Friday, February 10, 2017
Acting PD Seeks to Fool the Board of Supervisors
By ROGER M. GRACE
Coming before the Los Angeles County Board of Supervisors on Tuesday is a request by Acting Public Defender Kelly Emling that up to $15,000 be spent on the defense in the State Bar Court of a deputy in her office who failed to show up for a hearing—with that nonappearance having been utterly reasonable, as the acting PD portrays the facts.
Lamentably, Emling has simplified the facts to the point of an outright misrepresentation to the supervisors as to the conduct giving rise to the disciplinary charges.
The deputy, Delia Metoyer, is not identified by Emling by name notwithstanding that her name appears in a Court of Appeal opinion upholding sanctions imposed on her by the trial court in connection with the nonappearance, and appears in a notice of related disciplinary charges posted on her page on the State Bar website.
Here’s what Emling tells the supervisors, in a letter requesting that Metoyer’s legal defense be subsidized by taxpayers:
The Deputy Public Defender set for felony jury trial requested a continuance in order to attend a scheduled personal medical appointment. The judicial officer overseeing the trial denied the requested continuance, reiterating that the Deputy Public Defender reschedule his/her doctor’s appointment due to the brevity of the trial, and subsequently, the Deputy Public Defender reported the continuance denial to his/her Head Deputy Public Defender (Supervisor). The Supervisor relieved the Deputy Public Defender taking him/her out of trial rotation and reassigned his/her cases in response to the immediate health needs of the Deputy Public Defender. The Deputy Public Defender was referred to and consulted with the County Employee Assistance Program. The Supervisor informed the trial judge of the circumstances regarding his/her absence from appearing before the court. Subsequently, the trial judge ordered an ex-parte in-camera contempt/sanctions hearing…regarding the absence of the Deputy Public Defender and allegation that the Deputy Public Defender abandoned the client. Therefore, I believe that the County should provide for the defense of this Deputy Public Defender, as it appears that the Deputy Public Defender acted in good faith relying on the representations of his/her Supervisor, without actual malice, and in the apparent interests of the County of Los Angeles.
Quite a different picture of the facts appears in a July 27, 2016 Court of Appeal opinion by Presiding Justice Norman Epstein of this district’s Div. Four.
The opinion, which was not certified for publication, says there was no abuse of discretion on the part of Los Angeles Superior Court Judge Eleanor J. Hunter in imposing a $1,500 sanction on Metoyer. Hunter acted pursuant to Code of Civil Procedure §177.5 which authorizes such a penalty “for any violation of a lawful court order by a person, done without good cause or substantial justification.”
Epstein recites that on Jan. 15, 2015, Metoyer answered ready for trial in a case; the case was sent to Hunter’s courtroom; discussions were held in chambers; it was anticipated that the jury would be selected that day and that the trial would begin the next day; near the end of the discussion, Metoyer mentioned that she had a doctor’s appointment the next morning and wanted to be excused; Hunter told her it was to be a short trial and she should reschedule the appointment; the deputy PD became emotional and Hunter decided to put the dialogue on the record; before that could occur, Metoyer was excused to go to the bathroom.
“However, Ms. Metoyer did not return to court.” That statement by Hunter was in the minute order from a later hearing at which the judge imposed the sanction. The minute order continues:
“A jury had been called up to start the trial, but Ms. Metoyer did not return. No satisfactory explanation for the failure to return to the trial of this matter as ordered has been provided, and based upon the state of the record currently, it appears that Ms. Metoyer has violated the order to appear for the trial of this matter without good cause or substantial justification, and has abandoned her client.”
Epstein’s opinion declares:
Appellant gives no satisfactory explanation for failing to inform the court of her distress, or failing to return to the courtroom. She states in her declaration that when she asked to use the restroom, “I believed Judge Hunter could see that I was crying. I believed she was allowing me time to clean up and compose myself. I was unaware of any time limits on my efforts to compose myself. I was not ordered to return to court within a specific period of time after being permitted to use the restroom to compose myself.” Appellant’s claim about “time limits” fails to explain, or even acknowledge her conduct. She did not simply take a long time in the restroom; she left the restroom, failed to return to the courtroom, and failed to notify the court that she was doing so. She had the ability to make a telephone call from the restroom, as shown by her call to her supervisor. She could have called the court and explained her inability to return at that time, but did not do so.
In this case, the court had called up a jury and was ready to begin trial when appellant disappeared, resulting in delay of the criminal case and a series of hearings to address appellant’s disappearance. Appellant’s only explanation—that the court had caused her emotional distress by its refusal to grant her request for time off from trial—does not justify her failure to return to the courtroom to represent her client, or her failure to notify the court promptly of her inability to return to the courtroom to begin trial. She presented no medical evidence of her physical or emotional condition. She also declined the opportunity to apologize to the court for her disappearance, even when specifically asked at the hearing if she wished to add anything more to the record, including an apology. The fact that she was subsequently taken off the case does not excuse her conduct while she was still counsel for the defendant and trial was set to begin.
It is clear from this that Emling’s letter to the board is deceptive by whitewashing Metoyer’s misconduct.
Emling acknowledges in her letter to the board that under Government Code §995.6, the county is not obliged to provide a defense to a county employee in an administrative proceeding, but may do so where the proceeding “is brought on account of an act or omission in the scope of” the person’s “employment as an employee of the public entity.”
She asks that the board make a finding that the State Bar action was “brought on account of an act or omission in the scope of the Deputy Public Defender’s employment as an employee of the County of Los Angeles in the Office of the Public Defender.”
What Emling fails to reveal is that one of the three counts that is charged has nothing to do with Metoyer’s employment with the county. The State Bar has accused Metoyer not only of misconduct on Jan. 15, 2015 (client-abandonment and failure to abide by a court order), but subsequent misbehavior. It alleges:
“Respondent failed to report to the agency charged with attorney discipline, in writing, within 30 days of the time Respondent had knowledge of the imposition of judicial sanctions against Respondent by failing to report to the State Bar the $1500 in sanctions the court imposed on Respondent on or about April 10, 2015, in connection with Los Angeles Superior Court Case No. TA133184, People of the State of California v. Matiwos Ghebrehiwot, in willful violation of Business and Professions Code section, 6068(o)(3).”
That section requires an attorney to report “[t]he imposition of judicial sanctions against the attorney, except for sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000).”
The failure to abide by that section, if true, relates solely to Metoyer’s role as a member of the State Bar, not to her capacity as a county employee.
(Cognizance is not taken by the State Bar, in its charges, of the fact that in her role as a party to a proceeding (the hearing on the sanction), Metoyer was ordered, as Epstein’s opinion advises, to report the sanction to the State Bar.)
Government Code §995.6 also restricts county-subsidized defenses of employees in administrative proceedings to situations where the employees “acted, or failed to act, in good faith, without actual malice and in the apparent interests of the public entity.”
There is no indication of “malice” on the part of Metoyer.
Whether she acted “in good faith” is questionable. A judge ordered that she stick it out in the case until it was over. She had leave to go to the bathroom—not to vanish. From the lavatory, she contacted her supervisor by cellphone. Whatever was said in that confab, it is difficult to imagine that she actually thought the supervisor had the authority to countermand the judge. The fact that the supervisor later advised Hunter that she was assigning a different deputy to the case would seem to fall short of establishing good faith on Metoyer’s part.
But even if she is credited with having acted in good faith, it is unfathomable how it can be said that Metoyer acted “in the apparent interests” of the county.
She announced ready for trial on Jan. 15, 2015; at the end of a discussion in chambers, she revealed that she had a doctor’s appointment the next morning; the judge told her to postpone it; she went in the bathroom and cried. Metoyer then, from the court’s perspective, disappeared.
Metoyer acted in her own interests, not the county’s, in seeking to delay the start of testimony because of her tardily disclosed appointment. She acted in her own interests, not the county’s, in telephoning the supervisor from the lavatory to complain of how mean the judge was being to her. She acted in her own interests, not the county’s, in failing to return to the courtroom, going off elsewhere. And she clearly acted outside the scope of her employment in failing to abide by the statutory requirement (and a court order) by failing to report the sanction to the State Bar.
For the head, or acting head, of an office to show loyalty to the troops is, as a general proposition, commendable. But here, Emling’s loyalty to a deputy has resulted in her distorting the facts to the Board of Supervisors, making a request for funds which is, under the actual facts, audacious.
In the next column, I’ll discuss another lawyer who was reported to the State Bar—but in that case, the lawyer was blameless, and the jurist who made the report acted in defiance of judicial ethics.
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