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Court of Appeal:
Sheriff’s Department Can’t Fire Deputy Who Repeatedly Lied
Egerton Says Policy Favoring ‘Progressive Discipline’ Renders Commission’s Imposition of 30-Day Suspension Within Its Discretion, Rejecting Contention That Dishonesty Is Incompatible With Law Enforcement Service
By a MetNews Staff Writer
The Los Angeles Sheriff’s Department has lost in its effort to persuade the Court of Appeal for this district that the county’s Civil Service Commission abused its discretion in blocking the firing of a deputy who conducted a shoddy investigation, then lied about it in a report and continued to spew falsehoods in proceedings that ensued.
Div. Three, in an unpublished opinion by Justice Anne H. Egerton, filed Monday, affirmed the denial by Los Angeles Superior Court Judge Mary H. Strobel of a writ of administrative mandamus sought by the department. She rejected the department’s position that Sheriff’s Deputy Miriam Lopez is unfit to be a law enforcement officer and that the commission’s imposition of a 30-day suspension is an inadequate response to the misconduct, pointing out:
“Department… has a policy of progressive discipline, and the 30-day suspension fell within the range recommended for the policy violations at issue.”
Lopez’s Conduct
On Feb. 15, 2018, Lopez responded to a call from the guest services representative at a Motel 6 telling of what appeared to be narcotics in a guest room that had been spotted by the manager, James Brown. Lopez was provided with a key to the room but did not enter it. Brown then went into the room—later testifying that he did so “basically because the deputy wouldn’t.”—and photographed on his cell phone white powdery substance on a table, showing the photograph to the deputy.
Nonetheless, she left, and wrote in her report: “assisted the citizen, contacted Brown, no evidence of a crime, no narcotics left in the room, disturbing party gone prior to arrival, unable to locate anyone, advised to call back.”
Brown returned to the room and found indications that a theft operation was being conducted in the room, which he reported. Evidence of such was secured by sheriff’s deputies pursuant to a warrant.
In rejecting the Sheriff’s Department position, Strobel said:
“As argued by Lopez, case law does not support the proposition that discharge is required in all cases in which a police officer is found guilty of dishonesty. The numerous cases cited by County are distinguishable and involved egregious misconduct not comparable to Lopez’s misconduct….
“The weight of the evidence supports that Lopez failed to conduct an adequate investigation and then lied about her investigatory steps afterwards. That misconduct is serious and justified significant discipline, which Lopez received in a 30-day suspension.”
Department’s View
The department, appealing from Strobel’s denial of a writ, argued in its opening brief:
“Honesty is a necessary job qualification and duty of a deputy sheriff.”
It set forth:
“Lopez never contradicted the Department’s evidence that her misconduct harmed the Department and its reputation in the community. Further, Lopez held on to her false stories during the Commission hearing. The hearing officer commented in his report that Lopez’s ‘continuing insistence at the hearing that she did not make false statements raises concerns that the conduct may recur.’…Lopez’s cryptic and well-rehearsed ‘vow’ to do better in future investigations is cold comfort: Her unacknowledged lies concerning material facts continued through her testimony.
“The Department discharged Lopez because of her character, not her investigative skills. Poor skills are correctable. In reducing the penalty, the Commission disregarded its own explicit and implicit findings and abused its discretion.”
Progressive Discipline
The commission found that Lopez’s conduct was not “so egregious or socially unacceptable as to warrant disregard of progressive discipline.” In her 12 years as a deputy, she had incurred discipline on only one previous occasion.
However, the department contended:
“[P]rogressive discipline is a notice to an employee that her conduct is unacceptable. Progressive discipline does not apply, however, when it cannot rectify the behavior and the employee will not learn from the disciplinary experience.
“This is stated not only within the Guidelines but also in case law. As the cases state, dishonesty is a character deficiency that lesser forms of discipline cannot remedy.”
Under the department’s “Guidelines for Discipline,” lying to a superior officer can result in discipline of “10 days to discharge.” Lieutenant Elisabeth Sachs repeatedly asked her if she was certain she had entered the motel room in question, and she consistently made the false statement that she had.
Egerton’s Opinion
Egerton wrote:
“[A]lthough we agree Lopez’s misconduct harmed the public service, the Commission reasonably could conclude the extent of that harm—and the potential of Lopez repeating her misconduct—did not warrant discharge under the circumstances, including Lopez’s positive performance history and her single instance of minor discipline in her almost 12-year career. We thus disagree with the Department’s contention that Lopez’s performance record, length of service, and prior discipline history were not relevant to the Commission’s decision as to the degree of discipline to impose here.”
She went on to say:
“We by no means suggest that discharge is not an appropriate penalty for dishonesty. The Commission would have acted well within its discretion had it decided to discharge Lopez. Whether the Commission’s findings also would support Lopez’s discharge is not the question before us, however. We simply conclude that, under the specific facts and circumstances here, a reasonable basis existed for the Commission’s choice of penalty. As reasonable minds could differ as to whether a 30-day suspension or discharge was the appropriate penalty, no manifest abuse of discretion occurred.”
Abuse of Inmates
The department cited three Court of Appeal decisions saying that lying can justify terminating the employment of a law enforcement officer. Egerton noted that those cases dealt with covering up the abuse of prisoners, declaring:
“Lying or looking the other way to protect deputies who physically harmed inmates simply is not comparable to what happened here….We cannot say Lopez s lies about her response to the call to service would encourage other deputies to do the same—as in the perpetuation of a code of silence— or harmed the Department’s operation and relationship with the public to the same extent as covering up the physical abuse of inmates.”
The case is County of Los Angeles Sheriffs Department v. Los Angeles County Civil Service Commission. B327545.
Jeffrey M. Hausman, Larry D. Stratton and Barbara M. D’Abusco of the Woodland Hills firm of Hausman & Sosa represented the Sheriff’s Department. Brian P. Ross of the Encino firm of Rains Lucia Stern St. Phalle & Silver, PC, acted for the commission and Lopez.
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