On 07/07/2017 LUIS CRUZ filed an Other - Writ Of Mandamus lawsuit against CIVIL SERVICES COMMISSION OF THE COUNTY OF LA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MARY H. STROBEL. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MARY H. STROBEL
LOS ANGELES COUNTY SHERIFF
LOS ANGELES COUNTY SHERIFF'S DEPARTMENT
LOS ANGELES COUNTY OF
DOES 1 TO 30
CIVIL SERVICES COMMISSION OF THE COUNTY
KALINSKI JACOB A.
ROSS BRIAN P
LEWIS EDWIN ARTHUR
9/7/2018: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PETITIONER LUIS CRUZ'S PETITION FOR WRIT OF MANDATE
10/5/2018: Request for Judicial Notice
10/22/2018: Notice of Lodging
11/5/2018: Minute Order
12/6/2018: Minute Order
2/8/2019: Notice Re: Continuance of Hearing and Order
4/30/2019: Stipulation and Order
5/3/2018: NOTICE RE: CONTINUANCE OF HEARING
5/10/2018: NOTICE RE: CONTINUANCE OF HEARING ON PETITION FOR WRIT OF MANDATE
10/19/2017: Minute Order
7/13/2017: NOTICE OF TRIAL SELLING CONFERENCE & ATTACHED ORDERS THEREON
7/19/2017: PROOF OF SERVICE
7/19/2017: PROOF OF SERVICE
7/19/2017: PROOF OF SERVICE
Hearingat 13:30 PM in Department 82 at 111 North Hill Street, Los Angeles, CA 90012; Status ConferenceRead MoreRead Less
Docketat 09:30 AM in Department 82; Status Conference - Not Held - Continued - StipulationRead MoreRead Less
Docketat 2:57 PM in Department 82; Non-Appearance Case ReviewRead MoreRead Less
DocketStipulation and Order (Re Continuance of Status Conference); Filed by Luis Cruz (Petitioner)Read MoreRead Less
DocketMinute Order ( (NON-APPEARANCE CASE REVIEW)); Filed by ClerkRead MoreRead Less
DocketNotice ( of Continuance of Status Conference); Filed by Luis Cruz (Petitioner)Read MoreRead Less
Docketat 09:30 AM in Department 82; Status Conference (RE INTERLOCUTORY ORDER) - HeldRead MoreRead Less
DocketMinute Order ( (STATUS CONFERENCE RE INTERLOCUTORY ORDER)); Filed by ClerkRead MoreRead Less
Docketat 1:30 PM in Department 82; Status Conference (RE INTERLOCUTORY ORDER) - Not Held - Rescheduled by CourtRead MoreRead Less
DocketNotice (Re: Continuance of Hearing); Filed by Luis Cruz (Petitioner)Read MoreRead Less
DocketProof-Service/Summons; Filed by PetitionerRead MoreRead Less
DocketProof-Service/Summons; Filed by PetitionerRead MoreRead Less
DocketPROOF OF SERVICERead MoreRead Less
DocketPROOF OF SERVICERead MoreRead Less
DocketPROOF OF SERVICERead MoreRead Less
DocketProof-Service/Summons; Filed by PetitionerRead MoreRead Less
DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by ClerkRead MoreRead Less
DocketNOTICE OF TRIAL SELLING CONFERENCE & ATTACHED ORDERS THEREONRead MoreRead Less
DocketVERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE [CCP 1094.5 AND 1O85J AND FXTRAORDINARY RELIEF (GC 3309.5]Read MoreRead Less
DocketPetition; Filed by nullRead MoreRead Less
Case Number: BS170143 Hearing Date: July 14, 2020 Dept: 82
Los Angeles County Civil Service Commission, et al.
Judge Mary H. Strobel
Hearing: July 14, 2020
Tentative Decision on Petition for Writ of Mandate Following Remand
Petitioner Luis Cruz (“Petitioner”) petitions for a writ of administrative mandate directing Respondent Los Angeles Civil Service Commission (“Respondent” or “Commission”) to set aside its decision discharging Petitioner from his position as Deputy Sheriff. Real Parties in Interest County of Los Angeles, Los Angeles County Sheriff’s Department (“Department”), and Sheriff Jim McDonnell (collectively “County”) oppose the petition.
The most recent decision from the Commission follows a prior decision from this court, which granted in part Petitioner’s petition and found that Commission’s Finding of Fact 8 was not supported by the weight of the evidence. The court remanded the matter to the Commission for reconsideration in light of the court’s ruling. For the reasons discussed below, the court denies the writ petition after remand.
Petitioner’s RJN Exhibit A – Granted.
Petitioner’s Employment Background with Department
At the time of his discharge, Petitioner had been employed by the Department for 16 years. During his tenure, Petitioner’s overall performance records were very good and he had never received any form of discipline. (AR 1353, 89.)
December 21-22, 2013 Incident
On December 21- 22, 2013, Petitioner was assigned the watch deputy position at Pico Rivera Station and was serving a double shift. (AR 1353, 89.) The watch deputy is the front desk dispatch area supervisor in charge of monitoring the radio traffic and dispatch of calls to the radio cars. (AR 1353.) Deputy Robert Jorgensen and law enforcement technician Manny Cruz were also working that night with Petitioner. (AR 1386.)
During Petitioner’s double shift, he texted and called his on-again, off-again girlfriend, Diana Ponce, about 70 times. (AR 89, 259-263, 1355.) The texts contained derogatory and profane language from both Petitioner and Ponce. (AR 259-263.)
At about 1:00 am on December 22, Petitioner texted Ponce “call me right now” and “come to my work now.” (AR 262; see also AR 69 [stipulations].) Ponce came to the station at about 2:45 am in the morning of December 22, after having consumed alcohol at a party. (AR 89, 1379.) Petitioner left his workstation to go to her car, after notifying Jorgensen. (AR 89, 1500.) According to the hearing officer’s proposed decision, Petitioner and Ponce physically struggled in the car. (AR 89; see also AR 590 [Ponce’s interview].) In its decision before remand, the court found that this finding about a physical struggle in the car was not supported by the evidence.
As the parties stipulated, Petitioner and Ponce also physically struggled in the parking lot. (AR 974; see also AR 89.) Ponce, who was intoxicated, told Petitioner she was going into the station to tell everybody that he was an asshole. Petitioner blocked Ponce’s path into the station. (AR 1382-83.) Petitioner admitted standing in Ponce’s way and bear-hugging her in an effort to prevent her from entering the station and embarrassing him. (AR 1510-1511, 1523.) During the struggle, Ponce scratched Petitioner’s face. (AR 90.)
Criminal Investigation and No-Contact Orders
During subsequent interviews with Department’s Internal Criminal Investigation Bureau (ICIB), Ponce accused Petitioner of pulling her hair, grabbing her head, and shoving her down. (AR 584, 590, 594.)
On December 22, 2013 at 8:51 a.m. two officers from the Sheriff’s Internal Criminal Investigations Unit (“ICIB”) spoke to Petitioner as part of ICIB’s criminal investigation of potential domestic violence. (AR 304.) Petitioner, who had an attorney present, declined to give a statement about what happened. (AR 305.) ICIB took pictures of injuries to Petitioner’s face. (Id.) During the interview, two sergeants gave Petitioner an order not to have any contact or communication with Ponce, and that if he needed to contact her, to coordinate with the sergeants. The sergeants warned that failure to comply with the orders could lead to a charge of insubordination. (AR 305 - 306.) Petitioner indicated that he understood. (AR 306.)
Ponce called Petitioner about two days after the December 22 incident, and the two spoke. (AR 1398-1399.) On or about December 29, Petitioner and Ponce met at Starbucks and talked for about three hours. (AR 90, 1401.) Later on December 29, a former girlfriend visited Petitioner at his home along with her mother. Ponce showed up and, after finding the other woman there, called Sergeant Wiggins of ICIB to tell him Petitioner violated the no-contact order. (AR 90, 1402-1410.)
On or about January 4, 2014, at 4 am, Ponce started kicking Petitioner’s door. Petitioner called 911, and Ponce was arrested for suspicion of DUI. (AR 1410-1414.) After the January 4 incident, Petitioner and Ponce continued to communicate by phone. (AR 90, 1561.)
On February 6, 2014, Petitioner was given an advisement by Lieutenant Patrick Valdez not to contact Ponce further. (AR 796.) After this, Petitioner communicated with Ponce by phone several more times. Petitioner claimed that the calls were initiated by Ponce. (AR 1570-1571.) Ponce claimed that Petitioner called her at work, a claim he denied. (AR 1417-1418.)
The District Attorney’s Offices rejected the charges against Petitioner following the ICIB investigation. (AR 1341.)
On April 16, 2015, after an administrative investigation, Department served a Notice of Intent to discharge Petitioner. The Notice alleged two charges: (1) Petitioner engaged in a domestic dispute with Ponce on December 21-22, 2013, while on duty, including as evidenced by Petitioner sending multiple, abusive and profane text messages, grabbing Ponce’s hair, blocking her path to the station, and engaging in a physical struggle to prevent Ponce from making a complaint; and (2) Petitioner failed to obey lawful orders issued by supervisors, and interfered with an ICIB investigation by meeting and communicating with Ponce during the ICIB investigation. (AR 874-875.) On May 13, 2015, after Skelly, Department served a Notice of Discharge on Petitioner. (AR 861.)
A four-day administrative hearing was held before a hearing officer. (AR 68.) The hearing officer issued a lengthy proposed decision which found that certain allegations against Petitioner were true and others were not true, and that “significant mitigating factors” supported a 15-day suspension and not discharge. (AR 68-92.)
The Commission sustained Department’s objections to the proposed decision and proposed a new decision to sustain the discharge. (AR 20.) The Commission issued 11 revised conclusions of law. (AR 21-22.) The Commission did not undertake an independent review of the record, and therefore the factual findings of the hearing officer were adopted by the Commission. (See OB 12, fn. 2; Pet. RJN Exh. A, Rule 4.13.) On May 10, 2017, the Commission overruled Petitioner’s objections and adopted its final decision to sustain the discharge. (AR 2.)
Writ Proceedings Before Remand
On July 7, 2017, Petitioner filed a verified petition for writ of mandate pursuant to CCP sections 1094.5 and 1085, and for extraordinary relief pursuant to Government Code section 3309.5.
On December 6, 2018, after full briefing and a hearing, the court granted in part, and denied in part, the petition for writ of mandate. The court rejected Petitioner’s argument that the Commission’s first decision did not comply with Topanga. (See AR 1767-68.) The court found that all findings of fact challenged by Petitioner were supported by the weight of the evidence, except Finding of Fact 8, which found that Petitioner and Ponce physically struggled in the car. (AR 1770-75.)
As relevant to Petitioner’s arguments after remand, the court found that “the weight of the evidence supports that Petitioner engaged in a physical altercation with Ponce on December 22, 2013 in the parking lot of Pico Rivera Station, and that this conduct violated Department policy.” (AR 1770.) The court also found that the weight of the evidence supported Commission’s findings that Petitioner attempted to prevent Ponce from making a complaint against him; that Petitioner "violated a direct order from ICIB that he not contact Ponce and in doing so violated Department Policy against Obstructing An Investigation/Influencing a witness"; and conclusions 8 and 9, regarding Petitioner’s excessive text and cellphone calling and use of profanity and abusive language. (AR 1771-75.)
In its ruling, the court noted that it was “unclear, however, how much Finding of Fact 8 affected the Commission's legal conclusions 1, 3 and 10 and the choice of penalty.” The court noted that, at the hearing, “counsel for petitioner highlighted that the more serious physical confrontation is alleged to have occurred in the car.” (AR 1775.) With regard to penalty, the court reasoned that “a reasonable person could clearly conclude that discharge was the appropriate penalty based on the circumstances and policy violations discussed above.” (AR 1776.) Nonetheless, because Finding of Fact 8 was set aside and could have been relevant to the Commission’s penalty decision, the court remanded to the Commission for reconsideration in light of the court’s ruling.
On January 30, 2019, this Court issued an Interlocutory Order, which stated in part as follows:
The Petition for Peremptory Writ of Mandate and for Extraordinary Relief is granted in part as follows:
1. The weight of the evidence supports the factual findings of the Hearing Officer with the exception of Finding of Fact No. 8. The weight of the evidence does not support Finding of Fact No. 8 regarding a struggle in the car.
2. In light of the failure to support Finding of Fact No. 8, the case is remanded to the Commission for reconsideration in light of the court’s ruling. It is unclear how much Finding of Fact No. 8 affected the Commission’s Legal Conclusions 1, 3 and 10 and the choice of penalty. The Commission is to reconsider based on the existing evidentiary record. (AR 1890-1891.)
A copy of the court’s December 6, 2018 written decision on the writ petition was attached to the interlocutory order. (AR 1891-1903.)
Commission’s Decision After Remand
Pursuant to the court’s remand, the Commission held a hearing to reconsider the matter in light of the court’s ruling. At the hearing on July 3, 2019, the Commission again determined to sustain the termination of Petitioner. (AR 1762.) The Commission’s decision after remand stated that the Commission “reaffirmed the discharge” and that “the conclusions of law were not altered.” (Ibid.)
Writ Proceedings After Remand
On May 15, 2020, Petitioner filed his opening brief after remand. The court has received County’s opposition, Petitioner’s reply, the joint appendix, and the administrative record and supplemental administrative record (cited herein jointly as “AR”).
Standard of Review
Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)
Because Petitioner’s termination from his position as Deputy Sheriff concerns a fundamental vested right, the court exercises its independent judgment on the record. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, supra, 4 Cal. 3d 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 exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.)
An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) Petitioner bears the burden of proof in this mandamus action. (See Bixby v. Pierno (1971) 4 Cal. 3d 130, 143; Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal. App. 2d 129, 137; see also Alford v. Pierno
“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.)
Commission Followed this Court’s Instructions on Remand
Petitioner contends that the Commission did not comply with the court’s interlocutory order because it “did not actually reconsider its legal findings in light of the Court’s determination that the most serious charge, Finding of Fact No. 8, is not supported by the weight of the evidence.” (Opening Brief after Remand (OB) 4, 10-11.) Petitioner further contends that “Commission simply acted as its own ‘rubberstamp,’ re-imposing the same penalty because it believed the Court’s prior decision permitted it to do so.” (OB 11.) The court does not find these arguments persuasive.
CCP section 1094.5(f) “provides that, when granting mandamus relief, the court may ‘order the reconsideration of the case in the light of the court's opinion and judgment.’ (Italics added.) This clearly implies that, in the final judgment itself, the court may direct the agency's attention to specific portions of its decision that need attention, and need not necessarily require the agency to reconsider, de novo, the entirety of its prior action.” (Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.App.4th 499, 528.) The court may order “a prejudgment remand for agency reconsideration of one or more issues pertinent to the agency's decision.” (Id. at 529.) “[A]ny agency reconsideration must fully comport with due process, and may not simply allow the agency to rubber-stamp its prior unsupported decision.” (Id. at 528.)
Here, after remand, the Commission received additional legal briefing from the parties on the issues raised by the court’s interlocutory order. (AR 1778-1811.) The Commission held a hearing after remand, at which counsel for Petitioner and County made arguments and the Commissioners deliberated. (AR 1996-2009.) Petitioner had notice and an opportunity to argue to Commission why he believed that Legal Conclusions 1, 3, and 10 and the penalty of discharge should be set aside or modified in light of the court’s ruling that Finding of Fact 8 was not supported by the evidence. Commission issued its decision after remand after considering the parties’ written and oral arguments. This process comports with due process and disproves Petitioner’s contention that Commission was simply “rubber-stamping” its prior decision.
Contrary to Petitioner’s position, Commission reconsidered both its legal conclusions and the penalty in light of the court’s ruling. Specifically, the Commission’s decision after remand stated that the Commission “reaffirmed the discharge” and that “the conclusions of law were not altered.” (AR 1762 [emphasis].)
Petitioner cites to statements of Commissioner Kawajian and another Commissioner to argue that the Commission did not reconsider its legal conclusions, but rather only considered whether discharge was still appropriate. (OB 10-11; see AR 2003-07.) The statements of two commissioners do not show the reasoning of the entire Commission. The written decision supports that Commission reconsidered and did not alter the legal conclusions. (AR 1762.)
Moreover, Petitioner’s arguments about the Commissioners’ statements lack context. For instance, Kawajian also stated that “you’re arguing about facts that have already been through the courts … and found to be … valid.” (AR 2004.) Kawajian was correct. The court did not order reconsideration of any fact findings. In response to Kawajian, County’s attorney stated that “the remaining facts that have been upheld by the Superior Court are sufficiently egregious to result in such strong violations of policy that the discharge is the sufficient and appropriate.” (AR 2004 [emphasis added].) County’s attorney then argued that Legal Conclusions 1, 3, and 10 were supported by the evidence and sufficient to support the discharge, even without Finding of Fact 8. (AR 2004-05.) The second commissioner’s statement also suggests he understood the Commission’s obligation to reconsider the case in light of the court’s ruling on remand. (AR 2007.)
Petitioner contends that the Commission did not “undertake an evaluation of the record” after remand and did not “re-review the record.” (OB 4; Reply 8-9.) The argument is unclear. As Petitioner notes, “Commission did not undertake an independent review of the record, and thus the factual findings of the Hearing Officer are binding on the Commission. (See RJN, Exh. A, Rule 4.13.)” (OB 12, fn. 2.) Because Commission accepted the findings of the hearing officer, it was not required to read the record. (See Ibid.; see also AR 1902, fn. 1 [court’s prior decision concluding that “Petitioner expressly does not contend that Commission violated Rule 4.13”].) As discussed above, Commission did reconsider its legal conclusions and the penalty in light of the court’s ruling. Nothing further was required to comply with the court’s order.
Commission’s Conclusions of Law Are Supported by the Findings
Petitioner contends that the Commission’s Conclusions of Law, specifically numbers 1, 3, and 10, are not supported by the Findings of Fact after Finding 8 is removed. (OB 12-14.)
As Petitioner notes, Conclusions 1 and 3 specify that “[t]he physical altercation Appellant engaged in with Ponce on December 22, 2013 in the parking lot” and “[t]he conduct Appellant engaged in with Ponce on December 22, 2013 in the parking lot” both violated various policies. (AR 21-22.) Conclusion 10 is broader and states that Petitioner’s conduct on December 21 and 22, 2013 and afterward toward Ponce was not professional and violated various policies. (AR 22.)
In his briefs after remand, Petitioner does not discuss in any detail the Department policies of which he was found to have violated. Rather, Petitioner contends that, as a factual matter, “once the allegation that [Petitioner] assaulted Ponce in the car is removed, [Petitioner] did not violate any of the specified policies because he was the victim, rather than the aggressor, in the parking lot.” (OB 12; see also Reply 9-11.)
In its ruling before remand, the court rejected a similar argument that Petitioner was a victim, rather than the aggressor, in the physical altercation in the parking lot:
By concluding that Petitioner violated the Department policies at issue, Commission clearly attributed some responsibility for the physical altercation to Petitioner; it also made no finding that Ponce was the sole aggressor.
Evidence supports that conclusion. The texts contained derogatory language from both Petitioner and Ponce. (AR 259-263.) While at work and on duty, Petitioner wrote to Ponce “you fucking liar,” “answer the fucking phone,” “you’re at a bar or club with him,” “you’re going to pay for this you fucking bitch,” and “answer the fucking phone before you regret this.” (AR 261-262.) At about 1:00 am on December 22, Petitioner texted Cruz “call me right now” and “come to my work now.” (AR 262; see also AR 69 [stipulations].) These text messages support that Petitioner summoned Ponce to the station, even though the two had been fighting. Circumstantially, the text messages support that Petitioner would be likely to engage in a physical altercation with Ponce.
In Finding of Fact 8, the hearing officer found that Petitioner and Cruz physically struggled in the car. (AR 89.) …. While counsel may provide additional record citations at the hearing, the court tentatively concludes that the weight of the evidence does not support Finding of Fact 8.
However, as the parties stipulated, Petitioner and Ponce physically struggled in the parking lot, as found by the Commission. (AR 974 and 69 [stipulations]; see also AR 89.) Moreover, Petitioner admitted standing in Ponce’s way and bear-hugging her in an effort to prevent her from entering the station and embarrassing him. (AR 1510-1511, 1523.) Based on this evidence, as well as the text messages, the weight of the evidence supports that Petitioner engaged in a physical altercation with Ponce in the parking lot. While Ponce may have initiated the physical altercation in part, it is reasonable to conclude that Petitioner himself engaged in the altercation and was not purely innocent or passive.
The weight of the evidence does not support Finding of Fact 8 that Petitioner and Ponce physically struggled in the car. In all other respects, the weight of the evidence supports that Petitioner engaged in a physical altercation with Ponce on December 22, 2013 in the parking lot of Pico Rivera Station, and that this conduct violated Department policy. (AR 1769-70.)
The court reached these conclusions after determining that Finding of Fact 8 was not supported by the weight of the evidence. Petitioner does not address these parts of the court’s prior ruling and does not show that the court should reach a different conclusion now.
Findings of Fact 9-13, which Petitioner cites in its opening brief, are consistent with and support Conclusions 1, 3, and 10. Commission found that Petitioner and Ponce “struggled” once she exited the car at 2:53 am; Petitioner used his body to block Ponce from going into the station; and the physical altercation lasted about 5 minutes, from 2:50 to 2:55 am (about two minutes out of the car). (AR 89-90.) Although the findings show that Ponce may have initiated the physical altercation in part, they do not suggest Petitioner was purely innocent or passive.
The evidence cited by Petitioner in his briefs after remand does not show that Conclusions 1, 3, and 10 are not supported by the findings or the evidence. (OB 13-14; Reply 9-11.) As noted, Petitioner admitted standing in Ponce’s way and bear-hugging her in an effort to prevent her from entering the station and embarrassing him. (AR 1510-1511, 1523.) Other circumstantial evidence, including the text messages, support that Petitioner was a participant in the altercation. That Ponce did not ask for help or show visible injuries does not undermine Conclusions 1, 3, and 10. (See OB 13, citing AR 1295, 1186, 496, 1620-21, 1673, 1615, 1668, 1382-84.)
Petitioner does not show, with discussion of the Department policies, any prejudicial abuse of discretion in the Conclusions of Law, including Conclusions 1, 3, and 10. The conclusions are supported by the findings and the weight of the evidence.
Commission Complied with Topanga
Petitioner contends that “Commission provides no justification of the penalty it imposed in the new decision” and thus violated Topanga. (OB 14-15.)
In Topanga Assn. for a Scenic Community v. County of Los Angeles, (1974) 11 Cal. 3d 506, 515, the Supreme Court held that "implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order." The court explained that "findings enable the reviewing court to trace and examine the agency's mode of analysis." (11 Cal. 3d at 516-517.) “Administrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein.” (Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 954.)
As Petitioner concedes, the Commission adopted the factual findings of the hearing officer. (See OB 12, fn. 2; Pet. RJN Exh. A, Rule 4.13.) Commission also issued Revised Conclusions of Law. (AR 21-22.) Petitioner and the court can easily determine the Commission’s “mode of analysis” and reasons for discharging Petitioner from the Findings of Fact and Conclusions of Law.
Contrary to Petitioner’s position, Commission was not required to “discuss both mitigating or aggravating factors and the Guidelines for Discipline.” (OB 14-15.) Topanga requires the agency to “justify the penalty imposed, including ‘a statement of the factual and legal basis for the decision.’” (Oduyale v. Cal. State Bd. of Pharmacy (2019) 41 Cal.App.5th 101, 113.) “However, there is no legal requirement to explicitly discuss, consider, and explain the rejection of all forms of discipline short of the one selected.” (Id. at 115.) “So long as the findings ‘enable the reviewing court to trace and examine the agency's mode of analysis’ (Topanga, supra, 11 Cal.3d at p. 516, 113 Cal.Rptr. 836, 522 P.2d 12), there is no abuse of discretion under Code of Civil Procedure section 1094.5, subdivision (b).” (Ibid.) Commission’s findings and conclusions after remand satisfy this standard and comply with Topanga.
The Penalty of Discharge was Reasonable
“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.) “If reasonable minds may differ with regard to the appropriate disciplinary action, there is no abuse of discretion.” (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)
In considering whether an abuse of discretion occurred, the “overriding consideration … is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.)
“[A peace officer’s] job is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper performance of an officer's duties.” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.) “The public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability.” (Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 721.)
Although a penalty guide does not limit the discretion of an agency, a court “may properly consider evidence of the county’s policies regarding penalties.” (Paulino v. Civil Serv. Com (1985) 175 Cal.App.3d 962, 971.)
Petitioner contends that the discharge was excessive because he had sustained no prior discipline in his 16-year career; Department has a policy of progressive discipline; the dispute arose out of a “complicated and contentious relationship which has since ended”; and Petitioner’s “text messaging and inappropriate language could have been corrected through lesser discipline than discharge.” (OB 15-16; AR 906-907 [policy of progressive discipline].) Petitioner contends that there was no harm to the public service, including because Petitioner “was never the physical aggressor.” (OB 18.) Nonetheless, Petitioner also refers to the penalty recommendations for the Department policies at issue, seven of which include discharge as a possible penalty. (OB 17, citing AR 932-37.)
A lesser penalty may have been possible given Petitioner's lack of prior discipline and strong performance reviews. However, a reasonable person could conclude that discharge was the appropriate penalty based on the circumstances and policy violations discussed above and in the court’s ruling prior to remand. Petitioner’s multiple unprofessional interactions with Ponce while on duty; his efforts to prevent Ponce from making a complaint; and his violation of a no-contact order all harmed the public service and reflected poorly on Petitioner’s judgment and temperament. Discharge was consistent with Department’s policy of progressive discipline and the Department’s disciplinary guidelines, which show discharge as an appropriate penalty for violation of seven of the Department policies at issue.
The petition is DENIED.
 As discussed, the court remanded the matter because it was unclear “how much Finding of Fact 8 affected the Commission's legal conclusions 1, 3 and 10 and the choice of penalty.” (AR 1745.) However, after reconsideration on remand, Commission reached the same conclusions and penalty without Finding of Fact 8. Thus, the court’s prior analysis applies with equal force to the Commission’s decision after remand.
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