Judge: Mary H. Strobel, Case: 20STCP02548, Date: 2022-08-16 Tentative Ruling

Hon. Mary H. Strobel

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

Case Number: 20STCP02548    Hearing Date: August 16, 2022    Dept: 82

Petitioner County of Los Angeles Sherriff’s Department (“Department”) petitions the court for a writ of mandate to overturn the decision of Respondent Los Angeles County Service Commission (“Commission”) reducing the discharge of Real Party-in-Interest Ta’Quon Taylor (“Taylor”) to a 25-day suspension and reinstating Taylor to his position as Sheriff’s deputy with Department.  This action arises out of Taylor’s mishandling of emergency calls on March 4, 2016 and lying during the internal administrative investigation into the mishandling of the emergency calls.

Statement of the Case

            For purposes of this petition which challenges only whether Commission abused its discretion in reducing the termination penalty to a suspension penalty, the facts are generally undisputed.  Therefore, the court cites to portions of the administrative decision (AR 74-86) in addition to relevant exhibits and transcripts.

Background

Taylor is a Deputy Sheriff employed with Department and has been employed with the Department since 2007.  (AR 1686.)

On March 11, 2014, Taylor worked at the Temple City station as a dispatcher to serve as the first person of contact for members of the public when they entered the station.  (AR 1688, 1692-1693.)

In 2015, Taylor began working at the station’s front desk as a call taker, transitioned to working in the field, and then returned to desk duty as a call taker.  (AR 1702-1705.)

As of March 4, 2016, i.e., the day of the underlying misconduct, Taylor had been assigned to the front desk as a call taker approximately 100 times and would have answered at least 400 calls and entered them for service.  (AR 1252, 1386.)

Incident

On March 4, 2016, Taylor was assigned as a call taker at the Temple City station and was involved in seven separate calls for service that led to an administrative discipline.  (AR 79.)

In the first call at 12:47 p.m., Paul DiFilippo[1] reported a suspicious person driving a Range Rover with no plates who was attempting to perform a “knock-knock” burglary.  (AR 567.)  DiFilippo asked for help and Taylor argued whether a crime was being committed.  (Ibid.)  Taylor did not enter the call and did not initiate service for DiFilippo.  (AR 79-80, 83.)  Taylor handled the call in a condescending and discourteous manner.  (AR 83.)

In the second call at 12:53 p.m., a male reported a suspicious black male in the same area as DiFilippo and stated that the caller was concerned about the recent increase in crime.  (AR 570-571.)  Taylor stated that he would send someone out, but he did not get an address and did not generate a call for service.  (AR 84, 570-571, 1785.)

In the third call at 12:56 p.m., Shirley Halburian reported the same suspect as DiFilippo did and told Taylor that her neighbor was bleeding after “[getting] jumped” and there had just been a home invasion.  (AR 573-574.)  Taylor transferred the call to the Fire Department and disconnected the call without sending a car out.  (AR 76, 80, 83, 761-762.) 

In the fourth call at 12:57 p.m., Elizabeth Cornell Armstrong reported that her neighbor was being attacked, stating that “[i]t sounds like he’s killing her.”  (AR 583-586.)  The incident related to the same person from the earlier phone calls.  (AR 80, 1222-1223.)  Taylor typed in a call for “routine” call of service instead of emergent.  (AR 76-77.)

The three remaining calls did not involve the home invasion and assault.

In a call at 12:41 p.m., a caller reported 50 cars blocking the street, but Taylor did not type in the call for service.  (AR 76, 80, 82-83, 798.)

In a call at 3:45 p.m., a parking enforcement officer requested assistance from Taylor to tow a car for outstanding citations, but Taylor did not send assistance even though he said he would do so.  (AR 81, 84, 590-592, 804-805.)

In a call at 4:16 p.m., a loss prevention employee from Kohl’s requested help for a detained shoplifter and Taylor questioned why the caller did not stop the shoplifting expected to occur.  (AR 81, 84, 594-596.)

Investigation and Administrative Decision

            Department investigated the assault from the home invasion, i.e., the first four calls.  When speaking with Sergeant Jose Carbajal, Taylor’s supervisor, Taylor stated that he did not know the first three calls were related.  (AR 1851-1852.)  Taylor also stated that he did not know what a “knock-knock” burglary was, he was not trained how to enter calls, he intended to enter DiFilippo’s address even though he did not obtain the address. (AR 82.)

            Sgt. Carbajal reported Taylor’s answers because he believed there was potential obstruction of justice, though ultimately there was no criminal prosecution.  (AR 1366-1367.)

            Department opened an internal investigation into Taylor’s handling of the phone calls.  (AR 84.)  As part of the investigation, Taylor made false and/or misleading statements and interfered with the investigation.  (AR 78-79, 84.)  These statements included that he knew the address for DiFilippo, was going to send a responding officer to the call made by DiFilippo later, and no one showed him how to answer calls.  (AR 84.)

            Chief Stephen Johnson determined that discharge was the appropriate penalty because Taylor failed to do his job adequately, was evasive, made false statements, and failed to take responsibility for action that led to public harm, which primarily was the assault and burglary.  (AR 1514-1515, 1529-1531.)

            On April 26, 2017, Department issued a letter of discharge to Taylor for violations of many policies from his conduct on March 4, 2016 and the subsequent investigation into that conduct.  (AR 496-501.)

            Taylor appealed the discharge.  (AR 195-197.)

Hearing Officer Charles Post (“Post”) conducted a hearing on whether the allegations in the Department’s discharge letter were true and if so whether the discipline of discharge was appropriate.  (AR 1131-2002 [hearing transcript].)

Decision

            On February 21, 2019, Post issued a written decision finding that the allegations in the Department’s discharge letter were true, and the discipline of discharge was appropriate.  (AR 74-86.)  Post found that Department met its burden of proving that the allegations were true, that Taylor had violated policies, and that Department met its burden of proving the discipline of discharge was appropriate (AR 81-86.)

            After considering post-decision briefing and objections (AR 16-38, 42-71), Commission issued a notice of proposed decision in which Commission reduced the penalty of discharge to a 25-day suspension (AR 13).

            Department filed objections to Commission’s proposed decision.  (AR 6-10.)

On May 14, 2020, Commission overruled those objections and issued a final decision in which Commission upheld Post’s findings of fact but disagreed regarding the penalty of discharge, instead reducing the discipline to a 25-day suspension and ordering Taylor’s reinstatement.  (AR 1-2.)  Two members of Commission dissented.  (AR 2.)

This writ proceeding followed.

Standard of Review

Department argues that Commission abused its discretion by issuing a penalty that was unreasonably too lenient.

“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 (Skelly).) 

“[I]n reviewing the penalty imposed by an administrative body, neither a trial court nor an appellate court is free to substitute its own discretion as to the matter. [Citations.]”  (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, 967.)

Analysis

Department is not challenging any of the factual findings.  Taylor did not file a cross-petition challenging Commission’s findings.  While the underlying facts are relevant to whether Commission abused its discretion in its selection of penalty, Taylor cannot now re-litigate those findings or otherwise claim that the Commission made additional factual findings when it decided a different discipline of suspension was appropriate.

As a threshold matter, Taylor argues that the court should deny the petition because Department did not provide a fair summary of the administrative record.  (See Opposition 1:2-9, 2:22-3:6, 6:11-14.)  The court disagrees.  Department provided a detailed summary of the underlying facts.  Department’s emphasis on Post’s factual findings is a fair approach because the only issue for this writ proceeding is the application of those factual findings to the selection of a penalty.  Accordingly, the court reaches the merits.

As stated above, in determining whether an abuse of discretion occurred, the court considers (1) the harm to the public service caused by the misconduct; (2) the circumstances surrounding the misconduct; and (3) the likelihood of the recurrence of the misconduct.

Harm to Public Service

Department argues that there was significant harm to the public.  Department identifies that the hearing examiner (and Commission) found that Taylor: (1) was condescending, rude, and disrespectful to the public during calls for help; and (2) made evasive contradictory, deliberate truth distorting statements, concealed recollections, and failed to make full, complete, and truthful statements during an internal affairs investigation.  (OB 12:27-13:4.) 

Regarding the finding of Taylor’s poor attitude toward the public, Department cites a portion of the record containing Captain Johnson’s comments at the hearing.  (AR 1518; see OB 12:28.)  Nevertheless, Post did make a factual finding that Taylor was condescending and rude in the first phone call with DiFilippo (AR 79; see also AR [“responded hostilely”]) and disrespectful in the phone call with the Koh’s loss prevention officer (AR 81). 

While a condescending, rude, and disrespectful attitude harms the public, Department has not shown that, standing alone, termination from employment is the only reasonable option.  The hearing officer found this behavior violated policy which subjects Taylor to a penalty range from written reprimand to a 10-day suspension.  (AR 280-281, 286, 288, 298, 301, 303.)  Department does not cite to any guideline that this conduct can subject Taylor to discharge. 

As Department recognizes, the link between Taylor’s rudeness and the later assault is somewhat speculative.  Had Taylor not been rude, it is possible that he would have learned more facts from DiFilippo about the rapidly unfolding situation, yet there is nothing in the record to show that learning more facts would have prevented the crimes.  Similarly, there is nothing in the record showing that Taylor’s disrespectful conduct with the Kohl’s loss prevention led to additional public harm.  (AR 1935-1936.)

            However, in addition to discourteous behavior, the hearing examiner found Taylor made “evasive, contradictory, deliberate truth distorting statements, concealed recollections, and failed to make full, complete and truthful statements during a Department Internal Affairs investigation.”  Department is correct that honesty is a highly desired trait for a peace officer.  If Taylor is allowed to remain employed with the Department, he might take actions, including arresting suspects, writing reports, and testifying at hearings, where his untrustworthy history will impact his ability to work going forward.  Department primarily relies on County of Los Angeles v. Civil Service Com. of County of Los Angeles (2019) 40 Cal.App.5th 871 (Montez).  More specifically, Department argues that a court should not hesitate to step in when an administrative tribunal reduces the discipline for a peace officer found to have been dishonest like the trial court did in Montez as affirmed by the Court of Appeal. 

In Montez, the Court of Appeal upheld a trial court’s decision that the Civil Service Commission abused its discretion in reducing the discharge of a deputy sheriff who had been dishonest about abusing inmates in the jail to a 30-day suspension.  Department argues that like the deputy in Montez, Taylor’s “lies during the subsequent investigation hindered rectification of the situation, brought discredit upon his position and department, and forever undermined his credibility.”  (Montez, supra, 40 Cal.App.5th at 880.)  It is accurate that Montez contains this critical language as emphasized by Department:

“A deputy sheriff’s job is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper performance of an officer’s duties. Dishonesty is incompatible with the public trust.” [Citation.]

(Ibid.)  Department also correctly notes that there is other case law that emphasizes the importance of a peace officer’s honesty.  (Paulino v. Civil Service Com. (1985) 175 Cal.App.3d 962, 972 [citing same language].)

Montez does not appear to go so far as to hold that any lie by a peace offer requires a penalty of discharge.  In Montez, the deputy lied about more egregious issues, i.e., excessive force being used on an inmate and his own misconduct that included failing to report the deputy who attacked the inmate.  (Id. at 873.)  The court invites further discussion at the hearing on the applicability of Montez to the facts of this case.

The hearing examiner found that Taylor made evasive statements, statements that contradicted earlier statements, deliberately distorted the truth, concealed and omitted disclosure of recollections, and failed to make full, complete and truthful statements or false statements during a Department internal investigation, and interfered with the administrative investigation.” (AR84).  Notably, the Commission made no additional findings, and except as to penalty, adopted the hearing examiner’s findings.  Taylor contends some of this conduct is beyond the scope of what was in the charging document.  Department has not squarely addressed this issue in reply. 

This issue is potentially significant, as repeated dishonesty and dishonesty which interferes with the administrative investigation could be considered more egregious than other types of dishonesty.  The issue also bears on the circumstances of the misconduct and likelihood of recurrence.  The parties should address this further at the hearing.

Finally, Department does not brief whether Taylor’s other misconduct (e.g., failing to send a responding unit) creates significant public harm that the court should consider it in its analysis.  The court declines to independently do so.

Circumstances of Taylor’s Misconduct

Department argues that Taylor has not taken responsibility for his actions, his attitude toward the public is egregious and unprofessional, and his post-incident conduct is egregious.  (Opposition 14:23-28.)  Department identifies no record evidence to show that Taylor has not taken responsibility.  Taylor’s challenge of the disciplinary action arguably is a form of refusal to take responsibility, but the record shows regret in how he handled the DiFilippo phone call. (AR 753-754, 809.) 

As to other circumstances surrounding the misconduct, Taylor argues that: (1) the incident generally occurred within a 10-minute time period in his approximately 11 year-long career without similar incidents (AR 538, 540, 545) and (2) the incident occurred with 10 days after Taylor switched assignments (AR 1705).  In other words, Taylor argues that the misconduct of handling of the phone calls was a brief anomaly in a career free of trouble. 

As to the egregiousness of the behavior, the court finds it potentially significant whether Taylor continued to make false statements after the day of the occurrence.  Taylor’s argument that the misconduct is limited to a very short time frame on one day is undercut if the dishonesty continued on subsequent days during an investigation.  The parties should address this further at the hearing.

Likelihood of Recurrence

As to likelihood of recurrence, Department stresses Taylor’s dishonesty and not the other misconduct of mishandling phone calls.  Department argues Taylor’s dishonesty here means that he is likely to be dishonest about other things.  Taylor argues that the false statements were an anomaly in light of Taylor’s past record.  The issue of likelihood of recurrence is linked to the issue of whether Taylor continued to make false or misleading statements after the date of the original incident.   As discussed above, the parties should address this further at the hearing.

Conclusion

The parties should address further the issues highlighted above.