HENRY v. CITY OF LOS ANGELES No. B213148.

IRSIE HENRY Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

Court of Appeals of California, Second District, Division Three.
Filed May 14, 2010.
Diane Marchant; Stone Busailah, Marcus Berger for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, Claudia McGee Henry, Assistant City Attorney, and Gregory P. Orland, Deputy City Attorney for Defendants and Respondents.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

INTRODUCTION

Irsie Henry was fired from his position as a City of Los Angeles police officer for engaging in numerous acts while off duty meant to harass, intimidate and disturb his neighbors, for bringing discredit to the Los Angeles police department, for inappropriately accessing the police department computer for non-duty related activities, and for making misleading statements to police investigators. The superior court denied Henry's petition for a writ of mandate. We affirm.

BACKGROUND

1. Henry's Dispute with Hamilton Regarding a Fence

In about February or March, 2001, Henry purchased a home in Altadena. At first his relationship with his neighbor John Hamilton was cordial. Henry and his wife sent a plant to Hamilton and his wife when Henry first moved next door to Hamilton.

Several months later, the relationship deteriorated after Henry and Hamilton had an argument over a fence that was on the border of their respective properties. Henry wanted to remove and replace the fence; Hamilton did not agree to do so. A surveyor hired by Henry determined that part of the fence was on Henry's property. In July 2002, Henry sued Hamilton and asserted claims arising from Hamilton's construction of the fence. The case was settled with an agreement that required Hamilton's insurance company to pay Henry $6,500.

2. Henry's Harassing, Intimidating and Disturbing Conduct

The dispute surrounding the fence escalated into a five-year battle between Henry and Hamilton. The two men engaged in countless acts intended to harass, intimidate and otherwise disturb each other and each other's families. Because Hamilton's conduct is not at issue, we will only provide a summary of Henry's conduct.

Beginning in September 2001, Henry began using a blower to blow leaves and other debris into Hamilton's yard. Henry often did this immediately after Hamilton's son finished raking leaves on Hamilton's property. In order to block leaves and other debris from coming into his yard, Hamilton grew grass longer in the area of his property adjacent to Henry's property. Henry, however, mowed or killed the longer grass so that he could continue his harassment. Hamilton, in turn, placed a chicken wire to block Henry. Henry responded by picking up leaves and throwing them over the fence that divided his property from Hamilton's. When Hamilton threw the leaves back, Henry threw them back again.

Henry's harassment was also directed at Hamilton's children. For example, Henry shouted profanities, taunts and racial insults at Hamilton and his wife Melanie in front of the Hamilton's children. Henry referred to the Hamiltons as "swingers" and once shouted "swinger" at Hamilton's children. Henry also referred to Hamilton as "white boy, La Canada" and Melanie Hamilton as a "black bitch, wannabe white, fake," in front of the Hamiltons' children. On one occasion, Henry saw Hamilton's daughter, who was 11 years old at the time, and stuck his tongue out and licked his lips. On another occasion, Henry confronted Hamilton's son, who was 13 years old at the time, and accused him of stealing from Henry's son.

In addition, Henry instructed workers to spray paint "P.C. 602" and "P.C. 594" on the fence on his property that faced Hamilton's property. This writing refers to Penal Code sections relating to trespass and vandalism, two crimes Henry accused Hamilton of committing. The fence further included the painted words "no swingers," "no freaks," "what," "weird" and "no slug."

Beginning in around January or February 2002, Hamilton found Marlboro cigarette butts on his property. The number of cigarette butts left each day escalated from 3-4 to 14-15. Henry smoked Marlboro cigarettes and was seen on at least one occasion dropping cigarette butts on Hamilton's property.

The Hamiltons also found eggs splattered on their property over a dozen times, including on one occasion on a newly resurfaced driveway. Although no witnesses saw Henry throw eggs at the Hamiltons' property, the splatter marks indicated that they came from Henry's property, and no other neighbors in the area reported having their property pelted with eggs.

The attacks and counterattacks between Henry and Hamilton grew so frequent that each of them eventually installed video surveillance equipment. Hamilton was able to capture many of Henry's attacks on videotape. For example, Hamilton filmed an incident in which Henry struck Hamilton's trash can with his car, and dragged the trash can 10-12 feet, thereby destroying it.

Hamilton and Henry eventually obtained restraining orders against each other. Unfortunately, these orders were not enough to keep the peace. Both men called the Los Angeles sheriff's department on numerous occasions to file complaints against each other. The calls became so frequent that the sheriff's department had "brief-ins" to discuss the problem. Further, because Henry was a City of Los Angeles police officer, the sheriff's department was required to send a supervisor to investigate each call relating to a dispute between Henry and Hamilton.

Henry made a number of unsubstantiated allegations against Hamilton with the Los Angeles district attorney's office. For example, when water from Hamilton's sprinkler fell on Henry's vehicle, Henry contacted the district attorney's office and accused Hamilton of vandalism. Deputy District Attorney Kathleen Gentry testified at Henry's administrative hearing that she "began to seriously question his [Henry's] credibility."

3. Henry's Improper Use of the Police Department's Computers

Henry admits that he used the police department's computer system to obtain information regarding the Hamiltons and that this use was not in connection with Henry's duties as a police officer. Henry claims he used the computer system when he first moved next door to the Hamiltons in order to obtain their names; he needed their names for the note he and his wife sent to the Hamiltons along with a plant. Prior to using the department's computer system to obtain the Hamiltons' names, Henry was aware that doing do so for personal use was "illegal." (See Pen. Code, § 502.)

4. Henry's Misleading Statements to Internal Affairs Investigators

Sergeant M. Blackstone and Detective H. Martin of the Los Angeles police department were assigned to investigate Henry's alleged misconduct. When Blackstone and Martin asked Henry whether he caused "P.C. 602" and "P.C. 594" to be painted on his fence, he initially denied being involved and claimed that he only learned about those messages when he saw photographs of them. However, after Blackstone and Martin showed Henry a videotape showing Henry present when his workers were constructing the fence with P.C. 602 and P.C. 594 painted on them, Henry changed his story. He admitted that he was present when the fence went up with writing on it and that maybe "he suggested" to his workers to paint the writing.

5. Los Angeles Police Department Board of Rights Proceedings

The Los Angeles police department board of rights (board) held a lengthy hearing to adjudicate 10 charges against Henry. The hearing produced an administrative record of 23 volumes and over 3,300 pages. Twenty-nine witnesses testified and 62 exhibits were offered into evidence.

At the hearing, Henry was again evasive about his role in painting the fence facing Hamilton's property. Henry at first denied knowing how "P.C. 602" got on the fence. Later, he stated that "I might have suggested to the people working with me" to paint it on the fence. Finally, after Henry's attorney asked him why he was "resisting" questions regarding the fence, he admitted that he had directed workers to paint P.C. 602 and P.C. 594.

The board found Henry guilty of four counts and not guilty of six counts. Henry was found guilty of the following counts.

Count 1: "Between June 1, 2003, and April 10th, 2005, you, while off duty, on numerous occasions inappropriately engaged in behavior meant to harass and intimidate or otherwise disturb the peace of the Hamilton family."

Count 6: "Between June 1, 2003, and April 10, 2005, you, while off duty, engaged in behavior that brought discredit to the Department."

Count 7: "Between January 1, 2001 and May 4, 2005, you, while on duty, inappropriately accessed the Department computer system for non-duty related activities."

Count 10: "Between March 24, 2005, and May 4, 2005, you, while on duty, made misleading statements to Sergeant M. Blackstone and Detective H. Martin, who were conducting an official investigation."

At the penalty phase of the hearing, Henry called two character witnesses—

Lieutenant Marco Munoz and Sergeant Gil Curtis. Both Munoz and Curtis testified that, despite the sustained allegations against Henry, they would take him back as a police officer.

Henry's counsel, Ira Salzman, advised the board that he was not calling Henry's captains as character witnesses because the captains suggested that Henry move from his home and Salzman felt that was an inappropriate suggestion. But Salzman also stated: "I'm not trying to block you [the board] from calling them [the captains]." Later, in response to a statement by a member of the board that "the board wants to hear from one of the captains," Salzman stated: "Understood. I'm not trying to block it."

Captains Joan McNamara, Sean Kane and Fabian Lizarraga each testified that in light of the sustained allegations against Henry, they would not retain him as a police officer.

On October 28, 2006, the board unanimously recommended that Henry be removed from the Los Angeles police department. In pronouncing its recommended penalty, the board stated: "It is important to note that these events involving the Hamiltons and Mr. Henry [were] ongoing for five years and involved a complex neighbor dispute. The Board noted the fact that Mr. John Hamilton in this case, as well as [Henry's neighbor] Mr. Nerone, could perhaps be considered, and were by this Board, considered the provocateurs." However, the board found that Henry, as a police officer of nearly 20 years, should have recognized that his off-duty behavior discredited the police department.

The board also found that count 10 was Henry's "most serious" offense. It stated: "The misleading statements during this proceeding during prior interviews strike at the heart of the Department's core values of integrity in all we say and do. This Board will not tolerate a lack of integrity, and expected Officer Henry to be up front and forthright during the initial interview and subsequent interview and his testimony. The Board believed that Officer Henry was, in fact, misleading."

On November 14, 2006, William Bratton, as chief of police, adopted the board's recommendation to terminate Henry.

6. Henry's Petition in the Superior Court

In January 2007, Henry filed a petition for a writ of mandate in the superior court against the board and Chief Bratton. Henry filed an amended petition in March 2007, whereby Henry sought, inter alia, a writ of mandate compelling the board and Chief Bratton to reinstate him as a Los Angeles police officer. The court denied the amended petition in October 2008, and then entered judgment against Henry in November 2008. This appeal followed.

CONTENTIONS

Henry does not challenge the board's finding that he was guilty of four offenses. Rather, he contends that the board abused its discretion by imposing the penalty of termination. He further argues that his termination is "void" because the board failed to follow its own rule against receiving any opinion evidence concerning the appropriate penalty for his offenses.1

DISCUSSION

1. The Board Did Not Abuse Its Discretion By Terminating Henry

In Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 (Skelly), the Supreme Court addressed whether the State Personnel Board and its members abused their discretion by terminating a physician's employment with the Department of Health Care Services. The court described the standard of review in the following way: "Generally speaking, `[i]n a mandamus proceeding to review an administrative order, the determination of the penalty by the administrative body will not be disturbed unless there has been an abuse of its discretion.' [Citations.] Nevertheless, while the administrative body has a broad discretion in respect to the imposition of a penalty or discipline, `it does not have absolute and unlimited power. It is bound to exercise legal discretion, which is, in the circumstances, judicial discretion.' [Citations.] In considering whether such abuse occurred in the context of public employee discipline, we note that the overriding consideration in these cases is the extent to which the employee's conduct resulted in, or if repeated is likely to result in, `[h]arm to the public service.' [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence." (Id. at pp. 217-218.)

Henry argues that the board failed to properly refer to "the standard prescribed" by Skelly, and that under that standard, the penalty was excessive. We disagree. Although the board did not use the phrase "harm to the public service," it clearly took that matter into account in deciding Henry's penalty. The board noted that Henry's off-duty behavior brought "discredit" to the police department. This is another way of saying that Henry's conduct hurt the public's perception of the police department. Further, the board considered Henry's lack of integrity and honesty. These shortcomings go to the heart of a police officer's service to the public.

"Even if not criminal in nature, acts of a police officer that tend to impair the public's trust in its police department can be harmful to the department's efficiency and morale." (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 568.) Thus, "[c]ourts have long recognized that, while the off-duty conduct of employees is generally of no legal consequences to their employers, the public expects peace officers to be `above suspicion of violation of the very laws [they are] sworn . . . to enforce.' [Citations.] Historically, peace officers have been held to a higher standard than other public employees, in part because they alone are the `guardians of peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintaining law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them.' [Citation.]" (Id. at pp. 571-572.)

Where, as here, a police officer makes misleading statements in response to questions by law enforcement officials, the officer's ability to serve the public is greatly impaired. For example, an important role of a police officer is to testify in court. However, if an officer is found guilty by the board of making misleading statements to police investigators, as Henry was in this case, that finding may be discoverable by criminal defendants for purposes of impeaching the officer's credibility as a witness. (See Evid. Code, § 1043; People v. Johnson (2004) 118 Cal.App.4th 292, 303; Brant v. Superior Court (2003) 108 Cal.App.4th 100, 108; Pitchess v. Superior Court (1974) 11 Cal.3d 531.)

In light of the higher standard imposed on police officers while off-duty and the importance of maintaining the public's trust and confidence in the honesty and integrity of police officers, we cannot find that the board abused its discretion by terminating Henry. We adopt a statement made by the superior court, which applies to our court as well: "Although this court might have chosen a different penalty in the first instance, it cannot substitute its judgment for that of the administrative agency. [Henry] has failed to show that the administrative decision is not within [the] discretion vested in the Board of Rights and, ultimately, the Chief of Police."

2. Henry Waived His Objection to the Testimony of Captains McNamara, Kane and Lizarraga

Henry contends that by allowing captains McNamara, Kane and Lizarraga to testify regarding his penalty, the board committed reversible error. However, we cannot reverse a judgment based on the erroneous admission of evidence unless a timely objection to that evidence was made. (Evid. Code, § 353, subd. (a).) Here, Henry not only failed to make a timely objection to the testimony he claims was erroneously admitted, he affirmatively stated through counsel that he did not object to that evidence. In addition, Henry asked his own character witnesses regarding the penalty that should be imposed on him. Accordingly, Henry waived any objection to the testimony of McNamara, Kane and Lizarraga. (Jaramillo v. State Bd. for Geologists & Geophysicists (2006) 136 Cal.App.4th 880, 893.)

DISPOSITION

The judgment is affirmed. Respondents are awarded costs on appeal.

We concur.

KLEIN, P. J.

CROSKEY, J.

FootNotes


1. Section 267.20 of the Board of Rights Manuel states: "The Board shall not receive any opinion evidence concerning the appropriate penalty."

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