Judge Stephen I. Goorvitch, Case Number: 24STCP01262, Date: 2024-10-28 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP01262, Date: 2024-10-28 Tentative Ruling

Christian Rivas (“Rivas” or the “Real Party”) was a bus driver for the Los Angeles Unified School District (the “District” or “Petitioner”). Rivas tested positive for cocaine but did not inform the District of the results and continued to drive students. Rivas argued that he did not use cocaine but drank tea from South America containing coca leaves which produced a false positive result. The District learned for the test results and terminated Rivas. Rivas appealed his termination and the hearing officer denied the appeal. The hearing officer found that Rivas did not prove he drank tea containing coca leaves and even if so, it was still a violation of policy to report to work with any drug in his system. (AR 43.) The Personnel Commission of the Los Angeles Unified School District (the “Commission”) adopted the hearing officer’s findings, including the findings of fact, and agreed that Rivas “committed punishable offenses for which some form of discipline is warranted.” (AR 3.) However, the Commission found that that termination was too severe and ordered reinstatement without backpay. (AR 3-4.) The District now appeals that decision to this court. The court finds that the Personnel Commission erred. The District has a non-discretionary policy that requires suspension and termination of any employee who tests positive for drugs or violates any federal regulation, e.g., transportation regulations. The Commission expressly stated that the policy is not deficient. (AR 4.) The policy itself affords no discretion. Therefore, having adopted the hearing officer’s findings, the Commission had a ministerial duty to follow this policy and had no authority to order a lesser penalty. Therefore, the writ for petition of mandate is granted.

Rivas was hired as a light bus driver by the District on or about November 19, 2019. (AR 700.) As such, Rivas was responsible for safely driving children to and from school in a small commercial bus. (AR 700-701.) Rivas was designated as a covered employee performing safety-sensitive functions and was subject to the Department of Transportation’s (the “DOT”) and the District’s Drug and Alcohol Testing Program. (AR 154-156.)

B. The District’s Drug and Alcohol Testing Policy and the Clearinghouse Database

The District’s Covered Employee Drug and Alcohol Testing Policy Guide (the “Policy Guide”) has been in effect since at least October 2018. (AR 155.) The District’s drivers receive a copy of the Policy Guide at new-hire orientation. (AR 729.) The Policy Guide states that covered employees will be subject to drug and alcohol testing by the District at the following times: pre-employment; random testing; post-accident; and if a supervisor has a reasonable suspicion of a violation of the drug and alcohol policy. (AR 158.) As relevant to this writ petition, the Policy Guide also includes the following provision:

Return to Duty drug and alcohol testing is not included in the District’s policy…. It is District policy that any covered employee who has a verified positive drug or alcohol test, or has been involved in any other activity that violates the Federal regulations or any of the other policies stated in this manual, including refusal to submit to testing, will be immediately suspended and subsequently dismissed from District service. Therefore, it is District policy not to provide for Return to Duty testing.

On or about February 11, 2020, Rivas was notified of new regulations from the Federal Motor Carrier Safety Administration (the “FMCSA”) requiring the District to check, annually and at time of hire, whether the FMCSA’s Driver’s License Drug and Alcohol Clearinghouse (the “Clearinghouse”) has any information about drug and alcohol program violations of covered employees. (AR 28.) Rivas signed a written consent authorizing the District to conduct such limited queries from the Clearinghouse. (AR 139.)

During the summer recess of 2021, Rivas underwent a pre-employment drug test for a different DOT-regulated employer. (AR 29, 31, 141.) On August 10, 2021, Rivas testified positive for cocaine. (Ibid.) Rivas was not hired and the positive test was entered into the Clearinghouse. (AR 28, 141.) Within a few weeks after this positive test, Rivas returned to work for the District. (AR 28.) Rivas did not inform the District of his positive test and drove children to and from school. (AR 28-29.) On September 8, 2021, the District learned of the positive drug test after running an annual query of the Clearinghouse. (AR 31.) On that same date, Rivas was removed from his route and the District commenced proceedings to terminate Rivas’ employment. (Ibid.) The District dismissed Rivas from employment on November 10, 2021. (AR 31.)

Rivas appealed the termination decision to the Commission, and an evidentiary hearing was held before a hearing officer on March 29, 2023. (AR 28.) The parties stipulated to the following facts:

1. [Rivas]’s name was found in the Clearinghouse Database and was identified as having tested positive for cocaine.

2. [Rivas]’s drug test identified in the Clearinghouse came from a different employer as part of a DOT pre-employment procedure.

3. The pre-employment test was conducted on August 4, 2021, with the positive result being reported on August 10, 2021.

4. The District was not notified of the positive test by [Rivas]. The District became aware of [Rivas]’s positive drug test when they conducted the annual query of the Clearinghouse Database on September 13, 2021.

5. The pre-disciplinary meeting was held on September 15, 2021, and the Skelly meeting was held on September 28, 2021.

The hearing officer also heard evidence of various other matters, including Rivas’ testimony. (AR 39-42.) Rivas testified that he has never used cocaine and that the test results must have come from drinking a tea from South America made with coca leaves. (AR 39-42.) Rivas presented expert testimony that drinking this tea will produce false positive results. (AR 40.)

On August 16, 2023, in a proposed decision, the hearing officer recommended that the Commission sustain the termination. (AR 27-45.) As relevant to this writ petition, the hearing officer found that “the District’s policy … does not provide for a procedure to return to duty after a positive drug test” and “the District’s policy is valid.” (AR 39.) The hearing officer rejected Petitioner’s defense:

First, it is very important to note that zero documentation was provided by [Rivas] to substantiate his claim that he drank this “subject tea.” [Rivas] never provided a sample of the tea and its packaging, never provided evidence that such tea was sold in Pasadena and was made from coca leaves and/or contained cocaine, nor a receipt of purchasing the tea nor any other verification that he consumed the tea on a regular basis. In other words, other than his testimony, [Rivas] did not provide any evidence that he drank tea made from coca leaves.

Second, the drug test reported results of cocaine use. [Rivas] did not meet his burden to establish that his indigestion [sic] of cocaine was unintentional or the result of accidentally consuming the “subject tea.”

Third, the unintentional consumption of a controlled substance, whether in the from of a tea or in the form of a gummy bear – for example, is a violation of Section 382. Nowhere in Section 382 is there a requirement of intent. Reference to violations solely focus on “uses” and on the fact that an employee “tests positive.” Here, both of these standards are met. Even if one were to believe that [Rivas] accidentally or unknowingly consumed a tea with coca leaves resulting in a positive test for cocaine, [Rivas] has still violated the rules.

(AR 43, emphasis and footnotes omitted.) The hearing officer also found that Rivas did not “meet his burden to prove that his consumption was not willful.” (Ibid.)

Given the safety-sensitive nature of driving children in a school bus, it is not sufficient for [Rivas] to only testify that he has been drinking “teas” from a “store in Pasadena.” This is not enough. It is not unreasonable for the District to disregard an employee’s positive test for cocaine simply on the grounds that they [sic] drank some South American tea.

On October 19, 2023, the Commission apparently granted Rivas’s appeal, although it did not issue a final written decision. (AR 18-21, 124, 782.) On November 8, 2023, the District filed a request for reconsideration, which Rivas opposed. (AR 17-21, 784-790.) On February 8, 2024, the Commission issued its final order, by a 2-1 vote, sustaining the appeal and reinstating Rivas without backpay. (AR 3-5, 124.) In its final order, the Commission adopted the hearing officer’s findings, including the findings of fact, and agreed that Rivas “committed punishable offenses for which some form of discipline is warranted.” (AR 3.) The Commission also expressly stated that the “No Return to Duty” policy is not deficient. (AR 4.) Nevertheless, the Commission found that the penalty was too severe and ordered reinstatement without backpay. (Ibid.)

The petition for writ of mandate is brought pursuant to Code of Civil Procedure section 1085. (See Petition for Writ of Mandate (“Pet.”) ¶¶ 43-47.) There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and

(2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where, as here, the claim is that an agency has failed to act as required by law.” (Id. at 705.) “Generally, mandamus is available to compel a public agency’s performance or to correct an agency’s abuse of discretion when the action being compelled or corrected is ministerial.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.)

Normally, mandate will not lie to control a public agency’s discretion, that is to say, force the exercise of discretion in a particular manner. However, it will lie to correct abuses of discretion. In determining whether a public agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency's action, its determination must be upheld. A court must ask whether the public agency's action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.

(County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 654.)[1] The court exercises independent judgment on questions of law arising in mandate proceedings. (See Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)

Petitioner requests that the court take judicial notice of Personnel Commission Rule 904. Rivas does not oppose that request. Therefore, the request is granted.

Petitioner contends that the Commission “exceeded its authority” by “negating” the District’s policy that “does not allow employees who have violated federal regulations to return to their position as a driver.” (Pet. ¶¶ 44-45; see also OB 10-12.) Rivas does not challenge the findings, including the findings of fact, or the Commission’s finding that the “No Return to Duty” policy is not deficient. Accordingly, the court finds that the Commission did not have authority to deviate from the policy.

Generally, “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.” (Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 966.) However, “[a] public entity has a ministerial duty to comply with its own rules and regulations where they are valid and unambiguous.” (Gregory v. State Board of Control (1999) 73 Cal.App.4th 584, 595.) “[A] ‘published procedure’ adopted by a public entity which provides that the public entity will do a certain thing … can provide the basis for a ministerial duty that may be enforced by means of a writ of mandate.” (Galzinski v. Somers (2016) 2 Cal.App.5th 1164, 1172-1173, discussing Pozar v. Dept. of Transp. (1983) 145 Cal.App.3d 269, 271.)

Here, the District’s Policy Guide includes a “No Return to Duty” provision, which imposes immediate suspension and subsequent termination for any employee who has a verified positive drug test or engaged in any activity that violates federal regulations, e.g., DOT

regulations. (AR 159.) This policy has been published and in effect since at least October 2018. (AR 155.) The District’s drivers receive a copy of the Policy Guide at new-hire orientation. (AR 729.) The District’s return to duty policy is authorized by section 40.305 of title 49 of the Code of Federal Regulations, which states that an employer is “not required to return an employee to safety-sensitive duties because the employee” has completed a return to duty test and “[t]hat is a personnel decision that you have the discretion to make, subject to collective bargaining agreements or other legal requirements.” (49 CFR § 40.305(b).) In its decision, the Commission acknowledged that the District’s return to duty policy is valid and not deficient “in any respect,” and that the District “has unquestioned authority to implement personnel policies governing classified employees.” (AR 4.) The Commission also did not identify any ambiguity in the return to duty policy as applied to the facts of this case.

Exercising its independent judgment on the legal issue, the court concludes that the return to duty policy mandates the dismissal of Rivas. The policy states:

It is District policy that any covered employee who has a verified positive drug or alcohol test, or has been involved in any other activity that violates the Federal regulations or any of the other policies stated in this manual, including refusal to submit to testing, will be immediately suspended and subsequently dismissed from District service.

(AR 159 [emphasis added].) As noted, the hearing officer found that Rivas violated sections 382.213 and 382.215 of title 49 of the Code of Federal Regulations when he engaged in safety-sensitive functions after using cocaine during the August 2021 school recess and after testing positive for cocaine use. Moreover, Rivas did not inform the District of his positive drug test before he started driving the school bus against after the school recess. The Commission did not overturn those findings. Accordingly, based on its plain language, the return to duty policy mandates the dismissal of Rivas and precludes any exercise of discretion or consideration of mitigating factors.

Rivas cites Education Code section 45260, which provides that the Commission “shall prescribe, amend, and interpret, subject to this article, such rules as may be necessary to insure the efficiency of the service and the selection and retention of employees upon a basis of merit and fitness.” (Oppo. 11.)[2] However, Rivas does not develop any argument that section 45260, or any other statute, authorized the Commission to disregard a binding employment policy of the District.

Rivas also tries to limit the “No Return to Duty” policy to exclude tests conducted by third parties and test results from the Clearinghouse Database. Rivas argues:

Given that it was written in 2018, two years before the Clearinghouse Database was effective and the District was required to participate in, the Policy does not refer to the Clearinghouse Database nor does it address testing given by third-party companies. Even the LAUSD admitted its policy was written to address its District testing policy, and not the Clearinghouse database policy, and did not give guidelines as to what the policy would be for a positive result or the use of SAP [Substance Abuse Professional program].

(Oppo. 12, citing AR 849.) The court agrees with the hearing officer finding, which the Commission adopted: “[T]he District policy is clear, its does not provide a return-to-duty. There is no distinction between a drug test conducted by the District or a drug test conducted by another employer.” (AR 45.)

“A public entity has a ministerial duty to comply with its own rules and regulations where they are valid and unambiguous.” (Gregory v. State Board of Control (1999) 73 Cal.App.4th 584, 595.) The policy is clear: Anyone who tests positive for drugs “will be” terminated. The Commission expressly adopted the hearing officer’s findings, including his findings of fact. The policy affords no discretion as to the penalty. The Commission expressly found that the District has authority to enact such a policy and that the policy is not deficient. Based upon the foregoing, the court finds that the Commission had a ministerial duty to follow the District’s policy.

The court has considered Rivas’ remaining arguments but none is persuasive. The court need not address Petitioner’s remaining arguments in order to rule on this petition for writ of mandate.

2. The court shall issue a writ directing the Commission to set aside its decision of February 8, 2024, and to enter a new decision sustaining the termination of Rivas’ employment as a Light Bus Driver.

3. The court declines to issue a declaratory judgment because Petitioner has an adequate remedy by way of the writ proceeding. (See General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470-471; Hood v. Sup.Ct. (1995) 33 Cal.App.4th 319, 324.)

[1] Petitioner and Rivas apparently agree that the petition is governed by Code of Civil Procedure section 1085. (See Opening Brief (“OB”) 7-8; Oppo. 8-9.) Neither party has argued that the petition should be governed by section 1094.5 or that Petitioner must challenge the Commission’s decision in a petition for administrative mandate. The court questions whether the parties are correct. Regardless, Rivas stipulated to the essential facts (AR 29), and Petitioner raises purely legal questions regarding the validity of the Commission’s procedures and decision. Therefore, the outcome would be the same under either analysis.

[2] Petitioner and Rivas both cite to Education Code section 45621, but that provision does not exist. (See OB 11; Oppo. 11.) Based on the statutory language, it appears they meant to refer to section 45260.