Lopez v. Imperial County Sheriff's Office

Opinion

O’ROURKE, J.

In separate proceedings, the Imperial County Employment Appeals Board (the Board) affirmed the Imperial County Sheriff’s Office’s (respondent) terminations of Richard Lopez and Rosario Lopez

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(appellants) by tie votes. We hold that the Board’s tie votes were the equivalent of a failure to act, and the trial court did not err in remanding the matters for the Board to conduct another vote. Affirmed.

FACTUAL AND PROCEDURAL SUMMARY

The respondent terminated appellants from their jobs as correctional sergeants after finding that they violated county ordinances and department policies by their “immoral or unprofessional conduct,” “deliberate or repeated absence from duty without authorization,” and “neglect of duty.”

Appellants separately appealed to the Board. In each case, the five-member Board voted as follows: the same two members voted to sustain the terminations; the same two members voted to reverse the terminations, and the fifth member abstained. The Board’s decisions quote the abstaining member’s findings as follows: “The evidence here, although presented in mind-numbing detail, is far from sufficient to support a decision. The deference due to the Department] in making decisions involving employees with such significant-responsibilities is at war with the excellent record of the Appellants], and the somewhat minor level of the admitted transgressions. Because of this I abstain.” The Board denied the appeals because it concluded, “there [was] no majority decision.”

Appellants filed a joint petition for writ of mandate, arguing the Board’s decisions should be vacated, and the proper way to interpret the Board’s tie

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votes was as a reversal of appellants’ terminations and, therefore, their reinstatement to their jobs. The trial court granted the writ petition in part by ordering the Board to “vacate its December 29, 2006 decision upholding the terminations,” but it required the Board to “conduct another vote . . . [which] shall be determined by a majority vote of those members present.” Appellants contend the trial court erred in remanding the matters to the Board.