Wednesday, July 29, 2020
Court of Appeal:
Desire to Thwart ‘Code of Silence’ Justified Firing of Deputy
Justice Feuer Says Judge Chalfant Improperly Second-Guessed Civil Service Commission
By a MetNews Staff Writer
The desire of the Los Angeles County Sheriff’s Department to send a message that perpetuation of the “Code of Silence” will not be tolerated justified the firing of a deputy who admitted that she failed to report another deputy’s beating of an inmate in the men’s jail, the Court of Appeal for this district has held, reversing a judgment ordering that she be rehired, with back pay.
The opinion, filed Monday, overturns a judgment by Los Angeles Superior Court Judge James C. Chalfant granting a petition for writ of mandate to former Los Angeles County Sheriff’s Deputy Meghan Pasos, whose excuse for keeping quiet was that she didn’t want to be “labeled as a rat” by her fellow deputies. That goal, Chalfant ruled on May 3, 2018, did not justify the termination of Pasos’s employment.
Writing for Div. Seven, Justice Gail R. Feuer said Chalfant improperly substituted his judgment for that of the Los Angeles County Civil Service Commission, which upheld the department’s firing of Pasos. She quoted the California Supreme Court as saying in its 1976 decision in Barber v. State Personnel Board:
“Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed.”
Pasos was fired in 2013 after she failed to report that a fellow deputy had used excessive force and caused injuries to an inmate at Men’s Central Jail during an incident where she “served as a lookout” and failed to summon medical assistance for the inmate, according to the opinion. The acting chief of the jail at the time, David Fender, determined that discharge was the appropriate discipline in order to “send a loud and clear message throughout the organization” that deputies who remain silent about inmate abuse “will not be tolerated,” Feuer recited.
The deputy was informed she was being discharged for multiple department policy violations, including one that mandates a deputy “shall not act or behave privately or officially in such a manner as to bring discredit upon himself of the Department.”
After its action was affirmed by the commission, Pasos sought a writ, which Chalfant granted.
The judge explained in his order:
“The Department’s desire to clean up inmate abuses at the jail is a legitimate and just operational consideration. It apparently is also true that the Code of Silence among deputies was creating problems for the Department’s effort to do so. The court will assume without deciding—although it may be inconsistent with the concept of civil service—that the Department may adopt a general deterrence policy of zero tolerance and discharge deputies who follow the Code of Silence no matter what the underlying offense. The Department cannot, however, adopt a zero tolerance policy without notice to employees and modification of the Guidelines. No such notice was given to Pasos.
“Even if the Department could impose a zero tolerance policy of discharge for adherence to the Code of Silence, it has a duty to consider the appropriate discipline on a case-by-case basis. The Department—Chief Fender in particular—seemed to be caught up in the whirlwind of negative publicity about inmate abuse at the jail, deciding to discharge every deputy involved in any aspect of an inmate abuse incident in order to deflect media and public criticism. That was not his job.”
The incident in question occurred on Sept. 27, 2010, and Pasos was relieved of duties on Oct. 4, 2011, with the discharge occurring on May 7, 2013. During this period, there was mounting public concern over reports of beatings in the county jails.
Chalfant said the commission “manifestly abused its discretion” by allowing Fender to “discharge employees out of departmental hysteria to avoid criticism.”
In her opinion reversing Chalfant’s decision, Feuer noted:
“We recognize Pasos’s conduct did not involve the level of dishonesty at issue in many law enforcement discharge cases.”
Yet, she continued, that does not justify Chalfant’s second-guessing of the commission’s determination.
The jurist pointed to her division’s 2010 pointed decision in Bautista v. County of Los Angeles which she termed “instructive.” There, Div. Seven, in an opinion by Presiding Justice Dennis M. Perluss, affirmed the decision of then-Los Angeles Superior Court Judge Dzintra Janavs (now retired) in denying a writ of mandate sought by a former deputy sheriff, Emir Bautista, who contested his discharge.
The opinion also affirmed and Los Angeles Superior Court Judge Zaven V. Sinanian’s grant of summary judgment to the Sheriff’s Department in Bautista’s federal civil rights action in which he contended his associational rights were abridged by being fired based on his relationship with a prostitute and drug addict.
“Although Bautista complains the discipline was overly harsh in his case, he does not identify anything in the record that would support his contention that his termination was an abuse of the agency’s discretion.”
The presiding justice quoted the Sixth District Court of Appeal as saying in its 1993 decision in West Valley-Mission Community College District v. Concepcion, in a review of an administrative decision:
“It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown.”
Feuer said that the firing of Pasos— “[g]iven the Department’s reasoned explanation that discharge was necessary in light of Pasos’s furtherance of the code of silence in the Men’s Central Jail and the resulting embarrassment and loss of trust in the Department—does nor present such an “exceptional case.”
The case is Pasos v. Los Angeles County Civil Service Commission, 2020 S.O.S. 3801.
Attorneys on appeal were Jeffrey M. Hausman and Larry D. Stratton of the Tarzana firm of Hausman & Sosa on behalf of Los Angeles County and Elizabeth J. Gibbons of The Gibbons Firm, located in downtown Los Angeles, representing Pasos.
Div. One of this district’s Court of Appeal on Oct. 13 of last year affirmed a decision by Chalfant arising from the same beating. Deputy Mark Montez had failed to report the incident, then lied about it, and was fired by the department—but in that instance, the commission reduced the penalty to a 30-day suspension.
Chalfant vacated that decision and directed the commission to reconsider the matter. Div. One, in an opinion by Acting Presiding Justice Victoria Chaney affirmed, in a published opinion in County of Los Angeles v. Civil Service Commission of the County of Los Angeles, saying:
“We conclude that Montez’s misconduct was an inexcusable neglect of duty that harmed the Sheriff’s Department by compromising the public’s ability to trust it, and the Commission abused its discretion by reducing Montez’s punishment.”
Chaney said that “reasonable minds could not differ with regard to the appropriate disciplinary action in Montez’s case.”
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