Judge Mitchell L. Beckloff, Case 22STCP00251 2023-02-03 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP00251, Date: 2023-02-03 Tentative Ruling

Petitioner, Rene Wolf, is employed by Real Party in Interest, the County of Los Angeles (County), in its Sheriff’s Department (Department). In December 2017, the Department suspended Petitioner from his position as a deputy sheriff without pay for seven days. Respondent, the Los Angeles Civil Service Commission (Commission), upheld the discipline.

Through these proceedings, Petitioner seeks an order compelling the Commission to set aside its October 8, 2021 decision upholding Petitioner’s suspension. Petitioner also seeks an order requiring the Department to pay Petitioner “all back salary together with interest at the legal rate and to restore to Petitioner all other emoluments of employment” related to his period of suspension. (Pet., Prayer ¶ 2.)

Petitioner’s objection to the County’s oversized brief is sustained. (Cal. Rules Court, Rule 3.1113, subd. (d).) As requested by Petitioner, the court will “disregard any argument set forth after page 15 of the Department’s brief.” (Reply 2:26.) (See Cal. Rules Court, Rule 3.1113, subd. (g).)

The Department hired Petitioner on June 1, 2010. (AR 5.) Petitioner is assigned as a senior deputy (or supervising line deputy) to the Department’s inmate reception center (IRC).[1] (AR 722-723.)

On June 19, 2015, David Grajeda was arrested for arson and transported to the IRC. Grajeda arrived at the IRC shortly after 3:00 a.m. (AR 698.)

On June 19, 2015, Petitioner began a “PM shift” at the IRC at 4:00 p.m. (AR 723, 1963.) Petitioner then transitioned to the “EM shift”[2] without a break. (AR 3248.) Petitioner ended his EM shift at 5:00 a.m. on June 20, 2015. (AR 1929-1930.) During both shifts, Petitioner served in the position of clinic senior deputy. (AR 3245, 3247.)

On June 19, 2015—when Petitioner began the first of his two shifts—the Department placed the IRC “on a lockdown.” (AR 698.) The lockdown occurred because a deputy sheriff lost a firearm at the jail adjacent and attached to the IRC. (AR 698.) “For the next several shifts, the lockdown of IRC alternated between full lockdowns and modified lockdowns. The normal operating procedures of IRC were interrupted for the next three shifts.” (AR 698.)

After Grajeda displayed “bizarre behavior,” a deputy removed Grajeda from a large holding cell and placed him in a cell alone. (AR 699.) After Grajeda told deputies he was going to kill himself and after he “head butted” a deputy, deputies placed Grajeda on a “transport chair and secured [him] to the chair with handcuffs.” (AR 699.) At 8:20 a.m., deputies moved Grajeda “to the Clinic” and placed him in Cell 119, an isolation cell. (AR 699.) Deputies left Grajeda “secured on the transport chair, which was tethered to a bench inside the cell by use of installed handcuffs.” (AR 699.) After securing Grajeda in Cell 119, a deputy “wrote on the cell door window, ‘Grajeda’ and what appeared be an ‘S’ and the words, ‘Do Not Open.’ ” (AR 699.) At 7:18 p.m., sheriff personnel removed Grajeda from the transport chair, removed his handcuffs, used a waist chain to restrain Grajeda’s hands, and secured Grajeda to a bench with handcuffs attached to the waist chain. (AR 704.)

Deputies left Grajeda confined alone in Cell 119 for more than 31 hours. Deputies removed him from the cell at 3:39 p.m. on June 20, 215. (AR 704, 4127.) Grajeda’s time inside Cell 119 spanned five working shifts, including two worked by Petitioner. (AR 704.)

On June 25, 2015, Grajeda complained to the Department about his treatment at the IRC. (AR 701, 2866.) Grajeda alleged at the time of his release from Cell 119, he had been in the cell for more than 31 hours without food, access to a restroom, and with only a single cup of water. (AR 2866; see also 702, 1514-1519.)

On July 13, 2015, the Department’s Internal Criminal Investigations Bureau (ICIB) commenced a criminal investigation related to Grajeda’s complaint. (AR 702.) Both the Los Angeles County District Attorney’s Office and the Los Angeles City Attorney’s Office declined to file a criminal complaint for lack of sufficient evidence. (AR 702-703, 2799-2805.)

In May 2016, after the conclusion of the ICIB criminal investigation, the Department initiated an Internal Affairs Bureau (IAB) investigation—lead by Sergeant Delicia Hernandez—to determine whether Grajeda’s treatment violated any Department policies. (AR 696.) IAB interviewed Petitioner on November 30, 2016. (AR 1929 [Wolf IAB Interview].) At the conclusion of IAB’s investigation, Sergeant Hernandez prepared an investigative summary of the investigation. (AR 695-732 [IAB Investigative Summary].)

Ten months later, on March 22, 2017, the Department informed Petitioner of its intent to suspend him without pay for seven days. (AR 3936-3939.) Petitioner requested and received a Skelly hearing to address the proposed discipline. (AR 283.) Following the Skelly hearing, the Department disciplined Petitioner by imposing a seven-day suspension without pay. (AR 3941-3950.)

The Commission conducted a four-day appeal hearing. On May 7, 2021, the Commission received proposed findings of facts, conclusions of law, and a recommended proposed decision. (AR 280- 305.) The proposed decision concluded the Department met its burden of proving Petitioner violated the Department’s Manual of Policy and Procedures (MPP). (See AR 3941-3942.) Specifically, the Department demonstrated Petitioner (1) failed to provide food to Grajeda after providing food to other inmates in the Clinic; (2) failed to notify a sergeant that Grajeda was not fed while in isolation in Cell 119; (3) failed to check on the welfare of Grajeda during the two shifts he worked as supervisor in the clinic; and/or (4) failed to supervise his subordinates to ensure they were providing Grajeda with food and/or access to the restroom. (AR 294, 3942.)

After considering Petitioner’s objections to the proposed decisions as well as the County’s response to those objections, the Commission adopted the proposed decision as its final decision. (AR 307- 323, 327-341.) The Commission’s final decision upheld the discipline imposed on Petitioner by the Department. (AR 368.)

Petitioner seeks relief from the court pursuant to Code of Civil Procedure section 1094.5.

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

Code of Civil Procedure section 1094.5 provides for two standards of review of administrative decisions: substantial evidence or independent judgment. (Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 366.) To determine what standard of review to apply under Code of Civil Procedure section 1094.5, courts must examine whether the administrative decision “substantially affect[s] vested, fundamental rights.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) If the administrative agency’s decision substantially affects a vested fundamental right, the trial court uses the independent judgment standard. (Ibid.)

Discipline imposed on public employees affects a vested right in employment and is subject to review by the court’s independent judgment. (Boctor v. Los Angeles County Metropolitan Transit Authority (1996) 48 Cal.App.4th 560, 572.) Under independent judgment review, the court “ ‘not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence.’ ” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8.) Exercise of independent judgment “does permit (indeed, [] requires) the trial court to reweigh the evidence by examining the credibility of witnesses.” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.) Under the court’s independent judgment, “[a]buse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.” (Code Civ. Proc., § 1094.5, subd. (c).)

Questions of whether the administrative agency proceeded in the manner required by law is a legal question the court reviews de novo. (Duncan v. Department of Personnel Admin. (2000) 77 Cal.App.4th 1166, 1174.) Due process and fair hearing claims raise questions of law and are therefore also subject to de novo review. (See Schneider v. California Coastal Com. (2006) 140 Cal.App.4th 1339, 1343–1344.)

Finally, Petitioner must affirmatively demonstrate error. (Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 453.) Petitioner also “bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1233.)

Petitioner challenges the Commission’s decision on three grounds. First, Petitioner argues the Commission failed to proceed in the manner required by law when it improperly shifted the burden of proof to Petitioner. Petitioner also argues the Department did not demonstrate Petitioner’s acts violated provisions in the Department’s MPP. Finally, Petitioner argues the penalty imposed on him constituted an abuse of discretion.

Petitioner argues the Commission (through its hearing officer) placed the burden on Petitioner to demonstrate the Department’s charge was unfounded, rather than requiring the Department to affirmatively prove its charge. Petitioner argues he “did not have the burden of proving that he did notify supervisors that Grajeda needed to be fed; rather, the Department had the burden of proving, by a preponderance of the evidence, that he did not make such notification.” (Opening Brief 8:8-11.) Petitioner supports his argument relying on the following statement in the Commission’s decision: “[Petitioner] did not recall notifying a supervisor that Grajeda had not been fed and no evidence was presented to establish that he did so, notwithstanding the two opportunities to notify sergeants who happened to be in his presence.” (AR 285; Opening Brief 8:4-6.)

“[Petitioner’s] failure to provide food to inmate Grajeda, or contact a sergeant to open the door to cell 119, at the time he was providing food to other IRC inmates around 5 PM and his failure to notify supervision at any time that Grajeda was not fed violates state law CCR Title 15.” (AR 286.)

Petitioner argues the evidence before the Commission demonstrates neither Petitioner nor Sergeant Miller could specifically recall the incident with Grajeda. In fact, neither Petitioner nor Miller could recall whether they had a conversation about Grajeda and food. (See AR 1972 [Petitioner’s IAB Interview (“I don’t know”)]; 1802 [Miller IAB Interview (no recollection about “feeding the inmate”)]; see also AR 4611-4613 [Petitioner’s Testimony (“no recollection”)].)

Therefore, Petitioner contends the Commission determined Petitioner failed to notify Miller about Grajeda not eating by shifting the burden to Petitioner to prove he notified Miller or some other supervisor. That is, as the Department’s witnesses had no memory of any discussions about Grajeda and meals, the Commission must have required Petitioner to prove that he did have such conversations, and Petitioner’s failure to prove any such conversations resulted in a finding adverse to him.

The County asserts Petitioner has misconstrued and mischaracterized a single sentence in the Commission’s decision. The County argues: “. . . the sentence in question, which [Petitioner] now claims somehow evidences a complete burden shift, is not even one of the specific factual findings, nor is it a conclusion of law.” (Opposition 10:21-23 [emphasis removed].)

“[Petitioner] did not recall notifying a supervisor that Grajeda had not been fed and no evidence was presented to establish that he did so, notwithstanding the two opportunities to notify sergeants who happened to be in his presence.” (AR 285.)

The court finds, however, the sentence—when the entire record and decision is considered—does not demonstrate the Commission improperly shifted the burden of proof to Petitioner. The sentence reflects the evidence before the Commission. Considered in context, the decision does not reflect a burden shift; it merely reports the state of the evidence.[3]

The Commission’s decision makes specific findings in its Findings of Fact section. The Commission expressly found:

“14. [Petitioner] did not direct a subordinate to contact a sergeant to provide Grajeda with food, water or bathroom facilities any time during his June 19-20, 2015 double shift.

15. [Petitioner] did not contact a sergeant to provide Grajeda with food, water or bathroom facilities any time during his June 19-20, 2015 double shift, although he had two convenient opportunities to do so at 6:02 PM on June 19, 2015 when Sgts. Miller and Canfield were next to him hanging around the clinic desk right in front of cell 119 and at 11:11 PM on June 19, 2015 when he and Sgt. Baltazar walked in front of cell 119.” (AR 292.)

Hernandez concluded through her IAB investigation—which included interviews with over 50 witnesses—Petitioner did not notify a supervisor that Grajeda had not eaten. (AR 4117, 4135.) Hernandez’ investigation was voluminous—it consisted of four volumes. (AR 4118-4119.) Hernandez testified Petitioner had no memory of whether he notified his supervisor he had been unable to feed Grajeda. (AR 4134-4135. [“His response was he just didn’t have any memory or recollection of the event.”]) Hernandez also testified “Nobody was notified” when asked if her investigation “uncover[ed] any evidence that [Petitioner] notified any supervisor that he had been unable to feed Inmate Grajeda during the p.m. shift.” (AR 4135.) Hernandez admitted, however, no witness told her Petitioner “did not inform them of the inmate needing to be fed.” (AR 4371.) That is, a number of witnesses could not tell Hernandez “what happened with respect to that inmate that day . . . .” (AR 4371.) Hernandez advised no witness “stepped up and said he did or did not, . . . .” (AR 4372.)

Additionally, Miller advised IAB Petitioner did not notify her Grajeda had not eaten. (AR 1791. [“Q: Did Senior Wolf come to you on the 19th and state, hey, we couldn’t feed Inmate Grajeda, we need a supervisor? A: Not that I remember, no.”]) Lieutenant Petrocelli’s statement was similar. (AR 1584-1585 [no conversation with deputy personnel about feeding Grajeda].)[4]

Accordingly, the Commission had evidence before it—without regard to the weight of that evidence and the findings—Petitioner failed to advise his supervisors Grajeda had not been fed during his shifts. That Petitioner may quarrel with the quality of the evidence does not demonstrate the Commission impermissibly shifted the burden in the proceedings from the Department to Petitioner. Whether the weight of the evidence supports the Commission’s findings is a challenge different than Petitioner’s claim the Commission improperly shifted the burden of proof to him.

In addition, nothing in the Commission’s decision suggests it misunderstood the burden of proof. In fact, the Commission’s decision expressly notes the Department “met its burden of proving the allegations . . . .” (AR 294.) The Commission also noted the Department “met its burden of proving that discipline” was warranted. (AR 294.) The Commission had evidence before it that Petitioner did not advise his supervisors about Grajeda, and it found no evidence otherwise. Such a finding does not support Petitioner’s claim the Commission impermissibly shifted the burden of proof to him to demonstrate he did not violate the Department’s Manual of Policy and Procedures.

Whether the Failure to Provide Food to Grajeda Violated Department Policies:

Petitioner argues he did not violate the Department’s MPP when he failed to provide Grajeda with food. Petitioner contends the “Do Not Open” sign placed on Cell 119’s window precluded him from opening the cell without a sergeant present. Petitioner advises no sergeant was present when he was distributing food to inmates. (AR 707, 825. [“If it says ‘Do Not Open,’ I wouldn't open it, I would move on, and then let the sergeant know, hey, sir, we just let, do you want to standby while I, we open up the door.”])

Petitioner’s discussion of the issue is brief and not sufficiently developed. The argument is untethered to a claim about specific policies making it difficult to evaluate because Petitioner’s claim lacks context. (See AR 3945-3947.)

The court acknowledges as a matter of Department policy Petitioner could not open Cell 119 without a sergeant present given the admonition on the window of the cell. Whether Petitioner could not open the cell without violating the Department’s policy, however, does not address whether Petitioner’s acts during his two shifts otherwise violated Department policies—specifically, the Department’s MPP at Sections 3-01/050.10; Performance to Standards and 3-01/030.10, Obedience to Laws, Regulations, and Orders—which further required compliance with Title 15 of the California Code of Regulations.

The Department’s MPP at Section 3-01/050.10 “Performance to Standards” requires deputies to “properly perform their duties, and assume the responsibilities of their positions. Members shall perform their duties in a manner which will tend to establish and maintain the highest standard of efficiency in carrying out the functions and objectives of the Department.”[5] (AR 3945.)

Petitioner testified he had supervisory responsibilities on June 19 and 20, 2015 at the IRC. (AR 4597-4598.) Petitioner admitted he had the responsibility to generally ensure the basic needs of the inmates at the IRC were being met, including access to food, water and restroom facilities. (AR 4597-4598. [“Q: And those supervisory responsibilities included ensuring that the inmates in the IRC, generally speaking, had their basic needs met? A: Yes.” See also AR 4270. [“Q: As of June of 2015, in the IRC, did a supervising line deputy, such as Senior Wolf, have an obligation to ensure that subordinates were providing inmates with access to restroom facilities on a regular basis? A: Yes.”]; 4238-4241 [Florin Testimony].)

Petitioner had supervisorial responsibilities at the IRC, including the responsibility of ensuring inmates’ basic needs—including food and restroom facility access—were met. It is undisputed Grajeda did not eat for almost 32 hours. The responsibility for Grajeda’s lack of food for 16 of those 32 hours falls squarely upon Petitioner.

That Cell 119 required assistance to provide Grajeda with food does not absolve Petitioner from his “responsibilities” to ensure Grajeda’s needs were met. Petitioner had an obligation to carry out that responsibility without regard to the need for assistance from a sergeant to open the door to Cell 119. Petitioner’s supervisorial obligation to ensure Grajeda’s basic needs were being met did not disappear because he did not obtain a sergeant’s assistance to open Cell 119. Petitioner had an obligation to obtain a sergeant’s assistance—a reasonable hurdle to overcome under the circumstances—to comply with his responsibilities to provide for Grajeda’s basic needs. There is no question from the video evidence Petitioner had the opportunity to request assistance from a sergeant with Grajeda and his cell; Petitioner’s argument concedes as much. (AR 1792-1793; Opening Brief 8:23.)

Under the circumstances, Petitioner’s failure to ensure Grajeda obtained food violated the Department’s MPP. The weight of the evidence supports the Commission’s findings Petitioner did not perform to standards when he failed to provide food to Grajeda. That is, he did not “properly perform [his] duties, and assume the responsibilities of [his] position[]” on June 19 and 20, 2015. (AR 3945.)

Whether Petitioner Was Required to Check on Grajeda or Ensure Subordinates Did So:

Petitioner argues the Department failed to demonstrate Petitioner had the responsibility of ensuring Grajeda had food or that Petitioner was responsible for checking on Grajeda’s needs and well being. Petitioner argues “[t]he responsibility for checking on isolated inmates, per Department policy, falls upon the sergeants, not the senior deputies.” (Opening Brief 10:16-17.)

Petitioner initially argues he worked for only 16 hours of the nearly 32 hours Grajeda received no food or access to restroom facilities. (Opening Brief 10:11-14.) The court acknowledges Petitioner could not be responsible for Grajeda when he was not working. Nonetheless, Petitioner worked for 16 of the nearly 32 hours Grajeda was in Cell 119 and Grajeda’s basic needs were ignored.

Petitioner next contends “the Department failed to show it was in fact Petitioner’s responsibility to ensure that Grajeda was fed.” (Opening Brief 10:15-16.) As discussed above, Petitioner’s own testimony undermines his position before the court. Petitioner admitted he had the responsibility as a senior deputy to ensure the basic needs of all inmates—food, water, and restroom facility access—were met. Thus, Petitioner’s claim otherwise is unpersuasive.

There is no dispute for the 16 hours he was working at the IRC on June 19 and 20, 2015, Petitioner never checked on Grajeda’s well-being. Despite his admitted supervisorial role at the IRC during his shifts, Petitioner disputes he had any obligation to check on Grajeda’s welfare.

Petitioner’s obligation to ensure all inmates’ basic needs were being met necessarily includes checking on inmates in isolation—or requiring his subordinates to do so. Petitioner could not meet his responsibility to ensure basic needs without checking on Grajeda. That is, Petitioner could not have known whether Grajeda’s basic needs were being met without checking on him or requiring those he supervised to check on him. As noted earlier, that Petitioner may have needed to obtain a sergeant’s assistance to open Cell 119 did not eliminate Petitioner’s responsibility to ensure an inmate’s basic needs were met. To be sure, checking on an inmate in isolation may be more burdensome. The obligation and responsibility to do so exist nonetheless. Petitioner could not meet his duty to ensure inmates’ basic necessities were being met without checking on Grajeda’s well-being.

While Petitioner makes much of a sergeant’s obligations to check on Grajeda (Opening Brief 10:16-23, 12:3-8), Petitioner has identified no record evidence suggesting Petitioner’s obligation to inmates in isolation and those of a sergeant are mutually exclusive. That a sergeant may have an obligation to check on Grajeda by regulation or Department policy does not inform on Petitioner’s obligation—they can both have that duty. Video evidence of a sergeant complying with his or her obligations to check on an isolated inmate are irrelevant to whether Petitioner complied with his responsibilities. (Opening Brief 10:24-11:4.) Similarly, discipline meted out to sergeants for any misconduct related to Grajeda does not inform on appropriate discipline for Petitioner for his misconduct.

Under the circumstances, Petitioner’s failure to check on Grajeda violated the Department’s MPP. Petitioner could not ensure Grajeda’s basic needs were being met without checking on him. That Grajeda was in an isolation cell did not eliminate Petitioner’s responsibilities. The weight of the evidence supports the Commission’s findings Petitioner did not perform to standards when he failed to check on Grajeda while Grajeda was in Cell 119. That is, he did not “properly perform [his] duties, and assume the responsibilities of [his] position[]” on June 19 and 20, 2015. (AR 3945.)

Petitioner argues the Department abused its discretion by imposing a seven-day unpaid suspension on him as discipline for his violations of Department policy. Specifically, Petitioner argues several other employees with much greater responsibility and more direct involvement with Grajeda “were given much lighter discipline, or none at all.” (Opening Brief 13:27.)

“ ‘[In] a mandamus proceeding to review an administrative order, the determination of the penalty by the administrative body will not be disturbed unless there has been an abuse of its discretion.’ ” (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 217.) In considering an agency’s penalty, the court may not substitute its own judgment for that of the administrative agency, nor “disturb the agency's choice of penalty absent ‘ “an arbitrary, capricious or patently abusive exercise of discretion” ’ by the administrative agency.” (Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 628) “Only in an exceptional case will an abuse of discretion be shown because reasonable minds cannot differ on the appropriate penalty.” (County of Los Angeles v. Civil Service Com. of County of Los Angeles (2019) 40 Cal.App.5th 871, 877.)

Whether an employee's conduct has resulted or is likely to result in harm to the public service if repeated requires consideration of the nature of the employee's profession, because “some occupations . . . carry responsibilities and limitations on personal freedom not imposed on those in other fields.” (Thompson v. State Personnel Bd. (1988) 201 Cal.App.3d 423, 429.)

The court finds Petitioner’s argument about disparate penalty here unpersuasive. The discipline of other employees and their unique circumstances is not before this court; therefore any penalty comparison analysis is incomplete. The court cannot compare penalties imposed because the does not have all relevant information before it to ensure an apples-to-apples comparison.

Petitioner attempts to shift the blame—he argues the responsibility for Grajeda’s welfare fell to the sergeants, not him. Petitioner argues rather than receiving discipline commensurate with their misconduct, Miller, Lieutenant Gunnels, Sergeant Bowman and Sergeant Baltze all received lesser or no punishments. Petitioner contends they were more culpable than he and his discipline should be something less than theirs.

Petitioner does not support his penalty argument with adequate citations to the record. He fails to demonstrate how the sergeants were more culpable than he. This is especially true where the responsibility for ensuring an inmates’ basic needs—food, water, restroom facility access—fell on him, and he ignored Grajeda for 16 hours.

In fact, the Commission’s decision expressly rejected Petitioner’s claim he was treated inconsistently and more harshly than others: “[N]o other supervisory employee was similarly situated in that [Petitioner] was the only supervisory employee actually involved in distributing food and consciously skipping cell 119 without making an effort to remedy the failure to feed Grajeda.” (AR 289.) Petitioner fails to directly address the difference between him and others identified in the Commission’s decision.

Moreover, the IAB investigation provides some justification for differences in punishment. For example, the IAB investigation found “. . . Miller, although a supervisor, had no knowledge of the reason Inmate Grajeda was placed in the cell and was not present during the feeding of inmates in the Clinic. She was the only person who gave Inmate Grajeda water and then expedited his movement out of IRC when she returned the following day.” (AR 175.)

Petitioner also argues as result of staffing shortages, the ICR was “chaotic.” While unclear, Petitioner may be suggesting the chaos should mitigate his discipline. Beyond a generalized assertion, however, Petitioner fails to demonstrate how—at the relevant times pertaining to Grajeda—staffing shortages impacted Petitioner’s ability to comply with his duties.

The court cannot find on this record the penalty imposed constitutes a manifest abuse of discretion. Certainly, reasonable minds could differ on the appropriate penalty based on Petitioner’s violation of the Department’s MPP.

[1] IRC is a processing center for newly arrested, male adults entering the Los Angeles County Jail System. (AR 697.)

[2] The EM shift ordinarily runs from 9:00 p.m. to 5:00 a.m. The PM shift ordinarily runs from 1:00 p.m. to 9:00 p.m. (AR 1930.)

[3] The Commission’s use of passive voice—“no evidence was presented to establish”—likely created the confusion. (See Reply 6:1-6.)

[4] The court recognizes Petitioner and Petrocelli shared only one of Petitioner’s two shifts on June 19 and 20, 2015.

[5] The Department’s MPP at Section 3-01/050.10 provides in full:

“Members shall maintain sufficient competency to properly perform their duties, and assume the responsibilities of their positions. Members shall perform their duties in a manner which will tend to establish and maintain the highest standard of efficiency in carrying out the functions and objectives of the Department.

Incompetence may be demonstrated by:

• a lack of knowledge of the application of laws required to be enforced;

• an unwillingness or inability to perform assigned tasks;

• failure to conform to work standards established for the member's rank or position;

• failure to take appropriate action on the occasion of a crime, disorder or

other condition deserving police attention;

• absence without leave; and/or

• unnecessary absence from an assigned area during a tour of duty.” (AR 3945.)