Civil Service Commission Abused Its Discretion by Reducing Deputy’s Discipline

Category: Fire Watch
Date: Jan 7, 2020 11:08 AM

In 2010, Los Angeles County Sheriff’s Department (Department) Deputies Mark Montez and Omar Lopez strip-searched an inmate who stole items from a commissary cart.  Lopez searched the inmate while Montez monitored the hallway to provide security.  During the search, Lopez struck the inmate multiple times with his fist.  Montez was aware of the assault but did not participate.

After the inmate threatened the commissary employee who reported the theft, Lopez took the inmate to a control booth and shoved his face into a wall, causing severe bleeding.  Montez was not present during the second assault, but he arrived shortly thereafter.  Montez also stood in front of the bloody wall, which led the Department to determine he was aware of the second assault.  Montez did not report either assault.  A custody assistant, a non-sworn employee working in the facility, also observed the second assault but did not report it.

In the subsequent investigation, Montez denied hearing any indications of assault during the first incident and denied observing blood on the wall after the second incident.  As a result, the County terminated Montez for failing to report the use of force and making false statements during the investigation.

Montez appealed his discharge to the County’s Civil Service Commission.  The Commission found that the Department had proven the misconduct.  But, the Commission decided Montez’s penalty was too severe because of the lesser penalty a non-sworn custody assistant received.  The custody assistant, who witnessed but failed to report the second assault, also made false statements during the investigation.  The custody assistant, however, received only a five-day retraining discipline with pay.  The Commission reduced Montez’s discharge to a 30-day suspension without pay.

The County petitioned the trial court to overturn the Commission’s penalty determination.  The trial court agreed with the County and issued an order directing the Commission to set aside its decision to reduce Montez’s discipline.  Montez appealed.

On appeal, the court determined that the Commission abused its discretion when it reduced Montez’s discipline.  Courts will not change the disciplinary penalty that an administrative body – like the Commission – imposes unless there has been an abuse of discretion. In public employee discipline cases, the primary consideration in assessing the disciplinary penalty is the extent to which the employee’s conduct resulted in harm to the public service. Other relevant factors are the circumstances surrounding the misconduct and the likelihood of its recurrence.  If the administrative body’s findings are not in dispute, however, an abuse of discretion occurs when the findings do not support its decision.

In this case, the Commission’s findings were not in dispute.  Montez had failed to report two incidents of inmate abuse and had not been truthful in the Department’s investigation.  Peace officers are held to higher standards of conduct than civilian employees.  Courts consider peace officer dishonesty to be highly injurious to the employing agencies and the public service.  The court concluded that Montez’s failure to report two incidents of abuse of an inmate constituted “inexcusable neglect of his duty to safeguard the jail population,” and his lies during the subsequent investigation “brought discredit upon his position and department, and forever undermined his credibility.” 

Moreover, Montez never recanted the false statements he made to the Department’s investigators and repeated them at the hearing before the Commission.  The court found that honesty is not an isolated or transient behavior; instead, it is a continuing trait of character.   The court found that the County did not need to retain deputies who lie to protect other deputies who harm inmates.

Thus, the court found that the Commission’s decision to reduce Montez’s discharge to a 30-day suspension was unsupported by its own findings.

County of Los Angeles v. Civil Service Com. of County of Los Angeles, 40 Cal.App.5th 871 (2019).

Note: 

This case is another in a long line of cases that finds that termination is an appropriate penalty for peace officer dishonesty. Also important to this decision was that the deputy continued to be dishonest at his appeal hearing.

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