Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BS117902, David P. Yaffe, Judge.
Carmen A. Trutanich, City Attorney, and Claudia McGee Henry, Senior Assistant City Attorney for Defendants and Appellants.
Lawrence J. Hanna for Plaintiff and Respondent.
BIGELOW, P. J.
The City of Los Angeles (City) terminated a Los Angeles Police Department (LAPD) officer, Gustavo Resendiz, without affording him the administrative proceedings prescribed for tenured police officers. (See L.A. Charter, § 1070 et seq.) Resendiz filed a petition for writ of mandate (Code Civ. Proc., § 1085) in which he challenged the City’s decision to terminate his employment on the ground that he had attained the status of a tenured police officer, and that he had not been, as the City maintained, a probationary police officer. The trial court granted Resendiz’s petition, and thereafter entered a final judgment calling for the issuance of a writ ordering the City to annul its decision to terminate Resendiz’s employment. The City appeals. We affirm the judgment.
Our references to the City include William Bratton, the City’s Chief of Police.
FACTS
On June 26, 2006, the City hired Resendiz as an LAPD officer, and admitted him into the City’s police academy. It is undisputed that, at the time the City hired Resendiz in June 2006, former Rule 5.26 of the City’s civil service rules required Resendiz to serve a probationary period of 18 months of service. Accordingly, it is undisputed that, at the time the City hired Resendiz in June 2006, his probationary term would have ended –– in the absence of any intervening factors –– on December 26, 2007. But there were intervening factors.
On October 15, 2006, LAPD placed Resendiz on “restricted duty” after he injured a leg at the police academy. On November 12th and 13th, 2006, LAPD granted Resendiz two days off from work to help a family member undergoing surgery. On December 1, 2006, LAPD granted Resendiz another day off from work due to stomach flu. Resendiz’s last date on restricted duty was December 12, 2006.
On December 20, 2006, LAPD delivered the following written notice to Resendiz: “Officer Resendiz’s end-of-probation date of December 25, 2007 [sic], will be extended a total of 58 days to February 17, 2008 [sic].” The notice delivered to Resendiz included a “Fact Sheet” which explained that the 58-day extension had been computed based on 55 “restricted duty work dates, ” plus 3 “restricted duty sick dates.” The primary issue in this case is whether Resendiz’s probationary period should have been extended by 55 days or 58 days. Given Resendiz’s correct “end-of-probation date” of December 26, 2007, his probationary period should have been projected to end on February 19, 2008, in the event it was extended 55 days, or on February 22, 2008, in the event it was extended 58 days. These differing end-of-probation dates are important in Resendiz’s case because the City terminated him effective February 20, 2008, that is to say, either one day after his probation ended, or two days before his probation ended.
The fifty-eighth day after December 25, 2007, is not February 17, 2008; it is February 21, 2008.
On May 19, 2007, officers from the Pomona Police Department arrested Resendiz on a charge of inflicting corporal injury on his spouse. On August 20, 2007, the criminal case against Resendiz was dismissed, at which point LAPD launched an internal investigation of the incident. On September 17, 2007, LAPD levied three departmental charges against Resendiz stemming from the incident: that he struck the victim on her face with his hand, that he became involved in a domestic violence incident which resulted in the response of the Pomona Police Department and that the domestic violence incident resulted in his arrest.
On January 16, 2008, Captain Philip Fontanetta and another officer sustained all three departmental charges against Resendiz. On January 21, 2008, Captain Fontanetta served Resendiz with a “Notice of Proposed Disciplinary Action.” The notice advised Resendiz that the proposed penalty for his conduct during the events on May 19, 2007, would be “Termination on Probation.”
On January 25, 2008, LAPD’s “Operations–South Bureau” (OSB), forwarded a note to Captain Fontanetta, stating that the OSB’s commander had “a few issues to be addressed” regarding the “adjudication” against Resendiz. The identified issues included the following: “A review of Resendiz’s TEAMS [sic] report indicates that he is a Police Officer II as of 12-26-07, making the penalty of Termination on Probation inappropriate. Please verify his status and amend if needed.” The record sheds no light on what, if anything, Captain Fontanetta did in response to OSB’s stated concerns.
On February 19, 2008, LAPD’s Chief of Police, William Bratton, signed a “Notice of Termination... of Sworn Probationary Employee” in the matter involving Resendiz. The notice stated that Resendiz’s termination “on probation” was effective “2/20/08.” It stated that he was terminated because he “struck R. Resendiz in the face, causing visible injury, ” and that he was involved in a domestic violence incident which resulted in his arrest.
Resendiz promptly filed a “liberty interest” administrative appeal with LAPD. In late February 2008, LAPD appointed Captain Steven Ruiz as the hearing officer for the appeal. In June 2008, Captain Ruiz considered Resendiz’s appeal over two days of hearings. On July 17, 2008, Captain Ruiz issued a five-page written decision which included his determination that there was insufficient evidence to support a finding that Resendiz had, in fact, struck his wife. Captain Ruiz recommended that Resendiz be reinstated.
Although we do not see an explanation of a “liberty interest” administrative appeal in the parties’ briefs on appeal, the briefs convince that a “liberty interest” appeal is not the equivalent of the administrative proceedings afforded under Los Angeles Charter section 1070 et seq.
On August 11, 2008, Chief Bratton rejected Captain Ruiz’s recommendation for the following reason: “Whether Resendiz struck his spouse with his hand... is not the sole issue for the termination of Resendiz. Resendiz’s overall behavior in the incident does not meet the standards of the [LAPD] and he shall remain terminated on probation for failure to meet standards.”
On November 17, 2008, Resendiz filed a petition for writ of mandate in the trial court. Resendiz’s petition alleged that he had become a tenured police officer prior to the date of his termination, and that, as a tenured officer, he had been entitled to the administrative proceedings set forth in Los Angeles City Charter section 1070 et seq.
On June 30, 2009, the trial court conducted a trial on Resendiz’s petition, and then granted the petition. The trial court granted the petition for the following stated reasons:
“This is another case in which the LAPD, for reasons unknown to the court, waits until what it thinks is the last possible moment to complete the discharge of a probationary employee, thereby creating, unnecessarily, a dispute as to whether the probationary status of the employee actually terminated before the employee was... discharged.... [¶] And once again the LAPD miscomputes the end of the probationary period and winds up discharging a permanent employee without affording him the administrative appeal that is required by law.
“[The City] contends that [Resendiz]’s probationary period was extended for a period of 58 days, from December 26, 2007, to February 22, 2008, because [he] was on restricted duty for a 58 day period from October 15, 2006 through December 12, 2006. (Fontanetta Declaration, Paragraph 4). The evidence presented by the parties shows, however, that during that 58 day period [Resendiz] was taken off restricted duty and counted absent on three days, November 12, 2006, November 13, 2006, and December 1, 2006 (Exhibit H to [Resendiz’s] Declaration).
“[Rule] 5.26... states that restricted duty [dates] required by a physician shall be excluded in computing the period of probation. The rule also states that in computing the period of probation the entire period of other absences shall be excluded, ‘if such period or periods, in the aggregate, exceeds seven calendar days.’”
Fairly summarizing its stated reasons for granting Resendiz’s petition for writ of mandate, the trial court ruled that the three days on which Resendiz had been absent from work on noticed family leave and sick dates should not have been excluded in computing his period of probation because those noticed absence dates did not exceed seven days. It made no difference that Resendiz’s absence dates had been surrounded by restricted duty dates.
On July 23, 2009, the trial court entered a judgment which provides that a writ would issue ordering the LAPD to annul its decision to terminate Resendiz.
The judgment further provides: “Nothing in [this] judgment limits or controls in any way the discretion legally vested in [the City].”
The City filed a timely notice of appeal from the judgment.
DISCUSSION
The fundamental question presented in this case is whether or not Resendiz was a tenured police officer at the time the City terminated his employment. This question, in turn, requires resolution of the number of days that should have been excluded in computing Resendiz’s probationary period as a police officer so as to determine the date that Resendiz’s probationary term as a police officer actually ended.
I. The October 2007 Amendment to Rule 5.26
On October 17, 2007, the City’s Board of Civil Service Commissioners amended former Rule 5.26 of the City’s civil service rules with the intent that the rule conform to the federal Family and Medical Leave Act. (See 29 U.S.C. § 2601 et seq.) Before turning to the arguments as presented in the parties’ briefs on appeal, we pause briefly to note that both Resendiz and the City, in their respective briefs on appeal, appear to cite, discuss and interpret the language of Rule 5.26 in the version as it was amended in October 2007 (hereafter Rule 5.26). If the version of Rule 5.26 as amended in October 2007 governs Resendiz’s current case, his probationary period ended much earlier than either party recognizes, namely, sometime between October and December 2007, rather than in February 2008.
More specifically, LAPD hired Resendiz on June 26, 2006. At that time, his probationary term under the language of former Rule 5.26 was set to end 18 months later, on December 26, 2007. On October 17, 2007, however, the Board of Civil Service Commissioners amended Rule 5.26 to shorten a police officer’s probationary period from 18 months to 12 months. Thus, the new, shorter 12-month probationary period adopted in October 2007 under amended Rule 5.26 may apply to police officers who were on probation at the time of the adoption of the 12-month probationary period. We believe it makes sense that it should. The terms of employment for City employees are prescribed by the City’s civil service rules. In amending Rule 5.26, the City changed the terms of employment for its employees. An existing employee’s employment should not be governed by a superseded civil service rule.
Apart from that, if amended Rule 5.26 did not apply to existing employees, then a police officer who had been hired by the City in September 2007 would serve a period of probation through March 2009 under the former version of Rule 5.26, while an officer who had been hired in November 2007 would only serve a probationary period through November 2008 under the version of Rule 5.26 as amended in October 2007. In other words, a less experienced police officer would see his or her period of probation come to an end before a more experienced police officer.
By October 2007, when Rule 5.26 was amended to prescribe a 12-month term of probation for police officers, Resendiz had already served on probation for 16 months. Stated differently, by October 2007 Resendiz’s period on probation exceeded the 12-month period under the amended version of Rule 5.26, regardless of whether 55 days or 58 days were excluded in computing his probationary period. Even assuming that a 55 day or 58 day extension was added to Resendiz’s period of probation from October 2007, LAPD still acted too late when it terminated him –– in February 2008 –– without affording him the administrative proceedings to which a tenured police officer was entitled.
We now put aside these academic observations, and turn to the City’s appeal based on the remaining parts of Rule 5.26 as amended in October 2007. A review of these parts of the rule causes us to reach the same conclusion as the trial court.
II. Resendiz’ Probationary Term
As amended in October 2007, Rule 5.26 provides: “The probationary period for persons appointed in the class of Police Officer shall be twelve months of service in that class.... However, service in any class in a restricted duty capacity that exceeds seven calendar days as required by a physician... shall be excluded in computing the period of probation. In computing the period of probation, the following shall be excluded:
“a) The entire period or periods of any absence or absences whether on leave or not, if such period or periods, in the aggregate, exceed seven calendar days....”
The City contends the legislative history underlying the October 2007 amendment of Rule 5.26 shows that two separate provisions may apply when an employee’s period of probation is computed, but, in the circumstances presented by Resendiz’s case, one of the provisions “prevails” over the other. In the City’s words: “[T]he provision for extending a [non-tenured employee’s] probationary period because of absence is the more general provision. It applies to all civil service classes set forth in Rule 5.26.... [T]he provision for extending a probationary period when the non-tenured employee is on restricted duty applies more narrowly. It only applies to probationary employees on restricted duty. [¶]... [¶] Therefore the fact that a three day absence can extend a probationary period when an employee is on restricted duty should be considered an exception to limitations that apply to the extensions of probationary periods based on absences.” According to the City, its interpretation is mandated by the established rule of statutory interpretation under which “a specific provision prevails over a general one relating to the same subject.” (Quoting Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (1999) 71 Cal.App.4th 1518, 1524.)
We reject the City’s interpretation of Rule 5.26 because the rule of statutory interpretation under which a specific provision “prevails” over a general one “applies only if the two provisions cannot be reconciled.” (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd., supra, 71 Cal.App.4th at p. 1524.) No such conflict exists in Rule 5.26.
The language of Rule 5.26(a) is not ambiguous. Under Rule 5.26(a), an employee who is on probation may be absent from work for up to seven days without having his or her period of probation extended. Absent days fewer than seven are excluded when computing the period of probation. The trial court’s construction of Rule 5.26(a) was absolutely correct.
Rule 5.26’s reference to “restricted duty” service is easily reconcilable with Rule 5.26(a)’s “absent” from service provision. Rule 5.26’s restricted duty provision reads: “[S]ervice in any class in a restricted duty capacity that exceeds seven calendar days as required by a physician... shall be excluded in computing the period of probation.” By its plain language, Rule 5.26’s restricted duty provision applies when an employee serves in a restricted duty capacity. The language found in Rule 5.26 does not support the City’s interpretation that an employee who is “absent” from work on a certain date, may also be considered to be serving the City in a restricted duty capacity.
The bottom line is that the City is correct insofar as it asserts that there are two, separate provisions governing how an employee’s period of probation is computed. But the City is incorrect insofar as it states that the restricted duty provision “prevails” over the absent from work provision. The trial court correctly interpreted Rule 5.26 to mean that dates on which an employee served on restricted duty extend a probationary period, while absences amounting to less than seven days do not extend a probationary period.
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
We concur: FLIER, J., GRIMES, J.