By a MetNews Staff Writer
The Los Angeles County Civil Service Commission properly dismissed the appeal of a deputy sheriff who was fired after being granted a disability retirement, the Court of Appeal for this district held yesterday, rejecting the contention that a 2014 decision authorizes continued jurisdiction.
Justice Elizabeth A. Grimes of Div. Eight wrote the opinion, which affirms a ruling by Los Angeles Superior Court Judge Mary H. Strobel who denied a petition for a writ of mandate sought by retired Deputy Martin Diero.
Diero on May 1, 2015, applied for a service-connected disability retirement; on July 17, 2015, the department served him with a letter of intent to terminate his employment based on alleged misconduct, and he appealed to the commission; on Jan. 6, 2016, the Los Angeles County Employees Retirement Association (“LACERA”) granted a disability retirement. Disciplinary hearings nonetheless proceeded, and a hearing officer recommended that discipline be reduced to a 30-day suspension.
The commission on Aug. 16, 2017 dismissed the appeal.
In denying a writ, Strobel rejected Diero’s contention that the commission erred in light of the Court of Appeal decision by this district’s Div. One in Hudson v. County of Los Angeles. The opinion in that case was written by Acting Presiding Justice Victoria Chaney.
There, a deputy sheriff was fired after going on temporary disability leave and she sought reinstatement. Chaney’s opinion authorizes further proceedings.
“Here, unlike in Hudson, the evidence does not show a lack of intention by Petitioner to forever sever his employment with County. Only Petitioner filed an application for disability retirement. Significantly to the court, unlike Hudson who received no retirement benefit. Petitioner was granted a service-connected disability….Petitioner also has not expressed intent in his declarations to return to work for County. Under these circumstances, Hudson is distinguishable.”
Under applicable cases, Strobel said, the commission properly dismissed the appeal.
Grimes agreed. She said:
“The existence of a case like Hudson—where the commission did order the plaintiff’s employment restored, where the plaintiff actively sought LACERA’s reevaluation so she could return to work, and where the department actually agreed with the plaintiff to return her to work and did return her to work in an unsworn position during the course of the proceedings—does not change the general rule. It is the exception, on egregious facts— and it was clear throughout the long saga that the plaintiffs future status as an employee was at issue. Nothing in this case suggests anything of the sort.”
The jurist declared:
“We hold the commission properly dismissed plaintiffs appeal because it has no jurisdiction to order reinstatement, or any form of wage relief, to a retired person whose ‘future status as an employee by definition is no longer at issue.’…It does not matter whether the retirement results from the retiree’s own decision to retire, or from a decision by the retirement board that he or she is permanently incapacitated from doing his job. In either case, the effect is the same: the retiree is no longer an employee, and the commission no longer has the authority to order reinstatement or wage relief.”
The case is Diero v. Los Angeles County Employees Retirement Association, B296926.
Castillo Harper and Michael A. Morguess represented Diero. for Plaintiff and Appellant. Jeffrey M. Hausman, Larry D. Stratton and Vincent C. McGowan of Hausman & Sosa acted for the Sheriff’s Department—as Hausman and Stratton did in Hudson.
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