CASE SUMMARIES

July 2008

EMPLOYMENT APPEALS BOARD TIE VOTES EQUIVALENT OF A FAILURE TO ACT

Lopez v. Imperial County Sheriff's Office 165 Cal.App.4th 1 (2008)

Imperial County terminated plaintiffs from their jobs as correctional sergeants after finding that they violated county ordinances and the department policies by their "immoral or unprofessional conduct;" "deliberate or repeated absence from duty without authorization;" and "neglect of duty." They separately appealed to the Board.

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

The California Court of Appeal noted that the Board is a quasi-independent administrative tribunal established by county ordinance and charged with adjudicating certain disputes between the county and county employees.
Further the Court noted, in disciplinary administrative proceedings, the burden of proving the charges rests upon the party making the chargers.

The Appellate Court opined that the trial court correctly noted at the hearing on the writ petition that the Imperial County ordinance governing the Board’s actions was silent regarding the effect of a tie vote.  However, “as a general rule an even division among members of an administrative agency results in no action.”

The Appellate Court concluded that the County did not meet its burden of proving its charges to the satisfaction of a majority of the Board, holding that the tie votes resulted in a failure to act.  The Court concluded that “[c}ontrary to appellants’ claim, the Board’s inaction did not require a reversal of the respondent’s rulings.  Rather, appellants were returned to the status quo ante, and the respondent’s terminations remain in effect until the Board conducts another vote.”

July 2008

DEFERRED EXCESS VACATION PAID AT TIME OF RETIREMENT IS CONSIDERED SALARY FOR PURPOSES OF RETIREMENT CALCULATION

Los Angeles County Professional Peace Officers' Assn. v. County of Los Angeles 165 Cal.App.4th 63 (2008)

The individual plaintiffs are retired deputy sheriffs who were on 4850 leave in the year prior to their retirement, and who were paid for their deferred excess vacation hours at retirement. Those payments did not become part of the calculation of salary for purposes of retirement, and the plaintiffs' retirement benefits are thus lower than they would have been if the hours had been cashed out. They, and the Los Angeles County Professional Peace Officers Association, filed an action for declaratory relief, challenging the County policy which denies employees on 4850 leave the cash out option. The complaint sought a declaration that the County's policy violated sections 4850 and 132a (which prohibits discrimination against disabled employees) and constitutional guarantees of equal protection of the law, and impaired the employees' rights under their employment contract.

The trial court found for the plaintiffs on all theories, declaring that the County's policy violated section 4850, and the declared policy of the State of California set out in section 132a, denied plaintiffs equal protection of law under the federal Constitution, and unconstitutionally impaired plaintiffs' vested contractual rights. The court ordered the County to report to the Los Angeles County Employees' Retirement Systems, as pensionable income, the amounts which should have been paid to plaintiffs in a cash-out at the end of the deferral year.

The California Court of Appeal affirmed the judgment. The Court noted that LC section 4850 prohibits discrimination in "salary," which includes sick pay and other fringe benefits which accrue incident to the employee's service and to which the employee is entitled.