Cole v. City of L.A. CA2/5 ( 2022 )

Filed 8/25/22 Cole v. City of L.A. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ONICA COLE, B304028
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCP00802)
CITY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Affirmed.
Castillo Harper, Rains Lucia Stern St. Phalle & Silver,
Michael A. Morguess for Plaintiff and Appellant.
Michael N. Feuer, City Attorney, Vivienne A. Swanigan,
Assistant City Attorney, and Jennifer Gregg, Deputy City
Attorney, for Defendants and Respondents.
Plaintiff and appellant Onica Valle Cole (Cole), a
prosecutor in the Los Angeles City Attorney’s Office (the Office),
wanted to volunteer as a temporary judge (sometimes called a
judge pro tem). She initially obtained the Office’s approval do so,
but a supervisor later denied her request to renew that approval
because she was then on a reduced 30-hour-per-week work
schedule. Though her request was denied, Cole continued to
work as a temporary judge anyway. The Office terminated Cole
for insubordination and other behavior, and she responded by
challenging the termination via an administrative mandamus
petition. The trial court upheld Cole’s termination. We are
asked to decide (1) whether the termination must be reversed
because the Office did not offer an opportunity to
administratively appeal her supervisor’s denial of her request to
work as a temporary judge, (2) whether she was terminated not
for insubordination but for discriminatory reasons (i.e., because
of her medical condition), and (3) whether termination was too
severe a punishment.
I. BACKGROUND
A. Pertinent Policies
1. The memorandum of understanding
During the relevant time period (specifically from July 1,
2016, through June 30, 2019), attorneys employed by the Office
were covered by a Memorandum of Understanding (MOU) that
included a grievance procedure. The MOU defined a grievance as
“a dispute concerning . . . departmental rules and regulations
governing personnel practices or working conditions . . . .” The
MOU outlines a four-step grievance process. An employee is
responsible for initiating an informal discussion of the issue with
2
her immediate supervisors, and then for serving a grievance
initiation form that triggers a management review if the issue is
not resolved. If the grievance is not resolved following
management review, the employee may pursue a written appeal
to the City Attorney. And if that does not resolve the issue, the
Los Angeles City Attorneys Association, which represents
attorney employees, may make a written request for arbitration.
2. The outside employment memorandum
In January 2016, the City Attorney’s Chief of Staff, Leela
Kapur (Kapur), distributed a memorandum advising employees
they were required to obtain written approval from the City
Attorney before accepting outside employment, including
volunteer work for which they receive no payment. The memo
specifically identified service as a judge pro tem as a form of
volunteer work that required approval. The memo stated an
employee must first submit a request to his or her supervisor and
Branch Chief for approval, after which Kapur would review the
request. The memo also cautioned an employee should not accept
outside employment until he or she received a signed copy of an
approval form from Human Resources. The memo further stated
all approved requests must be renewed on an annual basis by
submitting a new approval form.
B. Cole’s Employment and Termination
Cole began working as a Deputy City Attorney for the
Office in 2002. In 2009 she was assigned to the Consumer Fraud
and Workforce Protection Unit (the unit), which is where she
worked almost exclusively for the remainder of her employment.
3
1. Cole obtains approval to volunteer as a judge
pro tem in 2016
In February 2016, Cole submitted an outside employment
approval form seeking permission to volunteer as a temporary
judge for the period beginning February 18, 2016, and ending
February 18, 2017. The form stated Cole would not be
volunteering during city time. The request was approved, with
the caveat that Cole must obtain pre-approval from her
supervisor one week before serving as a judge pro tem to attempt
to avoid any interference with her work duties.1 The approval
was signed by Cole’s supervisor (Austin); by Chief of the Criminal
Branch, Mary Clare Molidor (Molidor); and by Chief of Staff
Kapur. Cole first served as a temporary judge on March 17,
2016, which was after Austin had approved her request but
before the request had been approved by Molidor or Kapur.
In November 2016, Austin approved a request from Cole to
volunteer as a temporary judge in the afternoon on December 30,
2016. His approval email warned Cole, however, that she could
not engage in outside employment more than once per month,
beginning January 2017, because of the unit’s operational needs.
1
Such interference was not always avoided. On one occasion
in 2016, Cole’s direct supervisor, Travis Austin (Austin), had to
make a court appearance for Cole while she was serving as a
judge pro tem. On that occasion, Cole asked Austin to move to
continue a case that could be set for trial that day. Austin
considered this an imposition because it took time away from his
own cases.
4
2. Cole’s 2017 request to renew her approval is
denied
In or around late January 2017, Cole was placed on a
reduced work schedule for medical reasons; under the reduced
schedule, Cole was to work only 30 hours per week.2
On February 15, 2017 (three days before her prior outside
employment approval was to expire), Cole submitted a new
outside employment approval form. The start and end dates
were listed as “continuous.” Before receiving a response to her
renewed outside employment request, Cole asked Austin for
approval to serve as a temporary judge in the afternoon on March
2, and in the morning on March 14 and March 30. Austin replied
he could not approve the request and reminded Cole she was
limited to one instance of outside employment per month because
of the operational needs of the Consumer Section. Austin asked
her to choose one date in March that did not negatively impact
her duties and resubmit her request. Cole objected and opined
there was no longer an operational need in the unit that should
restrict her outside employment; as Cole saw it, Austin’s response
to her outside employment approval request was retaliatory and
inappropriate. Cole told Austin she would discuss the issue
directly with Molidor.
Molidor emailed Austin later the same day and informed
him she would be meeting with Cole the following Monday to
discuss her request. Molidor wrote she was disinclined to
2
Neither the record nor Cole’s briefs on appeal precisely
identify the medical condition with which she was diagnosed.
There are some references to physical symptoms including leg
and foot pain, but, as we will explain, Cole was also under the
care of a psychiatrist.
5
approve the request and wondered how Cole had time to serve as
a judge pro tem when she was unable to work 40 hours a week for
the Office.
Kapur denied Cole’s request for approval to volunteer as a
temporary judge in February 2017 via a handwritten notation on
an outside employment request form. According to the notation,
Cole’s request was denied because she was on a 30-hour per week
schedule pursuant to a medical directive, her reduced work
schedule was causing hardship to her unit, and additional time
away from the office was not feasible given the unit’s demands.
3. Cole resubmits her 2017 request and volunteers
as a pro tem
On March 3, 2017, Cole submitted another outside
employment approval form with a note at the top stating “[n]o
daytime hours if working less than fulltime.” Three days later,
Cole served as a temporary judge at night court in Pasadena.
The following day, on March 7, 2017, Austin issued Cole a
Notice to Correct Deficiencies following an investigation of an
immigration fraud case that had been initiated in April 2016.
The notice stated it was being issued based on Cole’s “failure to
follow specific instructions from management” and described
several instances of the same. Among those instances was the
aforementioned occasion in December 2016 when “contrary to the
outside employment protocols” Cole served as a temporary judge
the same morning she was scheduled to appear in court because
her case could be set for trial—forcing Austin to appear on her
behalf.
Cole met with Molidor to discuss the Notice to Correct
Deficiencies the same day it was issued to her. During that
6
meeting, Cole did not mention she had served as a temporary
judge without approval the prior evening.
Cole initiated a grievance process in response to the notice
to correct deficiencies.3 Later the same month, Cole’s work
schedule was reduced further, to 20 hours per week. The
additional reduction was predicated on written instructions from
a psychiatrist, Dr. Joel Miller, who stated Cole could perform
routine job functions, but for no more than four hours per day, for
the period from March 24, 2017, to May 8, 2017. Dr. Miller also
specified Cole would be participating in outpatient treatment
from 9 a.m. to 2 p.m. daily. Cole later provided a note from Dr.
Miller to Cristina Sarabia (Sarabia), the Office’s Human
Resources Director, which extended her four-hour-a-day work
restriction through June 19, 2017.4
In April 2017, Cole emailed Austin to ask if he had
reconsidered her request to serve as a temporary judge after
hours, or on dates and times she was not scheduled to work. She
also asked whether temporary judge assignments outside of the
City of Los Angeles required approval. Vivienne Swanigan, the
Managing Assistant City Attorney of the Labor Relations
Division, who was copied on the email, responded that all outside
3
The Office ultimately denied the grievance in January 2018
because Cole refused to meet telephonically and did not take
further action to meet when she was on active work duty.
4
In different handwriting, the note also stated: “Attend
ongoing therapy MTThF 9-2pm.” Sarabia noted the difference in
handwriting and called Dr. Miller. According to Sarabia’s notes
of that call, Dr. Miller chuckled and said he did not write that.
Cole later admitted to writing the therapy language, as well as
other language on the note.
7
employment required approval. Several days later, Cole asked
for an update on whether the Office had reconsidered her request
to serve as a temporary judge outside of the City of Los Angeles.
The following day, Tina Hess, the Deputy Chief of the Special
Litigation Division, asked Cole to submit a new written request.5
In the meantime, Swanigan became aware that Cole—who
was running for election to be a superior court judge—was
regularly appearing as a volunteer judge without approval. In
addition to working as a temporary judge on the evening of
March 6, 2017, Cole had also served as a temporary judge on the
mornings of May 30, 2017, and June 1, 2017. At the conclusion of
her shift as a temporary judge on the morning of June 1, Cole
sent an email to an Office human resources employee that
advised she was not feeling well and would not be at work that
day “Due to Workplace Injury.”
4. The notice of proposed termination
The Office served Cole with a Notice of Proposed
Termination in September 2017. The Notice outlined four
charges against Cole, asserted Cole’s conduct failed to meet the
high standards expected of an attorney working as a criminal
prosecutor in the Office, and stated the seriousness of the
offenses and surrounding circumstances warranted immediate
termination. Charge one was for fraud, dishonesty, or
falsification of records in connection with Cole’s act of submitting
5
Months later, in September 2017, the Office would update
its outside employment approval request form so it states
authorization for outside employment is suspended during any
leave under the Family and Medical Leave Act (FMLA) or
personal medical leave.
8
the May 26, 2017, note from Dr. Miller with “falsified (altered)
information,” namely the statement regarding ongoing therapy
that Cole wrote on the note. Charge two was for insubordination
in connection with Cole’s unauthorized service as a judge pro tem
on multiple occasions after her request for approval was denied.
(The charge specifically referenced Cole’s service on three
occasions in March, May, and June 2017, as well as her
statement that she was unable to go to work on June 1, 2017,
because she had ostensibly suffered a workplace injury.) Charge
three was for improper behavior in connection with race-based
statements Cole made to victims whose case she was
prosecuting.6 Charge four was for misconduct, specifically, Cole’s
reference to her unauthorized temporary judge volunteering on a
campaign website promoting her run for superior court judge.
5. The Skelly7 hearing and notice of termination
Deborah Caruso (Caruso), a Personnel Director in the
Office, convened a Skelly meeting for Cole in November 2017.
6
On May 23, 2017, an employee of the Office’s Human
Resources Department submitted a memo regarding the results
of an investigation into allegations Cole made inappropriate race-
based statements. The investigation found that on April 6, 2017,
Cole said words to the effect of, “We all share the same skin color,
this dark beautiful dark brown skin” to victims she was
representing in litigation. Cole was also reported to have
referred to other colleagues as “lazy White attorneys in the office
who don’t work too hard.”
7
“Skelly hearing” refers to the administrative hearing
required by Skelly v. State Personnel Board (1975) 15 Cal.3d 194(Skelly), a case that holds a permanent civil service employee has
9
Cole acknowledged her initial 2017 request for outside
employment had been denied, but she argued her doctor’s
restrictions that allowed her to work on volunteer assignments,
including the temporary judge program, sufficed as permission to
engage in outside employment. Cole admitted to working as a
temporary judge on May 30 and June 1, 2017. She asserted the
allegations in the termination notice she received were
retaliatory.
Caruso prepared a memo after the Skelly meeting. It
identified the penalty range for the charges brought against Cole
(which would be her first offense(s)) ranged from a six-day
suspension up to discharge from employment. Caruso
recommended termination of Cole’s employment based on her
misconduct, including insubordination.
The Office issued Cole a notice of termination in January
2018. The notice stated Cole’s employment was terminated
based, both collectively and individually, on the charges that she
worked as a temporary judge without approval, falsified or
altered a doctor’s note, and falsely claimed sick time while
working as a temporary judge.8
a property interest in continued employment that is protected by
due process.
8
The notice also concluded that a written warning regarding
the alleged inappropriate race-based statements was the
appropriate penalty.
10
C. The Administrative Appeal
Cole appealed her termination pursuant to Los Angeles
City Charter section 1050(b) and Rule 1, Section 1.2 of the Rules
Regarding Job Protection.9
An evidentiary hearing was held in late August and early
September 2018. The parties stipulated that the issues to be
decided were (1) whether there was good cause for Cole’s
termination and (2) if not, what the appropriate remedy would
be. Among the testifying witnesses were Austin, Cole, Molidor,
and Kapur.
Austin explained the unit to which Cole was assigned was a
vertical prosecution unit. That meant the same prosecutor was
assigned a particular case from start to finish, i.e., from making
the initial filing decision to handling the appeal. Austin
discussed the day he appeared in court in Cole’s stead while she
was volunteering as a pro tem judge and explained covering the
hearing was an imposition because it took time away from his
own caseload and responsibilities.
Cole, during her testimony, admitted to working as a
temporary judge on March 6, May 30, and June 1, 2017. Cole
also admitted to knowing that permission allowing outside
9
Rule 1, Section 1.1 provides the City Attorney may
discharge an employee for good cause. Cole appealed the
termination pursuant to City Charter section 1050 and Rule 1,
Section 1.2 of the Rules Regarding Job Protection. Rule 1,
Section 1.5 provides for a fair and impartial hearing before a trier
of fact to determine whether good cause exists for the action of
the City Attorney. Section 1.8 provides the decision of the trier of
fact shall be final and binding on the parties, except that either
party may seek judicial review.
11
employment was for a one-year time period and needed to be
renewed on an annual basis. She also understood the 2017 form
with Kapur’s note on it denied her recertification of permission to
work as a judge pro tem.
Molidor acknowledged temporary judge service is an
important public service, but she testified that when an attorney
volunteers as a judge pro tem, they are essentially gone for the
day when you consider travel time. Molidor understood that if
Cole was limited to 30 hours per week of work and was approved
for a temporary judge assignment she would work less than 30
hours in the office. She wondered why Cole was on a restricted
work schedule if she was well enough to work 30 hours in the
office and 10 hours as a pro tem. Molidor stated the Office does
everything they can to accommodate people for family and
medical reasons, but taking additional time away from Cole’s 30-
hour per week schedule would prohibit the unit where Cole
worked from functioning correctly.10 Molidor was also very
concerned by the realization that Cole served as a judge pro tem
on March 6, 2017, met with Molidor the following day, and did
not disclose her judge pro tem work the previous day.
Kapur testified that prosecuting employees were held to the
highest standard of integrity. She further explained she denied
Cole’s outside employment request because she was on a
restricted work schedule. Kapur said what the Office needed was
for Cole to be in the office helping them fulfill their
responsibilities when she was capable and medically cleared to
work, rather than spending time serving as a judge pro tem.
10
Molidor explained the unit Cole worked in was small and
was backed up with hundreds of requests for filing.
12
Dr. Miller did not testify during the administrative appeal
proceedings, but he did submit a declaration attaching two
exhibits. The declaration averred that one of the exhibits was a
handwritten note he drafted “on or about April 26, 2017, in which
[he] advised that . . . Cole should continue to participate in her
volunteer roles as a judge and at Sunday School as part of her
therapy.” The declaration does not specify who Dr. Miller
advised and the exhibit is nearly an entirely blank sheet of paper
on which handwritten words volunteer for judge and Sunday
school are legible but there is no intelligible context.
The hearing officer found the evidence established Cole’s
insubordination with respect to her time volunteering as a
temporary judge. The hearing officer found Cole knew she was
required to obtain approval to volunteer as a temporary judge,
she understood she was required to obtain Austin’s consent prior
to agreeing to specific assignments, and she requested permission
to work as a temporary judge on multiple dates in March. The
officer further found Cole served as a temporary judge on March
6, May 30, and June 1, 2017, even though Austin denied the
request to work as a temporary judge in March 2017 and the
Office denied her overall request to perform outside employment.
The hearing officer concluded the City had met its burden of
proving insubordination and determined Cole’s single act of
insubordination by serving as a temporary judge on March 6 was
sufficient by itself to warrant termination.11
11
The hearing officer was not persuaded that Dr. Miller’s
declaration provided mitigation for Cole’s conduct because she
served as a temporary judge on March 6 (i.e., before the April 26,
2017, note) and because the note was only an opinion that Cole
13
The hearing officer also rejected Cole’s affirmative defense
of retaliation based on a medical condition. The officer concluded
Cole had not adduced any evidence supporting the claim and
additionally reasoned that her belief that a retaliatory motive
was afoot would not have justified her insubordination. The
hearing officer further reasoned Cole had been receiving an
accommodation for her medical condition since 2014, which did
not support the claim that the City took adverse actions as the
result of Cole’s need for accommodation.
D. Cole’s Administrative Mandamus Petition
Cole filed a petition for writ of administrative mandamus
naming defendants and respondents City of Los Angeles and Guy
Prihar (the administrative appeal hearing officer). The petition
alleged, in short, that the hearing officer’s decision was invalid,
that the decision was not supported by the findings, and that the
penalty of termination was excessive and an abuse of discretion.
Cole asked the trial court to issue a writ compelling the Office to
set aside its findings and decision terminating Cole; to restore
her to full back pay, seniority, and rank; and to remove any
references to discipline from her file.
Cole argued the finding of insubordination was not
supported by the weight of the evidence because the City gave
Cole the “run-around” when she tried to accommodate the
concerns that led to the denial of her request and because the
City did not have a specific procedure in place to appeal the
denial of her request as required by Government Code section
would benefit from volunteering as a judge, not a direction from
Dr. Miller that Cole engage in such volunteering.
14
1126.12 She further argued the City discriminated against her
based on her medical leave and the decision to terminate her was
an abuse of discretion. The trial court rejected all three
arguments and denied the petition.
The court found Cole had no approval to work as a
temporary judge on March 6, she read and understood the denial
of her outside employment approval request prior to March 6,
and she served as a temporary judge anyway on that date and on
May 30 and June 1, 2017 (including during daytime hours, which
was inconsistent with her notation on her resubmitted approval
request that she sought approval for only evening work). The
court determined Cole’s section 1126 argument was a procedural
issue that did not justify Cole’s insubordination. As the trial
court reasoned, Cole could not simply ignore the Office’s denial of
her outside employment approval request; she should have
contested the procedure administratively or sought judicial
review if she believed the procedure was inadequate.
The court further found the record did not support Cole’s
contention that her termination was motivated by discrimination
based on her medical condition. The court explained Cole was
hired as a full-time prosecutor. Outside employment was not
within the scope of her job and was subject to the Office’s
12
In pertinent part, the statute provides a “local agency shall
adopt rules governing the application of this section. The rules
shall include provision for notice to employees of the
determination of prohibited activities, of disciplinary action to be
taken against employees for engaging in prohibited activities,
and for appeal by employees from such a determination and from
its application to an employee.” (Gov. Code, § 1126, subd. (c).)
Undesignated statutory references that follow are to the
Government Code.
15
discretionary approval. There was evidence her pro tem judging
interfered with Cole’s work duties and Austin and Molidor were
concerned about the impact of Cole’s judge pro tem activities on
her unit. Kapur denied Cole’s request for outside employment
because Cole’s working hours were limited to 30 hours per week
and additional time away was not feasible given the unit’s work
demands. The court deemed these legitimate, non-discriminatory
reasons for denial. The court also determined there was nothing
unlawfully discriminatory about the reasoning, later turned into
policy, that an employee who has shortened work hours for
medical reasons may not engage in outside employment. The
court found this particularly supportable for a Deputy City
Attorney volunteering as a judge pro tem because both involve
legal work.
Finally, the trial court determined the penalty imposed,
discharge, was not a manifest abuse of discretion. The court
acknowledged that the City operates under a policy of progressive
discipline, and the only arguable progressive discipline imposed
before Cole’s termination was the issuance of the notice to correct
deficiencies. The court also recognized Cole’s insubordination
involved outside employment and there was no evidence her
three acts of insubordination resulted in any actual harm to the
public service. The court found, however, that Cole’s status as a
lawyer and prosecutor worked against her, stating the public
service is undermined when an employee disobeys a lawful order.
Kapur and Molidor testified prosecutors are held to the highest
ethical standards and the Office cannot have a prosecutor who
deliberately violated an order. The court acknowledged Cole
tried to work within the system by resubmitting her request, but
it also stated she ultimately ignored the denial. The court also
16
stated the likelihood of recurrence favored the City, as Cole
deliberately violated the denial of her request on three occasions,
two of which occurred after her receipt of a notice to correct
deficiencies. The court found that in accordance with the
disciplinary guidelines and due to the higher standard of
behavior imposed on Cole as a lawyer and a prosecutor, the
hearing officer did not manifestly abuse his discretion by
affirming the penalty of discharge.13
II. DISCUSSION
The trial court did not err. Cole’s argument that
defendants did not strictly comply with section 1126, subdivision
(c) does not undermine the termination decision because the
Office’s existing grievance procedure satisfies the statute’s
requirement for a mechanism to appeal outside employment
approval determinations and the statute in any event is
directory, not mandatory. Cole’s argument that her discharge
was motivated by unlawful discrimination fails because
substantial evidence supports the trial court’s finding that Cole’s
request was denied for legitimate, nondiscriminatory reasons.
Finally, because termination was within the range of
punishments for a single act of insubordination and Cole
committed three such acts, substantial evidence also supports the
13
The trial judge said he personally would not have
discharged Cole under the facts, but stated he could not
substitute his discretion for that of the City Attorney where
reasonable minds can differ. The disciplinary standards allowed
termination for a single offense of insubordination, and Cole
engaged in insubordinate conduct on three occasions.
17
trial court’s finding that her termination was not a manifest
abuse of discretion.
A. Standard of Review
Code of Civil Procedure section 1094.5 governs judicial
review of a final administrative decision. “‘[D]iscipline imposed
on public employees affects their fundamental vested right in
employment,’ and therefore, when a public employee challenges
an employer’s disciplinary action in a mandamus proceeding, the
trial court is required to exercise its independent judgment on the
evidence. [Citations.]” (Wences v. City of Los Angeles (2009) 177
Cal.App.4th 305, 314; accord, Strumsky v. San Diego Cty.
Employees Retire. Ass’n. (1974) 11 Cal.3d 28, 44.)
“The independent judgment test required the trial court to
not only examine the administrative record for errors of law, but
also exercise its independent judgment upon the evidence in a
limited trial de novo. [Citation.] The trial court was permitted to
draw its own reasonable inferences from the evidence and make
its own credibility determinations. [Citation.] At the same time,
it had to afford a strong presumption of correctness to the
administrative findings and require the challenging party to
demonstrate that such findings were contrary to the weight of the
evidence. [Citation.]” (Candari v. Los Angeles Unified School
Dist. (2011) 193 Cal.App.4th 402, 407 (Candari).)
On appeal, we review the record to determine whether the
trial court’s findings (not those of the administrative agency) are
supported by substantial evidence. (Candari, supra, 193
Cal.App.4th at 407-408.) “We resolve all evidentiary conflicts and
draw all legitimate and reasonable inferences in favor of the trial
court’s decision. [Citation.] ‘Where the evidence supports more
18
than one reasonable inference, we are not at liberty to substitute
our deductions for those of the trial court.’ [Citation.]” (Id. at
408.) Statutory interpretation questions, however, are resolved
de novo. (Lopez v. Ledesma (2022) 12 Cal.5th 848, 857.)
B. Cole Disobeyed a Valid Direction Not to Volunteer as
a Temporary Judge
The trial court affirmed the hearing officer’s decision that
upheld Cole’s discharge for insubordination based on her acts of
volunteering as a pro tem judge three times after receiving a
denial of her request for approval to do so. The Policies of the
Personnel Department of the City of Los Angeles specify that the
“[r]efusal to perform reasonable work assignments or to cooperate
with supervisors or management in the performance of duties” is
insubordination. “Insubordination can be rightfully predicated
only upon a refusal to obey some order which a superior officer is
entitled to give and entitled to have obeyed.” (Parrish v. Civil
Service Com’n of County of Alameda (1967) 66 Cal.2d 260, 264.)
Cole does not challenge the substantiality of the evidence
regarding her own actions. Indeed, she could not—the evidence
firmly establishes she knew she was required to obtain approval
in order to volunteer as a judge pro tem, knew her request for
approval in 2017 had been denied, and volunteered as a judge pro
tem three times despite the denial.
Cole instead focuses on the Office’s decision to deny her
outside employment approval request in 2017. She argues the
decision is infirm because defendants’ outside employment
approval policy does not comply with section 1126, subdivision (c)
because it does not explain how an employee may appeal a
refusal to authorize outside employment. In Cole’s view, she
19
cannot be found insubordinate for contravening a decision made
pursuant to a statutorily noncompliant policy.
Our assessment of the merits of this argument naturally
begins with the text of section 1126. The statute generally
prohibits public employees from engaging “in any employment,
activity, or enterprise for compensation which is inconsistent,
incompatible, in conflict with, or inimical to his or her duties as a
local agency officer or employee or with the duties, functions, or
responsibilities of his or her appointing power or the agency by
which he or she is employed.” (§ 1126, subd. (a).) The key
provision of the statute for our purposes is subdivision (c), which
we already quoted in the margin. It states in pertinent part that
“[t]he local agency shall adopt rules governing the application of
this section. The rules shall include provision for notice to
employees of the determination of prohibited activities, of
disciplinary action to be taken against employees for engaging in
prohibited activities, and for appeal by employees from such a
determination and from its application to an employee.”14
(§ 1126, subd. (c).)
In our view, the existence of the Office’s grievance
procedure, outlined in the MOU that covers attorneys employed
by the Office (and summarized at the outset of this opinion),
suffices to comply with section 1126, subdivision (c)’s requirement
of provision for appeal by employees of the Office’s outside
14
Cole appears to read section 1126, subdivision (c) to say the
rules must include provision “for notice . . . for appeal” rather
than to say “provision . . . for appeal . . . .” This is an awkward
reading of the language, and we are unpersuaded that it is the
correct one. We need not resolve this issue, however, because we
would reach the same conclusion under either construction.
20
employment determinations. Nothing in the statute requires a
local agency’s “rules” to appear all in one self-contained
document. It is also undisputed that Cole was aware of both the
outside employment memorandum and the grievance procedure
described in the MOU; indeed, the record reveals Cole availed
herself of both (she invoked the grievance procedure in
connection with the Notice to Correct Deficiencies that in one
respect involved a problem arising from her temporary judge
volunteerism). Further, the MOU’s grievance process permits an
attorney employee to address “a dispute
concerning . . . departmental rules and regulations governing
personnel practices or working conditions” and the Office’s
outside employment policy governs “personnel practices” related
to employees’ outside activities that might pose a conflict of
interest. Though the MOU does not specifically reference the
outside employment policy, its grievance process is broadly
framed such that it covers conflicts over that process and it is
obvious Cole could have invoked it—certainly when the record
reveals she was not shy about challenging actions taken by Office
management when she disagreed with those actions.
Moreover, even if section 1126, subdivision (c) were read to
require a full description of an appeal procedure (or at least an
express cross-reference to an already existing appeal procedure)
in the same document that sets a local agency’s rules on outside
employment, Cole still would not be entitled to reversal. That is
so because such a statutory requirement must be read as only
directory (not mandatory).
“Whether a requirement is mandatory or directory is
determined largely by its effect: ‘If the failure to comply with a
particular procedural step does not invalidate the action
21
ultimately taken[,] . . . the procedural requirement is referred to
as “directory.” If, on the other hand, it is concluded that
noncompliance does invalidate subsequent action,
the requirement is deemed “mandatory.” [Citation.]’
[Citations.]”15 (Kabran v. Sharp Memorial Hosp. (2017) 2 Cal.5th
330, 340, first alteration added.) “‘Whether a particular statute
is intended to impose a mandatory duty is a question of
interpretation for the courts.’ [Citation.]” (People v. Allen (2007)
42 Cal.4th 91, 101-102.)
“The paramount consideration [in determining whether a
statute is mandatory or directory] is the objective of the statute.”
(Downtown Palo Alto Com. for Fair Assessment v. City Council
(1986) 180 Cal.App.3d 384, 395.) “If [an] element is essential to
promote the statutory design, it is ‘mandatory’ and less than full
compliance is not acceptable. [Citation.] If not, it is ‘directory.’
[Citation.] ‘If a statutory directive does not go to “‘the essence’ of
the particular object sought to be obtained, or the purpose to be
accomplished” and a “departure from the statute will cause no
injury to any person affected by it,” the provision will be deemed
directory.’ [Citation.]” (Manderson-Saleh v. Regents of University
of California (2021) 60 Cal.App.5th 674, 703-704; see also
Coastside Fishing Club v. California Fish & Game Com. (2013)
215 Cal.App.4th 397, 425 [“[I]n the absence of prejudice, lack of
15
This is distinct from another possible meaning of
“mandatory,” one that “refers to an obligatory duty which a
governmental entity is required to perform, as opposed to a
permissive power which a governmental entity may exercise or
not as it chooses.” (Morris v. County of Marin (1977) 18 Cal.3d
901, 908-911.)
22
strict compliance with a statute does not render subsequent
proceedings void”] (Coastside Fishing).)
Subdivision (c) provides an agency’s rules “shall” include
the relevant provisions, but “[t]he word ‘shall’ in a statute does
not necessarily denote a mandatory requirement; it may be
construed as directory . . . .” (Coastside Fishing, supra, 215
Cal.App.4th at 425.)16 More importantly, the language of section
1126 does not establish or indicate there is any penalty or remedy
for noncompliance with subdivision (c). “‘When a statute does not
provide any consequence for noncompliance, the language should
be considered directory rather than mandatory.’” (Ibid.) That is
true of section 1126, subdivision (c).
Cole argues otherwise, relying in part on Mazzola v. City
and County of San Francisco (1980) 112 Cal.App.3d 141(Mazzola) for the proposition that section 1126 is not “self-
executing.” Mazzola held an agency must provide notice to an
employee that a conflict of interest exists before charging an
employee with its violation. (Id. at 154.) It further stated,
“[n]otice should also be provided to the employee with regard to
the agency’s intended disciplinary action, as well as provisions for
appeal from the agency’s determination.” (Id. at 154.) Mazzola
does not address the mandatory versus directory distinction. Nor
does it support holding the Office’s actions invalid here, where a
16
Section 14, which governs the construction of the
Government Code generally, provides that “‘[s]hall’ is mandatory
and ‘may’ is permissive.” Juxtaposing mandatory with
“permissive” rather than “directory” suggests the Legislature was
indicating how the word should be used in an analysis of whether
a term is obligatory rather than permissive, not whether it is
mandatory or directory.
23
general grievance procedure applicable to many personnel issues
was an available appeal mechanism and Cole was aware of the
procedure.
Additionally, there is no evidence in the record indicating a
different result would have been probable if Cole had initiated a
grievance or been given an alternate route for appeal. To the
contrary, the record indicates the City Attorney amended the
Office’s general policy to specifically provide outside employment
would not be authorized while employees were on FMLA or
personal medical leave.
Finally, Cole’s complaint that the grievance procedure is
deficient because it does not address what happens to a request
for outside employment pending an appeal is unpersuasive. The
outside employment policy stated an employee should not accept
outside employment until he or she received a signed copy of the
approval form from Human Resources. As there would be no
signed copy of approval during the pendency of the grievance
process, the policy provides the employee would not be permitted
to engage in outside employment during that time.
C. Substantial Evidence Supports the Trial Court’s
Resolution of Cole’s Discrimination Claim
Cole contends she was not bound to comply with the
Office’s denial of her request for outside employment because it
was based on discriminatory reasons, namely doubt regarding
her medical condition. Assuming without deciding that a
discriminatory motivation would have excused her compliance
with the order, Cole’s argument is still unpersuasive.
Substantial evidence supports the trial court’s
determination that the denial was based on legitimate,
24
nondiscriminatory reasons.17 Cole was a Deputy City Attorney in
a vertical prosecution unit, meaning she handled her cases from
inception to completion. If other matters kept her out of the
office—and out of court—others in her unit were forced to cover
for her. Cole’s volunteer work as a judge pro tem impacted her
performance at work and impacted the business operations of her
unit. In December 2016, Cole volunteered as a judge pro tem on
the same day she was scheduled for trial in a matter. As a result
of her unavailability, her supervisor, Austin, was required to
appear in court on her behalf. Her pro tem service thus disrupted
not only her own work, but also Austin’s.
When Cole sought permission to renew her approval for
outside employment, she was working on a reduced schedule. By
that time, Austin had already informed her she would be limited
to one volunteer session per month due to the operational needs
of the section. According to Molidor’s testimony at the hearing,
Cole’s unit had a significant backlog at the time of her 2017
request. Molidor also testified that participation in pro tem
judging was time consuming (with travel time, usually an all-day
affair) and would likely limit Cole’s available working hours
further. This is substantial evidence the operational needs of the
unit were, in fact, such that additional time taken from Cole’s
already limited work schedule would be detrimental to the unit’s
operation.
17
Cole contends we may exercise our independent judgment
in deciding this issue. The case law she cites in support of that
claim, however, does not support the proposition. We see no
reason a different standard of review would apply.
25
Cole argues these stated concerns are inconsistent with
Molidor questioning how Cole could have time to be a judge pro
tem if she were unable to work 40 hours per week for the Office,
and with Kapur testifying Cole should be devoting her time to the
office if she is capable of working, medically cleared, or medically
able to work. She contends the true reason for the denial was
doubt regarding the medical basis underlying her leave. Read in
full context, however, these statements merely communicate a
belief that an employee on a reduced work schedule for medical
reasons should be required to spend the time they are permitted
to and capable of working doing their job, and should not be
allowed to engage in outside employment. This is especially true
here, where the outside employment so closely mirrored Cole’s
actual employment (both involve litigation in court). This belief
does not express doubt regarding the basis for or validity of Cole’s
medical leave.
Cole seems to contend the Office’s position was that if an
employee could work 30 hours, the remainder of their time
should be devoted to work “in disregard of her medical leave and
reduced hours.” This misinterprets the position. The Office was
not attempting to disregard Cole’s medical leave. Cole could have
spent her medical leave time engaged in therapy, hobbies, or
other activities. The Office merely, and reasonably, disagreed
with Cole’s position that she could pursue other employment,
expressly defined by the Office’s policy to include judge pro tem
work, during her medical leave time.18
18
Though it was not addressed in the Office’s policy or denial
of Cole’s request, it is reasonable to infer that service as a judge
pro tem when working on a reduced schedule “involves the time
demands as would render performance of [the employee’s] duties
26
D. Cole’s Termination Was Not a Manifest Abuse of
Discretion
“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.” (Lake v. Civil Service Commission (1975) 47
Cal.App.3d 224, 228.) “[I]t is well settled that in reviewing the
penalty imposed by an administrative body, neither a trial court
nor an appellate court is free to substitute its own discretion as to
the matter.” (Nightingale v. State Personnel Board (1972) 7
Cal.3d 507, 515.) “In considering whether such abuse occurred in
the context of public employee discipline, we note that the
overriding consideration in these cases 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, supra, 15 Cal.3d at 218.)
“It is . . . essential to the public service that its employees
obey all lawful orders given them in the course of their
employment.” (Belmont v. State Personnel Bd. (1974) 36
Cal.App.3d 518, 523.) “In weighing these factors, we may
consider the nature of the profession in issue, since some
occupations such as law enforcement, carry responsibilities and
limitations on personal freedom not imposed on those in other
fields.” (Thompson v. State Personnel Bd. (1988) 201 Cal.App.3d
as a local agency officer or employee less efficient” (§ 1126, subd.
(b)) and was thus precisely the sort of activity section 1126
contemplates prohibiting.
27
423, 429; accord, Anderson v. State Personnel Bd. (1987) 194
Cal.App.3d 761, 771.)
The trial court found Cole’s termination was not a manifest
abuse of discretion based on the City’s disciplinary guidelines and
the nature of Cole’s profession. The court also indicated the
likelihood that Cole’s insubordinate behavior would recur favored
the City’s action. Substantial evidence supports the trial court’s
determination.
The Policies of the Personnel Department of the City of Los
Angeles provide that a single act of insubordination is punishable
by a range of options, from a six-day suspension to discharge.
The suggested punishment for a second act of insubordination is
discharge. Cole volunteered as a judge pro tem three times
without any authorization from the City Attorney, and with full
knowledge her request to volunteer as a judge pro tem had been
denied. Because we have previously concluded substantial
evidence supports the trial court’s ruling this constituted
insubordination, the three instances combined more than meet
the threshold for termination under the City’s policies.
It is true, as the trial court noted, that there is no evidence
Cole’s insubordination resulted in a specific, quantifiable harm to
the public service, but the very nature of her profession
nevertheless supports an inference of harm. Kapur and Molidor
testified that prosecutors are held to the highest ethical
standards, and the Office did not feel comfortable with Cole
continuing to serve as a prosecutor. There is no question Cole
was aware her request had been denied when she volunteered
each of the three times. Her deliberate disregard of the
determination itself constitutes a sufficient adverse effect on
public service, including by undermining the City Attorney’s
28
confidence in her ability to follow lawful instructions in serving
the public.
Cole argues her volunteering as a judge pro tem was, to the
contrary, itself in furtherance of public service. While volunteers
who serve as pro tem judges in normal circumstances do indeed
serve the public, the same cannot be said here, where a
prosecutor knowingly defied a direct order to volunteer as a
temporary judge. Cole also contends her volunteering did not
result in activities in conflict with her duties as a prosecutor.
However, it is clear her volunteering directly interfered with her
execution of her duties at least once, in December 2016, when she
volunteered as a judge pro tem on a morning on which she was
scheduled to appear in court.
There was also substantial evidence suggesting a likelihood
of recurrence. Cole served as a pro tem three times after her
request to do so was denied. Even if Cole could justify her
volunteer session on March 6 by arguing she believed it was
possible the Office would reverse its denial of her request, the
Office’s refusal to so reverse itself over the ensuing months
demonstrates Cole could not have reasonably been under such a
misimpression when she attended her subsequent temporary
judge volunteer sessions. Further, nothing in the record suggests
Cole took responsibility for her actions or understood why they
were problematic. Having thrice demonstrated her belief that
her interest in volunteering as a judge pro tem was more
important than her obligation to follow orders issued by her
employer, it is reasonable to conclude she would continue acting
in that manner in the future.
Cole also suggests that she was barred from all volunteer
work “beneficial to her psyche.” This is not supported by the
29
record, which indicates only that she was barred from service as
a judge pro tem, a position the Office specifically identified as
volunteer service requiring prior approval. Nothing in the record
indicates the Office would, or could, have prevented her from
volunteering as a Sunday school teacher.
30
DISPOSITION
The judgment is affirmed. The City shall recover its costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
31