Tuesday, September 1, 2015
C.A. Throws Out Ordinance Designed to Halt LAPD Attrition
Panel Says ‘Acknowledgment’ Requirement Violates Labor Code Provision
By KENNETH OFGANG, Staff Writer
The City of Los Angeles cannot enforce an ordinance requiring some police officers to repay all of their training costs if they leave the department and take other law enforcement jobs, the Fourth District Court of Appeal has ruled.
Div. Two said the ordinance—to the extent it requires repayment of costs for training beyond that required of all California peace officers by statute—violates a Labor Code provision requiring that an employer pay “all necessary expenditures incurred by the employee in direct consequence of the discharge of his or her duties.”
The Aug. 12 opinion was certified yesterday for publication.
Los Angeles Administrative Code §4.1700, which dates from the 1990s, includes a requirement that every police officer applicant agree in writing to maintain his or her employment, if hired, for at least five years and to reimburse his or her training costs if he or she leaves the department within five years and then takes another law enforcement position within a year.
The agreement is called “the acknowledgment.” After the city filed more than 40 lawsuits against former officers seeking reimbursement under the provision, the cases were coordinated before Los Angeles Superior Court Judge Daniel S. Pratt.
Pratt selected four cases for a consolidated trial, while 39 other ex-LAPD officers agreed that the judge’s rulings would be applicable to their cases as well. The consolidated cases were then tried before Judge Elihu Berle, who concluded that the ordinance was enforceable, accepting the city’s argument that Labor Code §2802 did not apply because the city paid for the training and the officers incurred no out-of-pocket expenses.
The judge also held, however, that the claim against one of the four defendant was time-barred.
The judge then determined the amount owed by each defendant, except for three, including the one who prevailed at trial, who were held not liable. A single judgment was entered, and the officers appealed.
Justice Art McKinster, writing for the Court of Appeal, partially rejected the city’s §2802 argument. The city, he said, “contradicts itself by acknowledging that appellants did become liable for a portion of the cost of their training because they failed to abide by the terms of the acknowledgment.”
But the city’s alternative argument—that the acknowledgment is enforceable because police training is mandated by the Peace Officer Standards and Training, or POST, statute—is partially correct, the justice said.
He cited a 1994 opinion by the Division of Labor Standards Enforcement, which said that an employer need not, under §2802, pay for employee training “leading to licensure.”
The DLSE, whose opinion is entitled to deference, McKinster said, explained:
“The most important aspect of licensure is that it is required by the state or locality as a result of public policy. It is the employee who must be licensed and unless there is a specific statute which requires the employer to assume part of the cost, the cost of licensing must be borne by the employee.
“There may be situations, however, where licensure is not actually required by statute or ordinance but the employer requires either the training or the licensing (or both) simply as a requirement of employment. In that case, the provisions of Labor Code § 2802 would require the employer to reimburse the cost.”
Because a statute requires every police officer to hold a POST certificate, for which completion of an introductory training course is a prerequisite, the certificate is effectively a license within the meaning of the DLSE opinion, the jurist said. Thus, he said, the city may require officers to reimburse the cost of training leading to the certificate.
Los Angeles, however, requires police trainees to complete 420 hours of training beyond the 644 hours required by the POST Commission, McKinster noted, ostensibly so that they will become equipped to handle issues unique to the city. “Such training, which is not required by statute or public policy but is rather instituted purely to satisfy the needs of the city, is employer-mandated training and therefore an expense which the city must bear,” the justice said.
McKinster went on to say that, because the city did not argue in the trial court that the mandated and non-mandated training costs were severable and presented no evidence from which the trial court could have apportioned the costs, the officers are entitled to judgment in their favor.
Attorneys on appeal were Jon Webster, James A. Arcellana, Raymond M. Yetka and Cody Stroman of The Law Offices of Jon Webster for the officers and Deputy City Attorneys Gregory P. Orland, Brian I. Cheng, Juliann Anderson and Lisa S. Berger for Los Angeles.
The case is In re Acknowledgment Cases, E058460.
Copyright 2015, Metropolitan News Company