Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County Super. Ct. No. 01CC06179, David P. Yaffee, Judge.
Lynberg & Watkins, Norman J. Watkins, David H. Ryan, S. Frank Harrell, and Elaine M. Adam for Real Parties in Interest and Appellants Anthony Rackauckas and County of Orange.
No appearance for Defendant and Respondent.
Corey W. Glave for Plaintiff and Respondent Lyle S. Wilson.
OPINION
MOORE, J.
This case arises against a backdrop of political intrigue and purported cover-ups. Lyle S. Wilson, a veteran investigator for the Orange County District Attorney’s Office, was investigating Patrick DiCarlo, a personal friend and supporter of District Attorney Anthony Rackauckas, for purported violations of federal and state securities laws. Rackauckas ordered that Wilson terminate the investigation, but because he was concerned about a possible internal cover-up and the obstruction of justice, Wilson failed to comply. Furthermore, when told to turn over the DiCarlo file to his supervisor, Wilson covertly provided authentic-looking copies of the documents and a recorded interview tape and kept the originals. After the supervisor destroyed the purported originals, Wilson lied about still having file materials in his possession. As the water got hotter, he eventually leaked information about the investigation to the press. Wilson was fired in 2002 for insubordination, untruthfulness, and media policy violation.
The information in this paragraph is taken from an October 10, 2006 arbitration opinion and award.
An arbitrator handling the administrative review opined that he had no authority to address the legal issue of whether termination on any of the three grounds was time-barred under Government Code section 3304, subdivision (d). Having made no determination on the statute of limitations issue, the arbitrator found that Wilson had been fired for reasonable cause.
After the arbitration award was issued, the superior court determined that the Government Code section 3304, subdivision (d) statute of limitations barred termination on the ground of insubordination. Because the court was unable to determine whether the arbitrator would have found discharge reasonable on only the two grounds of untruthfulness and media policy violation, the court, in 2008, entered a judgment and issued a peremptory writ of mandate directing the County of Orange and Rackauckas (collectively, the County) to vacate the 2002 discharge of Wilson. The County did not appeal from the judgment.
Following issuance of the writ, the County notified Wilson that his personnel file was being amended retroactively to show that he had been terminated as of December 30, 2002 on the two grounds of untruthfulness and media policy violation. The court thereafter entered an order stating that the County had violated the writ, and that the attempt to backdate the discharge on solely two grounds was an attempt to deprive Wilson of his administrative remedies to challenge a new discharge and to seek back pay due to the court-ordered vacation of the 2002 discharge. The County appeals from the order.
None of the County’s arguments change the fact that the court, in its judgment and peremptory writ, clearly directed the County to vacate its December 30, 2002 discharge of Wilson. The County failed to appeal from the judgment. It is now bound to comply with that directive. Substantial evidence supports the court’s conclusion that the County failed to comply with the writ. That is the solitary issue that we address in this opinion. We do not consider any collateral issues concerning the County’s further handling of Wilson’s employment matters. The order is affirmed.
I
FACTS
A. Termination and Preliminary Proceedings:
Wilson undertook employment with the Orange County District Attorney’s Office on December 2, 1989. On February 16, 2001, Wilson, an investigator with the Orange County District Attorney’s Office, was placed on administrative leave. On May 7, 2001, he requested an administrative review of the matter. Wilson later filed a petition for a writ of mandate, under Code of Civil Procedure sections 1085 and 1086, requesting that the County be directed to provide him with an administrative review in conformity with Government Code section 3304, subdivision (b).
The Orange County Superior Court thereafter issued an order recusing the entire bench, because Rackauckas was previously a judicial officer of that court. The matter was then assigned to Judge David Yaffe of the Los Angeles County Superior Court.
On October 25, 2002, the County sent Wilson a notice of intent to discharge on the grounds of insubordination, untruthfulness, and violation of the Orange County District Attorney Media Policy. Wilson was terminated on December 30, 2002. He then filed an appeal before an arbitrator, pursuant to a memorandum of understanding between the Association of Orange County Deputy Sheriffs and the County of Orange.
A March 4, 2003 minute order was entered in the writ proceedings stating that the petition was stayed unless and until amended to plead either exhaustion of administrative remedies or facts showing exhaustion was not required. On August 8, 2003, the court granted Wilson leave to file an amended supplemental petition for a writ of mandate alleging a claim pursuant to Government Code sections 3305 and 3309.5.
Government Code section 3305 provides in pertinent part: “No public safety officer shall have any comment adverse to his interest entered in his personnel file... without the public safety officer having first read and signed the instrument containing the adverse comment indicating he is aware of such comment....” Government Code section 3309.5, subdivision (a) provides: “It shall be unlawful for any public safety department to deny or refuse to any public safety officer the rights and protections guaranteed to him or her by this chapter.”
Proceeding on another track, arbitration proceedings began before arbitrator Howard S. Block. Opening statements were made on August 25, 2003. The County stated that “pursuant to Article 10 of the applicable MOU, the issue in this case would be whether Lyle Wilson was discharged by the District Attorney’s office for reasonable cause. If not, to what remedy is the Appellant, Lyle Wilson, entitled under the provisions of Article 10, Section 8 of this MOU.” Further hearings in the arbitration proceedings were held in August 2003 and in March and August 2004.
Wilson moved that the arbitration proceedings be dismissed and he be reinstated to his position because the County did not complete its investigation within the time permitted by Government Codesection 3304, subdivision (d). The arbitrator denied the motion in October 2004, stating: “[T]his Arbitrator’s jurisdiction is limited to what the parties have authorized him to decide, namely, whether Mr. Wilson was discharged for reasonable cause. The parties have not authorized the Arbitrator to decide the statute of limitations question which arises under the [Public Safety Officers Procedural Bill of Rights] Act [Gov. Code, § 3300 et seq.].”
Government Code section 3304, subdivision (d), as in effect at the time, provided in pertinent part: “[N]o punitive action... shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.... In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed disciplinary action within that year....”
Even though the administrative appeal was not then complete, in December 2004, Wilson filed, in the writ proceedings, a motion for summary adjudication based on the statute of limitations issue. Wilson asserted that his termination was time-barred under Government Code section 3304, subdivision (d). In February 2005, the motion for summary adjudication was denied because there were triable issues of material fact concerning tolling and nexus issues.
B. Arbitration Award:
Further hearings in the arbitration proceedings took place in April and May 2006. Then, on October 10, 2006, the arbitrator rendered his decision addressing two questions: “Was Lyle Wilson discharged for reasonable cause?” and “If not, to what remedy is Wilson... entitled under the provisions of Article X, Section 8 of this MOU?”
As an introductory observation, the arbitrator stated: “The main focus of this case is upon the acts of alleged misconduct by Wilson. However, to fully comprehend Wilson’s actions a preliminary word or two is in order concerning the questionable decision by District Attorney Rackauckas to retain jurisdiction of the DiCarlo matter even though that represented a conflict of interest because DiCarlo was a close personal friend — a factor that undoubtedly influenced Rackauckas’ decision to summarily remove Wilson from the investigation after his initial April 3, 2002 interview of DiCarlo. Wilson’s removal from the investigation contributed to his mindset of a cover-up — a suspicion that influenced Wilson’s view of the case but [that he] was unable to prove.”
In addressing whether Wilson had been discharged for reasonable cause, the arbitrator observed that Wilson had been discharged for three reasons—insubordination, untruthfulness, and violation of media policy. With respect to insubordination, the arbitrator noted that the charge was based on the assertion that Wilson continued to press the DiCarlo investigation after he had been told to cease. The arbitrator concluded that the evidence supported the charge.
The arbitrator next turned to the untruthfulness charge. As the arbitrator relayed: “Wilson concedes that he was untruthful to Supervising Investigators Barry Foye and Randy Sorley when he told them that all copies and original tape recordings of the Patrick DiCarlo interview were given to his Supervisor (Barry Foye). Wilson made the copy he returned to Foye to look like the original in order to deceive Foye into believing he was getting back an original and informed Foye that no copies had been made. Subsequently, when Commander Mike Major asked Wilson whether copies of the DiCarlo file remained with Foye and, therefore, were destroyed, Wilson replied ‘Yes.’ Wilson now admits this was a lie because he was still in possession of the original file. Yet Wilson led Major to believe that as far as he knew, the entire file had been destroyed.” The arbitrator concluded, “[Wilson’s] Closing Brief also argues that: ‘It is appropriate to “con the con” when a peace officer does not know who to trust even if that distrust is aimed at superiors because of the oath taken.’... This concept did not justify Wilson’s decision to ‘con his supervisors’ in the instant case.”
With respect to the media policy violation charge, the arbitrator noted that a reporter with the Orange County Register had contacted Wilson, claiming to have information to the effect that Wilson’s personnel file showed he had botched the DiCarlo investigation. Wilson then obtained supervisor approval to show the reporter his personnel file. However, when Wilson spoke to the reporter, he did more than disclose his personnel file, he also disclosed details of the DiCarlo investigation and made remarks critical of Rackauckas. In short, the arbitrator concluded that Wilson had indeed violated the media policy.
In making his concluding observations, the arbitrator noted he was “mindful that Wilson [was] a long term employee with a good record and [was] very sincere in his belief that DiCarlo violated Securities laws.” He continued on: “While District Attorney Rackauckas should have referred the DiCarlo case to an outside agency because of his personal relationship with DiCarlo, his failure to do so did not relieve Wilson of his responsibility to conform his conduct to acceptable standards.” He also stated: “It is truly an unpleasant task for this [a]rbitrator to sustain the termination of a well-meaning employee like Mr. Wilson but the facts are too stubborn to conclude otherwise.” Finally, the arbitrator concluded: “Based upon a careful consideration of all of the evidence and argument it is the decision of the [a]rbitrator that Lyle Wilson was discharge[d] for reasonable cause.”
C. Trial Court Rulings:
On February 8, 2008, a hearing was held on Wilson’s petition for a writ of mandate pursuant to Code of Civil Procedure sections 1085 and 1086. The minute order on the hearing observed that the arbitrator had determined that he did not have the authority to decide whether any of the claims against Wilson were time-barred under Government Code section 3304, subdivision (d). In addressing that unresolved issue, the minute order stated that “[p]unitive action against Wilson for insubordination was... untimely under Government Code section 3304 (d).” It also said that punitive action against Wilson with respect to the untruthfulness and media policy violation charges was timely. However, the order also stated: “Because it cannot be determined from the arbitrator’s decision whether he would have upheld Wilson’s discharge if one of the three acts of misconduct were time barred, Wilson is entitled to the issuance of a writ of mandate requiring his employer to vacate its order discharging Wilson and remanding the matter to respondents for such further proceedings as they determine to take, consistent with the decision of the court.”
A March 14, 2008 judgment decreed that: “[The County] violated [Government] Code § 3304(d) by taking punitive action against [Wilson] for insubordination. [The County] did not violate [Government] Code § 3304(d) by taking punitive action against [Wilson] for untruthfulness and for violation of [the County’s] media policy. A writ of mandate will issue commanding [the County] to vacate [its] decision discharging [Wilson] and remanding this matter to [the County] for further action consistent with this judgment.” (Capitalization omitted.)
A peremptory writ of mandate was thereafter issued commanding the County “to vacate [its] decision discharging [Wilson], and to take such further action as [it deems] proper, consistent with the judgment of this court.” (Capitalization omitted.) It was also ordered to file a return to the writ showing what it had done to comply.
In its return to the writ, the County disclosed that it had sent Wilson a notice dated May 2, 2008 stating: “[Y]our personnel file will be amended to reflect effective December 30, 2002 that the grounds of your discharge are untruthfulness and violation of the Orange County District Attorney’s media policy.”
Wilson filed an opposition to the return. He requested that either the County be compelled to reinstate him to his former position or the matter be remanded to the arbitrator for a determination of whether the termination would have been made for just cause based exclusively on the grounds of untruthfulness and violation of media policy.
On July 28, 2008, the court entered an order stating: “The decision by [the County] to discharge [Wilson] for two reasons instead of three are within the discretion of the District Attorney and does not violate the writ of mandate issued by this court. [¶] The return further informs the court, however, that [the County has] attempted to backdate [its] discharge of [Wilson] seven and a half years, to December 30, 2002. Such attempt to backdate the discharge on only two grounds violates the writ because it is an attempt to deprive [Wilson] of his administrative remedy to challenge the new discharge and to deprive him of whatever right to back pay he would have if the 2002 discharge is vacated as ordered by the court and a new discharge order is made.” The order also provided: “Pursuant to section 1097 of the Code of Civil Procedure, the court orders that the attempt by [the County] to backdate [its] decision to discharge [Wilson] for two reasons instead of three, to any date prior to May 2, 2008, is null and void.” The County appeals from the order.
II
DISCUSSION
A. Framing of Issues and Standard of Review:
“Upon the trial court’s issuance of its judgment granting the peremptory writ, the [public entity] had two options available to it: either to appeal that judgment or to comply with it. To the extent that the [public entity] voluntarily elected to follow the latter course, it waived its right to appeal. [Citations.]” (City of Carmel-by-the Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964, 970.) Since the County chose to comply with the judgment and the writ, “we do not have before us the question of the validity of the trial court’s judgment granting the writ. Our concern is with the [County’s] response to it and the trial court’s assessment of and reaction to that response.” (Id. at p. 972.)
Of course, “Code of Civil Procedure section 1097 provides in part that when a peremptory writ has issued... the court ‘... may make any orders necessary and proper for the complete enforcement of the writ.’ It is [thus] well settled that the court which issues a writ of mandate retains continuing jurisdiction to make any order necessary to its enforcement. [Citations.]” (City of Carmel-by-the Sea v. Board of Supervisors, supra, 137 Cal.App.3d at p. 971.) Indeed, the court even has the authority to modify its original order so as to amplify it and aid in its enforcement. (Stoneham v. Rushen (1984) 156 Cal.App.3d 302, 310.) To the extent the question is whether the record supports a determination that the public entity has failed to comply with the writ, we review the matter for substantial evidence. (See City of Carmel-by-the Sea v. Board of Supervisors, supra, 137 Cal.App.3d at p. 974; Cosgrove v. County of Sacramento (1967) 252 Cal.App.2d 45, 50-51.)
The foregoing authorities notwithstanding, the County maintains that the standard of review is de novo, for several reasons. The County cites Shafer v. Los Angeles County Sheriff’s Dept. (2003) 106 Cal.App.4th 1388 for the proposition: “‘In determining the scope of coverage under the [Public Safety Officers Procedural Bill of Rights] Act [Gov. Code, § 3300 et seq.], [the Court of Appeal may] independently determine the proper interpretation of the statute and [is] not bound by the lower court’s interpretation. [Citation.]’ [Citation.]” (Id. at p. 1396.) However, we are not here interpreting the scope of the Public Safety Officers Procedural Bill of Rights Act. We are reviewing an order determining compliance with a writ.
The County also cites Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, in which a Code of Civil Procedure section 1094.5 petition for a writ of mandate to review an administrative order was at issue. (Talmo v. Civil Service Com., supra, 231 Cal.App.3d at p. 215.) The Talmo court held that “the majority of appellate courts review de novo the agency’s exercise of discretion in imposing a penalty.” (Id. at p. 227.) The County contends the de novo review should be applicable here, too. But Wilson did not bring a Code of Civil Procedure section 1094.5 petition; he brought a Code of Civil Procedure section 1085 petition. Furthermore, we are not concerned with an agency’s exercise of discretion in imposing a penalty. We are concerned with writ compliance.
In addition, the County says that the ruling at issue had the effect of vacating the arbitration award. By analogy to cases holding that a trial court order vacating an arbitration award, pursuant to Code of Civil Procedure section 1286.2, is reviewed de novo (see, e.g., Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 55), the County says that this ruling, too, should be reviewed de novo. However, the trial court order at issue did not vacate an arbitration award pursuant to that statute.
What we have here is a court order, made pursuant to Code of Civil Procedure section 1097, concerning the enforcement of a writ. To the extent the County is afflicted by an order that does in effect vacate the arbitrator’s award, the order at issue is contained in the judgment and in the writ. The judgment ordered the issuance of a writ directing the vacation of the December 30, 2002 discharge and the writ contained that direction. If an appeal had been taken from the judgment, some of the County’s citations to authority may have had bearing on the matter. However, here, we are concerned only with a court order concerning the enforcement of a writ.
B. Analysis:
The judgment clearly decreed that: “A writ of mandate will issue commanding [the County] to vacate [its] decision discharging [Wilson] and remanding this matter to [the County] for further action consistent with this judgment.” (Capitalization omitted.) Thereafter, the writ was issued commanding the County to vacate its decision discharging Wilson.
In response to that command, the County sent Wilson a notice stating that his personnel file was being amended to reflect that, effective December 30, 2002, the grounds of his discharge were untruthfulness and media policy violation. That notice constitutes substantial evidence of the fact that the County did not vacate Wilson’s discharge. Rather, the County retroactively amended the discharge. The trial court did not err in concluding that the County did not comply with the writ. That issue is cut and dried.
The court nonetheless chose to explain its rationale for requiring the December 30, 2002 discharge order to be vacated. The court intended for Wilson to have an opportunity to seek back pay. However, if allowed to stand, the County’s action of amending the discharge, and backdating the amended discharge, rather than vacating the discharge as ordered, could be construed to cut off that opportunity, thwarting one of the objectives of the writ.
Having stated that substantial evidence supports the trial court’s conclusion that the County failed to comply with the writ, we could end the analysis here. However, the County beseeches this court to enable it to terminate Wilson on the grounds of untruthfulness and media policy violation, in a manner that does not run afoul of statute of limitations issues. To this end, the County raises several issues.
First, the County argues that the trial court exceeded its jurisdiction by vacating the arbitration award. Boiled to its essence, the argument is that the arbitration award concluded that the discharge was made for reasonable cause—in other words the discharge was upheld—whereas the judgment directed that the discharge be vacated. True, but the trial court made clear that it was not passing upon the arbitrator’s findings. Rather, the trial court was passing upon a legal issue that the arbitrator had specifically determined he had no authority to address—whether the statute of limitations contained in Government Code section 3304, subdivision (d) barred termination on any of the three grounds. Having declined to order summary adjudication of the issue in 2005, the court ultimately resolved the matter in 2008. It determined that the statute of limitations had run with respect to termination on the ground of insubordination. That holding has not been challenged and therefore it stands. (City of Carmel-by-the Sea v. Board of Supervisors, supra, 137 Cal.App.3d at p. 970.)
The court reviewed the arbitration award and concluded that it was unclear whether the arbitrator would have found the discharge to have been made for reasonable cause if made only on the grounds of untruthfulness and media policy violation. Consequently, the court concluded that the December 30, 2002 discharge must be vacated. That determination also was not challenged and therefore stands. (City of Carmel-by-the Sea v. Board of Supervisors, supra, 137 Cal.App.3d at p. 970.)
But the County does not think that it should. The County emphasizes that the arbitrator found both that Wilson had been untruthful and that he had violated the media policy, and stresses that Wilson never challenged those findings. The County argues the arbitrator must have found reasonable cause for termination based on those two grounds alone. It says the order at issue on appeal in effect extinguishes the arbitrator’s findings.
Once again, we are not persuaded. It is not the order enforcing the judgment that is the source of the County’s problems. Rather, the underlying bone of contention is the judgment that requires the vacation of the December 30, 2002 discharge order. The County failed to challenge the judgment and cannot now complain about the effect of the judgment, or its enforcement, on the arbitration award.
The County also contends that the order enforcing the writ precludes the County from exercising its discretion to terminate Wilson. Indeed, the judgment decreed that the County’s decision discharging Wilson be vacated and that the matter be remanded to the County “for further action consistent with this judgment.” (Capitalization omitted.) The peremptory writ likewise commanded the County to vacate the discharge “and to take such further action as [it deemed] proper, consistent with the judgment of this court.” (Capitalization omitted.) Neither the judgment nor the writ specified what further action the County could take with respect to Wilson, but clearly that further action did not include backdating the order discharging Wilson rather than vacating it.
The County now complains that it is precluded from terminating Wilson on the grounds of untruthfulness and media policy violation because the Government Code section 3304, subdivision (d) statute of limitations would bar a current-day termination on those grounds. If the County wanted the judgment to include language somehow permitting a retroactive termination based on only two grounds, it should have sought clarification of the judgment at the time, or should have taken an appeal from the judgment. Rather than risking an adverse clarification or a loss on appeal, it would appear that the County chose to game the system by backdating an amended discharge order and hoping it would fly. As we have said, substantial evidence supports the court’s determination that this action did not comply with the writ. That being the case, we affirm the order. However, we express no opinion as to what avenues are now available to the County to address the Wilson matter.
III
DISPOSITION
The order is affirmed. Wilson shall recover his costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.