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McMahon v. City of Los Angeles

April 8, 2009

WALTER MCMAHON, PLAINTIFF AND APPELLANT,
v.
CITY OF LOS ANGELES ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Los Angeles County, Dzintra Janavs, Judge. Affirmed. (Los Angeles County Super. Ct. No. BS106225).

The opinion of the court was delivered by: Kriegler, J.

CERTIFIED FOR PUBLICATION

Government Code section 3306.5, part of the Public Safety Officers Procedural Bill of Rights Act (POBRA), grants covered officers the right "to inspect personnel files that are used or have been used to determine that officer‟s qualifications for employment, promotion, additional compensation, or termination or other disciplinary action." (Gov. Code, § 3306.5, subd. (a).) Appellant Walter McMahon, employed as an officer in the Los Angeles Police Department,*fn1 was the subject of approximately 20 citizen complaints. The Department‟s internal affairs investigation into those complaints determined they were all meritless, having been filed in bad faith by residents who were upset with the officer‟s successful anti-gang efforts in and around the Imperial Courts housing project, where he regularly patrolled. The Department resolved all the complaints in favor of Officer McMahon, determining the officer was either exonerated or the allegations were unfounded. Although the Department provided Officer McMahon with the opportunity to review each of the complaints and various related documents and findings, the officer demanded to review additional materials from the underlying investigations, such as interview tapes and transcripts pursuant to Government Code section 3306.5.*fn2 When the Department refused, Officer McMahon filed the underlying petition for writ of mandate under Code of Civil Procedure section 1085 to compel disclosure.

In his timely appeal, Officer McMahon contends the trial court erred in denying his writ of mandate. We affirm the trial court‟s finding that the Department complied with its obligations under POBRA in withholding the requested materials. As we explain, it appears that the Department disclosed all adverse comments made against the officer and gave him the opportunity to respond to them as mandated by POBRA. The mere speculation that underlying investigative materials might contain additional adverse comments does not support a disclosure obligation under POBRA, at least where, as here, nothing in the record suggests the existence of such comments and the undisclosed materials are maintained in such a way that the Department is not authorized to use them in making personnel decisions.

STATEMENT OF FACTS

We base our statement of facts mainly on the factual summary contained in the superior court‟s statement of decision. Except as noted, the operative facts are not in dispute. In 2004, Officer McMahon was assigned to the Los Angeles Police Department‟s Southeast Area Gang Impact Team, where he investigated illegal gang activity, primarily in and around the Imperial Courts housing project. At that time, his employment classification was Police Officer III. His anti-gang efforts in the spring and summer of 2004 led to numerous gang-related arrests, seizures of contraband, and evictions of housing project residents who had assisted in gang activities. In a concerted effort to discredit Officer McMahon and undermine his effectiveness, beginning in July and continuing for the next seven months, residents of the Southeast Area community filed formal personnel complaints against Officer McMahon, alleging criminal and administrative misconduct. Approximately 20 complaints were referred to the Department‟s internal affairs division for investigation and were consolidated into 16 separate complaints. Although Officer McMahon‟s supervisors knew the citizen complaints had been filed, he was permitted to remain in his assignment because it was suspected the complaints were unfounded.

One of the complainants was Ronald Antwine, a subject of the officer‟s gang investigations, whom Officer McMahon knew as a resident of the nearby Nickerson Gardens project. On September 16, 2004, while Officer McMahon was transporting a prisoner to the police station, the officer stopped to check the vehicle tags on Antwine‟s car. Finding them expired, he had the car impounded for the Vehicle Code violation.

Two days later, Antwine initiated a complaint against Officer McMahon concerning that incident.

Officer McMahon‟s direct superiors were informed about the incident on the day it occurred. Captain Sergio Diaz, the commanding officer of Southeast Area at that time, was concerned Officer McMahon might have been motivated by retaliatory intent in choosing to impound Antwine‟s vehicle. Captain Diaz did not believe the officer committed misconduct, but felt he had exercised poor judgment and created at least the appearance of retaliatory intent. Captain Diaz "never contemplated an insubordination charge against Officer McMahon." However, given the volume and vehemence of the citizen complaints, the captain was also concerned about Officer McMahon‟s physical safety in his current assignment. Captain Diaz conferred with Deputy Chief Earl Paysinger, the commanding officer of operations for South Bureau, as to whether an assignment change would be in Officer McMahon‟s best interests. That same day, Harbor Area‟s commanding officer, Captain Patrick Gannon, approved of the transfer to Harbor Division on a "loan" basis, which was initiated immediately. Captain Diaz did not review Officer McMahon‟s personnel file or any of the complaints pending against him. The loan transfer, which was "not intended to be punitive in any way," later became a permanent transfer.

Captain Gannon, although informed of Captain Diaz‟s concerns, "had no problem accepting" Officer McMahon because he knew him to be a talented and hardworking investigator. There were no insubordination complaints against Officer McMahon during his tenure at Harbor Division. There were no restrictions placed on the officer, who retained his Police Officer III grade. Captain Gannon initially placed Officer McMahon on uniformed patrol to allow him to become oriented to the new location. Within seven months, Captain Gannon assigned Officer McMahon to Harbor Division‟s gang impact team as an investigator-the same assignment he had at Southeast. Captain Gannon was aware that Officer McMahon was dissatisfied with having been loaned to Harbor Division, but the captain reassured him that they were "happy to have him" there.*fn3

All of the citizen complaints against Officer McMahon here at issue were determined to be "unfounded" or "exonerated," as those terms are defined by Penal Code section 832.5. When a complaint is unfounded, it "means that the investigation clearly established that the allegation is not true. [¶] "Exonerated‟ means that the investigation clearly established that the actions of the peace or custodial officer that formed the basis for the complaint are not violations of law or department policy." (Pen. Code, § 832.5, subds. (d)(2), (3).) Within a month of each adjudication, the Department served Officer McMahon with each complaint, along with various other documents mandated by the Department‟s internal regulations as set forth in the Los Angeles Police Department Manual-the complaint face sheet, complaint adjudication form, employee interview form, and the commanding officer‟s letter of transmittal. Although Officer McMahon was given the opportunity to respond and have his response lodged with the complaint, he did not avail himself of that opportunity with regard to any of the complaints.

In November 2004, Sergeant Tonya Dummar of the internal affairs division was assigned to make a comprehensive investigation into the complaints against Officer McMahon. She detailed her investigative efforts and findings on an eight-page, single spaced document entitled "Fact Sheet," dated July 28, 2005, and served on Officer McMahon on approximately February 23, 2006, before the commencement of the underlying action.*fn4 Sergeant Dummar concluded the complaints were spurious, having been undertaken to drive Officer McMahon out of the assignment where he had been so effective.

Beginning in May 2006, Officer McMahon, through his counsel, sent demands to the Department requesting additional written and recorded materials generated by the internal affairs investigation into the 16 citizen complaints-specifically, the audiotapes and transcripts of witness interviews, surveillance notes, case notes, chronological files, summaries, and memoranda. On August 17, 2006, the Department wrote to Officer McMahon‟s counsel, explaining why it would not release any additional materials for review. Among other things, the Department stated that Officer McMahon had been provided with copies of all materials used by the commanding officers who adjudicated the complaints. Also, the Fact Sheet provided to Officer McMahon gave a comprehensive summary of the complaints, including the identities of the complainants. As the officer had been provided with detailed descriptions of the complainants‟ accusations, he had been given adequate opportunity to respond to the accusations consistent with POBRA. Moreover, as none of the complaints was sustained, there were no adverse comments placed in his personnel file requiring a responsive comment.

On November 20, 2006, Officer McMahon filed his verified petition for peremptory writ of mandate to compel the Department to make available for inspection all the undisclosed documents and materials compiled in the course of investigating the personnel complaints against him, such as transcripts of investigative interviews, surveillance notes, case notes, and chronological files. Officer McMahon also sought to inspect two PowerPoint presentations prepared by the Department, relating to the personnel complaints against him, which were used to brief high level Department officials concerning gang enforcement activities. Without access to those materials, Officer McMahon alleged he was unable to ascertain whether his personnel records contained misconduct ...


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