Apoa v. City of Alhambra Police Dept.

• Decision Date: 08 December 2003
• Docket Number: No. B160896.,B160896.
• Citation: 113 Cal.App.4th 1413,7 Cal.Rptr.3d 432
• Court: California Court of Appeals Court of Appeals
• Parties: ALHAMBRA POLICE OFFICERS ASSOCIATION et al., Plaintiffs and Appellants, v. CITY OF ALHAMBRA POLICE DEPARTMENT et al., Defendants and Respondents.

7 Cal.Rptr.3d 432

113 Cal.App.4th 1413

ALHAMBRA POLICE OFFICERS ASSOCIATION et al., Plaintiffs and Appellants, v. CITY OF ALHAMBRA POLICE DEPARTMENT et al., Defendants and Respondents.

No. B160896.

Court of Appeal, Second District, Division 5.

December 8, 2003.

Review Denied March 30, 2004.

Lackie & Dammeier, Dieter C. Dammeier and Michael A. Morguess for Plaintiffs and Appellants.

Joseph M. Montes, City Attorney; Burke, Williams & Sorensen, Timothy L. Davis and H. Esther Kim for Defendants and Respondents.

MOSK, J.

Plaintiffs and appellants the Alhambra Police Officers Association (APOA) and Officer Robert Torrance (Torrance) (collectively appellants) appeal from a judgment denying their petition for writ of mandate seeking remedies for alleged violations of the Public Safety Officers Procedural Bill of Rights Act (Gov.Code, § 3300 et seq.¹) (the Act) by respondents the City of Alhambra Police Department and Larry Lewis, in his capacity as Chief of the Alhambra Police Department (collectively the APD). We hold that Torrance may not challenge the discipline to which he agreed as part of a negotiated settlement; that the Act was not applicable to a criminal investigation by an outside agency; and that Torrance could be disciplined for removing and returning evidence to an officer even if he was representing that officer. Therefore, we affirm the trial court's denial of the petition for writ of mandate.

FACTUAL AND PROCEDURAL BACKGROUND

On approximately January 30, 2001, the APD received a citizen complaint alleging that APD Officer Benny Marquez (Marquez) had sexually assaulted her following a traffic stop. The APD commenced an "internal affairs" investigation and placed Marquez on administrative leave. The chief of the APD asked the Los Angeles County Sheriff's Department (Sheriff's Department) to conduct an independent criminal investigation of Marquez and suspended the APD internal affairs investigation of Marquez during the pendency of the outside investigation.

Marquez contacted fellow APD officer Robert Orozco (Orozco), who arranged a meeting for Marquez with Torrance, the vice-president of the APOA. The APOA is the employee organization that represents APD police officers. It provides representation to its members, who, under the Act, are entitled to such representation in connection with administrative investigations. (§ 3303, subd. (i).)

Marquez, Orozco, and Torrance met to discuss Marquez's suspension. At that time Marquez said he recalled that when he had been at the police station he threw away a piece of paper with a female driver's telephone number on it, and asked Orozco and Torrance to retrieve the piece of paper. Torrance retrieved the document from the wastebasket at the police station and gave it to Orozco to deliver to Marquez.

As part of its investigation, the Sheriff's Department conducted and recorded an interview of Torrance on March 14, 2001. The interviewers told Torrance that they were criminal investigators from the Sheriff's Department and that they were interviewing Torrance as a witness in their investigation of Marquez. The investigators reminded Torrance that the APD had a policy of cooperating with other agencies in criminal investigations but that Torrance was under no obligation to speak with them.

Torrance told the Sheriff's Department investigators that Marquez initiated a meeting with him after being suspended. According to Torrance, Marquez said that the only reason he could think of for being suspended was a prior traffic stop with a female motorist, and Marquez described to Torrance his encounters with the woman, including kissing her. Torrance told the investigators that Marquez recalled throwing away a piece of paper containing the woman's phone number and was concerned because the fact that she wrote down her telephone number might be helpful to him. Torrance admitted retrieving the document at Marquez's request and giving it to Orozco for transmittal to Marquez.

After the Sheriff's Department investigation of Marquez had concluded, Torrance became the subject of an APD internal affairs investigation and was interrogated by the APD. At the interrogation Torrance's attorney asked for, but was refused, a transcript of the March 14, 2001 Sheriff's Department interview.

At the conclusion of the internal affairs investigation, the APD gave Torrance notice of a proposed disciplinary action — dismissal — based on four charges. The notice stated that by retrieving the slip of paper and causing it to be returned to Marquez, Torrance violated APD procedure when he did not "prepare and/or maintain" prescribed records (charge 1) and when he did not "book" the document into evidence (charge 4). The notice also contained the allegation that Torrance's failures to turn the paper over to his supervisors, to notify them that the paper existed and that Marquez had asked him to retrieve it, and to share his knowledge of facts pertaining to the investigation constituted a violation of the APD's rule against concealing pertinent information from supervisors (charge 2). The final allegation was that Torrance's conflicting answers in different interviews demonstrated that he had violated APD rules and regulations and its policy of truthfulness (charge 3).

Torrance exercised his right to an administrative appeal before the Alhambra police chief. At that hearing, Torrance, with counsel, was permitted to present evidence and to argue against the proposed discipline.

Following the administrative hearing, Torrance, through his counsel, negotiated and agreed to accept a final determination of discipline. Torrance agreed to be suspended from duty for 240 hours, placed on probation for six months, and subjected to a reduction in pay for 12 months. The agreement included findings that the four disciplinary charges were sustained, although charge 3 was sustained as to violations of APD rules rather than untruthfulness. As part of the final determination, Torrance acknowledged that the APD's findings in its internal affairs investigation of him were true, agreed to affirm in writing that his statements to Sheriff's Department investigators were true, and "agree[d] with the discipline" imposed by the APD. Torrance also waived his right to appeal to the Alhambra Civil Service Commission.

Appellants then filed a petition for writ of mandate alleging that the March 14, 2001 Sheriff's Department interview of Torrance was an interrogation; that Torrance was denied his rights under the Act when his counsel was not permitted to review the record of the March 14, 2001 interview; and that Torrance could not be punished for his conduct while acting as Marquez's representative. Appellants requested that the trial court set aside Torrance's discipline, delete all references to the discipline from Torrance's personnel files, and permanently enjoin the APD from taking adverse action against APOA members for their conduct while acting in a representative capacity under the Act.

After a hearing, the trial court denied the petition for writ of mandate. The trial court ruled that Torrance was not entitled to protection under the Act for actions taken while acting as Marquez's representative because Marquez was under criminal investigation and the Act does not cover criminal investigations. The trial court further ruled that Torrance was not entitled to representation at the March 14, 2001 interview because it was conducted by the Sheriff's Department, not the APD. The trial court rejected appellants' claim that the Sheriff's Department was the APD's de facto agent or that it acted in concert with the APD when it interviewed Torrance. Torrance and the APOA appealed.

DISCUSSION²

The Act "lists basic rights and protections afforded all peace officers by the public entities that employ them." (Shafer v. County of Los Angeles Sheriff's Dept. (2003) 106 Cal.App.4th 1388, 1396, 131 Cal.Rptr.2d 670 (Shafer).) When the Act has been violated, "the court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including, but not limited to, the granting of a temporary restraining order, preliminary, or permanent injunction prohibiting the public safety department from taking any punitive action against the public safety officer." (§ 3309.5, subd. (c)(1) [now § 3309.5, subd. (d)(1)].³) We requested supplemental briefing on the effect of Torrance's settlement of the administrative disciplinary proceedings on this litigation.

The APD argues that the petition for writ of mandate is barred by Torrance's settlement of the disciplinary proceedings. Torrance and the APOA argue that the disciplinary settlement does not limit the relief available under the Act. Alternatively, appellants maintain that an injunction against future violations of the Act is available even if the settlement precludes judicial intervention to overturn the discipline.

We consider de novo whether the Act applies. Our review of any factual findings by the trial court "is based on the substantial evidence standard of appellate review applied to trial court decisions in administrative cases." (Shafer, supra, 106 Cal.App.4th at p. 1396, 131 Cal.Rptr.2d 670.) We conclude that Torrance may not overturn by writ of mandate the discipline to which he agreed. As to the remaining relief requested in appellants' petition for writ of mandate, we need not decide whether in all circumstances the settlement of disciplinary proceedings and acceptance of discipline precludes subsequent injunctive relief for violations of the Act allegedly committed during the investigative and disciplinary proceedings that culminated in the settlement. Regardless of whether such injunctive relief is available, it was not warranted here because appellants failed to establish that the APD violated the Act.

I. Torrance may not challenge the discipline to which he agreed.

After...