Case Summaries
April 2007

Right To Respond To Discipline Cannot Be Ambiguous

California School Employees Association. v. Livingston Union School District
(2007) 2007 DAR 4547, 149 Cal.App. 4th 391; 56 Cal.Rptr. 3d 923; 2007 Cal.App. LEXIS 498.

Mike Perez, a full-time permanent employee, was employed as a bus driver and custodian for the Livingston Union School District. A parent complaint resulted in a review of Perez's job performance. As investigation of the matter continued the school year ended and Perez was off work until the start of the next school year. The School District sent Perez a document entitled "Notice of Statement of Charges and Recommendation for Immediate Suspension without Pay and Dismissal from Employment," which included the following: "[Y]ou are hereby ordered immediately suspended without pay. This Suspension Order will be made effective July 30, … .. You have a right to ... respond orally or in writing to the charges.... If you wish to respond orally, a meeting will be arranged ... for that purpose." There was no date or deadline for requesting the meeting.

The section entitled "Notice of Right to Hearing" stated, in part: "You have a right to a hearing on these charges. If you wish to request a hearing, you must do so within five (5) days after the service of this Notice of Statement of Charges and Recommendation for Immediate Suspension Without Pay and Dismissal from Employment upon you. Enclosed [is] a form ..., the mailing or delivery of which constitutes your demand for a hearing before the Board."  Attached to the notice were, in addition to the request form, sections of the Education Code and the School District’s personnel policy. One portion of the policy, designated BP 220.04, stated, in part: "Notification to a permanent employee of proposed disciplinary action shall be deemed sufficient when it is delivered in person to the employee or when it is deposited in the U.S. Certified Mail, postage prepaid and addressed to the last known address of the employee. The notification to the employee shall contain the following: A statement that the employee has a right to a hearing on such charges if demanded within five (5) days after service of the notice to the employee."

Perez received mail at a post office box. The School District mailed the notice, certified mail, return receipt, on June 24, …., and Perez's wife signed for the notice on July 8, … .  On July 13, ,,, , Perez delivered a demand for hearing to the School District and informed it he had been out of town. Perez and a CSEA representative met with the District’s superintendent on July 21, … , and by letter dated July 22, …, captioned "Decision Following Skelly Meeting," the superintendent notified Perez that "there is evidence which provides sufficient cause for your termination from employment ... and that you waived your right to an Evidentiary Hearing ...."

Perez filed a petition for writ of mandate contending the School District wrongfully denied him a due process hearing in connection with his disciplinary termination from employment. The trial court found Perez did not file a timely request for a hearing and waived the right to a hearing.

The California Fifth District Court of Appeal concluded that the School District’s policies did not provide Perez due process of law, and reversed the judgment. The Appellate Court noted that the due process clause of the Fourteenth Amendment to the United States Constitution requires that if a person is entitled to notice in a governmental proceeding, the method of giving that notice must be reasonably calculated to actually notify; giving notice cannot be merely a token or formalistic gesture. When the notice involves an important issue such as a government employee's loss of permanent employment, the notice "should be clear, concise and easily understandable, and not ambiguous or confusing.”

The Court pointed out that BP 220.04 required that the notice to an employee contain a "statement that the employee has a right to a hearing on such charges if demanded within five (5) days after service of the notice to the employee," and it cannot be said that BP 220.04 clearly informed an employee of the date by which he or she must request a hearing. The Court came to the conclusion that both District’s rule and practice ignored the circumstance that permanent employees would be away from their employment for months at a time, on a regular basis. Due process requires that the District take this circumstance into account in establishing and administering the procedures required by Education Code section 45113: those procedures must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."

County Civil Service Commission Abuses Discretion

In Reducing Sheriff’s Disciplinary Decision

Kolender v. San Diego County Civil Service Commission (Gant) (2007) 2007 DAR 4565, 149 Cal.App.4th 464; 57 Cal.Rptr. 3d 84; 2007 Cal.App. LEXIS 501.

San Diego County Sheriff William Kolender demoted Margaret Gant, from a supervisorial position in the detention processing unit to detention processing technician for incompetence. Gant appealed to the San Diego County Civil Service Commission (the Commission), which reduced the penalty to a temporary demotion and reinstated her as a supervisor.

The Sheriff filed a petition for writ of administrative mandate to vacate the Commission's order, asserting the charges of incompetence were supported by substantial evidence and the Sheriff was required to take this action to protect the public service. The trial court granted the petition finding the Commission had abused its discretion in reducing Gant's penalty in light of the admitted sentencing errors she had made, and also in light of prior discipline she had received for ignoring Sheriff's department directives regarding staffing.
The California Fourth District Court of Appeal, Division One, agreed with the trial court that the Commission abused its discretion in reducing the penalty imposed and affirmed the judgment granting the Sheriff’s petition.

The specific criteria to be considered in evaluating a public employee discipline dispute include whether "the administrative decision manifests an indifference to public safety and welfare. '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.' [Citation.] 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. [Citation.]"

Sheriff’s Department Not In Breach
Of Settlement Agreement or POBR
In Deputy’s Reassignment

BENACH v. COUNTY OF LOS ANGELES et al., 2007 DAR 5003, 149 Cal.App.4th 836, 57 Cal.Rptr. 3d 363, 2007 Cal.App. LEXIS 545, 2007 Cal. LEXIS 8149

Francisco Benach has been employed by the Los Angles County Sheriff’s Department since 1973. From 1981 until late October 2001, Benach served at the Department’s Aero Bureau at the Long Beach Airport as a pilot. In 1993, Benach was fired after he allegedly assaulted another deputy, appealed, and was ordered reinstated by the County Civil Service Commission. The Department sought a writ overturning that order and refused to reinstate Benach pending the outcome of that proceeding. Benach sued, alleging violations of his civil rights and the POBR. Both actions were ultimately resolved by a November 23, 1998 settlement agreement between Benach and the Department.

This appeal to the California Second District Court of Appeal is the latest flare-up in litigation alleging breach of the agreement resolving the prior litigation. It also involves a violation of the Public Safety Officers Procedural Bill of Rights Act allegedly committed by the Department by virtue of an involuntary transfer of Benach from the bureau where the Department’s pilots are based.

The trial court found no violation of the POBR, and granted the Department’s motion for summary adjudication. The court also found that the gist of Benach’s action sought equitable relief, and denied his request for a jury trial on claims for breach of contract and breach of the covenant of good faith and fair dealing. Trial was conducted over a span of about three months, after which the court found in favor of the Department on both claims, and subsequently awarded costs to the Department.

The Court of Appeal found no error and affirmed the findings that the trial court’s summary adjudication was properly granted on the cause of action for violation of the POBR; that a jury trial was properly denied on contract-related claims seeking primarily equitable relief; and that Benach failed to prove the Department breached the settlement agreement in any respect.

The Appellate Court noted that undisputed evidence in the record established that Benach retained the same rank and rate of pay in his new position as detective. The record also revealed his transfer was not imposed for a punitive purpose. Rather, a yearlong investigation revealed the working environment at Aero Bureau evinced a lack of harmony and cooperation among employees when Benach was at Aero. However, after Benach was temporarily transferred pending the outcome of the internal affairs investigation, the friction dissipated and the working environment at Aero became noticeably more harmonious, civil and respectful.

Accordingly, even though Benach was found not to have violated any policy or to have committed any wrongdoing, management reasonably determined it was both expeditious and in the Department’s best interests to make Benach’s removal from Aero permanent, rather than to transfer numerous other employees to new posts.

FRANK et al., v. COUNTY OF LOS ANGELES et al., 2007 DAR 4922, 149 Cal.App.4th 805; 57 Cal.Rptr. 3d 430; 2007 Cal.App. LEXIS 530.

This is a race discrimination class action brought by minority officers of the Los Angeles County Police against the County of Los Angeles, the Los Angeles County Sheriff’s Department, and the Los Angeles County Department of Health Services. The County was found liable for back pay and other relief to all County police officers, including non-minority officers, who were employed when the class was certified, with the exception of supervisory officers and trainees.  The Court of Appeal reversed.

The Appellate Court noted that the plaintiffs established that some 70 percent of officers in the County police classification were minority members and 30 percent  Caucasian, while in the sheriff’s department, where officers are better paid, the percentages are reversed. That differentiation, by itself, the Court noted, does not establish racial discrimination, and plaintiffs failed to present evidence that the pay disparity is the product of racial discrimination.

Here the Court pointed out, plaintiffs failed to present any evidence that the County’s policies and procedures constituted a similar racially-discriminatory barrier which deterred plaintiffs from applying for the position of LASD deputies. The County police officers who testified did not say that County policies prevented them from applying to the LASD rather than the County police. Instead, they chose to apply to the County police for various reasons.

The California Second District Court of Appeal concluded that the jury’s liability verdict, on the theories of disparate impact and disparate treatment racial discrimination, had to be reversed as the Plaintiffs failed to establish a basis for a disparate impact claim as a matter of law, and the jury’s verdict on disparate treatment was not supported by the evidence.