On 10/11/2016 RENNA CHEY filed an Other - Writ Of Mandamus lawsuit against LOS ANGELES COUNTY CIVIL SERVICE COMMISSION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES C. CHALFANT. The case status is Other.
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
JAMES C. CHALFANT
LOS ANGELES COUNTY CIVIL SERVICE COMMIS-
LOS ANGELES COUNTY OF
DOES 1 THROUGH 50
LOS ANGELES COUNTY SHERIFF'S DEPARTMENT
SHINEE RICHARD A. ESQ.
MELLK GIDIAN RACHEL
HOUSE CALVIN RICHARD
1/11/2018: Minute Order
5/10/2018: Minute Order
10/25/2018: Minute Order
4/9/2019: Minute Order
4/19/2019: Minute Order
4/22/2019: Notice of Ruling
10/11/2016: VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS PURSUANT TO C. C.P.1O94.5; ETC
10/14/2016: NOTICE OF TRIAL SETTING DONFERENCE & ATTACHED ORDERS THEREON
11/8/2016: PROOF OF SERVICE SUMMONS
11/8/2016: PROOF OF SERVICE SUMMONS
11/8/2016: PROOF OF SERVICE SUMMONS
3/14/2017: NOTICE OF RULING AT TRIAL SETTING CONFERENCE; NOTICE OF HEARING AND BRIEFING SCHEDULE
7/31/2017: OPPOSITION BY REAL PARTY IN INTEREST TO PETITION FOR PEREMPTORY WRIT OF ADMINISTRATIVE MANDATE
8/11/2017: AMENDED OPPOSITION BY REAL PARTY IN INTEREST TO PETITION FOR PEREMPTORY WRIT OF ADMINISTRATIVE MANDATE
8/14/2017: NOTICE OF LODGING JOINT APPENDIX VOLUME 1- 2
8/14/2017: NOTICE OF LODGING ADMINISTRATIVE RECORD, VOLUMES 1-8
10/2/2017: DECLARATION RE: OBJECTIONS TO [PROPOSED] ORDER
Notice of Ruling; Filed by Renna Chey (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 85, James C. Chalfant, Presiding; Hearing on Ex Parte Application (for a Hearing Date and Briefing Schedule to Address Findings of the Civil Service Commission on Remandet al.) - HeldRead MoreRead Less
Minute Order ( (Hearing on Ex Parte Application for a Hearing Date and Briefi...)); Filed by ClerkRead MoreRead Less
Ex Parte Application (Petitioner Renna Chey's Ex Parte Application for a Hearing Date and Briefing Schedule to Address Findings of the Civil Service Commission on Remand: et al.); Filed by Renna Chey (Plaintiff)Read MoreRead Less
Supplemental Declaration (of Gidian R. Mellk in Support of Petitioner's Ex Parte Application for a Hearing Date and Briefing Schedule, et al.); Filed by Renna Chey (Plaintiff)Read MoreRead Less
at 1:30 PM in Department 85, James C. Chalfant, Presiding; Status Conference (after Remand) - HeldRead MoreRead Less
Minute Order ( (Status Conference after Remand)); Filed by ClerkRead MoreRead Less
at 09:30 AM in Department 85, James C. Chalfant, Presiding; Status Conference (after Remand) - Held - ContinuedRead MoreRead Less
Minute Order ( (Status Conference after Remand)); Filed by ClerkRead MoreRead Less
at 09:30 AM in Department 85, James C. Chalfant, Presiding; Status Conference (after Remand) - Held - ContinuedRead MoreRead Less
NOTICE OF FILING PROOFS OF SERVICE: PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUSRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
NOTICE OF TRIAL SETTING CONFERENCERead MoreRead Less
Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Renna Chey (Plaintiff)Read MoreRead Less
NOTICE OF TRIAL SETTING DONFERENCE & ATTACHED ORDERS THEREONRead MoreRead Less
Notice of Trial Setting Conference and Attached Orders Thereon; Filed by ClerkRead MoreRead Less
Notice of Trial Setting Conference and Attached Orders Thereon; Filed by ClerkRead MoreRead Less
Petition; Filed by nullRead MoreRead Less
VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS PURSUANT TO C. C.P.1O94.5; ETCRead MoreRead Less
Case Number: BS165813 Hearing Date: February 18, 2020 Dept: 85
Renna Chey v. Los Angeles County Civil Service Commission, BS165813
Tentative decision on petition for writ of mandate: denied
Petitioner Renna Chey (“Chey”) petitions the court for a writ of mandate to compel Respondent Los Angeles County Civil Service Commission (“Commission”) to set aside its decision on remand affirming the discharge of Chey.
The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.
A. Statement of the Case
Petitioner Chey commenced this proceeding on October 11, 2016, alleging a cause of action for administrative mandamus. The verified Petition alleges in pertinent part as follows.
At all relevant times, Petitioner Chey was employed by the Los Angeles County Sheriff’s Department (“Department”) as a deputy sheriff. On November 21, 2014, Chey was notified of the Department's intention to discharge him from his position as deputy sheriff. Chey exercised his right to respond. On December 17, 2014, Chey was notified that the Department was imposing the discipline of discharge.
In accordance with the Los Angeles County Civil Service Rules (“CSRs”), Chey was granted an evidentiary hearing in which to challenge his discharge. The matter was heard before a Hearing Officer over five days. On April 6, 2016, the Hearing Officer issued his "Recommended Decision, Findings of Fact, Conclusions of Law," recommending that Chey’s discharge be sustained.
On May 18, 2016, the Commission announced its proposed decision to accept the Hearing Officer’s findings and recommendations. Chey filed objections to the Recommended Decision. On July 20, 2016, Chey’s objections were argued in front of the Commission, which voted to overrule them. The Commission adopted a final decision to sustain the Department in the discharge of Chey.
Chey alleges that the Commission abused its discretion in sustaining his discharge, on the grounds that the Commission’s decision is not supported by the findings, and the findings are not supported by the weight of the evidence. Chey further alleges that the penalty of discharge is disproportionately harsh and excessive.
2. Course of Proceedings
On August 22, 2017, the court remanded the matter for the Commission to re-evaluate whether Chey made a false statement in his administrative interview and denied the Petition in all other respects.
On April 19, 2019, the court granted Chey’s ex parte application for a hearing date and briefing schedule to address the Commission’s findings on remand.
B. Standard of Review
CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.
CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999)20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). The independent judgment standard of review applies to administrative findings on guilt in cases involving a police officer’s vested property interest in his employment. Barber v. Long Beach Civil Service Comm’n, (1996) 45 Cal.App.4th 652, 658.
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.” Id. at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.
“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, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.
The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.
An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.
The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Commission, (“Lake”) (1975) 47 Cal.App.3d 224, 228. In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly v. State Personnel Board, (“Skelly”) (1975) 15 Cal.3d 194, 217-218. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, (1972) 7 Cal.3d 507, 515. The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions. Cadilla v. Board of Medical Examiners, (1972) 26 Cal.App.3d 961.
C. Initial Writ Proceeding Statement of Facts
1. Performance Evaluations
As of November 19, 2013, Petitioner Chey had been a deputy sheriff for seven years. He was rated as “competent” in his performance evaluation for October 2012 through October 2013. AR 342. He was described as professional in his interactions with the public and with his peers. AR 344. Chey was willing to do whatever was asked of him by his supervisors. AR 344.
Chey’s performance evaluation for October 2013 through October 2014 stated that Chey was consistently polite and humble. AR 340. Chey had a good working relationship with Metropolitan Transportation Authority (“MTA”) staff and supervisors. AR 340. He was described as respectful to his supervisors and got along with his peers. AR 340. He was calm, professional, and respectful with the public. AR 340.
2. November 19, 2013 Incident
On November 19, 2013, Chey responded to a call for assistance regarding a fight on a MTA bus. AR 605. Chey (670-Adam) got on the radio while at the scene and stated that the incident was not a fight, it was a “Code 4” (no further assistance necessary), verbal only. AR 900. Sergeant Randolph Springer (“Sgt. Springer”) (670-Sam) immediately corrected Chey and stated that the incident was a “[Penal Code] 594” (vandalism) with the suspect inside a nearby clothing store. AR 900.
Chey wrote a report for the November 19, 2013 incident describing the charge as “No Crime Vandalism.” AR 647. The report stated that there had been no damage to the bus’s front door bottom windows. AR 648. Chey stated that the No Crime Vandalism report was written upon a direct order from Sgt, Springer. AR 649. Chey stated that he responded to the call for a report of passengers fighting. AR 649. The bus driver, Bennie Villanueva (“Bus Driver”) stated that the subject, Tammy Dayton (“Dayton”), yelled at him and kicked the front door of the bus, causing the two bottom windows to pop out of the frame. AR 649-50. The Bus Driver said that the windows can be reinserted into the rubber frame. AR 650. Sgt. Springer located Dalton in the area and arrested her. AR 650. She claimed that the Bus Driver threatened her with a baseball bat and she kicked the door. AR 651. The Bus Driver said he did not make any threats towards Dayton. AR 651. The MTA is “non-desirous of prosecution or a report taken of the incident” due to no permanent damage to the windows on the bus door. AR 651. Chey also stated that Deputy Perez took Dayton in on a Welf. & Inst. Code section 5150 (“section 5150”) hold on the direct order of Sgt. Springer. AR 651. Chey determined that no crime occurred, only a verbal disturbance. AR 651.
Deputy Gabriel Perez wrote a one-page 5150 incident report for the events of November 19, 2013. Drayton was held under section 5150. AR 607.
As a result of Drayton’s vandalism, the bus’s door glass was loose and required repairs. AR 621.
3. November 25, 2013 Incident
On November 25, 2013, a call was put out requesting a response to the North Hollywood MTA transit station. AR 776. A drunken passenger had fallen from a bus and hit his head on the sidewalk and was transported to St. Joseph’s Hospital. AR 778. Security Assistant (“SA”) Nadia Mejorada (“SA Mejorada”) reported in her daily worksheet that a transit passenger had fallen from a bus had was transported to St. Joseph’s. AR 768. SA Vardui Sultanyan (“SA Sultanyan”) reported in his daily worksheet that the Fire Department had responded to transport the drunken passenger. AR 771.
An unknown person contacted Dispatch at 5:13 p.m. stating that the passenger had been transported to St. Josephs. AR 908. The incident was declared a Code 4 (further assistance unnecessary). AR 908.
Chey called Chatsworth Dispatch seeking more information regarding the call. AR 874. He stated that he had just learned from his sergeant that the call involved a passenger that “fell on his head on the bus”, but when he got to the scene they put out a Code 4. AR 874. Dispatch informed Chey that the passenger fell, and was transported to St. Joseph’s Hospital. AR 874. Dispatch stated that the call had been updated with that information. AR 875. Chey stated that it took him a while for him to get from Chatsworth to North Hollywood for the call, that he tried to “get them” on the radio and they never answered, and so he cleared the call. AR 875. He just found out five minutes earlier that there was more to it and the guy fell on the bus. AR 875. Chey said he was now trying to do a follow-up because he is off at 10:00 p.m. AR 875. Dispatch replied that the call was updated at 7:33 p.m. AR 876. Chey stated that it was now almost 9:00 p.m., he is off at 10:00 p.m., and he can do a follow-up but would not be able to finish by 10:00 p.m. AR 876.
4. The Investigation
a. Request for Investigation
On December 5, 2013, Sgt. Springer requested a Supervisory Inquiry of Chey. AR 548. Sgt. Springer stated that on November 19, 2014 he responded to the scene of a reported vandalism incident. AR 548. He was informed that a passenger became angry for no apparent reason and kicked out the windows of a bus. AR 548. LAPD believed the passenger was contained in a nearby clothing store. AR 548. Sgt. Springer went to the clothing store, where LAPD said they believed the suspect was in the clothing store. AR 548. While at the scene, Sgt. Springer received another priority call concerning a fight on a bus, and left to respond to that call after confirming that Chey was a short distance away and almost on the scene. AR 548. Sgt. Springer confirmed with LAPD that its officers would hold the scene until Chey arrived. AR 548. Sgt. Springer then left for the other call. AR 548.
Sgt. Springer cleared the other call and returned to the vandalism call. AR 548. Before arriving on scene, Springer heard Chey state on the radio that there was no vandalism, and that the suspect was gone before he arrived. AR 548. Sgt. Springer immediately responded on the radio that a vandalism did occur, and that LAPD officers were searching for the suspect inside a clothing store. AR 548.
When Sgt. Springer arrived at the scene, Chey was speaking with the Bus Driver and his supervisor, Mr. Chavez (“Bus Supervisor”). AR 549. Chey stated that he believed no vandalism occurred because the windows were not broken. AR 549. Sgt. Springer corrected Chey and stated that the incident was vandalism because of the cost for mechanics to place the windows back in the frame and the cost of taking the bus out of service. AR 549. Chey then stated the MTA did not want to prosecute. AR 549. Sgt. Springer replied that neither the Bus Driver nor the Bus Supervisor could make that determination. AR 549. Sgt. Springer instructed Chey to take a vandalism report. AR 549.
Sgt. Springer then went to the clothing store and encountered the female suspect (Dayton). AR 549. After speaking with her, Sgt. Springer determined that she was mentally ill. AR 549. Springer asked Chey to bring the Bus Driver to identify the suspect, and Chey said that the Bus Driver had already left the scene. AR 549. Sgt. Springer instructed Chey to place the suspect on a 72-hour mental evaluation hold due to her delusions about the Bus Driver and his alleged membership in a gang in the 1980s. AR 549.
Deputy Perez conducted a mental evaluation of the suspect. AR 549. Perez determined that she was mentally ill. AR 550. Perez detained the suspect for an evaluation. AR 550.
The following week, Sgt. Springer received Chey’s report on the incident. AR 550. The report was labeled “No Crime Vandalism” and contained several inaccurate statements: (1) Chey’s report stated that there was no vandalism because the windows were not broken; (2) Chey stated that the MTA did not desire prosecution; and (3) Chey stated that Perez detained the suspect based on Sgt. Springer’s order, when in fact Perez conducted his own mental health assessment. AR 550. Sgt. Springer believed that Chey’s report was insubordinate, motivated by Sgt. Springer’s direction to write a vandalism report. AR 550. The report also contained false statements. AR 550.
On November 25, 2013, SAs Mejorada and Multanyan requested assistance at the North Hollywood PAX regarding a drunken bus patron causing a disturbance. AR 551. Deputy Chey and Springer both responded to the call. AR 551. Prior to their arrival, the SAs stated that the person had fallen, and paramedics were on the scene. AR 551. The SAs said that deputy personnel were needed for an injury report. AR 551.
Chey arrived at the call and left before Sgt. Springer’s arrival. AR 551. Chey contacted Springer to complain that “this is bullshit that the security assistants don’t acknowledge their radios” and he was tired of it. AR 551. Sgt. Springer told Chey not to worry about the radio traffic and asked if he had contacted the SAs to ensure their safety. AR 551. Chey argued with Sgt. Springer that he was not there to babysit SAs and insisted that the SAs were not properly using their radios. AR 551.
When Sgt. Springer arrived, he contacted SAs Mejorada and Multanyan. AR 551. They informed him that Chey had approached them to determine the name of the drunken person, and the hospital to which he had been transported. AR 551. The SAs told Sgt. Springer that they gave Chey the information, and he left. AR 551. Sgt. Springer then called Chey and instructed him to call the watch commander with the information regarding the incident. AR 551. Chey stated that the SAs had the information and they should perform the task. AR 551. Sgt. Springer repeated his instruction that Chey needed to gather the information for a person injured report, and that he needed to give the information to the watch commander. AR 551.
Later, the watch commander, Lieutenant Maldonado, contacted Sgt. Springer for the person injured information. AR 551. The watch commander stated that, when he asked Chey for the information, Chey directed him to the SAs. AR 551. Sgt. Springer then called Chey and told him the watch commander wanted a person injured report. AR 552. Chey said he thought the person was just drunk and not injured. AR 552. Sgt. Springer instructed Chey to interview the SAs regarding the incident, ascertain which rescue crew transported the injured person, and which hospital treated the injured person. AR 552. Chey was then to go to the hospital and interview the drunken person, gather medical records, and get statements from the doctors. AR 552. Chey said he understood the instructions. AR 552.
Sgt. Springer realized that Chey could not get this completed by his end of watch at 10:00 p.m. He asked Lieutenant Maldonado if Chey could supply the information to the “EM” watch commander, Sgt. Smith. Lieutenant Maldonado agreed. AR 552. Sgt. Springer subsequently spoke to Chey and discussed whether the SAs were on duty the next day. Sgt. Springer told Chey to suppy the information to the EM watch commander, Sgt. Smith. AR 552.
Chey never contacted the watch commander or wrote a report on the incident. AR 552. Chey also never interviewed the SAs. AR 552. The SAs informed Sgt. Springer that Chey was blunt and curt when he initially responded to the incident. AR 552.
b. IAB Investigation
An IAB investigation was initiated on December 19, 2013. AR 560. The investigators were identified as both Lieutenant Albert Maldonado (“Lt. Maldonado”) and Lieutenant Chris Mouat (“Lt. Mouat”). AR 560.
i. Mireles Interview
LAPD Officer Mark Mireles (“Mireles”) was interviewed on June 23, 2014 by Maldonado. AR 690. Mireles responded to the incident on November 19, 2013. AR 690. The other patrons on the bus stated that the suspect had run into a clothing store across the street. AR 690. Mireles and his fellow officers contacted loss prevention at the store, and conducted a search to locate the suspect. AR 691. Mireles was unable to locate the suspect. AR 691.
Mireles was later interviewed by Lt. Mouat. AR 700. In that interview, Mireles stated that he broke down the search because Department deputies were coming in to take over. AR 700. Mireles believed that the search was complete, and the suspect was already gone from the building. AR 700.
ii. Anderson Interview
Deputy Ronald Anderson (“Anderson”) was interviewed by Lt. Maldonado on May 12, 2014. AR 724. Anderson recalled that Perez was present at the scene of the November 19, 2013 incident. AR 727. Anderson stated that he believed a vandalism occurred. AR 727.
iii. Villanueva Interview
The Bus Driver (Bennie Villanueva) was interviewed by Lt. Maldonado. AR 762. The Bus Driver stated that he informed the deputy on the scene that it was not up to him to decide whether to press charges. AR 762. The Bus Driver personally did not want to press any charges against the suspect because he suffered no bodily harm during the incident. AR 762. When asked whether he would have told a deputy that he did not want a report written, the Bus Driver reiterated that pressing charges was not up to him and the deputy would probably have to write a report because he (the Bus Driver) had to write a miscellaneous report himself. AR 762. He would have no reason to tell a deputy that he did not want a report written, and he did not recall ever doing so. AR 762-63. To support the fact that he did not, the Bus Driver said there was a big deal over whether the glass could be placed back in the frame and how much it would cost. AR 763.
iv. SA Mejorada Interviews
Lt. Maldonado interviewed SA Mejorada on an unstated date. AR 783. SA Mejorada was one of the SAs involved in the November 25, 2013 North Hollywood incident. AR 783. On that day, SA Mejorada was flagged by a bus driver who stated that she had a passenger asleep on her bus. AR 783. SA Mejorada and her partner, SA Sultanyan, went on the bus and woke up the passenger, who was intoxicated. AR 783. While the passenger was exiting the bus, he fell and hit his head. AR 783. SA Mejorada requested assistance when the passenger fell. AR 783. When the Fire Department responded, SA Mejorada assisted in calming the passenger and strapping him to a gurney for transport. AR 783.
When Chey arrived at the scene twenty to twenty five minutes later, SA Mejorada was in the kiosk updating her log. AR 785. At that time, SA Mejorada had the name of the passenger, where he had been transported, the engine that transported him, and the name of the Bus Driver. AR 785. When Chey arrived, he asked to which hospital the passenger was transported. AR 785. SA Mejorada stated that the information was “here” in her cite book. AR 785. Chey looked at SA Mejorada, and then slammed the door. AR 785. SA Mejorada said that Chey seemed mad. AR 785.
Lt. Mouat also interviewed SA Mejorada on an unstated date. AR 791. SA Mejorada stated that she had the information and got out her cite book to provide Chey with it when he slammed the door and left. AR 791. She therefore did not actually provide Chey with the information. AR 791.
v. SA Sultanyan Interviews
SA Sultanyan was interviewed by Lt. Maldonado on June 25, 2014. AR 794. SA Sultanyan was one of the SAs in the November 25, 2013 incident. AR 794. SA Sultanyan was contacted by a bus driver stating that there was a drunk person on the bus refusing to leave. AR 794. When the passenger left the bus, he fell and hit his head. AR 794. Sultanyan requested assistance, and an engine came to transport the passenger. AR 794.
Chey knocked on the kiosk door to be let in because the door to the kiosk was locked. AR 798. Chey was present for only a minute. AR 798. SA Sultanyan described Chey as having an attitude, or being angry. AR 797.
Chey asked “what is the engine number,” and what was the person’s name, and where he was transported. AR 794, 797. The SAs did not have the passenger’s name, but they did have the engine number and the hospital where the passenger was transported. AR 797. SAs Sultanyan and Mejorada answered all of Chey’s questions. AR 797. AR 797.
Chey never attempted to contact SA Sultanyan afterwards to obtain more information. AR 798.
vi. Sgt. Springer Interview
Sgt. Springer was interviewed by Lt. Mouat. AR 803. Sgt. Springer stated that on November 19, 2013, he heard Chey on the radio stating that the call was “Code 4,” that there was no vandalism, and that it was a verbal argument only. AR 803. Sgt. Springer immediately got on the radio to correct Chey, because he (Sgt. Springer) had seen the windows and knew they had been kicked out. AR 803.
When Sgt. Springer arrived on scene, he discussed the vandalism charge with Chey. AR 803. Chey was insistent that there was no vandalism because the window was not broken. AR 803. Sgt. Springer explained that it was still vandalism because the windows would cost money to reinsert, and the damage had disrupted the bus schedule. AR 803. Chey then stated the MTA was “non-desirous” of prosecution and therefore no report was necessary. AR 803-04. Sgt. Springer explained that decision to prosecute could not be made by a bus driver or bus supervisor; the decision had to be made by a MTA executive. AR 803. Sgt. Springer instructed Chey to gather information for a vandalism report. AR 803.
Sgt. Springer then went to the store where the suspect had been contained. AR 804. He saw a female and engaged her in conversation. AR 804. The female admitted to kicking out the windows. AR 804. Sgt. Springer called Chey to ask for the Bus Driver, but Chey had already released the Bus Driver to go home. AR 804. Sgt. Springer needed the Bus Driver to identify the suspect because the vandalism was only a misdemeanor. AR 804.
After speaking with the suspect, Sgt. Springer believed she was mentally unstable and a danger to the public. AR 804. He asked Deputy Perez to take the suspect into custody on a section 5150. AR 804. Perez asked if he could do his own interview, and Springer agreed. AR 804. After the interview, Perez agreed that the suspect was mentally unstable and transported her to the hospital. AR 804.
Sgt. Springer was not aware that Chey ever wrote a report for the November 25, 2013 incident. AR 807. Sgt. Springer did not receive a report, and neither did Lt. Maldonado. AR 807. Sgt. Springer checked with the day shift sergeant, and he did not receive a report. AR 807. Sgt. Springer then contacted the SAs, who stated that Chey did not conduct any additional interviews. AR 807. They also complained that Chey was blunt and curt when he contacted them initially. AR 807.
Sgt. Springer contacted Mario Chavez (“Bus Supervisor”), the bus supervisor on the night of November 19, 2013. AR 807-08. Sgt. Springer did not audio or video tape his discussion with the Bus Supervisor. AR 814. He did not view the discussion as a formal inquiry, and was only gathering information. AR 814. The Bus Supervisor stated that he never informed Chey that he was non-desirous of prosecution. AR 808. The cost to repair the vandalism was $104.32. AR 808.
Sgt. Springer spoke with Officer Mireles, the LAPD officer at the scene on November 19, 2013. AR 809. Officer Mireles stated that the Bus Driver was not enthusiastic about catching the vandalism suspect because it was “not a big deal.” AR 809.
Sgt. Springer believed that by January 14, 2014 Lt. Maldonado performed a unit-level investigation into Chey’s conduct. AR 814.
vii. Chey Interview
Chey was interviewed by Lt. Maldonado on an unstated date. AR 820. Chey stated that, on November 19, 2013, the Bus Driver and Bus Supervisor both informed him that there was no damage to the bus. AR 821. The Bus Supervisor also stated that he was non-desirous of prosecution, and did not want a report. AR 821. Chey informed Sgt. Springer of these statements, and Sgt. Springer instructed Chey to write a report. AR 822. Chey wrote a report as ordered, but titled the report “No Crime Vandalism” because he did not believe the elements of a crime were present. AR 822. . Sgt. Springer approved his report. AR 824.
Chey understood the crime of vandalism to require permanent damage. AR 823. He was aware that a matter would be considered vandalism if it cost money to replace the item. AR 823-24. He was not aware when he wrote the report of the cost of repairing the bus windows. AR 824. In writing his report, he relied on the statement of the Bus Supervisor that there was no damage. AR 824-25. He recalled the Bus Supervisor said that he did not want to prosecute because the windows were designed to pop out, could be easily inserted, and the bus would be back in service the next day. AR 825.
Chey continued to insist that the Bus Supervisor informed Chey that he did not desire prosecution even when Lt Maldonado informed Chey that the Bus Supervisor denied making that statement. AR 826. Chey acknowledged that the Bus Driver could not make the determination regarding prosecution. AR 826.
While Chey was speaking with the Bus Supervisor, Sgt. Springer made contact with the suspect. AR 827. Chey then joined Sgt. Springer, and made contact with the suspect. AR 827. Chey spoke with her, and she claimed the Bus Driver tried to hit her with a baseball bat. AR 827. Chey then went back to speak with the Bus Driver, who denied saying that he would hit the suspect. AR 827.
When Chey arrived at the November 25, 2013 scene, no one was present. AR 839. He then went to the kiosk to speak with the SAs. AR 839. The SAs said that the paramedic was there and transported the person. They said they did not have the name of the passenger, did not have the engine number, and believed that the passenger was transported to a “St. John’s.” AR 839. Chey was not familiar with a St. John’s. AR 839. The SAs never mentioned that the passenger had fallen down and hit his head. AR 839. Chey did not know the passenger was injured. AR 839.
Chey did not write a report about the November 25, 2013 incident because he lacked sufficient information. AR 839. Chey stated that the SAs did not provide him with all of the information that he requested. AR 841. Any statement to the contrary was a lie. AR 841. Chey spoke with Sgt. Springer, who informed Chey of the passenger’s injury. AR 841. Chey called the desk to try and determine where the patient was transported and which engine transported him. AR 839. The desk did not have that information. AR 839.
Chey was then interviewed by Lt. Mouat on an unstated date. AR 850. Chey repeated his claim that the Bus Supervisor was non-desirous of prosecution, and that the window sustained no damage. AR 850. Chey wrote a No-Crime Vandalism report because he believed that was appropriate if the victim did not want to prosecute. AR 851. Chey had never before written a no-crime vandalism report, or seen anyone else write such a report. AR 851.
Lt. Mouat informed Chey that the SAs both claimed to have answered all of Chey’s questions, and that the necessary information was contained in the log clearances. AR 870. Chey stated that both SAs were lying. AR 870.
c. The Investigation’s Conclusion
There were four charges against Chey: (1) Chey failed to perform his duties on November 19, 2013 by failing to recognize, investigate, and report a crime of vandalism, failing to arrest the suspect, writing a “No Crime Vandalism” report, and failing to acknowledge that a criminal report should have been written even after reviewing Penal Code section 594 (vandalism); (2) Chey failed to perform his duties on November 25, 2013 by failing to thoroughly investigate a person injured on MTA property. failing to pay attention to information that was broadcast more than once, and failing to write a necessary report; (3) Chey failed to follow his supervisors orders on November 25, 2013 by failing to write a “Person Injured Report” and/or a “Bus/Rail Incident Report, and by failing to contact the watch commander and rely pertinent information for the watch commander’s log; and (4) On November 25, 2013 Chey failed to treat Department employees with respect by talking to SAs in a hostile or rude tone. AR 564-65.
The investigation determined that four charges against Chey were supported by the evidence. AR 564. Chey had failed to accurately recognize, investigate, and report a crime of vandalism on November 19, 2013. AR 564. Chey had failed to conduct a thorough investigation of a person injured on MTA property on November 25, 2013. AR 564-65. Also on November 25, 2013, Chey failed to write a report after being ordered to do so, failed to contact the watch commander after being ordered to do so, and interacted with SAs in a hostile and rude manner. AR 565-67.
The investigation report stated that Chey’s misconduct was severe. AR 567. Chey failed to properly report a vandalism crime, did not know what vandalism was, and failed to write a report at all for a person injured incident. AR 567. Chey included false information in his “No Crime Vandalism” report that the MTA was non-desirous of prosecution or a report of the incident. AR 567. Chey also made false statements during the IAB investigation when he told Lt. Mouat that he did not discuss with Sgt. Springer at the scene why Sgt. Springer thought the incident was vandalism. AR 568. Chey did not appear to have accepted responsibility for his conduct. AR 568. Chey had previous discipline on his record, a 15-day suspension in 2011 for false statements about whether he kissed an extremely intoxicated victim in a domestic violence case without her consent. AR 568.
5. The Discharge
On November 21, 2014, the Department notified Chey that it intended to discharge him from his position as deputy sheriff. AR 572. The discharge was based on the four charges listed above as well as two false statement charges: (5) falsely stating in his November 19, 2013 report that the MTA was non-desirous of prosecution and (6) falsely stating in his IAB interview with Lts. Mouat and Maldonado that the Bus Supervisor did not want to press charges and did not want a report written, that Sgt. Springer did not discuss with Chey at the scene his reasons why the incident was vandalism, and that no one gave him information about the hospital where the injured person was taken on November 25, 2013. AR 574-75.
On December 17, 2014, the Department sent Chey a letter notifying him that he had been discharged from his position as deputy sheriff, effective December 16, 2014, based on the six charges. AR 6-9.
6. The Hearing
a. Sgt. Springer
When Sgt. Springer arrived at the scene of the November 19, 2013 incident, he spoke with the Bus Driver, who stated that the suspect had kicked out two windows on the bus door. AR 960. Sgt. Springer determined very quickly that the incident was vandalism. AR 964. LAPD had gone after the suspect, who had fled into a nearby clothing store. AR 960. The suspect left her bags at the door of the store, and LAPD believed she was contained inside the store. AR 960. Springer asked the LAPD officers to maintain the scene, as Springer had to respond to another, higher-priority fight call. AR 960.
Sgt. Springer then responded to the other call. AR 961. While en route, the fight call was cancelled, and he turned around and returned to the initial scene. AR 961. While on his way back, Sgt. Springer heard a call put out that there was no crime and the suspect was gone (GPA). AR 961. Springer corrected that information on the radio because it was different from what he knew to be the case. AR 961. There was vandalism and the suspect was contained. AR 961.
When Sgt. Springer returned to the scene, he learned that LAPD had broken down containment. AR 961-62. The decision had been made by either LAPD or “our deputy” (Chey). AR 963. The resources expended to continue containment was not justified by the level of crime. AR 963. The vandalism had a very low dollar amount, and no one was injured. AR 963.
Chey stated that the incident was not vandalism because the window panes did not break, and they could be pushed back into place. AR 964. Springer explained to Chey that it was still vandalism because the bus service was disrupted, they had to take everyone off the bus, and the windows had to be replaced. AR 965. Springer instructed Chey to gather information for a vandalism report. AR 965.
Sgt. Springer then returned to the suspect’s bags, and encountered a woman who was taking them. AR 965. Sgt. Springer asked the woman why she kicked out the bus windows. AR 965. She responded that the bus driver was a member of a gang who had chased her previously. AR 965-66. The woman claimed the bus driver had a bat and tried to attack her. AR 966. Springer determined the woman to be delusional. AR 966. Because her delusions caused her to kick out the windows, Springer felt the woman was a threat or could become a danger. AR 966.
Sgt. Springer asked Deputy Perez to transport the woman for a psychiatric hold. AR 967. Perez interviewed the woman himself, and agreed that she qualified for a hold. AR 967. Perez then transported the woman to Olive View Hospital. AR 967.
Sgt. Springer reviewed and signed Chey’s No Crime Vandalism report on November 28, 2013. The report was dated November 19, 2013, but there was no way to know when Chey actually wrote it. AR 971-72. Sgt. Springer was off work for four days from November 20 through November 23, 2013. AR 992. He returned to work on November 24, 2013. AR 992. He found Chey’s report in his personal inbox on his first day back at work, which meant it had not been reviewed by anyone other than himself. AR 977. He reviewed the report on November 25 or 26, 2013, and spoke with a supervisor before signing the report on November 28, 2103. AR 993.
Chey’s placement of the report in Sgt. Springer’s personal inbox was not the proper procedure. AR 971, 974. Chey was supposed to place the report in the general inbox on the day it was written. AR 973. Whatever sergeant is on shift will take the report from that box, read it, and approve it. AR 973. If the report is not turned in, there is a deferred report procedure that allows the report to be completed the next day. AR 973. If Chey had submitted the report to the proper box, it would have been read and reviewed by a sergeant by November 20, 2013 at the latest. AR 976.
Sgt. Springer found the title of the report improper, as there is no such thing as No Crime Vandalism. AR 979. Chey identified the suspect as a subject, which was improper. AR 979. It was not normal for a deputy to write in a report that it was submitted on the direct order of a supervisor. AR 982. Sgt. Springer believed that Chey was making a point of his disagreement with Sgt. Springer in a sarcastic manner. AR 983.
Sgt. Springer disagreed with Chey’s narrative in the report stating that there was no damage. AR 983. Sgt. Springer had discussed with Chey in the field why the windows were considered damaged. AR 983. The requirement for vandalism is that property be defaced or marked. AR 985. Even if Chey did not know that, he should have listened and followed Sgt. Springer’s directions. AR 985-86.
Sgt. Springer signed off on Chey’s report because he felt that going back to Chey and explaining again about the definition of vandalism would not be productive. AR 987. Sgt. Springer could not force Chey to write down what should be in the report. AR 987. His only other choice was to rewrite the report himself. AR 987. Sgt. Springer signed the report as documentation of Chey’s opinion on the vandalism. AR 987.
When a sergeant reviews a report, he looks for grammar, inconsistencies, or anything that he believes is false. AR 1060. If he finds any of those things, he will discuss it with the deputy. AR 1060. Springer never tells a deputy what to write, because the report is the deputy’s legal statement. AR 1060. Springer took no steps to discuss his concerns with Chey before signing the report. AR 1061.
On November 25, 2013 incident, Springer briefed his shift on the elements of Penal Code 594. AR 1071. Springer had looked up case law after the November 19, 2013 incident and wanted to brief his shift on that law. AR 1071.
On November 25, 2013, Sgt. Springer was responding to a call for assistance from SAs at the North Hollywood station. AR 1010. Sgt. Springer heard Chey also respond to the call. AR 1011. Sgt. Springer then received a call from Chey on his cell phone, who stated that he was tired of the SAs not answering their radio. AR 1011. Sgt. Springer did not agree that it was appropriate to question the SAs failure to answer their radio at that time, instructed Chey not to worry about it, and and instructed him just to get there and make sure the SAs were okay. AR 1012. Chey responded that he was tired of “baby-sitting” the SAs. AR 1012. Chey seemed angry. AR 1013. Springer stated it was their job to protect SAs, and Chey hung up. AR 1013.
Springer asked Chey to contact the watch commander and provide the information needed for the log. AR 1015. This included the name and date of birth of the injured person, the bus line, the paramedics who responded, and the hospital. AR 1015-16. Chey responded that the SAs had that information. AR 1016. This was not an appropriate response, as it was Chey’s job as a deputy to gather and document that information. AR 1016. Sgt. Springer asked Chey to follow up, but he did not do so. AR 1016-17.
Later that night, Sgt. Springer realized that Chey would be getting this information after the P.M. watch commander left at 9 p.m. He asked if it was ok to contact the early morning (EM) watch commander, and he told Chey to let the EM commander know. AR 1017. Despite his duty to do so, Chey never made any report regarding the incident. AR 1017.
b. Gabriel Perez
Deputy Perez responded to the vandalism call on November 19, 2013. AR 1128. He was informed by Chey that a woman had kicked out the bus windows. AR 1128. The woman had been detained in a shoe store. AR 1129.
By the time Gabriel Perez arrived, the Bus Driver was gone. AR 1135. Chey informed Perez that MTA did not want a report taken, that there was no damage to the bus, and that Chey did not believe any crime was committed. AR 1136.
Sgt. Springer told Perez that he wanted the woman taken in on a 5150 hold and asked Perez to assess her to see if he agreed. AR 1130, 1135. Perez evaluated the woman, and he believed that Chey was nearby while he interviewed her. AR 1135. Perez learned that she took psychiatric medication. AR 1130. The woman believed that the people on the bus were trying to hurt her. AR 1130. Perez believed that she was dangerous to herself, and qualified under section 5150. AR 1130. He took the woman to Mission Community Hospital. AR 1130-31. Gabriel Perez drafted a report to document the transportation. AR 1131.
c. SA Sultanyan
When a person is injured, a SA requests “902R”, which is a request for response by the fire department and paramedics. AR 1150. The SA would also request a police response. AR 1150. Those requests are documented in the SA’s notes, which are turned over to the responding deputy when he or she arrives. AR 1150. Those notes contain the engine number of a responding fire engine, the info of the injured person, and any other necessary information. AR 1150. The notes would also contain the location of the hospital to which a person was transported. AR 1151.
On November 25, 2013, SA Sultanyan was at the North Hollywood Orange Line station. AR 1151. A bus driver approached and stated that there was a drunk patron refusing to leave a bus. AR 1152. SA Sultanyan and SA Mejorada approached the patron and convinced him to leave the bus. AR 1152. As the person was stepping off the bus, he fell. AR 1152. Sultanyan requested 902R for the injured passenger. AR 1152. Deputy Chey responded that he was en route. AR 1152.
When the fire department arrived, SA Sultanyan got the information needed, including where they were transporting the passenger. AR 1154. He could not recall at the hearing where the passenger was transported. AR 1154. At the time of the incident, SA Mejorada knew that information. AR 1154.
Chey did not arrive until after the passenger had already been transported. AR 1153. When Chey arrived, he came in with screeching tires and knocked on the door to the kiosk. AR 1155. Chey asked for the information like he was mad or upset. AR 1155. SA Mejorada was the one to give Chey the information as she had it in her notebook. AR 1155. SA Sultanyan could not recall if Mejorada actually gave Chey the information, as she had it and Chey was contacting her, not him. AR 1155. Chey was only present for a minute before slamming the door and leaving. AR 1155. SA Sultnyan did not speak to Chey at all because he was on the computer. AR 1160. Chey did not yell; he was just angry. AR 1167.
SA Sultanyan considered Chey’s actions unprofessional – coming in with screeching tires, knocking on the door, and coming in with an attitude and angry. AR 1155, 1161. SA Sultanyan did not intend to report Chey’s conduct to a supervisor. AR 1161. Chey would not have been arriving with screeching tires because he was in a hurry to arrive because SAs Sultanyan and Mejorada had already put out a Code 4. AR 1165.
Lt. Maldonado interviewed witnesses, including Chey, after receiving the supervisor’s inquiry from Sgt. Springer. AR 1196. This was a unit-level investigation. AR 1196. A unit-level investigation is conducted by the unit, as opposed to IA. AR 1196. Lt Maldonado was investigating possible false statements and performance to standards violations. AR 1196.
On the night of the November 25, 2013 incident, Lt. Maldonado was the watch commander. AR 1198. He called Chey to request information for the watch commander’s log regarding the incident. AR 1198. Chey did not provide the requested information. AR 1199.
Lt. Maldonado was never able to obtain the information needed for the watch commander log. AR 1235. If Sgt. Springer had the necessary information, Maldonado would have expected Sgt. Springer to give it to him. AR 1235.
Lt. Maldonado did not initially have any concerns that he was conducting the investigation of Chey even though he had been on duty on November 25, 2013. AR 1199. He acknowledged that it was not common or ideal for a percipient witness to conduct the investigation, but it has happened before. AR 1199.
Maldonado obtained a transcript of a radio call between Chey and Dispatch on November 25, 2013. AR 1296-97. He agreed that the transcript contained statements by Chey. AR 1297. Maldonado did not provide Chey with the call or the transcript prior to interviewing Chey. AR 1297.
At some point, he passed the investigation on to Lt. Mouat. AR 1199. Captain Jennifer Bateman decided that it would be better if Lt. Maldonado was removed from the case because he was a percipient witness. AR 1258. Lt. Maldonado had already completed his interviews at that time. AR 1258-59. He did not interview Deputy Perez, as he was not aware that Perez was present on November 19, 2013. AR 1275.
Lt. Mouat knew from Sgt. Springer’s interview that Perez was present on November 19, 2013. AR 1344. He did not interview Perez. AR 1344.
Lt. Mouat reviewed the calls between Chey and Dispatch on November 25, 2013. AR 1349. He knew that Dispatch stated that it was transferring the call to Sgt. Smith. AR 1349. The phones did not pick up any recordings from a conversation with Sgt. Smith. AR 1349-50. Mouat spoke with Sgt. Smith, who did not recall talking to Chey. AR 1350. Lt. Mouat searched but was unsuccessful in obtaining the remainder of the tape. AR 1350. He did not document that search in his log. AR 1350.
His investigation of Chey was thorough and complete. AR 1355. Lt. Mouat believed that Chey could have done follow-up on November 25, 2013 prior to the end of his shift. AR 1355. Had Chey checked the SA’s log, he would have found the information regarding the incident. AR 1356. There is no alert or notification system that would have alerted Chey that the information was available. AR 1356.
Villanueva is the Bus Driver employed by the MTA. AR 1371. On November 19, 2013, a passenger boarded his bus who was talking to herself. AR 1372. She reached over to the Bus Driver and started yelling and spitting. AR 1372. He asked her to back up, but she kept going. AR 1372. He did not perceive the woman as a threat. AR 1373.
The Bus Driver called for a supervisor to have the woman removed from the bus. AR 1373. He also called the police. AR 1373. The Bus Driver wanted to continue service, but then the woman damaged the bus by kicking at the glass windows. AR 1374. The windows fell inside the bus, and did not break. AR 1374.
The Bus Driver recalled speaking to Sgt. Springer at the scene. AR 1375. He did not recall telling Chey that the MTA did not want to prosecute the matter. AR 1376. His statement to Sgt. Springer would be “fresher”, but he did not recall saying anything. AR 1376. As an operator, the Bus Driver is supposed to call for a supervisor when an incident occurred. AR 1376. The supervisor comes out and makes decisions. AR 1376.
The windows in question were designed to come out of the frames without breaking. AR 1379. The damage was fairly minimal. AR 1379. It was not in Villanueva’s classification to replace the windows. AR 1380.
The Bus Driver recalled Chey speaking to Sgt. Springer, but he did not remember what they were saying. AR 1381. He did recall that the conversation had to do with whether the incident constituted vandalism. AR 1382. The Bus Driver may have said to a police officer that the incident was not a big deal. AR 1382. He continues to believe that was the case. AR 1382. He just wanted the woman off the bus so that he could continue on his route. AR 1383.
g. SA Mejorada
SA Mejorada was trained to call for backup if there was something that she could not handle as a SA. AR 1400. On November 25, 2013, SAs Mejorada and Sultanyan were called to remove a drunk man from a bus. AR 1400. While the passenger was leaving the bus, he fell and hit his head on the concrete. AR 1401. SAs Mejorada and Sultanyan requested a 902R. AR 1401. SA Sultanyan initiated the call, and then SA Mejorada continued it. AR 1401. SA Mejorada requested a deputy response. AR 1401.
While SA Mejorada was waiting for a deputy to arrive, the fire department treated the passenger. AR 1402. Mejorada obtained the information of the passenger, and learned where he was being transported. AR 1402. Mejorada obtained the passengers name, date of birth, and the engine number that was transporting him. AR 1403. After the fire engine left, Mejorada put this information in her log. AR 1403-04. The purpose of this information is so that deputies who are not present can know who the victim is, where the victim is being transported, and also the bus driver’s information. AR 1403.
SA Mejorada also put out the name of the hospital during her conversation with Dispatch. AR 1439. The deputies have access to that conversation because it is broadcast on the frequency used by them in their vehicles. AR 1440. She expects the responding deputies to be listening to that information on the radio. AR 1440. A Code 4 means that no further assistance is necessary. AR 1440. Mejorada put out a Code 4 before Chey arrived. AR 1440.
Chey arrived about 20 to 25 minutes after the fire department had already left. AR 1404. This was about 40 minutes after the initial call. AR 1404. Chey sped up to the kiosk, and banged on the kiosk window. AR 1406. He started screaming “where is the information?” AR 1406. SA Mejorada gestured to her side book, and Chey left, slamming the door. AR 1406. Chey did not give her an opportunity to actually give him any information from her side book. AR 1407.
SA Mejorada stated that Chey left after asking only whether Mejorada had the information. AR 1433. she said yes, but he did not retrieve it. AR 1433. On cross-examination, Mejorada stated that she did in fact give Chey some information while he was at the kiosk. AR 1442.
SA Mejorada spoke with Sgt. Springer after the incident, and provided him with information on the passenger. AR 1433.
SA Mejorada had never had any incidents with Chey before. AR 1408. She had heard Chey state that he did not like SA Sultanyan. AR 1408.
Mario Chavez (“Chavez”) is the Bus Supervisor. AR 1453. He responds to incidents on buses that could effect on-street operations. AR 1453.
On November 19, 2013, the Bus Supervisor arrived at Owensmouth and Victory. AR 1454. He recalled that Department and LAPD officers were present. AR 1454. He spoke to Chey, but did not recall specifically what was said. AR 1454-55. He denied ever telling Chey that he did not want a report taken. AR 1455. That would not be the Bus Supervisor’s decision to make. AR 1455. Damage to buses is handled by Gateway, and the Bus Supervisor basically just relays information. AR 1456. His responsibility is to gather information and fill out a report. AR 1456. He has no control over whether the MTA pursues charges. AR 1456.
If he recalls correctly, “the deputy” asked the Bus Supervisor how much it would cost to repair the damage to the bus. AR 1456. He did not know, so he called to find out. AR 1456. He did not recall what the repair cost was determined to be. AR 1456.
The incident on November 19, 2013 delayed bus service because there was no one available to replace the bus that was out of service. AR 1458. The bus had to be taken in to the yard for work, and replaced by another bus. AR 1459. All of these actions cost the MTA money. AR 1459.
i. Sergeant Smith
Sergeant Demmarkus Smith was the early morning dayshift west commander relief on November 25, 2013. AR 1470. Sgt. Smith spoke with Lt. Maldonado that day, who informed him that Chey was going to call with additional information regarding a rail incident. AR 1471. Sgt. Smith was instructed to enter that information into the watch commander’s log. AR 1471. Sgt. Smith did not recall receiving any such call from Chey that night. AR 1471. Had he received those details, he would have entered them in the log. AR 1471.
j. Chief Anda
Chief Ronene Anda (“Anda”) is the chief of the Transit Division. AR 1483. Anda made the decision to discharge Chey after consulting with the Case Review Panel. AR 1484. Anda particularly considered Chey’s false statements and failure to take responsibility in coming to the decision to discharge Chey. AR 1484. Anda found contradictions between Chey’s statements and those of other percipient witnesses. AR 1485. Chey failed to identify that a crime had occurred on November 19, 2013, and claimed that the Bus Supervisor told him not to prosecute. AR 1485.
The November 19, 2013 incident was a clear case of vandalism. AR 1507. The windows had been completely removed from the bus, and it would take time, effort, and money to repair the windows. AR 1507. Deputies are taught about vandalism early on at the academy. AR 1523. It was a pretty basic crime. AR 1523.
Anda made a Case Review presentation regarding Chey’s case that took a few minutes. AR 1492. Anda recalled that there was discussion, but could not specifically recall what was discussed. AR 1492. The discussion was not lengthy. AR 1492. The additional charges of false statements were added at the Case Review panel. AR 1495. Anda specifically recalled discussing the false information and false statements with case review. AR 1495.
Department policy is that allegations that could result in discharge are mandatory IAB investigations. AR 1501. In this case, it was not clear that discharge was warranted until the investigation was complete. AR 1501. The false statements and lying made this a discharge case. AR 1502.
k. Jorge Perez
Deputy Perez was an assisting unit at the November 19, 2013 incident. AR 1581. He observed Chey having a conversation with the Bus Driver and Bus Supervisor. AR 1581. The conversation was about what the Bus Supervisor wanted to do with respect to the windows. AR 1582. The supervisor stated that he did not want anything done about the window, that the bus was non-revenue, and that it was “deadheading” into the yard to be cleaned up and ready for the next day. The window could be fixed in five minutes and “he didn’t want anything done about it.” AR 1582. During this conversation, Sgt. Springer was at the scene, on his phone. AR 1583.
Perez asked Sgt. Springer if the incident constituted a crime. AR 1583. Springer was upset by this question. AR 1584. Perez thought that no crime was committed if the bus was not in service and the windows were not broken. AR 1584.
Perez heard Sgt. Springer instruct Chey to write a report about the window. AR 1585. Chey responded that he would do whatever Springer needed. AR 1585. He did not hear any other discussion between Chey and Sgt. Springer. AR 1585.
l. Petitioner Chey
Petitioner Chey was hired as a deputy sheriff in October 2006. AR 1631. In 2013 he was assigned to the Gateway Union Station as part of the Transit Bureau. AR 1632.
Chey was initially informed that he was under unit level investigation for insubordination. AR 1633. Chey was transferred from Gateway during the investigation. AR 1633. He was not relieved of duty until about two weeks before he was discharged. AR 1633.
Chey’s relationship with Sgt. Springer was good until Chey and his partner complained to Sgt. Springer about another deputy, Adan Navarez (“Navarez”). AR 1635. Chey believed that Deputy Navarez was not handling calls properly. AR 1635.
At the November 19, 2013 incident, Chey called a Code 4 when he arrived at the scene because there was no fight. AR 1642. Vandalism does not require an immediate response from deputies. AR 1642.
Chey and Perez walked through the bus with the Bus Supervisor and the Bus Driver. AR 1640. The Bus Supervisor stated that there was no damage because the windows were designed to fall out. AR 1640. The window could just be inserted back in. AR 1640. The Bus Driver told him that the windows pop out all the time and sometimes the bus driver would pop the windows back in himself, and it only took five minutes. AR 1721. After Chey gathered this information, he spoke with Springer. AR 1641. Springer told Chey to “generate paper” and then left the scene. AR 1641.
Chey did not recall Springer giving him any specific instructions regarding the report other than to “generate paper.” AR 1722. Chey wrote a No Crime Vandalism report because he had checked the bus with the Bus Driver and the Bus Supervisor, and there was no damage to the bus. AR 1726. Chey followed the instructions of the Bus Supervisor because he was the decision-maker for the MTA at the scene. AR 1726.
Chey wrote the face page of the report on November 19, 2013, and finished the report on November 20, 2013. AR 1727. Chey stated in the report that there was no damage to the windows because he did not see any permanent damage to the windows. AR 1729. Chey stated that the purpose of the report was a direct order because he was documenting Springer’s order to generate a report. AR 1729.
Chey received permission from Sgt. Coley to defer the report. AR 1727. Chey placed the finished report on the incoming report tray located in the front of the field sergeant’s office. AR 1727.
Chey testified at the hearing that he ran suspect Dalton for warrants. AR 1759. (The Unit History Report showed that Chey did not run the suspect on his car. AR 1762.) Chey then stated that he might have used Gabriel Perez’s car to run the suspect. AR 1762. (The Unit History Report for Gabriel Perez’s car also did not show that Chey ran the report on that car. AR 1817).
On November 25, 2013, Chey was at Chatsworth Station when the call for assistance at North Hollywood came on the radio. AR 1732. The call was a 390, which means a drunk person refused to leave the bus. AR 1733. Chey assigned himself to the call. AR 1733. It took Chey a long time to travel to North Hollywood. AR 1733.
Chey did not hear the radio call stating that the passenger had been transported to St. Josephs. AR 1734. Had he heard the broadcast, he would have acknowledged it. AR 1734. Chey acknowledged that he heard the SAs put out a Code 4. AR 1775. He also heard the update that fire and paramedics had been requested. AR 1775. Chey remembered hearing about the patient being transported, but did not recall hearing the name of the hospital. AR 1777.
When Chey arrived at the station, he went to the kiosk and knocked on the door. AR 1735. Chey described the knock as a regular knock. AR 1735. SA Mejorada opened the door, and Chey went inside to ask what had happened. AR 1735-36. SAs Mejorada and Sultanyan did not answer right away, so Chey asked again. AR 1736. SA Mejorada stated that the passenger had been transported. AR 1736. Chey asked for the engine number and hospital, and Mejorada stated that she did not have the engine number, but she thought the hospital was St. Johns. AR 1737. Chey had never heard of St. Johns. AR 1737. Chey asked again what happened, and neither SA Mejorada nor Sultanyan answered. AR 1738.
Chey was at the scene from 5:22 p.m to 5:43 p.m. AR 1779. During that time, he did not contact the fire station or call the desk to find out where the patient had been transported. AR 1779. Chey denied that he would have seen the update by the SAs that the patient was transferred to the hospital because it would not show up on the MDC. AR 1783. Chey did not see any information on his call regarding the hospital when he cleared the call. AR 1742. Chey did not consider running the SAs’ incident details because that usually required an order from a sergeant. AR 1742.
When Chey did not get a response from the SAs, he left the kiosk and went to his car. AR 1738. Chey drove to another part of the Orange Line, and called Sgt. Springer. AR 1739. Chey wanted to know if Sgt. Springer had any additional information or if he could help with the SAs. AR 1739. Springer only instructed Chey to talk to the SAs again. AR 1739. When Chey reminded Springer that the SAs were trying to sabotage him, Springer only repeated that Chey should go to talk to the SAs. AR 1740.
m. Cesar Oragel
Cesar Oragel (“Oragel”) is a deputy sheriff who worked on the same shift as Chey. Oragel and Chey brought up an issue to Sgt. Springer that they were having with Deputy Navarez. AR 1668. Springer set up a meeting between the Navarez, Chey, Oragel, and Lieutenant Lucio, but nothing was accomplished. AR 1668. After that meeting, Springer stopped acting professionally towards Oragel and Chey, and started monitoring everything they were doing in the field. AR 1668-69. Oragel believed that Sgt. Springer was unprofessional at times because he would lose his temper and start shouting. AR 1670.
SAs Mejorada and Sultanyan also had problems with Oragel and Chey after the meeting about Navarez. AR 1670-71. The SAs were shy in using their radios. AR 1672. Both SAs were very close with Navarez, about whom Chey and Oragel complained. AR 1674.
n. Jose Carillo
Deputy Jose Carillo (“Carillo”) worked with Chey at the Transit Bureau. AR 1693. Carillo also worked with SA Sultanyan and SA Mejorada. AR 1696. Carillo’s opinion of the SAs was that they were unprofessional and unapproachable. AR 1696. They would only speak to Deputy Navarez. AR 1696.
Carillo has responded to incidents of vandalism on a bus. AR 1698. He would show up and talk to the bus driver and suspect, and any supervisor who arrives. AR 1698. Depending on the type of damage, sometimes the MTA supervisor will tell Carillo not to do anything. AR 1698-99. Usually, when a bus window had been popped out, the MTA would just take the bus back to the depot and state that they did not need a report. AR 1699. Carillo understood that the MTA supervisor represents the MTA in the field, and that he should follow the supervisor’s instructions. AR 1699.
If Carillo responded to a call and no one was present, he would get on the radio and ask the desk. AR 1708. If he found out that the subject had been transported to a hospital, he would have driven to the hospital to contact the subject. AR 1709. Once he had obtained all information, he would write a report. AR 1709.
7. The Decision
The Hearing Officer issued his Findings of Fact, Conclusions of Law, and Recommendation on April 6, 2016. AR 208-41. The Hearing Officer determined that the Department had met its burden of presenting sufficient evidence to support the charges against Chey with respect to the November 19, 2013 incident. AR 229. Chey’s defenses to those allegations -- that he did not believe that what occurred met the definition of vandalism -- was not persuasive. AR 229-30. Chey admitted that after reviewing Penal Code section 594, the incident on November 19, 2013 was vandalism. AR 230. There was evidence that Chey received training in this regard at the academy. AR 230. In addition, the Department requires that a deputy be familiar with each element of a crime when writing a report. AR 230.
Even if Chey had reasonably misinterpreted the statute, he was notified prior to writing the report that the elements of vandalism were met. AR 230. Sgt. Springer instructed Chey to write a crime report. AR 230. Sgt. Springer also testified that he informed Chey that the crime was vandalism because the bus needed to be taken out of service. AR 230. Chey failed to either review the statute or ask a supervisor before writing the report. AR 231. Even if some confusion was reasonable, Chey was given a directive by a supervisor to write a crime report and failed to do so. AR 231.
Chey’s argument that Sgt. Springer did not discuss the report with him or make corrections was not persuasive. AR 231-32. Sgt. Springer’s sign-off on the report did not exonerate Chey. AR 232. Chey was aware that he had not submitted the report as he was instructed. AR 232.
The Hearing Officer found that Chey had not followed policy when he failed to conduct a thorough investigation of an injured person on November 25, 2013. AR 232. Chey did not pay attention to broadcasted information and failed to write a required report. AR 232. Chey’s argument that he was unable to obtain the necessary information for the report was not persuasive. AR 232. Chey took some steps, but was obligated to investigate further. AR 232. If Chey did not recognize the hospital name provided by the SAs, he should have followed up and clarified. AR 233. The dispatcher’s transmissions clearly indicated the hospital to which the person had been transported. AR 233. And, there were other sources available to discover this information. AR 233. He could have contacted the SAs again as directed by Sgt. Springer. AR 233. He could have contacted fire personnel or Dispatch. AR 233.
The Hearing Officer determined that the Department had not provided substantial evidence to justify the charges that Chey failed to conduct himself in a professional and respectful manner. AR 234-35. Chey’s behavior did not appear to be egregious. AR 235. There were inconsistencies with the SAs’ statements. AR 235. The evidence indicated that these particular SAs did not get along with Chey, and that they were refusing to acknowledge Chey’s radio calls. AR 235. Deputies Perez and Carrillo believed that the two SAs were unprofessional and unapproachable. AR 235. While Chey may have come in with an “attitude”, he was not necessarily disrespectful, discourteous, or uncivil. AR 236.
The Hearing Officer determined that the Department had not proven that Chey falsified a record when he noted in the November 19, 2013 Incident Report that there was no damage to the bus window. AR 236. Chey correctly stated that the window had been popped out of its rubber frame. AR 236. The characterization of no permanent damage was an error, but Chey did not attempt to hide the damage done. AR 236.
However, there was sufficient evidence to support the allegation that Chey’s statement was false that the victim did not desire prosecution. AR 236. Neither the Bus Supervisor nor the Bus Driver confirmed that they ever made such a statement. AR 236. The Bus Driver testified that it was not his decision to not prosecute. AR 236. The Bus Supervisor stated that he would not have said such a thing, as it was not within his managerial prerogative to not prosecute. AR 236.
The Hearing Officer found that Chey falsely reaffirmed during his IAB interview that the Bus Supervisor did not want to prosecute. AR 237. Chey also falsely stated that Sgt. Springer did not discuss with him at the scene why the incident constituted vandalism. AR 237. Despite Chey’s denial that the conversation occurred, Perez’s testimony confirmed that Sgt. Springer instructed Chey to write a vandalism report for the bus. AR 237.
Chey also falsely stated that he was not given the name of the hospital to which the victim was taken to on November 25, 2013. AR 237. The SAs stated that Chey was given the hospital’s name. AR 237. Chey acknowledged that he was told it was St. Joseph’s hospital. AR 237.
The Hearing Officer noted that much of the case turned on which witnesses to believe. AR 238. There were problems with the consistency of the SAs’ testimony. AR 238. However, Chey’s credibility was also suspect. AR 238. Chey added new facts to his testimony at the hearing that were not presented during the investigation interviews. AR 238. Among the most notable was a false statement that Chey ran a warrant check on the passenger (Dalton). AR 238. When confronted with his vehicle’s call report that did not indicate any such call, Chey changed his testimony to state that he made the call from Perez’s vehicle. AR 238. That vehicle’s report also showed the testimony was untrue. AR 238.
The Hearing Officer determined that the Department had not violated Government Code section 3304(d), as there was no evidence that anyone in the Department viewed Chey’s report prior to November 24th. AR 238-39. Sgt. Springer was off work from November 20-23, 2013 and reviewed the report for the first time on November 24, 2013. That was the first time Sgt. Springer was aware that Chey failed to properly report the incident. AR 239.
Finally, the Hearing Officer determined that the Department’s guidelines allowed for discharge when an officer was found to have acted contrary to performance standards, obedience, and provided false information. AR 239. Those allegations standing alone justified Chey’s dismissal. AR 239. In mitigation, Chey had received a rating of “competent” in his last evaluations. AR 239. He had also received several commendations. AR 239. As an aggravating factor, Chey had previously been disciplined for making false statements, and had not taken full responsibility for his actions. AR 239.
The Hearing Officer concluded that all of the allegations except the allegation of unprofessional conduct towards others were true. AR 241. The decision to discharge Chey was appropriate. AR 239. There was no violation of POBRA. AR 241. The Hearing Officer recommended that the discharge be sustained. AR 241.
On July 20, 2016, the Commission overruled Chey’s objections and adopted as its final decision the findings and recommendation of the hearing officer. AR 333.
D. The Mandamus Remand
On October 11, 2016, Chey filed this Petition for a writ of mandate. On August 22, 2017, the court ruled as follows: (1) the charge against Chey for failing to recognize and investigate a crime of vandalism and arrest the suspect was untimely (Charge 1(a)); (2) the Department’s conduct of the investigation was not a basis to dismiss the charges against Chey; (3) Chey violated Department policy in writing his No-Crime Vandalism Report; (4) Chey’s statement in his report that the MTA did not desire prosecution was false; and (5) Chey did not properly investigate the November 25, 2013 incident. AR 2095.
The court remanded for the Commission to: (1) determine where in Chey’s administrative interview he falsely stated that “no one gave [him] information regarding which hospital the victim from the November 25, 2013 incident was taken to”; (2) determine why the statement is false, if the Commission is able to find such statement; (3) determine whether “desk” and “dispatch” are the same or different for the purposes of AR 839 of the record; (4) if necessary, take limited testimony for the purpose of determining whether “desk” and “dispatch” are the same or different; (5) if it concludes that Petitioner did not make false statements as alleged, determine whether such conclusion impacts the penalty of discharge; and (6) reevaluate the penalty of discharge in light of the court’s dismissal of the untimely charges. AR 2095-96.
The court issued its order reflecting its decision and remand on October 2, 2017. AR 2095-96.
E. The Commission’s Decision After Remand
On remand, the Hearing Officer issued a decision recommending that Chey’s discharge be sustained, concluding that, with the exception of the untimely Charge 1(a), the other charges identified in the initial decision were sustained and that the decision to discharge Chey was appropriate. AR 1942. The Hearing Officer found in pertinent part as follows.
a. Where Chey Made a False Statement in the Interview
Chey did not make the verbatim statement during his interview that “no one gave him information regarding which hospital the victim of the November 25, 2013 incident was taken to.” AR 1933. As with other allegations of false statements, this statement was not a verbatim quote and represented a claim that Chey misled the Department when he indicated he was not given any such information. AR 1933. The parties agreed that the Department’s allegation was based on Chey’s interview statement:
“Q (Maldonado): Did you get any information, what hospital this person went to?
A: Until now I, I don’t until I saw this today”. AR 1934.
The Department contended this statement by Chey was false since he knew that night where the individual had been taken. 1934.
Chey put forth several explanations or defenses as to why it was not a false statement including: the credibility of the SAs, the radio transmission's lack of clarity, the length of time between the incident and when Chey was interviewed, his inability to prepare, and that his response was unclear based in part on the ambiguity of the question. AR 1934. Even though there was some factual support for Chey’s position, the Department was more persuasive in showing he knowingly made a false statement when he gave the response to the question. AR 1934.
There was no real dispute the radio communication sent out that evening identified which hospital the individual had been taken to by the fire department's first responders. AR 1934. Besides the record of the call, Chey has acknowledged that the name of the hospital was provided during the transmission. AR 1934. Chey argued he did not hear it either because it lacked clarity, and/or he was out of radio range at the time. AR 1934. Although there was some evidence of instances when such transmissions were disrupted or the recipient out of reach, neither appeared to be the case during this radio call. AR 1934.
With the acknowledgment this particular transmittal was sent, the burden shifted to Chey to show he did not hear it. AR 1935. Given the back and forth between the Chey and the dispatcher, it seems unlikely that he was out of radio range. AR 1935. The part of the transmission where the location was disclosed was clear. AR 1935. Chey said he heard parts of the dispatch but did not hear other segments, including that the patient was being treated and the fire engine number. AR 1935. If Chey had difficulty hearing what the dispatcher said, one would have expected him to have asked for it to be repeated but there was no such request. AR 1935.
Chey misrepresented other facts, which called into question his credibility. AR 1935. The Department referred to several other false statements it believed Chey made either during his interview or the hearing. AR 1935. Chey took the position that reliance on these other responses was a POBRA violation since he believed the Department was trying to charge him with these new claims. AR 1935. Since this POBRA issue was not certified by the Commission the hearing officer was unable to make any such finding. AR 1935. In its April 16, 2014 letter to all hearing officers, the Commission allowed them to review such information for evidentiary weight and establishing credibility. AR 1935.
Specifically, Chey initially testified he ran a certain radio background check using his car radio. AR 1935. He was then shown a call report from his vehicle which indicated no such transmittal was made. AR 1935. Faced with this contradiction, Chey then changed his story and said he had used Deputy Perez’s patrol vehicle to make that same call. AR 1935. Chey was then shown a similar report indicating no such call was made from that vehicle either. AR 1935-36. In this instance, not once, but twice he made a misstatement of fact at the hearing. AR 1936. This misleading testimony made it more likely that his reasons not getting the radio information should not be believed. AR 1936.
Chey also took the position that he was responding to what he thought was a question about the Incident History Detail for Tag #927. AR 1936. This was doubtful since the question just before concerned what information Chey had to write his report and the next question was a follow-up to determine if his negative response included not knowing to which hospital the individual had been taken. AR 1936. Chey’s response was more likely than not a denial that he ever received the identity of the hospital. AR 1936.
Chey also argued even if his response should be interpreted as a denial knowing the hospital to which hospital the individual had been transported, it was unintentionally false. AR 1936. His position was that one cannot make a dishonest statement if there is a lack of recollection. AR 1936. He pointed to the amount of time that had passed since the interview and the fact that he was not able to review documents or listen to the audio before the interview. AR 1936. In addition, he was not asked specific follow-up questions to clarify his response. AR 1936.
None of these additional arguments is persuasive. AR 1936. If Chey was truly having difficulty recalling a specific event after approximately five months, he could have simply chosen to respond as such or otherwise qualified his answer in that regard. AR 1937. If he had truthfully done so, there would not have been any falsification, but in this case Chey did neither. AR 1937.
Chey also claimed there should have been additional questions which would have allowed him to clarify his response, but there was no indication he was cut short in answering the question. AR 1937. If he needed additional clarification as to the question or wanted to elaborate on his response, he had the opportunity to do so. AR 1937. There was no requirement for the investigator to ask a follow-up question if he already had a clear understanding of Chey’s reply. AR 1937. For the same reason, there was no need to clarify Chey’s answer by asking further questions in the second interview. AR 1937.
The weight of the evidence showed Chey both heard the identity of the hospital to which the victim had been transported and understood that was what the Department was asking during his interview. AR 1937. He made an intentionally false statement that no one gave him this information. AR 1937.
b. Whether the Terms “Desk” and “Dispatch” are the Same
Chey stated in his interview that he called the “desk” to see if they knew where the patient had been transported or the fire engine number, and they did not have that information. AR 838. Chey’s position was that the terms “dispatch” and “desk” meant different things, and that even if dispatch had information where the individual had been taken, it did not necessarily mean that information had been relayed to the desk. AR 1938.
The record contains several examples that support the Department’s contention that these terms were used interchangeably during the incident, investigation, and testimony of the witnesses. AR 1938. When asked if he thought to call the L.A. City Fire Dispatch, Chey answered “Yes, based on that question I did call the desk.” He later corrected this statement to say he did not call the city fire dispatch, but the TSB desk (AR 866). AR 1938. Another instance was Chey’s reference to a transcript of his “call to the desk” (AR 1295-96), which his counsel later in discussing the same exhibit referred to it as a call to dispatch. AR 1938.
These and other examples (AR 1654, 1795, 1800) showed it more probable than not the terms “desk” and “dispatch” were often used interchangeably by employees of the Department, including Chey. AR 1939.
c. Whether the Facts Impact the Penalty of Discharge
As Chey made the false statement alleged in Charge 6(c), it is not necessary to make any such finding but for the purpose of completeness, the remaining charges still support his discharge. AR 1939. The guidelines for each of the listed charges (False Information in Records, Failure to Make Statements and/or Making False Statements during Departmental Internal Investigations, Performance to Standards and Obedience to Laws, Regulations) independently allowed for disciplinary action up to discharge. AR 1939.
While Chief Anda testified that the decision to discharge Chey was mostly based on the false statements and lying, the Department’s disciplinary decision was not based on his response to just this one question. There were multiple charges in the disciplinary letter, including making other false statements. AR 1940. The court agreed the with the Hearing Officer’s report which found Chey violated Department policy with regard to the “Crime Vandalism Report” he prepared. AR 1940. In that document, Chey’s statement that the MTA did not desire prosecution was false. He also failed to properly investigate the November 25, 2013 incident. AR 1940.
The factor of fitness for duty does not reflect positively on Chey. Several years earlier he was disciplined for similar policy violations. AR 1940. On January 26, 2010 he received a 15-day suspension for making false statements, obstructing an investigation, falling short in his performance to standards, and immoral conduct. AR 1940. Despite this documented reaffirmation as to the importance of these policies and even with it the benefit of progressive discipline, Chey chose to violate them again. AR 1940. By doing so, the Department’s concern about such behavior repeating itself was a legitimate concern. AR 1940. Chey’s repeated failures to adhere to these guidelines, especially given the importance of public trust of one working in law enforcement, supported a finding he was unfit for duty. AR 1940.
d. Reevaluation of the Penalty with the Dismissal of Charge 1(a)
It was the Department's position even if this lesser charge was not supported by the evidence, Chey’s discharge was still appropriate. AR 1941. Given the seriousness of the remaining allegations, Chey’s previous disciplinary history, the possibility of him repeating such behavior, and the Department's disciplinary guidelines, his discharge was appropriate even without a consideration of this particular charge. AR 1941.
e. Commission Approval
The Commission adopted the Hearing Officer’s recommendation on March 20, 2019. AR 1834.
Petitioner Chey challenges the Commission’s decision after remand, claiming that it is erroneous and constitutes an abuse of discretion in sustaining Chey’s termination from his employment with the Department.
1. Preliminary Issues
As a preliminary issue, Chey asserts that the Department has improperly and continually changed its position for the allegation that Chey made a false statement. Chief Anda relied on Chey’s assertion that the SAs lied in stating that they had information for him, but the Hearing Officer found that Chey did not make a false statement on this subject. AR 1991. At the writ hearing, the Department argued to the court that Chey made a false statement when he said he called the “desk” and it did not have the information either. AR 839. Now, the Department is point to a false statement made by Chey in his interview “Until now, I, I don’t, until I saw this today”. AR 844. Pet. Op. Br. at 9-11; Reply at 2-3.
As the Department notes (Opp. at 8), its position has always been that Chey falsely represented in his interviews that he did not perform his job on November 25 because he did not have the information necessary to do so. AR 2057. The Department raised three instances in which this occurred, and the fact that the Department focused on different statements during the proceedings does not mean that it disavows the others. Chey offers no authority in support of his argument that the Department is not permitted to rely on multiple statements made by Chey to prove that he falsely claimed not to have the information to complete a report. Additionally, the Department correctly notes that each of the allegedly false statements was raised during the initial writ hearing and discussed by the court. Opp. at 9; AR 2089-90.
Chey also argues that the remand issue of whether “desk” and “dispatch” were the same is irrelevant as the Department now contends that a different allegedly false statement supports its argument. Pet. Op. Br. at 14.
The Department correctly notes that this is a misinterpretation of its position. Opp. at 5. The court specifically instructed the Commission to consider upon remand whether desk and dispatch were not the same, if necessary for the determination whether Chey falsely stated in his interview that no one gave him the identity of the hospital to which the victim from November 25, 2013 was taken. Opp. at 4. The Department argued to the Hearing Officer that the statement “Up until now, I ,I don’t, until I saw this today” showed that Chey falsely told investigators that he did not know to which hospital the person was taken because his transcript of his conversation with the dispatcher shows that the dispatcher told him the identity of the hospital. AR 2192. The Department also argued that Chey’s interview statement that he “called the desk” and “they didn’t have that information for me neither (sic.)” was false because the “desk” and “dispatch” were used by Chey and other witnesses interchangeably. AR 2193.
Therefore, the Department relied on two interview statements, either of which could support the false statement charge from the April 28, 2014 interview.
2. The False Statements
Chey asserts that that the Department failed to demonstrate that he made a false statement about whether he knew the identity of the hospital where the man was taken and, assuming that he did so, any false statement was not intentionally false.
The “Until Now” False Statement
In accordance with the court’s directions on remand, the Department identified the following statement as Chey’s false statement during the administrative interview:
“Maldonado: Did you get any information, what hospital this person went to?
Chey: Until now, I, I don’t, until I saw this today.” AR 844, 1934.
Chey notes that he made this statement after being shown the Incident History Report for Tag #927 (“Report”). He asserts that it is evident that he is referring to the Report when he says he had not seen it previously, rather than information regarding the hospital. Pet. Op. Br. at 10. Chey argues that his statement is not unequivocally false and the Department’s failure to ask clarifying questions regarding what he meant shows that it has not met its burden of proving the allegation. Pet. Op. Br. at 11.
As the Hearing Officer noted (AR 1936), Chey’s answer to the question immediately before the above quotation concerned his failure to write a report and his contention that he lacked information to do so:
“…And that’s the reason why I, I, I did not write a report. I did not have any information to write about, sir. It’s not that I don’t want to write a report, it’s not because it’s towards the end of my shift. I’m, I’m not that kind of deputy.” AR 844.
Maldonado then asked Chey if his lack of information included the name of the hospital to which the person had been taken. Chey’s response can best be interpreted as meaning that he did not know the hospital’s identity until he saw “this”, with “this” being the Report. Chey’s denial of being told the hospital name before his interview was a false statement; evidence established that dispatch told Chey at 9 p.m. on the night of the incident that the man had been transported to St. Joseph’s Hospital. AR 874, 1934, 2078, 2080.
Chey argues that, assuming his statement was false, it was not intentionally so because he simply did not remember the details of the events that happened five months prior. He notes that innocent mis-recollection is not an intentional falsehood, and that it is likely he did not remember in his April 28, 2014 interview that he had been informed of the hospital’s identity on November 25, 2013, five months earlier. Chey notes that Maldonado did not refresh his memory with an audio or transcript of the dispatch conversation. He also notes that in his second interview an audio of the 5:13 p.m. radio traffic was played for him and he again stated that he did not remember the hospital to which the man had been transported. Chey notes that he was not charged with making a false statement when he failed to remember the hospital name in this second interview. Pet. Op. Br. at 11-12.
Chey’s argument is not well-taken. The Department argues that if Chey truly did not recall whether he had this information, he could have said so instead of saying he did not know the hospital name. The Department notes that Chey stated his failure to recall on numerous other occasions during the interview. AR 824, 832, 835, 840, 841, 844. Opp. at 10. This is true, although witnesses sometimes say that an event did not happen when they really have no recollection.
More important, the Hearing Officer found that Chey lacked credibility because he was caught lying in his testimony. Chey initially testified he ran a certain radio background check using his car radio. AR 1935. He was then shown a call report from his vehicle which indicated no such transmittal was made. AR 1935. Faced with this contradiction, Chey then changed his story and said he had used Deputy Perez’s patrol vehicle to make that same call. AR 1935. Chey was then shown a similar report indicating no such call was made from that vehicle either. AR 1935-36. The Hearing Officer found that this misleading testimony made it more likely that his testimony about the radio information should not be believed. AR 1936. The court agrees.
Chey’s remaining arguments concerning Maldonado’s failure to (a) refresh his memory with an audio or transcript of the dispatch conversation and (b) ask follow-up confirming questions at the second interview, concern the strength and importance of the falsehood; a repeated false statement is more significant than a single false statement. But that fact does not turn a single denial into an innocent statement. Chey’s related argument that he repeated his lack of memory about the hospital’s identity in his second interview only means that he made consistent statements -- the consistency does not affect the deliberate falsity.
There is no reason to believe that Chey’s denial that he was given the hospital’s name was due to a lack of recollection.
The “Desk” False Statement
In his interview, Chey told Maldonado that he did not have enough information to write a report:
“Sir, I called the desk…to find out where, where they transported the patient…or which …fire engine number….They didn’t have that information for me neither (sic.)”
The court remanded the case for the Commission to determine whether, as Chey argued at the writ hearing, the terms “desk” and “dispatch” were different or were used by Chey and other witnesses interchangeably. AR 2193. Chey’s position to the court was that the terms “dispatch” and “desk” meant different things, and that even if dispatch had information where the individual had been taken, it did not necessarily mean that same information had been relayed to the desk called by Chey. AR 1938.
The Hearing Officer concluded that the terms were used interchangeably during the incident, investigation, and testimony of the witnesses. AR 1938. The use of desk interchangeably with dispatch means that Chey’s statement that he called the desk (dispatch) to find out whether they knew where the man had been taken was a lie. Dispatch had the information that the man had been taken to St. Joseph’s Hospital and it would have given that information to Chey.
In his opening brief, Chey contended that the issue of “desk” and “dispatch no longer is relevant and did not address the Hearing Officer’s express finding. Pet. Op. Br. at 14. After the Department’s opposition disagreed, Chey asserts for the first time in reply that the Commission erred in finding that “desk” and “dispatch” are the same. Reply at 4-5. New evidence/issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded. Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333. By waiting until his reply to address an issue that was remanded by the court to the Commission, Chey deprived the Department of an opportunity to respond and the court has not considered Chey’s argument.
In sum, two separate interview statements support the finding that Chey falsely claimed that he did not have the name of the hospital to which the man was taken.
3. Excessive Penalty
Petitioner Chey contends that the penalty of discharge was excessive. He argues that the Department failed to show that he made a false statement about being given the hospital’s identity. Even if he did make a false statement, it was not intentional. Finally, if that statement was deliberately false, the court previously opined that Chey’s statement that the MTA did not desire prosecution for the November 19 incident was not deliberately false and directed the Commission to make that determination. Yet, it never did. The court also opined that the “no-crime vandalism” report by itself is not a firing offense. AR 1995. The court noted that the false statements were very important to discharge and if one is not actually false, then maybe Chey should not be fired. AR 1995-96. Chey concludes that the likelihood of reoccurrence is slight and his discharge should be overturned. Pet. Op. Br. at 14-15.
The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake, supra, 47 Cal.App.3d at 228. In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly, supra, 15 Cal.3d at 217-18.
As discussed ante, the Department successfully demonstrated that Chey made false statements in his interview denying that he was given the name of the hospital to which the person was taken, which is sufficient grounds for discharge. These were not the only false statements. The Hearing Officer concluded, and the court affirmed, that Chey made a false statement in his “No-Crime Vandalism Report” that the MTA did not desire prosecution. The court also upheld the Commission finding that Chey violated Department policy by failing to properly investigate the November 25, 2013 incident. AR 1940.
Contrary to Chey’s argument, his disciplinary history showed a likelihood of reoccurrence. On January 26, 2010, he received a 15-day suspension for making false statements, obstructing an investigation, falling short in his performance to standards, and immoral conduct. AR 1940. Despite this documented reaffirmation as to the importance of these policies and even with it the benefit of progressive discipline, Chey violated them again. AR 1940. By doing so, the Department had a legitimate concern that Chey’s misconduct would reoccur. AR 1940.
The Hearing Officer concluded that elimination of the untimely charge that Chey failed to recognize and investigate a crime of vandalism and arrest the suspect (Charge 1(a)) did not affect his discharge. Given the seriousness of the remaining allegations, Chey’s previous disciplinary history, the possibility of him repeating such behavior, and the Department's disciplinary guidelines, his discharge was appropriate even without this charge. AR 1941. The court agrees.
The Commission’s decision to uphold Chey’s discharge was not a manifest abuse of discretion.
The petition for writ of mandate is denied. The Department’s counsel is ordered to prepare a proposed judgment, serve it on Chey’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for April 21, 2020 at 9:30 a.m.
 For convenience, the Statement of Facts includes facts from the record in the original writ proceeding.
 For convenience, the court sometimes refers to the Hearing Officer’s findings.
 Chey also argues that the Department violated POBRA by failing to provide him with a transcript or the audio of the 9:00 p.m. dispatch call prior to his second interrogation. Pet. Op. Br. at 12-13. The Department correctly notes that this issue is beyond the scope of the remand. Opp. at 10.