Judge: Peter A. Hernandez, Case: 22PSCP00250, Date: 2024-05-15 Tentative Ruling

Case Number: 22PSCP00250    Hearing Date: May 15, 2024    Dept: K

The Petition for Writ of Mandate is DENIED.

Petitioner Jorge Huerta (“Petitioner”) petitions for a writ of administrative mandate directing Respondent City of Baldwin Park (“City”) to set aside an administrative decision to suspend Petitioner from his position as a police officer with the Baldwin Park Police Department (“Department”) for 15 days without pay.

Background

1.                  The Underlying Incident

On September 22, 2019, City police officers were involved in a vehicle pursuit and arrested the vehicle’s juvenile passenger. (Administrative Record [“AR”] 0126.) There was subsequently a “use of force incident” in the report writing room involving the arrested juvenile and another officer, Sergeant Joseph Meister (“Meister”). (Id.) Officer Tuan Le (“Le”) was present in the report writing room and witnessed the incident. (AR 016-020, 0126.)

On October 7, 2019, former interim Chief Johnny Patino (“Patino”) instructed Petitioner to contact Le to obtain a memorandum from Le regarding the incident. (AR 0126, 0524-0526.) That day, Petitioner contacted Le and told Le that Paterno wanted him to prepare a memorandum regarding the incident. (AR 0411-AR 0412.) Le was off work that day. (AR 0172.)  Le prepared the memorandum at home and emailed the draft to Petitioner. (AR 0412.) Petitioner asked Le to make spelling and grammar revisions to the memorandum and also asked Le to include additional factual information. (AR 0126.) Throughout that afternoon, Le sent Petitioner four separate versions of the memorandum. (AR 0202-0211; AR 0412-0416; AR 1813-1814.) Le sent Petitioner the fourth version of the memorandum following an eight-minute conversation with Petitioner. (AR 0171-0174; AR 1847-1848.) The fourth version of the memorandum added the word “unhandcuffed” and the statement “Are you the guy who shot my officer?” (AR 0173-AR 0174.) Computer metadata from Petitioner’s work computer reflects that minor alterations were made to the fourth version of the memorandum after it was received. (AR 0174.) This fifth version of the memorandum was used in an administrative investigation against Meister. (AR 0158.)

2.                  The Investigation into Petitioner

Le subsequently told Sergeant Ray Findley (“Findley”) that he “had felt singled out when he was directed to write the memorandum” and that he “felt pressured by ranking members of the department” to write it. (AR 0224.) Findley informed Acting Captain Chris Kuberry of Le’s statements. (Id.). On December 20, 2019, Findley also informed Patrol Bureau Watch Commander Chris Hofford (“Hofford”) of Le’s statements. (Id.).

On December 23, 2019, Hofford sent an inter-department memorandum to the City’s then-Chief of Police, Steven McLean (“McLean”), informing him of Le’s allegations that Petitioner had instructed Le to write the October 7, 2019 memorandum containing factually false information which was known would become part of an official administrative investigation involving Meister and that Petitioner had provided the wording Le was to use in the false statement. (AR0224-0227.) Hofford recommended that the facts be investigated further in order to confirm or dispel whether or not Petitioner committed violations of Department Policy Manual Standards of Conduct sections 319.3.1, 319.3.2(c) and 319.5.8(a), as follows:

319.3.1            UNLAWFUL OR CONFLICTING ORDERS

Supervisors shall not knowingly issue orders or directives that,

if carried out, would result in a violation of any law or

department policy.

319.3.2            SUPERVISOR RESPONSIBILITIES Supervisors and

managers are required to follow all policies and procedures and

may be subject to discipline for:

(c) Directing a subordinate to violate a policy or directive,

acquiesce to such a violation, or are indifferent to any such

violation by a subordinate.

318.5.8            PERFORMANCE

(a) Failure to disclose or misrepresenting material facts, or making

any false or misleading statement on any application,

examination form, or other official document, report or form, or

during the course of any work-related investigation. (Id.)

On December 23, 2019, McLean reviewed the materials from Hofford and agreed that Le’s statements required further investigation. (AR0228.) McLean directed that this investigation be conducted by an independent investigator selected by the Human Resources Department. (AR0228). McLean directed Hofford to act as the liaison between the department and the independent investigator. (AR0228.)

On December 26, 2019, McLean notified Petitioner that the City was initiating an Internal Affairs Investigation “in regard to a[n] allegation of dishonesty and issuance of an unlawful order. . . alleged to have occurred on or about October 7, 2019.” (AR0001.)[1]

As part of the investigation, independent investigator Don Wood (“Wood”) interviewed multiple witnesses and gathered evidence. (AR0023-0100.) Wood interviewed Le, who was represented by counsel, on February 28, 2020 and April 8, 2020. (AR 0050; AR Exh. No. 12; AR 0058; AR Exh. No. 33.) Wood interviewed Patino on February 28, 2020 (AR0045; AR Exh. Nos. 13-15), Acting Sergeant Frank Real (“Real”) on March 25, 2020 (AR0081; AR Exh. No. 16) and Officer Jose Jimenez (“Jimenez”) on April 6, 2020 (AR0086; AR Exh. No. 10). Wood interviewed Petitioner, who was represented by counsel, on March 17, 2020 and on April 21, 2020. (AR0060; AR0242; AR0071; AR Exh. No. 32.) Wood interviewed Le’s wife, Arianna Le, telephonically. (AR0087; AR Exh. No. 11.) Wood also obtained emails between Petitioner and Le, five versions of the memorandum, metadata from Petitioner’s and Le’s computers, and phone records. (AR088-0100.) A summary of the interviews was included in Wood’s report. (AR 0045-0087.)

On April 23, 2020, Wood finalized his Investigative Report and sent it to the City’s counsel, Liberty Cassidy Whitmore, for review. (AR0021-0100; AR0125.) Wood’s report investigated the following five allegations:

            ALLEGATION #1

Officer Le alleges that on or about October 7, 2019, Acting Lieutenant Huerta

called Officer Le after Officer Le submitted the first draft of the memorandum,

and told Officer Le to write in the memorandum that Officer Le heard Sergeant

Meister ask the juvenile if he was the person who shot at Sergeant Meister's

officer.

ALLEGATION #2

Officer Le alleges he told Acting Lieutenant Huerta that he did not hear

Sergeant Meister ask the juvenile if he was the person who shot at Sergeant

Meister's officer.

ALLEGATION #3(a)

Officer Tuan Le alleges that on or about October 7, 2019, Acting Lieutenant

Huerta called Officer Le a second time after Officer Le submitted the second

draft of the memorandum without the requested statement to ask why the

statement was not included.

ALLEGATION #3(b)

Officer Le alleges that he told Acting Lieutenant Huerta that he was not

comfortable writing that Officer Le heard Sergeant Meister ask the juvenile if

he was the person who shot at Sergeant Meister's officer, because the statement

was false.

ALLEGATION #4

Officer Le alleges that Acting Lieutenant Huerta only accepted the final draft of

the memorandum after he wrote in his memorandum that he heard Sergeant Meister

ask the juvenile if he was the person who shot at Sergeant Meister's officer.

Wood concluded that Allegations Nos. 1 and 4 were sustained. (AR 0024, AR 0038.)

On August 6, 2020, Findley retired from the Department. (AR 0125.) Lopez reassigned the investigation to Sergeant David Leon (“Leon”) and directed Leon to act as the liaison between the department and Wood. (Id.).

On November 16, 2020, Leon received Wood’s investigation report from Lopez, with instructions to complete the administrative investigation review. (Id.) Leon completed internal affairs investigation No. AA19-013 and made findings. (AR 0171-0199.) Leon’s report issued findings that were based on violations of Department Policy Manual Standards of Conduct sections 319.3.1(b), 319.3.2(d) and 319.5.8(b), as previously identified by Hofford. (AR 0127-0128, 0185.) Leon identified additional allegations (Nos. 5-7) during the investigation, as follows:

319.5.2            ETHICS

                                    (b) The wrongful or unlawful exercise of authority on the part of

any member for malicious purpose, personal gain, willful deceit,

or any other improper purpose.

319.5.8            PERFORMANCE

                        (b) The falsification of any work-related records, making misleading

entries or statements with the intent to deceive, or the willful and unauthorized removal, alteration, destruction, and/or mutilation of

any department record, public record, book, paper or document.

319.5.8            PERFORMANCE

(c) Failure to participate in, or giving false or misleading statements,

or misrepresenting or omitting material information to a supervisor

or other person in a position of authority, in connection with any investigation or in the reporting of any department-related

business.

319.5.8            PERFORMANCE

(d) Being untruthful or knowingly making false, misleading, or

malicious statements that are reasonably calculated to harm the

reputation, authority, or official standing of this department or its members.

(AR 0171-0199.)

Commander Andrew Velebil (“Velebil”) reviewed the administrative report No. AA19-013 and its findings. (AR 0115-0121.) On December 15, 2020, Velebil sent a “Findings and Recommendation” memorandum to then-acting Chief Lopez, which he advised were based on the results of the administrative investigation, AA19-013, the interviews conducted by Wood, analysis of phone records, email records, and document metadata. (Id.) Velebil determined that Huerta was not in violation of Allegations #1-4 but was in violation of Allegations #5-7 and recommended that Petitioner be separated from his employment. (Id.)

On December 17, 2020, Lopez sent Petitioner a “Notice of Intent to Discipline,” based on Investigation AA19-013. (AR 0112-0114.) Lopez decided not to follow Velebil’s recommended discipline and instead notified Petitioner of his intent to demote him from Sergeant to Officer and impose a 30-day suspension without pay. (AR0112). Lopez concluded that Petitioner had committed violations of five Department Policy Manual Standards of Conduct: (1) § 319.3.2(c)—Supervisor Responsibilities; (2) § 319.5.2(b)—Ethics; (3) § 319.5.8(b)—Performance; (4) § 319.5.8(c)—Performance and (5) § 319.5.8(d)—Performance. (AR 0006-0008.) The “Notice of Intent to Discipline” included Velebil’s findings, Report No. AA19-013 and Wood’s report and informed Petitioner of his right under Personnel Rule 14.4 to have an informal meeting with Lopez prior to discipline, upon written request made within five calendar days. (AR 0114.)

3.                  The Administrative Process

 a.                  Skelly Hearing

On February 18, 2021, a hearing pursuant to Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 (“Skelly”) was held at Petitioner’s request. (AR 0009.) Petitioner was represented by counsel at the hearing and he was able to present additional information to Lopez at that time. (AR 0009-0010.)

On February 25, 2021, Lopez issued a “Notice of Final Discipline,” which informed Petitioner that, after considering additional information presented by Petitioner and his counsel during the Skelly hearing, he had decided to reduce the proposed discipline to a 15-day suspension without pay. (AR009-0013.) Disciplinary action may be based on numerous grounds of conduct pursuant to the Personnel Rules, including “[d]ishonesty” and “violation of rules, regulations of orders.” (AR 0629, § 14.1.) Lopez explained that he was not persuaded that Petitioner was “merely not aware of a policy violation,” that “the changes [Petitioner] made did not alter the content of the memorandum” and that Petitioner’s “contradictory statements to Investigator Don Wood were simply an issue of memory.” (AR 0012.) Lopez concluded that “[y]our conduct in connection with the events of October 7, 2019 causes me to question your judgment and decision-making as a sergeant.” (AR 0012.) The Final Notice advised Petitioner of his rights to file a written response and to appeal the suspension. (AR 0013).

b.                  Arbitration

On March 11, 2021, Petitioner served a “Demand for Arbitration” on the City. (AR1481-1482.) The arbitration was held on November 12 and 16, 2021 before arbitrator Joe Monat (“Monat”). (AR1483, 1486, 1648 and 1651). The parties agreed upon the issue(s) for Monat to decide:

Whether the Baldwin Park Police Department had just cause to issue a 15-day suspension without pay to [Petitioner]? and If not, what is the remedy?

(AR 1488, AR 1932.) The parties stipulated to two joint exhibits: Joint Exhibit 1, the “Notice of Final Discipline,” and Joint Exhibit 2, the Police Department Manual. (AR 1489.) Both parties examined Petitioner, Wood and Lopez, presented segments of witness interview audio files, and submitted closing briefs. (AR 1487; AR 1556-1557; AR 1563; AR 1701-1724; AR 1914-1925.)

On February 3, 2022, Monat issued his “Findings and Recommendation. (AR 1930-1938.) Monat determined that “Huerta should have raised questions about why the changes were directed to an incident report” and that “[a]s Officer Le’s sergeant, Huerta had an obligation per Chief Lopez to become familiar with the incident described in the memo before rubber stamping changes directed by Chief Patino.” (AR 1937.) Monat recommended that the City affirm Petitioner’s 15-day suspension. (AR 1930-1938.)

c.                   Personnel Commission

On March 1, 2022, the City’s Personnel Commission met in closed session to consider Monat’s findings and “voted unanimously to adopt the findings of fact, conclusions of law, and opinion of the Arbitrator.” (AR 1944).

Petitioner thereafter filed his Petition on May 31, 2022.

4.                  Writ Proceedings

On May 31, 2022, Petitioner filed his “Verified Petition for Administrative Writ” (“Petition”). On July 28, 2023, Respondent filed an answer.

On March 8, 2024, Petitioner filed his opening brief in support of the Petition. On March 11, 2024, Respondent filed its opposing documents. On March 26, 2024, Petitioner filed his reply documents. The court has also received the amended administrative record, which was lodged on March 27, 2024, as well as joint excerpts from the amended administrative record.

Standard of Review

“Section 1094.5 of the Code of Civil Procedure governs judicial review by administrative mandate of any final decision of order rendered by an administrative agency.” (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313). Under Code of Civil Procedure § 1094.5, subdivision (b), “[t]he inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.”

“It repeatedly has been held that discipline imposed on public employees affects their fundamental vested right in employment, and therefore, when a public employee challenges an employer's disciplinary action in a mandamus proceeding, the trial court is required to exercise its independent judgment on the evidence.” (Wences, supra, 177 Cal.App.4th at 314 [internal quotations and citation omitted].) While the “disciplinary action at issue often is the termination of employment[,]. . . courts have also held without distinction that the independent judgment standard applies to actions involving other forms of discipline.” (Id. [emphasis added].) 

Under the independent judgment standard, “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 trial court has “the power to draw its own reasonable inferences from the evidence and to make its own determinations as to the credibility of the witnesses.” (Morrison v. Housing Authority of the City of Los Angeles Bd. of Comrs. (2003) 107 Cal.App.4th 860, 868.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664). “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.) The “exercise of independent judgment applies only to the evaluation of the evidence to determine if it supports the findings, not to the findings themselves.” (American Funeral Concepts v. Board of Funeral Directors & Embalmers (1982) 136 Cal.App.3d 303, 311, fn. 7.)[2]

Request for Judicial Notice

The court rules on Petitioner’s Request for Judicial Notice (“RJN”) as follows: Denied as moot, based on the court’s ruling on City’s objections [see below].

The court rules on City’s Request for Judicial Notice as follows:

(1)               Grant as to Exhibit A (i.e., Executive Order N-40-20, Executive Department, State of California (March 30, 2020), available at https://www.gov.ca.gov/wp-content/uploads/2020/03/3.30.20-N-40-20.pdf).

Evidentiary Objections

The court sustains City’s objections to Exhibits 1 (i.e., a complaint filed April 28, 2022 in case styled Cetina, et al. v. City of Baldwin Park, Case No. 22STCV14121) and 2 (i.e., Petitioner’s government claim dated March 12, 2021) to Petitioner’s RJN. (Yerba Buena Neighborhood Consortium, LLC v. Regents of University of California (2023) 95 Cal.App.5th 779, 790, fn. 4 [“only relevant evidence is subject to judicial notice”].)

Further, as to Exhibit 1, judicial notice cannot be taken of the truth asserted in court records. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885-886). As to Exhibit 2, “[t]he court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368, fn. 1.)

Procedural Defects

At the outset, City requests that Petitioner’s opening brief be disregarded or that the court alternatively disregard the last six pages of Petitioner’s brief, on the basis that it does not comply with pages limitations set forth in California Rules of Court rule 3.1113, subdivision (d) (i.e., “[e]xcept in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages. . .”) and Los Angeles Superior Court (“LASC”) Local Rule 3.231, subdivision (i) (i.e., “[t]he parties are subject to the limits of 15 pages for the opening brief, 15 pages for the opposition, and ten pages for the reply. . . unless a party seeks, and the court grants, an order for an oversized brief. . .”) Petitioner, in turn, argues without citing any legal authority that the page limitations for a motion for summary judgment govern in a writ proceeding.

City, however, only generically claims that “Petitioner’s oversized brief prejudice[s] [its] ability to address Petitioner’s arguments.” (Responding Brief [“RB”], 11:3-4. As a result, the court declines City’s request.

City next requests that the court disregard Petitioner’s opening brief on the basis that it was untimely filed. Pursuant to the court’s November 30, 2023 order, Petitioner’s opening brief was to be filed and served 60 days prior to April 10, 2024, which is Saturday, February 10, 2024. Pursuant to Code of Civil § 12a, when a deadline to file falls on a weekend or court holiday, its due date defaults to the next court date. February 12, 2024 was a court holiday (Lincoln Day); as such, Petitioner’s opening brief was due February 13, 2024, the day it was served.

Legal assistant Esmeralda Townsend (“Townsend”) attests that she submitted Petitioner’s opening brief to One Legal on February 13, 2024, that the court issued a “Notice of Court Rejection of Electronic Filing” on February 21, 2024, that she was not made aware of the Notice of Rejection until the evening of February 27, 2024, that her office resubmitted the opening brief to the court through One Legal the morning of February 28, 2024, that the court issued another “Notice of Court Rejection of Electronic Filing” on March 7, 2024, that her office again resubmitted the opening brief to the court through One Legal the afternoon of March 8, 2024 and that her office received a “Notice of Confirmation of Electronic Filing,” showing that the documents were accepted and filed as of March 8, 2024. (Townsend Decl., ¶¶ 1-8, Exhs. 2-7).

City fails to articulate any appreciable prejudice resulting from the untimely filing of Petitioner’s opening brief. City does not deny that it was served Petitioner’s opening brief the day the opening brief was due; clearly, then, City was provided the entire time allotted under the law to review and respond to Petitioner’s opening brief. The court declines City’s request in this regard.

City complains that Petitioner’s opening brief fails to comply with LASC Local Rule 3.231, subdivision (i)(2), which requires that each material fact in a party’s statement of facts be supported by a citation to the record. While true, the court does not believe that Petitioner’s partial non-compliance with the above-referenced Local Rule warrants a complete disregard of Petitioner’s opening brief.

Analysis

Petitioner complains that City imposed discipline on Petitioner outside of the statute of limitations in violation of the POBR, that there were procedural defects with the investigation, Skelly hearing and arbitration and that the Department’s determination that Petitioner engaged in dishonesty was arbitrary, capricious, and not supported by the evidence. 

Statute of Limitations

Petitioner asserts that City’s imposition of discipline upon him was time-barred by Government Code § 3304, subdivision (d)(1), which provides in relevant part as follows:

            . . . no punitive action, nor denial of promotion on grounds other than merit,

shall be undertaken for any act, omission, or other allegation of misconduct if

the investigation of the allegation is not completed within one year of the public

agency's discovery by a person authorized to initiate an investigation of the

allegation of an act, omission, or other misconduct.

Petitioner posits that the statute of limitations on Petitioner’s interactions with Le began to run on October 7, 2019 because Patino “observed Petitioner requesting more information in a Memorandum from Officer Le and instruct[ed] him to put more details in his Memorandum on that date,” that no investigation was initiated until December 23, 2019, that the investigator submitted his report on April 23, 2020 and that the time to impose discipline expired as of December 5, 2020[3]. (OB, 13:25-14:10.) Petitioner, however, provides no citations to the record that Patino “observed” Petitioner and that Petitioner “engaged in acts in front of [Patino].” (See OB, pp. 13-14.)[4] Le was home on his day off when he prepared the memorandum and Petitioner’s communications with Le took place over the phone and email. (AR 0116, 0126, 0129, 0137, 0412).

Instead, the record reflects that on December 23, 2019, Hofford authored a memorandum to McLean, wherein Hofford advised that Findley had informed him of Le’s allegations regarding the memorandum on December 20, 2019. (AR 0224.) While Petitioner cites to Hofford’s memorandum as support for his position that “[t]he record reflects that soon after October 7, 2019, Le informed Sgt. Findley of his concerns about the memo process” (OB, 4:14-15), that is not what Hofford’s memorandum says; rather it states only that Findley reviewed the memorandum in October 2019 and “was . . . familiar” with the use of force incident, as he had conducted the initial supervisor’s inquiry into that incident. (Id.) Hofford’s memorandum nowhere states that Findley knew of Le’s allegations about the memorandum’s discrepancies and modifications. (Id.) Monat determined that “[Appellant] produced no evidence to support his claim the Notice of Intent was untimely. The time line established by Officer Le was that Sgt. Findley was not made aware of the events of October 7, 2019, until December 2019 after Patino was no longer Interim Chief.” (AR 1934.)

The record elsewhere confirms that Le first reported the discrepancies with his memorandum to Findley “when Chief Patino was bumped down to sergeant.” (AR 0447). Patino’s last day as Acting Chief was in approximately December 2019. (AR 0488-0489; see also OB, 4:21-23). Le’s conversation with Findley, then, appears to have occurred sometime in December 2019, which is consistent with Hofford’s December 23, 2019 memorandum to McLean. Even assuming Le’s conversation occurred on December 1, 2019, the City’s time to serve the “Notice of Intent to Discipline” would have been extended by Executive Order No. N-40-20 to February 1, 2021.

The court determines that the discipline imposed on Petitioner was not time-barred.

Procedural Defects with the Investigation, Skelly, Arbitration and Personnel Commission

1.                  Acting Commander Velebil

Petitioner asserts that Velebil should have been recused from any investigation of Petitioner because Petitioner had testified in case styled Herrera v. City of Baldwin Park, Case No. 20STCV11521 that Velebil had sexually harassed and retaliated against another employee, Martin Herrera. (OB, 15:9-10.) The court agrees that Velebil should not have been involved in Petitioner’s investigation.

However, it appears that Velebil’s only role in the investigation was to review the City’s investigation report. (AR 0111-0121.) As Petitioner’s supervisor, Velebil was required to review the investigative report. (AR  1328-29 [Policy Manual § 1009.6.1], 1333 [§ 1009.10.1], AR 0115,). Under section 1009.10, an investigative report “should be forwarded to the Chief of Police through the chain of command. Each level of command should review the report and include his/her comments in writing before forwarding the report.” (AR 1333.) Clearly, the “chain of command” should have been broken as it appears that Petitioner and Velebil participated in litigation in which their respective positions were adverse.

Nevertheless, despite the clear conflict, the court finds no prejudice to Petitioner as a result of Velebil’s involvement. (Pinheiro v. Civil Service Com. for County of Fresno (2016) 245 Cal.App.4th 1458, 1464 [“Generally, we reverse only if the alleged error prejudicially affected the appellant’s substantial rights”].) Here, although Velebil recommended that Petitioner be terminated, Lopez declined to follow Velebil’s recommendation and instead decided to impose a 30-day suspension without pay and demote Petitioner from Sergeant to Officer. (AR 0112.) Moreover, there is no evidence the court could adduce that demonstrated that Lopez’ determination was based on Velebil’s ultimate determination to terminate Petitioner or his review of the report and findings in AA19-03. In fact, Velebil’s review demonstrated he disagreed with two of Wood’s conclusions and agreed with the additional allegations set forth by Leon in AA19-03. Irrespective of Velebil’s conclusion or participation, Lopez’s determination included findings of policy violations included in the initial allegations and the additional ones added by Leon and there is no evidence he relied on anything Velebil did. (AR 0112-0114.)

The court determines that Velebil’s involvement was not prejudicial to Petitioner.

2.                  Skelly Hearing

Petitioner erroneously represents that “[a] Skelly hearing is supposed [to] with the ability for a fresh set of eyes to review all of the materials and determine if the investigation is appropriate and if the proposed discipline is commensurate with the violation.” (OB, 15:25-16:1). Skelly, supra, 15 Cal.3d at 215, in fact, states to the contrary: “[i]t is clear that due process does not require the state to provide the employee with a full trial-type evidentiary hearing prior to the initial taking of punitive action.”

Skelly determined that the minimum procedural due process protections required before disciplinary action became effective included “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.” (Id.)

Here, Lopez provided Petitioner with a copy of the investigative report upon which Lopez based his intended discipline. (AR 0012-AR 0114.) Petitioner’s contention that the Skelly process was somehow deficient because there was no audio of his interview or transcripts of interviews is unsupported by any legal authority. (See Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1280 [“We reject appellant’s contention that the word ‘materials’ as used in Skelly means each and every document identified in the Chief’s Case was required to be produced prior to his pretermination hearing in order to satisfy due process. Even the regulation in Arnett, upon which Skelly relied, allowed for ‘extracts’ from witness statements, documents, and investigative reports”].)

The court determines that Petitioner’s Skelly process was properly conducted.

3.                  Arbitration Process

Petitioner asserts that there were prejudicial errors made during the arbitration process, including the improper use of (unidentified) hearsay statements and incomplete interview transcripts. However, “[a]n administrative appeal instituted by a public safety officer. . . shall be conducted in conformance with rules and procedures adopted by the local public agency.” (Govt. Code § 3304.5.) POBR “requires only that an opportunity for administrative appeal be provided. It does not specify how the appeal process is to be implemented. The details of administrative appeal under section 3304, subdivision (b) are left to be formulated by the local agency.” (Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1806 [italics theirs].)

The City’s Personnel Rules, which control the City’s arbitration proceedings, expressly provide that “[t]he hearing need not be conducted in accordance with technical rules relating to evidence and witnesses,” that “[t]he arbiter shall not be bound by technical rules of evidence” and that “[h]earsay evidence may be used for the purpose of supplementing or explaining any direct evidence . . .” (AR 0632 [§ 14.5.7]).

Further, the record belies Petitioner’s contention that his witness interviews were not made available for Morat. At the arbitration hearing, Petitioner’s attorney played several audio recordings of Petitioner’s investigation interviews during her witness examinations. (See AR 1556-1557 [“MS. KRIKORIAN: Your Honor, may I pay this portion of the audio? THE ARBITRATOR: Sure. . . MS. TALA: Is this the Huerta recording or the Le recording? MR. KRIKORIAN: This is the George Huerta first IA. This was the one on March 17”].) The court reporter asked Petitioner’s attorney if she wanted to transcribe the words in the audio, but Petitioner’s attorney stated, “[t]his audio is actually already admitted, so if I can reference the time of the audio that’s being played, . . . I do not believe it is necessary to report it.” (AR 1556). Most of the citations to the record listed by Petitioner in support of his statement that “[t]he Arbitrator relied on the factual findings that Petitioner was dishonest in his interview based solely on statements out of context, quotes, and hearsay” (OB, 17:7-9 [i.e., AR 1557, AR 1562, AR 1564 and AR 1593]) actually involved portions of the arbitration hearing where his own attorney was questioning witnesses and playing recordings of witness interviews.

The court determines that Petitioner’s arbitration hearing was properly conducted.

4.                  Personnel Commission

Petitioner asserts that the City’s Personnel Commission improperly denied Petitioner’s counsel the opportunity to raise the affirmative defense of whistleblower retaliation during the March 1, 2022 closed session. (Moussatche Decl., ¶ 1). The meeting, however, was conducted pursuant to the Personnel Rules, which require the Personnel Commission to “adopt, amend, modify, or reject the findings of fact, conclusion of law, and/or opinion of the arbiter.” (AR 0634 [§ 14.5.a.20]). Prior to the Personnel Commission’s decision the arbiter’s decision is advisory only. (AR 0634 [§ 14.5.a.17]). Although “[e]ither party may request written and/or oral argument before the Commission prior to the Commission’s decision” (and Petitioner’s counsel, in fact, submitted a written letter to the Personnel Commission on February 28, 2022 prior to the March 1, 2022 session [AR 1939-AR 1940][5]) there is no requirement that the Personnel Commission receive new evidence after the conclusion of arbitration. (AR 0634 [§ 14.5.a.20].)

The court determines that the Personnel Commission’s purported refusal to consider Petitioner’s affirmative defense of whistleblower retaliation was not improper.

5.                  Conflict of Interest

Petitioner asserts that the City violated his due process rights because Petitioner’s investigation was “conducted at the behest and direction of” law firm Libert Cassidy Whitmore (“LCW”), which also “represented the City in the arbitration proceedings” and “represented and advised the City’s Personal Commission in closed session when evaluating the arbitrator’s opinion.” (OB, 18:7-14). Attorney Emanuela Tala of LCW, however, represented the police department in the arbitration (AR 1486; AR 1941) and at the Personnel Commission closed session (AR 1944 [“The Police Department was represented in closed session by attorney Emanuela Tala”]); she did not represent the Personnel Commission. Petitioner fails to present any evidence that Tala or any other attorney from LCW counseled the Personnel Commission or served as the adjudicator.

The court determines that there was no conflict of interest.

Department’s Unsupported Determinations

Petitioner asserts that the Department’s determination that Petitioner engaged in dishonesty was arbitrary, capricious, and not supported by the evidence. (OB, 18:23-24). Petitioner’s argument in this regard, however, is supported only by a singular citation to the record. (Id., at 20; AR 0011.) Petitioner, then, has simply not met its burden “of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda, supra, 20 Cal.4th at 817).

The court denies the petition.