Judge Mitchell L. Beckloff, Case Number: 22STCP03042, Date: 2023-10-11 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP03042, Date: 2023-10-11 Tentative Ruling

Petitioner, Natalie Stringer, seeks a writ of mandate requiring Respondent, the City of Los Angeles, to set aside her discharge, to reinstate her to her prior position as a Police Officer III with the City’s police department with backpay, and to remove any reference of misconduct in her personnel records. The City opposes the request.

The City’s evidentiary objection (objection 1) to Petitioner’s declaration is sustained. The declaration constitutes extra-record evidence.[1] 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, 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.”[2] (Los Angeles County Court Rules, Rule 3.231, subd. (g)(3).)

Petitioner’s declaration filed August 11, 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 also notes the transcript of a podcast significantly postdated the events at issue in this proceeding.

Petitioner’s Request for Judicial Notice (RJN) of Exhibit A, a statement of decision issued by the court in Los Angeles Police Protective League v. City of Los Angeles, Case No. 21STCV39987, is denied. The City’s objection (objection 2) is sustained. The City contends the RJN “must be denied by this Court, it is not a final judgment on the merits for purposes of collateral estoppel and is not dispositive of any of the issues in this case, making it irrelevant for this matter.” (Objection 4:13-15.) While the court may take judicial notice of the records of any court of this state, the records must be relevant to an issue in this proceeding. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.) As the statement of decision is not binding authority and is not a judgment, the relevance of Petitioner’s RJN is unclear. Moreover, the statement of decision substantially post-dated Petitioner’s Board of Rights hearing and was not considered by the agency during the underlying administrative proceeding.

The City’s objection (objection 3) to Petitioner’s RJN Exhibit B is sustained. Petitioner fails to explain the relevance of the resolution—unlike the City’s ordinance at issue here, a resolution is not a local law and not equivalent to an ordinance. (See City of Sausalito v. County of Marin (1970) 12 Cal.App.3d 550, 565-566.) Petitioner’s RJN Exhibit D is similarly irrelevant, and the court does not take judicial notice of Petitioner’s Exhibit D (the City Council’s vote adopting the resolution).

To the extent Petitioner has relied on inadmissible evidence, the court does not consider the argument (objections 4, 5 and 6).

The City’s RJN of Exhibits A through D (sections 240, 231, 313 and 320 of the City of Los Angeles Charter [Charter]) is granted.

The court initial heard argument on the petition on October 11, 2023. At that time, the court issued a tentative order finding the City violated her rights under Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218 [Skelly] entitling Petitioner to damages, not reinstatement. (See Violation of Skelly section infra.) The court also found to the extent the City discharged Petitioner based on her failure to comply with a valid condition of employment, Petitioner was entitled to no relief. (See Propriety of Penalty section infra.)

After hearing argument, the court adopted its tentative decision as to the City’s Skelly violation and propriety of the penalty. The court did, however, provide Petitioner with further opportunity to brief her position the City’s condition of employment was unlawful and illegal under Labor Code section 2802. The court did so given the court’s unwillingness to rely on Petitioner’s RJN Exhibit A, the statement of decision from an unrelated and now dismissed civil action heard in this court, Los Angeles Police Protective League v. City of Los Angeles, Case No. 21STCV39987.

Thus, the only issue for consideration on the second day of hearing is whether the City’s condition of employment violated Labor Code section 2802 and, if so, how such a finding impacts, if at all, the City’s decision to discharge Petitioner as a Police Officer III.

The 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. Alternatively, an employee could avoid the vaccine by requesting an exemption for religious or medical reasons by October 20, 2021. The requirements of the Ordinance became a condition of employment with the City. (AR 473-478.)

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 475.)

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 486.) After meet and confer efforts with labor organizations reached an impasse, the City Council passed a resolution implementing the LBFO. (AR 479-485.)

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 487.) 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 488.)

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 487-488.)

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 479-481.) 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. (AR 480.) 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. (AR 481.) 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 481.)

The City selected a vendor, Bluestone, 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 114, 115, 125, 134, 487.)

Petitioner Files for Religious Exemption and Does Not Sign the Notice or Complete COVID-19 Testing

Petitioner filed for a religious exemption from the City’s COVID-19 vaccination requirement. (AR 250, 284.) On November 3, 2021, Commander Al Pasos, Petitioner’s commanding officer, served on Petitioner a Notice of Mandatory Covid-19 Vaccination Policy Requirements – While Awaiting an Exemption/Appeal Determination. (AR 246, 491, 492.) At that meeting, Pasos also orally informed Petitioner of the testing requirements and consequences for non-compliance. (AR 246, 248, 250-251.)

Petitioner did not sign the notice. (AR 251, 494.) Petitioner also refused to submit to COVID-19 testing with Bluestone. (AR 253, 254.)

On December 16, 2021, the Chief of Police signed a complaint and relief from duty against Petitioner. (AR 1-3.) The complaint directed Petitioner to a Board of Rights. (AR 1.) The complaint alleged a single count:

On or about November 30, 2021, you, while on-duty, failed to comply with the requirements of the Notice of Mandatory COVID-19 Vaccination Policy Requirements, a condition of employment. (AR 1.)

On December 16, 2021, the Chief of Police removed Petitioner from duty. (AR 1.) The complaint 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.)

On February 2, 2022, the department began Petitioner’s Board of Rights hearing on the single count alleged against her. (AR 69.) Petitioner pleaded not guilty to the charge. (AR 103.)

On May 20, 2022, after several days of hearing wherein three witnesses testified (AR 453-454), the board unanimously found Petitioner guilty of the misconduct count alleged. (AR 457.) Specifically, the board explained:

[Petitioner] is unvaccinated and has refused to be tested and thereby charged by the City’s vendor. She initially was going to be tested at Kaiser, where she is insured and would not have to incur a testing fee. Later, she testified she refused testing because she believed it was unfair that vaccinated officers were not required to be tested. She felt discriminated against as an officer seeking a religious exemption. (AR 456.)

The board also noted “[w]hether the City’s policy of mandatory testing by the City’s vendor, Bluestone, as well as the policy that an officer may have payment for testing deducted from their paycheck, is not before this board.” (AR 456-457.)

The board thereafter proceeded to the penalty phase of the proceedings. (AR 534.) The board noted Petitioner had no prior sustained complaints, three single-spaced pages of commendations for leadership, hard work, teamwork, integrity, “and also thorough investigations at the scene.” (AR 534.) The board also recognized Petitioner’s educational background and performance evaluations that “either met or sometimes exceeded standards.” (AR 534.) The board acknowledged Pasos’ testimony that he would “take her back in a heartbeat.” (AR 535.)

After considering the totality of the circumstances, the board sustained the proposed penalty of discharge as a Police Officer III. (AR 535.)

On May 20, 2022, the Chief of Police executed the order to terminate Petitioner’s employment “with total loss of pay” effective January 17, 2022. (AR 536.)

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 the City, judicial review here is under the court’s independent judgment. (Opposition 10:20-21.) (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.)

Petitioner challenges the City’s actions on three grounds. First, Petitioner argues the City’s condition of employment was “illegal” and violated Labor Code section 2802 (Section 2802). (Opening Brief 14:20.) Second, Petitioner contends the City violated her constitutional rights under Skelly, supra, 15 Cal.3d at 194. (Opening Brief 15:19.) Last, Petitioner alleges the penalty imposed by the City is disproportionate to her misconduct. (Opening Brief 17:1.)

In a short argument in her Opening Brief, Petitioner reports she was “discharged after refusing to sign a contract which would have obliged her to pay the cost of COVID testing while her application to be exempt from vaccination was pending.” (Opening Brief 14:23-24.) Petitioner contends Section 2802 “made it unlawful for the City to impose such a demand on” Petitioner. (Opening Brief 14:25.) Petitioner asserts the City’s demand was illegal. (Opening Brief 14:28-15:1.)

Petitioner provides no real substantive analysis of Section 2802 in her Opening Brief.[4] Instead, Petitioner waited and briefly discussed Section 2802, other applicable statutes and/or case law to support her claim of illegality in her Reply Brief in response to the City’s claim Section 2802 does not apply to public employers. Petitioner’s initial argument about Section 2802 rests 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.[5]

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. (RJN EXH. A at 18-19.)

The court dismissed Los Angeles Police Protective League v. City of Los Angeles after the parties entered into a settlement.[6] The case did not result in a judgment. That is, the court never issued the writ of mandate contemplated by Judge Byrdsong’s statement of decision. While Judge Byrdsong’s ruling may be persuasive, 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 show it would be appropriate for this court to reach a conclusion regarding Section 2802, and whether Section 2802 is a defense to the administrative charge against Petitioner, 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 appellate authority applying Section 2802 to a public employer in her case-in-chief. Petitioner also has 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. (See, e.g., Ordinance severability clause [AR 477].)

Petitioner properly exhausted her administrative remedies on the issue. The board elected not to address the claim and decided Section 2802 was not properly before it. (AR 456-457.)[7]

The City argues Section 2802 does not apply to public entities. (Opposition 18:11-21.)

“ ‘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. (Opposition 18:20.) However, the City understandably also does 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.) The City also does not cite a case holding that Section 2802 is not applicable to a public employer.

The board based its finding of guilt on Petitioner’s unvaccinated status “and . . . refus[al] to be tested and thereby charged by the City’s vendor.”[8] (AR 456.) To the extent Petitioner had a religious exemption request pending and the City discharged her for failing to test, whether Section 2802 is an invalid condition of employment is significant.

Based on the foregoing, the court finds the initial briefing from both Petitioner and the City 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); 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.

Section 2802 is an indemnification statute that applies to expenditures actually “incurred” by an employee. Specifically, Section 2802, subdivision (a) provides:

“An employer shall indemnify his or her employee for all necessary expenditures or losses[9] incurred by the employee in direct consequence of the discharge of his or her duties, . . . .”

Section 2802, subdivision (b) makes clear an employee is entitled to reimbursement:

“All awards made by a court . . . for reimbursement of necessary expenditures under this section shall carry interest at the same rate as judgments in civil actions. Interest shall accrue from the date on which the employee incurred the necessary expenditure or loss.”

The parties dispute whether Section 2802 is applicable to the City. Resolution of the issue is not entirely clear.

Under Krug v. Board of Trustees of California State University (2023) 94 Cal.App.5th 1158 since Section 2802 “contains no express words referring to governmental agencies nor positive indicia of a legislative intent to exempt such agencies from the statute[,] . . . the question becomes whether applying section 2802 to [the City] would infringe upon its sovereign governmental powers, i.e., would affect the functions and responsibilities given to the public employer by the Legislature.” (Id. at 1166-1167.)

However, for purposes of this proceeding, the court need not resolve the dispute. That is, the court may assume (without deciding) Section 2802 binds the City; the City must indemnify and reimburse an employee, like Petitioner, for her necessary expenditures incurred as a direct consequence of the discharge of her duties.

As a preliminary matter, Petitioner has not demonstrated the City violated Section 2802. Nothing in the administrative record suggests she incurred any costs related to COVID-19 testing for which she was not reimbursed. Petitioner did not incur any costs because she refused to participate in COVID-19 testing. Moreover, for those police officers who did participate in COVID-19 testing, the City never sought to collect for the costs incurred by the City for the testing. (AR 165, 435-436.) As Petitioner did not incur any “expenditures” associated with her employment (or, alternatively, since the City is not seeking to recover costs it incurred), there is nothing for the City to reimburse, and the City cannot be found in violation of Section 2802.

Moreover, as argued by the City, the Ordinance contains a severability clause. (AR 477.) The clause provides:

“If any term or provision in 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.” (AR 477.)

Thus, even assuming Section 2802 applies to the City, the severability clause merely eliminates any cost-shifting to the employee. The Ordinance is otherwise enforceable, and the City would have the authority to discipline employees for failing to participate in COVID-19 testing. The unsevered provisions of the Ordinance establish the requirement of a COVID-19 vaccination or a medical or religious exemption from the vaccination with weekly COVID-19 testing as a condition of employment.[10] (AR 474-475.)

Petitioner equates the City’s notice to a contract and argues “[u]nder Labor Code § 2804, the agreement for employers to bear the cost of testing, including in advance to testing, is void.”[11] Even accepting the City’s notice constituted a contract, as argued by Petitioner, Petitioner admits she did not sign the City’s notice. Accordingly, Labor Code section 2804 has no application here—she made no “contract” to waive any benefits provided by Section 2802. Further, even assuming Petitioner signed the notice and the notice constituted a contract, Petitioner cites no authority suggesting the entire notice or contract would be deemed void under Labor Code section 2804.

Based on the foregoing, the court finds Petitioner’s claim the City’s condition of employment is illegal and unenforceable under Section 2802 lacks merit.

Petitioner contends the City 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, the City served Petitioner with the complaint and relief from duty form on December 17, 2021. (AR 1.) The form advised Petitioner she had temporarily been relieved from duty and referred to a Board of Rights hearing because she failed to comply “with the requirements of the Notice of Mandatory COVID-19 Vaccination Policy Requirements, a condition of employment.” (AR 1.) The form also advised Petitioner the Chief of Police was recommending Petitioner be discharged from her position with the department. (AR 1.) Finally, the form noted Petitioner would not receive pay 30 days following her relief of duty. (AR 1.)

Thus, the City complied with Skelly in part by providing Petitioner notice of the proposed action and the reasons therefor. 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.

Petitioner argues, however, “[t]here is no evidence that she was afforded an opportunity to respond to the charge against her before she was relieved of duty and her compensation ended.” (Opening Brief 16:22-24.) Thus, Petitioner contends the City violated her Skelly rights by failing to provide her with “the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Skelly, supra, 15 Cal.3d at 215.)

The City’s argument otherwise is not persuasive. First, whether a Board of Rights hearing satisfies the administrative appeal requirements of the Public Safety Officers Procedural Bill of Rights Act (the Act), Government Code section 3300 et seq. is irrelevant to Petitioner’s claim. Petitioner has not alleged a violation of the Act. Second, the provisions of the City of Los Angeles Charter (Charter) relied upon by the City do not address Skelly or its requirements. In fact, Charter section 1070, subdivision (b)(1) expressly notes a police officer may be temporarily relieved of duty but “shall not suffer a loss of compensation until 30 days after the date on which the member was served with the charge or charges . . . .” The provision requires, however, that “predisciplinary procedures otherwise required by law” must be followed. (Charter, § 1070, subd. (b).) Skelly is just that—a predisciplinary procedure required by law. Where the City did not follow “predisciplinary procedures otherwise required by law,” the City could not deprive Petitioner of her compensation while relieved of duty and pending a Board of Rights.

While the City is correct and procedural due process violations are subject to harmless error analysis (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928), 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, Petitioner merely need show the City violated her Skelly rights; she has made that showing. 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. Significantly, the Chief of Police temporarily removed Petitioner from duty effective December 16, 2021, and also specified that she 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].)[12] (Ibid.) The Chief of Police’s final order similarly stated Petitioner’s removal, “with total loss of pay,” was effective January 17, 2022. (AR 536.) While Petitioner could challenge the proposed discipline before the Board of Rights, the loss of pay was effective before the Board of Rights hearing. Skelly procedures are required prior to a loss of pay—a punitive action affected a vested property right.

Moreover, the City has cited no persuasive authority for its contrary position. The logical extension of the City’s view would suggest Skelly has no application for the department’s employees who receive a Board of Rights hearing before final imposition of penalty. That is not the law.

When a Skelly violation occurs, “the employee is not entitled to reinstatement; [s]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].)

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 26, 2022, discloses Petitioner was removed from her position with total loss of pay effective January 17, 2022. (AR 536.) Based on the City’s violation of Petitioner’s Skelly rights, Petitioner is entitled to backpay running from January 17, 2022 through and including May 25, 2022.

Petitioner argues the penalty imposed—her discharge—“was clearly excessive and disproportionate to the alleged wrong.” (Opening Brief 17:6.) Petitioner asserts: “the penalty was clearly excessive. There was no showing or finding that [Petitioner’s] conduct affected public service, with the Skelly Court found was an ‘overriding concern.’ ” (Opening Brief 17:7-9.) Petitioner contends she lost her job “for refusing to sign a contract obliging the employee to submit to City-mandated testing by a City-chosen private contractor, and they requiring the employee to pay the City for that testing is clearly a case of the punishment not fitting the conduct alleged.” (Opening Brief 17:11-13.)

“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 testing 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 II and the Officer-in-Charge of the Return to Work Section of the Personnel Division of the police department (AR 129) testified a “conditions of City employment would mean that an employee has to meet this requirement in order to continue their employment with the City.” (AR 142.) Taft explained: “So in this particular instance, an employee who would like to stay within the City and be employed, [] would have to be vaccinated against COVID-19.” (AR 142.) Taft also explained a medical or religious exemption would make the “condition of employment . . . not applicable to them.” (AR 143.)

Petitioner has cited no evidence or authority to the contrary Taft’s explanation that compliance with the Ordinance is a condition of employment. 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.

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 473, 479), the court cannot conclude it was unreasonable for the board to select a penalty of discharge. 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.

Accordingly, the court finds the City did not commit a manifest abuse of discretion when it discharged Petitioner as a penalty.

[Whether the City properly discharged Petitioner, however, is subject to the court’s later analysis of issues raised by Section 2802.]

Based on the foregoing, on this briefing the court finds Petitioner established the City violated her Skelly rights and is entitled to damages based on the violation.

The court also finds the City discharged Petitioner based on a valid condition of employment, and Petitioner is therefore not entitled to relief.

Finally, the court cannot find the City committed a manifest abuse of discretion when it discharged Petitioner from her position as a Police Officer III.

[1] While Petitioner contends the City failed to comply with Code of Civil Procedure section 435.5 subdivision (a), the City’s motion to strike is alternatively styled as an objection to purported inadmissible evidence.

[2] Petitioner’s reference to Code of Civil Procedure section 1094.5, subdivision (e) in her Reply Brief does not constitute a motion permitting the City a full and fair opportunity to address the extra-record evidence issue. (See Reply 8:5-11.)

[3] The court previously sustained a demurrer to Petitioner’s claim based on Code of Civil Procedure section 1085.

[4] Petitioner does not provide a substantive analysis until her Reply Brief. (See Reply 8:16-20.) Petitioner’s complete argument about Section 2802 provides: “Respondents argue at page 18 of their Opposition, that Labor Code § 2802 ‘is not applicable in this case,’ because, Respondents claim, that Section applies only to private sector employees. However, Labor Code § 2802 has been applied to public employers, including the City of Los Angeles. See, e.g., In re Acknowledgment Cases (2015) 239 Cal.App.4th 1498. Moreover, even the authority cited by Respondents, ‘In re Working Uniforms Cases,’ acknowledged that Labor Code §§ 2802 and 2804 does apply to the City. In re Working Uniforms (2005) 133 Cal.App.4th at 344 fn.14.”

[5] While the court did not take judicial notice of the statement of decision, the court nonetheless addresses Petitioner’s argument.

[6] The court judicially notices the court file in Los Angeles County Superior Court, Case No. 21STCV39987.

[7] The board initially indicated it did not believe Section 2802 applied to public employees and asked for additional briefing on the issue. (AR 419.)

[8] Testimony established police officers had not been invoiced by the City for any testing they completed. (AR 165, 435-436.)

[9] Section 2802, subdivision (c) specifies “necessary expenditures or losses incurred” includes “all reasonable costs, including but not limited to, attorney’s fees incurred by the employee enforcing the rights granted by this section.”

[10] The LBFO also imposed a twice-weekly testing requirement on a non-vaccinated employee who filed a request for an exemption and was awaiting the result of her exemption request. (AR 488.)

[11] Labor Code section 2804 provides “[a]ny contract or agreement, express or implied, made by an employee to waive the benefits of this article or any part thereof, is null and void . . . .”

[12] Nothing suggests the Charter provision is applicable here.