Factual and Procedural Background
The May 2014 Reprimands
Masson is a lieutenant and Squire a sergeant with the Department. In connection with the Department's investigation of another employee for
Masson's reprimand stated: "[Y]ou engaged in conduct of a sexual nature, and/or such conduct that would reasonably be considered inappropriate for the workplace, by failing to follow up with an email from a subordinate supervisor which raised concerns of a LET's [Law Enforcement Technician] [redacted] unprofessional and/or inappropriate dress in the workplace."
Squire's reprimand stated: "[Y]ou engaged in conduct of a sexual nature, and/or such conduct that would reasonably be considered inappropriate for the workplace, by having knowledge of a personal relationship between a subordinate supervisor [redacted] and a LET [redacted] and failing to take appropriate action."
The May 2014 reprimands each cited a violation of the Department's Manual of Policy and Procedure (Manual) section "3-01/121.30 Policy of Equality-Inappropriate Conduct Toward Others (Gender)." The reprimands concluded: "You are hereby reprimanded for your conduct in this incident and advised that any future violations of a similar nature may result in more severe discipline."
Masson and Squire each refused to sign the May 2014 reprimands, which were never placed in their personnel files.
The Grievance Process
Under their collective bargaining unit's Memorandum of Understanding (MOU), appellants each filed formal grievances.
Masson's grievance, filed on May 28, 2014, argued the underlying e-mail did not raise any concerns regarding the unnamed officer's unprofessional and/or inappropriate dress in the work place, and did not ask him to address any issues. Masson asked that the status of his violation be changed to "Unfounded" and that "no written reprimand be issued regarding this matter."
Masson's "First Level Supervisor" denied his grievance on June 4, 2014. Masson then submitted his grievance to the "Second Level Supervisor" on June 9, 2014, and it was deferred to the "Executive Level." On July 22, 2014, Chief Jacques A. La
Squire's grievance, filed on June 4, 2014, argued the investigation did not support the alleged violation. Squire requested "that the facts and circumstances of the case be reconsidered and that the Written Reprimand be revoked, further that no mention of this be made in grievant's Performance Evaluation nor used for any other personnel purpose." Squire's grievance also went through the same three levels, and Chief La Berge, along with another commanding officer, held a grievance hearing on the same day as Masson's hearing, July 22, 2014. As with Masson, Chief La Berge's written decision stated that Squire's grievance was "DENIED ," but the reprimand "should be modified and corrected to: 3-01/122.05 Policy of Equity-Duties of Supervisors and Managers ." Chief La Berge's written decision likewise stated that he had spoken with Squire's representative on September 16, 2014, who would notify Squire of his decision. Chief La Berge signed the decision on September 16, 2014, and it was signed off by the Sheriff or Alternate on October 20, 2014. Captain Nelson sent a formal letter of decision to Squire on October 23, 2014, which stated that the Department had rendered its decision on Squire's grievance and that the May 2014 reprimand "shall be corrected. The original charge of Manual of Policy and Procedures (MPP) section 3-01/121.30, Policy of Equality-Inappropriate Conduct Towards Others (based on sex), shall be rescinded and replaced with MPP section 3-01/122.05, Policy of Equality-Duties of Supervisors and Managers. As a result, your grievance shall be granted in part."
The September 2014 Reprimands
Inexplicably, prior to the formal letters of decision signed by Captain Nelson, Masson was presented with a written reprimand on September 25, 2014, that was signed by Chief La Berge on September 26, 2014, and Squire
Masson's reprimand stated: "[Y]ou failed to fulfill your Department reporting requirements,
Squire's reprimand stated: "[Y]ou failed to fulfill your Department mandated reporting requirements, by having knowledge of a personal relationship between a subordinate supervisor [redacted] and an LET [redacted] although you did speak to Sgt. [redacted] about the inappropriate relationship and the perceptions of other employees, you failed to immediately contact the Intake Specialist Unit."
The September 2014 reprimands contained the same disciplinary result as the May 2014 reprimands: "You are hereby reprimanded for your conduct in this incident and advised that any future violations of a similar nature may result in more severe discipline." The September 2014 reprimands were placed in appellants' personnel files.
The Writ Petition and Ruling
Appellants filed a petition for writ of mandate against the County of Los Angeles and its Board of Supervisors (the County), seeking an order directing the County to rescind and purge the September 2014 reprimands from appellants' records, and seeking civil penalties. In opposition to the writ petition, the County submitted the declaration of Captain Nelson, who stated that the September 2014 reprimands were the result of the formal grievance process initiated by each appellant and constituted modifications of the original May 2014 reprimands. The trial court denied the writ petition in a lengthy tentative decision, which was adopted as the final decision after oral argument. The court found the September 2014 reprimands were modifications of the May 2014 reprimands rather than new reprimands, that they were the result of appellant's grievances, and that they were therefore timely. This appeal followed.
I. Standard of Review
Appellants brought their writ petition under Code of Civil Procedure section 1085. "A writ of traditional mandamus ( Code Civ. Proc., § 1085 ) may be used to compel the performance of a duty that is purely ministerial in nature or to correct an abuse of discretion." ( Khan v. Los Angeles City Employees' Retirement System (2010)
II. POBRA
POBRA "sets forth a list of basic rights and protections which must be afforded all peace officers ... by the public entities
To this end, POBRA requires that investigation of a peace officer's alleged misconduct be completed within one year of discovery in order for a public agency to take punitive action against the officer. Specifically, Government Code section 3304, subdivision (d)(1) (hereafter section 3304(d) ) provides: "Except as provided in this subdivision and subdivision (g), no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the
"[T]he fundamental purpose of this provision is to place a one-year limitation on investigations of officer misconduct ... to ensure that an officer will not be faced with the uncertainty of a lingering investigation, but will know within one year of the agency's discovery of the officer's act or omission that it may be necessary for the officer to respond in the event he or she wishes to defend against possible discipline." ( Mays v. City of Los Angeles (2008)
Following Mays , section 3304(d) was amended effective January 1, 2010. (Stats. 2009, ch. 494, § 1.) Among other things, the amendment added the following language: "Letter of Intent or Notice of Adverse Action articulating the discipline that year." "The amendment was enacted to legislatively overrule the holding of Mays that subdivision (d) of the pre-2010 version of section 3304 did not require 'notification of the specific discipline contemplated by the public agency' ( Mays, supra ,
A. Notice of Proposed Discipline Was Timely
The trial court and the parties adopted May 31, 2013, as the beginning date of the one-year limitations period. Thus, under section 3304(d) the Department had until May 30, 2014, to finish its investigation and provide notice to appellants of its proposed discipline. It is undisputed that within this
We were initially troubled that it appeared from the record the Department had simply imposed discipline, rather than providing notice of proposed discipline, within the one-year deadline. We therefore asked the parties to provide additional briefing on the issue of whether the Department had complied with section 3304(d)'s notice requirement.
In their supplemental response, appellants did not squarely address this issue. Rather, they reiterated the arguments made in their original briefs; namely, that the May 2014 reprimands did not allege the misconduct upon which discipline was ultimately based; the May 2014 reprimands were rescinded and therefore cannot be deemed as complying with section 3304(d) ; and it would be contrary to public policy to give effect to the "falsely and maliciously" backdated September 2014 reprimands.
In its supplemental response, the County pointed out that appellants "did not, and apparently still do not question the adequacy or timeliness of the May 2014 reprimands, aside from their unsubstantiated claim that the amended reprimands constituted new discipline." The County persuasively argued that appellants have "repeatedly and even insistently waived" the issue of whether the Department complied with section 3304(d)'s notice requirement. (See Tisher v. California Horse Racing Bd. (1991)
Moreover, the County has convinced us that, even if there was no waiver or forfeiture here, the May 2014 reprimands were for all practical purposes intended discipline. This is so because, as Captain Nelson established in his declaration, the May 2014 reprimands were never placed in appellants' personnel files. Only the September 2014 reprimands were placed in their files. As the County points out, other provisions of POBRA recognize that only those documents actually placed in a peace officer's personnel file give rise to procedural rights by the officer, including that an officer must be given an opportunity to sign the document ( Gov. Code, § 3305 ), and must be given an opportunity to respond to an adverse comment placed in his or her file ( Gov. Code, § 3306 ).
Our conclusion that the May 2014 reprimands in fact constitute notice of proposed discipline also comports with the policy behind section 3304(d). At its essence, section 3304(d) is a statute of limitations for the investigation period. (See Mays , supra ,
B. The September 2014 Reprimands Are Not Subject to the One-Year Limitations Period
It is undisputed that both appellants utilized the grievance and multi-step review procedures of their applicable MOU, which included grievance hearings for both appellants before the chief and one other commanding officer.
POBRA provides: "Where a predisciplinary response or grievance procedure is required or utilized, the time for this response or procedure shall not be governed or limited by this chapter." ( Gov. Code, § 3304 subd. (e).) It goes without saying that if a peace officer is not required to initiate a grievance procedure within the one-year limitations period, the public employer cannot be required to issue its response to the grievance within that same year. Thus, the September 2014 reprimands are not subject to the one-year time frame in section 3304(d). As a result, the entire theory upon which appellants base their appeal therefore fails.
Appellants try to avoid this result by claiming that the grievance procedures used by them were not "predisciplinary" as required by the statute.
C. The September 2014 Reprimands Do Not Constitute New Discipline or Allege Different Conduct
Appellants also try to avoid the result that section 3304(d) is inapplicable to the September 2014 reprimands by arguing that the September 2014 reprimands were "new" discipline-i.e., they "contained different charges concerning different alleged misconduct" and therefore "fundamentally change the nature of the May 2014 reprimands."
To support their argument, appellants make a comparison of the two reprimands. In doing so, appellants' focus is too narrow and incomplete or, as the trial court aptly found, a "mischaracter[ization]" of the reprimands. A careful reading of Squire's two reprimands shows that the May 2014 reprimand accuses him not only of personally engaging in sexual conduct, but also of "having knowledge of a personal relationship between a subordinate supervisor [redacted]
Masson's May 2014 reprimand accuses him not only of personally engaging in sexual conduct, but also of "failing to follow up with an email from a subordinate supervisor which raised concerns of a LET's [redacted] unprofessional and/or inappropriate dress in the workplace ." (Italics added.) Likewise, Masson's September 2014 reprimand omits the reference to his own personal sexual conduct and accuses him of "not following up with an email from a subordinate supervisor which raised concerns of an LET's [redacted] unprofessional and/or inappropriate dress in the workplace , and/or failing to
It is true that the September 2014 reprimands identify violations of different Manual sections than the May 2014 reprimands. It is also true that appellants did not request in their formal grievances that any changes be made to the Manual sections asserted. But contrary to appellants' position, this does not remove the September 2014 reprimands from the grievance process. The different Manual sections identified by Chief La Berge were more accurate in light of the omission of allegations of appellants' own sexual misconduct. While the May 2014 reprimands referred to "Inappropriate Conduct Toward Others (Gender)," the September 2014 reprimands more correctly referred to "Duties of Supervisors or Managers." Appellants point to nothing in their MOU that would preclude the Department from making a more accurate finding in written reprimands issued after a grievance hearing.
Most importantly, the September 2014 reprimands did not increase or change the level of discipline. The discipline imposed on appellants remained exactly the same; namely, a written reprimand. Thus, there is no merit to appellants' contention that the September 2014 reprimands constituted "new" discipline.
Appellants' writ petition was properly denied.
D. Civil Penalties and Sanctions
Appellants request that in the event we find the existence of a POBRA violation and reverse the judgment, we should award each of them a $25,000 civil penalty under Government Code section 3309.5, subdivision (e) for the Department having "maliciously" violated POBRA. Because we do not find any POBRA violation, we do not address this request.
The judgment denying the petition for writ of mandate is affirmed. The County is entitled to recover its costs on appeal.
We concur:
LUI, P.J.
HOFFSTADT, J.
Notes
Because our analysis does not require resort to the legislative history of section 3304(d), we deny appellant's request to take judicial notice of this history.
Appellants attached the incorrect MOU grievance provisions to the record, attaching "Appendix C" pertaining to the District Attorney's Office, rather than "Appendix B" pertaining to the Department.
Appellants' argument that the County raises this statutory issue for the first time on appeal is without merit. Our review of the record shows that the County presented this issue below by a "Notice of Errata Re Opposition Brief," filed on May 11, 2016.
We note that appellants incorrectly state the trial court "never reached the issue of awarding Section 3309.5 penalties." The trial court expressly found there was no malicious backdating of the September 2014 reprimands because "they bear proper signature dates."