Officer on Relieved-of-Duty Status Could Be Terminated for Driving Under the Influence and Making False Statements

Thomas Negron worked as a deputy with the Los Angeles County Sheriff's Department. He took a medical leave of absence due to stress and anxiety after becoming involved in a contentious divorce. When the Department determined that Negron's anxiety issues were not work-related, it relieved him of duty in November 2010. Negron stopped receiving a salary and was no longer required to report to work.

On January 26, 2011, a California Highway Patrol (CHP) officer stopped Negron for erratic driving at excessive speeds. Negron yelled and cursed at the CHP officer and refused to answer his questions. Another CHP officer who responded believed Negron was under the influence of drugs and alcohol. Negron was transported to San Bernardino's Central Detention Center for field sobriety tests. The CHP arrested Negron once it determined he had a blood alcohol level of 0.20. Negron eventually pled guilty to a violation of Vehicle Code section 23152(b) and was placed on probation for three years.

On March 25, 2011, Negron drove to the Newhall CHP office to obtain a copy of his arrest report. The CHP officer asked Negron whether he had his driver's license and whether he had driven to the CHP office. Negron showed his temporary permit, but it had expired. The CHP officer told Negron he could not drive home, and called the Department to send someone to pick Negron up. Sheriff's Deputies Keith Shaw and Randolph Ortiz retrieved Negron and his car and drove him to the Department's Pitchess Detention Center (PDC), but told him that he could not drive home on a suspended license. Shaw also instructed Negron to report to his supervisor, Sergeant Walker, in person to explain his contact with the CHP at the Newhall station. Approximately twenty minutes later, Ortiz saw Negron drive out of the PDC parking lot. When Sergeant Walker later called Negron and asked him how he had gotten home from PDC, Negron said that his girlfriend picked him up. Negron's girlfriend, who also worked at the Department, had been working throughout the time Negron claimed she drove him home.

Negron also contacted Sergeant Walker later that day by telephone and told her only that he had visited the CHP Newhall station and that Shaw picked him up because he was advised he could not drive on a suspended license. Walker subsequently confirmed that Negron was supposed to speak to her in person about the incident at the Newhall station and that Negron was seen driving out of the PDC parking lot. Walker contacted Negron and asked how he got home from PDC and Negron stated his girlfriend picked him up with a friend.

In November 2011, the Department notified Negron that it intended to terminate his employment for his uncooperative behavior with the CHP, driving under the influence, driving with a suspended license, failing to obey orders to report in person to Sergeant Walker, and making false statements to Sergeant Walker about how he had gotten home. After a Skelly meeting, the Department terminated Negron's employment. At his three-day appeal hearing, Negron argued that the Department lacked authority to discipline him for the conduct alleged in the Notice of Discharge because the conduct occurred while Negron was on relieved-of-duty status and not receiving pay from the Department. The hearing officer recommended that the Los Angeles Civil Service Commission sustain Negron's termination, and the Commission adopted the hearing officer's findings and recommendations. Negron filed a petition for writ of administrative mandamus, which the trial court granted. The Department appealed, and the Court of Appeal reversed.

In granting Negron's writ petition, the trial court relied on the case of Garvin v. Chambers, in which the California Supreme Court held that an officer who was suspended without pay pending investigation could not be terminated for insubordination after he refused to meet with the Chief of Police without his attorney. The Court held that while Garvin's indefinite suspension was in force, Garvin could not be called upon to do police duty or be held accountable for a failure to do such duty, especially when the order did not concern the performance of a police duty but rather would have required him to serve as a witness against himself in a quasi-criminal investigation.

In this case, the Court of Appeal distinguished the Garvin case and noted that Negron was terminated for conduct for which he could be held accountable even when relieved of his deputy sheriff duties: driving under the influence of alcohol, driving with a suspended license, being evasive and uncooperative with the CHP, and making false statements. Further, until he was discharged, Negron remained a classified employee of Los Angeles County. While Negron argued that his relieved-of-duty status took him outside of the classified service, he did not support the assertion with persuasive authority. Further, Negron held himself out as a deputy sheriff to the CHP officer at Newhall station. Negron's arrest brought discredit to the Department, and the Department had authority to discharge him. Thus, the Court of Appeal reversed the trial court's judgment.

Note:

Throughout the appeal of his termination, Negron also argued that Sergeant Walker's questions regarding how he got home from the PDC violated the Public Safety Officers Procedural Bill of Rights Act (POBRA) because it constituted an interrogation and Walker failed to provide Negron the proper procedural safeguards. The Court of Appeal declined to address this argument because the parties did not raise it. However, public safety departments may be prohibited from using the statement of public safety employees who are interrogated without receiving the proper admonitions. While an employee is not subjected to "interrogation" "in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other public safety [employee]," the line between "interrogation" and routine counseling is often difficult to discern.

Negron v. Los Angeles County Civil Service Commission (2015) ___ Cal.App.4th ____ [2015 WL 5692841].