Gonzalez v. City of Los Angeles ( 2019 )

Filed 12/3/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
CAESAR GONZALEZ, B287125
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BS145766
v.
CITY OF LOS ANGELES et al.,
Defendants and Appellants.
KOSAL UCH, B287249
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BS166514
v.
CITY OF LOS ANGELES et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of
Los Angeles County, Amy D. Hogue, Judge. Reversed.
Michael N. Feuer, City Attorney, Blithe S. Bock, Assistant
City Attorney, Paul L. Winnemore and Matthew A. Scherb,
Deputy City Attorneys, for Defendants and Appellants.
Stone Busailah, Michael P. Stone and Muna Busailah
for Plaintiff and Respondent Caesar Gonzalez.
Rains Lucia Stern St. Phalle & Silver, Jacob A. Kalinski
and Christopher D. Nissen for Plaintiff and Respondent
Kosal Uch.
_________________________
The City of Los Angeles (City) and Chief of Police Charlie
Beck (Chief Beck) appeal from trial court judgments granting
petitions for writ of mandate filed by former Los Angeles Police
Department (LAPD) sergeants Caesar Gonzalez and Kosal Uch.
The trial court ordered the City to vacate Gonzalez’s and Uch’s
terminations and provide them with the opportunity for an
administrative appeal. In this consolidated appeal, we conclude
the City’s provision of a hearing before the Board of Rights
was the administrative appeal Government Code section 3304,
subdivision (b) requires.1 We reverse the judgments.
BACKGROUND
1. LAPD Proceedings (Gonzalez)
In October 2010, when Gonzalez was an LAPD sergeant
living in San Bernardino County, the San Bernardino Sheriff’s
Department (sheriff’s department) began a criminal investigation
into allegations that in April 2010 Gonzalez supplied alcohol to
a minor (his second cousin by marriage), and had sex with her.
After the sheriff’s department interviewed Gonzalez in
September 2010, he informed his LAPD supervisor, Lieutenant
David Crew, that he had given the sheriff’s department
1 All subsequent references are to the Government Code
unless otherwise noted.
2
a voluntary statement about providing alcohol to a minor, but
Gonzalez did not tell Lieutenant Crew about the sex charge
until sometime later. In October 2010 Gonzalez reported the
alcohol charge, but not the sex charge, on the initial department
complaint form (number CF 10-00392). The criminal
investigation was closed later without filing charges.
During LAPD’s investigation into the alcohol and sex
allegations, the Internal Affairs Group interviewed Gonzalez
and other witnesses, and obtained from the sheriff’s department
statements by the minor and her mother. The LAPD investigator
prepared a 20-page report, submitted in June 2011 and approved
in December 2011. The report listed four allegations:
(1) providing alcohol to a minor, (2) sexual intercourse with
a minor, (3) attempt to engage in an intimate relationship with
a minor, and (4) engaging while off-duty in conduct unbecoming
to an officer. The report summarized the evidence, and
described the investigation and the criminal investigation in
San Bernardino. Gonzalez denied he had sex with the minor,
but did not dispute that she drank alcohol with his knowledge.
The investigator was unable to determine if Gonzalez and
the minor had sex, as there was no physical evidence and
no witnesses, and the victim reported the alleged sex five
months later.
In March 2012, Gonzalez’s commanding officer, Captain
Don Schwartzer, adjudicated the allegations, sustaining all
but the allegation of sex with a minor, which he classified
as unresolved. Captain Schwartzer concluded: “It has been
determined that Sergeant Gonzalez committed acts that merit
10 Suspension Days and his tour at Internal Affairs is not
3
being extended, as a result he will transfer to another Division
outside of Professional Standards Bureau.”
After Gonzalez filed a Skelly response2 including additional
information, LAPD conducted a supplemental investigation led
by Detective Christina Frus, who held additional interviews
and obtained and reviewed additional evidence. A 31-page
supplemental report retained the first two allegations (providing
alcohol to, and having sex with, a minor) and modified the third
allegation to state that Gonzalez, while off-duty, unnecessarily
placed himself in a compromising position. The supplemental
report added six new allegations against Gonzalez: (4) failure
to report the criminal investigation in a timely manner,
(5) submitting an official complaint form he knew or should
have known was inaccurate, (6) omitting critical alleged
misconduct from an official complaint form, and (7), (8), and (9),
three separate instances of providing misleading information
to LAPD.
On September 19, 2012, Captain Schwartzer adjudicated
the expanded allegations and sustained them all. In an eight-
page supplemental letter of transmittal, he recommended that
allegation (2), sexual intercourse with a minor, be reclassified as
sustained, based on the evidence and information obtained in the
supplemental investigation. Captain Schwartzer evaluated the
evidence (the minor reported they had sex and Gonzalez denied
it) and found Gonzalez’s story unreasonable. Captain Schwartzer
also described the evidence supporting the new allegations that
Gonzalez failed to report and provided incomplete and inaccurate
information. He recommended: “As a result of the supplemental
2 Skelly v. State Personnel Board (1975) 15 Cal. 3d 194.
4
administrative investigation, the Department Sustained
Allegation 2 from the original complaint investigation and
Sustained Allegations 4 through 9. It has been determined
that Sergeant Gonzalez committed acts that merit REMOVAL.”
Also on September 19, 2012, Commander Richard Webb
of the Internal Affairs Group reported that he had reviewed the
investigation, the supplemental report, and the supplemental
adjudications. After consulting with the Professional Standards
Bureau, he made a military (modified) endorsement of the
complaint, recommending sustaining the first allegation
(providing alcohol to a minor) and the second allegation
(sex with a minor), and consolidating all the allegations of
misleading statements into a single third allegation, which he
also recommended be sustained. Commander Webb and Captain
Schwartzer both recommended the penalty of “BOARD OF
RIGHTS FOR REMOVAL” to Chief Beck.
That same day, Chief Beck signed a disciplinary complaint
adopting Commander Webb’s and Captain Schwartzer’s
recommendation of removal, temporarily removed Gonzalez from
duty (although loss of compensation would not begin for 30 days),
and “[d]irect[ed] [Gonzalez] to a Board of Rights with the
proposed penalty of removal from your employment with the
Department.” Captain Schwartzer sent a letter informing
the commanding officer of operations of the “CHANGE IN
PERSONNEL COMPLAINT PENALTY,” describing Chief Beck’s
concurrence with the changes in the military endorsement:
“The Allegations listed have been properly classified as
SUSTAINED and the original penalty outlined in the original
Letter of Transmittal has been changed from 10 suspension days
to a BOARD OF RIGHTS/REMOVAL.”
5
Gonzalez’s hearing before the Board of Rights (Board)
began on April 23, 2013. After the first day of testimony, the
Board suggested amendment of the third allegation to identify
specific misleading statements. On April 30, 2013, Chief Beck
served Gonzalez with an amended disciplinary complaint
that divided the third allegation into two separate allegations:
(3) misleading information on Gonzalez’s complaint face sheet,
and (4) misleading statements in Gonzalez’s Skelly response.
During seven more days of testimony, the Board heard
from numerous witnesses (including the minor and Gonzales),
examined exhibits, and reviewed interviews conducted during
the investigation. On August 13, 2013, the Board reported a
unanimous verdict of guilty on (1) providing alcohol to a minor,
(2) sexual intercourse with a minor, and (3) providing misleading
information on the complaint form. The Board found Gonzalez
not guilty of misleading statements on the Skelly response,
as no evidence was presented to support the allegation. After
deliberation, the Board concluded removal was the appropriate
penalty, and conveyed its decision to Chief Beck. Chief Beck
executed a removal order on August 29, 2013, effective
October 20, 2012. The order was served on Gonzalez on
September 4, 2013, and advised Gonzalez of the time limit
for seeking judicial review under Code of Civil Procedure
section 1094.5.
2. LAPD Proceedings (Uch)
A minor female reported that on March 3, 2015, she and
a friend drove up to park in an area with a view of the valley.
While she was having consensual sex with her friend in the
back seat of his car, a man opened the car door, pointed his phone
flashlight at her, and recorded her, saying he was a police officer
6
and would arrest them for having sex in public. She was wearing
only her bra. The man continued to record her while she got
dressed, and then made her and her friend pick up trash. He
left without giving her a ticket. The minor went home and told
her mother, who called the LAPD to report that someone had
impersonated a police officer. When Uch’s commanding officer
learned that Uch wanted to go to the minor’s address to take
care of the complaint, he became concerned because Uch had had
“prior . . . issues up in those hills,” including an earlier complaint
by two males Uch had confronted in the same area. An initial
complaint (CF No. 15-000581) alleged conduct unbecoming
an officer.
Sergeant Malcom Collier investigated, interviewing Uch
and both minors, and obtaining Uch’s audio files, photographs,
and cell phone records. (Uch said he had used his cell phone
when he believed his department camera had failed.) Following
the investigation, the complaint was amended to make four
allegations related to the March 2015 incident, the first three
concerning Uch’s invasion of the minor’s privacy, and the fourth
concerning his command to pick up other people’s trash.3 Two
additional allegations concerned Uch’s deletion of digital media
from his department camera and his cell phone “sometime after
March 3, 2015.”
Uch’s commanding officer, LAPD Captain Hamilton,
adjudicated the allegations. In a five-page letter of transmittal,
he recommended sustaining the three allegations of privacy
3 We grant the City’s motion to take judicial notice of
the letter of transmittal and the complaint adjudication form
related to Uch’s discipline.
7
violation based on the audio recording of the incident and
the two allegations of deleting digital media. He recommended
classifying the fourth allegation as not resolved. Captain
Hamilton recommended Uch be terminated if found guilty after a
Board hearing. The area commanding officer also recommended
Board review.
On February 10, 2016, Chief Beck adopted the
recommendation of removal, and served Uch with a complaint
and order listing the 14 sustained allegations and temporarily
removing Uch from duty (although loss of compensation would
not begin for 30 days after service). The complaint “[d]irect[ed]
[Uch] to a Board of Rights with the proposed penalty of removal
from your employment with the Department,” and stated:
“This proposed removal and temporary relief from duty are made
pending a hearing before and decision by a Board of Rights on
the charge(s) set forth below.”
The Board hearing began on August 23, 2016. Uch
pleaded guilty to four allegations and contested the remaining
10 allegations. During four days of testimony, the Board heard
from numerous witnesses, and reviewed exhibits and interviews
from the investigation. On September 7, 2016, the Board made
its unanimous findings. The Board found Uch guilty of the three
counts of privacy violations on March 3, 2015 ((1) recording
with his personal cell phone the minor in a state of undress,
(2) refusing to allow the minor privacy to get to dressed in a
timely manner, and (3) taking photos with his personal cell phone
of the minor and her partner during their detention). The Board
also found Uch guilty of all but two of the remaining counts.
The Board prescribed removal, and conveyed its decision to
Chief Beck on September 7, 2016. Chief Beck executed the
8
removal order on September 14, 2016, effective March 12, 2016.
The order informed Uch of the time limit for seeking judicial
review under Code of Civil Procedure section 1094.6.
3. Trial court proceedings
Gonzalez filed a petition for writ of mandate in November
2013 against the City and Chief Beck, contesting the Board’s
findings. Gonzalez’s first amended petition challenged his
termination “from his employment after an administrative appeal
before a Board of Rights,” and his opening brief stated: “The
hearing before the Board fulfills the Government Code § 3304(b)
requirement of an opportunity for an administrative appeal
before imposing punitive action.” On March 24, 2015, the trial
court denied the writ petition. Gonzalez appealed, and in
October 2016 the court of appeal reversed and remanded, finding
the trial court abused its discretion when it imposed terminating
sanctions based on errors by Gonzalez’s counsel. After
additional briefing on remand, in August 2017 Gonzalez filed
a supplemental letter brief arguing that Morgado v. City and
County of San Francisco (2017) 13 Cal.App.5th 1 (Morgado),
decided at the end of June 2017, demonstrated that the LAPD
“process did not comply with . . . [section] 3304(b), because
Gonzalez was not afforded his right to an administrative
appeal of imposed (i.e., ‘executed’) punitive action.”
Uch filed his petition for writ of mandate in December
2016, alleging the City failed to provide him with a fair
administrative appeal. In his memorandum of points and
authorities filed in July 2017, he cited Morgado and argued the
City violated section 3304, subdivision (b) when the City “never
provided Uch with an administrative appeal of the Chief’s order
terminating him from his position as a Sergeant with LAPD.”
9
The trial court coordinated the hearing on Gonzalez’s
and Uch’s cases because they presented an “identical issue.”
After reviewing Morgado, on September 25, 2017 the court issued
an order concluding that the Board hearing was not an appeal,
and the City therefore failed to provide the terminated officers
with an administrative appeal to challenge the final decision to
remove them. The court directed the city to provide the officers
with an administrative appeal, explicitly declining to require the
appeal to be an evidentiary hearing like the Board proceeding, or
to be held before a different body. Section 3304, subdivision (b),
however, did “require an ‘independent re-examination’ that is
‘conducted by someone who has not been involved in the initial
determination’ and that the independent decision maker ‘must
make factual findings that can be reviewed by the courts.’ ”
The court filed the judgments on October 31, 2017.
The City filed timely notices of appeal. We consolidated
the appeals for briefing, argument, and decision.
DISCUSSION
We must decide the legal question whether, in light of
Morgado, the City provided Gonzalez and Uch with the
administrative appeal required by section 3304, subdivision (b).
The Public Safety Officers Procedural Bill of Rights Act
(POBRA) provides in section 3304, subdivision (b): “No punitive
action . . . shall be undertaken by any public agency against any
public safety officer . . . without providing the public safety officer
with an opportunity for administrative appeal.” “[A]ny action
that may lead to dismissal” is a “punitive action.” (§ 3303.)
While POBRA does not delineate the required administrative
appeal, the purpose of the appeal is to give the officer “an
opportunity ‘to establish a formal record of the circumstance
10
surrounding his termination’ [citation] and ‘to attempt to
convince the employing agency to reverse its decision, either by
demonstrating the falsity of charges which led to punitive action,
or though proof of mitigating circumstances.’ ” (Binkley v. City
of Long Beach (1993) 16 Cal. App. 4th 1795, 1806.) “[P]ublic
safety officers are entitled to ‘ “an evidentiary hearing before
a neutral fact finder.” ’ ” (Conger v. County of Los Angeles (2019)
36 Cal.App.5th 262, 269, quoting Morgado, supra, 13 Cal.App.5th
at p. 7.)
Neither Gonzalez nor Uch argues that the Board hearing
does not serve that purpose or provide such an evidentiary
hearing. They argue only that the City had not made a “final
decision” to remove them until after the Board hearing, and so
the City must create another (unspecified) procedure to satisfy
the statute’s requirement of an administrative appeal from
a “final” punitive action.
Morgado involved a similar argument, but a different
disciplinary history. A citizen filed a complaint against Morgado,
a San Francisco police officer, with the police department’s office
of citizen complaints. The office investigated the misconduct,
and shared its findings and disciplinary recommendations
(unspecified in the opinion) with the chief of police, who under
the city charter could impose a sanction of up to 10 days’
suspension, or file a complaint with the police commission
for harsher sanctions. The department of internal affairs did
further investigation, and the chief of police filed a disciplinary
complaint with the police commission. A commissioner held
a full evidentiary hearing in which Morgado participated.
Later, represented by counsel, Morgado participated in a hearing
before the full commission, at the end of which the commission
11
sustained four of six counts against him and “decided to
terminate his employment.” (Morgado, supra, 13 Cal.App.5th
at p. 4 & fn. 3.)
Morgado sued the city, seeking a writ directing his
reinstatement. In discovery, the city admitted “the ‘only punitive
action undertaken against him’ was the Commission’s decision
to ‘terminate [his] employment.’ The City further ‘admit[ted],’
as a factual matter, it did not provide Morgado with an
‘administrative appeal’ from the Commission’s decision to
terminate his employment.” (Morgado, supra, 13 Cal.App.5th
at pp. 4-5.) After a bench trial, the trial court issued an order
relying on section 3304, subdivision (b), enjoining the commission
from taking punitive action against Morgado unless he was
provided an administrative appeal. The court vacated the
termination, and directed the city to provide Morgado with
an opportunity for an administrative appeal from the decision
to terminate. The city appealed. (Morgado, at p. 5.)
The court of appeal defined the “heart of this appeal [as]
whether a ‘punitive action’ was taken against Morgado, and if so,
when that action took place.” (Morgado, supra, 13 Cal.App.5th at
p. 5.) Stating it was not bound by the city’s trial court admission
that the first and only punitive action was the commission’s
decision to terminate him, the court considered de novo whether
the chief’s disciplinary complaint to the commission was a
punitive action, so that the commission’s proceedings constituted
an appeal under section 3304, subdivision (b). (Morgado, at
pp. 5-7.) The court agreed with the city that the complaint
was a punitive action: “[A]n action by an officer’s employer
that may lead to future discipline may be considered a ‘punitive
action’ within the meaning of section 3304, subdivision (b).
12
Section 3303 provides that ‘punitive action means any action that
may lead to dismissal . . . .’ ” (Id. at p. 7.) But the court qualified
its conclusion: “But in our view, it does not necessarily follow
that, where an interim step in a disciplinary proceeding against
an officer (such as a recommendation that further proceedings
be conducted) ‘may lead’ to discipline at the end of that
proceeding, a public entity satisfies section 3304, subdivision (b)
by permitting the officer to administratively challenge only
the interim step and providing him or her no opportunity to
challenge the discipline that is ultimately imposed.” (Id. at p. 8.)
The court concluded that Morgado had the right to an
opportunity for an administrative appeal from his termination,
which also was a punitive action. “Morgado had no opportunity
to attempt to convince the City to reverse its decision to
terminate him, because no further administrative proceedings
occurred after the Commission made that decision.” (Morgado,
supra, 13 Cal.App.5th at p. 8.)4 The administrative appeal
requirement of section 3304, subdivision (b) was not “satisfied by
a hearing that precedes the employer’s selection or imposition of
any specific disciplinary sanction. . . . [W]e conclude the City’s
procedure, in which the Commission hearing precedes any such
decision by the City as to which punishment to impose, does not
satisfy the administrative appeal requirement, because there is
no opportunity for the officer to convince the employer to reverse
the decision.” (Morgado, at p. 12.) Finding Morgado had been
4 In a footnote, the court granted the city’s request for
judicial notice of provisions of the Los Angeles City Charter,
but found “distinguishable the cases cited by the City that arose
from disciplinary proceedings in Los Angeles.” (Morgado, supra,
13 Cal.App.5th at p. 13, fn. 8.)
13
deprived of the process he was due under section 3304,
subdivision (b), the court of appeal affirmed the trial court’s
judgment and its directive that the city provide Morgado with
an opportunity for administrative appeal. (Morgado, at p. 12.)
In a statement echoed by the trial court in this case, the court
continued: “We do not hold, however, that the City must provide
Morgado a second evidentiary hearing akin to the Commission
proceeding, or that such a hearing must occur before a body that
is separate from the Commission.” (Ibid.)
We are not faced with facts like those in Morgado, and
we therefore need not decide whether we agree with its holding.
As described in the opinion, the San Francisco disciplinary
procedure did not “select[ ] or impos[e] . . . any specific
disciplinary sanction” until after the commission hearing, so the
hearing “precede[d] any such decision by the City as to which
punishment to impose.” (Morgado, supra, 13 Cal.App.5th at
p. 12.) By contrast, for both Gonzalez and Uchs, LAPD identified
removal as the specific sanction long before the Board hearing.
Gonzalez’s commanding officer Captain Schwartzer first
determined that Gonzalez would be suspended for 10 days. After
the supplemental investigation resulted in the sustaining of
additional allegations (sex with a minor and multiple misleading
statements), Captain Schwartzer determined that Gonzalez
“committed acts that merit REMOVAL” and notified operations
that the original penalty “has been changed from 10 suspension
days to a BOARD OF RIGHTS/REMOVAL.” Commander
Richard Webb endorsed the complaint (as modified to consolidate
the misleading statements into a single allegation), and
concurred with the recommended penalty. Both Commander
Webb and Captain Schwartzer recommended a penalty of
14
“BOARD OF RIGHTS FOR REMOVAL” to Chief Beck.
Chief Beck adopted the recommendation, sending Gonzalez
to a Board hearing with the proposed penalty of removal.
In Uch’s case, after Sergeant Collier investigated and
amended the complaint, Uch’s commanding officer Captain
Hamilton adjudicated the allegations, sustained all but one of 14,
and recommended Uch be directed to a Board hearing and be
removed if found guilty. The area commanding officer concurred.
Chief Beck adopted the recommendation of removal, and
“[d]irect[ed] [Uch] to a Board of Rights with the proposed
penalty of removal from your employment with the Department.”
The Board hearing, unlike the commission hearing in Morgado,
did not take place before the City decided which punishment
to impose; removal was the selected sanction at all levels.
Gonzalez and Uch argue that removal was merely proposed
by Chief Beck until, after the Board prescribed the penalty of
removal to Chief Beck, he imposed the sanction of removal,
and Morgado requires an administrative appeal from that final
action. This equates the Chief’s selection of removal and the
order sending the officers to a Board hearing with Morgado’s
“interim step in a disciplinary proceeding against an officer (such
as a recommendation that further proceedings be conducted).”
(Morgado, supra, 13 Cal.App.5th at p. 8, second italics added.)
This is a false equation.
Under volume I, article V, section 574, subdivision (c) of
the City of Los Angeles Charter (hereafter Charter), the Chief
of Police has the power to “appoint, discharge, discipline, transfer
and issue instructions to the employees of the department.”
The Chief has the duty to determine whether an officer will be
disciplined after the appropriate predisciplinary investigation,
15
and must serve the officer with a verified complaint “contain[ing]
a statement in clear and concise language of all the facts
constituting the charge or charges.” (Charter, vol. II, art. X,
§ 1070, subds. (b), (d).) The complaint may, as in Gonzalez’s and
Uch’s case, temporarily remove an officer from duty “pending
a hearing before and decision by a Board of Rights,” with no loss
of compensation for 30 days after service of the complaint. (Id.,
§ 1070, subd. (b)(1)). The complaint may also suspend an officer
for 22 or fewer working days, or demote the officer, “subject to
the right of the member to a hearing before a Board of Rights.”
(Id., § 1070, subd. (b)(2)-(4).) In those cases of lesser discipline,
if the suspended or demoted officer exercises his right to a Board
hearing, the sanction is automatically stayed; if the officer does
not apply for a hearing within five days of personal service of the
complaint, the hearing is waived and the Chief’s suspension or
demotion remains effective. (Id., § 1070, subds. (b), (f).) But if,
as here, the charges call for discipline of more than 22 days
of suspension, the Chief must order a Board hearing to review
the charges and reach a decision. (Id., § 1070, subd. (b)(1), (2).)
The Board conducts a de novo hearing at which LAPD has the
burden of proof. (Id., § 1070, subds. (f), (l).) Here, Gonzalez’s
and Uch’s Board hearings were not optional (“opted”) but
mandated (“ordered”), because the Chief’s selected sanction
was the ultimate penalty of removal and the Charter required
automatic Board review.
Gonzalez and Uch wisely do not argue that a Board
hearing is inadequate to satisfy POBRA’s requirement of an
administrative appeal. We have already held that a Board
hearing satisfies POBRA. In Jackson v. City of Los Angeles
(1999) 69 Cal. App. 4th 769, the chief’s complaint specified
16
a disciplinary suspension of five days, and the officer opted to
appeal to the Board. (Id. at p. 772.) Following the hearing, the
Board majority voted to impose a 129-day suspension, and the
minority voted for the officer’s dismissal. (Id. at pp. 773-776.)
The chief adopted the recommendation of 129 days’ suspension.
Jackson filed a petition for writ of mandamus, the trial court
denied the writ, and Jackson appealed. (Id. at p. 776.) We
affirmed, holding that a board of rights hearing satisfies the
“mandated appellate process” in section 3304, subdivision (b)
of POBRA, even when the Board increases the severity of
the initial punitive action. (Jackson, supra, 69 Cal.App.4th
at pp. 780, 782; see Holcomb v. City of Los Angeles (1989) 210
Cal. App. 3d 1560, 1567 [Board hearing on five-day suspension
was the required administrative appeal].) In Crupi v. City
of Los Angeles (1990) 219 Cal. App. 3d 1111, 1120, the chief of
police recommended an officer “be subjected to ‘administrative
disapproval.’ By so recommending, the chief of police initiated
a process through which the matter would be adjudicated by
a board of rights pursuant to . . . the Los Angeles City Charter.
Thus, plaintiff is being afforded a right to an administrative
appeal as required by section 3304.”
Gonzalez and Uch argue these cases do not apply because
those Boards were opted, rather than ordered as in this case.
They argue because the Board hearing is required the selected
sanction in the Chief’s complaint is not “final,” there is no “final”
sanction until after the Board hearing when the Chief executes
the removal order, and POBRA requires an administrative
appeal from that “final” sanction. But in a case involving lesser
discipline where the officer opts for Board review of the sanction
in the Chief’s complaint, Board review is the same, and we have
17
held that Board review satisfies POBRA. Board review also
satisfies POBRA in the case of an ordered Board.
Whether the Chief’s selected sanction of removal is “final”
is the wrong question. A final, appealable order or judgment
is the requirement for a judicial appeal. (County of Los Angeles
v. Los Angeles County Civil Service Com. (2018) 22 Cal.App.5th
174, 186-187.) The Board hearing is an administrative appeal
from the Chief’s complaint selecting removal as the sanction; it is
an evidentiary hearing involving de novo factfinding. Judicial
review of the Chief’s execution of the order of removal after
the Board’s decision is available by writ under Code of Civil
Procedure section 1094.5 and, as in this case, by a judicial appeal
of the trial court’s decision.
Under the Charter, an officer is entitled to an
administrative appeal to the Board regardless of the severity
of the sanction, but when the Chief selects a lesser sanction the
officer may forgo Board review if he or she chooses. The Charter
obligates the Board to review the selected sanction only when
the Chief selects the ultimate sanction of removal. This provides
more protection to an officer’s POBRA right to an administrative
appeal than when the Chief selects a lesser sanction, because
an automatic administrative appeal guarantees that a neutral
factfinder will conduct a de novo review of the evidence
supporting the discipline. The Charter’s requirement of a Board
hearing when the Chief selects removal bakes into the standard
procedure what POBRA requires: an administrative appeal
for the officer to establish a formal record of the circumstances
surrounding his removal, and to attempt to convince LAPD to
change the sanction. We decline to require more than POBRA
mandates.
18
DISPOSITION
The judgments are reversed. Costs are awarded to
appellants the City of Los Angeles and Chief Charlie Beck.
CERTIFIED FOR PUBLICATION
EGERTON, J.
We concur:
DHANIDINA, J.
HANASONO, J *
*
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
19