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Gillaspy v. Los Angeles County Fire Dept.

California Court of Appeals, Second District, Fifth Division
Mar 10, 2008
No. B200882 (Cal. Ct. App. Mar. 10, 2008)

Opinion


RICHARD GILLASPY, Plaintiff and Appellant, v. LOS ANGELES COUNTY FIRE DEPARTMENT, Defendant and Respondent. B200882 California Court of Appeal, Second District, Fifth Division March 10, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County No. BS106720, David L. Yaffe, Judge.

Rae Lamothe for Plaintiff and Appellant.

Laquer, Urban, Clifford & Hodge and J. Paul Moorhead for Defendant and Respondent.

ARMSTRONG, J.

Petitioner Richard Gillaspy was terminated from his position as Hazardous Materials Specialist with the County of Los Angeles Fire Department. After challenging the termination internally, petitioner filed a complaint with the County Civil Service Commission, which upheld the Department's decision. Petitioner then filed a Petition for Writ of Administrative Mandamus in Los Angeles Superior Court, seeking review of the Commission's decision. That court denied the petition and entered judgment in favor of the Department. Petitioner appeals the judgment. Finding no error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Petitioner was hired by the Los Angeles County Health Department in 1981 for work in the Health Hazardous Materials Division (HHMD), with responsibility for enforcing hazardous waste laws. In 1991, HHMD was transferred from the County Health Department to the County Fire Department (the Fire Department), and was referred to as the Hazardous Materials Division of the County of Los Angeles Fire Department (HAZMAT). Petitioner was among the employees transferred to the Fire Department at that time. The primary function of HAZMAT is the regulatory oversight of businesses that handle hazardous material or generate hazardous waste. From 1991 until 2005, petitioner worked for and was paid by the Fire Department.

In early 2000, petitioner filed a petition for writ of mandate in the Los Angeles Superior Court, challenging the legality of the transfer of the Health Service's HHMD to the Fire Department's HAZMAT Division. On June 13, 2000, the Superior Court entered judgment against petitioner, stating, among other things: "The 1991 actions of the Los Angeles County Board of Supervisors lawfully transferred Petitioner to the Los Angeles County Fire Department." Despite this ruling, petitioner continued to believe that the transfer was illegal.

In October 2002, the Head Deputy District Attorney of the Environmental Crimes/OSHA Division contacted Bill Jones, Chief of the HAZMAT Division, and requested that the Fire Department investigate allegations made by Fire Department personnel of misconduct on the part of the District Attorney's Office. The allegations were contained in documents that were allegedly given by Fire Department personnel to defense counsel in People v. Little Oil Co., Inc., a matter being prosecuted by the District Attorney's Office. Chief Jones consulted with members of the Fire Department about the allegations involving the release of documents to defense counsel in the Little Oil matter. As part of that investigation, Chief Jones learned of an August 25, 2002 letter which petitioner sent to Los Angeles City Council member Janice Hahn and 11 other public officials (the Hahn Letter). The Fire Department decided to have an outside entity conduct the investigation into these allegations.

In November of 2002, at the request of the Fire Department, the Department of Auditor Controller conducted an investigation into the allegations that petitioner had provided internal Fire Department documents to defense counsel in People v. Little Oil, Inc. The Department of Auditor Controller was asked to investigate the Hahn Letter. In the letter Petitioner referred to himself as an expert in the area and identified himself as the "Supervisor of the Los Angeles County Environmental Crimes Investigations and Enforcement Unit." He also expressed his personal opinion that the 1991 transfer of the HAZMAT function from Health Services to the Fire Department was illegal.

Additional allegations involving petitioner surfaced. In July 2003, the Fire Department was a defendant in a civil lawsuit brought by John Chou entitled Chou v. Paul Biren, et al. Attorney Timothy Kral represented the County of Los Angeles and additional defendants in the Chou lawsuit. During the course of the litigation, Mr. Chou's attorney, Jacqueline Staten, served attorney Kral's office with Notices of Deposition seeking to take the depositions of a number of employees of the Fire Department, including petitioner's. Petitioner was deposed in his capacity as an employee of the Fire Department.

During the deposition, attorney Staten asked petitioner if he had access to certain documents. He answered in the affirmative and she stated that she would serve a subpoena on the Fire Department to obtain these documents. Without waiting for a subpoena and without seeking permission from his chain of command, petitioner sent the documents discussed during his deposition to attorney Staten, depriving the Fire Department of the opportunity to raise applicable objections to the production of the documents.

In considering the appropriate discipline for petitioner's acts, the Fire Department reviewed prior instructions, including a memo dated December 26, 1996, provided to petitioner regarding his failure to keep separate his views on the 1991 transfer of HHMD to the Fire Department, and his official duties as a Supervising HAZMAT specialist. That memo stated in part: "You are hereby instructed to maintain a clear and distinct separation between your personal activities as they relate to the Health Hazardous Materials Division (HHMD) transfer and authority issues and your official functions as a Supervising Specialist with the Fire Department. . . . To ensure that you do maintain the required separation you are instructed as follows: [¶] Do not use your Supervising HMS position to obtain Divisional documents and/or records for any purpose other than your official duties. [¶] Do not make reference to your status as an employee of the HHMD in your personal correspondence regarding the transfer and authority of the HHMD."

The Fire Department concluded that by writing the Hahn Letter and sending documents to the plaintiff's attorney in Chou after receiving the above memo, petitioner failed to follow orders, failed to conform to the Fire Department's rules and regulations, and failed to exercise sound judgment. Based on these violations, petitioner was discharged on March 4, 2005.

Petitioner appealed his discharge from the Fire Department to the Los Angeles County Civil Service Commission. Five days of hearings were held before Civil Service Commission Hearing Officer Jan Stiglitz (the "Hearing Officer"). Petitioner continued to complain that the transfer of HHMD to the Fire Department was illegal, despite the fact that the Los Angeles County Counsel's Office, the District Attorney's Office, the California Environmental Protection Agency and a prior Superior Court decision all concluded that the transfer was legal. Based on his belief in the illegality of the transfer, petitioner argued that the Fire Department lacked authority to discipline him. Moreover, because he was not deputized as a fire inspector, petitioner maintained that he was committing a felony every time he swore out a search warrant.

On May 10, 2006, the Hearing Officer issued a "Recommended Decision, Findings of Fact, and Conclusions of Law," recommending that the Fire Department decision to discharge petitioner be sustained. On October 4, 2006, the Commission adopted the Hearing Officer's decision.

On December 29, 2006, petitioner filed a Petition for Writ of Administrative Mandamus challenging the Commission's decision to uphold his discharge. On June 20, 2007, after reviewing the pleadings and briefs filed in the case and hearing oral argument, Superior Court Judge David Yaffe denied the Petition. Judge Yaffe found that petitioner was collaterally estopped from attacking the Superior Court's ruling in his 2000 administrative mandamus action that the transfer of HHMD was legal. Judge Yaffe reasoned: "Because he is bound by the judgment in the prior action, petitioner has no reasonable cause to believe that his employer is violating the law by employing him to make or supervise hazardous material inspections without making him a Deputy Fire Inspector." Judge Yaffe characterized petitioner's actions as "insubordination" and "acts of disloyalty," finding that petitioner "strives to render his own work ineffective and meaningless." Judge Yaffe upheld the petitioner's discharge.

Petitioner now appeals the denial of his Petition for Writ of Administrative Mandamus.

STANDARD OF REVIEW

The Superior Court applied its independent judgment to the Commission's administrative decision, with a presumption that the Commission acted properly. (See Code Civ. Proc., § 1094.5; Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811.) This court reviews the trial court's factual findings for substantial evidence, and its legal conclusions de novo. (Evans v. Unemployment Ins. Appeals Bd. (1985) 39 Cal.3d 398, 406; Chrisman v. City of Los Angeles (2007) 155 Cal.App.4th 29, 33.)

DISCUSSION

On this appeal, petitioner continues to argue that his superiors required him to engage in criminal conduct, and discharged him in retaliation for his complaints. His argument goes like this: "It is undisputed that [petitioner] has not been appointed to a position in the Fire Dept." "Any person, who has not been appointed to a position in the Fire Dept., is prohibited from performing any duties in the Fire Dept. Govt. Code § 1854 states that '[e]very person who willfully and knowingly intrudes himself into any public office to which he has not been elected or appointed . . . is guilty of a misdemeanor.' Similarly, Govt. Code § 1303 states that '[e]very person who exercises any function of a public office without taking the oath of office, or without giving the required bond, is guilty of a misdemeanor.' After bringing Govt. Code §§ 1854 and 1303 to the Fire Dept.'s attention, [petitioner] was specifically ordered to perform the duties of a Deputy Forester or Fire Warden without the proper appointment and given the direct order to engage in criminal conduct."

Petitioner acknowledges that his employer has frequently informed the HHMD staff that "'County Counsel says there is no problem with your authority,' but a licensed attorney has never said this, and a written legal opinion has never been produced." Because he is not satisfied with the assurances of County Counsel, petitioner maintains that he is required "to falsify inspection warrant affidavits (i.e., administrative search warrants)" by swearing under penalty of perjury that he is authorized to act when in fact he is not.

1. The letter to Councilmember Janice Hahn

Prior to sending the Hahn Letter, petitioner was officially admonished and instructed to maintain a clear and distinct separation between his personal activities as they related to the HHMD transfer and HAZMAT authority issues and his official function as a Supervising HAZMAT Specialist with the Fire Department. Petitioner was specifically instructed not to use his status as an employee in any personal correspondence regarding the transfer or authority of HAZMAT.

Despite these admonitions, petitioner wrote a letter to Councilmember Hahn and other public officers, purportedly regarding an investigation of the "Wilmington Drain." After identifying himself as "the Supervisor of the Los Angeles County Environmental Crimes Investigations and Enforcement Unit," and thus writing in his representative capacity, petitioner stated that "In 1991 the County Board of Supervisors illegally transferred the Health Officer's Hazardous Materials Control Program to the Los Angeles County Forester and Fire Warden." He goes on to explain his theory about the illegality of searches conducted by members of the HAZMAT division, concluding that "members of the staff are personally liable for depriving persons of their civil rights." The Hearing Officer found it "undisputed" that petitioner's actions in sending the Hahn Letter were contrary to orders given to petitioner.

According to the Standards of Behavior, the Fire Department chief or the deputy chief are to approve the release for publication of all written articles or materials which, either by direct or indirect reference, relate to the administration, policies, or operation of the Department. That rule further cautions against the use of names and titles or affiliations in connection with published material involving the Department which might imply an endorsement or authentication by the Department. In addition to informing councilmember Hahn of his position in the Fire Department and his status as an "expert" in the area, petitioner stated that it was unlawful for him to assist in the Wilmington Drain investigation.

Petitioner's issuance of the Hahn Letter in his capacity as a Fire Department employee without prior approval from his supervisors was a clear violation of the Department's Standards of Behavior. It was also in violation of the December 26, 1996 memo, instructing petitioner to keep his personal opinions separate from his departmental duties.

Petitioner maintains that the Hahn Letter is protected whistle-blower activity under Labor Code section 1102.5. That statute provides than an "employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation." (Lab. Code, § 1102.5.) However, the Commission found that petitioner did not have a reasonable cause to believe that the Fire Department violated any state or federal law or regulation. Rather, the Commission concluded that when petitioner wrote the Hahn Letter, he "ignored numerous consistent opinions of County Counsel, the official position of the District Attorney's office, the approval of the California Environmental Protection Agency, and a Superior Court decision rejecting on[e] of [his] fundamental arguments." Thus, because petitioner did not have reasonable cause to believe that the Fire Department violated any state or federal law, he is not protected by Labor Code section 1102.5.

2. Providing documents without a subpoena

Petitioner admits that he provided documents to opposing counsel in the Chou litigation without permission from his superiors. The Commission found that a number of the documents sent by petitioner were proprietary in nature and were not obtained through a public records request, including internal department e-mail and a September 18, 2000 memo from petitioner. The Commission noted that the inclusion of the September 18, 2000 memo was "particularly troublesome since [petitioner] had been suspended for five days for sending that memo."

Fire Department guidelines provide specific procedures for the release of documents, including certain public records documents, to the public, to investigators, attorney and/or the media. The Department rules specifically state that a request for documents in relation to a civil lawsuit must be in the form of a subpoena or by a request for production of documents. By releasing these records to attorney Staten without a subpoena, petitioner violated this rule and deprived the County of the opportunity to review those documents for legal grounds which might preclude discovery. Petitioner jeopardized the County's ability to defend itself by failing to follow established procedures.

Moreover, petitioner provided the documents to opposing counsel after already having been suspended for producing and disseminating correspondence expressing his personal opinions without the authority of his chain of command. Petitioner had been cautioned repeatedly to maintain a clear and distinct separation between his duties as Supervising Health Hazardous Materials Specialist and his personal views and activities. Despite these instructions, petitioner volunteered documents to opposing counsel, without a subpoena and without permission from his chain of command.

The Commission and the Superior Court each concluded that the Fire Department's decision to discharge petitioner was reasonable in light of the evidence. As Supervising Hazardous Materials Specialist, petitioner was expected to act in a manner which would not discredit the Fire Department. Instead, petitioner violated the Standards of Behavior and compromised the Department's trust in him by disseminating letters expressing his unreasonable personal opinions regarding the legality of the 1991 transfers, and by sending documents to opposing counsel during litigation without a subpoena or permission from his superiors. As the Superior Court stated: "Petitioner's legal position is bizarre, but his insubordination is not harmless. He actively seeks to undermine the very work that he is doing by claiming that it [is] illegal and is therefore of no force or effect. His actions are acts of disloyalty, and he strives to render his own work ineffective and meaningless. It was neither an abuse of discretion nor a violation of his rights to terminate his employment."

In sum, substantial evidence supports the trial court's findings that petitioner's failure to abide by Fire Department rules and the specific instructions of his superiors amounted to insubordination.

DISPOSITION

The judgment is affirmed.

We concur: TURNER, P. J., KRIEGLER, J.


Summaries of

Gillaspy v. Los Angeles County Fire Dept.

California Court of Appeals, Second District, Fifth Division
Mar 10, 2008
No. B200882 (Cal. Ct. App. Mar. 10, 2008)
Case details for

Gillaspy v. Los Angeles County Fire Dept.

Case Details

Full title:RICHARD GILLASPY, Plaintiff and Appellant, v. LOS ANGELES COUNTY FIRE…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Mar 10, 2008

Citations

No. B200882 (Cal. Ct. App. Mar. 10, 2008)