Richardson v. City of Los Angeles CA2/1 ( 2016 )

Filed 3/25/16 Richardson v. City of Los Angeles CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
MICHAEL RICHARDSON, B258654
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS144098)
v.
CITY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County. Joanne
B. O’Donnell, Judge. Affirmed.
Silver, Hadden, Silver & Levine, Susan Silver and Jacob A. Kalinski for Plaintiff
and Appellant.
Michael N. Feuer, City Attorney, Amy Jo Field, Assistant City Attorney, and
Juliann Anderson, Deputy City Attorney, for Defendants and Respondents.
_________________________________
Plaintiff Michael Richardson appeals from the denial of his petition for
peremptory writ of mandate, by which he sought to reverse the action of the Los Angeles
Police Department (LAPD) reducing his paygrade and transferring him to a different
division. He contends the penalty was excessive and procedural errors by the LAPD
require reversal. We disagree and affirm.
BACKGROUND
In 2008 the LAPD promoted Richardson to the Sergeant II paygrade. In 2011, the
LAPD reduced Richardson to a Sergeant I paygrade and transferred him from Newton
station to Southwest station. Richardson filed an administrative appeal. The hearing
officer recommended upholding the paygrade reduction and transfer, and the chief of
police adopted that recommendation. Richardson filed a petition for peremptory writ of
mandate in the trial court. After a hearing, the trial court denied the petition, and
Richardson filed the instant appeal.
1. The basis for the downgrade and transfer
The facts leading to the paygrade reduction and transfer are undisputed. In April
of 2011,1 a locker audit was carried out on the order of Richardson’s commanding
officer, Captain Robert Lopez. At the beginning of May, Lopez directed Sergeant Robert
Von Voigt to place a notice on each locker that remained unclaimed. The notice warned
that the lock would be cut from each locker that had not been claimed by June 3 and the
contents of the locker would be removed.
Richardson created the following responsive notice (Occupied Locker notice),
which he posted on his locker and e-mailed to Von Voigt and Officer Stuart Jaye on
May 6: “OCCUPIED LOCKER NOTIFICATION Please be advised that I have been
assigned this locker since arriving in Newton in August of 2008. The locker was
assigned to me by SERGEANT WEHAGE, and duly recorded as assigned to, and
occupied by me. Since August of 2008, I have participated in no fewer than three locker
audits in which I indicated that this is my locker. [¶] If you cut MY LOCK, off of this
1 Undesignated date references pertain to 2011.
2
locker, I will complete an IR for vandalism. If you remove MY PROPERTY from this
locker, I will complete an IR for GRAND THEFT – FIREARM, and file a suit for
violation of civil rights relating to unlawful search and seizure, as you cannot search or
seize any work space without warrant or proper notification. Failure to maintain
adequate records on your part does not amount to the exigent circumstances required to
allow you to seize my private property. [¶] IF I am close enough to retirement, or just
having a bad day, I will forego the above in favor of a general beat-down, or ass-
whipping. [¶] Thank you for your continued support [¶] – Mike Richardson”
Von Voigt showed Lopez Richardson’s e-mail. Lopez then examined and
photographed Richardson’s locker, upon which were taped 14 copies of Von Voigt’s
unclaimed locker notice. The threat in Richardson’s Occupied Locker notice made Von
Voigt and Jaye uncomfortable. Von Voigt was also concerned that Richardson was
contradicting Von Voigt’s directions for the locker audit.
Lieutenant Lightfoot sent out an e-mail directing all sergeants to comply with the
locker audit request. When Richardson inquired, Lightfoot told him the e-mail was
directed at him as a result of his Occupied Locker notice. Thereafter, a subordinate
officer asked Richardson about all the notices, and he showed her his Occupied Locker
notice. Lopez spoke to Richardson about his Occupied Locker notice. Richardson was
remorseful and said it had been a practical joke that had been taken too far.
2. Procedures employed in making the downgrade and transfer
After seeking advice and consulting with the Employee Relations Group and the
assistant chief, Lopez decided to follow a recommendation to provide Richardson with a
notice to correct deficiencies and downgrade and transfer him. Lopez explained at the
administrative appeal hearing that Richardson was assigned as an assistant watch
commander and was therefore part of the divisional management. His duties included
carrying out and adhering to the directions of command staff and the LAPD and serving
as a positive example to subordinate officers. An assistant watch commander is looked
upon as a leader and a “conduit of . . . command,” and his or her failure to support the
3
directions of command undermines the command and can cause subordinates to question
who is in charge. Lopez deemed Richardson’s Occupied Locker notice as a challenge to
Lopez’s authority and disregard of a lawful order, in violation of LAPD’s manual,
volume 1, section 210.30.2 Lopez explained: “When you have a leader who is a peer
leader, and a strong peer leader, who alters or changes the thought process of those
individuals who he’s responsible for to motivate and train and guide, it’s a concern to the
Department and a concern to the command. . . . [I]t causes a divide within the command.
It causes a challenge to authority. . . . [T]hey don’t know who’s in charge . . . the
Sergeant II or the captain. [¶] . . . [¶] . . . [W]hen you have a challenge to authority and
a disregard for lawful orders or commands or directives, it’s a big concern.”
Richardson’s actions also caused Lopez to lose trust in Richardson’s “ability to
make the right decisions.” Lopez wondered whether Richardson would refuse to carry
out other directives and requests Lopez made and what decisions Richardson would make
when left in charge without a lieutenant on duty.
Lopez chose a downgrade and transfer over a personnel complaint in order to
“move the process through” more expeditiously and thereby reduce the divisive effect
upon the division and any negative effect upon morale. He further explained: “I didn’t
have the confidence and the trust that allowing him to remain or allowing him to remain
as a Sergeant II as an assistant watch commander would only empower Sergeant
Richardson to continue his—that type of an attitude, that cavalier, or . . . arrogance . . .
that if I didn’t do the downgrade that it would only continue to empower him to challenge
those simple requests.” Lopez also considered Richardson’s prior work history,
2LAPD manual, volume 1, section 210.30 provides: “The Department is an
organization with a clearly defined hierarchy of authority. This is necessary because
unquestioned obedience of a superior’s lawful command is essential for the safe and
prompt performance of law enforcement operations. The most desirable means of
obtaining compliance are recognition and reward of proper performance and the positive
encouragement of a willingness to serve. However, negative discipline may be necessary
where there is a willful disregard of lawful orders, commands, or directives.”
4
including things Lopez had praised him for and his status as “a very knowledgeable
supervisor.”
As soon as Lopez decided upon a course of action, he notified Richardson,
removed Richardson as an assistant watch commander, and reassigned him to other
duties. On May 19 Lopez prepared “Intradepartmental Correspondence” requesting that
Richardson be downgraded and transferred and explaining the basis for the request, i.e.,
posting the Occupied Locker notice and subsequently displaying it to a subordinate after
being notified by the watch commander to comply with the locker audit request.
Richardson was served with the Intradepartmental Correspondence on May 20. Lopez
also filled out a Transfer and/or Change in Paygrade form 1.40.00. Lopez’s
Intradepartmental Correspondence was ultimately approved and signed by the
Commanding Officer of Operations—Central Bureau and the Director of the Office of
Administrative Services, Assistant Chief Sandy Jo MacArthur.
Lopez also filled out a Notice to Correct Deficiencies form dated May 16, but
signed May 19, setting forth the facts regarding the Occupied Locker notice and
admonishing: “As a member of the Newton Area management team, this type of
demeanor is not what is expected of a senior supervisor whose responsibility is to guide,
train, direct, and motivate those over whom you have control of. Your unwillingness to
comply and direct subordinates to comply with a lawful management request shows a
total disregard for the duties and responsibilities that you have been entrusted to carry out
as a supervisor for this Department.” The notice continued: “This Notice to Correct
Deficiencies is to advise you that this type of behavior will not be tolerated. As the
Assistant Watch Commander and supervisor, it is your duty, responsibility and moral
obligation to ensure that the directives mandated by the Department or Division
Commanding Officers are instituted and followed. Any deviations to those directives or
any comments that are perceived to be contrary, critical or negative is detrimental,
undermines the command makes you ineffective as a leader and perpetuates a cynical
work environment. [¶] As a member of this Department, you are directed to comply
5
with Departmental requests and support the goals and mission of the Department,
supervisors and your Commanding Officers. Should you behave in the same or a similar
way again, the Commanding Officer will recommend at least one of the following things
to occur: [¶] You will be suspended without pay for a period of not less than 5 days; and
you will be demoted.” The form also included the following statement: “The purpose of
this notice is to call your attention to the above-mentioned deficiencies and to provide
you the opportunity to correct them.” Richardson was served with the Notice to Correct
on May 20.
Richardson apparently filed a grievance on June 11, disputing the basis and
accuracy of the Notice to Correct.3 The grievance was partially granted with respect to
the wording of the Notice, which Lopez accordingly revised on October 31.
On June 7, Employee Relations Administrator Commander Jeri Weinstein sent a
note to MacArthur stating she did not “concur that sufficient justification exists to
support the deselection of Sergeant Richardson. While the act that led to this request is
worthy of censure, Sergeant Richardson’s past performance reflected in his Standards
Based Assessments supports his retention of the advanced paygrade position. [¶] I do,
however, support the administrative transfer of Sergeant Richardson. His actions have
damaged his relationship with the division’s leadership team and would hinder his
effectiveness at Newton Area. It is in the best interests of the employee and the
Department for him to be transferred to another command.” MacArthur, who makes the
ultimate decision on requests for demotions or downgrades, wrote on the note, “I do
concur so please move forward.”
MacArthur testified that in making her determination, she reviewed Richardson’s
employment history, the “15.2 request” from Lopez, i.e., his Intradepartmental
Correspondence dated May 19, Richardson’s Occupied Locker notice and e-mailing of
that notice, photos of the lockers, and Weinstein’s note. She also considered
Richardson’s prior administrative transfer from Rampart to Newton, which was requested
3 Only the response to this grievance, not the grievance itself, is in the record.
6
by then-Captain Charlie Beck in December of 2003. Beck’s Intradepartmental
Correspondence requesting the transfer stated Richardson had been “loaned” from
Rampart to Newton in November of 2002 based upon “Richardson’s perceived negative
attitude in the area of change and reform. Specifically, he was viewed as a strong peer
group leader who was not embracing the positive steps being taken at Rampart Area in
light of the recent highly publicized incidents surrounding the former CRASH Unit.”
MacArthur also met with Weinstein and discussed the matter.
MacArthur explained that she decided the downgrade and transfer were
appropriate because Lopez had a right to conduct a locker audit and Richardson, “instead
of voicing his concern to the commanding officer, . . . he chose to do something that is
not very leadership oriented, supervisory oriented, and post an e-mail, what I believe to
be very unprofessional, notice about his locker and why he didn’t think this was
appropriate. [¶] And in terms of what a supervisor is supposed to do, a supervisor is
supposed to follow legal orders, and this was a legal order from his commanding officer.
. . . And so, therefore, I didn’t feel that this is a person who should be in an assistant
watch commander position.” She thought an immediate downgrade was warranted
because Richardson “chose to make this a very public issue . . . very public with our
officers, rather than following the process. And he also had a history, similar incident,
not exactly the same, and I agree with that. [¶] But also another time as a supervisor
where he chose an unusual avenue of complaining about things. And to me that’s not the
kind of individual we need sitting in a watch commander’s seat supervising in the
absence of the watch commander.”
Richardson was ultimately downgraded to Sergeant I and transferred to Southwest
Division, effective August 14, by an order of Chief of Police Charlie Beck dated
August 1.
3. The administrative appeal
Richardson filed an administrative appeal of the downgrade and transfer on
August 25. The hearing was not conducted until March 21, 2013. On April 1, 2013, the
7
hearing officer, LAPD Captain Bill Hart, issued his written recommendation that the
Chief of Police uphold the downgrade and transfer. In setting forth the basis for his
findings and recommendations, Hart stated “[t]here is no question” that the Occupied
Locker notice was “completely inappropriate and unprofessional, and that by writing and
displaying it, Richardson demonstrated poor judgment, a lack of respect for his co-
workers, a lack of support for his commanding officer, and disregard for the legitimate
operational needs of the Newton Patrol Division.” Hart further noted: “This type of
behavior clearly undermined the chain of command, hampered the ability of the Division
to achieve its goals, and contributed to an atmosphere of conflict and inefficiency. . . .
Richardson’s posting of his ‘Occupied Locker Notification’ . . . clearly emboldened
others to ignore the directions of Sergeant Von Voight [sic] and, by extension, their
Commanding Officer.”
Hart stated: “Department Manual Section 3/763.55, which was in effect at the
time of the incident . . . allows for reassignment to a lower paygrade when an officer
clearly demonstrates his/her failure to satisfactorily perform the duties of the position.
By the single act of posting his threatening Occupied Locker Notification, Richardson
failed to display the professionalism, leadership, loyalty and respect for others expected
of any Department supervisor, particularly one in a position of increased authority.
Sergeant Richardson was an influential leader at Newton Patrol Division, and his actions
were watched and emulated by many of his peers and subordinates. While the note may
have been intended as a joke, Captain Lopez testified that it was perceived as a challenge
to his authority and that it had a detrimental effect on the Newton chain of command.
Richardson’s relationship with other members of the Newton leadership team was
damaged, his effectiveness diminished, and the trust of his commanding officer was lost.
[¶] [Richardson] argued he was not provided with training and given an opportunity to
improve. However, as Assistant Chief MacArthur testified, an experienced Department
supervisor should not need special training in order to follow lawful orders, and neither
counseling nor training would undo the damage that had already been done. Under
8
circumstances such as these, an immediate reassignment to a lower paygrade and
administrative transfer were in the best interests of the Department, and were authorized
under Manual Section 3/763.60 . . . .”
4. Denial of the petition for writ of mandate
In denying Richardson’s writ petition, the trial court rejected each of the claims
raised in this appeal, as well as a sufficiency of evidence claim.
DISCUSSION
Richardson’s contentions fall into two basic categories: procedural error and
excessiveness of the penalty.
1. Procedural error claims
In 2009, the LAPD issued Special Order 47, which revised volume 3, section
763.55 of the LAPD manual and deleted volume 3, section 763.60. In 2012 the LAPD
was enjoined from applying Special Order 47 to employees, such as Richardson, who
attained their advanced paygrades before the issuance of Special Order 47. The
injunction was affirmed on appeal. (Los Angeles Police Protective League v. City of Los
Angeles et al. (May 16, 2013, B241386) [nonpub. opn.].)
The 2008 version of section 763.55 provided, in pertinent part: “An officer below
the rank of lieutenant in an advanced paygrade position may be reassigned to a lower
paygrade position within his/her classification when one of the following conditions
exist: [¶] . . . [¶] When an officer clearly demonstrates his/her failure or inability to
satisfactorily perform the duties of the position.”
Section 763.60 provided, in pertinent part: “When an officer’s immediate
supervisor becomes aware that the officer is not satisfactorily performing the duties of his
or her advanced paygrade position, the supervisor shall, without delay, counsel the officer
regarding deficiencies; complete a Notice to Correct Deficiencies, Form General 78; and
cause the form to be approved and distributed. When the officer continues to
demonstrate a failure to satisfactorily perform the duties of the position, the officer’s
commanding officer shall:
9
“ Cause the completion of a Performance Evaluation Report . . . , Form 01.78.00;
“ Complete a Request for Transfer and/or Change in Paygrade, Form 01.40.00;
[¶] . . . [¶]
“ Complete an Intradepartmental Correspondence, Form 15.02.00, citing the
reasons for recommending reassignment to a lower paygrade . . . and include a statement
that the officer was advised of the right to provide a written response to the proposed
personnel action within 30 days of the date of Notice;
“ Provide the employee copies of the documents; [¶] . . . [¶]
“ After receiving a written response (or 30 days have passed, without a response),
attach the original written response to the 15.2 [sic] and forward all documentation
through channels to the Director, Officer of Support Services. A copy of the officer’s
response shall be attached to the officer’s Performance Evaluation Report, which shall be
filed in the officer’s personnel files.
“Exception: When an officer clearly demonstrated failure or inability to
satisfactorily perform the duties of his or her advanced paygrade position, indicate [sic]
the need for an immediate reassignment in the best interests of the Department, the
commanding officer shall temporarily place the officer in a lower paygrade assignment
and shall, without delay, forward a Form 15.02.00, and a Form 01.40.00 through channels
to the Director, Officer Support Services. The officer shall receive the same paygrade
salary pending the concurrence of the Director, Officer Support Services, in the
recommendation that the officer be reassigned to a lower paygrade.”
Section 763.55, as modified by Special Order 47, incorporated most of the
procedural requirements set forth in section 763.60, but allowed reassignment to a lower
paygrade when “[a] commanding officer, in his or her discretion, decides that
reassignment is appropriate after determining that a subordinate officer has been
unwilling or unable to perform the duties of the position” or “that a subordinate officer
committed an act that merits the reassignment to a lower paygrade position.”
10
The parties agree that the LAPD was required to apply the 2008 provisions to
Richardson. Richardson contends he was entitled to a writ reversing his downgrade and
transfer because the LAPD applied the provisions in effect in 2011. The LAPD concedes
on appeal that Lopez applied the 2011 rules, but argues any error was cured by Hart’s
application of the 2008 standards in the administrative appeal and Richardson suffered no
prejudice. Richardson argues that he is not required to show prejudice, and an
administrative appeal “cannot be used to grant the Department an opportunity to consider
whether the downgrade could have hypothetically been justified under a different theory,
the procedure for which was not followed in fact.” Richardson further argues the LAPD
did not, in fact, comply with the requirements of section 763.60.
a. Standard of review and requirement of prejudice
“An appellate court applies the following standards of review to a trial court’s
denial of a petition for a writ of administrative mandamus. First, if the trial court
exercised its independent judgment, we review the record to determine whether the
court’s factual findings are supported by substantial evidence, resolving all evidentiary
conflicts and drawing all legitimate and reasonable inferences in favor of the court’s
decision. [Citations.] Second, ‘to the extent pure questions of law (e.g., jurisdiction)
were decided at the trial court upon undisputed facts, a de novo standard will apply at the
appellate level.’” (Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th
620, 627, fn. omitted (Cassidy).)
Although the trial court exercised its independent judgment, the issue of whether
the LAPD’s actions conformed to the 2008 rules is a question of law, which we review de
novo. (Yaqub v. Salinas Valley Memorial Healthcare System (2004) 122 Cal.App.4th
474, 483.)
Richardson’s claim that any procedural error requires reversal without regard to
whether it was prejudicial is simply incorrect. First, Code of Civil Procedure section
1094.5, subdivision (b), which governs resolution of a petition for a writ of administrative
mandate provides: “The inquiry in such a case shall extend to the questions whether the
11
respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair
trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is
established if the respondent has not proceeded in the manner required by law, the order
or decision is not supported by the findings, or the findings are not supported by the
evidence.” “This does not mean that any legal mistake at the administrative hearing level
compels the finding to be set aside. Instead, as a general rule, ‘procedural due process
violations, even if proved, are subject to a harmless error analysis.’ [Citation.] ‘A writ of
administrative mandamus will not be issued unless the court is persuaded that an abuse of
discretion was prejudicial. [Citation.] In other words, the reviewing court will deny the
writ, despite abuse of discretion, if the agency’s error did not prejudicially affect the
petitioner’s substantial rights.’” (Thornbrough v. Western Placer Unified School Dist.
(2013) 223 Cal.App.4th 169, 200.) The petitioner bears the burden of showing that it is
reasonably probable a more favorable result would have been reached absent the error.
(Ibid.) Moreover, in accordance with the usual appellate rules, one who appeals the
denial of a petition for a writ of administrative mandate must show that the procedural
error resulted in a miscarriage of justice. (Ibid.; Leal v. Gourley (2002) 100 Cal.App.4th
963, 968.)
The cases Richardson cites for the proposition that he is not required to show
prejudice all involved public employees who were summarily discharged or demoted
without the employer even attempting to follow any of the procedures it had adopted to
govern such action, which conduct is patently prejudicial. (Currieri v. City of Roseville
(1970) 4 Cal.App.3d 997, 1001 [discharge without any hearing]; Birdsall v. Carrillo
(1991) 231 Cal.App.3d 1426, 1428 [demotion without adequate notice of deficiencies or
opportunity to respond or appeal]; Santos v. City of Brawley (1984) 162 Cal.App.3d 203,
207 [city council that fired police chief later held hearing on the discharge, but did not
provide binding third-party arbitration as its resolution required].)
12
b. Degree to which process utilized conformed to 2008 rules
Although Lopez relied upon the 2011 version of section 763.55 in his
“Intradepartmental Correspondence” requesting a downgrade and administrative transfer
of Richardson, he testified at the administrative appeal hearing that he considered
“various” sections from the LAPD manual and that the process he followed also
complied with the 2008 provisions. He further testified that the “Exception” portion of
section 763.60 (from the 2008 manual) applied to Richardson’s case.
A review of the 2008 and 2011 provisions of the manual reveals that the standards
and procedures Lopez employed satisfied the 2008 provisions. First, the ground for a
downgrade, as relevant here, is essentially the same: “an officer clearly demonstrates
his/her failure . . . to satisfactorily perform the duties of the position” (2008 version of
763.55) and “the officer is not satisfactorily performing the duties of his or her advanced
paygrade position” (2011 version of 763.55). Any difference is, at most, one of degree,
i.e., whether the officer’s conduct clearly demonstrates unsatisfactory performance.
Assuming, for the sake of argument that there is a difference and that such difference in
degree created error, Richardson has not demonstrated prejudice, i.e., that he would not
have been downgraded and transferred had Lopez applied the “clearly demonstrates”
standard.
Richardson argues he was prejudiced because he was not provided the protections
of being counseled and given an opportunity to correct his deficient behavior before
being downgraded, as set forth in the first paragraph of section 763.60. However,
counseling and a second chance were not required under section 763.60’s exception,
which applied when the officer’s “clearly demonstrated failure or inability to
satisfactorily perform the duties of his or her advanced paygrade position” indicated “the
need for an immediate reassignment in the best interests of the Department.” Lopez’s
testimony established that Richardson’s conduct created discomfort and concern within
the management of the Newton Division, discord within the subordinate ranks, and a
challenge to Lopez’s authority. Lopez feared Richardson would also disregard or defy
13
other orders and directives and was no longer able to trust Richardson. When asked to
explain “how Sergeant Richardson clearly demonstrated failure or inability to
satisfactorily perform his duties,” Lopez testified, “I felt that as a sergeant of police, as an
assistant watch commander that had already been put on notice that his activity or his
document that he submitted was inappropriate and unprofessional, that to continue to
keep him at that position, despite the fact that he had already been warned and advised,
was detrimental to the command and to the division.” All of this supports Lopez’s
testimony that the exception to section 763.60 was applicable to Richardson’s
circumstances. Richardson’s failure to establish any basis for concluding that Lopez
would not have applied the exception undermines his prejudice argument.
Richardson’s remaining prejudice argument is that if he had known Hart would
conclude section 763.60’s exception applied, he “might have prepared to defend himself
differently” at the hearing on his administrative appeal. Leaving aside the speculative
nature of this argument, it fails to demonstrate how he was prejudiced by application of
the 2011 rules, as opposed to the 2008 rules. Notably, section 763.60 is part of the 2008,
not the 2011 rules, i.e., the rules Richardson claims should have been applied to him. In
essence, he argues he was prejudiced by the failure to apply the first paragraph of section
763.60 because Hart concluded the exception paragraph of the same rules would have
been applicable. Moreover, the hearing was conducted after the LAPD was enjoined
from applying the post-Special Order 47 provisions to officers like Richardson, and both
the questioning of Lopez at the hearing and Hart’s decision reveal that all parties were
aware that the 2008 procedures were to be applied to Richardson. Thus, Richardson
knew or should have known that all portions of section 763.60 were potentially
applicable to him.
In contrast to Richardson’s failure to demonstrate prejudice, the administrative
record strongly suggests the absence of any prejudice. Lopez’s testimony regarding the
effects of Richardson’s Occupied Locker notice and his explanation in his
Intradepartmental Correspondence requesting the downgrade and transfer that
14
“Richardson’s demeanor is not what is expected of a senior supervisor who has
responsibility to guide, train, direct, and motivate those over whom he has control”
strongly suggest the result would have been exactly the same had Lopez followed the
2008 standards.
c. Claim that the LAPD did not comply with section 763.60
Richardson argues the LAPD failed to comply with either the “general method” or
the exception in section 763.60. Failure to comply with the “general method,” i.e., the
steps set forth above the exception, is irrelevant because, as previously noted, the
exception applied. Accordingly, we address only Richardson’s argument regarding
failure to comply with the exception.
Richardson first argues his conduct did not necessitate immediate reassignment, as
the exception requires. In support, he cites a statement in Hart’s decision that Richardson
“is quite capable of serving as an Assistant Watch Commander,” and Weinstein’s note to
MacArthur stating Richardson’s “past performance . . . supports his retention of the
advanced paygrade position.” Richardson thus argues the “uncontroverted evidence in
the record” shows he is “capable of performing the duties of his advanced paygrade
position.” The exception in section 763.60 applies to either “failure or inability to
satisfactorily perform the duties” of an advanced paygrade position, however.
Richardson’s downgrade was based upon a failure to satisfactorily perform, as Hart’s
decision stated in the paragraph immediately following the portion Richardson cites:
“Department Manual Section 3/763.55, which was in effect at the time of the incident . . .
allows for reassignment to a lower paygrade when an officer clearly demonstrates his/her
failure to satisfactorily perform the duties of the position. By the single act of posting his
threatening Occupied Locker Notification, Richardson failed to display the
professionalism, leadership, loyalty and respect for others expected of any Department
supervisor, particularly one in a position of increased authority.” Although Hart cited
section 763.55, the exception in section 763.60 uses the same language.
15
Richardson further argues the LAPD’s failure to temporarily place him in a lower
paygrade assignment and to “act ‘without delay’ in” submitting the required paperwork,
instead allowing him to remain in his advanced paygrade position for three months,
demonstrates the LAPD “did not believe his conduct was so severe as to require
immediate removal.” The record does not establish several key elements of Richardson’s
argument. First, Lopez testified that after investigating the incident and deciding upon
the best course of action, he removed Richardson as an assistant watch commander and
reassigned him to other duties. The exception in section 763.60 states “the commanding
officer shall temporarily place the officer in a lower paygrade assignment,” (italics
added) not temporarily place the officer in a lower paygrade. Indeed, the exception also
requires that the officer “receive the same paygrade salary pending the concurrence of the
Director, Office of Support Services, in the recommendation that the officer be
reassigned to a lower paygrade.” As far as the record reveals, removal of Richardson as
an assistant watch commander and assigning him other duties constitutes a temporary
placement “in a lower paygrade assignment.” Even if Lopez could, somehow, have
reduced Richardson’s paygrade without proceeding through the proper bureaucratic
channels, such an action would probably have resulted in Richardson receiving a reduced
salary, which would contravene the exception’s requirement that the officer “receive the
same paygrade salary pending the concurrence of the Director, Officer Support Services,
in the recommendation that the officer be reassigned to a lower paygrade.”
Next, the delay between Richardson’s posting of the Occupied Locker notice and
his eventual downgrade to Sergeant I also fails to demonstrate that the LAPD did not
consider his conduct to require his “immediate reassignment in the best interests of the
Department.” First, we note that Richardson describes the pertinent time period as May 6
to August 14. Although Richardson’s Occupied Locker notice included the May 6 date
and the administrative record indicates he e-mailed it to Von Voigt and Jaye that day, it
further reveals that Von Voigt did not read the e-mail until May 9. Because Von Voigt
was the person who brought the notice to Lopez’s attention, the record supports a
16
reasonable inference that Lopez did not find out about the notice until May 9. In
addition, although Richardson’s downgrade was effective August 14, the Chief of Police
ordered the downgrade August 1. Thus, the length of time in controversy is less than
three months.
Using the May 9 commencement date, Lopez submitted the paperwork to
effectuate the downgrade 10 days after learning of Richardson’s misconduct, during
which time he investigated the incident, spoke to Richardson and others about it,
consulted with the Employee Relations Group and the assistant chief about the
appropriate course of action, removed Richardson from assistant watch commander
duties, and prepared the paperwork. Perhaps Lopez could have accomplished all of this
in a shorter period, but his testimony provided an explanation for any delay. He was, in
essence, investigating the facts and assuring himself that Richardson’s conduct
demonstrated a failure to perform the duties of his position satisfactorily, thus warranting
downgrade and transfer. Once Lopez submitted paperwork, the downgrade and transfer
process was underway, but, as he testified and as illustrated by the administrative record,
“[i]t took the Department some time to move him.” This is not surprising, given that the
request had to work its way through bureaucratic channels and be approved by various
high-ranking officials in the LAPD. MacArthur testified that a request for downgrade
“goes through the proper chain of command of the involved employee,” then through the
Employee Relations Group, “then it comes to me for final review.” Even Weinstein’s
note bears numerous date stamps reflecting that it was sent from office to office within
the LAPD. As the record also illustrates, the final decision or action accomplishing the
downgrade was an order by the Chief of Police on August 1. It thus appears that the
period between Richardson’s misconduct and his actual downgrade resulted from careful
consideration of how the LAPD should proceed and, mostly, the bureaucratic process
itself. Clearly the delay between Richardson’s misconduct and his paygrade reduction
benefited him, as he continued to earn a higher salary during this period.
17
In a largely overlapping argument, Richardson argues the LAPD did not comply
with the procedural requirements of section 763.60’s exception because his paygrade was
not immediately reduced and Lopez only requested his downgrade, but did not forward
forms 15.02.00 and 01.40.00 through channels to the Director of the Office of Support
services, as the exception requires. Richardson is wrong. First, as we just stated in
relation to Richardson’s overlapping argument, the exception in section 763.60 states
“the commanding officer shall temporarily place the officer in a lower paygrade
assignment” (italics added), not temporarily place the officer in a lower paygrade. As far
as the record reveals, removal of Richardson as an assistant watch commander and
assigning him other duties constitutes a temporary placement “in a lower paygrade
assignment.” Second, the papers Lopez prepared and submitted “through channels” were
forms 15.02.00 and 01.40.00. The “Transfer and/or Change in Paygrade” form Lopez
submitted indicates in its lower left corner that it is “1.40.00.” A paragraph of section
763.60 prior to the exception refers to “Intradepartmental Correspondence, Form
15.02.00,” and MacArthur referred in her testimony to Lopez’s Intradepartmental
Correspondence document dated May 19 as a “15.2.” Finally, as previously addressed
and expressly reflected in the terms of section 763.60, Lopez could not personally reduce
Richardson’s paygrade. Rather, the actual downgrade had to be accomplished by
submitting the required paperwork requesting such a downgrade, and that paperwork had
to go “through channels” all the way to MacArthur and, ultimately, the chief of police to
effectuate the downgrade.
2. Excessive penalty claim
“[W]e review de novo whether the agency’s imposition of a particular penalty on
the petitioner constituted an abuse of discretion by the agency,” focusing on “‘the
correctness of the agency’s decision rather than that of the trial court.’” (Cassidy, supra,
220 Cal.App.4th at pp. 627, 633.) “[W]e will not disturb the agency’s choice of penalty
absent ‘“an arbitrary, capricious or patently abusive exercise of discretion”’ by the
administrative agency.” (Id. at pp. 627–628.) “‘“Neither an appellate court nor a trial
18
court is free to substitute its discretion for that of the administrative agency concerning
the degree of punishment imposed. [Citation.]” [Citation.] [¶] “In reviewing the
exercise of this discretion we bear in mind the principle ‘courts should let administrative
boards and officers work out their problems with as little judicial interference as possible
. . . . Such boards are vested with a high discretion and its abuse must appear very clearly
before the courts will interfere.’”’ [Citation.] ‘The policy consideration underlying such
allocation of authority is the expertise of the administrative agency in determining
penalty questions.’” (Id. at p. 633.) “In considering whether such abuse occurred in the
context of public employee discipline, we note that 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, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the
circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly
v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.)
After thoroughly reviewing the administrative record, we conclude the LAPD did
not abuse its discretion by downgrading and transferring Richardson. That Richardson’s
conduct resulted in harm to the public service is persuasively demonstrated by the
testimony of Lopez regarding both the reasons Richardson’s posting and display of the
Occupied Locker notice demonstrated a failure to conform to the duties and standards
required of an assistant watch commander and the effects of Richardson’s conduct,
including division of subordinates and Lopez’s loss of trust that Richardson would carry
out his orders and directives. Harm to the public service is also shown by the testimony
of MacArthur regarding her reasons for approving the downgrade and transfer and by
Hart’s written opinion describing how Richardson’s misconduct “undermined the chain
of command, hampered the ability of the Division to achieve its goals, . . . contributed to
an atmosphere of conflict and inefficiency,” “emboldened others to ignore the directions
of Sergeant Von Voight [sic] and, by extension, their Commanding Officer,” and “had a
detrimental effect on the Newton chain of command.”
19
Although Richardson argues it was a “one-time practical joke questioning an
order” and that he is unlikely to repeat the conduct, MacArthur’s testimony regarding
Richardson’s prior transfer out of Rampart for perceived resistance to departmental or
command directives undertaken to improve operations of that division, with apparent
concern for Richardson’s influence as “a strong peer group leader,” both reveals and
supports the LAPD’s concern about Richardson’s tendency to disobey lawful orders by
his superiors. Lopez testified that the duties of an assistant watch commander included
carrying out and adhering to the directions of command staff and of the LAPD and
serving as a positive example to subordinate officers. Richardson’s Occupied Locker
notice demonstrated additional resistance to lawful commands and justifiably caused
Lopez, MacArthur, and others in the LAPD concern that Richardson would not only
refuse or fail to carry out orders and directives of his superiors, but that he would
influence his subordinates—for whom he served as a role model and over whom he had
strong influence—to do the same. “[P]olice 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.) Willful disobedience and
insubordination cause harm to the public service. (County of Santa Cruz v. Civil Service
Commission of Santa Cruz (2009) 171 Cal.App.4th 1577, 1583; Barber v. State
Personnel Bd. (1976) 18 Cal.3d 395, 404.)
We cannot conclude Richardson’s downgrade and transfer constituted an arbitrary,
capricious, or patently abusive exercise of discretion by the LAPD.
20
DISPOSITION
The judgment is affirmed. Each party is to bear its own costs on appeal.
NOT TO BE PUBLISHED.
LUI, J.
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.
21