|Officer firing ruled justified by Court|
|Written by Michael P. Stone and Melanie C. Smith|
Disciplinary settlement agreements are a common, wholesome, and important part of the internal discipline process for peace officers. An officer may, for example, agree to accept the misconduct charges against him in exchange for a reduced penalty. In some cases, language is added to the agreement providing that if the officer is found to have repeated the misconduct or committed other serious misconduct, a certain result will occur, such as termination.
In this scenario, the officer will still be able to challenge any future misconduct findings through an administrative appeal, as is his right under Government Code § 3304(b), before the threatened future penalty takes effect.
But what if the agreement contains a “last chance, sudden death” provision that the officer shall immediately “resign” if the Chief of Police sustains future misconduct charges against him?
This was the question in Lanigan v. City of Los Angeles (2011) 199 Cal. App. 4th 1020. The Court of Appeal in that case upheld a settlement agreement that provided for immediate removal of the officer upon the Chief sustaining future misconduct charges, effectively waiving the officer’s right to administratively appeal the future charges before his removal under the agreement took effect.
We petitioned the California Supreme Court for review of that case, arguing that the Court of Appeal’s ruling ran contrary to the Public Safety Officers Procedural Bill of Rights Act (“POBRA”), Government Code § 3300 et seq., and established case law regarding POBRA rights. On January 11, 2012, the Supreme Court denied review, and the Lanigan decision remains, at least for now, good law.
Factual background and trial court decision
Lanigan, an officer for the Los Angeles Police Department, entered into the agreement to avoid a recommended termination for a 2006 incident in which he allegedly harassed and acted disrespectfully towards an on-duty officer from another agency. Under the agreement, he received a 22-day suspension and agreed to “resign” from the Department upon the receipt of any future complaints, sustained by the Chief, for acts of harassment towards officers of an outside agency or failure to cooperate with officers of an outside agency. As a condition of the agreement, he was required to sign a resignation form, which was to be held in abeyance and “accepted” by the Chief if future complaints were sustained.
In the LAPD, the procedure for major disciplinary action is that the Chief first sustains the complaint, which is then filed with the Police Commission, and the officer is sent to a Board of Rights where the disciplinary charges will be adjudicated before a penalty is actually imposed. This serves as the officer’s administrative hearing for the purposes of § 3304(b). But the agreement signed by Lanigan did not provide that the “resignation” would be effective upon a Board of Rights determination that the future misconduct charges were founded, but rather on the Chief’s act of sustaining the charges in the complaint, with no reference to a subsequent Board of Rights. The effect of this was that, by agreeing he would immediately be removed from employment upon the Chief’s decision to sustain future charges, Lanigan waived his right to have the charges adjudicated at an evidentiary hearing.
In 2008, Lanigan appeared off-duty at a hospital with a severe hand laceration. A new complaint alleged that he became disruptive in the emergency room, and Sheriff’s deputies were called. While his commanding officer immediately determined nothing in the new case was the type of misconduct referenced under the settlement agreement, and none of the Sheriff’s deputies claimed Lanigan was uncooperative, a military endorsement was added, including a new charge that the officer “failed to cooperate” with the deputies. The Chief then sustained the complaint and “accepted” Lanigan’s resignation, and Lanigan was summarily removed without any appeal or review.
We petitioned for a writ of mandate in Superior Court. The trial court granted the petition, ruling that the waiver of Lanigan’s right to administrative appeal was invalid, and ordered Lanigan reinstated. The trial court’s decision was based on Farahani v. San Diego Community College District (2009) 175 Cal. App. 4th 1486, which invalidated a “last chance, sudden death” agreement between a community college professor and his employer, the community college district. Farahani was accused of making unwelcome sexual advances towards students and staff, and signed a settlement agreement under which he would accept a salary reduction and promise to refrain from sexual harassment and similar conduct for 18 months, and the District would have the right to terminate Farahani’s employment without issuance of charges and right of appeal under the Education Code if Farahani failed to comply with the agreement. The District then received new sexual harassment complaints against Farahani and terminated his employment without right of appeal.
The Court of Appeal decision and denial of Supreme Court review
The City appealed the trial court’s ruling in the Lanigan case, and the Court of Appeal reversed, holding that Farahani was inapplicable to Lanigan because the Education Code contains a provision banning waivers of teachers’ procedural rights - and POBRA contains no such provision.
Still, we argued that Lanigan’s waiver was invalid under Civil Code § 3513 and the California Supreme Court’s ruling in County of Riverside v. Superior Court (Madrigal) (2002) 27 Cal. 4th 793. Civil Code § 3513 provides, “Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.” Madrigal held that POBRA is a law established for a public reason within the meaning of § 3513, and that therefore, “like many other statutory schemes enacted for the protection of a class of employees,” the provisions of POBRA are “not subject to blanket waiver.” 27 Cal. 4th at 804.
Madrigal, a 4 to 3 split decision, further held that a narrow waiver of POBRA rights was permissible. We argued in Lanigan that Madrigal must be limited to its facts - a specific, peculiar set of circumstances involving a City of Perris police officer who sought employment with the Riverside Sheriff’s Department when Perris disbanded its Police Department and contracted with the Sheriff’s Department for law enforcement services. Madrigal was hired on a probationary basis by the Sheriff’s Department, pending the results of a background investigation, and signed a waiver of the right to see any part of the background report. This is standard when applying for employment as a peace officer, except in this case Madrigal was hired before the background was completed, and the waiver therefore implicated his right to view and respond to adverse comments under Government Code § 3305 and § 3306. The Supreme Court held that in this specific situation, a limited waiver was permissible and had a logical basis in public policy:
The County, however, once again makes a distinction between investigation files relating to conduct prior to employment and files relating to conduct during employment. This distinction applies here, the County argues, to preserve Madrigal’s rights under the Bill of Rights Act with respect to all matters except those matters that arose prior to his employment with the County. To that limited extent, we agree with the County that an employee may waive the protections of the Bill of Rights Act. Where the employee’s waiver is limited to an investigation of matters that arose prior to employment, and where the waiver expires after one year, so the employee is not subject to continuing investigation long after being hired, enforcement of the waiver would not particularly undermine the public purpose of the Act. Rather, in such a case, enforcement of the waiver would serve that purpose by facilitating an earlier hiring date for new peace officers who are transferring from other agencies.
27 Cal. 4th at 806 (bold added, italics in original). The Court further limited its holding by adding that “a waiver of this kind should only be sought in the case of an officer, like Madrigal, who is already a peace officer at the time of the waiver and is merely applying to transfer from one agency to another.” Id.
Despite this language in Madrigal specifically limiting its holding to its facts, the Court of Appeal in Lanigan concluded that Lanigan’s waiver was the type of permissible “limited waiver” contemplated by Madrigal.
In our opinion, nothing could be broader than the waiver of the right to appeal future misconduct charges based on events that have not even occurred. We take no issue with a disciplinary settlement agreement where an officer gives up the right to appeal specified pending charges in exchange for negotiated discipline. The officer is aware of the charges and evidence against him and agrees to accept the charges in exchange for a reduced penalty in that specific case. Nothing in this scenario operates to threaten future unilaterally-imposed job loss. A Lanigan-type agreement is an entirely different beast.
The Court of Appeal’s ruling expressed the belief that Lanigan reaped the benefit of this agreement because it allowed him to keep his job following the 2006 incident, and the occurrence or nonoccurrence of future charges and discipline was 100% within his control because it depended on his conduct. Essentially, it was the Court’s opinion that if Lanigan had just kept his nose clean, he could have avoided this mess. But this ignores the fact that this kind of agreement allows the Department to terminate the employee for supposed future misconduct regardless of whether the charges have any real basis in fact - because, of course, there is no administrative appeal available for the employee to test the Department’s evidence. The Department could bring completely baseless charges, and the employee would have no recourse. For this reason, any argument that the waiver is “limited” because it only concerns a certain type or category of future misconduct, is misleading because the Department is at its leisure to drum up future allegations of that type of misconduct without having to prove those charges at a hearing.
There is enormous opportunity for abuse of this type of agreement. Regrettably, the California Supreme Court denied review of the Court of Appeal’s ruling, and this kind of “last chance, sudden death” settlement agreement remains valid and enforceable.
What this means for peace officers in California
We anticipate that the immediate result of the Lanigan case is that the LAPD and many other law enforcement agencies in California will make more frequent use of these agreements now that they have been blessed by the appellate courts. Undoubtedly, these agreements can be an attractive solution to employees facing termination, as it allows the employee to keep his or her job, at least in the short term. Indeed, an employee facing the almost certain prospect of being fired and out on the street will feel like he has no choice but to sign an agreement (the Court of Appeal held that this circumstance still does not render the agreement invalid).
Law enforcement officers confronted with these agreements need to understand what the likely ultimate result will be: removal from employment at some unknown point down the road, with no recourse to an administrative appeal or to the courts, even when the future misconduct charges do not appear to be supported by the evidence. The power to determine whether misconduct has occurred, and whether it is the type of misconduct specified in the agreement, rests solely with the agency’s administrators.
In the grander scheme of things, we must ask, what does this mean for other POBRA rights and the Madrigal decision? Where Madrigal managed to shove its foot in the door to waivers of POBRA rights, Lanigan would seem to have blown the door wide open, expanding the meaning of “permissible, limited waiver” far beyond what we believe Madrigal intended. Whatever the Civil Code may have to say about it, POBRA rights may, apparently, be waived by private agreement. With Lanigan as precedent, we may expect to see more expansive waivers of POBRA rights permitted by courts in the future. We cannot agree that this advances the policy considerations behind POBRA, that “effective law enforcement depends upon the maintenance of stable employer-employee relations, between public safety officers and their employers.” Government Code § 3301.
Clearly, POBRA must now be amended to prohibit broad waivers of the rights contained therein, and to abrogate the Lanigan decision. One option is to add a provision just like the one found in Education Code § 87485: “[A]ny contract or agreement, express or implied, made by any employee to waive the benefits of this chapter or any part thereof is null and void.” In the Court of Appeal’s decision, this was what distinguished Lanigan from Farahani. However, the language of this prohibition seems to us to be too broad, as it could be construed to bar the ordinary and perfectly wholesome type of settlement agreement where an officer gives up his right to an administrative appeal in one specific case and accepts the charges in exchange for a negotiated lower penalty. POBRA should be amended to bar expansive waivers that leave officers unprotected and at the mercy of the Department - which, after all, is the problem POBRA was meant to prevent.
Michael P. Stone is the firm’s founding partner and principal shareholder. He has practiced almost exclusively in police law and litigation for 32 years, following 13 years as a police officer, supervisor and police attorney.
Melanie C. Smith is an associate with the firm and is a graduate of Loyola Law School, Los Angeles.