Talmo v. Civil Service Com.

• Decision Date: 14 June 1991
• Docket Number: Nos. B041326,B046777,s. B041326
• Citation: 282 Cal.Rptr. 240,231 Cal.App.3d 210
• Court: California Court of Appeals Court of Appeals
• Parties: Brent TALMO, Petitioner and Respondent, v. CIVIL SERVICE COMMISSION Los Angeles County, Respondents and Appellants.

Page 240

282 Cal.Rptr. 240

231 Cal.App.3d 210

Brent TALMO, Petitioner and Respondent, v. CIVIL SERVICE COMMISSION Los Angeles County, Respondents and Appellants.

Nos. B041326, B046777.

Court of Appeal, Second District, Division 7, California.

June 14, 1991.

Green & Shinee, Inc., and Richard A. Shinee and Audrey Heller, Encino, for petitioner and respondent.

DeWitt W. Clinton, County Counsel, and Stephen R. Morris, Sr. Deputy County Counsel, for respondents and appellants.

JOHNSON, Associate Justice.

The central issue in this case is whether the civil service commission abused its discretion in upholding the discharge of a deputy sheriff who committed batteries on two prisoners, uttered threats and racial slurs against a co-employee and lied about these actions to his superiors. After hacking our way through a thicket of procedural issues, we conclude the commission acted well within its discretion in discharging Deputy Talmo.

FACTS

The commission's findings of fact are uncontested.

Deputy Talmo was discharged by the Los Angeles County Sheriff's Department for violating numerous sections of the sheriff's department's Manual of Policies and Procedures. The letter of discharge described these actions as "bizarre behavior and unprofessional conduct." Some of Talmo's conduct involved destruction of county property, such as pouring dirt in the gas tank of a county vehicle. But the more serious charges against Talmo involved abuse of jail inmates and lying about these acts to his superiors. In one instance, Talmo placed a dead gopher in the pocket of a prisoner. He then falsely denied to a superior officer he had done this act and attempted to get another deputy to lie on his behalf. In another instance, Talmo lifted up the bed of a sleeping prisoner and tipped it over causing the prisoner to fall to the floor face first and suffer a bloody nose. Talmo wrote an injury report on this incident claiming the prisoner had tipped the bed over himself in his sleep. The commission also found Talmo telephoned a jail guard and called him a "fucking snitch and nigger."

Talmo previously had been given a two day suspension for having "inhumanely handcuffed two inmates in a holding cage."

PROCEEDINGS BELOW

Talmo appealed his discharge to the civil service commission. The commission appointed a hearing officer who took evidence pertaining to the charges against Talmo. The hearing officer found Talmo had engaged in the conduct described above. She recommended, however, the penalty of discharge be reduced to a 90-day suspension.

The commission adopted the hearing officer's findings but not her conclusion. Instead the commission voted to uphold the discharge. The parties were given notice of this proposed decision and an opportunity to comment. Talmo filed objections to some of the evidentiary findings and to the decision to uphold his discharge.

Upon receiving Talmo's objections, the commission, on April 22nd, voted to adopt the hearing officer's recommendation of suspension rather than discharge. (We will refer to this as the commission's "April 22nd decision.") The commission again gave the parties notice of this decision and an opportunity to comment only on the issue of penalty. The sheriff's department objected to the proposed suspension and argued for Talmo's discharge.

On May 20th, the commission reversed itself on the issue of penalty and adopted its original position sustaining Talmo's discharge as the commission's final decision on the matter. (We will refer to this as the commission's "May 20th decision.")

Talmo filed a petition for writ of mandate under Code of Civil Procedure section 1094.5 to obtain court review of the commission's May 20th decision. Talmo contended the commission's April 22nd decision, in which it ordered a 90-day suspension, constituted the commission's final decision under its rules and the commission lacked jurisdiction to reopen the matter and issue the May 20th decision reversing the order imposing suspension and imposing discharge instead. Talmo also contended the May 20th decision upholding his discharge was an abuse of discretion because he was denied progressive discipline and treated more harshly than other deputies who had committed similar acts of misconduct.

The trial court found there was substantial evidence to support the commission's findings and that "the accusations found to have been proven are sufficient grounds for discharge." On the issue of the commission's jurisdiction to render its May 20th decision, the court found any objections to the commission's proceedings had been waived. However, the trial court also concluded the record lacked any findings pertaining to Talmo's claims he was denied progressive discipline and punished more harshly than other deputies who had committed similar acts. Therefore, the court granted a judgment ordering a writ of mandate issue directing the commission to make additional findings, through its hearing officer, on the progressive discipline and disparate treatment questions. Talmo appealed from this judgment insofar as it denied him reinstatement based on the commission's lack of jurisdiction to amend its April 22nd decision. (See Part I of the discussion below.)

On remand to the commission, the hearing officer made findings with respect to Talmo's claim he was denied progressive discipline and punished more harshly than deputies who committed similar acts of misconduct. The hearing officer found the sheriff's department normally follows the principle of progressive discipline when it punishes its deputies. She also found other deputies had engaged in pranks and horseplay similar to that engaged in by Talmo. However, as to the charges of battery, making false reports, lying to supervisors and making threats and racial slurs against a fellow employee, the hearing officer did not find similar conduct on the part of other deputies.

The commission adopted the hearing officer's original and additional findings of fact and sustained Talmo's discharge. Talmo then made a motion in the trial court for a supplemental writ of mandate directing the commission to set aside its decision upholding his discharge on the ground the commission's decision was an abuse of discretion. After briefing and argument, the trial court granted Talmo's motion and ordered a supplemental writ to issue directing the commission to reinstate Talmo subject to a 90-day suspension.

The County of Los Angeles appeals from the order granting the supplemental writ. (See Parts II--IV below.)

For the reasons set forth below, we affirm the trial court's original judgment insofar as it denied Talmo reinstatement based on the commission's lack of jurisdiction to amend its April 22nd decision. We reverse the trial court's order after judgment granting a supplemental writ of mandate directing the commission to order Talmo's reinstatement.

DISCUSSION

I. THE COMMISSION'S "NEW PROPOSED DECISION IMPOSING SUSPENSION INSTEAD OF DISCHARGE" WAS NOT A FINAL DECISION OF THE COMMISSION. THEREFORE, IT WAS SUBJECT TO REVISION.

Talmo contends the commission's April 22nd decision that he be suspended for 90 days was final under the commission's own rules and could not be further amended or reversed by the commission. Therefore, the commission's May 20th decision to discharge Talmo was null and void because it exceeded the commission's jurisdiction.

In making this argument, Talmo relies on rule 4.13(E) of the civil service commission which, at the time of these proceedings, provided:

"If either party files objections to the proposed findings and conclusions within the time specified above and the commission believes that the objections or parts thereof have validity, the commission shall amend the proposed findings and conclusions accordingly; and as so amended, they constitute the final decision of the commission." [Italics added.]

We review, briefly, the relevant procedural facts. The commission's first decision adopted the hearing officer's findings and conclusions except for the conclusion discharge was not appropriate. Instead the commission sustained the sheriff's action discharging Talmo. The parties were given notice of this proposed decision and were afforded the opportunity to file objections. Talmo filed timely objections to certain of the findings and to the decision to sustain the discharge. The sheriff did not file objections and did not respond to Talmo's objections. On April 22nd the commission sustained Talmo's objections on the issue of discharge only and issued a "new proposed decision" adopting the hearing officer's recommendation of suspension rather than discharge. The parties were afforded the opportunity to file objections to the April 22nd decision only with respect to the issue of discharge versus suspension. The sheriff objected to suspension and urged the commission to uphold Talmo's discharge. After receiving the sheriff's objections, the commission reversed its position a second time and returned to its original position upholding Talmo's discharge.

Talmo argues the commission's April 22nd decision was final as a matter of law because under rule 4.13(E) the commission can amend its proposed findings and conclusions only once "and as so amended, they shall constitute the final decision of the commission." (Italics added.) The April 22nd decision having become final, the commission lacked jurisdiction to further amend, modify, reconsider or reverse it.

If we accept Talmo's premise, that the April 22nd decision was the commission's final decision, then his conclusion, the commission lacked jurisdiction to alter it, is incontestable. ¹

It is well settled an administrative agency is bound by its own rules and regulations. (Bonn v. California State University, Chico (1979) 88 Cal.App.3d 985, 990, 152 Cal.Rptr. 267.) Under California law, a civil service commission has no inherent power to set aside an order once it is final. (Heap v. City of Los...