Sahakyan v. City of Los Angeles CA2/8

Filed 1/4/23 Sahakyan v. City of Los Angeles CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
SUREN SAHAKYAN, B308113
Petitioner and Cross- (Los Angeles County
complainant, Super. Ct. No.19STCP03117)
v.
CITY OF LOS ANGELES et al.,
Real Parties in Interest and
Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County. James C. Chalfant, Judge. Affirmed.
The Myers Law Group, D. Smith and Justin Morgan Crane,
for Petitioner and Cross-complainant.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy,
Chief Deputy City Attorney, Scott Marcus, Assistant City
Attorney, Blithe S. Bock, Managing Assistant City Attorney, and
Shaun Dabby Jacobs, Deputy City Attorney, for Real Parties in
Interest and Appellants.
_________________________________
Petitioner and cross-complainant Suren Sahakyan
(Sahakyan) was terminated from his employment as an
accountant for Los Angeles World Airports (LAWA) after he was
arrested for theft of DVDs from a Target store and assault on the
Target security personnel who detained him. Sahakyan filed a
writ of mandate in superior court seeking to compel the Los
Angeles Civil Service Commission (Commission) to set aside its
decision upholding his termination as an employee of Real Party
in Interest City of Los Angeles (City), which was based on the
theft and assault at Target and other unrelated misconduct.
The trial court granted Sahakyan’s petition in part and
remanded the matter back to the Commission to determine the
appropriateness of the penalty of termination. The City appeals
this decision. Sahakyan cross-appeals. We reject both appeals
and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Background
Sahakyan is a former employee of LAWA, where he was
employed as an Accountant II. Accountants II are responsible for
cash deposits, bank reconciliations, financial statements,
accounting documents, and various other financial reports and
documents. They also oversee approximately $5 to $6 million per
day in checks and wire transfers, monitor City-issued purchasing
cards for other employees, and have access to City bank accounts
and to vendor and other third party bank accounts. Accountants
II have access to blank checks, but not to cash.
2
II. Sahakyan’s Arrest, Criminal Proceedings, and
Diversion Program
In March 2017, Sahakyan was arrested for theft of DVDs
from a Target store in the Eagle Rock neighborhood of Los
Angeles, and for assaulting two Target Assets Protection
Specialists (Security Officer(s)) who tried to detain him outside
the store after they witnessed him, via security cameras, taking
the DVDs without paying for them. When the first Security
Officer approached Sahakyan and asked him to reenter the
Target, Sahakyan threw “several punches” and attempted to
leave the area. A second Security Officer attempted to restrain
him, but Sahakyan scratched him. It ultimately took five
Security Officers to restrain Sahakyan. Target security video
recorded the theft and assault, which was also supported by
eyewitness testimony.
The Los Angeles District Attorney’s Office filed a criminal
complaint against Sahakyan alleging two counts of felony robbery
under Penal Code section 211. The prosecutor subsequently
dismissed the two felony robbery counts (for reasons unclear from
the record), and charged Sahakyan instead with two counts of
felony assault against the Target officers, in violation of Penal
Code section 245, subdivision (a)(4). As part of a plea deal, on
August 31, 2017, a charge of misdemeanor battery was added to
the criminal complaint, the felony assault charges were
dismissed, Sahakyan pled nolo contendere to misdemeanor
battery only, and the trial court found a factual basis for the plea.
Sahakyan was placed on probation and the case was to be
dismissed in its entirety at the sentencing hearing if he
completed community service and was not arrested for the next
year.
3
Sahakyan completed all of this court-ordered community
service by December 20, 2017.
On April 2, 2018, Sahakyan’s criminal defense attorney
filed a motion to change his initial “D.A. Diversion” to “judicial
diversion” nunc pro tunc to August 31, 2017, pursuant to Penal
Code section 1001.94, subdivision (a), which allows a first time
offender to plead guilty or nolo contendere to a misdemeanor and
defer sentencing until successful completion of the Diversion
Program. When this type of Diversion Program is completed,
there is no entry of judgment, and the arrest is deemed to have
not occurred.
The criminal court granted the motion on April 9, 2018.
That very same day, the court dismissed the case early because
Sahakyan had already completed the terms of his court-ordered
diversion on December 20, 2017 and had no arrests. The order
also states that Sahakyan stipulated that there was probable
cause for his arrest.
In July 2018, upon Sahakyan’s motion, the criminal court
granted Sahakyan’s application to seal and destroy his arrest
record.
III. Badge Suspension
As an employee of LAWA, Sahakyan was required to have a
security badge. To have the security badge, Sahakyan was
required to undergo a background check every two years and
obtain a security clearance. If an employee is arrested for certain
offenses, they lose their security clearance unless they submit
proof that the issue has been resolved in their favor or they
otherwise show they are still eligible for their security badge.
4
On March 2, 2017, the LAWA security badge office was
notified of Sahakyan’s arrest pursuant to Transportation
Security Authority (TSA) regulations, and it advised Sahakyan
that he had one month to provide proof that the felony charges
were resolved in his favor, or he would lose his badge. Sahakyan
was unable to do so within the month, so lost his badge and was
unable to work at LAWA for a period of approximately three and
a half months (May 11, 2017 to August 19, 2017) while his
criminal proceeding was pending. During the time that
Sahakyan could not work, his absence impacted his colleagues,
who were “short staffed” and had to cover his work.
IV. Discharge
On September 20, 2017, LAWA sent Sahakyan a Notice of
Proposed Discipline, also known as a Skelly1 Notice (Notice),
along with exhibits purporting to contain the materials that
supported its decision to terminate his employment. The Notice
alleged violations of seven rules set forth in LAWA
Administrative Manual, Disciplinary Standards, based on the
LAWA Rules of Conduct (Disciplinary Standards): (Charge 1)
illegal behavior or conduct in conflict with job duties on or off the
job; (Charge 2) violation of department rules (those rules
governing the ethics policy, rules of conduct, outside employment
and business activity policy, and employee identification badges);
(Charge 3) failure to perform work assignments adequately or
promptly; (Charge 4) failure to provide information related to
work; (Charge 5) falsifying city records; (Charge 6) falsely
claiming sick or allowed pay, falsifying reasons for absence; and
1 (Skelly v. State Personnel Board (1975) 15 Cal.3d 194(Skelly).)
5
(Charge 7) using City time, property, or equipment without
authorization.
In relevant part for purposes of this appeal, the Notice
stated that Sahakyan had been arrested on March 2, 2017 and
charged with felony robbery.
The Notice also stated that during Sahakyan’s discussions
with staff from the Airport Police Division Adjudication and
Confidential Records Unit (ARCU) who were investigating the
arrest, Sahakyan had disclosed outside employment, but his
personnel folder did not have a record of approved outside
employment. The Notice further stated that there was reason to
believe that Sahakyan may hold additional outside employment,
which Sahakyan was also required to report on an annual basis.
It did not specify what kind of additional employment, but
Sahakyan was later found to work at two different colleges and
had only disclosed the employment at one college during his
discussions with staff.
The Notice further alleged that Sahakyan had previously
been confronted about making unauthorized photocopies for his
personal use (a college test), which, with the failure to disclose
outside employment, allegedly demonstrated a “pattern of
dishonesty.”
After a Skelly hearing on November 8, 2017, at which
Sahakyan filed a written response to the charges, LAWA notified
Sahakyan his discharge would be effective December 5, 2017.
Sahakyan filed an appeal of that decision with the Commission.
V. Hearing and Commission’s Final Decision
A Commission Hearing Officer held a hearing on
Sahakyan’s appeal over three days in May 2018. After receiving
evidence and testimony from both sides, the Hearing Officer
6
made recommendations to the Commission. The officer
recommended that the Commission find that Sahakyan’s Skelly
due process rights were met as to all of the charges against him
except for two (as to Charge 1 and Charge 7), with a remedy for
those violations of backpay from the date of the termination to
the date the Commission would file its final decision as to
remedy. The Hearing Officer also recommended that the
Commission sustain Charges 1 (off-duty misconduct in conflict
with job duties), 2 (violating departmental rules relating to
disclosure of outside employment), and 5 (falsifying city records),
but not the other charges, and found that discharge was the
appropriate penalty. Charges 2 and 5 were both based on
Sahakyan’s failure to report his outside employment.2
In April 2019, the Commission unanimously voted to adopt
the Hearing Officer’s decision to uphold the discharge, but
rejected the award of backpay for the Skelly violation because it
found no Skelly violations. In May 2019, the Commission notified
Sahakyan that his discharge was upheld. The Commission
stated that it found the Skelly due process provisions were met,
and upheld termination based upon Charges 1, 2, and 5.
VI. Writ Proceedings and Trial Court Decision
In July 2019, Sahakyan filed a petition for writ of mandate
in Los Angeles Superior Court. In July 2020, the trial court
granted the writ in part, finding a Skelly violation, and remanded
back to the Commission to determine the amount of backpay
Sahakyan was entitled to. The Commission was ordered to
reevaluate whether the penalty of termination could be upheld
2 The Hearing Officer found that Sahakyan’s failure to
disclose his outside employment was intentional and resulted in
the falsification of City records.
7
given the court’s disagreement with some of the reasons the
Commission relied on to uphold Sahakyan’s termination.
The trial court found that Sahakyan’s Skelly due process
rights had been violated with respect to Charge 1, finding that
the Notice contained no information or material regarding the
underlying conduct that lead to Sahakyan’s arrest. The court
noted that LAWA decided to terminate him based only on the
arrest and his inability to hold a badge, and not the underlying
off-duty misconduct conduct. It was “months later” that LAWA
belatedly presented evidence of the misconduct in the form of
surveillance videos, police reports, and witness testimony, which
was not attached to the Notice. Because it found a Skelly
violation, it found Sahakyan entitled to the remedy of back pay
from the effective date of discharge to the date of the
Commission’s decision.
The trial court then upheld Charge 1 as a basis for
discharge, but only with respect to the off-duty misconduct of
theft, and not to the off-duty assault, finding a lack of nexus
between the assault and Sahakyan’s employment.
Lastly, the trial court found that the Commission erred
when it found that Sahakyan’s failure to report his outside
employment could be charged as two violations: Charge 2,
violation of departmental rules, and Charge 5, falsifying City
records. The Commission found that Sahakyan violated both
policies because his failure to report his outside employment was
intentional, stating “by intentionally not [reporting his outside
employment], he falsified [C]ity records” and his “failure to
disclose was intentional.” The trial court overturned the
Commission as to Charge 5, falsifying records, stating it is an
“absurdity to conclude . . . that Sahakyan’s willful violation
8
amounted to a ‘falsification of City records’ by omission.
One simply cannot falsify something by omission. Falsification
requires an affirmative act. Sahakyan did nothing affirmatively;
he deliberately failed to act.” The trial court therefore upheld
only Charge 2, violation of departmental rules by not reporting
his outside employment.
The trial court also noted that under the applicable rules,
there were two different penalties for Charge 2 and Charge 5.
A violation for failure to report outside employment has a
maximum five-day suspension for the first offense when charged,
as it was, as a “violation of departmental rules” in violation of
LAWA Disciplinary Standard 5.020(B)(1). Falsification of records
could result in discharge for the first offense, but this was Charge
5, which the trial court dismissed. Accordingly, Sahakyan’s
failure to report his outside employment did not carry the penalty
of discharge, but only a five-day suspension.
The trial court then remanded for a re-evaluation of
whether Sahakyan’s termination could be upheld based only
upon: Charge 1’s off-duty misconduct involving theft from Target
(but not the assault, which the Commission had also based
Charge 1 upon), Charge 2’s failure to report outside employment
(which had a penalty of a five-day suspension), and the two
previous Notices to Correct Deficiencies that the Commission had
relied upon in upholding the discharge (for unauthorized use of
City equipment for making personal copies and lying about it,
and for failing to perform his work in a timely manner).
The City appealed. Sahakyan cross appealed.
9
DISCUSSION
On appeal, the City argues that this court should uphold
the Commission’s decision to terminate Sahakyan’s employment,
that the Commission properly based its decision to terminate
Sahakyan on his off-duty theft and assault (Charge 1), and that
Sahakyan was given adequate due process under Skelly, supra,
15 Cal.3d 194.3
In his cross-appeal, Sahakyan argues that the Commission
and trial court erred by relying upon irrelevant, “post hoc”
evidence in violation of California Labor Code section 432.7 in
sustaining Charge 1, and that California Labor Code section
432.7 preempts the City’s disciplinary standards.
I. Standard of Review
Sahakyan filed a writ of administrative mandamus under
section 1094.5, which “structures the procedure for judicial
review of adjudicatory decisions rendered by administrative
agencies.” (Topanga Assn. for a Scenic Community v. County of
Los Angeles (1974) 11 Cal.3d 506, 514.) Because the
Commission’s order affects the right to practice a trade or
profession, which is a fundamental vested right, the trial court
correctly exercised its independent judgment in reviewing the
administrative record. (Davis v. Los Angeles Unified School Dist.
Personnel Com. (2007) 152 Cal.App.4th 1122, 1130 [agency
decision impacting employee’s fundamental vested right to his or
her job requires exercise of trial court’s independent review].)
3 The City has not argued that the trial court’s dismissal of
Charge 5 should be overturned.
10
On appeal, we review the trial court’s factual findings
(not the administrative agency’s findings) for substantial
evidence. (Candari v. Los Angeles Unified School Dist. (2011) 193
Cal.App.4th 402, 407–408 (Candari), citing Bixby v. Pierno (1971)
4 Cal.3d 130, 143, fn. 10.) We independently review any
questions of law, including whether the procedures comported
with due process, pursuant to Skelly, supra, 15 Cal.3d 194.
(Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1275
(Gilbert); Thornbrough v. Western Placer Unified School Dist.
(2013) 223 Cal.App.4th 169, 179.)
As to remedy, “[i]t is well settled that in a mandamus
proceeding to review an administrative order the determination
of penalty by the administrative body will not be disturbed unless
there is a clear abuse of discretion.” (Talmo v. Civil Service Com.
(1991) 231 Cal.App.3d 210, 226–227, citing Barber v. State
Personnel Bd. (1976) 18 Cal.3d 395, 404 [“Neither an appellate
court nor a trial court is free to substitute its discretion for that of
the administrative agency concerning the degree of punishment
imposed”].)
II. Sahakyan’s Due Process Rights Were Violated Under
Skelly as to Charge 1.
The trial court ruled that Sahakyan’s Skelly due process
rights were violated as to Charge 1. The City argues this was
error. We disagree and affirm the trial court.
Under Skelly, supra, 15 Cal.3d 194, the California Supreme
Court held that due process entitles public employees to certain
procedural protections before discipline may be imposed against
them. These include: “notice of the proposed action, including a
detailed statement of the reasons therefor, the right to examine
all materials relied upon to support the charges, the opportunity
11
to respond either orally or in writing or both (with affidavits)
before a representative of the employing agency with authority to
make or recommend a final decision, and written notice of the
agency’s decision on or before the effective date of the action.
[Citation.]” (Skelly, supra, 15 Cal.3d at p. 206.) “Subsequent to
Skelly, the California Supreme Court and the United States
Supreme Court have repeatedly recognized that due process is a
flexible concept,” and does not require production of “each and
every document” in the case to be presented prior to the pre-
termination, or Skelly, hearing. (Gilbert, supra, 130 Cal.App.4th
at pp. 1276, 1280.) However, a “ ‘tenured public employee is
entitled to oral or written notice of the charges against him, an
explanation of the employer’s evidence, and an opportunity to
present his side of the story.’ ” (Gilbert, 130 Cal.App.4th at
p. 1277, original italics, citing Cleveland Bd. Of Educ. V.
Loudermill (1985) 470 U.S. 532, 546.) An employer complies with
Skelly when it provides the employee with statements of
witnesses, documents, and investigative reports or extracts
therefrom. (Gilbert, supra, 130 Cal.App.4th at pp. 1275–1276,
1280.) The employee has “ ‘ the right to be informed not only of
the nature of the charges but also of the substance of the relevant
supporting evidence.’ ” (Id. at p. 1278; see also Ferguson v. City of
Cathedral City (2011) 197 Cal.App.4th 1161, 1170 [holding no
Skelly violation where employee received “notice of the proposed
discharge, the reasons, a copy of the charges and the evidence,
and the right to respond”].)
The trial court found the Notice deficient under Skelly as to
Charge 1 because it failed to provide Sahakyan with an
explanation of the evidence against him. As to Charge 1, which is
off-job misconduct in violation of the LAWA Administrative
12
Manual, Guide to Disciplinary Standards, § 5.020(A), Off Duty
Misconduct, the Notice stated only that Sahakyan was accused of
“[e]ngaging in illegal behavior or conduct in conflict with job
duties on or off the job,” and that “[o]n March 2, 2017, you were
arrested because of off-duty misconduct and charged under Penal
Code § 211 for Felony Robbery.” The Notice also stated that
because of the arrest, Sahakyan’s security badge was recalled.
The Notice contained no explanation of the substance of the
relevant supporting evidence against Sahakyan to support
Charge 1, nor was this evidence attached to the Notice. (See
Gilbert, supra, 130 Cal.App.4th at p. 1277.) While the City
ultimately introduced evidence of the misconduct underlying the
arrest at the May 2018 appeal hearing, which included
surveillance videos, police reports, and witness testimony, none of
this was presented with the Notice. The only evidence as to
Charge 1 presented with the Notice was a “California
Department of Justice Arrest Notification,” a felony complaint
and information, and Sahakyan’s statement acknowledging “an
incident on March 2, 2017” and a related “pending legal case.”
None of these documents mention a theft or assault, let alone
provide any indication of the relevant supporting evidence as to
the charged off-duty conduct of theft and assault. As the trial
court found, the Notice shows that the City provided Sahakyan
notice that it was going to terminate him because he was
arrested and he lost his badge, not because of the underlying
theft or assault, which are entirely absent from the Notice and its
supporting exhibits. Because the Notice failed to provide any
summary of, or evidence in support of, the off-duty misconduct, it
is insufficient under Skelly and its progeny. (See Gilbert, supra,
130 Cal.App.4th at pp. 1277–1278.)
13
The City argues that by providing the criminal complaint
alleging the two counts of felony robbery, criminal information,
amended information that contained the subsequent assault
charges, and the criminal court docket with the Notice,
Sahakyan’s Skelly due process requirements were fulfilled.
It cites Gilbert, supra, for the proposition that Sahakyan bore the
burden in this writ proceeding of showing that the materials
received prior to his Skelly hearing were insufficient to provide
him an “opportunity to meaningfully respond at the
pretermination stage.” (Gilbert, supra, 130 Cal.App.4th at p.
1281.) The City also points to Sahakyan’s Shelly response, and
the fact that he had “access to the arrest report” and was present
at the criminal court proceedings, to argue that Sahakyan
understood the conduct upon which the off-duty misconduct
charge was based. But as the trial court recognized when the
City made the same argument below, the City fails to recognize
its obligation to provide not only notice of the charge against
employee but also an “ explanation of the evidence’ ” and the
“ ‘substance of the relevant supporting evidence’ ” supporting that
charge. (Gilbert, supra, 130 Cal.App.4th at pp. 1278–1279.)
Although the City is correct in citing Gilbert that not every
piece of evidence must be produced prior to the Skelly hearing,
here neither the Notice nor the evidence attached to it explained
or summarized the evidence of the theft or assault—i.e. the
offending off-duty misconduct that provided the basis for
Charge 1. In Gilbert, the employer’s notice detailed “the
supporting facts” underlying the charges against the employee
and also recited the type of evidence it had against the employee
to support those facts, including witness interviews and
photographs. (Cf. Gilbert, supra, 130 Cal.App.4th at p. 1272.)
14
The trial court did not err in finding Sahakyan’s Skelly due
process rights violated as to Charge 1.
III. The Trial Court Did Not Err In Sustaining Charge 1
Based Upon Sahakyan’s Theft
Sahakyan’s cross appeal makes several arguments that
Charge 1 was not a valid basis for discharge. He argues that
both the Commission and the trial court erred by relying on
evidence to sustain Charge 1 that violated California Labor Code
section 432.7 (violation of the LAWA Administrative Manual,
Guide to Disciplinary Standards, section 5.020(A), Off Duty
Misconduct), and that Disciplinary Standards, section 5.020(A),
Off Duty Misconduct is preempted by California Labor Code
section 432.7.
A. Impact of Section 432.7 of the Labor Code
Under Labor Code section 432.7, it is unlawful for an
employer to terminate an employee based on an arrest that did
not result in a conviction or was ultimately dismissed. Labor
Code section 432.7, subdivision (a)(1) provides:
“An employer also shall not seek from any source
whatsoever, or utilize, as a factor in determining any condition of
employment including hiring, promotion, termination, or any
apprenticeship training program or any other training program
leading to employment, any record of arrest or detention that did
not result in conviction, or any record regarding a referral to, and
participation in, any pretrial or posttrial diversion program, or
concerning a conviction that has been judicially dismissed or
ordered sealed pursuant to law, including, but not limited to,
Sections 1203.4, 1203.4a, 1203.425, 1203.45, and 1210.1 of the
Penal Code. This section shall not prevent an employer from
asking an employee or applicant for employment about an arrest
15
for which the employee or applicant is out on bail or on their own
recognizance pending trial.” (Lab. Code, § 432.7.)
Critically, this section does not prevent an employer from
terminating an employee for the underlying conduct that formed
the basis for the arrest; it only prohibits a discharge based merely
on the fact of the arrest itself. “The clear purpose of section 432.7
is to prevent the misuse of criminal offender records information,
not to shelter an employee from an investigation by his employer
for serious misconduct.” (Pitman v. City of Oakland (1988) 197
Cal.App.3d 1037, 1044 (Pitman).) “[T]he statute cannot be read
as permitting the employer to utilize the information of a mere
arrest for disciplinary purposes. To hold otherwise would violate
the fundamental presumption of a suspect’s innocence prior to
the contrary being proved. That the statute allows an employer to
inquire about arrest is reasonable. As defendants pointed out, it
is proper that a bank be made aware that one of its employees
has been arrested for embezzlement . . . . However, we do not
read the statute as authorizing the utilization of an arrest alone
as a factor in determining to dismiss an employee.” (Ibid., italics
added.)
Sahakyan argues that Labor Code section 437.2 prevented
the trial court from upholding Charge 1 because he was placed in
the Diversion Program, which he successfully completed, and
thus his arrest must be deemed to have never occurred. Charge
1, however, was based not on the fact of the arrest, but on the
underlying misconduct. The City was entitled to investigate the
conduct that led to the arrest. (Pitman, supra, 197 Cal.App.3d at
p. 1044.) The Commission found that the evidence from the May
hearing (including witness testimony and video recordings)
established that Sahakyan committed off duty misconduct by
16
stealing from Target and assaulting a Target security officer.
The City was entitled to investigate the facts leading to the
arrest and then to prove them at that hearing as establishing off-
duty misconduct. (Sandoval v. State Personnel Bd. (1990) 225
Cal.App.3d 1498, 1502; see also Pinheiro v. Civil Service Com. for
County of Fresno (2016) 245 Cal.App.4th 1458, 1471, fn. 3 [“[T]he
trial court determined the Commission did not violate Labor
Code section 432.7 when it found that Pinheiro engaged in the
repeated theft of potato chips and soda from sandwich shops, as
in so finding, the Commission relied on direct evidence outside
the law enforcement reports in the form of the testimony of a
sandwich shop owner and a sheriff, both of whom witnessed the
thefts”].) Here, the Commission did not rely on the arrest itself,
but rather on the evidence submitted at the hearing, in finding
Charge 1 was supported by the evidence. The same is true of the
trial court as to the evidence of the theft, which the court found
sustained Charge 1. Thus, Labor Code section 432.7 has no
bearing on the proof of the underlying misconduct which the
Commission and trial court found supported Charge 1.4
4 Sahakyan’s citation at oral argument to Garcia-Brower v.
Premier Automotive Imports of CA, LLC (2020) 55 Cal.App.5th
961, 973–977, does not change our analysis. Garcia-Brower dealt
with an employment termination that was allegedly based on the
mere existence of a conviction (that had been dismissed), which is
exactly the conduct prohibited by Labor Code section 432.7.
(Ibid.) Garcia-Brower does not address a termination decision
based on independent evidence of the facts underlying the
conviction, as occurred here.
17
We find that substantial evidence supported the trial
court’s finding that Charge 1 was proven as to the off-duty theft,
based on video recordings and witness testimony.5
B. The Evidence to Support Charge 1 Is Admissible
and Relevant
Sahakyan argues in his cross-appeal that the evidence in
support of Charge 1 was “inadmissible” because it was “post-hoc”
and violated Labor Code section 432.7. As he did before the trial
court, Sahakyan conflates the evidence required at the Skelly
Notice stage (to comport with due process) with the evidence to
prove discharge at a subsequent hearing. He argues that because
LAWA did not produce evidence of the off-duty misconduct until
after the Skelly hearing, and only produced the evidence at the
Commission hearing, the evidence was somehow inadmissible
because it was “post-hoc.” Sahakyan is confusing a Skelly
violation, for which the remedy is backpay, with the admissibility
of the evidence that supported the Commission’s decision. He
points to no case law suggesting that a failure to provide
adequate notice under Skelly renders the evidence that should
have been summarized at the Skelly hearing inadmissible in later
proceedings. The question of “whether the employer had a
legitimate basis to terminate the employee’s employment and
whether the employee is entitled to reinstatement are questions
entirely distinct from whether the employee is entitled to
backpay for the period during which the discipline was invalid”
[due to a lack of due process]. (Economy v. Sutter East Bay
Hospitals (2019) 31 Cal.App.5th 1147, 1162.)
5 Sahakyan does not argue on appeal that the facts
underlying his arrest for theft lacked nexus to his employment, so
we do not address that issue.
18
Moreover, as the trial court noted in rejecting this same
argument, Sahakyan does not argue that he did not understand
that Charge 1 included the underlying misconduct due to the
failure to produce the evidence earlier. Nor did he exhaust his
administrative remedies by arguing before the Hearing Officer
that Charge 1 was too vague. As Sahakyan admits, his claim at
the hearing in regard to Charge 1 was simply that because he
successfully completed his diversion program, his arrest could not
be considered under Labor Code section 432.7.
We reject Sahakyan’s argument that the testimony and
video evidence of the theft and assault, which the City presented
at the hearing but not at the Skelly stage of proceedings, was
inadmissible and thus could not be a basis for Charge 1.
C. We Decline to Address Sahakyan’s Preemption
Argument
Sahakyan argues for the first time on appeal that Charge 1
is preempted by section Labor Code section 432.7. He specifically
claims Charge 1’s reliance on Disciplinary Standards section
5.020(A), definition of Off Duty Misconduct as “Engaging in
illegal behavior or conduct in conflict with job duties on or off the
job” is preempted. Sahakyan correctly claims that issues of
preemption that concern subject matter jurisdiction may be raised
for the first time on appeal, citing Detomaso v. Pan American
World Airways, Inc. (1987) 43 Cal.3d 517, 520, footnote 1. But
here, there is no suggestion by Sahakyan that we lack
jurisdiction. We therefore decline to exercise our discretion to
address this belatedly raised issue for the first time on appeal,
particularly because Labor Code section 432.7 is inapplicable, for
the reasons we described ante. (Wittenberg v. Bornstein (2020) 51
Cal.App.5th 556, 567 [consideration of arguments not raised
19
below is within appellate court’s discretion and is not
mandatory].) Sahakyan could have raised his preemption
argument before the trial court in his writ of mandamus, and he
did not preserve it by raising it for the first time in the
administrative proceedings. (See Delta Dental Plan of California,
Inc. v. Mendoza (9th Cir. 1998) 139 F.3d 1289, 1296.) He does not
argue that there is a public interest reason that we should
consider it for the first time on appeal. (Cf. Rental Housing Assn.
of Northern Alameda County v. City of Oakland (2009) 171
Cal.App.4th 741, 755 [considering preemption arguments by
noting, “[w]hile we do not condone appellants’ failure to address
these issues to the trial court, in light of their public importance,
we will exercise our discretion to address the merits of appellants’
argument,” italics added].)
We decline to review Sahakyan’s preemption argument for
the first time on appeal.
D. The Trial Court’s Finding of a Lack of Nexus
Between Sahakyan’s Employment and His Assault
on Target Security Officers Is Supported by
Substantial Evidence
The trial court sustained Charge 1 based on the nexus
between his off-duty theft and Sahakyan’s employment as an
accountant for LAWA. This determination has not been argued
as a ground for appeal. But the City does argue that the trial
court erred in not also finding a nexus between the off-duty
assault and Sahakyan’s employment. While not necessary to
uphold Count 1, we address this issue because it is pertinent to
the trial court’s decision to remand for a re-determination of the
appropriateness of termination as the remedy, which is on
appeal.
20
There is no dispute that discipline for off-duty misconduct
is justified if the misbehavior causes discredit to the agency, and
there is a rational relationship between the misconduct and the
person’s employment. (Deegan v. City of Mountain View (1999)
72 Cal.App.4th 37, 50.) “If the misconduct bears some rational
relationship to the employment and is of a character that can
reasonably result in the impairment or disruption of public
service, it should be no less a cause for discipline” because it
occurred off duty. (Blake v. State Personnel Board (1972) 25
Cal.App.3d 541, 550.)
The City argues that Sahakyan’s assault on the Target
Security Officers has a rational relationship to his employment at
LAWA because it shows his inability to handle stress, which is
“directly linked to his employment.” The evidence the City cites
in support of this claim is testimony by LAWA’s Human
Resources Director opining that as someone who handles large
amounts of money for the airport, Sahakyan needs to be able to
remain calm and think clearly “in pressure situations” and not
“lash out when confronted.” The City does not point to any record
evidence that Sahakyan had a particularly stressful job that
required him to think clearly under pressure. Handling checks
and accounting for large amounts of money requires honesty and
is arguably a large responsibility, but there was no evidence it
involves a uniquely high level of stress. The trial court was
within its discretion in concluding that dealing with the stress of
forcefully being detained for arrest by multiple Target Security
Officers is quite unlike the daily stress encountered by an
accountant. The trial court’s finding of a lack of nexus between
Sahakyan’s assault at Target and his employment is supported
by substantial evidence, and is a finding the trial court was
21
entitled to make. “ ‘Where the evidence supports more than one
reasonable inference, we are not at liberty to substitute our
deductions for those of the trial court.’ [Citation.]” (Candari,
supra, 193 Cal.App.4th at p. 408.)
In sum, the trial court did not err in upholding Charge 1
based only on the theft, due to a lack of nexus between the
assault and Sahakyan’s employment.
IV. The Trial Court Did Not Err in Remanding for
Redetermination of the Remedy of Discharge
The City argues that the trial court erred in remanding to
the Commission for reconsideration of the remedy imposed
because the court was required to defer to the agency’s decision to
impose the penalty of dismissal.
The City asserts that because Charge 1, even considered by
itself, carried a potential penalty of discharge, the Commission’s
decision as to remedy was not an abuse of discretion, so the trial
court erred in ordering reassessment of the remedy. But the City
misunderstands why the trial court remanded. In Shepherd v.
State Personnel Board (1957) 48 Cal.2d 41 (Shepherd), our
Supreme Court did not substitute its own discretion for the
administrative agency when it directed the trial court to enter
judgment instructing the agency to redetermine the penalty on
remand. The court found that the administrative board imposed
the penalty of dismissal based, at least in part, on conduct which
was not proper cause for discipline. “We did not presume to alter
or annul the penalty itself, but merely remanded the case to the
board for reconsideration in light of our opinion.” (Nightingale v.
State Personnel Board (1972) 7 Cal.3d 507, 515, discussing
Shepherd, supra, 48 Cal.2d at p. 51.) The same is true here.
22
The Commission’s statement of reasons shows that it
determined that discharge from employment was the appropriate
remedy based upon Charge 1 (based on both the theft and
assault), Charge 2 (based on violating the rule requiring
disclosure of outside employment), Charge 5 (based on falsifying
records by failing to report outside employment), and
consideration of the 2016 Notices to Correct Deficiencies
regarding unauthorized copies and failing to perform work in a
timely manner.
After the trial court’s decision, only some of these bases for
dismissal remained, which is why it decided that the Commission
should determine in the first instance whether the penalty of
discharge was still appropriate. The trial court found Charge 5 of
falsifying records unsupported.6 It found Charge 1 supported by
the theft only, and not the assault. Finally, it found that the
maximum penalty for a first time offense of Charge 2 was a five-
day suspension, rendering Charge 2 not an independent basis for
dismissal.7 Thus, the trial court properly determined that
remand for Commission reevaluation of the penalty was required.
(See Shepherd, supra, 48 Cal.2d at p. 51.)
6 Neither party has challenged this finding on appeal, and
therefore we express no opinion about the court’s ruling.
7 The City argues that Charge 2 could support discharge,
but the trial court’s determination is supported by the record.
A violation for failure to report outside employment has a
maximum five-day suspension for the first offense as a “violation
of departmental rules” in violation of LAWA Standard
5.020(B)(1). Only the third offense has a suggested penalty of
discharge.
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V. The Request for Judicial Notice Is Denied
Sahakyan asks us to take judicial notice of the State of
California, Department of Consumer Affairs, Bureau of Security
and Investigative Services, Power to Arrest Training Manual
(Manual) from June 2015. The Manual relates to a private
security guard’s power to arrest. Sahakyan claims that the
Manual will show that the security guards at Target who
detained him committed an unlawful arrest and used excessive
force against him. He claims this is relevant to the trial court’s
finding that Charge 1 is supported by substantial evidence.
We find this information irrelevant and reject the request
for judicial notice of the Manual on this ground. (Ketchum v.
Moses (2001) 24 Cal.4th 1122, 1135, fn. 1 (Ketchum) [“[B]ecause
such materials have little relevance to a material issue in this
matter, we deny the request”]; People ex rel. Lockyer v. Shamrock
Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [“[A]ny matter to be
judicially noticed must be relevant to a material issue”].)
Moreover, Sahakyan admits that he never submitted the
Manual into the administrative record, or asked the trial court to
take judicial notice of it. This is an alternative reason to deny the
admission of the Manual. “Generally, when a court considers a
writ for administrative mandamus, it reviews only the record of
the proceeding before the administrative agency. [Citation.]
Code of Civil Procedure section 1094.5, subdivision (e) allows the
administrative record to be augmented with relevant evidence in
certain situations, such as when the evidence was excluded
improperly from the administrative hearing or could not be
produced through the exercise of reasonable diligence.” (Smith v.
Selma Community Hospital (2008) 164 Cal.App.4th 1478, 1520
(Smith).) Sahakyan did not try to admit the Manual at the
24
administrative hearing, and he does not argue that it could not
have been produced through the exercise of reasonable diligence.
Sahakyan also requests that we take judicial notice of
Assembly Floor Analysis relating to Assembly Bill No. 1076
(Ting), which he seeks to admit in support of his argument that
the Labor Code preempts LAWA disciplinary rules. Because we
decline to consider his preemption argument, this evidence is not
relevant, so we also decline to take judicial notice. Sahakyan has
also not explained why this could not have been produced before
the administrative agency. (See Ketchum, supra, 24 Cal.4th at
p. 1135, fn. 1; Smith, supra, 164 Cal.App.4th at p. 1520.)
DISPOSITION
The judgment is affirmed. Each party shall bear its own
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
*
HARUTUNIAN, J.
We concur:
STRATTON, P. J.
GRIMES, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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