Judge Mitchell L. Beckloff, Case Number: 23STCP00829, Date: 2024-02-23 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCP00829, Date: 2024-02-23 Tentative Ruling

Petitioner, Jonathan Bobbio, seeks a writ of administrative mandate directing Respondent, Civil Service Commission of the City of Los Angeles (Commission)[1] to set aside its decision imposing a penalty of a “time-served” suspension on Petitioner from his position as Electric Station Operator with Real Party in Interest, the City of Los Angeles.

The City’s objection to Petitioner’s declaration is overruled in part. The City acknowledges the “information specified in paragraph 3 (the date on which Bobbio was reinstated), [occurred] after the administrative process.” (Objection 1.) Because paragraph 3 is relevant to the length of Petitioner’s suspension, the court finds the requirements of Code of Civil Procedure section 1094.5, subdivision (e) has been satisfied as to paragraph 3 of Petitioner’s declaration. The City’s objection is sustained in all other respects, including as to the unauthorized legal briefing included within Petitioner’s declaration.

Petitioner “began his employment with the City in January 7, 2008 as a Steam Plant Assistant and later a Steam Plant Operator. In 2015 he became an Electric Station Operator (ESO) and held that position until his discharge.” (AR 641 ¶ 1 [administrative decision].) Petitioner received a four-day suspension in May 2020 for misconduct (insensitivity to others) not related to the misconduct at issue in this case. (AR 641 ¶ 2.)

ESOs are assigned to work at various dispatching stations throughout Los Angeles. Dispatching stations receive extremely high voltage (34.5kv) electricity, where it is stored in transformer banks, and converted into lower voltage (4.8kv), which is then dispatched throughout the neighborhood the dispatching station serves. (AR 365-366, 393-395.) ESOs are responsible for switching, repairing, and replacing equipment, as well as the safety of the facility. (AR 625.)

As found by the hearing examiner, and the Commission, certain facts were established at the administrative hearing regarding an incident that occurred on June 8, 2020. Petitioner does not dispute any of the administrative findings, including the following.

On June 8, 2020, Petitioner was the operator in the DS [Dispatching Station]-101 facility. A construction crew tasked with replacing Transformer Bank 1 was also present. (AR 641 ¶ 4.) On that day, the plant went into overload in part because, while Transformer Bank 1 was being replaced, the entire electrical load for that summer day was being carried by Transformer Bank 2. (AR 641 ¶ 4.)

Petitioner “committed a serious error which caused Transformer Bank 3 to relay on overcurrent with a resulting flashing and arching at the connection points of the portable grounds. As a result, melted copper fell on [crew supervisor] Pupp’s shoulders and the 4.8kV Rear Bus was damaged.” (AR 641 ¶ 6.) Petitioner “was provided sufficient training” and “had the necessary knowledge to properly switch power loads in the facility.” (AR 641 ¶ 5.)

Petitioner “failed to follow the LD’s [Load Dispatcher’s] specific instructions to monitor Bank 2 and to call him when it reached 10 MW.” (AR 642 ¶ 9.) Petitioner “did not follow established 4.8kV switching practices when he failed to parallel Bank 2 and Bank 3 via the 4.8kV Frontbus, the energized bus.” (AR 641 ¶ 10.) Petitioner “failed to perform an adequate inspection after he erroneously energized the grounded 4.8kV Rear Bus.” (AR 641 ¶ 13.)

“After reviewing the incident, the safety committee recommended [Petitioner] be retrained so as to become reacquainted with operational procedures. All other employees, who made similar errors in the past, were treated in that fashion. It was not a function of that committee to recommend discipline.” (AR 641 ¶ 14.) Petitioner “received additional training before he was assigned to work the ‘A-Truck’ which was a job that required an experienced operator. [Petitioner] remained on the job for almost a year without any other incident.” (AR 641 ¶ 15.)

On July 6, 2021, Los Angeles Department of Water and Power (LADWP) discharged Petitioner for his misconduct arising from the June 8, 2020 incident. The hearing examiner found, and Petitioner does not dispute, his discharge “was within the Departments disciplinary guidelines.” (AR 642 ¶ 18; see also AR 638.)

As relevant to this writ petition, the hearing examiner and Commission also concluded as follows:

1. [Petitioner] failed to follow LADWP Administrative Manual 50-04 Section B-5 by failing to carry out assigned work adequately when he:

a. violated the Switching Plan Policy for Switching Operation on the morning of the incident when he failed to prepare a written switching plan as required.

b. violated Operating Order 2 Section 2.4 (Employee Responsibilities) when he failed to follow instructions given to him by the Load Dispatcher to monitor Bank 2 and to call him if the load reached 10MW.

c. failed to follow established 4.8kv bus switching by failing to parallel Bank 2 and Bank 3 via the 4.8kVFront bus, the energized bus per SIB 21, Section 4.3.

d. failed to perform an adequate inspection after he erroneously energized the grounded 4.8kV Rear bus and when he reported that Bank 2 had no targets.

4. [Petitioner] violated Administrative Manual 50-04 Section F-6. (Standard) by not following safety rules, procedures or accepted practices which resulted in injury and damage to equipment when he did not adhere to LADWP established Operating Orders (Operating Order 2, Section 2.10.4, Operating Order 5 Section 5.2 and 5T, Section 6.1.2; SIB 7B Section 4.4).

With respect to penalty, the hearing examiner recommended “the discipline be remanded back to the Department to consider a penalty less than discharge.” (AR 645.) Nonetheless, the hearing examiner opined a “severe discipline, short of discharge, was appropriate.” (AR 640-641.) The hearing examiner’s reasons for the recommendation are discussed further infra.

On November 14, 2022, the Commission gave notice to Petitioner and LADWP that it would consider the hearing examiner’s report at a meeting on December 15, 2022. (AR 5.) During the discussion of penalty at the December 15, 2022 meeting, LADWP informed the Commission LADWP was willing to bring Petitioner back as an ESO “with time served.” (AR 32-33.) Thereafter, the Commission unanimously voted to impose the altered penalty of a suspension for the period of time served. (AR 32-34.)

Petitioner returned to work on January 2, 2023. (Bobbio Decl. ¶ 3; Ans. ¶ 7.) Petitioner served a time-served suspension from the date of his discharge, July 6, 2021, to the date of his reinstatement, January 2, 2023, or 545 days.

Petitioner does not challenge the administrative findings made by the hearing examiner and adopted by the Commission, or the legal conclusion he engaged in misconduct as found by the hearing examiner and Commission. Instead, Petitioner contends the Commission acted arbitrarily and capriciously when it imposed a time-served suspension penalty on him.

“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.)

In challenging the penalty, Petitioner first contends LADWP “did nothing to reconsider the penalty” when requested to do so by the Commission and instead imposed a “time-served” suspension without any explanation or deliberation. Petitioner elaborates: “The CITY had, and has, a robust human resources/management services bureaucracy. It makes numerous decisions each year regarding appropriate discipline. But neither that system, nor any other, was utilized to consider a lesser penalty as Real Party in Interest was to do upon remand from the COMMISSION.” (Opening Brief 11:7-13.)

Here, LADWP was required by law “to consent” to a lesser penalty. The City of Los Angeles Charter (Charter) at section 1016, subdivision (d) provides:

If, after investigation and hearing as required by law is held, the board finds, in writing, that the grounds stated for the discharge or suspension were insufficient or were not sustained, the board shall order the person to be reinstated or restored to duty. With the consent of the appointing authority, the board may also reduce the length of the suspension, or may substitute suspension for discharge, if the board makes a written finding that such action is warranted. (Emphasis added. See also Board Rule 12.17, RJN Exh. 1 [stating Commission may “[i]nitiate action to determine if the appointing authority would consent to . . . (2) substitution of a suspension for a discharge”].)

Because the Charter and Board Rule 12.17 authorize the Commission to substitute a suspension for discharge “with the consent of the appointing authority,” the Commission could not reduce the penalty from a discharge to a suspension without the consent of LADWP. The Charter and Board Rule 12.17 also required the Commission to exercise its discretion to substitute suspension for discharge with the consent of LADWP.[3]

An agency is presumed to have regularly performed its official duties. (Evid. Code, § 664.) Under Code of Civil Procedure section 1094.5, Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, LADWP or the Commission prejudicially abused their discretion, including by not exercising their discretion on the penalty. (See Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal. App. 2d 129, 137; Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.)

As to Petitioner’s penalty, the hearing examiner recommended “the discipline be remanded back to the Department to consider a penalty less than discharge.” (AR 645.) After discussing various factors, the hearing examiner opined discharge was excessive, but a “severe discipline, short of discharge, was appropriate.” (AR 640-641.) On November 14, 2022, the Commission gave notice to Petitioner and LADWP that it would consider the hearing examiner’s report at a meeting on December 15, 2022. (AR 5.)

At the December 15, 2022 meeting, LADWP’s representative, Jeanine Jenkins, disclosed to the Commission that it “has engaged the [Petitioner] with penalty less than discharge, and we have not been able to come to a resolution.” (AR 9.) LADWP advised the Commission “as soon as [it] receive[d] the Hearing Officer’s report,” it was willing to “engage with [Petitioner’s] representative.” (AR 9.) It reported the parties had been unable to “come to any sort of agreement.” (AR 9.) LADWP noted:

The Department is offering a penalty less than discharge with [a] reminder that the Hearing Officer agreed that a severe penalty was warranted. We just haven’t been able to come to terms. (AR 9.)

Thereafter, on behalf of LADWP, the Commission heard from Electric Services Manager, Robert Fick, on the Department’s position. (AR 11.) Fick fully discussed the nature of Petitioner’s misconduct and explained Petitioner “put employees in the line of fire and energized thousands of volts, and the fact that no one was seriously injured or killed is nothing more than sheer luck.”[4] (AR 12.) Fick indicated LADWP believed “termination is the proper course of action for [Petitioner’s] actions in the interest of safety to other Department employees, the public and himself.” (AR 14.)

When pressed by the Commission after a commissioner expressed confusion about LADWP’s position, LADWP confirm it would agree to a lesser penalty than termination (AR 32), and “[t]he Department ha[d] engaged in talks to bring him back to work.” (AR 14.) LADWP specified it would bring Petitioner back in his prior position as an ESO; he would not be demoted. (AR 32-33.)

Petitioner counsel explained to the Commission “the Hearing Examiner said he should get his job back . . . . . and its important that he has the same seniority.” (AR 17.) Petitioner’s counsel told the Commission:

. . . so just getting his job that’s great, but he needs ‘the job back,’ not some position where he’s shuttled off into some position where they’re going to call it probationary and get rid of him or somewhere where it becomes just physically impossible for him to continue the job and they get rid of him that way. (AR 17-18.)

After Petitioner’s presentation, Commissioner McClelland engaged in a robust discussion with questioned Petitioner’s counsel about the underlying misconduct. (AR 19-24, 25.) Petitioner participated in part of the discussion. (AR 21-22.)

After a pause in the proceedings, Jenkins then informed the Commission LADWP was willing to reinstate Petitioner as an ESO “with time served.” (AR 32-33.)

The facts and reasonable inferences therefrom firmly establish that prior to the December 15, 2022 meeting, LADWP exercised its discretion and considered whether to reduce the penalty imposed from a discharge to a time-served suspension. LADWP indicated to the Commission it had not been able to reach an agreement with Petitioner about a penalty lesser than a discharge prior to the December 15 meeting.[5] Petitioner does not cite any legal authority obligating LADWP to explain how it determined to propose a reduced penalty of a time-served suspension.

Petitioner acknowledges the relevant procedural history. Petitioner then relies upon speculation to support his claim LADWP did not internally consider whether to grant consent for a time-served suspension. (See Opening Brief 11:9-13.)

Petitioner also argues LADWP “had no idea how long of a suspension it was ‘deciding’ to impose when the Department’s representative announced to the CIVIL SERVICE COMMISSION that ‘the Department is willing to bring Mr. Bobbio back . . . with time served.’ ” (Reply 2:1-4.) To the extent Petitioner contends LADWP did not exercise its discretion before consenting to a time-served suspension, as noted, his arguments rely on pure speculation and do not account for the presumption that official duty is regularly performed. (Evid. Code, § 664.) As Petitioner’s employer, LADWP understood all of the facts; LADWP knew the date of Petitioner’s discharge (July 6, 2021) and the proposed altered penalty would result in a lengthy suspension through the date of his reinstatement (January 2, 2023).[6] Petitioner has not cited sufficient evidence to overcome the evidence and presumption.

The administrative record also demonstrates the Commission exercised its discretion to reduce the discharge to a time-served suspension. After LADWP indicated it would consent to a time-served suspension, the Commission unanimously voted to impose that altered penalty. (AR 32-34.) Before the Commission’s vote on the penalty, Commissioners Lipa and Perez explained the reasons they believed a time-served suspension was appropriate (these comments are further discussed infra). (AR 32-34.) Clearly, the Commission exercised its discretion to impose the time-served suspension consented to by LADWP. Petitioner develops no argument to the contrary.

While Petitioner argues the length of the suspension was either excessive or arbitrary and capricious (or both), those arguments relate to the reasonableness of the penalty (discussed infra), not whether LADWP or the Commission exercised their discretion to impose such a penalty. Petitioner does not demonstrate either LADWP or the Commission failed to exercise their discretion to impose a time-served suspension instead of discharge.

Petitioner Does Not Show a Manifest Abuse of Discretion in the Decision to Impose a “Time-Served” Suspension Given the Seriousness of the Misconduct, Related Safety Concerns, and Similar Factors

“ ‘[T]he 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.’ [Citations.] ‘[I]n reviewing the penalty imposed by an administrative body which is duly constituted to announce and enforce such penalties, neither a trial court nor an appellate court is free to substitute its own discretion as to the matter; nor can the reviewing court interfere with the imposition of a penalty by an administrative tribunal because in the court's own evaluation of the circumstances the penalty appears to be too harsh. . . . Such interference, in the light of the foregoing authorities, will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion.’ [Citation.].” (Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 966.)

“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 v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.)

The administrative findings, adopted by the Commission and not disputed by Petitioner, show Petitioner “committed a serious error which caused Transformer Bank 3 to relay on overcurrent with a resulting flashing and arching at the connection points of the portable grounds. As a result, melted copper fell on [crew supervisor] Pupp’s shoulders and the 4.8kV Rear Bus was damaged.” (AR 641 ¶ 6.) Petitioner “was provided sufficient training” and “had the necessary knowledge to properly switch power loads in the facility.” (AR 641 ¶ 5.) Nonetheless, Petitioner “failed to follow the LD’s [Load Dispatcher’s] specific instructions to monitor Bank 2 and to call him when it reached 10 MW.” (AR 642 ¶ 9.) Petitioner “did not follow established 4.8kV switching practices when he failed to parallel Bank 2 and Bank 3 via the 4.8kV Frontbus, the energized bus.” (AR 642 ¶ 10.) Petitioner “failed to perform an adequate inspection after he erroneously energized the grounded 4.8kV Rear Bus.” (AR 642 ¶ 13.) As a result, Petitioner failed to carry out his assigned work adequately and failed to follow safety rules, procedures, or accepted practices which resulted in injury and damage to equipment, in violation of LADWP Administrative Manual 50-04 Section B-5 and Section F-6. (AR 643-644)

At the administrative hearing, witnesses for LADWP and Petitioner “agreed his errors that day were serious and could have resulted in serious injury or death.” (AR 637.) Similarly, his arguments before the court acknowledge “he committed a serious switching error . . . that had the potential for causing significant equipment damage and or injury,” including death. (Opening Brief 5:11.)

The hearing examiner found, and Petitioner does not dispute, discharge “was within the Departments disciplinary guidelines.” (AR 643 ¶ 18; see also AR 638.) Nonetheless, the hearing examiner opined the discharge was excessive for several reasons:

Although the discipline assessed [i.e., discharge] was within the Department’s Guidelines, it was disproportionate given the Department’s history of imposing lesser discipline in all other such instances in the past; given the tenure and amount of time and training invested in [Petitioner], the decision to train and then keep him in an unsupervised and responsible operation’s position for almost a year after the incident without any other issues, and the fact the Department’s guidelines allowed for something less than discharge. (AR 645.)

However, the hearing examiner also believed a severe penalty less than discharge was appropriate:

[Petitioner’s] operational errors were universally seen as serious. Although Pupp’s only suffered a minor burn, if he or someone else would have had their hand on the equipment when [Petitioner] energized it, they could have been killed. There was also the legitimate concern that with the failure to respond or to be forthcoming with the LD and others that day, he was not accepting responsibility for what occurred. As such, both the incident and [Petitioner’s] subsequent reactions damaged the trust relationship with his employer. . . . As such severe discipline, short of discharge, was appropriate. (AR 640-641.)

At the December 15 meeting, and before the unanimous vote to impose the altered penalty, commissioners explained why they believed a severe penalty of a time-served suspension was appropriate. For example, Commissioner Lipa, who made the motion to alter the penalty, explained her thoughts:

I made the motion. I just want to quickly say that, you know, I was AGM at DWP. I don’t know if people realize that, but obviously safety is a huge issue, and, you know, it’s something that I don’t take lightly. There was a fieldworker who died when I was there on a pole, and it’s a huge issue and the amount of time and energy that goes with safety training. I’m going with the Department’s recommendation here because they are willing to say this. I want to say that I hope that there is no compromise when it comes to safety and training with employees. (AR 34.)

Similarly, Commissioner Perez noted: “And I also want to say I’m going to vote for this particular penalty because I do think it’s a significant concession by the Department when it considers all the findings in the Hearing Examiner’s report.” (AR 34.)

As the foregoing demonstrates, reasonable minds could differ as to the appropriate discipline to be imposed. Given the seriousness of Petitioner’s switching error; the safety concerns and potential that Petitioner’s error could have resulted in loss of life; the findings that Petitioner “violated several policies which put himself, others in the facility, and the equipment in that station at risk;” the “the legitimate concern . . . with [Petitioner’s] failure to respond or to be forthcoming with the LD and others that” on June 8, 2020, and to accept responsibility that day for what had occurred; and the fact that discharge was within Department’s guidelines, a reasonable decisionmaker could conclude that a lengthy time-served suspension was appropriate. In effect, LADWP and the Commission determined that the appropriate penalty was one that both allowed Petitioner to be reinstated after the December 15, 2022 meeting to his position as an ESO, but that, at the same time, imposed the harshest possible penalty short of discharge.

Petitioner does not show a manifest abuse of discretion with the penalty. Petitioner highlights the administrative findings that “the safety committee recommended the [Petitioner] be retrained so as to become reacquainted with operational procedures” (AR 642 ¶ 14); that “[a]ll other employees, who made similar errors in the past, were treated in that fashion” (AR 642-643 ¶ 14); and Petitioner “remained on the job for almost a year without any other incident” before he was discharged. (AR 643 ¶ 15.) The administrative decision also notes Petitioner’s prior discipline was not related to the misconduct at issue in this case, and Petitioner had been employed by LADWP since 2008. (See AR 638-641 and 645, ¶ 4.) Because those findings were included in the administrative decision and adopted by the Commission, it is reasonably presumed LADWP and then Commission considered them in imposing the time-served suspension. The function of the safety committee was not to recommend discipline. (See AR 642-643, ¶ 14.) Petitioner has not cited or discussed evidence concerning the circumstances of other employees that made similar errors in the past. Based on the court’s review of the record, the court finds that LADWP and the Commission could have reasonably concluded the factors supporting a severe penalty, discussed earlier, outweighed the mitigating factors highlighted by Petitioner and the hearing examiner.

Petitioner also argues “the calculation of how long of an unpaid suspension [Petitioner] would serve was left to the vagaries of the civil service system.” (Opening Brief 16:22-23.) Petitioner elaborates:

The final penalty turned out to be whatever [Petitioner] would lose in wages and benefits from the time he was fired until he was finally able to get back on the payroll. It was not until weeks after the COMMISSION’s final decision, when [Petitioner] went back to work on January 2, 2023, that he learned that his suspension would last for 54[5] days. That is arbitrary, and capricious, and an abuse of discretion. . . . (Opening Brief 16:23-17:5.)

Petitioner’s argument is unpersuasive. As noted, LADWP and the Commission knew the date of Petitioner’s discharge (July 6, 2021) and that the proposed altered penalty would result in a lengthy suspension through the date of his reinstatement (on January 2, 2023.) Petitioner has not cited sufficient evidence to suggest otherwise. For example, while Petitioner implies LADWP and the Commission could not have known Petitioner would be reinstated on January 2, 2023, Petitioner does not cite any evidence in support of his position. The record shows LADWP and the Commission exercised their discretion to impose a lengthy time-served suspension through the date of Petitioner’s reinstatement, or 545 days.[7] Considering the factors outlined earlier, a suspension of this length does not constitute a manifest abuse of discretion on these facts.

Finally, Petitioner argues “[a]lthough he was not charged with dishonesty, it was clear that a significant factor in the D.W.P.’s decision to fire [Petitioner] was management’s suspicion that [Petitioner] had not been forthright in keeping the load dispatcher apprised of the status of DS 101 after BOBBIO accidentally energized the grounded rear bus.” (Opening Brief 14:8-12.) The administrative decision, adopted by the Commission, found Petitioner “was not trying to conceal his error when he asked the LD at 1528 if he had anything on his scree[n] other than a trouble alarm,” and Petitioner “did not attempt to conceal the details of his switching error.” (AR 642, ¶ 12 and AR 644, ¶ 3.) Even though it adopted these findings, the Commission nonetheless determined to impose a time-served suspension.[8] Petitioner does not show LADWP and the Commission based the penalty on allegations of concealment or dishonesty that were not found to be true by the hearing examiner or the Commission. (Evid. Code, § 664.)

[1] The Commission is also referred to as the Board of Civil Service Commissioners (Board). (See AR 1.)

[2] Exhibit 1 contains Rule 12.17 of the Rules of the Board of Civil Service Commissioners City of Los Angeles (Board Rules).

[3] The City argues “it is the administrative body’s decision, in this case, the Commission’s decision, that is relevant to this Court’s inquiry, not the decision of the appointing authority.” (Opposition 10:4-6.) Since Charter section 1016, subdivision (d) and Board Rule 12.17 authorize the Commission to reduce the penalty with the “consent” of the appointing authority, there is a reasonable argument the trial court reviews the Commission’s final exercise of discretion as to penalty, not the appointing authority’s decision to grant consent. Nonetheless, as discussed herein, Petitioner does not demonstrate LADWP failed to exercise its discretion to grant consent. Accordingly, even if LADWP’s decision to grant consent is reviewable, Petitioner does not show a prejudicial abuse of discretion here.

[4] Petitioner disputed Fick’s factual representations. (AR 16-17.)

[5] As noted during the meeting by the Commission’s attorney, “the Commission has the authority to reduce a penalty for a sustained charge with the Department’s consent, and it does not require [Petitioner’s] consent to do the reduction.” (AR 9.)

[6] As discussed infra, Petitioner does not cite any evidence LADWP or the Commission lacked a reasonable basis to believe the reinstatement would occur on or about January 2, 2023. In any event, a time-served suspension as of December 15, 2022 would also be lengthy and demonstrates LADWP’s and the Commission’s exercise of discretion to impose a lengthy suspension and a penalty something short of discharge.

[7] Further, even as of December 15, 2022, a time-served suspension would have been 527 days. Thus, even as of December 15, the time-served suspension was very lengthy.

[8] Similarly, LADWP consented to a time-served suspension knowing of these findings and that the Commission had adopted them as its own. (See AR 28-34.)