CROWDER v. COUNTY OF LOS ANGELES

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Court of Appeal, Second District, Division 4, California.

Eldon CROWDER, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

No. B088787.

Decided: December 12, 1996

Green & Shinee and Helen L. Schwab, Encino, for Plaintiff and Appellant. De Witt W. Clinton, County Counsel, and Stephen R. Morris, Principal Deputy County Counsel, for Defendants and Respondents.

PROCEDURAL HISTORY

This is an appeal from the final judgment in an administrative mandamus proceeding brought under section 1094.5 of the Code of Civil Procedure.  Petitioner and appellant, Eldon Crowder (hereinafter “appellant”), was discharged as a Los Angeles County deputy sheriff on August 30, 1991.   He appealed the termination of his employment to the Los Angeles Civil Service Commission (hereinafter “Commission”).   The Commission declined to sustain the Los Angeles Sheriff Department's (hereinafter the “Department”) discharge, opting instead for a penalty of 18 months without pay.   Appellant herein appeals from the Superior Court's determination to deny his petition for writ of administrative mandamus.

At the trial court level, appellant contended that under the independent review standard, the findings and decision of the Commission to suspend him for eighteen months without pay were not supported by the weight of the evidence and that the Commission had thereby abused its discretion in so ruling.

STATEMENT OF FACTS

The facts herein are not in dispute.   Appellant was a Los Angeles County deputy sheriff.   He had been employed in that position since 1982.   His employment required the driving of county jail inmates in a county transportation bus to and from the Department's Wayside Ranch facility in Saugus.

On October 12, 1990, appellant inquired of David Wallis, a civilian supervisor at the ranch, as to the availability of county-owned hay.   Thereafter, while on duty and in uniform, he loaded four bales of hay onto the Department's bus in plain view of his partner, Deputy Rich. At the Department's Transportation Bureau located downtown, he transferred the four bales to his pick-up truck and took them to his brother's home to feed two calves they had bought.

A week later on October 20, 1990, again while on duty and in uniform, while driving a county transportation bus and accompanied by Deputy Perez–Nacua, and while in plain view, he received the assistance of an inmate in loading twelve bales of hay into three cargo storage bins underneath the bus.   He again took them to his vehicle downtown where the transfer from the county bus to his personal vehicle took place in the plain sight of at least one supervisory deputy.

Appellant alleges he believed he had permission to take the hay.   The County contends he did not have permission to appropriate county property for his personal use.   On August 30, 1991, appellant received a letter from the Department indicating he was being terminated from his employment for misappropriation of county property, failure to make statements and/or making false statements during the departmental internal affairs investigations, poor performance on duty, and incompetence.

ISSUES

1. Is there substantial evidence to support the trial court's findings based upon the whole record?

2. Did the Commission abuse its discretion in reinstating a deputy sheriff after the imposition of an 18–month suspension without pay?

3. Did the Commission exceed its authority under the County Charter and Civil Service Rules when it rendered a second proposed decision after overruling both parties objections?

4. Does Civil Service Rule 18.01 limit the Commission to suspending an employee without pay for a maximum period of thirty days?

DISCUSSION

 The standard of review limits our discretion.   Under Code of Civil Procedure section 1094.5, the trial court exercises its independent judgment in its judicial review of administrative decisions whenever the administrative decision affects a fundamental vested right.  (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 31–32, 112 Cal.Rptr. 805, 520 P.2d 29.)   A public employee's right to continued permanent employment is a fundamental right.  (Goggin v. State Personnel Bd. (1984) 156 Cal.App.3d 96, 103, 202 Cal.Rptr. 587, disapproved on other grounds in Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1123, fn. 8, 278 Cal.Rptr. 346, 805 P.2d 300.)

 “On appeal, this court exercises the same function as the trial court and must decide if the agency's findings were based upon substantial evidence.   Neither court may reweigh the evidence, and both courts must view the evidence in the light most favorable to the Board's findings and indulge in all reasonable inferences in support thereof.  (Maynard v. State Personnel Bd. (1977) 67 Cal.App.3d 233, 237, 136 Cal.Rptr. 503.)”  (Goggin v. State Personnel Bd., supra, 156 Cal.App.3d at p. 103, 202 Cal.Rptr. 587;  Alexander v. Board of Trustees (1983) 139 Cal.App.3d 567, 572, 188 Cal.Rptr. 705.)

 As to the discipline imposed, the standard of review on appeal remains the same as it was at the trial court.   Any discipline imposed by the Commission may not be disturbed absent a manifest abuse of discretion.   (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 228, 282 Cal.Rptr. 240;  Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 501, 210 Cal.Rptr. 788.)

 And, although “ ‘[d]iscretion is abused when the [penalty] exceeds the bounds of reason[,]’ ” the “ ‘fact that reasonable minds may differ as to the propriety of the penalty imposed’ ” supports a finding the commission acted within its discretion.  (Ackerman v. State Personnel Bd. (1983) 145 Cal.App.3d 395, 401, 193 Cal.Rptr. 190.)

 Pure questions of law are reviewed de novo.  “We are not bound by the trial court's stated reasons, if any, supporting its ruling;  we review the ruling, not its rationale.  [Citation.]”  (Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1083, 258 Cal.Rptr. 721.)   To the extent that this appeal calls for the interpretation of statutes, charter provisions and civil service rules and procedures, those are all questions of law to be resolved de novo.  (Riveros v. City of Los Angeles (1996) 41 Cal.App.4th 1342, 1349–1350, 49 Cal.Rptr.2d 238.)

I

IS THERE SUBSTANTIAL EVIDENCE TO SUPPORT THE TRIAL COURT'S FINDINGS BASED UPON THE WHOLE RECORD?

The Commission's Findings of Facts and Conclusions of Law and Decision found that the Department has a clear, unambiguous policy that prohibits the admitted acts herein.   The Department Manual of Policy provides:  (1) “A member shall not act or behave privately or officially in such a manner as to bring discredit upon himself or the Department.” (§ 3–01/030.05.) (2) “Members shall not appropriate for their own use any County property, evidence, or found or recovered property.” (§ 3–01/040.40.) (3) “While on duty, employees shall be governed by the following rules:  [¶] Employees shall devote their time and attention to the service of the County and the Department, and shall direct and coordinate their efforts in a manner which will establish and maintain the highest standard of efficiency.  [¶] Uniformed members shall maintain a soldierly bearing, and shall perform their duties in a calm and firm manner acting together to assist and protect each other in maintaining law and order.” (§ 3–01/050.05.)

A deputy sheriff should certainly have sufficient common sense to know the responsibilities of the job.  (See Kirkpatrick v. Civil Service Com. (1978) 77 Cal.App.3d 940, 144 Cal.Rptr. 51.)

 Taking feed hay from the county to feed his private livestock was wrong.   Using a Department bus for his personal use in transporting the feed into downtown where he transferred it to his own vehicle was wrong.   Utilizing the services of a county inmate to load the feed for his personal usage was wrong.   Appellant does not contest these acts.   He merely contends he had permission to take the feed.   The record fails to show a basis for allowing the usage of a county vehicle or the services of a prisoner for appellant's personal benefit.

As to the hay, the evidence appears to be contradictory.   On October 12, 1990, the day appellant first took bales of hay, he was seen by his partner, Deputy Rich, discussing something with a civilian employee, David Wallis.   Appellant claims Wallis told him, “There is no need to buy the hay.   Everybody up here takes it.   Hell, just take what you want.”

Yet, this is simply not the recollection of Wallis who testified as follows:

“Q. Okay. Going back to the conversation you had in the dining room, how did that conversation come about ?

“A. [Appellant] came over to the table where I was sitting with two of my friends that worked there at the Honor Rancho and asked if he could take some of the bales of hay that were at the beef cattle facility.   And I told him that he would have to contact the supervisor in charge of beef cattle or the dairy.   Either one of them could have given him permission, or he would most likely have to talk to Mike Sheriden, who was the farm manager at that time.

“․

“Q. Did you give [appellant] any permission to take any hay from the facility?

“A. No.”

Wallis also testified without rebuttal that he did not have authority to grant appellant permission to take any hay.   Appellant claimed his excuse for taking the hay was that others also took hay away.   However, the other incident mentioned was the taking of a handful of hay for a Christmas crèche.   Here we are dealing with sixteen bales.   While it might not appear pertinent to seek official permission for the taking of a handful of hay, certainly common sense dictates that some sort of official sanction should be sought before carrying away a significant cargo of sixteen bales.

There is also an allegation in appellant's brief that the deputy in charge of the ranch was utilizing the ranch hay to feed his horses.   Even if this allegation were proven to be correct, it would not justify the actions of appellant.   Further, we note that Deputy Rich testified he also heard the conversation with Wallis and understood that appellant needed to speak with someone other than Wallis to receive permission to take the hay.

No one testified that appellant ever spoke with Sheriden or to any superior officer in the Department chain of command.   Appellant testified he never asked anyone for permission to take the second load.   Conceivably, it appears appellant could have taken hay indefinitely to feed his own livestock.

On the basis of this record, we can only conclude that there is substantial evidence to support the findings of the Commission as well as the trial court.  (Jackson v. City of Pomona (1979) 100 Cal.App.3d 438, 451, 160 Cal.Rptr. 890.)

II

DID THE COMMISSION ABUSE ITS DISCRETION IN REINSTATING A DEPUTY SHERIFF AFTER THE IMPOSITION OF AN 18–MONTH SUSPENSION WITHOUT PAY?

 The Department's recommendation was to terminate appellant's employment as a deputy sheriff.   The Commission found the discharge inappropriate.   It took into consideration appellant's service record.   However, the Commission decided that in view of his status as a peace officer, the two incidents of misappropriation of county funds required an 18–month suspension without pay.   Appellant argues the suspension was “a manifest abuse of discretion.”   We disagree.

The Talmo and Schmitt cases cited above set the standard that the Commission's decision on any discipline imposed may not be disturbed absent a manifest abuse of discretion.   In Talmo, supra, 231 Cal.App.3d 210, 282 Cal.Rptr. 240 the central issue was whether the Commission abused its discretion in upholding the discharge of a deputy sheriff who committed batteries on two prisoners, uttered threats and racial slurs against a fellow employee and then lied about these actions to his superiors.   This court reversed the trial court and held the discharge to be within the discretion of the Commission.  (Id. at p. 231, 282 Cal.Rptr. 240.)   In Schmitt, supra, 164 Cal.App.3d 494, 210 Cal.Rptr. 788 this court again reversed the trial court and reinstated a decision by the Rialto City Council to discharge a police officer for a single act of discharging his weapon in violation of a police department general order.

In the instant case, appellant is not complaining because the Commission declined to sustain the Department's discharge, but because it imposed a penalty of 18 months without pay.

Even if we accept the appellant's versions of his actions, his conduct demonstrates abysmally poor judgment.   He failed to secure a superior's permission to take the hay.   He failed to follow through on Wallis's suggestion to see the beef cattle or dairy supervisor.   He knowingly used a county vehicle for his own personal use.   He requested, or at least accepted, the labor of a county jail inmate.   He took hay, not once but twice.   In Schmitt, supra, the appellate court found poor judgment by a peace officer a sufficient cause for dismissal.  “The failure to exercise good judgment under circumstances of calm reflection and deliberation raises serious question as to a person's ability to exercise good judgment in stress situations such as a police officer often faces.”  (164 Cal.App.3d at p. 502, 210 Cal.Rptr. 788.)

III

DID THE COMMISSION EXCEED ITS AUTHORITY UNDER THE COUNTY CHARTER AND CIVIL SERVICE RULES WHEN IT RENDERED A SECOND PROPOSED DECISION AFTER PREVIOUSLY OVERRULING THE PRIOR OBJECTIONS OF BOTH PARTIES?

On July 8, 1992, the Commission adopted its first proposed decision and findings and recommendation of the Hearing Officer not to sustain the Department and to reinstate appellant.   Upon the filing of objections by the Department, the Commission voted to sustain the objections, in part, and to read the transcript of the proceedings.

On November 25, 1992, the Commission having read the record and drafted new findings, proposed and made known to the parties that it was considering a penalty of two 30–day suspensions.   It did so by means of issuing a second or “new proposed decision” for the purpose of securing the input of each party prior to making a final decision.   Civil Service Rule 4.13 subdivision (D) provides:  “If either party files objections to the proposed findings and conclusions within the time specified above and the commission believes that the objections or parts thereof have validity, the commission shall amend the proposed findings and conclusions accordingly, and shall notify the parties that the amended findings and conclusions are a new proposed decision.   Any party who has not previously filed objections shall have 10 business days from the date of the notice of the new proposed decision to file objections to that decision.   The commission shall then consider those objections, and notify the parties of its final decision.”

Appellant argues that the Commission's decision (leaving appellant suspended for 18 months) was arbitrary and left him in a worse position than he would have been if no objections had been filed.   Nevertheless, the facts are that objections were appropriately filed.

Civil Service Rule 4.13, subdivision (E) provides:  “If no party files objections to the proposed findings and conclusions within 10 business days after service, they shall constitute the final decision of the Commission.”   In this case, the proposed decision for two consecutive 30–day suspensions was not final precisely because timely objections thereto were filed by the Department.   After receiving and considering the objections of both parties, the Commission properly moved forward and issued its final order on January 6, 1993, which resulted in the 18–month suspension without pay.   After having received the parties' objections, there was no need for yet another third “proposed order.”   The Commission was free to conclude the matter with a final decision.

 It was not improper for the Commission to render more than one proposed decision.  “The commission owes a duty to the employee and to the public to make a fair and informed decision on discipline matters.   If, as was the case here, the commission believed it needed further information from one of the parties in order to exercise its judgment the commission surely had the authority to obtain such information.”  (Talmo v. Civil Service Com., supra, 231 Cal.App.3d at p. 220, 282 Cal.Rptr. 240.)

When the Commission issued its second proposed decision on November 25, 1992, it was following Talmo and Rule 4.13 subdivision (E).   Prior to that date, neither side had the opportunity to comment on the revised discipline being suggested.   The views of both parties was appropriately solicited.   Once these views were received and considered, the Commission was free to decide that the case was ready for determination and to issue its decision of January 6, 1993.

IV

DOES CIVIL SERVICE RULE 18.01 LIMIT THE COMMISSION TO SUSPENDING AN EMPLOYEE WITHOUT PAY FOR A MAXIMUM PERIOD OF 30 DAYS?

Termination by the Department would not only have an immediate impact upon the appellant, it would have resulted in a severe difficulty in his finding future employment anywhere as a peace officer.   The Commission reduced the discharge to a suspension of about 18 months.   However, appellant asserts the Commission was not empowered to suspend him for more than 30 days because of Civil Service Rule 18.01.

The Civil Service Rules granting the Commission the authority to operate were adopted by the Los Angeles Board of Supervisors after public hearings under Section 35 of the Los Angeles County Charter.   The Rules have the force and effect of law and are prescribed and adopted pursuant to the California Constitution and the County Charter.

Under County Charter article IX, section 34, the Commission serves as an “appellate body” whose function is to provide hearings on appeals of discharges and reductions of permanent employees.   The purpose of the Rules is defined as follows:  “These Rules are prescribed for the purpose of carrying out the Charter provisions, of assuring the continuance of the merit system, of promoting efficiency in the dispatch of public business, and of assuring all employees in the classified service of fair and impartial treatment at all times subject to Merit System Standards and appeal rights as set forth in these Rules.”  (Rule 1.02.)

Civil Service Rule 18.01 subdivision (A) provides in pertinent part:  “Suspension.   A. Subject to such appeal right as provided in this Rule, an employee may be suspended by the appointing power for up to and including 30 days, pending investigation, filing of charges and hearing on discharge or reduction, or as a disciplinary measure ․ [t]he reason(s) for such suspension shall be forthwith furnished in writing to the employee and a copy sent to the director of personnel.”

 In the instant case there was a single filing of charges against the appellant which contained both the incidents.   No criminal charges were filed.   Both parties concede that the Commission was not the “appointing power.”   In this case the appointing power was clearly the Department.   It was not up to the Commission to impose the discipline, but merely to review its appropriateness.   The Department imposed discharge.   The Commission instead imposed a lengthy period without pay.   It is undisputed that the Commission had the legal authority to sustain the discharge.   It clearly has the inherent authority to modify from discharge to a suspension.  (Paoli v. Civil Service Com. (1993) 12 Cal.App.4th 1073, 1077, 15 Cal.Rptr.2d 874;  Andersen v. San Diego County Civil Service Com. (1981) 122 Cal.App.3d 577, 579, 176 Cal.Rptr. 66.)

Appellant's argument that the Commission previously limited itself to 30–day suspensions is not persuasive in view of Talmo v. Civil Service Com., supra, 231 Cal.App.3d at page 215, 282 Cal.Rptr. 240, wherein the court cites the recommendation of the hearing officer for a 90–day suspension.   We, therefore, hold that since the Commission may modify an order to something less than the most extreme penalty of discharge, it has the authority to modify the suspension herein.

“Termination is the most extreme penalty that can be imposed in the employment context, depriving the employee of the means of livelihood and making it more difficult to find other employment because of the questionable circumstances under which the prior job ended.  [Citation.]   By contrast a suspension does not destroy but merely interrupts employment.  [Citation.]”   (Paoli v. Civil Service Commission, supra, 12 Cal.App.4th at p. 1077, 15 Cal.Rptr.2d 874.)

CONCLUSION

We affirm.   Costs to respondents.

ARANDA, Associate Justice.

VOGEL (C.S.), P.J., and EPSTEIN, J.,* concur.