Thursday, March 6, 2014
C.A. Rejects Claims by Former County Safety Police Officers
Panel Says Merger Was Not a Demotion, So Bill of Rights Act Does Not Apply
By KENNETH OFGANG, Staff Writer
This district’s Court of Appeal has rejected claims by former officers of the Los Angeles County Office of Public Safety who were denied sworn positions with the Sheriff’s Department when the agencies merged.
Div. Eight yesterday certified for publication a Feb. 6 opinion in which Presiding Justice Tricia Bigelow said the four plaintiffs failed to state causes of action in their Los Angeles Superior Court complaints.
David Esparza, Alan Mark, Anthony Mora, and Irene Redd alleged they were victims of discrimination based on age and disability, and that they had been deprived of their rights under the Public Safety Officers Procedural Bill of Rights Act.
They originally sued in federal court, alleging they were terminated without due process, and retaliated against for having participated in an earlier race discrimination suit in which a verdict for the plaintiffs was overturned by the Court of Appeal for lack of evidence. The district judge dismissed the federal claims, holding that POBRA does not protect against loss of employment through agency reorganization, and that the plaintiffs thus lacked a protected property interest under 42 U.S.C. §1983.
The district judge declined to exercise supplemental jurisdiction over the state-law claims, which were dismissed without prejudice. The Ninth Circuit affirmed the judgment, and the plaintiffs then filed their state action, renewing their claims under POBRA and the Fair Employment and Housing Act.
OPS was formed in 1998 through the consolidation of the peace officer departments of the departments of Parks and Recreation, Health Services, and Internal Services. It was tasked with enforcing the law on county property, and its officers were designated as having limited peace officer powers, including the power to carry firearms when and where authorized by the agency.
OPS was merged into LASD effective June 30. In ordering the merger, the Board of Supervisors found that there were significant potential savings, and provided for an exemption from the county’s hiring freeze so that OPS officers could be employed by LASD.
Under the terms of the merger, OPS officers were hired as deputy sheriffs if they were deemed qualified, while those deemed not qualified were offered non-sworn positions, such as that of jailer.
Reasons for Rejection
Esparza was denied a deputy’s position based on psychological test results, Mark because of color blindness, Redd based on her disciplinary record, and Mora because of financial issues, which he said resulted from an attempt to obtain a mortgage modification. All except Esparza were over the age of 40 and claimed to be the victims of age bias, while Esparza and Mark claimed the county failed to accommodate their disabilities.
All of the plaintiffs alleged that the refusal to hire them as deputies constituted “demotions” and “punitive actions” that were carried out without their being given the protections of the Bill of Rights Act, also known as POBRA.
Los Angeles Superior Court Judge Elihu Berle sustained demurrers to all causes of action, holding that the county was immune from the discrimination claims because they challenged the merger and its implementation, which were legislative acts, and that the ruling in the federal case estopped them from suing under POBRA.
Bigelow, writing for the Court of Appeal, said the trial judge was correct.
Legislative immunity, the presiding justice reasoned, broadly covers the actions of a legislative body, such as the Board of Supervisors, and its implementation. The claim that the ordinance adopted by the board did not expressly deny them their rights of administrative appeal, access to negative comments in their personnel files, and personal financial privacy does not avoid the immunity, Bigelow said.
“There were no allegations to show that Plaintiffs’ claims stem from individualized employment decisions. They each lost their jobs as OPS officers as a result of a decision to eliminate the entire department. They then had to meet the Sheriffs’ Department’s hiring criteria to become deputy sheriffs. This argument is merely an attempt to circumvent the legislative immunity granted under section 818.2.”
Bigelow went on to agree with the trial judge that the POBRA claim was identical to the dismissed federal civil rights claim and cannot be relitigated.
The case is Esparza v. County of Los Angeles, B243496.
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