Judge Stephen I. Goorvitch, Case Number: 23STCP02769, Date: 2024-09-19 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP02769, Date: 2024-09-19 Tentative Ruling

Petitioner Walter Solis (“Petitioner”) was a deputy sheriff for the Los Angeles County Sheriff’s Department (the “Sheriff’s Department” or the “Department”) who was terminated and appealed the decision to the Civil Service Commission (the “Commission” or “Respondent”). Petitioner faced three sets of disciplinary charges. First, the Department alleged that Petitioner did not obtain approval of outside employment, which he admitted during the IAB interview. The hearing officer sustained the allegation and recommended a three-day suspension, which is the maximum penalty. Petitioner did not challenge this finding or the recommended penalty before the Commission, and he does not seek a writ on this basis. (See Petition, Prayer for Relief, ¶ 2.)

Second, the Department charged Petitioner with prohibited employment for engaging in debt collection work, as well as with dishonesty during the IAB investigation. The hearing officer found that Petitioner only agreed to work as a debt collector, but never actually did so, which is not a violation of the policy. The hearing officer also found that Petitioner did not intentionally make false, misleading, or incomplete statements during the IAB investigation. The Commission did not disturb these findings or conclusions. (See AR 198-199.)

Finally, the Department charged Petitioner with associating with Carroll, purportedly “a known drug dealer,” and suggested that Petitioner was involved in Carroll’s marijuana activities. (AR 145-147) The Department called only three witnesses, none of whom was a percipient witness: (1) Lieutenant Michael Shaw, who investigated Petitioner for criminal activity and found “insufficient probable cause to believe a crime occurred” (AR 136); (2) Sergeant Irys Alvarez, who conducted the IAB investigation; and (3) Assistant Sheriff Myron Johnson. The Department relied heavily upon hearsay, as well as the text messages between Petitioner and Carroll. The hearing officer found that there was insufficient evidence to support these charges, which the Commission rejected. In a sparse, two-page opinion, the Commission found “sufficient evidence” that “[t]here was a willingness on the part of [Petitioner] . . . to participate in the violation of a federal statute involving growing, possessing or using marijuana. (AR 199.) However, the Commission did not discuss the evidence or the Department’s heavy reliance on hearsay in making this conclusory finding. Nor did the Commission discuss how the undisputed evidence—the text messages—supported the finding that Petitioner violated any policy. Accordingly, the Commission’s finding does not comply with Topanga Association for a Scenic Community v. County of Los Angeles, (1974) 11 Cal.3d 506, 515 (hereinafter “Topanga”). The court grants the petition on this basis and remands the matter for further proceedings.

On July 16, 2017, the Los Angeles Police Department (the “LAPD”) arrested 14 persons on charges of marijuana trafficking. One such person, Kraig Carroll, surrendered his cell phone and authorized the LAPD to conduct a search. (AR 134.) The LAPD extracted text messages between Carroll and a contact called “Sheriff Walter Weho.” (AR 134-135.) The LAPD determined that the cell phone number associated with “Sheriff Walter Weho” belonged to Petitioner Walter Solis. (AR 135.) Accordingly, the LAPD referred the matter to the Sheriff’s Department for further investigation. (AR 193.) Carroll pleaded guilty to several misdemeanors stemming from his arrest and claimed that, as a result, he ceased any attempts to establish a cannabis business. (AR 143.)

During the investigation Lieutenant Michael Shaw (then a sergeant) interviewed Carroll, who denied that Petitioner was involved in marijuana activities. (AR 135-136.) Shaw extracted 144,312 SMS text messages and 9,330 MMS text messages from Carroll’s phone, and cited only 23 text messages, none of which “could be substantiated by substantive evidence.” (AR 136.) Therefore, Lieutenant Shaw concluded that “there is insufficient probable cause to believe a crime occurred,” i.e., that Petitioner was involved in marijuana trafficking. (Ibid.) The matter was then referred to IAB, and Sergeant Irys Alvarez interviewed Kraig Carroll and Petitioner.

The Department charged Petitioner with a violation of section 3-01/060.30, which requires full-time, permanent employees to report outside employment to their unit commander and to obtain approval. During the IAB investigation, Petitioner admitted to working two off-duty security jobs for Carroll, who owned two security companies, for which he did not obtain prior approval. (AR 140.) There is no evidence in the record that these jobs involved marijuana cultivation or trafficking. (See AR 134-143.) Based upon Petitioner’s admission to Sergeant Alvarez, the hearing officer found that Petitioner violated this policy and recommended the maximum penalty, which was a three-day suspension. Petitioner does not challenge the finding or penalty in this proceeding.

The Department charged Petitioner with a violation of section 3-01/060.25, which prohibits peace officers from engaging in debt collection. During the investigation, the Department discovered text messages between Carroll and Petitioner discussing collection efforts. (AR 141-142.) During the IAB investigation, Petitioner admitted that he and Carroll “discussed collecting large amounts of money for undisclosed clients.” (AR 141.) Petitioner admitted that on one occasion, “he agreed to assist Carroll in recovering the money noting that if they were successful, he and Carroll would each get paid $50,000.” (Ibid.) Petitioner admitted that on another occasion, Carroll offered to split a commission of $5,000 to collect a debt of $20,000 owed to another client. (AR 141-142.) Petitioner admitted that “he was willing to participate in the collection of money on both occasions because he did not see anything wrong with it but, in any event, he denied completing both jobs.” (AR 142) There is no evidence in the record that Petitioner actually engaged in debt collection activities; only that he agreed to do so. (See AR 134-143.)

The hearing officer found that section 301/060.25 prohibits “the actual act of performing debt collection as opposed to a conversation oriented around engaged in debt collection.” (AR 149.) Because Petitioner never actually attempted to collect any debts, the hearing officer found that he was not in violation of the policy. (AR 149.) The Commission did not disturb this conclusion. (See AR 199.)

The Department charged Petitioner with one instance of making a false, misleading, and/or incomplete statement during the IAB investigation. Petitioner described himself as a “middle man,” introducing Ilan Dahan, a property manager, to Carroll and his associates. (AR 138, 149.) Petitioner stated that he “did not participate in discussions about a Malibu property.” (Ibid.) Subsequently, Carroll emailed Dahan and inquired about using the property for marijuana cultivation. (AR 138.) During the IAB investigation, the Department showed Petitioner text messages between him and Carroll, following which he “admitted to relaying information back and forth between Carroll and Dahan.” (AR 149.) Accordingly, the Department took the position that Petitioner’s original characterization of himself as a “middle man” was not accurate.

The hearing officer found that Petitioner did not deliberately provide false information. (AR 150.) The hearing officer found that “he was given no documents to review in advance of being interviewed and, therefore, as a result, had to rely solely on his memory of events that occurred the previous two years before being interviewed.” (Ibid.) The hearing officer concluded that this charge is not true. (Ibid.) The Commission did not disturb this conclusion. (See AR 199.)

The Department charged Petitioner with violation of section 3-01/050.86, which states that deputies shall not act or behave in such a manner as to bring discredit upon themselves or the Sheriff’s Department. The Department also charged Petitioner with violation of section 3-01/050.86, which prohibits deputies from knowingly maintain a business or personal relationship or to have direct or indirect association which would be detrimental to the image of the Sheriff’s Department. These charges stem from Petitioner’s association with Carroll and his alleged involvement in marijuana trafficking activities.

The Department called three witnesses: (1) Lieutenant Michael Shaw, who conducted the criminal investigation of Petitioner; (2) Sergeant Irys Alvarez, who conducted the IAB investigation of Petitioner; and (3) Assistant Sheriff Myron Johnson. The Department introduced the text messages between Petitioner and Carroll. The Department also introduced summaries of the criminal investigation and IAB investigation (which are hearsay).

The hearing officer found that there was insufficient evidence to support these charges. The hearing officer found as follows:

Carroll was not known to be a drug dealer until his arrest for drug trafficking occurred on July 13, 2017. Even at that time, [Petitioner], who had already severed ties wth Carroll, attested he had no knowledge of his arrest as Carroll corroborated in his IAB interview . . . . Additionally, the Department did not produce any evidence to contradict Carroll’s assertion at his IAB interview that he was not subsequently convicted of drug trafficking but rather pled and was found guilty to having committed several misdemeanors. It appears that the Department’s characterization of Carroll being a known drug dealer for purposes of its case against [Petitioner] is to substantiate, validate, and bolster the other allegations it has charged [Petitioner] with having violated. . . . Certainly, had Carroll had a criminal record prior to his arrest for trafficking in marijuana on July 13, 2017, a reference to such a record would have been a significant fact to be noted by the ICIB and IAB investigators in proving that [Petitioner] violated this section of the Department’s Policy and Procedures. . . . At the time [Petitioner] met Carroll at an event in and around May 26, 2016, there was no indication [Petitioner] could have known that Carroll was involved in any illicit or illegal business or activity since Carroll conveyed to [Petitioner] that he was interested in him as a person who could be available to provide security services to the clients of his two legitimate businesses.

(AR 145-146.) The hearing officer also found: “[T]here is nothing in the record evidence presented by the Department to show the [Petitioner’s] involvement in assisting Carroll to find a property for one of Carroll’s clients to grow marijuana is in violation of a Department policy for not complying with Federal Law.” (AR 147.)

The hearing officer reviewed the text messages between Petitioner and Carroll. (See AR 147.) Two of the text message chains suggest that Carroll was soliciting Petitioner to transport marijuana:

P: Seems like there’s way too much risk going on right now I don’t know if I want to drive anymore bro I’ve heard a lot of people getting stopped

(AR 395-396, 399-400.) In each exchange, however, Petitioner refused to participate in the transportation, which the hearing officer recognized:

The record evidence does contain a substantial number of discussions via text messages and telephone calls between [Petitioner] and Carroll regarding taking trips that seemingly involved activity that was not legitimate yet those trips were never assented to by [Petitioner] and never materialized . . . . Yet, when all is said and done, these discussions just boil down to discussion that occurred between [Petitioner] and Carroll since the Department presented no preponderant evidence that during [Petitioner’s] relationship with Carroll either one of them engaged or pursued in illegal activity.

(AR 147-148.) Therefore, the hearing officer found that the true charges were not true. (AR 145, 148.)

The Commission rejected the hearing officer’s findings and conclusions and issued revised findings of fact and conclusions of law. (See AR 198-199.) The Commission’s findings and conclusions were only two pages long. (See ibid.) The Commission found: “There was sufficient evidence in the record that there was a willingness on the part of [Petitioner], a member of the Los Angeles County Sheriff’s Department, to participate in the violation of a federal statute involving growing, possessing or using marijuana.” (AR 199.) This was a conclusory finding, as there was no discussion of this “sufficient evidence” or the Department’s heavy reliance on hearsay. Inadmissible hearsay cannot support a finding standing alone, per Civil Service Commission Rule 4.10(B). Nor did the Commission discuss how a “willingness” violates the policies at issue.

Under Code of Civil Procedure section 1094.5(b), the pertinent issues 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 agency 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(b).)

Because Petitioner’s discharge concerns a fundamental vested right in Petitioner’s employment with County, the court exercises its independent judgment on the administrative findings. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.) 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 own 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.) “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 court is confused by the Commission’s conclusory finding that “[t]here was sufficient evidence in the record that there was a willingness on the part of [Petitioner], a member of the Los Angeles County Sheriff’s Department, to participate in the violation of a federal statute involving growing, possessing or using marijuana.” (AR 199.) While the record is clear that Petitioner and Carroll knew each other, and that Petitioner may have known that Carroll had some interest and/or involvement in the marijuana trade—which is lawful in California—the court could not find the “sufficient evidence” upon which the Commission relies. Petitioner’s own statements and the text messages—which are admissible notwithstanding the hearsay rule—do not establish his involvement in the marijuana trade.[1] To the contrary, Petitioner denied having been involved and rejected Carroll’s requests to “drive,” which was corroborated by Carroll’s statements to investigators. The remaining evidence is largely hearsay, which is insufficient standing alone to support the findings, per Civil Service Commission Rule 4.10(b). Even that evidence does not clearly support the Commission’s finding.

The Commission seemed to rely on Petitioner’s text messages to Carroll. These text messages suggest that Carroll was attempting to hire Petitioner to transport marijuana based upon the amount of money involved in one transportation (“30k 15k each”) and Petitioner’s concern that there was “too much risk,” of “getting stopped,” and being subject to a “takedown.” Although Petitioner rejected the offers, he did so based upon the risk, and not because it was unlawful under federal law. If this reflects a “willingness” to participate in the transportation of marijuana, i.e., if the risk was lower, the Commission does not explain how this “willingness” violated the policies at issue. Section 3-01/030.05 seems to prohibit “act[s]” and “behav[ior],” not potential actions under the right circumstances. Nor does the Commission explain how these text messages might evidence a violation of Section 3-01/050.86, which governs prohibited associations, or address the hearing officer’s findings on this charge.

The Commission’s failure to address the evidence and explain how the evidence supports violations of Department policy constitutes an abuse of discretion under Code of Civil Procedure section 1094.5. In Topanga, the California Supreme Court has held that “implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” (Topanga, supra, 11 Cal.3d at 515.)

[A]mong other functions, … findings enable the reviewing court to trace and examine the agency's mode of analysis.… Absent such roadsigns, a reviewing court would be forced into unguided and resource-consuming explorations; it would have to grope through the record to determine whether some combination of credible evidentiary items which supported some line of factual and legal conclusions supported the ultimate order or decision of the agency….

(Id. at 516-517.) Although administrative agency findings are entitled to considerable latitude, “mere conclusory findings without reference to the record are inadequate.” (West Chandler Blvd. Neighborhood Ass’n vs. City of Los Angeles (2011) 198 Cal.App.4th 1506, 1521-22.) If the court “cannot discern the analytic route the [agency] traveled from evidence to action,” the decision does not comply with Topanga. (Ibid.)

Petitioner does not challenge the hearing officer and the Commission’s findings that he engaged in outside employment without approval. However, the maximum penalty on that charge is a three-day suspension. (See AR 144.) Therefore, the undisputed finding does not support the penalty of termination.

2. The court remands the case to the Civil Service Commission for reconsideration of the case in light of the court’s opinion and judgment. (See Code Civ. Proc. § 1094.5(f).) The court takes no position on how the Civil Service Commission exercises its discretion following remand.[2]

4. Petitioner’s counsel shall provide notice and file proof of service with the court.

[1] Although the Department did not call a witness from the LAPD to authenticate the text messages, Petitioner’s counsel did not object to the foundation for the text messages (except for one photograph). (See AR 571-572.)

[2] In other words, the court takes no position on whether the Commission upholds the termination and issues new findings of fact and conclusions of law that comply with Topanga Association for a Scenic Community v. County of Los Angeles, (1974) 11 Cal.3d 506, 515; or whether the Commission vacates the penalty of termination and imposes a three-day suspension based upon the outside employment charge; or whether the Commission takes some other action permitted under its rules and regulations.