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Sheriff’s Termination Appeal Was No Longer Viable After Disability Retirement
Martin Diero began working for the Los Angeles County Sheriff’s Department in 1997. Diero was injured on duty on May 30, 2012, and he continued to work through October 3, 2013, after which he had the first of two surgeries. Diero was not able to return to work following his surgery, and he remained on leave thereafter.
On May 1, 2015, Diero applied to the Los Angeles County Employees Retirement Association (LACERA) for service-connected disability retirement. Two months later, and before LACERA approved Diero’s retirement application, the Department issued Diero a Notice of Intent to Terminate his employment for bringing discredit to him and the Department. After a pre-disciplinary meeting, the Department notified Diero it was terminating his employment effective August 12, 2015. Diero timely appealed the discharge to the Civil Service Commission (Commission), which referred the matter to a hearing officer.
A few months later, while the disciplinary proceedings were pending, LACERA granted Diero’s application for service-connected disability retirement. LACERA later issued a notice to Diero stating that the effective date of his retirement was August 13, 2015, the day after his discharge. Despite having retired, Diero and the Department participated in hearings on Diero’s appeal of his discharge. The hearing officer ultimately recommended that Diero’s discipline be reduced to a 30-day suspension, and the Commission’s agenda included a proposed decision to accept the recommendation.
The Department later filed a motion to dismiss the appeal on the grounds that Diero had retired, and therefore, the Commission lacked jurisdiction over an appeal relating to his employment. The Commission granted the motion, and Diero filed a petition for writ of mandate seeking trial court review of the decision. In the writ petition, Diero asserted, for the first time, that if he were to prevail in his disciplinary appeal and be reinstated, any retroactive salary would change his disability retirement pension. The trial court denied the petition.
On appeal, the court determined that the Commission properly dismissed Diero’s appeal. The court reasoned that the Commission’s jurisdiction derives from the County’s Charter, which defines an employee as “any person holding a position in the classified service of the county.” Relying on this language and on previous decisions, the court concluded that Commission has no jurisdiction to order reinstatement or any form of wage relief, to a retired person whose “future status as an employee by definition is no longer an issue.” The court affirmed the trial court’s decision and awarded the Department its costs on appeal.
Deiro v. Los Angeles Cty. Civil Serv. Comm’n, 56 Cal. App 5th 925 (2020).
This case shows that timing is everything. Local rules may prevent an employee from appealing discipline after the date of disability retirement.