MICHAEL ARIAS v. CITY OF LOS ANGELES (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Michael Arias (Arias) is a former police officer who challenges the termination of his employment with the Los Angeles Police Department (the Department) after a Board of Rights (the Board) found that he had worked off duty without permission from the Department while on injured on duty (IOD) status.   Respondents are the City of Los Angeles and William J. Bratton (Bratton), the City's Chief of Police at the time of Arias's discharge.   We affirm the judgment upholding the termination of employment.

BACKGROUND

Arias was employed as a police officer with the Department from December 1982 until December 19, 2006, eventually attaining the rank of Detective II. As the result of an injury to his elbow in November 2001, Arias was placed on IOD status, and he thereafter stopped working but continued to be paid his full salary.

In December 2006, the Board convened to adjudicate allegations of misconduct against Arias.   After hearing testimony by Arias and others at the administrative hearing, the Board determined that Arias was guilty of the following misconduct:

Count 3:  Between November 26, 2001 and January 31, 2002, engaged in activity inconsistent with a medical claim.

Count 4:  On or about February 5, 2004, engaged in activity inconsistent with a medical claim.

Count 5:  Between November 1, 2002 and November 11, 2004, while on IOD status, failed to notify a Department supervisor when away from residence for more than 48 hours.

Count 6:  Between November 1, 2002 and November 11, 2004, while on IOD status, engaged in outside employment without proper authorization.

The Board recommended that Arias be discharged from his employment with the Department, and Bratton accepted this recommendation and terminated Arias's employment by a written order dated December 19, 2006.

On February 6, 2007, Arias filed a petition for a writ of mandate, challenging the Board's findings and the penalty imposed.   Following a February 8, 2008 trial, the trial court granted Arias's petition, finding that the Board had improperly based its adjudication of counts 3 and 4 on hearsay testimony by Arias's treating physician, who had not testified at the administrative hearing.   The trial court ordered respondent Bratton to rescind the order terminating Arias's employment, and remanded the matter for such further action as respondents deemed proper, consistent with the court's decision.

On September 24, 2008, the Board reconvened to consider the penalty imposed against Arias based on the Board's undisturbed findings of guilt as to counts 5 and 6. After hearing argument from the parties, the Board deliberated and unanimously recommended that Arias's employment be terminated.

When delivering its rationale on penalty, the Board explained that the Department imposes limitations on an employee's actions while on IOD status in order to promote recovery and recuperation and to facilitate the employee's return to work.   The Board further explained that the Department's rules requiring an officer on IOD status to notify a supervisor when the officer will be absent from his or her residence for more than 48 hours and to obtain written permission before working off duty, enable the Department to monitor the activities of officers on IOD status.   The Board noted that Arias's violation of these rules obstructed and disabled the Department from monitoring his compliance and was “intolerable in a supervisor of police.”   The Board found that Arias's misconduct constituted more than technical rule violations, and that Arias's failure to comply with the notification and authorization requirements violated the public trust.   The Board noted that truthfulness, honesty, and integrity are the “uncompromising qualities of a police officer” but that Arias had placed the furtherance of his own personal interests ahead of the interests of the Department and the public.

The Board noted that the Department's penalty guidelines authorized a penalty of termination for violating “any codified/published/otherwise specified/articulated Department policy/rule/procedure” and recommended terminating Arias's employment.   Bratton accepted that recommendation and ordered Arias discharged.

On December 3, 2008, Arias filed a second petition for a writ of mandate contesting the Board's findings and the penalty assessed.   After a trial on the matter, the trial court found that the weight of the evidence supported the Board's findings of misconduct and that the penalty assessed was not an abuse of discretion.   Judgment was entered on May 29, 2009.   This appeal followed.

DISCUSSION

I. Standard of Review

In a mandamus proceeding involving a fundamental vested right, such as the right of a city employee to continued employment (McMillen v. Civil Service Com. (1992) 6 Cal.App.4th 125, 129), the trial court exercises its independent judgment to determine whether the agency's findings are supported by the weight of the evidence.  (Strumsky v. San Diego County Employees Ret. Ass'n (1974) 11 Cal.3d 28, 32;  Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 51 (Kazensky ).)   An appellate court must sustain the trial court's factual findings that are supported by substantial evidence, resolving all conflicts in favor of the prevailing party, and giving that party the benefit of every reasonable inference in support of the judgment.  (Kazensky, at p. 52.)

“Judicial review of an agency's assessment of a penalty is limited, and the agency's determination will not be disturbed in mandamus proceedings unless there is an arbitrary, capricious or patently abusive exercise of discretion by the agency.  [Citation.]  ‘Neither a trial court nor an appellate court is free to substitute its discretion for that of an administrative agency concerning the degree of punishment imposed.  [Citations.]’  [Citation.]   If reasonable minds may differ with regard to the propriety of the disciplinary action, no abuse of discretion has occurred.  [Citation.]  An appellate court conducts a de novo review of the trial court's determination of the penalty assessed, giving no deference to the trial court's determination.  [Citation.]”  (Flippin v. Los Angeles City Bd. of Civil Service Commissioners (2007) 148 Cal.App.4th 272, 279.)

II. Substantial Evidence Supports the Factual Findings

Arias challenges the trial court's finding that the weight of the evidence supported the following determination by the Board:

“As to count 6, ‘between November 1st, 2002 and November 11, 2004, you, while on [IOD] status, engaged in outside employment without proper authorization,’ the Board finds you guilty.

“Detective Arias did not have a valid work permit that would allow him to go to Texas, Florida, and South America for the furtherance of his off-duty gaming business.   While Arias has denied this count, the evidence presented before this Board is that he actively engaged in personal off-duty business without a valid permit for outside employment.”

Substantial evidence supports that finding.

Department rules prohibit an officer from working off duty while on IOD status without written permission from the Department.   There is substantial evidence in the record that Arias violated this prohibition.   Arias testified that he had an ownership interest in a company formed “to play slot machines in Brazil.”   To further his interest in the company, Arias traveled to Texas to inspect slot machines that were being refurbished for this purpose.   Arias brought a companion with him to Texas for the purpose of playing the slot machines and assessing their aesthetic appeal.   Arias undertook two or three business trips to Brazil, each trip lasting four or five days, to sign contracts and to meet with the company's Brazilian business associates.   He did not notify the Department when he traveled to Texas and Brazil, and he did not obtain written authorization from the Department for his activities in connection with the slot machine business.

Although Arias contends he was merely a passive investor in the slot machine company, the evidence shows that he was more actively involved, traveling outside of the state and outside the country to inspect slot machines and to meet with business associates, all without the Department's knowledge or authorization.   Arias insists that his trip to Texas occurred outside the time period alleged in count 6, but the record contains evidence to the contrary.   The person who accompanied Arias on the Texas trip testified that the trip occurred in “2002, maybe somewhere between February and April.” ¹  Under the substantial evidence standard, we must resolve all conflicts in the evidence and issues of credibility in favor of respondents.  (Kazensky, supra, 65 Cal.App.4th at p. 52.)   Moreover, in the administrative proceedings below, the Board “weighed the overall credibility of Detective Arias” and “had serious questions with candor and veracity.”   Substantial evidence supports the finding of misconduct.

III. Penalty

Having concluded that the charges sustained by the Board against Arias were supported by the weight of the evidence, the trial court was required to uphold the penalty imposed if there was any reasonable basis for doing so.   (Kazensky, supra, 65 Cal.App.4th at p. 54.)   As discussed, the penalty imposed by an administrative agency will not be disturbed in a mandamus proceeding absent a manifest abuse of discretion.  (Ibid.) “It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown.   [Citations.]”  (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 47.)   No such showing has been made here.

The Board found that Arias placed his own interests ahead of those of the Department and of the public trust.   As a law enforcement officer, Arias was expected to perform his duties in a manner “faithful to the trust reposed in [him]” (Hankla v. Long Beach Civil Service Com. (1995) 34 Cal.App.4th 1216, 1224), but he failed to do so.   The Department's penalty guidelines authorized termination as a penalty for violation of published or articulated Department policies or procedures.   That penalty was imposed not only for working off duty while on IOD status without Department authorization (count 6 of the allegations sustained by the Board against Arias and the only count challenged in this appeal), but also for failing to notify the Department when Arias was away from his residence for more than 48 hours (count 5).   Arias's discharge from employment was not an abuse of discretion by the Board, and the trial court did not err by upholding the Board's imposition of that penalty.

DISPOSITION

The judgment is affirmed.   Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

CHAVEZ

We concur:

FOOTNOTES

FN1. Notwithstanding Arias's counsel's assertions to the contrary during oral argument in this appeal, there was evidence that Arias's Texas trip occurred during the alleged time period and related to his investment interest in the Brazilian business..  FN1. Notwithstanding Arias's counsel's assertions to the contrary during oral argument in this appeal, there was evidence that Arias's Texas trip occurred during the alleged time period and related to his investment interest in the Brazilian business.

_, P.J. BOREN _, J. ASHMANN-GERST