Pasos v. L.A. County Civil Service Com. ( 2020 )

Filed 7/27/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MEGHAN PASOS, B291952
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BS168166)
v.
LOS ANGELES COUNTY
CIVIL SERVICE
COMMISSION,
Defendant;
LOS ANGELES COUNTY
SHERIFF’S DEPARTMENT,
Real Party in Interest and
Appellant.
APPEAL from judgment of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Reversed with
directions.
Hausman & Sosa, Jeffrey M. Hausman and Larry D.
Stratton for Real Party in Interest and Appellant.
The Gibbons Firm and Elizabeth J. Gibbons for Plaintiff
and Respondent.
_______________________
The Los Angeles County Sheriff’s Department
(Department) discharged Deputy Sheriff Meghan Pasos based on
her failure to report another deputy’s use of force against an
inmate and her failure to seek medical assistance for the inmate.
During the Department’s subsequent investigation Pasos
admitted she did not report the use of force because she was
concerned she would be “labeled as a rat” by her fellow deputies.
The custody division’s acting chief determined discharge was
appropriate because Pasos’s conduct in perpetuating a code of
silence among deputies undermined the Department’s operation
of the jail and brought embarrassment to the Department. The
Los Angeles County Civil Service Commission (Commission)
affirmed the discharge, but the trial court granted Pasos’s
petition for writ of mandate and directed the Commission to set
aside Pasos’s discharge, award her back pay, and reconsider a
lesser penalty. On appeal, the Department contends the trial
court erred by substituting its own discretion for that of the
Department in determining the appropriate penalty. We agree
and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Pasos’s Employment
The Department hired Pasos as a deputy sheriff on
June 24, 2007. Beginning in November 2007, she worked at the
2
Men’s Central Jail. In early 2010 Pasos was one of five deputies
assigned to a floor that housed 1,200 inmates. Prior to the
September 27, 2010 use of force incident, the Department had not
taken any disciplinary action against Pasos.
B. The September 27, 2010 Incident 1
At approximately 7:30 p.m. on September 27, 2010
commissary employee Anna Garcia informed Pasos, Deputy
Omar Lopez, and Deputy Mark Montez that an inmate had stolen
a bag of food items from the canteen. Garcia provided the
deputies with a physical description of inmate Dequan Ballard.
Lopez took Ballard to the elevator landing area outside the view
of surveillance cameras, where he searched Ballard. Montez
provided security; Pasos stood outside the landing as a lookout.
According to Lopez, during the strip search Ballard tensed
up, so Lopez jabbed him once in the side of his stomach with the
palm of Lopez’s right hand. 2 Lopez found the bag of food on
Ballard during the search. Ballard admitted to stealing the bag,
and Lopez sent him back to his dormitory. On Ballard’s return,
he attempted to intimidate Garcia by accusing her of being a
“snitch.”
Garcia reported Ballard’s threat to Montez and Pasos, who
told Lopez. Lopez then pulled Ballard from his dormitory and
took him to an area near the control booth outside the view of the
surveillance cameras. Lopez placed a piece of paper over the
1 The facts are taken from the internal investigations and
testimony before the Commission. Other than where indicated,
the facts are not in dispute.
2 Pasos denied seeing Lopez or Montez hit Ballard during the
strip search.
3
window on the door leading to the dormitory to prevent other
inmates from seeing his interaction with Ballard. A custody
assistant working in the control booth ordered the inmates in the
dorm to get on their bunks. Pasos stood outside the control booth
area and served as a lookout. According to the Internal Affairs
Bureau (IAB) investigative summary, “Lopez then pushed
Complainant Ballard’s head against the wall, causing severe
bleeding from his face, nose, and mouth areas.” Ballard’s blood
soaked his clothing and splattered on the wall and the floor in
front of the control booth. Lopez told the IAB investigators he
pushed Ballard’s face against the wall because Ballard made a
“fast movement” towards him.
According to Pasos, she was not paying attention to the
interaction between Lopez and Ballard because she was
monitoring the inmates approaching the hallway area. She was
standing four or five feet away from Lopez and Ballard with her
back to them. 3 At some point she turned around and saw Ballard
wipe his bloody nose. Pasos also saw blood on the wall and on
Ballard’s clothing. Pasos asked Lopez what happened, and Lopez
told her he had shoved Ballard’s head into the wall. Pasos told
Lopez he “better handle the paperwork” and report his use of
force. Lopez stated, “Don’t worry about it, I will.” Pasos
responded, “Well, you better because you are on your own.”
Pasos left and continued with her shift.
Lopez left Ballard in the control booth area, then Lopez
returned with a custody assistant and clean inmate clothing for
Ballard. Ballard changed his clothing, and Lopez escorted him
3 Pasos told the IAB investigators she was standing 10 feet
away from Lopez and Ballard during the incident. But she later
testified before the Commission she was four to five feet away.
4
back to his dorm room. Floor Sergeant Robert Jones walked into
the area after the battery, but no one notified Sergeant Jones of
the use of force. After the sergeant left, Lopez and the custody
assistant kicked Ballard’s bloody clothing away from the control
booth area and down the hallway. Lopez directed a trusty 4 to
clean the floor and wall area in front of the control booth. Lopez
described the blood on the wall as “visible.” Lopez and the trusty
later threw Ballard’s bloody clothing into the trash.
C. Ballard’s Complaint and the Investigations
At approximately 10:00 p.m. Ballard notified floor Sergeant
Joseph Monarrez that he had been assaulted by Lopez and
another deputy in the elevator landing, and again in the control
booth area. Sergeant Monarrez observed a cut on the bridge of
Ballard’s nose and sent him to the clinic for medical treatment. A
physician examined Ballard and treated him for his injuries.
According to the IAB investigative summary, the medical records
“indicate that the bridge of Complainant Ballard’s nose was
swollen with a 1/2 inch curved superficial laceration, his left
lower lip was swollen and had been lacerated by his teeth, and he
had large swelling underneath his right eye with a pinpoint
superficial puncture in the center.”
Sergeant Monarrez viewed the videos from the surveillance
cameras, which corroborated Ballard’s description of the deputies’
actions. After discovering that none of the three deputies had
reported the two incidents, Sergeant Monarrez notified the watch
commander, who informed the commander captain. The
4 A trusty is an inmate who performs duties in the jail in
return for privileges. (Bradshaw v. Duffy (1980) 104 Cal. App. 3d
475, 478.)
5
commander captain requested the Internal Criminal
Investigations Bureau (ICIB) conduct a criminal investigation.
After an investigation, the ICIB submitted the case to the
district attorney’s office for review. The district attorney’s office
declined to file felony charges. On June 14, 2012 the case was
referred to the IAB for an administrative disposition.
D. Pasos’s IAB Interview
During her interview with the IAB investigators, Pasos
stated Lopez told her he had shoved Ballard’s head into the wall.
Pasos explained, “At that point, I freaked out. I didn’t know what
the hell to do.” Pasos stated Lopez put her “in a really bad
position.” She added, “And at that point, a million things are
going through my mind. I felt like, ‘Dude, I didn’t—I didn’t do
this. Why did you even have to tell me? Like if this was
something you were going to do, then keep that shit to yourself.’
But I acted on impulse, I just honestly wanted to close my eyes
and act like I didn’t see shit. I didn’t want to know anything. I
just wanted to get out of there.”
Pasos admitted she did not report the incident to a
supervisor or write a report. Pasos explained, “It’s kind of like I
didn’t want to be labeled as a rat. And just decided to keep my
mouth shut. And I kick myself in the ass every day ’cause I’d
much rather have that label right now than be in the position I’m
in.” Pasos later added, “[Lopez] always worked my shift and I
always worked on his, and you know, I’ve never been put in that
situation before. . . . [I]f he didn’t want to take it upon himself to
report his force that he used, I thought that if I stepped above
him, and took it on myself and reported it, I was going to be
ratting on him and I was afraid of the repercussions of, you know,
6
ratting on him with my partners . . . . I just didn’t report it. I
don’t have an excuse.” Pasos stated at the conclusion of the
interview, “I continued to work after this incident occurred and I
truly learned my lesson.”
E. Pasos’s Discharge and Appeal to the Commission
On April 2, 2013 Alexander R. Yim, chief of the custody
division, made the initial decision to discharge Pasos. A panel of
three commanders from other divisions reviewed Pasos’s case and
agreed with Chief Yim’s decision. On April 8, 2013 the
Department served Pasos with a letter of intent to discharge her,
effective April 29, for failing to report the use of force and not
seeking medical attention for Ballard despite observing Ballard
bleeding from the nose and Lopez’s disclosure he had pushed
Ballard’s head into a wall. The letter concluded, “Your actions
have brought discredit upon yourself and the Department.” The
Department charged Pasos with multiple violations of the
Department’s Manual of Policy and Procedures (MPP) (1996),
including sections 3-01/030.05 (general behavior), 3-01/050.10
(performance to standards), 3-01/030.10 (obedience to laws,
regulations and orders), 3-10/100.00 (rev. 12/19/12) (use of force
reporting and review procedures), and 3-01/040.97 (safeguarding
persons in custody).
MPP section 3-01/030.05 (general behavior) states, “A
member shall not act or behave privately or officially in such a
manner as to bring discredit upon himself or the Department.”
MPP section 3-01/050.10 (performance to standards) provides,
“Members shall maintain sufficient competency to properly
perform their duties and assume the responsibilities of their
positions.” A member demonstrates a lack of competence by “[a]n
7
unwillingness or inability to perform assigned tasks” or a
“[f]ailure to conform to work standards established for the
member’s rank or position.” MPP section 3-01/030.10 (rev.
5/22/11) (obedience to laws, regulations, and orders) provides for
disciplinary action for violation of Department rules, regulations,
or policies, including a written reprimand, suspension without
pay, reduction in rank, and dismissal.
MPP section 3-10/100.00 (rev. 12/19/12) (use of force
reporting and review procedures) requires deputies to notify their
supervisors whenever they “witness[] reportable force used by
another Department member.” The section also provides that a
suspect must be transported to a medical facility for examination
and treatment if the suspect “[s]trikes their head on a hard
object, or sustains a blow to the head/face, as a result of the
application of force by a Deputy, regardless of how minor any
injury to the head/face may appear. . . .” Section 3-10/040.97
(safeguarding persons in custody) provides, “Members having in
their custody any person under arrest or detention shall properly
safeguard such person and his property.”
David Fender, who was then the acting chief of the Men’s
Central Jail, conducted a Skelly 5 hearing on April 29, 2013. As
the hearing officer, Acting Chief Fender reviewed the entire case
file, including the interview transcripts and videos, investigation
5 In Skelly v. State Personnel Board (1975) 15 Cal. 3d 194,
215, the Supreme Court held a permanent civil service employee
has due process rights to certain preremoval safeguards,
including “notice of the proposed action, the reasons therefor, a
copy of the charges and materials upon which the action is based,
and the right to respond, either orally or in writing, to the
authority initially imposing discipline.”
8
reports, and videos from the surveillance cameras. Acting Chief
Fender determined discharge was the appropriate discipline.
Pasos was discharged on May 7, 2013. Pasos appealed her
discharge to the Commission.
F. Testimony Before the Commission’s Hearing Officer
1. Acting Chief Fender’s testimony
Acting Chief Fender testified discharge was the appropriate
discipline. He explained, “It was actually—it’s a pretty troubling
case and a very sad case, in that there was another deputy that
caused the injury to this inmate. But when you look at the case
and the facts, it was actually Ms. Pasos’[s] actions that are
probably more egregious in the sense that it has to do with—with
what the public is usually concerned about, and that’s [the] code
of silence. [¶] And that’s something that’s seen, and Deputy
Pasos elected not to do anything about it, not report what she had
seen to a supervisor. And basically hoped that either Lopez did
what he said he was going to do and take full responsibility, or
just hope that nothing ever came up. She walked away. But
that’s not what we expect of our employees.” Acting Chief Fender
added, “Seeing misconduct, and not reporting it to the supervisor
and distancing herself, not taking responsibility, not caring for
the inmate. . . . That’s what people believe at times goes on in
law enforcement, and that’s something we do not stand for. [¶]
When you have a situation like this, you have to take action. You
have to discipline the employees, and you have to send a loud and
clear message throughout the organization. This will not be
tolerated.”
Acting Chief Fender concluded Pasos violated the
Department’s general behavior policy by “not reporting
9
misconduct, walking away from a situation where an inmate was
injured, [and] not ensuring that the inmate received medical
care.” He added, “[Pasos] created a situation that would bring
embarrassment to the Department. [¶] The period of time that
this incident plays out is also at a time the Department was
under scrutiny by the public, by the [B]oard of [S]upervisors, as it
turns out the FBI, believing that there was excessive force being
used in Men’s Central Jail. You know, it just added to the
embarrassment that the Department was under at that time.”
Acting Chief Fender also found Pasos violated the
Department’s performance to standards policy. Although Pasos
did not see Lopez’s use of force, “[s]he had enough information to
know what happened.” But “[s]he never questioned Deputy
Lopez again. Never went back to him to see if he had reported it
to a supervisor. Never bothered to check to see if the inmate
received medical care.” Acting Chief Fender added he might not
have discharged Pasos if her failure to report force and to seek
medical attention was simply an oversight or a training issue.
But Pasos “was more concerned about repercussions from her
peers being viewed as a rat, being viewed as a snitch, that was
more of her concern.”
Acting Chief Fender denied using Pasos to send a message.
But he admitted, “We needed to send a message in how we dealt
with code of silence issues, excessive force, unwarranted force.
You know, what level discipline we were going to impose. It was
like, zero tolerance.”
Under the guidelines for discipline in effect at the time, the
discipline for failing to safeguard an inmate ranged from a
reprimand to a 10-day suspension. The discipline for failure to
report witnessed force ranged from a suspension of five to 15
10
days. But discipline for violations of the performance to
standards and general behavior policies ranged from a written
reprimand to discharge. 6
2. Pasos’s testimony
Pasos testified she was “acting as [Lopez’s] eyes” when she
monitored the other inmates in the hallway. She was standing
four to five feet away and had her back to Lopez and Ballard at
the time of the battery and did not see or hear what was going on.
At one point, she turned around and saw Ballard wipe his bloody
nose. But Ballard did not turn and face Pasos, so Pasos did not
see a fat lip or cut on his nose. She denied being present when
Lopez gave Ballard new clothing, when Lopez asked a trusty to
clean blood off the wall, or when the trusty cleaned up the blood.
Pasos admitted she did not take Ballard to the clinic for a
medical evaluation or check to see if he had been given medical
assistance.
Lopez told Pasos he shoved Ballard’s head into the wall,
but she did not ask for any details. She explained, “I wasn’t
going to question my partner on why he used force or why he
didn’t use force. It is not my place to ask him the details of the
force that he used. That’s the supervisor’s job. That if he used
6 The guidelines provide that “[g]enerally, discipline will
follow a ‘progressive-step method.’” However, “[i]t is not
necessary to have imposed each lower step of discipline prior to
imposing a given level. Circumstances may call either for by-
passing or imposing repetitive discipline.” Further, “[f]ailure of
an employee to perform his or her assigned duties so as to meet
stated or implied standards of performance may constitute
adequate grounds for suspension, reduction or discharge.”
11
force he need[s] to report it.” Pasos denied she had a duty to
report if she was simply aware of the use of force, explaining, “My
understanding of the force policy was if I physically used force on
an inmate or I witnessed with my eyes that my partner was using
force, then I needed to report force.”
Pasos learned Lopez had not reported his use of force when
she spoke with ICIB investigators by telephone the next morning.
Pasos continued to work for a year on a different floor without
any disciplinary issues. She received “very good” performance
evaluations during the time periods before and after the incident.
Pasos was relieved from duty on October 4, 2011. She was
surprised she was being discharged, stating, “I didn’t see my
partner use force. I didn’t think that I needed to report my
partner’s force. And I didn’t think I did anything wrong.” She
thought Lopez was going to report his use of force because he
indicated he would and “it is common sense.” As to her concern
she “didn’t want to be labeled as a rat,” Pasos testified, “In my
line of work, all we have is each other’s word and each other’s
trust. And I never want to create a situation for my partner
where I was going to report force that he used that I knew
nothing about. [¶] I didn’t want to just jump ahead of him and
assume he wasn’t going to report force and go report force to our
supervisor and create a situation where now I could potentially
get him in trouble when in all reality he was going to report his
force, on his time.”
3. Sergeant Cheatham’s testimony
Sergeant Eric Cheatham testified as a character witness for
Pasos. Cheatham was a postcertified force instructor who
supervised Pasos in 2010 as the supervising line deputy.
12
Deputies were required to report if they used force or witnessed
force. If deputies came after the use of force was over and
observed injuries on an inmate, they were not required to report
it. Cheatham testified, “[I]n my 23 years I have never heard of a
deputy getting in trouble for that, for not reporting secondhand
use of force which I believed occurred to [Pasos].”
Cheatham disagreed with the decision to discharge Pasos.
He explained, “I don’t think what occurred was right. And it was
so—at the time at Men’s Central Jail there was a political
climate. It was like the Department was turned upside down on
its head all the way going to the top from sheriff down. [¶] And
so when deputies had incidents during this time period, they
were judged swiftly and harshly. . . . Some deputies deserved to
get that trouble and to be terminated. But I also think that there
are some instances and hers in particular which is egregiously
over correct was made in reference to her incident. [¶] . . . [¶]
She was the best deputy on the floor. She was one of the hardest
working deputies on the floor. And to my knowledge she had a
flawless record. She had never been disciplined. I never
disciplined her. She is my go-to person. She had a minimum of
very good annual evaluations.”
G. The Commission’s Decision
On April 12, 2016 the Commission’s hearing officer issued
his proposed findings of fact, conclusions of law and
recommendation. The hearing officer found Pasos intentionally
chose not to report Lopez’s use of force and failed to seek medical
attention for an injured inmate. Pasos did not report Lopez’s use
of force because she was “concerned about being considered a ‘rat’
or ‘snitch’ by her co-workers and the impact that may have on
13
relationships with her co-workers and shift partner.” Further,
Pasos’s “actions w[ere] clearly a discredit to the Department as
well as presented potential legal actions.” The hearing officer
found the Department met its burden to provide evidence Pasos
violated the MPP for general behavior; performance to standards;
obedience to laws, regulations and orders; use of force reporting
and review procedures; and safeguarding persons in custody.
The hearing officer concluded, “[I]t is clear that [Pasos’s] behavior
in this matter was so egregious that it merited the highest level
of discipline available.” The Commission adopted the hearing
officer’s findings of fact and sustained the Department’s decision
to discharge Pasos.
H. The Trial Court’s Decision
On February 16, 2017 Pasos filed a verified petition for writ
of mandate in the superior court challenging her discharge. After
a hearing, on May 3, 2018 the trial court granted the petition and
ordered the Commission to set aside Pasos’s discharge. The court
found Pasos violated the Department’s policies by failing to
report the use of force and to obtain medical treatment for
Ballard, bringing embarrassment to the Department. But the
court concluded, “The Commission manifestly abused its
discretion by upholding the Department’s discharge of Pasos.”
The court reasoned, “The Department’s desire to clean up inmate
abuses at the jail is a legitimate and just operational
consideration. It apparently is also true that the [c]ode of
[s]ilence among deputies was creating problems for the
Department’s effort to do so.” However, “[t]he Department—
Chief Fender in particular—seemed to be caught up in the
whirlwind of negative publicity about inmate abuse at the jail,
14
deciding to discharge every deputy involved in any aspect of an
inmate abuse incident in order to deflect media and public
criticism. That was not his job. As decision-maker, he was
tasked with imposing a fair and appropriate discipline for Pasos’s
misconduct under the [g]uidelines, taking into account any
potential adverse publicity for the Department, but also
considering Pasos’s actual misconduct. He may not discharge
employees out of departmental hysteria to avoid criticism.” On
June 14, 2018 the trial court entered a judgment granting Pasos’s
petition for writ of mandate.
DISCUSSION
A. Standard of Review
“‘[In] a mandamus proceeding to review an administrative
order, the determination of the penalty by the administrative
body will not be disturbed unless there has been an abuse of its
discretion.’” (Skelly v. State Personnel Board (1975) 15 Cal. 3d
194, 217 (Skelly); accord, County of Los Angeles v. Civil Service
Com. of County of Los Angeles (2019) 40 Cal. App. 5th 871, 877
(County of Los Angeles).) “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.” (Barber v. State Personnel Bd. (1976) 18 Cal. 3d 395,
404; accord, Bautista v. County of Los Angeles (2010)
190 Cal. App. 4th 869, 877 (Bautista); County of Los Angeles, at
p. 877 [“The court may not substitute its own judgment for that of
the Commission, nor ‘disturb the agency’s choice of penalty
absent “‘an arbitrary, capricious or patently abusive exercise of
discretion’” by the administrative agency’ [citation], but must
15
uphold the penalty if there is any reasonable basis to sustain
it.”].)
“The appellate court conducts a de novo review of the
penalty assessed, giving no deference to the trial court’s
determination.” (Deegan v. City of Mountain View (1999)
72 Cal. App. 4th 37, 46; accord, Cate v. State Personnel Bd. (2012)
204 Cal. App. 4th 270, 284.) “Only in an exceptional case will an
abuse of discretion be shown because reasonable minds cannot
differ on the appropriate penalty.” (County of Los Angeles, supra,
40 Cal.App.5th at p. 877; accord, Bautista, supra,
190 Cal.App.4th at p. 879.)
B. The Department Did Not Abuse Its Discretion in
Discharging Pasos
Pasos contends the Department was required to follow its
written guidelines for discipline and impose a lesser penalty than
discharge. Under the Department’s guidelines for discipline, the
penalty for failure to report witnessed force ranges from a
suspension of five to 15 days, and the penalty for failure to
safeguard an inmate ranges from reprimand to a 10-day
suspension. But Pasos’s conduct went beyond a failure to report
the force and to seek medical attention for Ballard. According to
Acting Chief Fender, Pasos committed a more egregious violation
of Department policy by perpetuating a code of silence among
deputies in the jail, which encouraged other deputies to ignore
their responsibilities and brought embarrassment to the
Department. Thus, Pasos’s conduct also violated the general
behavior policy, which requires a deputy “not act or behave
privately or officially in such a manner as to bring discredit upon
16
himself or the Department.” Discipline for a violation of either of
these policies ranges from a written reprimand to discharge. 7
“In considering whether . . . abuse occurred in the context
of public employee discipline, . . . the overriding consideration in
these cases is the extent to which the employee’s conduct resulted
in, or if repeated is likely to result in, ‘[harm] to the public
service.’” (Skelly, supra, 15 Cal.3d at p. 218; accord, County of
Los Angeles, supra, 40 Cal.App.5th at p. 878 [same]; Kolender v.
San Diego County Civil Service Com. (2005) 132 Cal. App. 4th 716,
721 (Kolender) [“‘The public is entitled to protection from
unprofessional employees whose conduct places people at risk of
injury and the government at risk of incurring liability.’”].)
“Other relevant factors include the circumstances surrounding
the misconduct and the likelihood of its recurrence.” (Skelly, at
p. 218; accord, County of Los Angeles, at p. 877.) “Whether an
employee’s conduct has resulted or is likely to result in harm to
the public service if repeated requires consideration of the nature
of the employee’s profession, because ‘some occupations such as
law enforcement, carry responsibilities and limitations on
personal freedom not imposed on those in other fields.’” (County
of Los Angeles, at p. 878; accord, Cate v. State Personnel Bd.,
supra, 204 Cal.App.4th at p. 285.)
“‘A deputy sheriff’s job is a position of trust and the public
has a right to the highest standard of behavior from those they
7 Because we conclude the Department did not abuse its
discretion in discharging Pasos based on her perpetuation of the
code of silence in the jail, we do not reach whether the
Department could have discharged Pasos under the general
behavior policy or performance to standards policy based only on
her failure to report the force and to seek medical attention.
17
invest with the power and authority of a law enforcement officer.
Honesty, credibility and temperament are crucial to the proper
performance of an officer’s duties.’” (Kolender, supra,
132 Cal.App.4th at pp. 721; accord, County of Los Angeles, supra,
40 Cal.App.5th at p. 878 [“[p]eace officers specifically are held to
higher standards of conduct than civilian employees”].) Law
enforcement officers “‘are the guardians of the peace and security
of the community, and the efficiency of our whole system,
designed for the purpose of maintaining law and order, depends
upon the extent to which such officers perform their duties and
are faithful to the trust reposed in them.’” (Hankla v. Long Beach
Civil Service Com. (1995) 34 Cal. App. 4th 1216, 1224 (Hankla);
accord, County of Los Angeles, at p. 879.)
The Courts of Appeal have upheld the discharge of law
enforcement officers where the officers’ conduct resulted in harm
to the public service. (See, e.g., County of Los Angeles, supra,
40 Cal.App.5th at pp. 878-879 [Commission abused its discretion
in reducing deputy sheriff’s discharge to 30-day suspension where
deputy failed to report fellow deputy’s use of force and lied during
investigation]; 8 Cate v. State Personnel Bd., supra,
204 Cal.App.4th at pp. 272, 285-287 [State Personnel Board
abused its discretion in reducing correctional officer’s dismissal to
30-day unpaid suspension where officer encouraged a mentally ill
inmate to attempt suicide, altered the inmate’s “bed card” to
include self-serving statements, called a fellow officer a snitch,
8 County of Los Angeles, supra, 40 Cal. App. 5th 871 involved
the discipline imposed on Montez following his failure to report
the use of force by Lopez against Ballard on September 27, 2010
and Montez’s subsequent lie that he had not observed any
injuries to Ballard.
18
and lied about his conduct]; Kolender, supra, 132 Cal.App.4th at
pp. 721-722 [civil service commission abused its discretion in
reducing deputy sheriff’s penalty from dismissal to 90-day
suspension where deputy lied about another deputy’s physical
abuse of an inmate]; Hankla, supra, 34 Cal.App.4th at pp. 1225-
1226 [civil service commission abused its discretion in reducing
police officer’s discharge to suspension where off-duty officer
engaged in unjustified traffic dispute, escalated argument, and
recklessly discharged firearm]; Talmo v. Civil Service Com.
(1991) 231 Cal. App. 3d 210, 229 [upholding discharge of deputy
sheriff who “committed battery on prisoners, made threats and
racial slurs against a co-employee and . . . falsely denied these
actions to his supervisors”]; Paulino v. Civil Service Com. (1985)
175 Cal. App. 3d 962, 972 [upholding dismissal of deputy sheriff
who made false statements about his health and sick leave
usage]; Flowers v. State Personnel Bd. (1985) 174 Cal. App. 3d 753,
756, 761 [upholding dismissal of correctional officer who “was
dishonest, misused state property, and was insubordinate”].)
Our decision in Bautista is instructive. In Bautista, the
Department discharged a deputy sheriff for engaging in a close
personal relationship with a known heroin-addicted prostitute, in
violation of the Department’s prohibited-association policy.
(Bautista, supra, 190 Cal.App.4th at p. 871.) In upholding the
discharge, we considered the division chief’s testimony that the
deputy’s “long-standing personal association with [the prostitute],
along with her multiple detentions by the Gardena Police
Department while he was with her, embarrassed the Department
and undermined its reputation in both the law enforcement
community and the public it is charged with protecting.” (Id. at
p. 878.) We rejected the deputy’s contention the Commission
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abused its discretion in upholding his termination, noting the
Department’s guidelines for discipline expressly stated discharge
was the appropriate punishment. (Id. at p. 879.)
Similar to Bautista, Acting Chief Fender testified Pasos’s
conduct brought potential embarrassment to the Department and
undermined its reputation with the public “at a time the
Department was under scrutiny by the public.” Acting Chief
Fender described Pasos’s conduct as furthering the code of silence
at the Men’s Central Jail, requiring the Department to take
action, including disciplining the employees involved and sending
“a loud and clear message throughout the organization [that t]his
will not be tolerated.”
Further, Pasos’s conduct in following the code of silence
undermined the Department’s trust and confidence in Pasos as a
deputy sheriff and negatively impacted the operation of the jail.
As Acting Chief Fender explained, “[Y]ou have to expect that
you’ve hired good credible people that are going to speak up when
they see something wrong, or they see, in this case, force. They
have to report it just like the individual that used it. And if they
don’t, then it opens the door for other people to violate policy,
conduct themselves in a way that violates law, policy.” As the
court in County of Los Angeles, supra, 40 Cal.App.5th at page 880
observed, “It is simply intolerable that dishonesty and a culture
of silence that countenances abuse of prisoners be permitted
within the ranks of those charged with public safety and welfare.”
In addition, at the Commission hearing Pasos minimized
her responsibility to report the use of force, asserting she had no
duty to report because she had not personally witnessed the
battery. But Lopez admitted to Pasos he pushed Ballard’s face
into the wall; Ballard suffered “severe bleeding from his face,
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nose, and mouth areas”; Pasos saw Ballard wipe blood from his
nose; and she saw blood on the wall and on Ballard’s clothing.
There was so much blood from Ballard’s injuries that Lopez had
to bring him a change of clothes and enlist the assistance of a
trusty to clean the blood off the floor and wall. Pasos testified she
saw Ballard wipe his bloody nose, but somehow she did not see
that he had a swollen lip, a cut on his nose, and “large swelling
underneath his right eye.” Notwithstanding the severity of the
battery, Pasos stated at the Commission hearing, “I wasn’t going
to question my partner on why he used force or why he didn’t use
force. It is not my place to ask him the details of the force that he
used. That’s the supervisor’s job. That if he used force he need[s]
to report it.” Pasos’s claim she had no duty to report ran counter
to her initial stated reason for not reporting the use of force—that
she did not want to “rat” on her partner. As she explained, “I
thought that if I stepped above him, and took it on myself and
reported it, I was going to be ratting on him and I was afraid of
the repercussions of, you know, ratting on him with my
partners . . . .”
We recognize Pasos’s conduct did not involve the level of
dishonesty at issue in many law enforcement discharge cases,
including County of Los Angeles, supra, 40 Cal.App.5th at pages
878 to 879, in which our colleagues in Division One found the
Commission abused its discretion in reversing Montez’s discharge
for failure to report Lopez’s use of force where Montez also lied
about the incident during the investigation. Similarly, in
Kolender, supra, 132 Cal.App.4th at page 722, the deputy was
terminated because he was “complicit in covering up abuse of an
inmate” by lying to protect a fellow deputy. Likewise, in Talmo v.
Civil Service Com., supra, 231 Cal.App.3d at page 229, the
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deputy was discharged because he committed battery on inmates,
made threats and racial slurs towards fellow employees, and lied
about his actions to his superiors. But we are not “free to
substitute [our] discretion for that of the administrative agency
concerning the degree of punishment imposed.” (Barber v. State
Personnel Bd., supra, 18 Cal.3d at p. 404; accord, Bautista, supra,
190 Cal.App.4th at p. 877.) Given the Department’s reasoned
explanation that discharge was necessary in light of Pasos’s
furtherance of the code of silence in the Men’s Central Jail and
the resulting embarrassment and loss of trust in the Department,
this is not the “exceptional case” where “reasonable minds cannot
differ on the appropriate penalty.” (County of Los Angeles, at
p. 877; accord, Bautista, at p. 879.) 9
DISPOSITION
The judgment is reversed. On remand the trial court shall
enter a new judgment denying the petition for writ of mandate.
9 The trial court faulted the Department for not considering
as mitigation, among other factors, Pasos’s lack of prior discipline
and positive work with inmates for more than a year after the
incident. But given Pasos’s stated fear from the consequences of
“ratting” on a fellow deputy and minimization of her
responsibility to report the severe battery on Ballard, these
factors do not demonstrate misconduct is unlikely to recur. (See
County of Los Angeles, supra, 40 Cal.App.5th at pp. 880-881
[rejecting Commission’s conclusion misconduct was unlikely to
recur because deputy sheriff had “received ratings of ‘Very Good’
in his performance evaluations, including after the use of force
incidents” and “continued to perform his duties at the jail for a
year after the incident with no reports of abuse or misconduct”].)
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The Los Angeles County Sheriff’s Department is entitled to
recover its costs on appeal.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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