DON’T EXPECT HELP FROM THE COURTS IN DISCIPLINE APPEALS
DAVID KRUCKENBERG
Attorney
Messing Adam & Jasmine LLP
One of America’s fundamental values is that any person who has been wronged by the government should be able to seek justice through the courts. But as plaintiffs have frequently seen in recent cases, California courts give significant deference to state and local government decisions. A recent decision by the Second District Court of Appeals reminds us that this is especially true when law enforcement officers appeal disciplinary decisions made by their public employers.
In 2010, Deputy Meghan Pasos was one of three deputies involved in a use-of-force incident in a Los Angeles County jail facility. In her internal affairs interview, she acknowledged knowing that one of the other deputies injured an inmate during an in-cell interaction while Pasos acted as the lookout. She also acknowledged that she did not report this use of force because she was afraid of being “labeled as a rat” and suffering repercussions from her fellow deputies. But she stated that she regretted her decision and had learned her lesson. Neither of the other two deputies reported the use of force. Pasos continued to work in the jails until being placed on paid administrative leave in 2011.
Facing significant public scrutiny over reports of excessive force being used in the jails, Los Angeles County Sheriff’s Department managers felt that the behavior of Pasos and the other two deputies added to the department’s embarrassment. Managers decided to make an example of these deputies and send a clear message to employees that adhering to the so-called code of silence would not be tolerated. In 2013, the Sheriff’s Department terminated all three deputies. The department’s disciplinary guidelines provided that failure to safeguard an inmate and failure to report a use of force warranted multi-day suspensions. But the department relied on general performance and behavior policies to justify termination.
Pasos appealed to the county’s Civil Service Commission. At hearing, it was undisputed that she had never received prior formal discipline in her position. At least one witness also testified that the department had never previously terminated a deputy for failing to report another deputy’s use of force on an inmate. Nevertheless, the commission upheld Pasos’ termination because it found that her conduct was egregious, brought discredit to the Sheriff’s Department and exposed it to potential legal liability.
Pasos then filed a lawsuit in Los Angeles County Superior Court challenging the commission’s decision. On May 3, 2018, the trial court judge affirmed the commission’s factual findings against Pasos. But the judge also ruled that the commission abused its discretion by approving Pasos’ termination. The judge found that Sheriff’s Department managers (and thereby the commission) were “caught up in the whirlwind of negative publicity about inmate abuse at the jail” and decided to terminate Pasos and the other two deputies “to deflect media and public criticism.” Although managers had legitimate concerns about overcoming the “code of silence” to address inmate abuse issues, the judge ruled that they “may not discharge employees out of departmental hysteria to avoid criticism.”
It is important to note that the superior court judge in this case, the Honorable James C. Chalfaunt, is not known as a conservative stalwart. For example, in 2014, he made headlines when he ruled that local school districts and the state violated students’ constitutional and statutory educational rights by denying assistance to English language learners. In doing so, Judge Chalfaunt sided with plaintiffs represented by the ACLU and supported by the Obama administration. So, his siding with Deputy Pasos — a law enforcement officer accused of concealing inmate abuse — in her lawsuit was by no means a given. Rather, Chalfaunt’s decision in Pasos’ case indicates that he correctly focused his analysis on how county managers exercised their discretion when they decided on the level of discipline to impose.
However, the county appealed its loss in superior court. And in Pasos v. L.A. County Civil Service Commission (August 18, 2020), the Second District Court of Appeal reversed the trial court judge’s ruling. The court of appeal ruled that the judge improperly inserted his own opinion, when he was required to defer to the local government’s discretion except where “reasonable minds cannot differ on the appropriate penalty.” In support of its decision, the court cited several prior appellate decisions that require courts to consider whether an officer’s conduct resulted in or is likely to result in “harm to the public service.” Many of these prior decisions involved courts reversing actions by state and local government entities granting officers’ disciplinary appeals. In fact, one of them involved another division of the court of appeal reversing a decision by the commission to grant the termination appeal of one of the other two deputies involved in the same incident as Pasos.
Overall, the court of appeal’s decision in Pasos reinforces the principle that the courts will give significant deference to law enforcement agencies’ disciplinary decisions. This deference often goes to the extreme, relying on questionable arguments about potential “harm to the public service.” The courts ought to serve as a check against politically motivated managers and commissioners who often make arbitrary decisions that are contrary to the principles of due process and just cause. Yet, perhaps affected by the current national debate over policing, courts appear increasingly willing to bend over backward to affirm disciplinary decisions. We should not be surprised by this, since “judges read newspapers too,” as the saying goes. And in the current state of affairs, you would be hard-pressed to find many positive news stories about courts protecting law enforcement officers from unjust discipline. We can expect to see more decisions like this, affirming changes to the severity of discipline that law enforcement agencies issue their officers.
This case serves as an important reminder for law enforcement officers facing potential discipline. Although every public employee who is suspended or terminated has the option of pursuing their appeal in court, fairness — which Deputy Pasos seemed to have on her side — is no guarantee of success. For this reason, every effort should be made at the earliest stages to gather and present evidence to defend against the charges and proposed discipline. The best chance a law enforcement officer has of avoiding excessive discipline is by persuasively making their case at the internal affairs interview, the pre-disciplinary Skelly hearing and the administrative appeal.
About the Author
David Kruckenberg is an attorney with Messing Adam & Jasmine LLP and serves as a PORAC LDF panel attorney. He has a broad range of experience handling labor and employment matters in both the public and private sectors, and has successfully overturned multiple employee terminations. Additionally, David holds a certificate from the Association of Workplace Investigators (AWI-CH), the preeminent international association for workplace investigators.