Thursday, September 3, 2009
C.A. Orders New Hearing for Reprimanded LAPD Officer
Panel Says Yaffe Erred in Deferring to City’s Assessment of Conflicting Evidence
By KENNETH OFGANG, Staff Writer
An official reprimand issued to a police officer who displayed his weapon outside his home, in response to what he claimed was an imminent threat, affected his vested right to employment, thus triggering the independent judgment standard of judicial review, the Court of Appeal for this district ruled yesterday.
Div. Seven reversed Los Angeles Superior Court Judge David Yaffe’s order denying a mandate petition by Officer Cesar Wences of the Los Angeles Police Department, who is challenging a reprimand he received as a result of the off-duty incident. The panel ordered the judge to reconsider the ruling under the correct standard.
Wences, a Long Beach resident, was reprimanded as a result of an April 2005 confrontation in which he fired one shot at Edie Rodriguez, a relative of a person who was living with Wences and his family. Wences said Rodriguez had threatened him over the telephone earlier in the evening, had come to his home with at least three other people, and had come toward him in a threatening manner.
Rodriguez was subsequently convicted of making terrorist threats, but LAPD Chief William Bratton—adopting the findings and recommendations of a review board—found that Wences violated department policy because the drawing and exhibiting of his firearm was uncalled for under the circumstances.
Wences’ administrative appeal was rejected following a three-day hearing.
At a hearing on Wences’ petition for writ of administrative mandate, Yaffe ruled that because the discipline was limited to a reprimand, the decision was reviewable under the substantial evidence test. In doing so, he rejected the argument by Wences’ counsel that Wences had a fundamental right to defend his home and family from a criminal threat, and that the reprimand infringed upon that right and thus had to be reviewed under the independent judgment standard.
Yaffe reasoned that “the administrative decision does not deprive petitioner of any property or employment right, does not affect him financially, and therefore does not authorize the court to exercise its independent judgment on the evidence.” He went on to find that there was substantial evidence to support the reprimand.
Justice Laurie Zelon, writing for the Court of Appeal, however, said that the “vested and fundamental right” of a non-probationary police officer to maintain that employment is not limited to the “economic aspect” of the job.
“The Department’s official reprimand, based on a finding of administrative disapproval by the Board of Police Commissioners, is a part of Wences’ employment record as a police officer,” Zelon wrote. “The reprimand may be considered by the Department in future personnel and disciplinary decisions, and based on its content, may adversely affect Wences’ future opportunities for career advancement. It therefore implicates a right that is important to Wences in his life situation even in the absence of an immediate economic impact.”
Noting that the LAPD undisputedly considers an officers’ entire employment history, including any written reprimand, in making assignments and granting promotions, the justice cited the Public Safety Officers Procedural Bill of Rights Act.
A written reprimand is considered “punitive action,” and prior Court of Appeal decision have held that any action that may lead to adverse consequences “at some future time” is considered punitive and thus administratively appealable, under the act, even if no discipline is imposed, the justice pointed out.
“In this case, because the action taken against Wences was a written reprimand, he had an absolute right to administratively appeal the Department’s disciplinary decision,” Zelon said, “...even though the reprimand did not have an immediate adverse effet on Wences’ job title, salary, or benefits.”
In a footnote, the justice wrote that the fact that the incident involved the alleged defense of the officer’s home and family did not confer any particular procedural rights.
“It is well-established that a police department is entitled to investigate allegations of misconduct by an off-duty officer and to institute disciplinary proceedings where appropriate,” she said.
Attorneys on appeal were Gary Orville Ingemunson for Wences and Deputy City Attorney Gregory P. Orland for the respondents.
The case is Wences v. City of Los Angeles, B208525.
Copyright 2009, Metropolitan News Company