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Chrisman v. City of Los Angeles

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 31, 2012
B223927 (Cal. Ct. App. Jan. 31, 2012)

Opinion

B223927

01-31-2012

KELLY CHRISMAN, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

Gary S. Casselman for Plaintiff and Appellant. Carmen A. Trutanich, City Attorney, Claude McGee Henry, Assistant City Attorney, and Brian I. Cheng, Deputy City Attorney, for Defendants and Respondents.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BS087972)

APPEAL from a judgment of the Superior Court of Los Angeles County. David Yaffe, Judge. Affirmed.

Gary S. Casselman for Plaintiff and Appellant.

Carmen A. Trutanich, City Attorney, Claude McGee Henry, Assistant City Attorney, and Brian I. Cheng, Deputy City Attorney, for Defendants and Respondents.

Los Angeles Police Department Officer Kelly Chrisman appeals from his discharge from the department. We affirm.

FACTS AND PROCEEDINGS

Appellant Kelly Chrisman was a police officer with the Los Angeles Police Department until the department discharged him in 2003. The department terminated appellant following a Board of Rights hearing in which the board found appellant conducted unauthorized computer searches of several people. (Chrisman v. City of Los Angeles (2007) 155 Cal.App.4th 29, 32 (Chrisman I).)Following his termination, appellant filed a petition for writ of mandate, which the trial court denied. In Chrisman I, we reversed the trial court and found the Board of Rights had applied the wrong statute of limitations to appellant's computer misuse. We further found the record was unclear whether the department would have terminated appellant if the board had applied the correct, shorter statute of limitations to appellant's misconduct. (Id. at pp. 38-39.) Accordingly, we reversed and remanded the matter to the department for it to reconsider appellant's penalty. (Id. at pp. 31, 43.)

The department reconvened a Board of Rights in 2008 to reconsider appellant's penalty. By a vote of two-to-one, the board recommended appellant's termination for his misuse of department computers that occurred within the two-year statutory period covered by our remand order. (Chrisman I, supra, 155 Cal.App.4th at pp. 38, 43.) The department adopted the board's recommendation and terminated appellant effective as of his initial discharge in 2003.

Appellant filed a petition for writ of mandate challenging the department's renewed decision to terminate him. Finding the board and department had not abused their discretion in terminating appellant for computer misuse, the trial court denied the petition. The trial court explained, "The decision of the Court of Appeal [in Chrisman I] left the Board the discretion to do exactly what the majority did, find that the misconduct committed during the prescribed period was sufficient to merit dismissal." This appeal followed.

STANDARD OF REVIEW

The trial court applies its independent judgment to the department's administrative decision to terminate appellant, but with a strong presumption that the department acted properly. (Code Civ. Proc., § 1094.5, subd. (c); Fukuda v. City of Angels (1999) 20 Cal.4th 805, 812, 817.) We review the trial court's factual findings for substantial evidence. (Fukuda, at p. 824.) We independently review the trial court's legal findings. (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1057.) We review the penalty the department imposed on appellant for abuse of discretion. (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 404; Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 48.) In reviewing the department's exercise of its discretion, we note that a police department may hold its officers to a more demanding standard of conduct than for a typical public employee, thus giving the department greater leeway in disciplinary matters than may exist for other public employers. (Ackerman v. State Personnel Bd. (1983) 145 Cal.App.3d 395, 398-399 [the officer's "actions would probably warrant some form of punishment less than dismissal if he was not a police officer. However, a police officer must be held to a higher standard than other employees"]; see also County of Los Angeles v. Civil Service Com. (1995) 39 Cal.App.4th 620, 630, fn. 9; Nicolini v. County of Tuolumne (1987) 190 Cal.App.3d 619, 629.)

DISCUSSION

1. Appellant's Proffer of New Evidence

When we directed the department in Chrisman I to reconsider the penalty it imposed on appellant for computer misconduct, we neither expressly directed nor prohibited the board from taking new evidence. Our disposition simply stated: "The matter is reversed and remanded to the Los Angeles Police Department for reconsideration of its punishment of appellant based on his two years of misuse of the department computers from March 29, 1999, to March 28, 2001." (Chrisman I, supra, 155 Cal.App.4th at p. 43.) Appellant contends the board erred in not admitting new evidence, which appellant claims showed his termination was unduly harsh when compared to punishments the department imposed on other officers who had committed computer-related offenses. The evidence that appellant submitted to the board included the department's Board of Rights Penalty Guide showing that the range of permitted punishment for computer offenses ran from written admonishment to a Board of Rights hearing; a Board of Rights Advisory, which permitted the board under certain circumstances to accept new evidence after a disciplinary matter was remanded by a court to the board; three years of departmental disciplinary records known as "rap sheets" summarizing the offense and punishment of every officer disciplined - from oral admonishment and written reprimand through suspension and termination - during those years; and, a one-page departmental form documenting that the department merely counseled an officer for giving a disgruntled citizen a departmental computer's "DMV printout," in contrast to appellant whom the department terminated even though he did not disclose any departmental computer printouts to anyone.

The trial court took judicial notice of the Penalty Guide and Advisory.

Appellant's contention fails because "there is no requirement that charges similar in nature must result in identical penalties" for a police department's punishment of its officers. (Pegues v. Civil Service Com. (1998) 67 Cal.App.4th 95, 106 (Pegues) ; Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 230; Marino v. City of Los Angeles (1973) 34 Cal.App.3d 461, 466.) "The admission or rejection of evidence by an administrative agency is not grounds for reversal unless the error has resulted in a miscarriage of justice. [Citation.] In other words, it must be reasonably probable a more favorable result would have been reached absent the error." (Lone Star Security & Video, Inc. v. Bureau of Security & Investigative Services (2009) 176 Cal.App.4th 1249, 12541255.) Because appellant was not entitled to identical punishment, the board's refusal to admit new evidence showing different punishments imposed on other officers was not prejudicial error because appellant aimed his evidence toward a legal phantom - a nonexistent right to identical punishment. In any event, the board knew the specifics of appellant's contention that his termination was disproportionate compared to the department's punishment of other officers for computer-related offenses. Appellant's contention did not sway the board's majority. (County of Los Angeles v. Civil Service Com., supra, 39 Cal.App.4th at p. 634 ["An appellate court is not free to substitute its discretion for that of the administrative agency. 'If reasonable minds may differ with regard to the appropriate disciplinary action, there is no abuse of discretion'"].)

Appellant tries to distinguish Pegues on the ground that the discharged county employee waited until a writ proceeding in superior court to raise the argument of disparate punishment. (Pegues, supra, 67 Cal.App.4th at pp. 103-104.) Appellant, in contrast, raised the issue of disparate punishment when the Board of Rights reconvened to reconsider his punishment. Appellant's waiver-distinction is unavailing because it does not affect Pegues's substantive holding that public agency employees are not entitled to identical punishment for similar misconduct.

In support of the board's purported duty to receive appellant's evidence of disparate punishment, appellant cites the unpublished decision in Krygoski v. City of Los Angeles (Nov. 2, 1984, B004151) in violation of California Rules of Court, rule 8.1115. (Rule 8.1115(a) [party normally may not cite unpublished opinion from another action].) Appellant points to rule 8.1115(b), which permits citation of an unpublished decision in certain circumstances, but appellant does not demonstrate those exceptions' application. Rule 8.1115(b) states, "An unpublished opinion may be cited or relied on: [¶] (1) When the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel; or [¶] (2) When the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action." Other than quoting rule 8.1115(b)'s language, and emphasizing in particular its exception for collateral estoppel, appellant does not develop his contention with cogent argument supported by citation to the record and authority. Instead, he simply asserts, "Respondents are collaterally estopped to refuse to consider material evidence of disparity of disposition of penalty." Krygoski, and theoretically dozens of unpublished decisions, may be helpful in analyzing a case presently before this court. But that is not the point. Appellant's cursory discussion of rule 8.1115(a) and his failure to develop his contention, does not demonstrate he may cite Krygoski to us as an unpublished decision. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700; see also Santa Clara Valley Transportation Authority v. Rea (2006) 140 Cal.App.4th 1303, 1311 ["The party asserting the doctrine [of collateral estoppel] has the burden to prove that the doctrine applies"].) Accordingly, his reliance on that decision is improper, and we ignore it.

2. Consideration of Conduct Outside the Two-Year Statutory Period

Appellant contends the reconvened Board of Rights considered time-barred, out-of-statute evidence in determining his punishment, thus not taking into account the reduced scope of the charges against him following remand from his successful appeal in Chrisman I. In support, appellant cites the following statement by a board member speaking for the majority of the reconvened board: "Although the decision of the Court of Appeals reduced the time frames evaluated by the Board resulting in the review of less incidents and the Court of Appeals determined the charges do not rise to the level of criminality, the facts used to recommend the original penalty remain the same. [¶] Therefore, the majority of the Board still recommends to the Chief of Police that, Officer Chrisman, you should be terminated from your position as a police officer." (Italics added.) Focusing on the italicized phrase, appellant contends the board did not adhere to our holding in Chrisman I that limited to two years those of his acts which the department could use to decide his punishment. Appellant's reliance on the italicized phrase is misplaced because he ignores the board member's preceding statement that Chrisman I "reduced the time frames evaluated by the Board resulting in the review of less incidents." Moreover, the department's representative in the reconvened hearing noted the board could punish appellant only on "partial count of 42 and count 45," which reflected Chrisman I's holding limiting appellant's exposure to punishment for only his two years of misconduct between March 29, 1999, and March 28, 2001. (Chrisman I, supra, 155 Cal.App.4th at p. 43.) Hence, the record does not support appellant's contention that the board punished him based on time-barred, out-of-statute acts.

3. No Conflict of Interest

Appellant contends that conflicts of interest infected the Board of Rights proceedings, denying him a fair hearing. He notes that one Los Angeles deputy city attorney advised the board, while a second Los Angeles deputy city attorney advised the department's representative (also known as the "advocate") during the hearing. Appellant further contends that the defense by the Los Angeles City Attorney's Office of the board and board members in appellant's federal civil rights lawsuit exacerbated the conflict of interest. Appellant cites Howitt v. Superior Court (1992) 3 Cal.App.4th 1575 as "one of the most relevant cases" to his conflict of interest contention. But Howitt permitted the type of arrangement about which appellant complains - an attorney from one office advocating for one side in a contested administrative proceeding while a second attorney from the same office advises the administrative decision maker. (Howitt, at pp. 1586-1587.) Howitt therefore does not help appellant. (Cf. Nightlife Partner, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 85-86, 94 [same attorney may not participate in early stage of administrative proceeding as advocate and then advise later administrative decision maker which reviews attorney's earlier administrative acts, likening impropriety to "the equivalent of trial counsel acting as an appellate court's adviser during the appellate court's review of the propriety of a lower court's judgment in favor of that counsel's client"].) Appellant's contention that the dual roles of the Los Angeles City Attorney's Office created a conflict of interest therefore fails.

The law has arguably shifted somewhat against appellant since our decision in Chrisman I. In Chrisman I, we observed that generally speaking a single attorney should not both advise an administrative agency and prosecute actions before the agency. (Id. at p. 42.) Since our decision, the Supreme Court in Morongo Band of Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731, 737, found no due process violation in an agency attorney simultaneously prosecuting one action before an administrative agency and advising the agency on an unrelated matter. Morongo, at pages 739-740 and footnote 2, disapproved Quintero v. City of Santa Ana (2003) 114 Cal.App.4th 810, 812-813, a decision which had informed our observation of an administrative agency's prudence in employing different attorneys to prosecute an administrative action and to advise the administrative decision maker. Morongo explained that "[b]y itself, the combination of investigative, prosecutorial, and adjudicatory functions within a single administrative agency does not create an unacceptable risk of bias and thus does not violate the due process rights of individuals who are subjected to agency prosecutions." (Morongo, at p. 737.) To the extent one could construe Quintero to adopt a per se rule barring an administrative agency's attorneys from prosecuting and advising the agency, Morongo rejected Quintero, but Morongo accepted Quintero to the extent Quintero taught that the prosecutor and advisor must be different attorneys - the exact circumstance here. (Morongo, at pp. 739-740.)
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DISPOSITION

The judgment is affirmed. Respondents to recover their costs on appeal.

RUBIN, ACTING P. J. WE CONCUR:

FLIER, J.

GRIMES, J.


Summaries of

Chrisman v. City of Los Angeles

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 31, 2012
B223927 (Cal. Ct. App. Jan. 31, 2012)
Case details for

Chrisman v. City of Los Angeles

Case Details

Full title:KELLY CHRISMAN, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al.…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Date published: Jan 31, 2012

Citations

B223927 (Cal. Ct. App. Jan. 31, 2012)