case law that showing disparate treatment or select policy enforcement is clearly a permissible means to attack reasons given for treating employees differently. See Loggins v. Kaiser Permanente Intern., (2007) 151 Cal.App.4^th 1102, 1113 (summary judgment granted on racial discrimination claim where plaintiff failed to present substantial evidence that her firing was a pretext because coworkers also used company resources to conduct business). Pet. Op.Br. at 19.

Knox argues that, on August 18, 2023, LAFD had to amend the complaint because it cited the wrong Ordinance, which was after the one-year statute of limitations had expired on October 20, 2022, just like in Watkins’ case. AR 363-64 (Watkins decision). Yet, Watkins was restored to duty without a suspension while Knox was fired. The range of discipline imposed on all cases heard to date alone shows that the entire process was and remains infirm. Carranza Decl., ¶11. Pet. Op. Br. at 9-10.

Knox also argues that the City Attorney convinced the Board to reject most of his witnesses, including witnesses who would testify to the vaccination statistics, even though Bruce Whidden (“Whidden”), the head of the City’s Civil Service Commission charged with responding to CPRA requests, was designated as a witness by Knox. AR 136-97 (CPRA request and excluded records); AR 1113-16 (Board excluded vaccination statistics as not addressing reasons for individual employee treatment for disparate treatment issue). This testimony was rejected even though it showed disparate treatment of unvaccinated employees versus Knox who was singled out for discipline -- i.e., 600 employees were not complying and yet there have been only eight Skelly hearings. These numbers alone showed that an emergency warranting Knox’s removal did not exist, since unvaccinated employees were retained and only a select few were punished. Although Deputy Chief Perez argued that it took time to catch up and get employees vaccinated, the number of Board proceedings remained relatively consistent. Whidden had the ability to clear up the ambiguities created by Perez’ testimony as to when the data was compiled, yet LAFD refused to allow him to testify. Pet. Op. Br. at 11.

Finally, the Fire Chief ignored the letter of the law when it came to LAFD’s own executives and favored firefighters, while picking and choosing between vaccinated and unvaccinated employees. See AR 19-30, RJN Ex. 3 (articles by Paul Pringle of the Los Angeles Times and journalist Daniel Guss detailing dual disciplinary standards); see also Carranza Decl., ¶¶ 4-5, 9-11. Pet. Op. Br. at 13.

Knox raises three areas of disparate treatment: (a) the lack of discipline for firefighters Watkins and Corranza, (b) the statistics of other unvaccinated employees, and (c) the treatment of LAFD executives. A disparate treatment claim must present all pertinent facts concerning the compared discipline and must show that the facts are substantially similar and yet the discipline was significantly different. Additionally, the discretion accorded to the agency means that a disparate treatment claim would rarely be granted based on a single differential treatment of another employee. None of Knox’s disparate treatment arguments meet these requirements.

First, the Board decision concerning Watkins (AR 362-63) (which may not be in evidence) concerned misdating of the charge against him, not amendment of the Ordinance number. Knox does not even show that his charge was amended to change the Ordinance number or present the vaccination facts concerning Watkins. As for Carranza, the Board expressly found that he did provide an exemption request.

Second, the statistics concerning unvaccinated employees are insufficient because the circumstances of each employee must be considered. Deputy Chief Perez testified that of the 600 unvaccinated employees, most of them complied with the vaccine mandate or retired as time went on. AR 1117. Therefore, a comparison of 600 unvaccinated employees with only eight Skelly hearings was of no value.

Third, the treatment of disciplinary charges against LAFD executives is not in evidence. These charges also are apparently for sexual harassment and other violations unrelated to the vaccine mandate.

Knox argues that he complied with both the religious and medical exemption requirements.

The Board found that Knox “made no efforts to submit a medical exemption to Ordinance 18134”. AR 1757. In fact, after having received two direct orders, Knox failed to “articulate how [a] preexisting reasonable accommodation satisfied the medical exemption requirement of Ordinance 187134”. AR 1757. He also failed to submit a religious exemption because the documents submitted by his prior counsel did not qualify. AR 1757. Knox admitted at the hearing that he did not submit a religious exemption. AR 1757. Ultimately, he “did not put forth any effort to meaningfully participate in the exemption process with [his] employer, the LAFD.” AR 1757-58. Since the Board addressed the religious and medical exemption issues, and since Knox has waived any claim concerning the sufficiency of evidence for his Board of Rights hearing, he may not claim error in its analysis of the religious and medical exemption issues.

Assuming, arguendo, the court should consider these claims, they are untenable.

Knox argues that LAFD could never identify whether the religious exemption form was issued before or after he was relieved from duty without pay on December 1, 2021. Although LAFD claimed that the form had to be filled out before December 18, 2021, or before the October 20, 2021 violation date referenced in the amended complaint, these dates were not absolute. AR 363-64 (Watkins decision). By the February to May 2022 timeframe that Kilpatrick, Watkins, Carranza and Hamson submitted their forms, Knox was already gone. Pet. Op. Br. at 14.

Carranza also tried to provide testimony, now in his declaration (Carranza Decl., ¶¶ 4-11) about LAFD’s extremely dilatory effort to remove employees who were claiming exemptions. This rejected evidence showed that there clearly was no exemption deadline which could be enforced against Knox. Nor did LAFD offer any evidence showing that between December 2021 and August 2023, when Knox was notified that his Board of Rights would finally convene, it asked Knox whether he was claiming one or both exemptions. Pet. Op. Br. at 15.

By then there was wide-spread news media coverage of Knox’s reliance upon his God-given rights. Knox was the leading spokesperson against the vaccination (he calls it the “jab”), often citing his religious beliefs when speaking at a litany of Church and News Media Programs across the United States in the Fall of 2021. AR 227. Any notion that he was feigning his beliefs should be rejected. Knox qualified for an exemption, regardless of whether it is labeled as a constitutional exemption based upon religion or the religious exemption Assistant City Attorney Swanigan sought to enforce notwithstanding Ordinance 185574’s prohibition of such registration. Pet. Op. Br. at 15.

The EEOC has implemented numerous regulations to ensure that one’s religious freedom is not abrogated. In demonstrating a sincerely held religious belief, the EEOC’s latest Compliance Manual states: “The Supreme Court has made it clear that it is not a court’s role to determine the reasonableness of an individual’s religious beliefs,” and that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit 1st Amendment protection.” Thomas v.Rev. Bd., (1981) 450 U.S. 707, 714. Pet. Op. Br. at 17-18.

There is a cooperative information-sharing process between employer and employee for religious accommodation requests similar to the interactive process for disability accommodation requests under the ADA. See Ansonia Bd. of Educ. v. Philbrook, (1986) 479 U.S. 60, 69 (explaining that “bilateral cooperation is appropriate in the search for an acceptable reconciliation of the needs of the employee’s religion and the exigencies of the employer’s business.”) (internal quotation marks and citation omitted)); see also Thomas v.Nat’l Ass’n of Letter Carriers, (10^th Cir. 2000) 225 F.3d 1149, 1155 n. 5 ( “[t]he [ADA] ‘interactive process’ rationale is equally applicable to the obligation to offer a reasonable accommodation to an individual whose religious beliefs conflict with an employment requirement”). Pet. Op. Br. at 18.

"[T]o determine the appropriate reasonable accommodation it may be necessary for the employer] to initiate an informal, interactive process" with the disabled employee. Richards v. CH2M Hill, (2001) 26 Cal. 4th 798. It is the employee's initial request for an accommodation which triggers the employer's obligation to participate in the interactive process. Taylor v. Principal Financial Group, Inc., (5^th Cir.1996), 93 F.3d 155. Thus, as “an employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions, if the employer can do so without undue hardship or if the employer offers similar assistance or benefit to other disabled or nondisabled employees or has a policy of offering such assistance or benefit to any other employees”. Prilliman v. United Air Lines, (1997) 53 Cal.App.4^th 935, 950-51. Pet. Op. Br. at 18-19.

Knox argues that he fulfilled his duty when Curran sent his email seeking a constitutional exemption based on religious freedom. Yet, LAFD refused to engage in any colloquy to place the sincerity of Knox’s beliefs in question. Pet. Op. Br. at 17-18.

The good faith interactive process was ignored by the City. Although the Ordinance and the Mayor’s memorandum stated that the interactive process would be followed, it was not. Pet. Op. Br. at 17-18. LAFD failed to fulfill its obligations relative to Attorney Curran’s communication. If LAFD did not believe Knox could offer plausible "work restrictions" -- although he had been doing so since August 2020 -- the City had to engage in the interactive process. It did not. Pet. Op. Br. at 18-19.

LAFD is being coy when claiming it did not know about Knox’s constitutional claims of freedom of religion. Since it had an obligation to investigate the charge against Knox, one can surmise that it already knew the answer to the question whether he should be treated as exempt. The fact LAFD purposefully withheld Knox’s constitutional exemption from the Skelly hearing officer, even though Skelly permits an employee to provide a written defense in lieu of being physically present at the hearing, shows LAFD was not seeking to discern the truth. It should be obvious that LAFD automatically denied religious exemption requests without engaging in an interactive process and with the intent of eradicating individuals with sincere religious beliefs from the City’s workforce. Pet. Op. Br. at 15-18.

Knox is wrong. The City’s religious exemption form may not have been available before he was removed from duty without pay on December 1, 2021, but it was available long before his September 2023 Board of Rights hearing. He never submitted anything that could be described as a religious exemption form, whether on a cocktail napkin or otherwise. Knox admitted in his testimony that he never applied for an exemption. AR 1270. He testified that he did not seek a religious exemption because he would be violating “a previous ordinance” that says the City cannot ask an employee to file a religious exemption. AR 1270. He did not claim he did not know about an exemption form or that he could seek an exemption at any time before, or even at, his Board of Rights hearing.

As for Curran’s March 24, 2022 email to Chief Everett, it does not qualify as a request for religious exemption. Initially, it is not clear that the Ordinance permits an attorney to submit an exemption request for an employee. Assuming that it does, Curran’s email stated that his firm represented Knox and other firefighters and principally argued that the Skelly notice and process was defective. AR 77-78. The email further requested an exemption from the vaccine for all his firm’s represented firefighters based on a constitutional “right to choose what goes into their body.” AR 892. This language is not a request for exemption on religious grounds.

Because Knox made no religious exemption request, the City had no duty to engage in the interactive process. As Knox argues, it is the employee's initial request for an accommodation which triggers the employer's obligation to participate in the interactive process. See Taylor v. Principal Financial Group, Inc., supra, 93 F.3d at 155.

Knox argues that he had been granted a medical accommodation in August 2020, after the pandemic began. AR 1269. That accommodation was never rescinded, and LAFD could not do so without resorting to the good faith interactive process required by both federal and state disability laws. The Board was told it could not decide these issues, and the City Attorney refused to allow expert witnesses to be called who could professionally link Knox’s autoimmune deficiencies with the reason why he could not vaccinate. Knox was denied an interactive process to address Knox’s assertion that he could not be fired because of a preexisting accommodation for an autoimmune deficiency. AR 1455-59. Pet. Op. Br. at 16-17.

Knox is incorrect. Knox’s receipt of a medical accommodation prior to the Ordinance’s vaccine mandate is not a request for a medical exemption, as he seems to admit. Nor does it require any interaction by LAFD or the City. If Knox claimed a medical need for exemption, he merely had to make a claim to that effect. Only then could the interactive process take place. The Board correctly decided this issue.

Knox argues that, unlike other firefighter cases before this court, he claims both a religious and medical exemption which the Board declined to consider, except to state that Knox purportedly did not submit proper and timely documentation, although he did. AR 1200-09 (employee in August 2021 could decline to state vaccination status). Meanwhile, LAFD has failed to answer basic questions – namely, when was the Religious Form made available, why did it have to be uploaded to Bluestone, who authorized recission of Knox’s August 2020 medical accommodation and, if there was a deadline for Knox to act, why were other unvaccinated firefighters not fired? Pet. Op. Br. at 6-7.

In November 2021, Knox was given 48 hours to comply, and was told that he could have up to December 18, 2021 to agree to vaccinate and pay Bluestone for testing. This was not even available because Knox was claiming exemptions. See AR 753 (item 2). Although Knox had given notice of his vaccination status continuously to his chiefs and captains from August through November 2021, LAFD advocates falsely accused Knox of never revealing his vaccination status, let alone that he was seeking exemptions. But LAFD’s own Survey acknowledge that conversations apparently did take place between Knox and assigned superiors, including Chief Valle who chose to not testify. AR 199-216.[9] Pet. Op. Br. at 10.

Knox argues that at no time before he was scheduled for a Skelly hearing did LAFD notify him of a deadline to submit exemption requests. His Board of Rights did not even start until September 2023, more than one year after the Watkins decision issued. Chief Wuerfel sought to justify the Watkins decision by stating there was no deadline for filing for a religious exemption, while acknowledging that Watkins sought a formal exemption after attending his Skelly hearing in April 2022. No one communicated to Knox that LAFD would accept a request for a religious exemption as late as the Spring of 2022. LAFD placed Knox in a dilemma since Ordinance 185574, passed in 2018, prohibits an employee from registering his or her religious beliefs. AR 1270-71. Thus, it was wrong to expect Knox to violate his oath to uphold the law by violating Ordinance 185574. Pet. Op. Br. at 8, 13-14.

This argument is spurious. Knox never intended to seek a religious exemption, as he testified. The need for an exemption form or a cocktail napkin therefore is irrelevant. So is the lack of a deadline. Knox’s reliance on Ordinance 185574, which he fails to provide, also is misplaced. Nothing about claiming a religious exemption would require Knox to register his religious beliefs. It is worth noting that Knox had no problem citing his religious beliefs when speaking at a litany of Church and News Media Programs across the United States in the Fall of 2021. See AR 227.

Knox makes general references to due process, including that "[t]he Fourteenth Amendment” provides a procedural protection of property and is a “safeguard of the security of interests that a person has already acquired in specific benefits." Board of Regents v. Roth, (1972) 408 U.S. 64, 576. When due process requires a hearing, it is generally acknowledged that the adjudicator must be impartial. Haas v. County of San Bernardino, (2002) 27 Cal.4th 1017, 1025. Pet. Op. Br. at 17.

Knox argues that he raised procedural violations of section 1060, FPBRA, and Personnel Rule 33.1(d) in a motion to dismiss which were the backbone of his due process claims. AR 715.[10] The Board of Rights Manual section 120 confers jurisdiction on the Board, and Assistant City Attorney Swanigan told this court that a Board of Rights could consider these issues. Even the Mayor stated when distributing the LBFO that Skelly and Board of Rights protections would be adhered to, although he suggested that removal would be without pay. AR 586-89. The motion to dismiss should have been granted by the Board. Pet. Op. Br. at 7-8, 13.

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.

Knox notes that his Board of Rights hearing did not even start until September 2023. The explanation from the City is that “because this was not a discipline case but rather involves a “condition of employment”, procedural safeguards do not apply. Knox disagrees with the City’s reliance on a condition of employment as opposed to discipline since the parties to the labor contract have specifically defined what is a “condition”, let alone the penalties prescribed for offenses. Pet., ¶14; AR 434-35 (Perera Arbitration Decision). The Fire Commission was advised by the Assessor’s Office over the course of several years of audits that LAFD could not unilaterally impose conditions of employment without negotiating them with the affected labor unions. Pet. Op. Br. at 8, 9.

The City argues that the point of Skelly is to avoid an erroneous deprivation. 15 Cal.3d at 215. In the emergency situation then existing, employees were given a notice stating that City records show the employee was unvaccinated and not in compliance with the vaccine mandate. The employee was given 48 hours to respond and say: “It’s erroneous, I’m vaccinated.” Knox received the Notice on November 9, 2021, and had 48 hours until November 12, 2021, to respond to his failure to be vaccinated. He did not comply and was placed off-duty without pay on December 1, 2021, for failure to meet a condition of employment. Opp. at 12.

The court agrees with Knox 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. Nothing in section 1060 describes the form a charge must take to fall within section 1060(b). The City Council’s October 26, 2021 Resolution stated that LAFD firefighters who did not comply with the notice would be subject to a Board of Rights, and the City would abide by the applicable City Charter requirements. Girard Decl., Ex. N. The Mayor’s October 28, 2021 memorandum 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. Girard Ex. N. Finally, the November 9, 2021 Notice expressly warned Knox 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. The City’s own evidence is that all firefighters who refused to comply with the Notice were placed off-duty pending separation. Kepner Decl., ¶¶ 10-11. Knox’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 1, 2021. This was an accusation of wrongdoing and cannot be reasonably described as anything other than relief from duty for non-compliance under section 1060(b).

The fact that the December 1, 2021 memorandum informed Knox that he was placed off-duty pending a disciplinary review of his non-compliance with the Ordinance (AR 502-03) does not affect the analysis. Nor does the memorandum’s statement that he could use accrued vacation time or banked time do so. AR 502. It is true that the formal complaint charging Knox with failing to meet the vaccination requirement as a condition of employment was not issued until April 4, 2022. Kepler Decl., ¶18. But section 1060(b) became applicable on December 1, 2021, when the City placed Knox off duty without pay for non-compliance with the November 9 Notice’s 48-hour deadline. Any interpretation of section 1060(b)(1) that would require a formal charge to be on file before it becomes applicable would unduly narrow its “predisciplinary protections” and the protections of section 1060(c).

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.

On November 9, 2021, Knox received the Notice 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. Knox 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.

Knox did not sign the VPR agreement, did not take steps towards compliance, and did not seek an exemption. When Knox failed to meet this condition of employment pursuant to the Ordinance, he was relieved of duty on December 1, 2021 and sent home without pay.

Subsequently, on March 8, 2022, LAFD issued a “Proposed Board of Rights” notice stating that Knox’s Skelly hearing was scheduled for March 30, 2022. AR 1789. The Proposed Board of rights included an unsigned Form 501 complaint and two investigative reports finding that Knox failed to comply with the vaccination mandate. AR 1790. LAFD attempted personal service at Knox’s residence from March 10 to March 19, 2022. AR 1791. On March 16, 2022, the Department sent Knox notice by certified mail. AR 1973. Knox received and signed for the notice on March 19, 2022. AR 1799. As his counsel represented, Knox did not appear at his March 30, 2022 Skelly hearing. 1784.

On April 4, 2022, LAFD issued to Knox a signed Form 502 complaint form and Notice of Discharge. AR 1828-35. The Notice of Discharge listed the penalty as “TBD” (to be determined). AR 46-79. LAFD also attempted personal service on Knox from April 9 to April 18. AR 1834. On April 19, 2022, LAFD mailed the notice to Knox by certified mail. AR 1835. Knox received and signed the notice on April 26, 2022. AR 1827.

Knox argues that his placement off duty without pay on December 1, 2021 ignored his Skelly rights. In issuing the LBFO, the Mayor stated that Skelly and Board of Rights protections would be followed. Knox submits that LAFD did not have the right to unilaterally change the disciplinary process obligating it to provide notice of the penalty that would be prescribed before commencing a Skelly hearing -- i.e., discharge vs. TBD. See AR 46-79 (motion to dismiss). The Board rejected the motion on the advice of the City Attorney. AR 862 (decision to hold off ruling); AR 990.[11]

Knox argues that the City justifies its change in position by claiming that failure to fulfill a condition of employment is not a punitive action and thus the penalty need not be revealed. Knox disagrees, noting that the penalty for violating a condition of employment was set by the union and the City in 2008. Until the COVID-19 cases started, the penalty had been listed, including in cases for failing to satisfy a condition of employment. A change was then unilaterally imposed by LAFD, erasing the requirement than an employee be told in advance of his/her Skelly hearing of the type of discipline being contemplated -- i.e., reprimand, suspension, or firing.[12] Pet. Op. Br. at 12.

By claiming the Board could determine the penalty, the City abrogated the 2008 agreement with the union.[13] Since FPBRA and section 1060 rely upon the concept of punitive action, relief without pay for the entire time that an employee is precluded from working is an unlawful punitive action.[14] Pet. Op. Br. at 12.

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 Knox’s relief from duty without pay on December 1, 2021 until he was offered a Skelly hearing on March 30, 2022 satisfied the requirements of section 1060(b)(1) for temporary relief from duty pending a Board of Rights hearing. It did, 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.[15] 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.

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

The City’s interest was substantial also. Knox 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. Girard Decl., Ex. N (October 26, 2021 Resolution). 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 Knox was vaccinated or willing to be vaccinated and whether he had timely requested a medical or religious exemption. The undisputed evidence is that Knox was not vaccinated and had not submitted a request for an 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, Knox received the pre-disciplinary procedures otherwise required by law pursuant to section 1060(b) and due process for the approximately 119-day period between Mammone’s relief from duty without pay on December 1, 2021 until he was offered a Skelly hearing on March 30, 2022, at which he would have been given the opportunity to be heard and respond to the allegations. While the 119-day period is lengthy, Knox does not specifically complain about the delay. More important, Knox declined to appear at the Skelly hearing, which mooted any pre-disciplinary procedure to which he was entitled under section 1060(b).

The same is true for the TBD issue. Skelly held that federal and state due process generally entitles public employees to a pre-disciplinary hearing before any discipline is imposed. The procedure must include: (1) notice of the disciplinary action proposed to be taken; (2) a statement of the reasons therefor; (3) a copy of the charges and materials upon which the action is based; and (4) the right to respond, either orally or in writing, to the authority initially imposing the discipline. 15 Cal.3d at 215. Knox’s Skelly packet included an unsigned Form 501 complaint and two investigative reports finding that Knox failed to comply with the vaccination mandate. AR 1790. The complaint listed the proposed discipline as TBD. This alleged violation of Skelly is mooted by the fact that Knox refused to appear.[16]

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 predisciplinary procedures required by law. The City met these pre-disciplinary procedures. See ante.

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).

A “verified complaint” means the charges must be signed by the Fire Chief or his/her designee. Therefore, if the Fire Chief imposes 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.

Knox argues that he demanded compliance with section 1060, including the filing of a verified complaint with the Fire Commission within five days and then immediate commencement of the Board of Rights hearing process. LAFD also failed to personally deliver its 48-hour notice and related documentation to Knox in person before resorting to mail. LAFD was obligated to satisfy these mandatory requirements but chose to ignore them. The language in the City Charter is not ambiguous. Once raised, Knox was entitled to immediate reinstatement and to be made whole, along with a declaration that the action taken against him was “void and of no effect” and that she shall be “restored to duty without any loss of pay and without prejudice”. §1060(c). Pet. Op. Br. at 9.

Chief Terrazas’ December 1, 2021 memorandum placed Knox off duty without pay for failure to meet the vaccine mandate as a condition of employment. AR 502-03. It was not intended as a formal charge, however. The formal process began with a proposed Skelly hearing for March 30, 2022 – which Knox refused to attend -- and eventually a formal complaint on April 4, 2022. AR 1828-35. The Notice of Discharge listed the penalty as “TBD” (to be determined). AR 46-79. LAFD also attempted personal service on Knox from April 9 to April 18. AR 1834. On April 19, 2022, LAFD mailed the notice to Knox by certified mail. AR 1835. Knox received and signed the notice on April 26, 2022. AR 1827. On the same date, the Board of Fire Commissioners was notified of the verified written complaint and service on Knox in compliance with section 1060(c). AR 1827.

This effort would have complied with section 1060(c) except that Knox had been temporarily placed off duty on December 1, 2021, pursuant to section 1060(b)(1). This required the City to meet the requirements of section 1060(c). Specifically, where an order for temporary relief from duty or suspension is involved, (1) the order shall contain a statement of the charges assigned as causes, (2) 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, and (3) 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 1, 2021 memorandum functioned as a statement of the charge that Knox failed to comply with the vaccine mandate as a condition of employment. However, it was not verified and was not served on Knox personally or by certified mail. See §1060(d). The memorandum, therefore, did not comply with section 1060(c). Only the formal complaint served on April 19, 2022 performed this task. The December 1 memorandum also was not filed with the Board of Fire Commissioners within five days of the order for temporary relief from duty.

Compliance with section 1060(c) was mandatory and not excused by compliance with section 1060(b)’s pre-disciplinary procedure. Therefore, Knox’s temporary relief from duty was void and he should have been restored to duty without loss of pay. See §1060(c).[17]

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).

Knox argues that his Board of Rights hearing was untimely. In an annual review dated October 11, 2022, the Assessor’s Office advised the Board of Fire Commissioners that LAFD had a crisis of backlog in cases awaiting Board of Rights hearing. AR 356. The Assessor’s Office recommended urgent and effective measures to address this problem. AR 356. LAFD ignored these findings, allowing more than a dozen firefighters to suffer more than 18 months without pay, even after Watkins was restored to duty because his August 2022 Board of Rights found that there was no deadline for submitting a religious and/or medical exemption. Other cases dating to the same time frame as Watkins’ and Knox’s suspensions remain outstanding. AR 359-65 (Watkins decision); Carranza Decl., ¶¶ 11, 13. Pet. Op. Br. at 8, 9.

The complaint and Notice of Discharge were served on April 19, 2022 and Knox’s Board of Rights hearing apparently did not begin until September 2023. While section 1060(a) does not require a Board of Rights hearing to occur within any particular period, due process would require it to begin within a reasonable time for an employee who is taken off duty without pay, as the Assessor’s Office realized.

Despite this fact, Knox does not meet his burden with respect to the lengthy delay between the Skelly hearing and Board of Rights. He provides no evidence about what happened between April 19, 2022 and September 2023 other than the issue of backlog, including whether he requested any portion of the delay. He also does not cite any objection about the delay or any ruling by the Board on the issue.

In sum, the City complied with section 1060(b) and due process for predisciplinary procedures. Knox also fails to show that a Relief from Duty Form was required or that his delayed Board of Rights hearing violated due process. However, the City 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. Knox should have been restored to duty without loss of pay. Section 1060(c) states that the restoration is without prejudice to Knox, but also to the City, meaning that the City could relieve Knox from duty as part of the formal complaint process. The formal complaint was issued on April 19, 2022 and LAFD could have relieved him from duty at that time. Therefore, Knox is entitled to back pay for the period from December 1, 2021 to April 19, 2022.

The Petition is denied on the issue of discharge but granted for back pay. The discharge is upheld, but Knox is entitled to back pay for the period from December 1, 2021 to April 19, 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 Knox’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 29, 2025 at 9:30 a.m.

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

[2] Knox requests judicial notice of the following exhibits: (1) a reporter’s transcript February 1, 2023 of testimony by Deputy Chief David Perez (“Perez”) from the Board of Rights hearing of City employee Timothy Hamson (RJN Ex. 1); (2) a May 9, 2023 Board of Rights penalty letter for Engineer Mathew Mammone mentioning a 2022 Board of Rights training (RJN Ex. 2); newspaper articles offered to show disparate treatment of LAFD executives (RJN Ex. 3); (4) a proposed decision by a hearing officer dated January 14, 2024 in In re David Shubin and the General Services Department (RJN Ex. 4); and (5) 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. 5).

The requests for judicial notice are denied. A reporters’ transcript (RJN Ex. 1) from an administrative proceeding other than the proceeding underlying the pending case is not subject to judicial notice. The penalty letter (RJN Ex. 2) could be judicially noticed only for the penalty imposed, not the truth of facts within it, but the latter is the reason it has been offered. The newspaper articles (RJN Ex. 3) could be judicially noticed for their existence but not the truth of their content. The proposed decision of a hearing officer (RJN Ex. 4) is not a final decision that can be judicially noticed. The unpublished decision in F4F (RJN Ex. 5) would be subject to judicial notice if it was relevant. It is not. The decision cannot be cited (CRC 8.1115) and it also only reversed a demurrer ruling and did not make a merits decision.

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

[4] Although this transcript is in the record, it is not clear that it was received in evidence by the Board.

[5] The unsigned complaint for the Skelly hearing miscited the Ordinance as “18734” and was corrected in the signed complaint. AR 719, 1831.

[6] Knox sought a reasonable accommodation of avoiding environments of immediate danger to life and health, including buildings that could contain mold or volatile organic compounds. This meant that he should not be required to enter buildings subjected to fire or water damage. AR 247.

[7] In reply, Knox attaches an unauthenticated memorandum dated January 13, 2025. Aside from its lack of foundation for admissibility, the memorandum is new evidence presented for the first time in reply and is disregarded. See Regency Outdoor Advertising v. Carolina Lances, Inc., (“Regency”) (1995) 31 Cal.App.4th 1323, 1333.

[8] Although not mentioned in the opening brief’s list of issues, the Petition also alleges disparate treatment and exclusion of testimony concerning the City’s vaccination statistics. Pet., ¶¶ 39, 50.

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

[10] This citation is incorrect.

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

[12] Knox offered a properly filled out complaint form for firefighter Kobe. AR 299-301, 1557-60 (argument that Kobe received six-day suspension). The Board refused this evidence. AR 301.

[13] Knox made a demand for production of the 2008 agreement (apparently, a MOU) which established “conditions of employment”. AR 44. LAFD refusal to produce it, asserting attorney-client privilege. AR 684-85, 693; see also LAFD Rules & Regulations, Book 3, Section 10(r) (defining “conditions of employment” as the obligation of an employee to maintain a driver’s license and any certificates needed to perform his or her specific job, e.g, EMT certification). Pet. Op. Br. at 9.

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 Knox discovery motions. Knox fails to present evidence that the Board denied his motion to compel, any authority that the Board erred in ruling on his motion, or that he suffered prejudice from the ruling in the exclusion of relevant evidence.

[14] 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 – to wit, discriminatory action against an employee then complaining about discrimination. Knox was removed for more than 700 days. Pet. Op. Br. at 12, n. 5.

[15] As Knox’s counsel is aware, the unpublished decision in Kilpatrick v. City of Los Angeles, B327480, Second Appellate District, cannot be cited.

[16] Knox also argues that he did not receive a Relief from Duty Form. Pet. Op. Br. at 9. Actually, he did receive the form, albeit not until September 8, 2023. AR 270. More important, Knox fails to show that a Relief from Duty Form is mandatory and that the December 1, 2021 notice did not suffice. See AR 502-03. While Knox alludes to Personnel Department Rules 33.1(C) and (D), he fails to provide them, request their judicial notice, and describe their content. He also fails to show what the remedy would apply to failure to use a Relief from Duty Form.

[17] Knox suggests that the Department’s investigation was inadequate because it refused to interview him. AR 1552. Had he been questioned about the exemption he was claiming, LAFD would have known that Knox had and has devout religious beliefs and has never recovered from his autoimmune deficiency for which LAFD gave him a medical accommodation in the summer of 2020. AR 245-50 Knox’s medical restriction of avoiding buildings that could contain mold or volatile organic compounds). Had LAFD fulfilled its due diligence requirement, it would not have erroneously claimed that Knox failed to cooperate in the months leading up to his suspension. Carranza Decl., ¶4. Pet. Op. Br. at 10-11.

The City correctly replies that LAFD did investigate. A January 31, 2022 report authored by Fire Special Investigator Michael Henderson and Captain Martin Mullen found that Knox failed to comply with the vaccine mandate and a February 10, 2022 report authored by Battalion Chief Kairi Brown similarly found Knox failed to comply with the vaccine mandate. AR 1790. These reports pre-dated both Knox’s Skelly meeting, which he failed to attend, and his Board of Rights hearing. Opp. at 11. The court adds that there is no statutory or constitutional duty to interview the employee as part of the investigation.