Mays v. City of Los Angeles

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.]

* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part III.C.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 934 OPINION

I. INTRODUCTION John Mays, a police sergeant, appeals a judgment denying his Code of Civil Procedure section 1085 mandate petition seeking an order compelling defendants, City of Los Angeles and Chief of Police William Bratton, to set aside an official written reprimand. We hold plaintiff was not given timely notice of any "proposed disciplinary action" within one year of the discovery of his alleged misconduct as required by Government Code1 section 3304, subdivision (d) of the Public Safety Officers Procedural Bill of Rights Act (the act). Thus, we conclude the written reprimand must be removed from plaintiffs personnel file.

II. BACKGROUND Plaintiff filed his mandate petition on May 24, 2004. The petition alleged plaintiff was charged and reprimanded by Chief Bratton on February 3, 2003. The mandate petition further alleged that, at the time the reprimand was imposed, it violated state law because: the Los Angeles Police Department (the department) received information concerning the misconduct on August 8, 2001; on August 12, 2002, the department mailed a personnel complaint *Page 935 notifying plaintiff that he was to be demoted based on the information discovered on August 8, 2001; on February 3, 2003, the department conceded the charges were too old to be the basis for a demotion; but Chief Bratton nevertheless issued a reprimand on February 4, 2003. Plaintiff requested the reprimand be removed from his personnel file and attorney fees be awarded pursuant to section 3309.5. In conjunction with the hearing on the mandate petition, the parties submitted documents and evidence which established the following. On July 26, 2001, plaintiff submitted a report to the City of Torrance Police Department stating that his personal car had been burglarized at his residence. On July 23, 2002, Captain Julie Nelson signed a "Los Angeles Police Department Complaint Form." The July 23, 2002 administrative complaint alleged: "On July 26, 2001, [plaintiff] discovered that his private vehicle had been burglarized while parked in the driveway at his residence in the City of Torrance. [Plaintiff] went to the Torrance Police Department and filed a report at the front desk on July 26, 2001 at 0900 hours, DR No. 01-10909. On July 26, 2001, at 1030 hours, plaintiff telephoned Harbor Day Watch Commander, Lieutenant I Diane Burns, . . . and reported the theft of his Los Angeles Police Identification Card, a personally owned firearm and other items including a personnel complaint investigation package, CF NO. 01-1476. [¶] On June 10, 2001, [plaintiff] completed and turned in a completed Personnel Complaint Investigation, CF No. 00-4985. During the review of the complaint, significant inconsistencies within the investigation were noted regarding the statements of the parties involved. On August 2, 2001, Lieutenant I, John Baronowski, . . . Harbor Area Administrative Lieutenant, requested [plaintiff] to produce the Audio Tape(s) of the interviews, Tape No. 241855. [Plaintiff] informed Lieutenant Baronowski that Audio Tape No. 241855 had been taken during the July 26, 2001, burglary of his private vehicle. [¶] [Plaintiff] told Lieutenant Baronowski that other materials related to complaint investigation, CF No. 01-1476, also had been taken in the burglary. The items taken included the Audio Tape and related investigative [materials]. The police report filed by plaintiff with the Torrance Police Department did not list any Los Angeles Police Department documents or Department owned Audio Tapes as being taken in the burglary. [¶] On August 10, 2001, [plaintiff] was directed to file a Victim's Supplemental Property Loss Report with the Torrance Police Department and list all Los Angeles Police owned Audio Tape(s) and related official documents." Also on July 23, 2002, plaintiff was given a written "Notice of Proposed Disciplinary Action" which was signed by Captain Nelson. Plaintiff acknowledged he had received a copy of the "investigative material." Captain Nelson recommended a board of rights hearing be held. Neither the July 23, 2002 complaint nor the proposed disciplinary action documents identified any contemplated discipline. *Page 936 On July 29, 2002, a sergeant prepared a document entitled, "Penalty Recommendation." The recommendation stated Captain Nelson had urged on July 23, 2002, that plaintiff have a board of rights hearing and be demoted. (In fact, Captain Nelson made no recommendation that plaintiff be demoted, only that a board of rights hearing be conducted.) The form also states that a commander agreed to Captain Nelson's recommendations on July 24, 2002. Captain Nelson's recommendations were based on the charges that plaintiff: between November 15, 2000, and June 10, 2001, while on duty, failed to conduct a thorough complaint investigation as required (count 1); on July 26, 2001, while off duty failed to maintain control of confidential police department records resulting in their loss (count 2); on July 26, 2001, while off duty failed to report the loss of police department records in a timely manner (count three); on June 10, 2001, submitted a complaint form investigation that contained inaccurate information (count four); and on May 23, 2002, made false statements to a sergeant during an official investigation (count five). However, there is no evidence the July 29, 2002 penalty recommendation document was served on plaintiff. On August 2, 2002, Acting Chief of Police Martin Pomeroy signed an administrative complaint alleging that plaintiff engaged in five specific forms of alleged misconduct. The August 2, 2002 administrative complaint contained the same five counts of alleged misconduct outlined in Captain Nelson's July 23, 2002 penalty recommendation which recommended a board of rights hearing be held. Further, the August 2, 2002 administrative complaint informed plaintiff that the department was seeking to demote him from the rank of sergeant to police officer effective August 17, 2002. In a letter dated January 9, 2003, plaintiff requested counts one through four in Acting Chief Pomeroy's August 2, 2002 administrative complaint be withdrawn because they were barred by the statute of limitations. On February 4, 2003, an amended administrative complaint was issued which deleted counts one through four of the misconduct charges contained in the August 2, 2002 complaint signed by Acting Chief Pomeroy. The amended administrative complaint contained a single misconduct charge that, on May 23, 2002, plaintiff allegedly made false statements to another sergeant during an official investigation. The amended administrative complaint informed plaintiff that he was being demoted from his position as Sergeant I to that of police officer effective August 17, 2002. Plaintiff was served with the amended administrative complaint dated February 4, 2003, on February 28, 2003. On May 12, 2003, the board of rights found plaintiff not guilty of the sole remaining count of the amended administrative complaint. *Page 937 On May 22, 2003, plaintiff was served with an official written reprimand signed by Chief Bratton. The reprimand provides in part: "Your actions in this complaint amount to SERIOUS MISCONDUCT and if it were not for the expiration of the statute of limitations prescribed in the Los Angeles City Charter Sections 1070 and 1070.a, a substantial penalty would have been imposed on you. [¶] I AM THEREFORE IMPOSING THE MAXIMUM ALLOWABLE PENALTY AND HEREBY OFFICIALLY REPRIMAND YOU. [¶] I find that the following charges were sustained: [¶] Count 1. Between November 15, 2000 and June 10, 2001, you, while on duty, failed to conduct a thorough Complaint Investigation, as required. [¶] Count 2. On or about July 26, 2001, you, while off duty, failed to maintain control of confidential Department records resulting in their loss. [¶] Count 3. On or about July 26, 2001, you, while off duty, failed to report the loss of Department records in a timely manner. [¶] Count 4. On or about June 10, 2001, you submitted a Complaint Form investigation that contained false information." (Original boldface and capitalization.) On May 23, 2003, plaintiff filed an administrative appeal requesting that Chief Bratton's May 22, 2003 written reprimand be rescinded. On June 26, 2004, the commanding officer of internal affairs, Commander Eric A. Lillo, sent a letter to plaintiff's commanding officer indicating that the charges had been changed to reclassify count 1 as "Out-of-Statute" and count 4 as nonresolved. According to Commander Lillo, Chief Bratton's official written reprimand now contained only two counts. Defendants also conceded at the hearing on the administrative mandate petition that the nonresolved count could be "considered for the future." In the points and authorities filed in support of the mandate petition, plaintiff argued Chief Bratton's reprimand violated section 3304, subdivision (d) and the department's own directives ordering that similarly issued reprimands be rescinded and removed from officers' personnel files. Plaintiff also argued: "Los Angeles City Charter Section 1070, . . . prohibits only dismissal, demotion or suspension for allegations of misconduct that are time-barred. Stated another way, the statute of limitations contained in the Los Angeles City Charter does not apply to [the city's] power to issue reprimands. [¶] In apparent reliance on the City Charter, the Chief withdrew four allegations from the personnel complaint, but put them into a reprimand. This was error. The Chiefs power to take punitive action is not only limited by the City Charter; it is also limited by Section 3304, [subdivision] (d). . . ." Thus, plaintiff argued that Los Angeles City Charter2 section 1070 did not time bar written reprimands. However, the chiefs power to take punitive action by reprimanding plaintiff was barred by the charter as well as section 3304, subdivision (d). *Page 938 The city opposed the mandate petition but conceded that it had failed to comply with the charter. The city conceded the department failed to file charges with the police commission within one year as required by charter section 1070, subdivisions (c) and (d). Defendants explicitly admitted, "The [department became aware of misconduct on July 26, 2001." Notwithstanding this concession, the city argued that charter section 1070 did not apply to "[p]aper penalties" such as an official reprimand. Defendants argued that the petition should be denied because: the department could impose an official reprimand; the department complied with section 3304, subdivision (d); the department had no ministerial duty to remove the official reprimand; and plaintiff had failed to exhaust his administrative remedies. In reply and for the first time, plaintiff raised the issue of whether defendants had also violated Los Angeles Police Department administrative order No. 7 (Administrative Order No. 7), which was apparently promulgated in 1999 to comply with section 3304, subdivision (d). Administrative Order No. 7 is quoted extensively from Jackson v. City of LosAngeles (2003) 111 Cal.App.4th 899, 905 [4 Cal.Rptr.3d 325], which states: "On March 22, 1999, the Office of the Chief of Police of the Los Angeles Police Department issued Administrative Order No. 7. It recognized that enactment of section 3304, subdivision (d) might affect [the statute of limitations contained in the charter] and stated: `Until there is further judicial or legislative clarification, City and State laws should be read in conjunction to the extent possible when considering misconduct investigations and final disciplinary decisions.' Specifically regarding the limitations period, Administrative Order No. 7 stated: [¶] `I. COMPLETION OF MISCONDUCT INVESTIGATIONS. [¶] Investigations of misconduct should be completed within one year of the discovery of the misconduct by a supervisor (Sergeant I or Detective II or higher). This time limit includes the filing of the verified written complaint with the Police Commission following service upon the sworn employee." The reply memorandum also reiterated plaintiff s argument that defendants had violated section 3304, subdivision (d). This was because Captain Nelson's July 23, 2002 notice did not specify either the charges or the penalty. Rather, plaintiff argued that Captain Nelson's July 23, 2002 notice indicates only that the matter be adjudicated by a board of rights but does not mention the proposed penalty of demotion. Plaintiff also argued for the first time that the written reprimand violated section 3304, subdivision (f) which provides, "If, after investigation and any predisciplinary response or procedure, the public agency decides to impose discipline, the public agency shall notify the public safety officer in writing of its decision to impose discipline, including the date that the discipline will be imposed, within 30 days of its *Page 939 decision, except if the public safety officer is unavailable for discipline." In response to the city's exhaustion issue, plaintiff argued that he was not required to exhaust administrative remedies. Plaintiff reasoned section 3309.5 gives the superior court initial jurisdiction over claims that the city violated the act. Plaintiff also asserted that exhaustion of administrative remedies was unnecessary given that over two years had passed since he appealed the reprimand and no hearing had been conducted. The trial court rejected defendants' exhaustion argument but denied the mandate petition on its merits. The trial court noted that the parties agreed that charter section 1070 does not apply to the power to issue reprimands. The trial court ruled that charter section 1070, subdivision (c) does not list a written reprimand as a disciplinary action. The trial court found: "The two counts as to which Petitioner is still reprimanded both arise out of the July 26, 2001 theft of government property from his vehicle. Petitioner's counsel, in his letter of January 9, 2001 . . . refers to August 8, 2001 as the `date of discovery' for Counts 1-4. Respondents' Exhibit A shows that at least as of August 10, 2001, the misconduct alleged in the two remaining counts had to be discovered by `a person authorized to initiate an investigation.' [Citation.] [¶] Respondents' Complaint Form indicates the `date of occurrence' as July 26, 2001, and the `date reported' as [of] August 14, 2001. . . . As noted, the earliest that these two counts of misconduct could have been discovered was July 26, 2001 (the date of the occurrence when Petitioner's car was stolen), and the latest was August 18, 2001 (the date of the report). . . . Petitioner received a Complaint Form and Notice of Proposed Disciplinary Action on July 23, 2002." The trial court then found the city had complied with section 3304, subdivision (d) by "adequately `notify[ing]'" plaintiff within one year of the proposed disciplinary action. The statement of decision did not address plaintiffs arguments regarding Administrative Order No. 7 nor did it address his contention defendants had violated section 3304, subdivision (f). As previously noted, these issues were not posited in the petition but were raised for the first time in the reply papers. Judgment was entered on November 2, 2005. This timely appeal followed.