Judge: Mitchell L. Beckloff, Case: 22STCP02841, Date: 2023-08-16 Tentative Ruling

Case Number: 22STCP02841    Hearing Date: October 18, 2023    Dept: 86

RIGGS v. CITY OF LOS ANGELES

Case Number: 22STCP02841                                                        

Hearing Date: August 16, 2023 

[Tentative]       ORDER GRANTING PETITION FOR WRIT OF MANDATE IN PART

Petitioner, Barbara Riggs, seeks a writ of administrative mandate directing Respondents, City of Los Angeles and Michel Moore, Chief of Police (collectively, Respondents), to set aside the final administrative decision of the Chief of Police, after a Board of Rights hearing, to terminate Petitioner from her position as a sergeant with the Los Angeles Police Department (the Department). Petitioner also requests an award of backpay.

Petitioner has requested judicial notice of three documents: (1) a statement of decision issued by the court in Los Angeles Police Protective League v. City of Los Angeles, Los Angeles County Superior Court case number 21STCV39987; (2) a resolution passed by the City on February 14, 2023; and (3) the City Council’s vote on the February 14, 2023 resolution. The request for judicial notice (RJN) is granted as to the City’s resolution and the City Council’s vote.

The RJN is denied, however, as to the statement of decision. As discussed more fully herein, the statement of decision from a trial court for a case that has since been dismissed and no judgment entered is not relevant to these proceedings—it is not binding authority. While the statement of decision is a trial court record and subject to judicial notice, its lack of relevance precludes the court from judicially noticing the document. “Although a court may judicially notice a variety to matters [citation], only relevant material may be noticed.” (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.)

Moreover, a request for judicial notice cannot be used to circumvent the rules constraining the admission of extra-record evidence. (Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 475, fn. 10.) To be clear, “a hearing on a writ of administrative mandamus is conducted solely on the record of the proceedings before the administrative agency.” (Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881.) Code of Civil Procedure section 1094.5, subdivision (e) governs augmentation of the record in administrative mandate. The requirements of the statute are “stringent.” (Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 102.)

“If the moving party fails to make the required showing [to augment the record], it is an abuse of the court's discretion to [augment the record].” (Ibid.) A motion to augment the administrative record “must be filed as a noticed motion.” (Los Angeles County Court Rules, Rule 3.231, subd. (g)(3).)

Petitioner’s declaration filed June 16, 2023 is extra-record evidence. As it is not part of the administrative record (and the administrative record has not been augmented), the court may not consider it. The court further notes the transcript of a podcast significantly postdated the events at issue in this proceeding.

Petitioner’s RJN as to the City of Los Angeles Charter (Charter) sections 230, 240 and Ordinance No. 187134 is granted.

The petition is granted to the extent Petitioner has alleged a violation of Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218 [Skelly]. In all other respects, the petition is denied.

BACKGROUND

City Makes Covid-19 Testing a “Condition of Employment” for Employees Seeking an Exemption from the Covid-19 Vaccination Requirement

On August 18, 2021, the City adopted Ordinance No. 187134 (Ordinance), requiring all present and future employees be vaccinated against COVID-19 or to request an exemption for religious or medical reasons by October 20, 2021 as a condition of employment. (AR 971, 961-966.) Section 4.702, subdivision (b) of the Los Angeles Administrative Code (LACC) provides:

Employees with medical or religious exemptions and who are required to regularly report to a City worksite shall be subject to weekly COVID-19 tests. Testing will be provided to the employees at no cost during their work hours following a process and timeline determined by the City. (AR 1088.)

On October 14, 2021, the City’s Administrative Officer (CAO) issued the City’s Last, Best and Final Offer (LBFO) to employee unions detailing the consequences for a City employee’s failure to comply with the Ordinance. (AR 974.)  After meet and confer efforts with labor organizations reached an impasse, the City Council passed a resolution implementing the LBFO. (AR 967, 973.)  

Pursuant to the LBFO, failure to fulfill the conditions detailed in the LBFO would constitute a failure to meet a condition of employment and would result in appropriate and immediate corrective action. (AR 975.) For employees who filed a request for exemption from the vaccine requirement, the LBFO also imposed the following testing requirements:

Employees who have reported a vaccination status of "not vaccinated" and who file exemption paperwork and are awaiting the result of the City's evaluation process shall be subject to the same terms applicable to employees who are not fully vaccinated and who have received a Notice, including and limited to items 2, 3, 4, and 5 . . . . (AR 976.)

Items 2, 3, 4, and 5 provide:

2. The employee must test for COVID-19 twice per week;

3. To facilitate the testing process for the employee and ensure that test results are reported accurately and timely, all testing shall be administered by the City or a vendor of the City's choosing. The employee shall be required to test through the City or its vendor. No third-party tests shall be substituted for tests provided for by the City or its vendor;

4. The employee shall reimburse the City $260 per pay period for four tests at $65 each. Reimbursement shall be made on a biweekly basis through an employee's paycheck, e.g., through a negative payroll deduction; and

5. The employee shall test on their own time, i.e., not on paid work time. (AR 975-976.)

On October 28, 2021, the City’s mayor issued a memorandum to all City department heads, including the Chief of Police, to immediately implement the Ordinance and LBFO. (AR 967-969.) As relevant here, the mayor directed the department heads to issue a “Notice of Mandatory Covid-19 Vaccination Policy Requirements – While Awaiting an Exemption/Appeal Determination” to each unvaccinated employee with a pending exemption request. The mayor directed department heads to immediately begin the corrective action process outlined in the LBFO for each employee who remains non-compliant as of December 18, 2021. The memorandum stated: “An employee that remains out of compliance shall be placed off duty without pay pending service of a Skelly package that includes a Notice of Proposed Separation. Sworn employees shall be subject to applicable Board of Rights proceedings.” (AR 968-969.)

The City selected a vendor, Bluestone Health, to perform the twice weekly Covid-19 testing for the Department’s employees who were awaiting the City’s response to request for exemptions from the vaccine requirement. Pursuant to the LBFO, the employees were required to pay $65 for each twice weekly test. (AR 93, 111, 237, 332, 342.)

Petitioner Files for Religious Exemption and Refuses to Sign the Notice or Complete Covid-19 Testing

Petitioner filed for a religious exemption from the Covid-19 vaccination requirement. (AR 113, 672.) On November 16, 2021, Captain Peter Casey, Petitioner’s commanding officer, served Petitioner with a Notice of Mandatory Covid-19 Vaccination Policy Requirements – While Awaiting an Exemption/Appeal Determination. (AR 388-389, 981-983.) At that meeting, Casey also orally informed Petitioner of the testing requirements and consequences for non-compliance. (AR 387-391.) Casey informed Petitioner she was required to complete the Covid-19 testing with Bluestone Health, and he explained to Petitioner how to establish an account with Bluestone Heath. (AR 387-388, 391.) 

Petitioner refused to sign the notice or submit to Covid-19 testing with Bluestone Health.  (AR 983, 986, 394, 115.) 

Administrative Complaint and Skelly Package

On December 16, 2021, Casey signed a complaint review report against Petitioner. (AR 1-3.)  The preliminary investigative narrative in the complaint stated:

The Department Employee was served with the Notice of Mandatory COVID-19 Vaccination Policy Requirements by their Commanding Officer.

The Department Employee was advised that failure to sign, or disagreement to any part of the notice, would cause them to be placed off-duty pending pre-separation due process procedures. The Department Employee was given 48 hours to respond. The Department Employee refused to sign the notice as required, and/or comply with the notice as required. (AR 2.)

Also on December 16, 2021, the Department caused Petitioner to be served with a complaint adjudication form advising that the Department’s complaint against Petitioner would be heard at a Board of Rights hearing. The form gave Petitioner until December 21, 2021 to respond orally or in writing to the complaint. (AR 5-6.) Petitioner signed the notice on December 16, 2021, initialed boxes on the form acknowledging she had received a copy of the investigation materials, was informed of her right to representation prior to discussing the matter, and that she intended to submit a response. (AR 6.) Petitioner had not prepared a response to the complaint adjudication form by December 21, 2021. (AR 722.)

On December 21, 2021, the Department caused Petitioner to be served with a complaint and relief from duty notice advising Petitioner that the Chief of Police intended to terminate Petitioner’s employment. The notice reflected Petitioner had been temporarily relieved of duty effective December 22, 2021 pending a Board of Rights hearing. (AR 4.) The notice advised Petitioner she would “not suffer a loss of compensation for thirty calendar days after the date on which [she was] served with the charge(s).” (AR 4.) 

Board of Rights Hearing and Decision

On January 18, 2022, the Department conducted Petitioner’s Board of Rights hearing. (AR 63.)  The Department alleged a single count of misconduct: “On or about December 9, 2021, while on duty, [Petitioner] failed to comply with the requirements of the notice of mandatory Covid-19 vaccination policy requirements, a condition of employment." (AR 10, 67.) Petitioner pleaded not guilty to the charge.  (AR 71.)   

On March 10, 2022, after five days of hearing, the board unanimously found Petitioner guilty of the misconduct count alleged. (AR 1557-1568.) Specifically, the board found Petitioner “failed to comply with the requirement for mandatory testing” set forth in the LBFO when she refused to submit to twice weekly Covid-19 testing through Bluestone Health. (AR 1561.) The board considered a number of defenses and arguments asserted by Petitioner, including that (i) her individual test results might be shared with others and (ii) the requirement that she reimburse the City for the cost of the testing violated Labor Code section 2802. 

The board found Petitioner’s contentions to be unpersuasive. (AR 1561-1568.) While the board acknowledged the $65 per test reimbursement requirement might violate the Labor Code, the board concluded that petitioner’s claim was premature: “Employees of the Department were allowed to opt for invoicing, which option the accused selected, and a Labor Code violation could not occur, if at all, until the Department insisted on collecting payment without reimbursement.” (AR 1566.) 

The board concluded Petitioner “clearly is passionate about the positions she presented to the board. The board recognizes and has compassion for her strength of conviction. The board also recognizes and applauds [Petitioner’s] 32 years of service to the department and our community. However, her passion and the service do not translate to a legally defensible position. The matter before the board boils down to the simple proposition that the accused determined not to vaccinate; she was offered the alternative to test; she refused to test. Passion notwithstanding, [Petitioner’s] refusal to obey a directive was outside the boundaries of acceptable conduct.” (AR 1567.)

On April 19, 2022, when considering the penalty to be imposed, the board unanimously decided to hold the proceedings in abeyance and recommend to the Department that it consider allowing Petitioner “to enter into a contract whereby she would return to duty and agree, during the period of the contract, to abide by the policies and procedures of the Department relating to the mandatory COVID testing as she awaits the determination of her religious exemption from the vaccine.” (AR 928.) After about three weeks, the Department rejected the board’s recommendation and did not enter the proposed contract with Petitioner. 

The board thereafter deliberated on the appropriate penalty to be imposed on Petitioner.  On May 10, 2022, after deliberation, the board unanimously recommended the Chief of Police terminate Petitioner’s employment because Petitioner failed to comply with a condition of employment. (AR 1569-70, 955-956.) The board reasoned that “this is not a penalty in the strictest form of the definition” because “the accused has not met the condition of employment.” (AR 1569-70, 955-956.)   

On May 18, 2022, the Chief of Police executed the order to terminate Petitioner’s employment “with total loss of pay” effective January 21, 2022. (AR 1571.)

This proceeding ensued.

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STANDARD OF REVIEW 

Petitioner seeks relief pursuant Code of Civil Procedure section 1094.5.[1]

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).)

As noted by Respondents, judicial review here is under the court’s independent judgment. (Opposition 7:19-22.) (See Cipriotti v. Board of Directors (1983) 147 Cal.App.3d 144, 154; Sandarg v. Dental Bd. of California (2010) 184 Cal.App.4th 1434, 1440.) 

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 v. Pierno (1971) 4 Cal. 3d 130, 143.)  The court may draw its own reasonable inferences from the evidence and make its determinations as to the credibility of witnesses. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.) 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 independent judgment, “abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.” (Code of Civ. Proc., § 1094.5, subd. (b).)

“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; see also Evid. Code, § 664.)

Finally, “[o]n questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law.  (See State Farm Mutual Automobile Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.) 

ANALYSIS 

Petitioner challenges Respondents’ actions on three grounds. First, Petitioner contends Respondents violated her constitutional rights under Skelly, supra, 15 Cal.3d at 194. (Opening Brief 14:7-15:14.) Second, Petitioner alleges the penalty imposed by Respondents is disproportionate to her misconduct. (Opening Brief 15:17:2.) Last, Petitioner argues the City’s condition of employment was “illegal” and violated Labor Code section 2802 (Section 2802). Notably, Petitioner does not challenge whether the weight of the evidence supports Respondents’ decision.[2]

Violation of Skelly

Petitioner contends Respondents denied Petitioner her constitutional right to a pre-discipline Skelly hearing.

In Skelly, supra, 15 Cal.3d at 194, the California Supreme Court determined “due process does not require the state to provide the [permanent civil service] employee with a full trial-type evidentiary hearing prior to the initial taking of punitive action.” (Id. at 215.) The Court held, however, “due process does mandate that the employee be accorded certain procedural rights before the discipline becomes effective. As a minimum, these preremoval safeguards must include notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Ibid.)  

“The essence of procedural due process is notice and an opportunity to respond.” (Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1279.) “The minimal due process rights required by Skelly prior to discharge are merely anticipatory of the full rights which are accorded to the employee after discharge. The employee can exercise those rights at the subsequent hearing, and if that hearing shows that there were good grounds for dismissal, the employee is not entitled to reinstatement; he is merely entitled to damages for the limited time period in which discipline was wrongfully imposed, i.e., the employee is entitled to back pay for the period from the time discipline was actually imposed to the date the commission filed its decision validating the dismissal.” (Kirkpatrick v. Civil Service Com. (1978) 77 Cal.App.3d 940, 945.) 

Here, Petitioner signed the complaint adjudication form on December 16, 2021. (AR 6.) At that time, Petitioner initialed boxes on the form indicating she had received a copy of the investigation materials,[3] was informed of her right to representation prior to discussing this matter, and intended to submit a response. (AR 6.) Thus, the City complied with Skelly in part by providing Petitioner notice of the proposed action, the reasons therefor, a copy of the charges, and the material upon which the action is based.

However, Skelly also required the City to provide Petitioner with “the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Skelly, supra, 15 Cal.3d at 194.) The opportunity to respond is necessarily a meaningful one. In fact, the memorandum of understanding between the Los Angeles Police Protective League (League) and the City (MOU), operative through June 30, 2022, specifies “[t]he employee shall be given a reasonable period of time to consider and prepare a Skelly response.” (AR 1519 [Article 10.3].)

While it is not entirely clear, it appears Petitioner contends the City deprived her of a reasonable opportunity to prepare a Skelly response.[4] (Opening Brief 15:2-12.) Resolution of Petitioner’s Skelly claim turns on the following timeline:

On Thursday, December 16, 2021, the Department advised Petitioner the Department’s complaint would be heard at a Board of Rights hearing. (AR 5-6.) The complaint adjudication form (notice) provided Petitioner only five days, until December 21, 2021, to respond orally or in writing to the Department’s complaint. (AR 5-6.) The complaint adjudication form states: “Your response will be reviewed by the Chief of Police for evaluation prior to adjudication of this matter.” (AR 5-6.) Thus, the notice indicates the Department’s own procedures required Petitioner to be given time to submit a response for review by the Chief of Police to evaluate before he made a decision on the proposed discipline. (AR 6. [“Your response will be reviewed by the Chief of Police for evaluation prior to adjudication of this matter.”])

The Chief of Police signed the Department’s complaint—directing Petitioner to a Board of Rights—on December 16, 2021.[5] (AR 4.)

On Tuesday, December 21, 2021, at about 11:33 a.m., the Department advised Petitioner the Chief of Police intended to terminate her employment and Petitioner was temporarily relieved of duty effective December 22, 2021 pending a Board of Rights hearing. (AR 4.)  The complaint also specified Petitioner would lose her pay 30 days from the date of service of the charges. (AR 4.)[6] Considering that Petitioner was served in the morning on December 21, 2021, and depending on the time Petitioner learned of the complaint on December 16, 2021, Petitioner had only four to five days to prepare her Skelly response. Thus, as conceded by Respondents, Petitioner had at most five days to prepare a Skelly response.  (Opposition 13:23-24.) 

Respondents contend “there was no Skelly violation here because Petitioner never submitted her Skelly response within the time period given to her.” (Opposition 13:19-20.) Respondents’ argument is unpersuasive because it assumes, incorrectly, the amount of time provided to an employee to respond to a Skelly package (in this case five days) is necessarily a reasonable period. Respondents do not support their conclusion a reasonable period under the circumstances was five days.  From the court’s perspective, the issue is whether four to five days provided Petitioner with a reasonable opportunity to respond within the meaning of Skelly under the circumstances.

As noted, the MOU contains “Skelly/Employee Investigation Review Representative” procedures. (AR 1519.) The MOU provides: “The Skelly or [EIRR] process is the last opportunity for an employee to discuss the investigation and/or rebut charges or present additional evidence on the employee’s own behalf . . . prior to the commanding officer submitting recommendations for disposition of a personnel complaint.”  (AR 1519.) 

The MOU also explains the employee “shall be given a reasonable period of time to consider and prepare a Skelly response.”[7]  While the EIRR process under the MOU provides an employee with a 30-day response time, neither party has explained the difference between a Skelly response and an EIRR response. (AR 1519.)

Nonetheless, Casey testified “typically” accused employees are given 30 days to provide a Skelly response.  (AR 434-435.) He also testified he could not think of any reason Petitioner was given only five days to respond in this case. (AR 434-435.)[8]

Given Casey’s unrebutted testimony, the court finds the Department did not provide Petitioner with a reasonable period of time to submit a Skelly response.[9]

Respondents argue the five days provided to Petitioner to respond was a reasonable time because Petitioner “faced only one simple charge of not testing.” While that may be true, the Board of Rights hearing undermines the simplicity of that charge. The board’s hearing lasted for multiple days, involved multiple witnesses, and substantial documentary evidence. Petitioner also raised various legal defenses, including a claim based on Labor Code section 2802. The administrative record consists of more than 1,500 pages for this “simple charge of not testing.”

Under these circumstances, while the Department charged Petitioner with a single count of misconduct, the court cannot conclude the charge represented a “simple” claim. Indeed, the board stated “one need only review the range of evidence presented to the board to confirm the novel nature of these proceedings set amidst ongoing city, state, and national litigation related to Covid-19 vaccination and testing.” (AR 1557.) Furthermore, Petitioner faced extremely serious discipline—termination after 32 years of employment with the Department.  Given the seriousness of the discipline, the “novel” nature of the proceedings, and the large amount of evidence, the court disagrees with Respondents’ contention five days was a reasonable amount of time for a Skelly response. 

Respondents also rely on Petitioner’s testimony she was unable to prepare a Skelly response by December 21, 2021 to support their position. (AR 722.) When asked for an explanation, Petitioner testified: “I would think a solid Skelly would take more than five days to put together.  I guess I could have put one in.” (AR 722.) Petitioner’s response did not concede that five days constituted sufficient time to prepare a Skelly response. Rather, Petitioner testified she thought a “solid” Skelly response would take longer than five days—a response the court finds credible.  Petitioner’s “guess” that she could have “put one in” more quickly does not demonstrate five days was reasonable especially given the consequences of discipline to a 32-year veteran with an excellent record of service.

Respondents also contend the Skelly violation constitutes harmless error because Petitioner participated in a Board of Rights hearing before the Chief of Police executed the final order to terminate her employment. The court acknowledges procedural errors, “even if proved, are subject to a harmless error analysis.” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.)  Moreover, a court will not issue a writ of administrative mandate unless the petitioner shows that the agency’s error “prejudicially affect[ed] the petitioner's substantial rights.”  (Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200.)

Respondents’ harmless error argument is unpersuasive for several reasons. 

First, the California Supreme Court has held “the imposition of discipline prior to affording the employee notice of the reasons for the punitive action and an opportunity to respond” violates Skelly’s due process rights. (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 403.)  “This infirmity is not corrected until the employee has been given an opportunity to present his arguments to the authority initially imposing discipline.” (Ibid.) 

Here, the Department did not provide Petitioner with a reasonable opportunity to present her arguments to the Chief of Police before he recommended Petitioner be discharged. (AR 3-4.)  Significantly, the Chief of Police temporarily removed Petitioner from duty effective December 22, 2021 and also specified Petitioner would suffer a loss of compensation starting in 30 days (except as provided in section 1070, subdivision (q) of the City of Los Angeles Charter [the Charter].)[10] (Ibid.) The Chief of Police’s final order similarly stated Petitioner’s removal, “with total loss of pay,” was effective January 21, 2022. (AR 1571.) While Petitioner could challenge the proposed discipline before the Board of Rights, the loss of pay was effective before the Board of Rights hearing.[11]  Skelly procedures are required prior to a loss of pay—a punitive action.

Moreover, Respondents have cited no authority for their contrary position. The logical extension of Respondents’ view would suggest Skelly has no application for the Department’s employees who receive a Board of Rights hearing before final imposition of penalty. Such a position is unsupported in the law.

Respondents also fail to address Charter section 1070, subdivision (b) which only authorizes the Chief of Police to temporarily relieve an officer from duty only after “following predisciplinary procedures otherwise required by law.” (AR 1055.) Thus, the Charter procedures relied upon by Respondents appear to require compliance with Skelly because Skelly is required by law.  Finally, while a specific analysis of harm seems unnecessary, Petitioner could have raised arguments concerning Labor Code section 2802 or her other defenses in a Skelly response. For all these reasons, the Skelly violation was not harmless.

Petitioner contends reinstatement is the proper remedy for the Skelly violation. (Reply 9:1-7.)  The court disagrees. While reinstatement may be ordered if the penalty is an abuse of discretion, the penalty analysis is a separate from the Department’s failure to comply with Skelly procedures. If a Skelly violation occurs, “the employee is not entitled to reinstatement; he is merely entitled to damages for the limited time period in which discipline was wrongfully imposed, i.e., the employee is entitled to back pay for the period from the time discipline was actually imposed to the date the commission filed its decision validating the dismissal.”  (Kirkpatrick v. Civil Service Com., supra, 77 Cal.App.3d at 945; see also Barber v. State Personnel Bd., supra, 18 Cal.3d at 402-403 [same].) As noted by the Supreme Court, “[t]he remedy for the employee in [Skelly violation] cases is to award back pay for the period of wrongful discipline.” (Barber v. State Personnel Bd., supra, 18 Cal.3d at 402.)

Neither party has provided the court a calculation of backpay or specified the dates for which Petitioner is entitled to backpay.  The Chief of Police’s final order of removal, dated May 18, 2022, discloses Petitioner was removed from her position as sergeant, with total loss of pay, effective January 21, 2022.  (AR 1571.) Based on Respondents’ violation of Petitioner’s Skelly rights, Petitioner is entitled to backpay and benefits running from January 21, 2022 to May 18, 2022 (to be calculated by Respondents).

Propriety of the Penalty

Petitioner argues the penalty imposed—her discharge—“is clearly excessive and disproportionate to the alleged wrong.” (Opening Brief 16:13.)

“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 may differ with regard to the appropriate 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, supra, 15 Cal.3d at 218.) 

Here, the Ordinance and LBFO both specified regular Covid-19 testimony was a condition of employment for employees seeking an exemption from the vaccination requirement. (AR 1088, 975-977.) As discussed, the board found (and Petitioner does not challenge that finding) Petitioner failed to fulfill this condition of employment. Since Petitioner failed to meet a condition of employment, it follows she could no longer be employed by the Department once the board made its finding of guilt on the complaint.

Brian Taft, a Senior Personnel Analyst and Officer-in-Charge of the Return to Work Section of the Department (AR 80-83), testified a “condition of City employment means that this is a requirement, in order to be able to be employed by the City of Los Angeles from this date going forward.” (AR 93.) Petitioner has cited no evidence or authority to the contrary. Accordingly, the board and the Chief of Police could reasonably determine, as they did, discharge was the only appropriate penalty based on Petitioner’s failure to meet a condition of her employment. 

Since Petitioner did not fulfill a condition of employment, it was unnecessary for the board to consider the Department’s disciplinary guidelines or mitigating circumstances asserted by Petitioner. Nonetheless, to the extent the board did consider such factors, Petitioner has not shown an abuse of discretion. As Petitioner herself notes, the Department’s disciplinary guidelines provide the recommended penalty for a first offense of insubordination, or violating any City policy, rule, or procedure, ranges from a reprimand up to an order to face a Board of Rights with a recommendation for removal. (AR 1542, 1545.) 

Considering the public health emergency caused by the Covid-19 pandemic in 2020, 2021 and 2022, and the impact on the City’s employees and operations, as reflected in the Ordinance and Resolution (see e.g. AR 970-973), the court cannot conclude it was unreasonable for the board to select a penalty at the upper range of the disciplinary guidelines. Notably, Petitioner was a sergeant and a supervisor for the Department. (AR 1.) For all these reasons, the board could reasonably conclude Petitioner’s refusal to comply with the City’s Covid-19 policies harmed the public service and risked additional harm to the public service. 

Respondents did not commit a manifest abuse of discretion when they discharged Petitioner as a penalty. 

Alleged Illegality of the Condition of Employment

Petitioner asserts “Labor Code § 2802 bars the City from requiring its employees to pay the cost of City-mandated testing.” (Opening Brief 17:5-6; see also Pet. ¶ 25.) Petitioner provides no real substantive analysis of Section 2802 in her short argument. (Opening Brief 17:5-20.) Instead, Petitioner argues:

Respondents’ new condition of employment included a term that City employees who submitted exemptions must reimburse the City for City-mandated virus testing – turning § 2802 on its head. In other words, § 2802 requires an employer to indemnity its employee for job-related expenses, yet Respondents here require the employee to indemnify their employer for job-related expenses – which is what the Court found to be illegal in the League case.

Respondents may argue that, at the time they made the “agreement” to reimburse the City for the cost of testing a condition of employment, they were unaware that the condition was illegal. However, to quote the millennia old legal axiom that predates Aristotle: “ignorance of the law is no excuse.” (Opening Brief 17:13-20.)

Petitioner’s argument in reply is no more helpful. (Reply 9:23-10:2.) Petitioner merely contends the “City cannot now claim in good faith that the Labor Code does not apply.” (Reply 10:1-2.)

Throughout her briefing, Petitioner has not substantively discussed Section 2802, other allegedly applicable statutes and/or authorities to support her claim of illegality. Instead, Petitioner rests her argument entirely on a statement of decision issued by Los Angeles County Superior Court Judge Rupert Byrdsong on September 30, 2022 (Los Angeles Police Protective League v. City of Los Angeles, Case No. 21STCV39987), more than four months after Petitioner’s administrative proceeding had concluded and the discharge penalty imposed.[12]

After a bench trial, Judge Byrdsong found Section 2802 barred the City from imposing financial liability for Covid-19 testing on City employees. Judge Byrdsong concluded “invoicing” or “negative deductions” for the costs of Covid-19 testing were prohibited by Section 2802.  (RJN Exh. A at 8-18.) Judge Byrdsong’s statement of decision reflects he would issue a writ of mandate enjoining the City from requiring unvaccinated employees to incur the cost of City-required Covid-19 testing and compelling the City to indemnify and reimburse unvaccinated employees who had paid such testing costs through payroll deductions or direct payment of billed invoices. (See RJN EXH. A at 18-19.) 

As Respondents note, the court dismissed Los Angeles Police Protective League v. City of Los Angeles after the parties entered into a settlement of the action. (Opposition 12:10-16.)[13]  There is no evidence the court ever issued the writ of mandate contemplated by Judge Byrdsong’s statement of decision. There is also no evidence the court ever issued a judgment in the case.

Petitioner does not show the statement of decision is “final” or has any binding effect or precedential value. (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 830 [“. . . a written trial court ruling has no precedential value”].) Nor does Petitioner provide any legal analysis of her own to demonstrate this court should reach a conclusion regarding Section 2802, and whether Section 2802 is a defense to the administrative charge against Petitioner. Instead, her claim is based solely on her citation to a non-binding and non-precedential trial court decision.

As noted earlier, Petitioner did not provide any separate analysis of Section 2802 or published authority applying Section 2802 to a public employer. Petitioner has also not cited cases relevant to an analysis of the consequences to the administrative charge against her—failure to complete mandatory Covid-19 testing—if the City’s reimbursement policy violated Section 2802. 

Petitioner also has not addressed the board’s finding her Section 2802 was premature at the time of the administrative decision because Respondents had not demanded payment for the cost of any Covid-19 testing. (AR 1566; See Opening Brief 17:5-20.) As Respondents note, the Ordinance provides for severability: “If any term or provision of this section is found to be in conflict with any City, State, or Federal law, the City will suspend said section as soon as practicable and the remainder of this Ordinance shall not be affected thereby.”[14] (AR 965; see Opposition 13:9-12.) Respondent concludes “[t]his means that even if a court were to determine that Section 2802 applied here and the City’s policy was in violation thereof, only the cost portion would become unenforceable but the remaining substantive portions of the City’s policy (vaccination, exemption, and testing) would stand as valid and legitimate policy.” (Opposition 13:12-15.) Petitioner omits any discussion concerning severability.[15] 

In addition, as Respondents note, the evidence reflects the Department never charged, invoiced, or otherwise collected any testing costs from the employees who requested an exemption. (AR 226-227, 235, 331.) Thus, even assuming burdening Petitioner with the cost of testing would violate Section 2802, the City never violated Section 2802. While the board believed the reimbursement requirement might violate the Labor Code, the board concluded Petitioner’s claim was premature. The board noted: “Employees of the Department were allowed to opt for invoicing, which option the accused selected, and a Labor Code violation could not occur, if at all, until the Department insisted on collecting payment without reimbursement.” (AR 1566.) Petitioner has not addressed the board’s finding and why such a finding constituted error. Accordingly, on the arguments made and whole record, Petitioner does not show a prejudicial abuse of discretion when the board found Petitioner’s Section 2802 claim was premature.

Respondents argue generally Section 2802 does not apply to public entities. (Opposition 11:24.)  “ ‘Generally, . . . provisions of the Labor Code apply only to employees in the private sector unless they are specifically made applicable to public employees.’ ” (Stoetzl v. Department of Human Resources (2019) 7 Cal.5th 718, 752.) Section 2802 does not expressly mention public employers. However, Respondents also do not fully develop the argument, including with a discussion of cases cited in Judge Byrdsong’s statement of decision, where Section 2802 applied to public entities. (See RJN Exh. A at 9; see e.g. In re Acknowledgment Cases (2015) 239 Cal.App.4th 1498.) Respondents also do not cite a case holding Section 2802 is not applicable to a public employer.  

Based on the foregoing, the court finds the briefing from both Petitioner and Respondents insufficient on the questions of (1) whether the City’s policy of requiring employees who sought an exemption to pay for testing conflicted with Section 2802 at the time of the administrative proceedings in this case (concluding in May 2022) even where the City never collected reimbursement from employees; and (2) if any conflict with Section 2802 excused the mandatory Covid-19 testing requirement that applied to employees seeking an exemption, such as Petitioner. Even if the City’s policy of requiring employees who sought an exemption to pay for testing conflicted with Section 2802 during the relevant time period for this petition, it does not necessarily follow that Petitioner would be excused from complying with the rest of the Ordinance and LBFO. Petitioner provided no relevant authorities to support her position. 

Based on the foregoing, the court concludes Petitioner has not met her burden to demonstrate a prejudicial abuse of discretion in board’s finding Section 2802 did not provide a defense to the charge against her for failure to comply with the City’s Covid 19 policy. Petitioner’s citation to an unpublished, non-binding trial court’s statement of decision is insufficient to support her position. 

City Council’s Resolution to Discontinue Covid-19 Testing

Petitioner requested and the court granted judicial notice of a “Resolution Discontinuing Covid-19 Surveillance Testing Requirements Implemented Pursuant to Ordinance No. 187134” passed by the City Council on February 14, 2023. (RJN Exh. B.) The Resolution terminated the LBFO’s mandatory testing requirements for unvaccinated employees; ordered reimbursement to any City employees who incurred costs related to the LBFO’s testing requirement; and ordered that “no City employee shall be charged for the costs of any required testing.” (Ibid.) In relevant part, the recitals to the resolution cite to Judge Byrdsong’s statement of decision as one reason, among others, for the change in the City’s Covid-19 testing policy. (Ibid.) 

While the court has judicially noticed the resolution, Petitioner’s arguments as to the relevance of the resolution to this Code of Civil Procedure section 1094.5 proceeding are unclear. In Petitioner’s Opening Brief, Petitioner notes the resolution “discontin[es] the virus testing due to the City’s illegal payment requirement pursuant to the Court ruling in the League case.”  (Opening Brief 17:11-12.) In reply, Petitioner states: “the City later abandoned the payment requirement and discontinued ‘surveillance virus testing’ altogether based on the Court’s ruling in the League case on the Labor Code § 2802 issue. The City cannot now claim in good faith that the Labor Code does not apply. In any event, since it is adjudicated, this issue is moot.” (Reply 9:26-10:2.) 

As discussed earlier, Petitioner does not demonstrate the September 30, 2022 trial court’s statement of decision has any binding or precedential effect in this proceeding. Just as Petitioner cannot simply cite to the statement of decision to support her claim under Section 2802, she also cannot simply cite to the resolution to support her position. To the extent Petitioner is arguing the City’s policy of requiring certain employees to pay for Covid-19 testing violated Section 2802, and as a result was a legal defense to her termination, Petitioner—as the party with the burden of demonstrating error—was required to provide a legal analysis with a discuss of authorities to support her position. Petitioner did not do so. 

Although the argument is not fully developed, Petitioner seems to contend the City has conceded in the resolution the LBFO’s requirement that certain employees pay for Covid-19 testing was illegal. However, the City cited Judge Byrdsong’s decision, which might have resulted in a writ directing the City to change its policy on a prospective basis, as one of several reasons for the change in policy. The City also based the resolution on changes in public health guidance related to Covid-19, stating:

WHEREAS, since the height of the pandemic and over the past year, guidance issued by the CDC, CDPH and LADPH regarding the use of surveillance testing of unvaccinated employees as a strategy for preventing the spread of COVID-19 has changed significantly in response to a decreasing number of COVID-19 cases statewide, with updated guidance no longer requiring surveillance testing the wearing of face masks in areas with a low to medium COVID-19 Community Level. (RJN Exh. B.) 

In context of the other recitals, arguably the resolution does not make any dispositive statement or concession about the legality of its Covid-19 policy as applied to employees such as Petitioner who did not incur any costs related to the LBFO’s mandatory testing requirements.  Moreover, the resolution made no statement about whether a potential conflict with Section 2802 should be a defense for employees who failed to comply with an order to complete mandatory Covid-19 testing. 

In any event, under Code of Civil Procedure section 1094.5, subdivision (b), the issue is whether Respondents prejudicially abused their discretion in discharging Petitioner in May 2022 for failing to meet a condition of employment. The resolution did not exist at the time of the board’s decision.

The court requested additional briefing from the parties concerning the relationship between the Ordinance and the resolution. The court questioned whether the resolution superseded the Ordinance. The Charter makes clear the City Council’s legislative power is exercised by ordinance while “[o]ther action” may be by resolution. (Charter, § 240.) “ ‘[A] resolution . . . is ordinarily not equivalent to an ordinance. A resolution is usually a mere declaration with respect to future purpose or proceedings . . . . An ordinance is a local law which is adopted with all the legal formality of a statute.’ A resolution adopted without the ‘formality’ required of an ordinance cannot be deemed an ordinance.” (City of Sausalito v. County of Marin (1970) 12 Cal.App.3d 550, 565-566.)

Accordingly, the court cannot find the resolution superseded the Ordinance such that the outcome here might be different.

CONCLUSION 

The petition for writ of mandate is GRANTED IN PART.  On the administrative record and briefing, Petitioner has not shown Respondents prejudicially abused their discretion in terminating her employment based on the record before them in May 2022. (Code Civ. Proc.,

§ 1094.5, subd. (b).)

Petitioner has shown a violation of Skelly since she was not given a reasonable opportunity to respond to the charges before the Chief of Police caused the complaint and relief from duty to be served on her on December 21, 2021. (AR 4.) The proper remedy for the Skelly violation is an award of backpay and benefits for the limited time period in which discipline was wrongfully imposed. Accordingly, the court will issue a writ directing the City to provide Petitioner backpay and benefits from January 21, 2022 to May 18, 2022.

The FAP is otherwise denied.

IT IS SO ORDERED. 

October 18, 2023                                                                                                                                                        

________________________________ 

Hon. Mitchell Beckloff  

Judge of the Superior Court