Trejo v. County of Los Angeles ( 2020 )

Filed 6/9/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CHRISTOPHER TREJO, B293564
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BS167487)
v.
COUNTY OF LOS ANGELES
et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Affirmed.
Hausman & Sosa, Jeffrey M. Hausman and Larry D.
Stratton for Defendants and Appellants.
Rains Lucia Stern St. Phalle & Silver, Jacob A. Kalinski
and Brian P. Ross for Plaintiff and Respondent.
________________
Deputy sheriff challenged his employer’s practice of
extending probation while investigating the deputy’s claimed
misconduct as violating the Los Angeles County Civil Service
Rules. Trial court agreed with deputy and issued a writ of
mandate directing the Los Angeles County Sheriff’s Department
to reinstate deputy as permanent civil service employee. We
affirm, holding the plain language of the rules does not authorize
the department’s practice of extending probation by re-assigning
deputies under investigation to administrative duty. We also
agree the deputy did not fail to exhaust administrative remedies.
FACTUAL BACKGROUND
A. The Probation System for Los Angeles County
Employees
As a political subunit of the County of Los Angeles
(County), employment at the Los Angeles County Sheriff’s
Department (Department) is subject to the County’s Civil Service
Rules (Rules).1 The Rules provide for an initial probationary
period after the employee is appointed for County employers to
evaluate prospective employees before they are hired into
permanent roles. Rule 12.02(A) specifies this probationary period
“shall be no less than six nor more than 12 calendar months from
the date of appointment.”
There are several differences between permanent and
probationary employees from both the perspectives of the
employee and their employer. For instance, permanent
employees participate in retirement plans while probationary
employees do not. But, the crucial difference between the two
1 Further rule references are to the Civil Service Rules.
2
classes of employees which drives this appeal is that it is much
more difficult to terminate a permanent employee than it is to
fire an employee on probation. (See Birdsall v. Carrillo (1991)
231 Cal.App.3d 1426, 1431 [“A probationary employee serves at
the pleasure of the County and may be rejected from a position
without a hearing or judicially cognizable good cause” (fn.
omitted)].)
In order to terminate a permanent employee, a County
employer must provide a right of administrative appeal under
Government Code section 3304, subdivision (b), as well as the
pre-termination safeguards provided by Skelly v. State Personnel
Board (1975) 15 Cal.3d 194 (Skelly) in the form of a “Skelly
hearing.”2 This is deliberate. According to the County’s
2 The right of administrative appeal provided by
Government Code section 3304 is an important pre-termination
safeguard guaranteed by the Public Safety Officers Procedural
Bill of Rights Act (POBRA; Gov. Code, § 3300 et seq.) POBRA’s
declared purpose was to maintain stable employer-employee
relations in order to ensure effective law enforcement. (Gov.
Code, § 3301.) One of the rights afforded to a public safety officer
is the right to an administrative appeal of any punitive action or
denial of promotion on grounds other than merit. (Gov. Code,
§ 3304, subd. (b).) “Punitive action is defined as ‘any action that
may lead to dismissal, demotion, suspension, reduction in salary,
written reprimand, or transfer for purposes of punishment.’
(§ 3303 . . . .)” (Los Angeles Police Protective League v. City of Los
Angeles (2014) 232 Cal.App.4th 136, 141, italics omitted.)
The protections afforded by Skelly apply to all permanent
public employees. Skelly holds that permanent public employees
are entitled to certain procedural rights before proposed
discipline is implemented. These include being provided with a
copy of the charges and materials upon which the proposed action
3
“Employee Handbook,” “If you do not meet performance
requirements and expectations, or your behavior is unacceptable,
you may be released if you are a first-time probationer.” (L.A.
County Employee Handbook (2003) Probation, p. C-2.)
Deputy sheriffs serve 12-month probationary periods.
Promotion into a permanent position is made by evaluating a
deputy’s performance of the five essential duties of a deputy
sheriff. They are: (1) testifying in court; (2) driving a County
vehicle; (3) qualifying with weapons; (4) making a forcible arrest;
and (5) seizing evidence or contraband.
If a deputy sheriff is investigated for misconduct while still
on probation, it is the Department’s policy to place that deputy on
“[r]elieved of duty status” pending the results of the
investigation. Deputies placed on “relieved of duty status” may
be reassigned to modified duties, such as administrative jobs,
that do not involve three of the five essential duties of a sheriff,
namely, qualifying with weapons; making a forcible arrest; and
seizing evidence or contraband. Because deputies on modified
duty do not perform all the essential duties of being a deputy
sheriff, the Department has a policy in which it “extends” the 12-
month probationary period for the duration of the investigation.
The extension is necessary because the Department cannot fully
evaluate a deputy for promotion into permanent service when the
deputy on modified duty is only performing some of the essential
duties of being a deputy sheriff.
is based, as well as being informed of the right to respond, either
orally or in writing, before the public employer imposes the
proposed discipline. (See, e.g., Flippin v. Los Angeles City Bd. of
Civil Service Commissioners (2007) 148 Cal.App.4th 272, 280.)
4
The primary issue in this appeal is whether the
Department’s policy of “extending” the maximum 12-month
probationary period by placing a deputy under investigation into
an administrative job is lawful under the Rules.
B. Trejo’s Employment by the Department
After graduating from the academy, respondent
Christopher Trejo was hired as a Deputy Sheriff Generalist on
February 23, 2014. Trejo’s 12-month probationary period started
that day. About four months later, Trejo was involved in a use-
of-force incident which triggered an investigation. The incident
involved a handcuffed inmate who was kicking and pulling away
from officers. This commotion attracted the attention of several
officers, including Trejo. But only Trejo physically engaged with
the inmate. Trejo was relieved of duty on June 20, 2014, pending
an investigation into violation of use-of-force policies. He was
issued a civilian identification card, relieved of his gun and
badge, and no longer possessed police powers. Trejo was then
reassigned to the records unit pending this investigation. The
evidence before the trial court was that in this modified position
Trejo did not perform the essential duties of a deputy sheriff.
Trejo continued to be paid.
On August 4, 2014, the Department provided Trejo with a
letter purporting to extend his statutory 12-month probation
period. That letter stated: “In accordance with Civil Service Rule
12.02, your probationary period as a Deputy Sheriff, Item
Number 2708, has been extended. This extension is due to your
relieved of duty status. [¶] Upon your return to your assigned
duties, your unit will notify Personnel Administration Bureau
and your probationary period will be recalculated.”
5
Nearly 18-months later, on January 20, 2016, the
Department terminated Trejo as taking the position that he
remained a probationary employee. The Department’s
termination letter also informed Trejo of certain appeal rights.
Because the Department did not consider Trejo a permanent
employee, he was not notified of any rights to a Skelly hearing or
other pre-termination safeguards available to permanent County
employees.
On January 29, 2016, Trejo requested a “Liberty Interest,”
or “Lubey” hearing, “to clear [his] name and be reinstated as a
deputy sheriff.” (See Lubey v. City and County of San Francisco
(1979) 98 Cal.App.3d 340, 346.)3 Following a hearing on
August 25, 2016, the Department issued its decision confirming
Trejo’s termination and concluded he should not be reinstated.
Trejo then contested his termination by filing a request for
a hearing before the Civil Service Commission (Commission),
asserting he was a permanent employee at the time of his
termination. The Department objected to Trejo’s petition arguing
the Commission lacked jurisdiction because Trejo was only a
probationary employee. The Department also claimed the
petition was untimely. The Commission agreed the petition was
3 Lubey hearings are available to probationary deputies
who are discharged based on allegations of misconduct. A
protected “ ‘liberty interest’ ” is involved because they may have
their reputations stigmatized and thus may have additional
difficulty obtaining another law enforcement job. Lubey provides
a right to appeal for the limited purpose of name-clearing. (See
Lubey v. City and County of San Francisco, supra, 98 Cal.App.3d
at pp. 346-347; see also Riveros v. City of Los Angeles (1996) 41
Cal.App.4th 1342, 1359.)
6
untimely and did not rule on the merits of whether Trejo was a
permanent employee entitled to civil service pre-termination
rights.
PROCEDURAL BACKGROUND
Trejo then challenged his termination by filing a petition
for writ of mandate in superior court. His first amended petition,
filed May 24, 2017, and the complaint operative on this appeal,
alleged three causes of action: (1) a writ of mandate pursuant to
Code of Civil Procedure section 1085; (2) a writ of administrative
mandate pursuant to Code of Civil Procedure section 1094.5; and
(3) relief under Government Code section 3309.5.
The first cause of action alleged the County unlawfully
extended Trejo’s 12-month probationary period in contravention
of rule 12.02(B).4 As more fully discussed below, rule 12 not only
provides that the probationary period for permanent County
employment may not exceed 12 months, it also authorizes a
County employer to re-calculate the length remaining on a
candidate’s probation when the employee is “absent from duty.”
Specifically, when a candidate is “absent from duty,” rule
12.02(B) authorizes the employer to stop the 12-month clock for
the “time away.” The rule also explains the method of
calculation: the probationary period remaining after an absence
from duty equals “actual service exclusive of the time away.”
(Rule 12.02(B), italics added)
4 As Trejo ultimately prevailed under this cause of action,
and because the traditional mandamus relief he successfully
sought thereby mooted his second and third causes of action, we
omit discussion of the latter two causes of action.
7
The County argued Trejo was “absent from duty” when he
was given his replacement administrative job because he was not
performing the five essential duties of a deputy sheriff. And,
since Trejo was never reinstated to a position involving carrying
a gun, making arrests, and seizing evidence, he remained “absent
from duty” until the day of his termination.
Trejo rightly responded by pointing out rule 12.02(B)
cannot be read in isolation. He observed a key phrase in rule
12.02(B), “actual service,” is a defined term found at rule 2.01.
And, under rule 2.01, an employee is engaged in “ ‘[a]ctual
service’ ” whenever that employee is performing “the duties of a
position or positions including absences with pay.” (Rule 2.01,
italics added.)
The trial court recognized that evaluating this argument
required it to interpret rules 2.01 and 12.02(B) together.
Applying rule 2.01’s definition of “actual service” to rule 12.02(B)
implies that so long as a probationary employee is performing the
duties of “ ‘a position,’ whether or not it is one for which the
employee was hired,” the time in that other position still counted
toward completion of the employee’s 12-month probation. In
other words, even though Trejo was performing an
administrative function, he was still performing the duties of “a
position,” and the time in that other position must be counted
toward completion of his probation. For Trejo, this meant his
transfer into an administrative job did not “extend” his probation,
it was just more time in another position that counted toward
completion of his 12-month probation.
The court had to address a procedural hurdle before
reaching this result, however. If Trejo did not exhaust his
administrative remedies, as the County argued in response, the
8
court would lack jurisdiction. The court considered two
arguments proffered by the County.
First, the County argued Trejo should have filed a
grievance with the Commission contesting his probation
extension. The court rejected this argument because the
Commission lacked jurisdiction to rule on Trejo’s claim. The
Commission only has the jurisdiction it is explicitly given by the
County Charter and the Civil Service Rules, and neither confers
jurisdiction over interpretive disputes involving the Rules. (See
Zuniga v. Los Angeles County Civil Service Com. (2006) 137
Cal.App.4th 1255, 1259-1260.)5
Second, the court considered whether Trejo had an
opportunity to contest his probation extension under the
grievance and arbitration process outlined in the memorandum of
understanding (MOU) effective between Trejo’s collective
bargaining unit, the Association for Los Angeles Deputy Sheriffs
(ALADS), and the County. The court found the MOU grievance
process did not allow review of a probation extension grievance,
however, because the MOU’s arbitration process—which is the
final level of review for MOU grievances—was explicitly
disempowered to rule on claims involving interpretation of the
Rules.
The court concluded Trejo did not fail to exhaust
administrative remedies because there was no process by which
he could have contested his probation extension.
Because there was no procedural bar to review on the
merits, the court therefore reviewed Trejo’s claim in traditional
mandamus. It ruled for Trejo and found he became a permanent
5 The County does not contest this holding on appeal.
9
employee entitled to Skelly rights and an administrative appeal
12 months after his probation period initially began.
The court further ordered the County to: “[S]et aside the
dismissal of [Trejo] effective January 20, 2016 and to provide
[Trejo] with backpay, as required by law, from the date of his
dismissal on January 20, 2016. Should [the County] determine to
subject [Trejo] to punitive action, [the County] must provide
[Trejo] with all applicable pre-disciplinary rights, including, but
not limited to, those rights provided in [Skelly], and to provide
[Trejo] with an administrative appeal pursuant to Civil Service
Rule 4.01.”
The court further ordered the Commission to: “[S]et aside
its decision on November 9, 2016 denying [Trejo’s] request for an
administrative appeal and to grant [Trejo] an administrative
appeal pursuant to Civil Service Rule 4.01 should the
Department determine to subject [Trejo] to punitive action . . . .”
The County timely appealed.
DISCUSSION
The County argues the trial court erred for two reasons.
First, the County insists the trial court’s conclusion Trejo became
a permanent employee 12 months after his probationary period
began is flawed because it relies upon an erroneous
interpretation of rule 12.02(B). Second, the County argues the
trial court lacked jurisdiction to reach the merits because Trejo
failed to exhaust his administrative remedies.
A. Standard of Review
Findings of fact made by a trial court in a judgment on a
petition for a traditional writ of mandate are reviewed for
substantial evidence. We independently review its conclusions of
10
law. Conclusions of law include the interpretation of a statute
and its application to undisputed facts. (California Public
Records Research, Inc. v. County of Stanislaus (2016) 246
Cal.App.4th 1432, 1443.)
B. Applicable Law
1. Rules of Statutory Interpretation
“Generally, the same rules of construction and
interpretation which apply to statutes govern the construction
and interpretation of rules and regulations of administrative
agencies. [Citation.]” (Cal. Drive-in Restaurant Assn. v. Clark
(1943) 22 Cal.2d 287, 292.) Thus, “the interpretation of civil
service rules is purely a question of law.” (American Federation
of State etc. Employees v. County of Los Angeles (1983) 146
Cal.App.3d 879, 884.)
If the statute is unambiguous, we discern legislative intent
from the plain meaning of the statute’s language itself. (People v.
Superior Court (Price) (1984) 150 Cal.App.3d 486, 488.) If the
words of the statute are reasonably free from ambiguity when
given their ordinary meaning, we will look no further to ascertain
their meaning. (City of Los Angeles v. Los Olivos Mobile Home
Park (1989) 213 Cal.App.3d 1427, 1433.)
2. Civil Service Rule 2 and Rule 12
We quote the pertinent Rules in full. We omit quotations
marks to facilitate reading and reproduce section headings to
supply useful context:
Rule 2 – DEFINITIONS
Rule 2.00 – Applicability generally.
Unless otherwise required by context, words
used in these Rules are understood to have the
11
following special meanings as set out in Rules
2.01 through 2.58. [Citation.]
Rule 2.01 – Actual Service.
“Actual service” means time engaged in the
performance of the duties of a position or
positions including absences with pay.
[Citation.]
Rule 2.41 – Position.
“Position” means any office or employment in
the classified service of the county requiring
the full or part-time employment of one person.
[Citation.]
Rule 12 – PROBATION
Rule 12.02 – Length of Probationary Period.
A. The period of probation shall be no less
than six nor more than 12 calendar months
from the date of appointment to a permanent
position, as established by the director of
personnel for each class.
B. If an employee is absent from duty
during a probationary period, the appointing
power may calculate the probationary period on
the basis of actual service exclusive of the time
away. If a change in the probationary period is
made, the employee shall be notified prior to
the end of the original probationary period.
[Citation.]
12
C. Interpretation of Rule 2.01 and Rule 12.02
The question before us is: When—if ever—did Trejo
become a permanent County employee? Answering this question
demands we interpret the applicable Rules. But it also demands
we remain cognizant of the important public policy consequences
implied by our analysis.
The County and Trejo each offer public policy defenses of
their competing interpretations of the Rules.
The County argues, among other concerns, that if the
Department were unable to extend probationary periods, it would
likely change its policy and immediately dismiss probationary
deputies who become subject to a criminal or administrative
investigation. The alternative to immediate dismissal would be
unacceptable, namely, allowing probationary deputies under
investigation for serious charges to achieve full civil service
status.
Trejo counters the Rules do not authorize probation
“extensions” as understood by the Department because its
drafters—the County Board of Supervisors—intended to protect
probationary employees by capping their period of probation at
12 months. Otherwise, County employers could move
probationary employees from one job to the next and their time
spent across those positions would not count toward completion of
their 12-month probation. Trejo also rightly points out that the
Rules apply to all County employees, and not just those serving
the Department. Adopting the County’s argument, Trejo
observes, would thus authorize every County employer to adopt
probation “extension” practices similar to the Department’s, but
no such practice, Trejo argues, appears to have been
contemplated by the Rules.
13
These are serious concerns, and we are especially sensitive
to the Department’s needs to investigate probationary deputies
who may have engaged in unlawful use of force before they are
made permanent County employees. Nevertheless, we must
construe the Rules as they are written if their plain meaning is
clear and discoverable. We now turn to that task.
Rule 12.02(B) authorizes a county employer to re-calculate
the time remaining on an employee’s probation “on the basis of
actual service exclusive of the time away.”
In order to understand how to apply this crucial phrase, we
start with rule 2.00. It instructs we must apply the definitions
found in rule 2 to the remainder of the Rules. In this case, the
pertinent definition of “actual service” is found in rule 2.01. As
an expressly defined term, we must apply “actual service”
literally. (See Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826 [“If
the Legislature has provided an express definition, we must take
it as we find it”].)
The language of rule 2.01 itself reveals an additional
interpretive direction as well. It defines “actual service” by
stating: “ ‘Actual service’ means time engaged in the
performance . . . .” (Italics added.) This is to be contrasted with a
statutory definition where the drafters define a term as
“including [certain things]” as in “ ‘[a]ctual service’ [includes]
time engaged in the performance.” This word choice matters
because “[w]hen a definitional section says that a word ‘includes’
certain things, that is usually taken to mean that it may include
other things as well . . . .” (Scalia & Garner, Reading Law: The
Interpretation of Legal Texts (2012) p. 226, fn. omitted.)
Whereas, when “a definitional section says that a word ‘means’
14
something, the clear import is that this is its only meaning.” (Id.,
fn. omitted.)
We must therefore apply rule 2.01’s definition of “actual
service” to rule 12.02(B). Trejo was placed into an administrative
job about four months after his employment began. Were the
next eight months he spent in that administrative job “time
away” within the meaning of rule 12.02(B)? Was he “absent from
duty” for those eight months? The Rules define neither. But,
rule 2.01 does indicate that during those eight months Trejo
remained in “actual service” with the County because he was
“engaged in the performance of the duties of a position or
positions including absences with pay.” Thus, the Department
must credit those eight months toward the completion of Trejo’s
probation period.
The plain meaning of rule 12.02(B) may therefore be
derived by applying the defined term “actual service” from rule
2.01.
We need not then wonder what the phrases “absent from
duty” or “time away” mean in the abstract because rule 2.01’s
definition of “actual service” defines them indirectly. The time
Trejo spent in his administrative job was not “time away”
because that job was still “a position.” Nor was he “absent from
duty” for the same reason. We also know his administrative job
counted as “a position” because it satisfies the definition provided
by rule 2.41, namely, “any office or employment in the classified
service of the county requiring the full or part-time employment
of one person.”
Our interpretation derives further support from the
interpretive directive that we presume a word or phrase has the
same meaning throughout a statute. California courts have long
15
applied this rule of interpretation. (See, e.g., Hoag v. Howard
(1880) 55 Cal. 564, 565 [“a word or clause . . . will be presumed to
bear the same meaning throughout the statute”].) This is not an
absolute rule of interpretation, however, and the presumption of
consistent usage is rebuttable if the statute displays contrary
indications of legislative intent. (See, e.g., People v. Johnson
(2015) 61 Cal.4th 674, 692 [presumption of consistent usage of
“ ‘term’ ” rebutted where the statute under interpretation uses
“ ‘term’ ” and “ ‘sentence’ ” interchangeably]; see also Scalia &
Garner, Reading Law: The Interpretation of Legal Texts, supra,
at pp. 170-173 [presumption of consistent usage “assumes a
perfection of drafting that, as an empirical matter, is not often
achieved”].)
The Rules, however, do not display any contrary indications
that its drafters intended “actual service” to have more than one
meaning. “Actual service” appears in only two places in the
approximately 50 single-spaced pages of the Rules: in rule
12.02(B) and rule 20.04(A)(4)(b). Rule 20.04(A)(4)(b), which
involves performance evaluations for permanent County
employees, uses “actual service” in a nearly identical fashion to
how it functions in rule 12.02(B). The pertinent section of rule
20.04(A)(4)(b) provides, in part: “If an employee is absent from
duty prior to the period while on approved leave prior to the
completion of such six-month period, the appointing power may,
with the approval of the director of personnel, evaluate the six-
month period on the basis of actual service, exclusive of the time
away on leave.”
We may therefore safely conclude the phrase “actual
service” carries the same meaning wherever it appears in the
Rules, and it is the meaning supplied by rule 2.01.
16
We here explicitly observe our holding is limited to cases in
which a County employer purports to extend an employee’s
probation period by re-assigning an employee into a modified
position, such as with Trejo. Our colleagues in Division Five
recently published Amezcua v. Los Angeles County Civil Service
Com. (2019) 44 Cal.App.5th 391 (Amezcua) in which the plaintiff,
also a deputy sheriff, had his probation “extended” following an
investigation into misconduct. (Id. at pp. 394-395.) Unlike with
Trejo, the Department relieved Amezcua of duty entirely. He was
paid to stay at home from 8:30 a.m. to 5:30 p.m., Monday to
Friday. (Id. at pp. 395, 398.) The majority reasoned that under
these facts the Department lawfully extended Amezcua’s
probation because being paid to stay at home meant he was
“absent from duty” within the meaning of rule 12.02(B). (Id. at
p. 398.)
D. Trejo Became a Permanent Civil Service Employee
12 Months After His Probation Began
The County concedes—as they must—that we are bound to
construe the Rules as we construe other statutes: that the rule of
interpretation by plain meaning applies unless ambiguity in the
words of the statute threatens the reliability of such an
interpretation. Its opening brief states: “If there is no ambiguity
in the language of the statute, ‘then the Legislature is presumed
to have meant what it said, and the plain meaning of the
language governs.’ [Citation.].” (Lennane v. Franchise Tax Bd.
(1994) 9 Cal.4th 263, 268.) This is correct.
But, the County elsewhere urges in its briefing that we
stray from plain meaning analysis and apply the canons of
interpretation to avoid surplusage and interpretation to further
legislative purpose.
17
We will first review the County’s arguments that the plain
meaning of rule 12.02(B) authorized extending Trejo’s probation.
Next, we address the County’s arguments that the trial court’s
interpretation offends the rules of avoiding surplusage and
furthering legislative purpose.
1. The Plain Meaning of Rule 2.01 and
Rule 12.02(B)
We have already explained our reasoning that when rules
2.01 and 12.02(B) are read together their plain meaning is that so
long as the probationer is engaged in the duties of “a position or
positions” she is not “absent from duty.” Applied to Trejo, that
means he was not “absent from duty” during the period he was
assigned modified duties because the work he performed,
although administrative, was in fact work performed in “a
position.” The trial court thus rightly held he became a
permanent employee 12 months after his probationary period
began.
The County argues this interpretation is flawed for three
reasons.
First, the County argues the plain meaning of “duty” in the
phrase “absent from duty” only refers to the time Trejo spent
performing the duties of a Deputy Sheriff Generalist. This is
because the pertinent “dictionary definition” of “duty” is an
“ ‘action or a task required by one’s position or occupation.’ ”
(Webster’s Encyclopedic Unabridged Dict. (1989) p. 444.) But,
since Trejo was not “engaged in the . . . duties of [his] position”
(rule 2.01) while on modified duties, he was “absent from duty”
under the meaning of rule 12.02(B) because he was not “on duty.”
We reject this argument because it begs the question of
whether Trejo’s modified assignment counted as an “absen[ce]
18
from duty” in the first place. What counts as an “absen[ce] from
duty” is precisely the task before us, and its meaning is
discoverable by applying rule 2.01. Rule 2.01 applies to rule
12.02(B) because rule 2.00 says it does, and rule 2.01 does not
limit “absences” to absences from duty from the position the
employee was hired into. Moreover, the drafter’s usage of the
complete phrase “a position or positions” shows they intended
rule 2.01’s definition of “actual service” to apply to employees
even after they are to be transferred into a different assignment.
Otherwise, it would make no sense to use the plural “positions”
since every employee begins employment in just one “position.”
Second, the County argues if we incorporate rule 2.01’s
definition of “actual service” into rule 12.02, we render the phrase
“on the basis of actual service exclusive of the time away,” mere
surplusage.
This argument also fails because it assumes that our
interpretation never allows for any “time away.” But, this is
incorrect. As noted above, Division Five of our court held in
Amezcua that the Department may lawfully extend a
probationer’s extension if they pay the employee to stay at home
because then the employee would be “absent from duty” within
the meaning of rule 12.02(B). (Amezcua, supra, 44 Cal.App.5th
at pp. 397-398.) The period of time the probationer is paid to stay
at home is equivalent to their “time away.” (Id. at p. 398.) The
County’s reply brief repeatedly relies upon Amezcua. The County
thereby acknowledges that there is in fact a path whereby the
Department can lawfully compel a probationer to take “time
away” and it is precisely the route taken by the Department in
Amezcua. Our holding does not render the phrase “time away”
surplusage because being paid to stay at home while under
19
investigation counts as “time away” under Amezcua, and is
therefore not meaningless. (See Woosley v. State of California
(1992) 3 Cal.4th 758, 775-776 [surplusage canon only applies
when an interpretation renders words or phrases meaningless].)
Third, the County argues the trial court placed too much
interpretive weight upon the letter “a” in the phrase “a position
or positions” when it concluded Trejo’s modified position still
counted as “actual service” because it was still time spent in “a
position” within the meaning of rule 2.01. Such an analysis, the
County contends, is too “mechanical,” and should be eschewed in
favor of a “practical and contextual reading of [r]ules 2.01 and
12.02(B).”
We disagree that a “mechanical” interpretation is an
incorrect interpretation. The County correctly observes
elsewhere in its briefing that it is an “established canon” of
statutory interpretation that “significance is attached to ‘every
word, phrase, sentence and part of an act.’ ” Our interpretation
properly gives effect to the indefinite article “a” (in the phrase “a
position or positions”) which is in fact a “word.” Although the
County believes indefinite articles should be downgraded in the
task of interpretation if their literal application would create
anomolous results, that argument does not reach our obligation
to also apply the complete phrase “a position” (as found at rule
2.41) which is not so semantically weak.
2. The County’s Arguments Premised upon
Avoiding Absurd and Impractical
Interpretations are Unpersuasive
The County’s real complaint with the trial court’s analysis
is the following: “[T]here is no practical purpose in forcing the
Department to assign a probationer to sit at home, with or
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without pay, as a prerequisite to investigating misconduct.”
Variations of this argument surface throughout its briefing:
“Public policy and a practical interpretation of [r]ule 12.02 favors
allowing the Department giving Trejo modified duties.”
Likewise, “Trejo’s interpretation of ‘duties’ would absurdly give
probationers who are under investigation less scrutiny regarding
the essential duties of the position than deputies who are under
no cloud of suspicion.” And: “Trejo is not the only employee
affected by this action. These issues have significant
ramifications for all future probationary employees.”6
We quoted the County’s arguments extensively to aid in
exposing its reliance upon a hidden premise, namely that we
should reverse the trial court to avoid the absurd and impractical
results its interpretation imposes upon the Department. But, this
premise is flawed because the County’s Rules bind all County
employers, not just the Department. The County provides no
argument that the trial court’s interpretation of rules 2:01 and
12.02(B) lead to absurd and impractical results for all County
employers.
The trial court rightly observed its interpretation “may not
serve the needs of the Department, but the Department is not
6 The County repeatedly emphasizes the Department’s
practice of extending the probation of probationary deputy
sheriffs under investigation is taken pursuant to a carefully
worked out plan articulated by the Department’s Manual of
Policy and Procedures. We question the relevance of the manual
to our interpretive task because the Department is not entitled to
deference in its interpretation of the Rules, via the manual or
otherwise.
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entitled to any deference in the interpretation of County
personnel rules.”
We acknowledge the Department has important reasons for
extending the probation of deputies who come under
investigation. As the County emphasizes, three of the five
essential duties of deputies involve carrying weapons, making
forcible arrests, and seizing evidence and contraband. Misuse of
these duties and their attendant privileges has the potential to
create distinctively important risks to the public and the
administration of justice. But, the County has not offered
authority for the proposition that the importance of the
Department’s probation extension policies means we are free to
interpret the Rules any differently from how we are obliged to
construe any other statutes, i.e., by discerning their plain
meaning. Indeed, the County’s brief elsewhere admits this:
“[T]he subject matter limitations and time limits within the
Rules are interpreted in the same manner as other statutes.”
We therefore conclude the plain meaning of rule 12.02(B)
may reliably be discerned by applying the definition of “actual
service” from rule 2.01. We agree with the trial court that a
County employee may not have his probation extended if he is
placed in another “position or positions.”
D. Trejo Did Not Fail to Exhaust His Administrative
Remedies
As a general rule, a court lacks jurisdiction to issue a writ
of mandate if the petitioner has not exhausted his or her
available administrative remedies. (See, e.g., Alta Loma School
Dist. v. San Bernardino County Com. on School Dist.
Reorganization (1981) 124 Cal.App.3d 542, 554.) “[A]n
administrative remedy is exhausted only upon ‘termination of all
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available, nonduplicative administrative review procedures.’
[Citations.]” (Coachella Valley Mosquito & Vector Control Dist. v.
California Public Employment Relations Bd. (2005) 35 Cal.4th
1072, 1080.) The doctrine of exhaustion of administrative
remedies is treated as jurisdictional. (Johnson v. City of Loma
Linda (2000) 24 Cal.4th 61, 70.)
The County argues the trial court lacked jurisdiction to
reach the merits because Trejo failed to exhaust administrative
remedies. Specifically, the County argues Trejo failed to avail
himself of the “right to appeal” purportedly provided by rule
12.05 which states as follows: “If an employee is given notice of a
probationary period which the employee believes is in violation of
this Rule, such employee may appeal through the established
grievance procedure in the department, or through the grievance
procedure contained in any memorandum of understanding in
effect between the county and the certified employee organization
for the employee’s class.”
This rule, the County argues, “governs all aspects of
probation, including the probationary period of new employees,
such as Trejo.” Because Trejo did not appeal the extension of his
probation through the procedure provided by rule 12.05, the
County argues he failed to exhaust his available remedies.
The trial court rightly rejected this argument. Rule 12.05
provides that an employee appealing a rule 12 probation question
may appeal through either: (1) the grievance procedure involving
such issues already in place in the Department; or (2) through
the grievance procedure set forth in an MOU.
We acknowledge there is a grievance process available to
all deputy sheriffs, including Trejo, as provided by the MOU in
place between the Department and ALADS. This grievance
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procedure is a complex and detailed process. The MOU provides
for several layers of administrative evaluation.
• Initially, the employee is encouraged to discuss the
complaint informally with their immediate
supervisor.
• If unsuccessful, a formal grievance may be filed using
a Department grievance form that must describe the
problem and indicate the desired remedy. A third-
level supervisor must then provide a written decision
on the grievance.
• The employee may appeal to the review board which
consists of the division chief, area commander, and,
at the employee’s discretion, two sworn departmental
members possessing a higher rank than the employee
(collectively comprising the “review board”) who then
confer to evaluate the grievance and then issues a
recommended decision.
• The review board’s recommended decision on the
grievance then becomes binding upon approval by the
Sheriff.
• The employee may still appeal the decision approved
by the Sheriff through the arbitration process
outlined by the MOU namely, by arbitrating before
the Los Angeles County Employee Relations
Committee (ERCOM).
But, the reason why this process is not a remedy Trejo
failed to exhaust is that ERCOM is not empowered to review
Trejo’s rule 12 argument. Section 6.2 of the MOU explicitly
forbids arbitration over interpretation of the Rules. It provides:
“In no event shall such arbitration extend to: [¶] . . . [¶] The
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interpretation, application, merits or legality of any or all of the
County of Los Angeles Civil Service Rules . . . .” Thus, the
grievance process outlined by his bargaining unit’s MOU simply
did not provide Trejo an avenue of administrative appeal because
his appeal of his probation extension would necessarily have
turned on the interpretation of rules 2.00 and 12.02(B).
As the trial court correctly ruled, the grievance procedure
in the Department’s MOU was limited to “the calculation of
probationary periods based on an accepted meaning of [rule] 12.”
In sum, we agree with the trial court that Trejo did not fail
to exhaust administrative remedies because none existed that
were empowered to reach the merits of his lawsuit.
DISPOSITION
The September 13, 2018 judgment is affirmed. Trejo is to
recover his costs on appeal.
CERTIFIED FOR PUBLICATION
WHITE, J.*
We concur:
CHANEY, J. BENDIX, Acting P. J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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