Judge: Mary H. Strobel, Case: 20STCP02228, Date: 2022-09-13 Tentative Ruling

Hon. Mary H. Strobel

The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 20STCP02228    Hearing Date: September 13, 2022    Dept: 82

Petitioner James Weigh (“Petitioner”) petitions for a writ of administrative mandate directing Respondents City of Los Angeles and Michel Moore, Chief of Police (“Respondents”) to set aside a final administrative decision of the Chief of Police deselecting and transferring Petitioner from his “bonus” position as Police Officer II +6 with the Air Support Division (“ASD”) of the Los Angeles Police Department (“LAPD” or “Department”) and downgrading Petitioner to the position of Police Officer II. 

Relevant Procedural History

            On July 13, 2020, Petitioner filed his petition for writ of administrative mandate.  The court received Petitioner’s opening brief in support of the petition, Respondents’ opposition, Petitioner’s reply, and the administrative record. 

On September 14, 2021, after a hearing, the court granted the writ petition in part and remanded the matter to Respondents for reconsideration of the decision without relying on hearsay statements of Lt. Dan Hudson.  The court’s ruling on the writ petition provided a detailed discussion of the evidence and the parties’ contentions, which is not repeated here but is incorporated by reference.

On October 25, 2021, the hearing officer “re-examined the ruling … while not considering Lieutenant Hudson’s statements as testified by retired Deputy Chief Michal P. Downing.” (AR 399.)  In a “supplemental decision,” the hearing officer found that the remaining evidence “is sufficient to determine the deselection of Office Weigh was proper.”  (AR 400.)  The hearing officer stated the following “supplemental findings” in support of the new decision:

·         On September 24, 2014, Officer Weigh slapped a supervisor while off duty in Seattle, Washington representing the Los Angeles Police Department at a function (CF No. 14-002838). Due to the seriousness of the allegations, on September 27, 2014 Captain Walters removed Officer Weigh from his position as a Primary Tactical Flight Officer and assigned him to non-flying duties. Ultimately, Officer Weigh was Deselected and Administratively Transferred from his position at Air Support Division. Later, Officer Weigh received suspension days for the incident.

·         On September 8, 2014, Sergeant Barillas was looking for another supervisor and asked Officer Weigh and additional officers if they had seen him. Officer Weigh responded, "He's at your mother's house you might want to check with her." Officer Weigh later apologized for the comment. A Notice to Correct Deficiencies (NTCD) for the incident was served to Officer Weigh for improper and disrespectful remarks to a supervisor.

·         On July 19, 2010, Officer Weigh walked away from a discussion with a co-worker and a supervisor. When the supervisor attempted to get Officer Weigh to stop and return to the discussion Officer Weigh, stated "I'm not going to listen to this." Officer Weigh received a NTCD for failing to follow a supervisor's direction.

(AR 400.)

On October 29, 2021, the Chief of Police adopted the recommendation of the hearing officer to deselect Petitioner and transfer him from Air Support Division.  (AR 396.)

On July 15, 2022, Petitioner filed his opening brief after remand.  The court has received Respondents’ opposition, Petitioner’s reply, the administrative record, the supplemental administrative record, and the joint appendix.

Standard of Review

Because the deselection of Petitioner from a bonus position concerns a fundamental vested right, the court exercise its independent judgment on the administrative findings.  (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.)  Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.”  (Bixby, supra, 4 Cal. 3d at 143.)  The court must draw its own reasonable inferences from the evidence and make its own credibility determinations.  (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.) 

An agency is presumed to have regularly performed its official duties.  (Evid. Code § 664.)   “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 v. City of Angels (1999) 20 Cal. 4th 805, 817.)

Analysis       

The NTCDs Were Properly Considered for All Purposes

            Petitioner contends that the Notices to Correct Deficiencies (“NTCDs”) are inadmissible hearsay and should have been “limited to ‘supplementing or explaining other evidence.’”  (Opening Brief After Remand (“OB”) 9.)  In its ruling on the writ petition dated September 14, 2021, the court rejected this same argument, stating:

Petitioner does not show, with record citation, that he objected to the two NTCDs as hearsay. Unless a hearsay objection was made, the NTCDs may be used for all purposes. (See Gov. Code § 11513(d) and Clary v. City of Crescent City (2017) 11 Cal.App.5th 274, 302 [“Diehl waived any objection to its use of such evidence by failing to object.”].) Even if Petitioner did raise a hearsay objection, the NTCDs could have been admitted as official records. It appears that both were prepared by a supervising officer within the scope of his or her duties; at or near the time of the alleged incident; and the sources of information and method and time of preparation were such as to indicate its trustworthiness. (Evid. Code § 1280 and § 664.) Petitioner has not shown otherwise. Finally, the NTCDs state that “a copy of this notice will be placed in your personnel file and may be considered in future disciplinary actions.” (AR 31, 152.) Petitioner does not show that he challenged the NTCDs under applicable LAPD rules, or that it is improper under applicable rules for the NTCDs to be considered for their truth in a deselection decision. 

            Prior to remand, Petitioner did not move for reconsideration pursuant to CCP section 1008 of this part of the court’s ruling prior to remand.  It is too late for Petitioner to do so now. 

            Petitioner suggests that the court should reconsider the ruling, sua sponte, and that there would be no prejudice to Respondents because they could address the argument in opposition.  (OB 8, fn. 2.)  The court does not reconsider its prior ruling.  Petitioner raised the issue in the briefing prior to remand, and the court decided the issue.  Petitioner does not identify any new facts or law that he could not have submitted, with reasonable diligence, in the proceedings prior to remand.  Petitioner also does not show that he objected to the NTCDs as hearsay in the administrative proceedings and he does not address the court’s ruling that the NTCDs qualify for the official records exception to the hearsay rule pursuant to Evidence Code section 1280. 

            Petitioner’s request for reconsideration of the September 14, 2021, ruling is DENIED.  The NTCDs were properly considered by the hearing officer as evidence admissible for all purposes. 

The Weight of the Evidence Supports the Findings and Decision After Remand

            Petitioner contends that if the NTCDs are admissible, “the Court should conclude that they do not provide substantial evidence that Petitioner engaged in a pattern of conduct warranting deselection, i.e., a pattern of disrespect to other employees or an inability to work with supervisors.”  (OB 10.)  Relatedly, Petitioner contends that other evidence in the record, including Deputy Chief Downing’s testimony, does not support the decision to deselect Petitioner and transfer him from the Air Support division (“ASD”).  (OB 12-14; Reply 4-7.)

As discussed in the court’s September 14, 2021, ruling (“Ruling”), the hearing officer determined in the original decision that Petitioner demonstrated a failure or inability to satisfactorily perform the duties of his advanced paygrade position.  (Ruling 10.)  The hearing officer relied, in part, on Deputy Chief Downing’s determination that Petitioner “had demonstrated a history of actions that were counterproductive to the operational health of the entire command.”  (Ibid.)  The administrative decision affirms the initial determination of Deputy Chief Downing to deselect Petitioner “due to a sustained misconduct for striking a Department supervisor and a pattern of disrespect toward other employees.”  (Ruling 6; AR 22-23.)  The hearing officer found such determination to be supported by the evidence.  The decision after remand is titled a “supplemental decision” and sets forth “supplemental findings” of the hearing officer. (AR 399-400.)  Thus, the decision is reasonably interpreted to mean the hearing officer’s prior findings still apply, except that the hearing officer made the decision without relying on hearsay statements of Lt. Hudson.

In reviewing the original decision, the court already considered much of the evidence discussed by Petitioner in his briefs after remand.  The court summarized the evidence as follows:

Petitioner relies substantially on his SBAs from September 2010 to September 2014, which state that Petitioner met or exceeded standards in all evaluated skills for a Command Pilot with ASD, including “communication,” “personal interactions,” “integrity,” and “acceptance of responsibility.” (AR 2-4, 8-10, 37-43 [SBAs].) Considered in isolation, the SBAs suggest that Petitioner was satisfactorily performing his duties as a Police Officer II +6 with ASD at all relevant times.

….[¶¶]

As noted by the Hearing Officer, the deselection decision was based on an analysis of Petitioner’s work history, which included the August 2010 NTCD, the October 2014 NTCD, and the personnel complaint involving the slapping incident with Sergeant Barillas. (AR 391.) Sergeant Barillas was Petitioner’s supervisor and a higher ranked officer in the chain of command at ASD. (See AR 21, 88-96.) The NTCDs both asserted that Petitioner engaged in disrespectful conduct toward a supervisor or higher ranked officer at ASD. (AR 147, 31.) One of the NTCD incidents occurred on September 8, 2014, shortly before the incident with Sergeant Barillas. (AR 31.) The other NTCD incident occurred four years prior, in July 2010, but involved similar circumstances of disrespecting a superior officer at ASD. (AR 147.) Deputy Chief Downing, who had command responsibility for ASD, testified that these incidents demonstrated that Petitioner “undermined supervision, intimidated supervision, and was a bad example for the rest of the command to follow.” (AR 193; see also AR 191-192.) When asked about Petitioner’s skill set as a pilot, Downing testified that “operational needs is -- is minimal, in my opinion compared to the operational health of an entire command.” (AR 192-193.)

(Ruling 10-11.)

In his briefs after remand, Petitioner argues that “[t]he two incidents alleged in the Notices are too dissimilar and remote in time to constitute any ‘pattern’ of conduct.”  (OB 11, citing Trevino v. Gates (9th Cir.1996) 99 F.3d 911, 918 [discussing claim under 42 U.S.C. § 1983] and Day v. Sears Holding Corp. (2013) 930 F.Supp.2d 1146, 1180 [discussing claim for sexual harassment under FEHA.)  This argument is not persuasive.  The NTCDs are competent evidence of the prior incidents.  Petitioner’s reliance on Trevino v. Gates (9th Cir.1996) 99 F.3d 911, 918 and Day v. Sears Holding Corp. (2013) 930 F.Supp.2d 1146, 1180 is misplaced because neither case addressed circumstances remotely similar to those here.  Neither case supports the proposition that, as a categorical rule, two or three incidents over four years cannot be considered a “pattern.”

Moreover, Petitioner incorrectly suggests that the administrative decision was based only on the two NTCDs.  (OB 9-10.)  Respondents also considered the September 24, 2014, slapping incident and testimony of Deputy Chief Downing about the reasons for deselection.  As shown in the timeline set forth in the supplemental decision, the two NTCDs and September 24, 2014, slapping incident could reasonably be viewed as a pattern of disrespect toward supervisory officers.  Two of the incidents occurred in September 2014.  While the other occurred four years earlier (July 2010), it similarly involved Petitioner disrespecting his supervisory officer (“I’m not going to listen to this”).  (AR 400; see also AR 147, 31, 19, 141.)

Petitioner next contends that there is insufficient evidence to support the determination that he engaged in a pattern of disrespect toward other employees, to the detriment of the operational health of the unit, because: (1) Petitioner only had one sustained finding of misconduct in 29 years with Department (the Barillas slapping incident); (2) Deputy Chief Downing did not have firsthand knowledge of Petitioner’s behavior and could not testify competently that Petitioner “intimidated supervision” or was “a bad example”; (3) the Standards Based Assessments (“SBAs”) were positive and “paint a different picture entirely” about Petitioner’s value to the ASD and performance as a command pilot; and (4) Department’s delays in issuing the NTCDs undermine the assertion that Petitioner did not work well with supervisors or was unable to perform his duties satisfactorily.   (OB 12-14; see also Reply 4-6.)  The court has considered all of Petitioner’s record citations from the opening brief and the reply. 

Exercising its independent judgment on the record, the court concludes that the weight of the evidence supports the findings that Petitioner’s deselection and transfer from ASD was proper.   As persuasively testified by Deputy Chief Downing, LAPD is a paramilitary organization for which respect for supervision is critical to the operational health of the entire command. (AR 191-193.) The weight of the evidence, including Downing’s testimony and the SBAs, supports that a pilot with ASD is not only expected to perform flight duties at a high level, but to meet standards in “communication,” “personal interactions,” “integrity,” and “acceptance of responsibility.” (AR 2-4, 8-10, 37-43 [SBAs].) The August 2010 NTCD, the October 2014 NTCD, and Barillas complaint all support a finding of fact that Petitioner displayed a pattern of disrespect for his superior officers. Petitioner’s SBAs cannot be considered in isolation. 

Any delays in Department’s issuance of the NTCDs, or in deselecting Petitioner, do not undermine the determination that Petitioner had shown a pattern of disrespect toward other employees.  The August 2010 NTCD was served less than a month after the July 19, 2010, incident at issue, and the October 2014 NTCD was served a little more than a month after the September 8, 2014 incident.  (Ruling 3-4; AR 147, 31.)  In neither case was the delay substantial.  The deselection decision was made in March 2015 and not when the NTCDs were issued.  The decision was based on an assessment of Petitioner’s overall work history and the “pattern of disrespect” shown by three separate incidents, including the charge of slapping a supervisor that had been recently sustained after an administrative investigation.  (Ruling 10.)   As stated in the court’s prior ruling: “[B]ecause Downing requested deselection based on a ‘sustained act of misconduct’ and a ‘pattern of disrespect,’ it was reasonable for him to wait until the administrative investigation had been completed. (AR 22.) Downing made the deselection request in a relatively short time after the completion of the investigation on February 4, 2015.”  (Ruling 17-18.)

Exercising its independent judgment on the record, the court concludes that the weight of the evidence supports all findings made by Respondents in the decision after remand.  The findings support the conclusion that Petitioner’s deselection and transfer from ASD was proper.  

Selection of Penalty by Administrative Agency

            Respondents suggest that the deselection may have been a “penalty” and the court should review the administrative decision under the abuse of discretion standard.  (Oppo. 5.)  The court has concluded that the weight of the evidence standard applies because Respondents made administrative findings to justify the deselection.  However, if the standard of review for an administrative penalty applies to any part of the decision, the court would reach the same result. 

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.)  If reasonable minds can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion.  (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)  

In considering whether an abuse of discretion occurred, the “overriding consideration … is the extent to which the employee's conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’  [Citations.]  Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.”  (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.)

            For the reasons discussed above, the decision to deselect Petitioner and transfer him from ASD was reasonable and supported by the evidence.  There was no manifest abuse of discretion.

Conclusion

             The petition is DENIED.