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LANIGAN v. CITY OF LOS ANGELES
199 Cal.App.4th 1020 (2011)
ROBERT LANIGAN, Plaintiff and Respondent,
v.
CITY OF LOS ANGELES et al., Defendants and Appellants.
No. B228686.
Court of Appeals of California, Second District, Division One.
October 4, 2011.
OPINIONJOHNSON, J.— The City of Los Angeles (City) appeals a judgment granting a peremptory writ of mandate in favor of Robert Lanigan, a former Los Angeles police officer. The trial court reinstated Lanigan to his employment, finding a settlement of pending disciplinary charges by the City against Lanigan, pursuant to which he agreed to resign if similar misconduct charges were upheld in the future and gave up his right to pursue an administrative appeal, constituted an impermissible waiver of his rights under the Public Safety Officers Procedural Bill of Rights Act (POBRA)1 (Gov. Code, § 3300 et seq.).2 We hold that a waiver of POBRA's protections is permissible in the context of a settlement of a pending disciplinary action. FACTUAL BACKGROUND AND PROCEDURAL HISTORY1. Lanigan's First Disciplinary Charges and Settlement On April 28, 2006, Officer Lanigan was off duty and wrongly driving his personal vehicle in the carpool lane when a Los Angeles Unified School
Police Department (LAUSPD) officer stopped him. Lanigan was investigated for and ultimately charged on April 19, 2007, with three misconduct allegations arising from his interaction with the LAUSPD officer, including harassment and refusal to comply. The chief of police (the chief) referred Lanigan to the board of rights (BOR) with a proposed penalty of termination.3 Lanigan received notice of the proposed disciplinary action on April 9, 2007. Before the BOR hearing commenced, Lanigan's attorney, Randall K. Quan, negotiated a settlement agreement (Agreement) with the LAPD. During the negotiations for the Agreement with the City, Quan stated to Sergeant Raymond Jatkowski, the officer in charge of the LAPD's internal affairs group's disciplinary settlement unit (DSU), that Quan's goal was to prevent Lanigan from appearing before a BOR because Quan believed the board would terminate Lanigan for his conduct. Accordingly, Quan advised Lanigan to sign the Agreement.
1. "`[POBRA] sets forth a list of basic rights and protections which must be afforded all peace officers (see § 3301) by the public entities which employ them. It is a catalogue of the minimum rights (§ 3310) the Legislature deems necessary to secure stable employer-employee relations (§ 3301).'" (Crupi v. City of Los Angeles (1990) 219 Cal.App.3d 1111, 1116 [268 Cal.Rptr. 875], quoting Baggett v. Gates (1982) 32 Cal.3d 128, 135 [185 Cal.Rptr. 232, 649 P.2d 874].)
2. All further statutory references are to the Government Code unless otherwise indicated.
3. "In the Los Angeles Police Department (LAPD), a [BOR] is an administrative [panel] charged under the Los Angeles City Charter (L.A. Charter) with the adjudication of charges of police officer misconduct. (L.A. Charter, § 1070(a).)" (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 317 [74 Cal.Rptr.3d 891, 180 P.3d 935].) The BOR is a three-person panel, composed of two LAPD (Los Angeles Police Department) commanding officers and one civilian. (L.A. City Charter, § 1070(h) (L.A. Charter).) In a BOR hearing, the LAPD has the burden of proving each charge by a preponderance of the evidence, and the accused officer has the right to appear in person (and by counsel or a representative, at the officer's expense) and defend against the charges. At the conclusion of a BOR hearing, the board must make a finding of "guilty" or "not guilty" and prescribe a penalty from a specified range of disciplinary options, including reprimand, suspension, demotion, and dismissal. (Id., § 1070(n).) The chief may accept or reduce, but not increase, the BOR's recommended punishment. (Id., § 1070(p).) Officers can also elect to challenge their discipline through an administrative appeal to the BOR. (Id., § 1070(a).)
4. Civil Code section 3513 provides, "Anyone 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."
5. The trial court stated that the City's request for a statement of decision was not applicable because the court made no factual determinations, but that its tentative ruling would constitute a statement of decision if one were later deemed necessary.
6. Lanigan brought his petition under both traditional mandamus (Code Civ. Proc., § 1085) and administrative mandamus (Code Civ. Proc., § 1094.5). Even if he had improperly brought his petition solely as a traditional mandamus proceeding, we would have treated it as if it had been properly brought under Code of Civil Procedure section 1094.5. (See Bollengier v. Doctors Medical Center (1990) 222 Cal.App.3d 1115, 1125 [272 Cal.Rptr. 273].)
7. For these reasons, Farahani, supra, 175 Cal.App.4th 1486 is inapplicable. There, the court held a predisciplinary waiver of a professor's statutory due process rights under the Education Code was unenforceable. (Id. at p. 1489.) Relevant there, Education Code section 87485 provides "any 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." (Ibid.) Here, POBRA contains no such provision; if it did, Lanigan's waiver would be invalid.
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