Filed 10/3/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
COUNTY OF LOS ANGELES, B282133
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BS158562)
v.
CIVIL SERVICE COMMISSION OF
THE COUNTY OF LOS ANGELES,
Defendant;
MARK MONTEZ,
Real Party in Interest and
Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. James C. Chalfant, Judge. Affirmed.
The Gibbons Firm, Elizabeth J. Gibbons for Real Party in
Interest and Appellant.
Peterson Bradford Burkwitz, Avi Burkwitz and M. G.
Kwon, for Plaintiff and Respondent.
______________________________
Los Angeles County Sheriff’s Deputy Mark Montez failed to
report and lied about the unreasonable use of force by another
deputy against an inmate at the Men’s Central Jail in Los
Angeles (the jail). The Sheriff’s Department discharged Montez,
but after an administrative hearing the Los Angeles County Civil
Service Commission (the Commission) reduced his discharge to a
30-day suspension without back pay. The county petitioned the
superior court for a writ vacating the Commission’s decision and
upholding Montez’s discharge. The court, Judge James C.
Chalfant presiding, found that the Commission’s decision was
unsupported by its own findings. The court accordingly issued a
writ ordering the Commission to set aside its decision and
reconsider the matter.
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.
Therefore, we affirm the trial court’s order.
BACKGROUND
The facts as found by the Commission are undisputed for
purposes of these proceedings.
On September 27, 2010, Dequan Ballard, an inmate in the
jail, stole items from a commissary cart. The theft was reported
to Deputy Omar Lopez, who informed Montez.
Lopez and Montez took Ballard to an elevator landing to
strip search him for the stolen items. Lopez searched Ballard
while Montez monitored the hallway to provide security against
other inmates interfering or Ballard becoming violent. During
the search, Lopez issued verbal commands to Ballard and struck
him multiple times with his fist. Montez was aware of the
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assault, but neither participated in it nor knew ahead of time
that it would take place.
After Ballard returned to his dormitory he confronted and
threatened the commissary employee who had reported the theft.
Lopez thereafter took Ballard to a control booth area just
outside the dormitory. Lopez papered over a window in the
dormitory door to prevent inmates inside from seeing into the
control booth, and Christina Ramirez, a civilian custody
assistant, instructed the inmates to lie down in their bunks to
prevent them from watching the interaction between Lopez and
Ballard. Lopez then shoved Ballard face first into a wall, causing
“severe bleeding from his face, nose, and mouth areas” and
bloodying his clothes, the wall, and the floor.
Lopez and Tianna Tipton, another civilian custody
assistant, retrieved clean clothes for Ballard and summoned a
trustee to clean the blood off the wall and floor. When Lopez
escorted Ballard back to his dorm, Tipton kicked his bloody
clothes down the hallway.
Montez was not present during the second assault but
arrived shortly thereafter and had a brief conversation with
Lopez outside the control booth, and at one point stood in front of
the bloody wall. The Sheriff’s Department concluded that he
then became aware of the blood on the wall and thus of the
second assault.
Montez failed to report either incident.
The Sheriff’s Internal Affairs Bureau (IAB) investigated
the incidents. When interviewed, Montez stated he could hear
Lopez’s commands to Ballard in the elevator landing but heard
no indications of an assault. He denied observing any injuries to
Ballard and denied observing blood on the control room wall, and
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when shown a video of himself and Lopez standing in the control
room area, Montez stated he did not recognize Lopez.
Deputy Meghan Pasos admitted she saw Lopez push
Ballard’s face into the control room wall, but did not report the
incident.
After the Los Angeles City Attorney, Los Angeles County
District Attorney, and Attorney General declined to file charges,
the Sheriff discharged Deputy Pasos and notified Montez that he
would be discharged for failure to conform to work standards by
(1) failing to report his observation of a use of force by another
deputy and (2) making false statements during the department’s
investigation, to wit: that he was unaware of the use of force by
Lopez; that he did not hear the confrontation between Lopez and
Ballard; that he did not observe a trustee cleaning blood from the
control booth wall; and that he could not recognize Lopez on a
videotape.
Montez appealed his discharge to the Commission, which
held an evidentiary hearing. At the hearing, Montez testified
that he heard nothing untoward during Lopez’s search of Ballard
on the elevator landing, could not recall observing blood on the
control room wall, and did not recognize Lopez in the video of the
control room area.
The hearing officer found that the department had shown
its allegations were true. The officer found Montez’s testimony
that he could not hear Lopez striking Ballard in the elevator
landing to be incredible. The officer found that Montez became
aware of the control room incident, falsely stated to investigators
that he could not recognize Lopez as the deputy standing with
him in the control room area, and falsely stated he did not know
the trustee was cleaning blood off the control room wall.
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The hearing officer nevertheless concluded the department
had failed to meet its burden of proving that discharge was
appropriate because Ramirez, the civilian custody assistant, was
similarly situated to Montez but not similarly disciplined.
Ramirez and Montez had been employed for a similar length of
time with no prior record of discipline, and neither reported the
use of force against Ballard and both made false statements
during the department’s investigation. The penalty for making a
false statement in an investigation ranged from a 15-day
suspension to discharge, yet Ramirez received only a five-day
retraining discipline with pay. The hearing officer acknowledged
that the department holds its peace officers to a higher standard
than its civilian employees, but found no sound basis to treat
Montez differently from Ramirez. Concluding discharge was not
appropriate for one anomalous instance of poor judgment in light
of Montez’s otherwise unblemished record, the officer
recommended that the Commission reduce his discipline to a 30-
day suspension without pay.
The Commission initially voted to affirm the hearing
officer’s finding as to Montez’s conduct but disagreed with the
finding that discharge would be inappropriate. However, after
Montez objected to the Commission’s proposed decision, it
reversed itself on the latter point, and reduced his discharge to a
30-day suspension without pay.
The county petitioned the superior court for a writ of
mandate overturning the Commission’s decision insofar as it
reduced Montez’s discipline, contending it was unsupported by
the Commission’s own findings. Montez opposed the petition but
expressly disavowed any challenge to the Commission’s or
hearing officer’s factual findings.
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The trial court agreed with the county. It found Montez’s
false statements during the department’s investigation forfeited
the trust of the department and the public, which could subject
him to proceedings under Brady v. Maryland (1963) 373 U.S. 83
[83 S.Ct. 1194, 10 L.E.2d 215] [prosecution has a duty to disclose
material exculpatory evidence, including potential impeaching
evidence] should he ever be called upon to testify in a criminal
case, and discharge was the only reasonable remedy. The court
granted the county’s petition and issued a writ directing the
Commission to set aside its decision reducing Montez’s discipline
and “reconsider its action in light of th[e] court’s statement of
decision, and to take any further action specially enjoined on it by
law.”
Montez appealed.
DISCUSSION
A. Standard of Review
A writ of mandate will issue “to compel the performance of
an act which the law specifically enjoins, as a duty resulting from
an office, trust, or station . . . .” (Code Civ. Proc., § 1085, subd.
(a).) Where the writ is sought for the purpose of inquiring into
the validity of a final administrative decision made as the result
of a proceeding in which an evidentiary hearing is required, “the
case shall be heard by the court sitting without a jury.” (Code
Civ. Proc., § 1094.5, subd. (a).) “The inquiry in such a case shall
extend to the questions whether the respondent has proceeded
without, or in excess of, jurisdiction; whether there was a fair
trial; and whether there was any prejudicial abuse of discretion.
Abuse of discretion is established if the respondent has not
proceeded in the manner required by law, the order or decision is
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not supported by the findings, or the findings are not supported
by the evidence.” (Id. at subd. (b).)
“ ‘[In] a mandamus proceeding to review an administrative
order, the determination of the penalty by the administrative
body will not be disturbed unless there has been an abuse of its
discretion.’ ” (Skelly v. State Personnel Board (1975) 15 Cal.3d
194, 217 (Skelly).) “In considering whether such abuse occurred
in the context of public employee discipline, . . . the overriding
consideration . . . is the extent to which the employee’s conduct
resulted in, or if repeated is likely to result in, ‘[h]arm to the
public service.’ [Citations.] Other relevant factors include the
circumstances surrounding the misconduct and the likelihood of
its recurrence.” (Id. at p. 218.)
When an administrative body’s findings are not in dispute,
abuse of discretion is established where the body’s order or
decision is unsupported by the findings. (Topanga Assn. for a
Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506,
514-515.) The court conducts a “de novo comparison of the
findings and the penalty” to ensure that the findings are not
“inconsistent with [the administrative body’s] action in reducing
the penalty,” resolving all reasonable doubts in favor of the
administrative decision. (County of Santa Cruz v. Civil Service
Commission of Santa Cruz (2009) 171 Cal.App.4th 1577, 1584
(Santa Cruz); Topanga, at p. 514.) The court may not substitute
its own judgment for that of the Commission, nor “disturb the
agency’s choice of penalty absent ‘ “an arbitrary, capricious or
patently abusive exercise of discretion” ’ by the administrative
agency” (Cassidy v. California Bd. of Accountancy (2013) 220
Cal.App.4th 620, 628), but must uphold the penalty if there is
any reasonable basis to sustain it. (Deegan v. City of Mountain
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View (1999) 72 Cal.App.4th 37, 46.) Only in an exceptional case
will an abuse of discretion be shown because reasonable minds
cannot differ on the appropriate penalty. (Id. at p. 45; see
Kolender v. San Diego County Civil Service Com. (2007) 149
Cal.App.4th 464, 471 (Kolender) [the court may find an abuse of
discretion where an agency’s decision exceeds the bounds of
reason].)
We review a penalty determination by the Commission
under the same abuse of discretion standard applied by the trial
court. (Santa Cruz, supra, 171 Cal.App.4th at p. 1581.)
B. Harm to the Public Service
Here, the findings of the Commission were not in dispute.
The hearing officer found that Montez failed to report two
instances of inmate abuse and made multiple false statements
during an investigation of the abuse. He falsely denied knowing
that Deputy Lopez had assaulted Ballard during the first
incident, denied knowing that the second incident had occurred,
and denied recognizing Lopez standing next to him in video
footage taken after the second incident. The only issue is
whether in light of these findings the Commission’s decision to
reduce Montez’s discharge to a 30-day suspension was an abuse
of discretion.
“In considering whether an abuse of discretion occurred in
the discipline of a public employee, the overriding consideration
is the extent to which the employee’s conduct resulted in, or if
repeated is likely to result in, harm to the public service.”
(Warren v. State Personnel Bd. (1979) 94 Cal.App.3d 95, 107-108.)
Whether an employee’s conduct has resulted or is likely to result
in harm to the public service if repeated requires consideration of
the nature of the employee’s profession, because “some
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occupations such as law enforcement, carry responsibilities and
limitations on personal freedom not imposed on those in other
fields.” (Thompson v. State Personnel Bd. (1988) 201 Cal.App.3d
423, 429.)
Peace officers specifically are held to higher standards of
conduct than civilian employees, and dishonesty by law
enforcement personnel is considered to be highly injurious to
their employing agencies. (See, e.g., Paulino v. Civil Service
Com. (1985) 175 Cal.App.3d 962, 972 [upholding dismissal of
deputy sheriff who lied about sick leave usage]; Flowers v. State
Personnel Bd. (1985) 174 Cal.App.3d 753, 761 [upholding
dismissal of correctional officer for dishonesty, attempted theft of
state property, and insubordination].)
In Kolender v. San Diego County Civil Service Com. (2005)
132 Cal.App.4th 716, a Sheriff’s deputy on duty at a detention
center lied to an investigator about another deputy abusing an
inmate. (Id. at p. 719.) The Sheriff discharged the deputy for
“lack of truthfulness” and “acts incompatible with and/or inimical
to the public service,” but a civil service commission reduced the
termination to a 90-day suspension despite finding that all the
charges had been proven. (Id. at p. 720.) The appellate court
reversed the commission’s decision, holding it exhibited
“indifference to public safety and welfare” and was a manifest
abuse of discretion. (Id. at p. 721.)
In Santa Cruz, a correctional officer complained to the
county Sheriff that her supervisor, a Sheriff’s sergeant, had
treated her unfairly due to her gender. During the ensuing
investigation the sergeant made false statements, for which the
Sheriff ordered him demoted to deputy. The sergeant appealed
his demotion to the Civil Service Commission of Santa Cruz,
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which found he had made false statements during the
investigation and had been insubordinate and willfully
disobedient. The commission nevertheless concluded that
demotion was overly harsh, and ordered the discipline reduced to
a 30-day suspension without pay. (Santa Cruz, supra, 171
Cal.App.4th at p. 1581.)
The Court of Appeal reversed, holding that the
commission’s own findings that the sergeant had “made false
statements, was insubordinate and was willfully disobedient, did
not support a reduction of the penalty; rather, they provided a
basis for the original demotion ordered by the Sheriff.” (Santa
Cruz, supra, 171 Cal.App.4th at p. 1584.) “The honesty and
integrity of a Sergeant in the Sheriff’s department is paramount
to the public safety and trust,” the court observed, “and breach of
that trust is cause for grave concern. . . . Dishonesty on the part
of a Sergeant in the Sheriff’s department is a breach of public
trust, and ultimately affects the Sheriff’s ability to effectively
serve the public.” (Id. at p. 1583.) In addition, the sergeant’s
interference in the internal investigation of the gender bias claim
placed the county at risk of liability, and “ ‘exposed the
governmental entity to the prospect of litigation.’ ” (Ibid.)
In Hankla v. Long Beach Civil Service Com. (1995) 34
Cal.App.4th 1216 (Hankla), the Court of Appeal reversed a
decision by a civil service commission to reinstate a police officer
despite the commission’s own finding that the officer had
unnecessarily armed himself with a gun and negligently
discharged the weapon, wounding a civilian. (Id. at p. 1226.)
The court held that the officer’s conduct harmed the public
service because law enforcement officers “ ‘are the guardians of
the peace and security of the community, and the efficiency of our
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whole system, designed for the purpose of maintaining law and
order, depends upon the extent to which such officers perform
their duties and are faithful to the trust reposed in them.’ ” (Id.
at p. 1224.) The court held that the commission’s findings did not
support suspension rather than discharge because “[f]orcing the
police department to retain an officer who is unable to handle
competently either his emotions or his gun poses too great a
threat of harm to the public service to be countenanced.” (Id. at
p. 1226.)
In Kolender, supra, 149 Cal.App.4th 464, a correctional
supervisor twice miscalculated inmates’ early release and other
credits, resulting in the inmates serving incorrect sentences. The
San Diego County Sheriff demoted the supervisor for
incompetence or performance of acts “incompatible with or
inimical to the public service.” (Id. at p. 468.) The San Diego
County Civil Service Commission ruled that the supervisor was
guilty of acts incompatible with and/or inimical to the public
service but ordered the penalty modified from a permanent to a
temporary demotion in light of her overall rating of “fully
competent” as a supervisor. (Id. at p. 469.) The Court of Appeal
reversed, holding that the commission’s decision to reduce the
level of discipline to a temporary demotion “fail[ed] to adequately
account for the overriding goal of preventing harm to the public
service.” (Id. at p. 474.)
Here, Montez’s failure to report two incidents of abuse of an
inmate constituted an inexcusable neglect of his duty to
safeguard the jail population. (See Kolender v. San Diego County
Civil Service Com., supra, 132 Cal.App.4th at p. 722 [“The safety
and physical integrity of inmates is one of the office’s paramount
responsibilities”].) His lies during the subsequent investigation
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hindered rectification of the situation, brought discredit upon his
position and department, and forever undermined his credibility.
“A deputy sheriff’s job is a position of trust and the public has a
right to the highest standard of behavior from those they invest
with the power and authority of a law enforcement officer.
Honesty, credibility and temperament are crucial to the proper
performance of an officer’s duties. Dishonesty is incompatible
with the public trust.” (Talmo v. Civil Service Com. (1991) 231
Cal.App.3d 210, 231 [deputy abused jail inmates and lied about it
to his superiors].)
Nothing in the record offers reason to hope Montez would
act differently in the future should he be faced with a similar
situation.
“The public is entitled to protection from unprofessional
employees whose conduct places people at risk of injury and the
government at risk incurring liability.” (Hanka, supra, 34
Cal.App.4th at p. 1223.) It is simply intolerable that dishonesty
and a culture of silence that countenances abuse of prisoners be
permitted within the ranks of those charged with public safety
and welfare. (See Fout v. State Personnel Bd. (1982) 136
Cal.App.3d 817, 821.)
We therefore conclude reasonable minds could not differ
with regard to the appropriate disciplinary action in Montez’s
case. The Commission’s decision to reduce his discharge to a 30-
day suspension was unsupported by its own findings, and thus
constituted an abuse of discretion.
C. Circumstances Surrounding the Misconduct and
Likelihood It Will Recur
In reviewing an administrative decision concerning
employee discipline we consider as secondary factors the
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“circumstances surrounding the misconduct” and the “likelihood
of its recurrence.” (Skelly, supra, 15 Cal.3d at p. 218.)
Here, the Commission observed that Montez received
ratings of “Very Good” in his performance evaluations, including
after the use of force incidents. He continued to perform his
duties at the jail for a year after the incident with no reports of
abuse or misconduct. The Commission concluded from these
facts that the misconduct was unlikely to recur.
We agree with the trial court that this conclusion was
unwarranted. Montez never recanted the false statements he
made to investigators, but instead repeated them at the
Commission hearing. “Honesty is not considered an isolated or
transient behavioral act; it is more of a continuing trait of
character.” (Gee v. California State Personnel Bd. (1970) 5
Cal.App.3d 713, 719; Ackerman v. State Personnel Bd. (1983) 145
Cal.App.3d 395, 399.)
As the court observed in Kolender v. San Diego County
Civil Service Com., supra, 132 Cal.App.4th at page 722, where a
Sheriff’s deputy was found to be complicit in covering up abuse of
an inmate, “[n]o requirement exists that [the] . . . Sheriff’s Office
retain officers who lie and protect deputies who harm inmates;
rather, the Sheriff [is] entitled to discharge [such an officer] in
the first instance.”
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DISPOSITION
The judgment granting the petition for a writ of mandate is
affirmed. The County of Los Angeles is to recover its costs on
appeal.
CERTIFIED FOR PUBLICATION
CHANEY, Acting P. J.
We concur:
BENDIX, J.
WEINGART, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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