Fire Watch: May 2025

Fire Watch

Cynthia

firm victory

LCW Partner Danny Yoo And Associate Attorney Nicholas Grether Win Defense Verdict On Police Officer’s Disability Discrimination Trial.

The City of Monterey Park placed one of its police officers on leave pending a fitness for duty exam after the officer was observed speaking in an incoherent manner and not being able to track conversations during management team meetings. The examination showed that the officer was not fit for duty. The City attempted to engage the officer in the interactive process to explore potential accommodations.

While on leave, the officer’s police powers were suspended, but the officer attended his son’s graduation from the police academy in full uniform, and he carried an unloaded gun. The officer told another chief of police who was present that “You did not see me here” because the officer did not want his own chief to find out that he was in uniform, contrary to his chief’s directives. The City’s police department investigated and determined the officer was insubordinate for exercising police officer powers while they were suspended, was dishonest for saying he did not know he could not be in full uniform, and violated the Penal Code. The City terminated the officer’s employment.

The officer filed a lawsuit claiming: 1) disability discrimination; 2) failure to accommodate; and 3) failure to engage in the interactive process. Danny and Nicholas rapidly adapted to all the twists and turns of a jury trial, including inconsistent theories of liability; attacks on the City’s efforts to engage in the interactive process; and the challenges to the psychologists’ opinions regarding possible accommodations. Their work convinced the jury that none of the officer’s three claims had any merit. The jury ultimately decided that the City did not perceive the officer to have a mental disability; the officer could not perform his essential job duties; and that the officer failed to ask for any accommodations for the disability that the City perceived him to have.

Partners Adrianna Guzman And Alex Volberding, And Associate Brittany Trainer, Win Dismissal Of Challenge To Firefighter Dress Code Rules.

A fire union allegedly raised safety concerns with Cal-OSHA. The union claimed that thereafter, the fire department required compliance with its dress code and prohibited firefighters at one station from wearing belt buckles that displayed their station number. The union filed an unfair practice charge claiming the enforcement of the dress code was retaliation for the protected union activities of raising safety concerns and wearing the belt buckles.

The union provided no facts in its unfair practice charge to show that the employer knew the union had raised safety concerns with CalOSHA. Further, the charge did not explain how wearing the belt buckle with the station number qualified as a protected activity under the MMBA or the employer’s local rules. The position statement LCW filed for the employer showed that no adverse action had occurred and that there was no connection between the belt buckles and union activity.

The union declined to submit a written response, opting instead to present oral arguments before the administrative agency. LCW successfully argued that the administrative agency should dismiss the unfair practice charge. The administrative agency dismissed the unfair practice charge without leave to amend.

Partner Jesse Maddox Defeats Firefighter’s Termination Appeal.

A female fire department volunteer was removed from the volunteer training program. The volunteer then informed department leadership that during the program, a firefighter sent her suggestive messages, made sexual comments and inquiries, and singled her out for sexual ridicule.

The case presented a significant challenge because an outside investigator declined to sustain key allegations in his report. He found the firefighter was more credible than the volunteer. But, the city was aware of this firefighter’s prior discipline for misconduct, conducted its own thorough review, and moved forward with termination based on the totality of the evidence and policy violations.

After a multi-day arbitration hearing, the hearing officer concluded that the city had met its burden to establish just cause. Central to the decision was the firefighter’s own admissions. The firefighter acknowledged he made inappropriate communications, including a “shameful” text exchange, admitted he “probably” violated several city policies, conceded he should have reported his conduct, and recognized that his behavior was unprofessional. These admissions established multiple policy violations that supported his termination.

The hearing officer rejected the union’s key defense. The union’s argument that the conduct was “mutual” did not excuse the misconduct. The hearing officer emphasized that anti-harassment policies prohibit specific types of conduct regardless of whether the recipient initially participates or fails to object.

Finally, the hearing officer found termination was an appropriate penalty. The city properly considered the employee’s history of similar misconduct and determined that progressive discipline had failed to correct his behavior. The hearing officer credited testimony that the misconduct harmed the department, undermined its mission, and negatively impacted recruitment and retention, including the viability of the volunteer program. Given the repeated nature of the conduct and the likelihood of recurrence, the hearing officer concluded that no lesser penalty would be sufficient.

Based on the totality of the evidence, the hearing officer denied the grievance and upheld the firefighter’s discharge.

Partner Scott Tiedemann And Sr. Counsel Jeffery Stockley Defeat A Corporal’s Termination Appeal.

A police corporal began a consensual affair with an officer in the same police department. During the affair, the officer was also dating a community member who was an informal informant. The corporal saw some messages on the officer’s cell phone from the community member, and used the officer’s phone to message the community member to stay out of her relationship with the officer. The corporal also threatened to expose the community member’s personal life; directed the community member not to participate in a city program; and disparaged the officer. The corporal admitted to deactivating her body-worn camera prior to confronting the community member while on duty at a public event. The corporal’s conduct ultimately led to a citizen complaint and an internal affairs investigation. The city terminated the corporal, and she appealed.

The personnel board found that the evidence established misconduct. The board concluded that the corporal improperly used her position to influence a private matter, made threatening and misleading statements, failed to report a potentially improper relationship involving the officer and the community member, and discredited both the department and its personnel.

In analyzing the misconduct, the board emphasized that even if some of the corporal’s communications occurred off duty, her improper use of her peace officer status permeated her actions. Her directives to the community member could be perceived as an abuse of authority. The board also cited the corporal’s admissions that she embellished statements to harm the officer’s reputation, and that she knew that her actions were inappropriate and damaging.

The board determined that the misconduct was not a brief lapse in judgment but rather a sustained course of conduct driven by personal motives, including actions taken while on duty and in uniform. The conduct undermined public trust, disrupted departmental operations, and created a risk of future misconduct. The board held the corporal to a higher standard of conduct because of her rank, experience, and leadership responsibilities.

Finally, the board concluded that termination was not an abuse of discretion. It credited the police chief’s determination that the corporal’s actions compromised her integrity and the department’s reputation, and that lesser discipline would

not sufficiently address the harm or mitigate the risk of recurrence. The city manager adopted these findings and issued a final decision affirming the termination.

Partner Peter Brown Defeats Union’s “Me Too” Grievance In Arbitration.

A union filed a grievance alleging that the county employees it represented should receive a significant signing bonus because another union representing county employees had received the bonus. The grievance claimed the bonus under the “me too” clause in the MOU.

During the arbitration hearing, Brown argued for the county that the other union had received the bonus only because it gave up the “me too” clause in its MOU. The grieving union had been offered the same deal, but had declined. For the county to now give the bonus, without requiring the grieving union to relinquish its “me too” provision, would be treating the grieving union more favorably. Moreover, a union official had said, after rejecting the bonus deal, that the union was looking for other ways to get the same benefit for its members.

The grieving union argued that how or why the other union received the bonus was irrelevant. The grieving union also noted that on two prior occasions, the county did not require it to make concessions in order to effectuate its “me too” clause.

The arbitrator noted that the county’s bonus offer was contingent on the release of the “me too” clause. The arbitrator also noted the evidence of the grieving union’s intent at the time. The grieving union was offered the same deal at a time when it was aware that the other union had accepted the deal and was trying to negotiate for the bonus through other means. This evidence showed that the grieving union did not believe it was entitled to the bonus by simply relying on its own ‘me too” clause. In addition, the arbitrator distinguished the two prior instances the union cited when it was not required to make concessions to effectuate its “me too” clause. In those instances, the county’s offers were not contingent on any particular concession. The arbitrator denied the grievance.

Sr. Counsel Jeff Stockley Defeats Former Officer’s Termination Appeal.

A police officer took photos and videos of himself having sexual relations with a woman. The officer created an Instagram account in the woman’s name without her knowledge. The officer then uploaded the material into the account. The woman’s family alerted her to the account. She filed a criminal complaint against the officer.

A county sheriff’s department initiated the criminal investigation. The officer denied that he or his then-girlfriend and now wife created or used the Instagram account. The officer admitted he took two photos of the woman, but claimed he did not share them. The receiving department subpoenaed information from Meta that showed the officer’s email and cell phone number were used to create the account. But the prosecuting attorney declined to prosecute, and the sheriff’s department turned the matter over to the officer’s own department.

The officer’s department conducted an administrative investigation, found the officer to be in violation of department policies, and eventually terminated the officer for serious misconduct, dishonesty, criminal actions, and violations of department policy. The officer appealed.

Sr. Counsel Stockley argued that the termination should stand because the officer repeatedly lied and uploaded the sexually explicit material without the woman’s knowledge or consent. The officer argued that it was his wife and her co-worker who created the Instagram account and uploaded the photos. Sr. Counsel Stockley argued that this was simply the officer’s wife’s last-minute effort to save her husband’s job.

The hearing officer determined that the former officer’s testimony was not truthful. The hearing officer found the testimony that the officer’s wife and co-worker created the Instagram account without the former officer’s knowledge was neither believable nor supported by any evidence. The hearing officer concluded in his recommended decision

that termination was an appropriate remedy. The city council voted to accept the hearing officer’s findings and denied the appeal.

Sr. Counsel Alison Kalinski And Associate Attorney Nicole Powell Win Three-Year

Workplace Violence Restraining Order Against Former Officer.

A police sergeant was demoted, appealed his demotion, lost, and subsequently retired. The former officer began mailing flyers to city residents to criticize police leadership, including the former chief, the current interim chief, and a commander. Later, the officer sent individualized mailers directly to the former and interim chiefs and the commander, as well as to the former city manager and police union president. The officer sent between 5 and 20 mailers to these individuals, a number that escalated over time. The mailers: insulted the recipients; accused them of dishonesty, incompetence, and infidelity; suggested they were under surveillance; and contained escalating and veiled threats of violence.

The city applied for a workplace violence restraining order (WVRO) for all of the individuals and one individual’s family member. During four days of direct and cross-examination of eight witnesses, the city witnesses described how the mailers threatened and intimidated them and caused them to alter their behavior in significant ways, including quitting a job and installing surveillance cameras on their property. Although the officer claimed that his mailers contained protected speech, he testified that he sent them to air his personal grievances by mocking the recipients, hurting their feelings, and demonstrating that he would not stop.

The Superior Court judge found that the flyers constituted harassment under the WVRO law codified at Code of Civil Procedure section 527.8 because their content would both cause a reasonable person substantial emotional distress, and actually did so, according to the witnesses’ testimony. The Court rejected the officer’s First Amendment arguments because the officer’s speech was not protected and constituted a credible threat of violence. The Court found the evidence showed a reasonable probability of future violence and issued a three-year WVRO against the former officer.

Note:

Many agencies encounter similar harassment issues and may not have considered a WVRO as a viable option to address ongoing behavior from a former officer.

Labor Relations

County Must Bargain Over The Decision To Outsource Security Services.

Los Angeles County decided to outsource certain security services that were performed by officers who were represented by the Professional Peace Officers Association (PPOA). The PPOA demanded that the County meet and confer over this decision. The County refused, arguing that the PPOA had waived its right to bargain over such managerial decisions through its MOU, including a management-rights clause that included language about transferring functions through any reorganization.

PPOA filed an unfair labor practice charge with the County’s Employee Relations Commission (ERCOM). Although outsourcing decisions are generally subject to bargaining, the ERCOM hearing officer concluded that the MOU contained a “clear and unmistakable” waiver of that right to bargain. The PPOA then sued in the superior court, but that court agreed with the County, reasoning that the MOU’s reference to “reorganization” was broad enough to include outsourcing and therefore excused the County from bargaining.

The California Court of Appeal reversed. A waiver of statutory bargaining rights must be clear and unmistakable, and the MOU language did not meet that demanding standard. The MOU stated only that the County had no duty to negotiate “the decision of any reorganization.” The Court found that “reorganization” did not equate with “contracting out.” In addition, the MOU provision was not a clear and unmistakable waiver because it did not mention any waiver of the meet and confer process, nor did it expressly conflict with or replace that process. The Court directed the lower court to issue a writ of mandate compelling the County to bargain with the union.

Los Angeles County Professionals Peace Officers Association v. County of Los Angeles (Cal. Ct. App. April 10, 2026) No. B338182.

Due Process

A Neutral Hearing Officer Can Both Develop A Hearing Record and Decide A Case.

A motorist’s driver’s license was suspended after he refused a chemical test following a stop for suspected DUI. Later, at the Department of Motor Vehicles (DMV) hearing, the hearing officer admitted evidence, questioned witnesses, ruled on objections, and upheld the suspension of the driver’s license. The motorist argued the hearing violated his due process rights because the hearing officer acted as both the advocate for the DMV and the decisionmaker.

The motorist petitioned for a writ of mandate in the Superior Court. He claimed the hearing officer’s actions to move documents into evidence despite his objections created an unconstitutional appearance of bias. The trial court rejected the claim, finding that DMV policy

requires hearing officers to act as neutral adjudicators and that no due process violation occurred.

The California Court of Appeal affirmed. The Court explained that due process guarantees an impartial decisionmaker but does not forbid the same official from both developing the record and deciding the case in an administrative proceeding, absent a disqualifying interest or strong evidence of bias. The Court held that the DMV’s system is constitutional, presumes hearing officers are impartial, and that their role in eliciting evidence does not make them advocates. The Court also declined to adopt a subjective “appearance of bias” standard. The Court found that because the motorist did not produce any evidence of an unacceptable risk of bias, it must assume that the hearing officer could decide the case fairly.

Chi v. Department of Motor Vehicles (Cal.Ct. App. April 7, 2026) No. A172237.

Consortium Call Of The Month

Members of Liebert Cassidy Whitmore’s employment relations consortiums may speak directly to an LCW attorney free of charge regarding questions that are not related to ongoing legal matters that LCW is handling for the agency, or that do not require in-depth research, document review, or written opinions.

Consortium call questions run the gamut of topics, from leaves of absence to employment applications, disciplinary concerns and more. This feature describes an interesting consortium call and how the question was answered. We will protect the confidentiality of client communications with LCW attorneys by changing or omitting details.

Question:

One of our firefighters has used all of his CFRA leave. He requested an additional 10 weeks of leave as a reasonable accommodation so that he could adjust to a new treatment for his disability. The ten weeks are almost over, and he has requested more leave. Does our agency have to provide more leave?

Answer:

Providing a leave from work after other forms of leave have been exhausted is a form of reasonable accommodation if that leave: 1) is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation; and 2) does not create an undue hardship for the employer. Note that the FEHA regulations state that an employer “is not required to provide an indefinite leave of absence as a reasonable accommodation.” (2 Cal.Code Regs § 11068(c).)

Did You Know?

Whether you are looking to impress your colleagues or just want to learn more about the law, LCW has your back! Use and share these fun legal facts about various topics in labor and employment law.

• Firefighters in California have a unique legal protection. Before they can be compelled to answer incriminating questions during an investigatory interview, their employer must provide them with a formal, written grant of immunity from criminal prosecution. This requirement is outlined in the Firefighters Procedural Bill of Rights Act and ensures that their statements cannot be directly used against them in a criminal proceeding, although charges can still be brought based on other evidence.