Judge Stephen I. Goorvitch, Case Number: 23STCP03433, Date: 2024-08-19 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP03433, Date: 2024-08-19 Tentative Ruling

Petitioner Darcy French (“Petitioner”), a Sergeant II with the Los Angeles Police Department (the “LAPD”), filed this petition for writ of administrative mandate directing Respondents to set aside a three-day suspension.[1] While off-duty, Petitioner and other officers attended a fundraiser for their division’s Baker-to-Vegas marathon team. Another supervisor, Sergeant II James Linder, observed Petitioner “becoming very friendly with two of the younger officers in the gang unit.” One of those officers, Officer Carlos Gonzalez, testified that he decided to kiss Petitioner because “she was an attractive female.” Officer Gonzalez and another officer testified that the kiss appeared to be mutual, though Petitioner testified that she routinely “side kissed” colleagues on the cheek. It was undisputed that Petitioner and Officer Gonzalez were intoxicated at the time. Then, after Sergeant Linder separated Petitioner from the other officers, he alleged that she was abusive and used profanity, which another witness disputed. Sergeant Linder did not report the incident in 2019. Rather, it surfaced in 2021, after Petitioner made a complaint against other officers who then reported it. Based upon the foregoing, Petitioner was charged with two counts of misconduct:

1. During 2019, you, while off-duty, inappropriately kissed a Department employee (“Count One”); and

2. During 2019, you, while off-duty, made several inappropriate comments towards Department employees (“Count Two”).

Petitioner argued that the charges were barred by the applicable statute of limitations and were not supported by the evidence. The Board of Rights (the “Board”) found that the charges were timely because an appropriate supervisor did not learn of the misconduct until 2021. Turning to the merits, the Board found Petitioner guilty on both counts. Now, Petitioner challenges the Board’s decision on the same grounds. The court finds that Petitioner has not established that the charges are untimely. The statute of limitations is triggered once a supervisor who is “authorized to initiate an investigation” learns of the misconduct, and Petitioner does not demonstrate that Sergeant Linder had such authority. Regardless, the weight of the evidence does not support the Board’s findings on the merits, so the court grants the petition for writ of mandate.

During the relevant time period, Petitioner was an assistant watch commander at the LAPD’s Southeast Division. (AR 101.) As am assistant watch commander, Petitioner oversaw all police activity in the Southeast Division, including the gang enforcement detail (“GED”). (AR 60.)

In early 2019, Petitioner attended a fundraiser for the Southeast Division’s Baker-to-Vegas marathon team. (AR 27-28, 48-50, 71.) The event was held at a casino in San Diego County, and the attendees took a charter bus from Los Angeles County. (Ibid.) The event was attended by approximately 35 to 50 people, including officers and employees of the Southeast Division. (AR 28, 109.)

Petitioner rode on the charter bus and drank alcohol on the bus and at the casino. (AR 28, 51, 75, 86, 109-110.) Sergeant II James Linder, who also attended the event, believed Petitioner was intoxicated based on her slurred speech, watery eyes, and unsteady gait. (AR 51.) While at the casino, Petitioner sat on a bench between Southeast Division GED Officers Jacob Rice and Carlos Gonzalez. According to Petitioner, both GED officers had been drinking alcohol at the event. (AR 111.) At some point, Sergeant Linder felt like he needed to monitor Petitioner because “she was becoming very friendly with two of the younger officers in the gang unit.” (AR 52.) Sergeant Linder saw Petitioner with the two officers on the bench and then saw Petitioner lean in to one of the officers, and “it looked like she was either about to kiss or did kiss one of the younger officers.” (AR 52-53.) Sergeant Linder then clarified: “I did not see them kiss” and “I don’t believe I saw them kiss” but “knew they came in very close.” (AR 53, 67, 70.)

Sergeant Linder was concerned that Petitioner “was about to make out with a subordinate in front of all the other subordinates.” (AR 53.) So, he grabbed Petitioner’s hand, pulled her up from the couch, and said “Darcy, let’s go for a walk.” (Ibid.) Sergeant Linder testified that he intervened because “if they had kissed … [he] would consider that misconduct” and supervisors “are obligated to step in if you believe another employee is about to commit misconduct.” (AR 53.) Sergeant Linder never reported the incident up the chain of command. (AR 71-72.)

Other officers in attendance saw Petitioner kiss GED Officer Gonzalez but described it as a brief encounter. Sergeant Brian Williams, who held the rank of Police Officer II at the time, testified that there was “a peck on the lips barely.” (AR 28-30.) Officer Brent Evans testified that he “observed a kiss that lasted two seconds, approximately.” (AR 86-90.)

Officer Gonzalez confirmed that there was a kiss but testified that he kissed Sergeant French:

A: We were standing there talking, she was an attractive female, so I just kissed her.

(AR 95:5-12.) However, he testified that it was a “quick peck” on the lips and that he believed it was mutual. (AR 97:12-18.) Sergeant Williams suggested that the kiss was mutual, as he testified that they were both “moving in closer together.” (AR 28-29.) Officer Gonzalez was intoxicated at the time of the kiss. (AR 115:6-7.)

Petitioner testified that she did not recall the incident but that it was routine for her to “side kiss” colleagues on the cheek. (AR 112.) Specifically, Petitioner testified as follows:

A: I do not recall in engaging in any kiss on the lips with Officer Gonzalez in a romantic or inappropriate fashion. We routinely hug, embrace, side kiss when we greet, say hello, when we are at Christmas parties, and off duty, that is very routine with my assistant chiefs, my deputy chiefs. It is a show of affection. I do with it with my classmates, on duty, off duty, on perimeters, on crime scenes, at command posts, it’s an enduring thing that we do. And, I, myself know that I do that especially, when we are in an environment when we are very relaxed, I will reach out on a shoulder, I will do a side kiss (indicating), if you will. How are you? Things like that, to that nature. Nothing that day I did was remarkable that I would necessarily remember, like a kiss on the lips, inappropriate, romantic, never. I don’t do that. I wouldn’t do that. And if it was constructed that way, as I said, the lean in and the side kiss (indicating), that was not my intention.

(AR 112:17-113:13.) It is undisputed that Petitioner and Officer Gonzalez had no prior or subsequent social relationship. (AR 95.)

After separating Petitioner from Officer Gonzalez, Sergeant Linder walked Petitioner back to the charter bus. (AR 54.) Sergeant Linder sat with Petitioner for “probably half” of the bus ride back to Los Angeles. (AR 55.) Sergeant Linder testified that, during the ride back, Petitioner became verbally abusive to him and Officer Sal Cervantes, who was sitting across from them. (AR 55-56.) According to Sergeant Linder, Petitioner said to him: “James, you’re an asshole. You’re a dick. Nobody likes you. Why in the fuck did you do that?” (AR 55.) According to Sergeant Linder, Petitioner said to Officer Cervantes, “You’re fucking worthless. Why are you even here?” (AR 56-57.) By contrast, Officer Cervantes testified that he did not observe Petitioner “berate” Sergeant Linder and that Petitioner made no inappropriate comments towards him. (AR 202- 203.) Petitioner denied that she made inappropriate comments towards Sergeant Linder or Officer Cervantes. Petitioner claims she only engaged in playful “banter and joking.” (AR 125-126.)

Although rumors of Petitioner’s kiss with Officer Gonzalez spread throughout the Southeast Division, no one reported the incident to an uninvolved supervisor until May 28, 2021. (See AR 40-41, 61, 178, 191.) It came up during an investigation of a complaint Petitioner had made against other officers. (Ibid.) Detective Leroi O’Brien testified that the one-year statute of limitations for disciplinary matters is set forth in Charter section 1070(c), which states in pertinent part: “No member shall be removed, suspended, demoted in rank, or suspended and demoted in rank for any conduct that was discovered by an uninvolved supervisor of the department more than one year prior to the filing of the complaint against the member.” (AR 179.) O’Brien distinguished an uninvolved supervisor from an involved supervisor, as follows: “So an uninvolved supervisor is … a supervisor that is not a percipient witness, wasn’t at scene, not aware of what is going on, versus an involved supervisor that was at scene when an incident occurred.” (AR 179.) O’Brien also testified that if a supervisor witnesses what they believe is misconduct or potential misconduct, that supervisor has a duty to stop and report it. (AR 186.) The supervisor’s duty to report is triggered “regardless of what the relationship is with any of the parties.” (AR 195.)

The Board of Rights found that the statute of limitations did not bar either count against Petitioner because Sergeant Linder, who witnessed the alleged misconduct, was not an “uninvolved supervisor” and therefore he did not have a duty to file a formal complaint against Petitioner. (AR 239.) Because an “uninvolved supervisor” did not learn of the alleged misconduct until May 28, 2021, the Board of Rights found that the disciplinary charges were timely filed. (Ibid.) Turing to the merits, the Board of Rights found Petitioner guilty of both counts and recommended a three-day suspension as a penalty, which was imposed by the Chief of Police. (AR 240-242, 290.)

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 the three-day suspension concerns a fundamental vested right in Petitioner’s employment with Department, 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 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.)

Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that the weight of the evidence does not support the administrative findings. (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.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)

On questions of law arising in mandate proceedings, the court exercises independent judgment. (See Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. 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 L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Petitioner argues that this action was untimely under the Public Safety Officers Procedural Bill of Rights Act (“POBRA”), which states in relevant part as follows:

[N]o punitive action . . . 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.

(Gov. Code § 3304(d)(1).) A suspension is a “punitive action” for purposes of the statute. (Gov. Code § 3251(c).) “The one-year period begins to run upon the discovery by a person authorized to initiate an investigation of an allegation of misconduct.” (Pedro v. City of Los Angeles (2014) 229 Cal.App.4th 87, 101.)

Petitioner does not demonstrate that this action was untimely under POBRA. Petitioner argues: “In this instance, two supervisors of the LAPD were present when the 2019 conduct occurred, both Sergeant Williams and Sergeant Linder. Both were persons authorized to initiate an investigation.” (Opening Brief (“OB”) at 11:20-22.) This is an unsupported assertion; there are no citations to the record, which is problematic. (See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991), recognizing that “[j]udges are not like pigs, hunting for truffles buried in the briefs [or the record].”) It is undisputed that officers have an obligation to “report” misconduct. (See, e.g., AR 67-71, 186.) But Petitioner does not establish that Sergeant Linder was “authorized to initiate an investigation,” which is what the statute requires in order to trigger the deadline. This is even less clear with respect to Sergeant Williams, who was only a Police Officer II and not a Sergeant at the time of the alleged incident.

Petitioner does not cite any LAPD policy making clear whether a Sergeant II who witnessed the underlying incident has authority to initiate an investigation. Petitioner’s current counsel represented her before the Board, and at no point did he ask Sergeant Linder whether he had such authority.

Petitioner’s counsel argues that “Sergeant Linder testified that he did not initiate an investigation because he did not believe, at the time, that misconduct had taken place,” again failing to cite to the administrative record. (OB 11:27-28.) This is a mischaracterization of Sergeant Linder’s testimony. In fact, Sergeant Linder testified only that he did not report the misconduct because he did not think it significant:

Q: You didn’t think it was so significant that your lieutenant, or captain, or anyone else in the chain of command needed to be notified; is that accurate?

(AR 71:22-72:4.) Sergeant Linder did not suggest in this testimony that he had authority to initiate an investigation. To the contrary, the fact that Sergeant Linder would have had to report the incident to a supervisor suggests that he did not, in fact, have authority to initiate an investigation. The fair inference from Sergeant Linder’s testimony is that such authority rested with his and Sergeant French’s supervisor.

Petitioner’s counsel argues that “[A]s supervisors, Sergeants have the authority to initiate complaints.” (OB 9:8-9.) That is not the standard. Filing a “complaint” is different than having authority to initiate an investigation.

Respondent’s counsel argues that POBRA does not apply because the LAPD did not discover the misconduct, i.e., because Sergeant Linder was an “involved” supervisor. The Board suggests that Sergeant Linder could only have initiated an investigation had he been “uninvolved.” (See AR 239.) This is supported by the testimony of Detective O’Brien. In the context of discussing the statute of limitations, he implied that an uninvolved Sergeant may initiate an investigation:

Q: Now, in this current case involving [Petitioner], why did the statute date not start when Sergeant Linder was involved?

A: From my recollection, Sergeant Linder was an involved supervisor; and at no point was it reported to any other supervisor.

Q: Can you explain the difference between an involved and an uninvolved supervisor?

A: So an uninvolved supervisor is going to be a supervisor that is not a percipient witness, wasn’t at the scene, not aware of what is going on, versus an involved supervisor that was at the scene when an incident occurred.

(AR 179:5-17.) Petitioner’s counsel attempts to argue that Sergeant Linder was uninvolved, but that argument is not supported by the record. Sergeant Linder was a percipient witness.

In sum, it is Petitioner’s burden to demonstrate that the Board was incorrect in finding this action was timely. Petitioner argues that it was untimely based upon the POBRA but does not develop a record that the officers who witnessed the event—Sergeant Linder and then-Police Officer II Williams—were “authorized to initiate an investigation” of Sergeant French’s alleged misconduct. To the contrary, the record suggests that Sergeant Linder was not authorized to initiate an investigation. Therefore, the court denies the petition for writ of mandate on this basis.

Count One—which alleged that Petitioner inappropriately kissed Officer Gonzalez—was based on alleged violations of Department Manual section 210.35, titled “Conduct Unbecoming An Officer,” and Department Manual section 271, titled “Relationships Between Department Employees.” (See AR 12-14; see also AR 301, 294.) However, the Board made no finding that Petitioner violated section 271. (See AR 238-241.) Nor could the Board have done so. Section 271 pertains to a relationship between a superior and subordinate officer that could give rise to a conflict of interest. Section 271 does not prohibit such a relationship, but rather requires it to be reported up the chain of command. Section 271 does not prohibit or pertain to interactions, such as an off-duty kiss, that do not result in or arise from a relationship. It was undisputed that Petitioner and Officer Gonzalez had no prior or subsequent personal relationship. (See AR 95-96.) Accordingly, there is no basis to sustain the charge for any violation of section 271.

The Board made no express finding that Petitioner and Officer Gonzalez’s kiss violated section 210.35. (See AR 238-241.) Rather, it appears as though the Board based its decision on the concept that the kiss constituted “conduct unbecoming an officer” under this section. (See AR 240 [finding that Petitioner’s conduct “reflect[ed] unfavorably” on Petitioner and/or Department].) Section 210.35 states, in pertinent part: “Since the conduct of officers, on- or off-duty, may reflect directly upon the Department, officers must at all times conduct themselves in a manner which does not bring discredit to themselves, the Department, or the City.” (AR 301.)

The court finds that the weight of the evidence does not support the Board’s finding that this interaction constituted conduct unbecoming an officer. As an initial matter, it is unclear whether Petitioner intended the interaction to be anything more than a “side kiss.” Officer Gonzalez testified that he decided to kiss Petitioner on the lips because “she was an attractive female.” While Sergeant Williams testified that both were “moving in closer together,” Petitioner testified that she frequently “side kissed” colleagues. Thus, it is unclear whether Petitioner intended to do anything more than “side kiss” Officer Gonzalez. The court interprets a “side kiss” as two people embracing and pressing their cheeks together while making a kissing sound.

Regardless, even assuming Petitioner intended to kiss Officer Gonzalez on the lips, there was no violation of section 210.35. This section prohibits conduct that is “excessive, unwarranted, or unjustified” that may “bring discredit to themselves, the Department, or the City.” (AR 301.) The kiss did not satisfy this standard. Officer Gonzalez testified that it was a “quick peck” on the lips. (AR 97:12-18.) Sergeant Williams testified that it was “a peck on the lips barely.” (AR 28-30.)[2] Whereas such a kiss while on-duty may give rise to issues, this kiss occurred: (1) While the officers were off-duty; (2) While the officers were out-of-uniform; (3) While the officers were in a different county; and (4) While the officers were at a social event where it was acceptable to drink alcohol. Finally, the court notes that Sergeants Linder, Williams, and Gonzalez all believed, at the time, that there was no misconduct to report. (See AR 41-42, 71-72, 95-96.)[3]

Respondents’ counsel argues that “[p]ublic displays of affection, especially between a supervisor and a subordinate, can make other employees feel uncomfortable ….” (Oppo. 8:8-12, citing AR 40, 61, 115, 142, 147, 152, 178, 204, 211.) In the abstract, that statement may be true, e.g., when it occurs in the workplace. However, Respondents do not cite any testimony related to section 210.35 or the circumstances, if any, in which a consensual off-duty “peck” under these circumstances may be bring “discredit” on the officers or Department within the meaning of section 210.35. Further, the fact that no one reported the “peck on the lips” until May 28, 2021—only after Petitioner filed a complaint against other officers and they, in turn, raised the issue—further supports the court’s finding that the incident was inconsequential and did not bring discredit on Petitioner or Department. (See AR 40-41, 61, 178, 191.)

Based upon the foregoing, the court finds that the weight of the evidence does not support the Board’s finding that Petitioner is guilty on Count One. Therefore, the court grants the petition on this basis. The court need not address Petitioner’s due process arguments concerning Count One.

Count Two is predicated on Petitioner’s alleged verbal abuse of Sergeant Linder and Officer Sal Cervantes. The court finds that the weight of the evidence does not support the Board’s finding that Petitioner is guilty on Count Two. Sergeant Linder testified that Officer Sal Cervantes was a witness to all of the alleged misconduct:

A: Sitting on the bus, we were sitting across from another officer, Sal Cervantes, and Sal kind of watched what was going on with me. And after a while, I had enough, so I was like, okay, I’m going to switch seats. So Sal offered to switch seats.

Let me backup a little bit. The way we were seated on the bus, I had [Petitioner] all the way up against the window. I figured at some point she would fall asleep, so I sat along the aisle to keep her, for lack of a better phrase, contained in one spot.

So as she would berate me, I would start go get more and more upset, so I had enough. So Sal, who was sitting across the aisle said, “I will take your spot.” So I stood up and I walked back several rows and I sat in a row by myself. And Sal sat up and sat with [Petitioner].

(AR 56:4-23.) Cervates testified that he did not observe anything Sergeant Linder reported:

Q: At any point in time, did you ever observe [Petitioner] berating Sergeant Linder?

Q: At any point in time, did [Petitioner] ever berate you or speak to you in an inappropriate manner?

(AR 36:15-21.) The court credits this testimony from Officer Cervantes. The Board apparently discredited Officer Cervantes’ testimony but provided no reason to disbelieve him. (See AR 241-242.) It is undisputed that Sergeant Linder did not report this incident in 2019, suggesting that it did not rise to the level of reportable misconduct. Moreover, the long passage of time between the alleged incident in 2019—the exact date of which was uncertain—and the Board hearing in June 2023 raises questions concerning the exact context of any statements and whether they rose to the level of actionable misconduct.

Based upon the foregoing, the court finds that the weight of the evidence does not support the Board’s finding that Petitioner is guilty on Count Two. Therefore, the court grants the petition on this basis. The court need not address Petitioner’s due process arguments concerning Count Two.

2. The court issues a writ of mandate vacating the hearing officer’s decision and ordering that the administrative disapproval be removed from LAPD Sergeant II Darcy French’s personnel file and any other documents that are used to make personnel decisions.

[1] Petitioner was previously known as Darcy French Cornwell.

[2] The court credits this testimony over that of Sergeant Linder, who was not certain a kiss occurred, or Officer Evans, who testified that the kiss lasted two seconds.

[3] The court need not consider whether Petitioner’s alcohol consumption was excessive. Count One was not predicated on that issue.