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Firing of CHP Officer Who Claimed Overtime for Hours He Was Home Was Justified—C.A.
By a MetNews Staff Writer
The Third District Court of Appeal has reversed a judgment granting a petition of administrative mandamus challenging the State Personnel Board’s decision to fire a California Highway Patrol officer who, on four occasions, claimed overtime based on hours he spent at home.
Termination of the employment of the petitioner/respondent, Jesus Gomez, followed an investigation of practices at the East Los Angeles (“ELA”) station with respect to officers assigned to provide traffic safety services for the California Department of Transportation (“Caltrans”), pursuant to a contract between the state agencies. Some officers were allowed to go home early in exchange for buying Caltrans staff members pizzas.
Gomez argued on appeal that while at his home in El Monte at the end of the day, after being released early from overtime details, he was on a stand-by status, subject to being called back via his cellphone. He contended:
“There is no evidence that Gomez knew stand-by was not allowed to occur at his residence which was 10 minutes away from the ELA office….
“In addition, the practice of counting stand-by from home continued into 2018 when dozens of peace officers were suddenly terminated for the practice….
“If the practice was ‘clearly wrong’, dozens of career peace officers would not have been participating in the practice. If the practice was clearly wrong, it would not have continued for years and years….”
Acting Presiding Justice Stacy E. Boulware Eurie said in Thursday’s unpublished opinion, overturning a decision by Sacramento Superior Court Judge James Arguelles in Gomez’s favor, that even if “dozens” of other officers committed like misconduct, “the Board could find that widespread dishonesty is still dishonesty.”
Standard of Review
She noted that the appeals court “focuses on the Board’s decision (not the trial court’s) and is deferential.” The justice wrote:
“Applying this deferential standard, we are satisfied that substantial evidence supports the Board’s dishonesty finding. Gomez claimed overtime for time he spent at home on four occasions. On those dates, he signed up to work a Caltrans detail that Caltrans ultimately ended early. His office’s standard operating procedure contemplated this type of scenario. It explained that ‘[i]f Caltrans ends a detail early due to unforeseen circumstances but continues to pay the officer the duration of the contract, the officer shall remain available to Caltrans by standing by at the office.’ But on these four instances, Gomez did not ‘remain available to Caltrans by standing by at the office.’ He instead turned in his patrol car and went home.”
CHP Captain Manny Gill testified at the administrative proceeding that “somebody at home undressed completely and taking their personal car home does not qualify as being available.” Boulware Eurie said:
“According to his testimony…, it is one thing to be near the office grabbing coffee, in uniform, and with a patrol car—which would be fine—and quite another to be at home, out of uniform, and without a patrol car—which would not be fine.”
Severity of Penalty
Gomez argued on appeal that what he did “is not misconduct that would warrant significant discipline without progressive discipline having already occurred.”
He quoted Arguelles as saying:
“Gomez argues that the penalty of dismissal is a manifest abuse of discretion in this case as it is ‘clearly disproportionate to the proven misconduct, if any.’ The Court agrees.”
The CHP countered:
“Peace officers hold a position of public trust and are held to a higher standard, especially in terms of honesty. Gomez violated these fundamental aspects of his job and, therefore, should no longer hold it. This is especially true because dishonesty by law enforcement officers is treated harshly and warrants dismissal.”
Agreeing with the CHP, Boulware Eurie declared:
“Dismissal for this conduct, to be sure, is a severe penalty. But officers, like Gomez, are expected to demonstrate honesty in carrying out their duties….”
The case is Gomez v. State Personnel Board, C100533.
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