APPEAL from the Superior Court of Riverside County. Stephen D. Cunnison, Judge. Affirmed in part; reversed in part with directions. (Super.Ct.No. RIC475740).
The opinion of the court was delivered by: Gaut, J.
CERTIFIED FOR PUBLICATION
This action arises from the County of Riverside terminating Leisha Fauth's employment as a senior deputy attorney investigator and thereafter refusing to engage in appeal proceedings provided under a memorandum of understanding (MOU) covering Fauth's employment. The County of Riverside and its board of supervisors, district attorney, and executive officer (collectively, the county) appeal from a judgment entered after the trial court granted the first cause of action of Fauth's petition for a writ of mandamus, seeking an MOU appeal hearing.
Plaintiffs Fauth and the Riverside Sheriffs' Association (plaintiffs) cross-appeal the trial court's denial of the second cause of action of their writ petition, seeking relief under the Public Safety Officers Procedural Bill of Rights Act (POBRA) (Gov. Code, § 3300 et seq.*fn1 ).
The county contends the trial court erred granting the writ petition as to the second cause of action and ordering an MOU appeal hearing. The county argues that Article XII of the MOU, relating to disciplinary appeals, is inapplicable because disciplinary action was not taken against Fauth. Rather, the county applied for involuntary disability retirement for Fauth.
We conclude Fauth was entitled to an MOU appeal hearing on her employment termination. Even though, over eight months after Fauth was terminated, the county applied for involuntary disability retirement, Fauth was nevertheless entitled to an MOU appeal hearing because at the time of the trial court's ruling on Fauth's writ petition, the county had not reinstated her and thus her employment relationship with the county remained severed.
As to Fauth's cross-appeal, we conclude the trial court erred in denying Fauth's second cause of action for POBRA relief. Under POBRA, employment termination is per se punitive. Therefore POBRA applies. The judgment is affirmed as to the first and third causes of action and reversed as to the second cause of action, with directions that the trial court determine whether Fauth is entitled to POBRA relief under section 3309.5, subdivision (e).*fn2
1. Factual and Procedural Background
Fauth was employed as a peace officer for over 11 years. During her employment, from September 2002 to November 2005, she received a job performance evaluation of "Meets Expectations" and numerous commendations from her supervisors. On March 29, 2006, a little over two months before her last day at work, Fauth was promoted from senior investigator to senior investigator II.
Fauth's removal from her job occurred after her husband, Ronald Fauth, sent a 16-page, rambling letter dated June 3, 2006, to the Riverside County Office of the District Attorney (DA), complaining that Fauth was being sexually harassed at work.
On June 5, 2006, Clay Hodson, Chief Investigator at the Riverside DA's Office, received a voice mail message from Ronald, which was largely unintelligible. When Hodson mentioned the call to Fauth and told her he was not sure what her husband wanted, Fauth said Ronald wanted her to give Hodson something. Fauth handed Hodson a copy of Ronald's June 3 letter.
Hodson contacted Dr. Victoria Havassy, a clinical psychologist, who reviewed the letter for Hodson and told him she believed Ronald was paranoid/delusional and represented a threat to DA office employees. She further stated that Fauth also posed a threat because she had personally given Ronald's letter to Hodson and thus appeared to be facilitating her husband's paranoid/delusional behavior. Havassy told Hodson she could envision the Fauths entering the DA office and committing violent acts. Havassy therefore recommended placing Fauth on administrative leave and sending her to Havassy for a psychological fitness-for-duty evaluation.
Hodson sent Fauth a letter dated June 8, advising her that she had been placed on paid administrative leave and suspended Fauth's peace officer powers, including carrying a gun, pending a fitness-for-duty evaluation. Hodson further informed Fauth that any failure to comply could constitute insubordination, which might result in disciplinary action, including termination. A week later Hodson ordered Fauth to undergo a fitness-for-duty evaluation with Havassy on June 20 and 23. Hodson stated in his June 15 letter, "we are concerned about your mental fitness to perform your duties as a peace officer, in particular your fitness to continue to carry a gun." As ordered, Fauth participated in the fitness-for-duty evaluation, which consisted of a battery of tests and a clinical interview by Havassy, focusing on Ronald's letter.
In July, Havassy advised Hodson that, based on the evaluation, she concluded Fauth was not fit for duty as a senior DA investigator and should not be permitted to carry a gun since she did not meet the minimum qualification of psychological fitness for peace officers in California.
In October 2006, as directed by the County, Fauth participated in an interactive process to determine whether employment accommodation could be made for Fauth's alleged mental disability. Fauth and Paul Collins, a Riverside Sheriffs' Association (RSA)*fn3 representative, met with county representatives. Fauth told the county representatives that she was not disabled.
By letter dated November 29, 2006, Hodson told Fauth the county was terminating her paid administrative leave effective November 23, 2006. Hodson stated that Fauth could use her sick leave and the county would assume she wished to do so unless advised otherwise.
In December 2006, Fauth filed with the county a written grievance challenging termination of her paid administrative leave and requested she be returned to paid administrative leave pending resolution of the matter, be reinstated to her former job position, and reimbursed for lost wages and benefits due to the MOU violation.
In response to Fauth's grievance, the county notified Fauth in January 2007 that the county had erred in allowing Fauth to use sick leave during her leave of absence since the DA never asserted Fauth was ill. Rather, Fauth no longer met the peace officer standards and training (POST) standard of psychological fitness for carrying a gun and performing her investigator duties. In addition, the county stated that the DA had no proof of disability, Fauth was not claiming she was ill or disabled, and the county had no reason to disagree.
The county acknowledged that it had initiated the interactive process but belatedly recognized there was no need to continue it because there was no evidence Fauth had a disability requiring accommodation and there was no medical evidence of a disability qualifying Fauth for retirement. Under such circumstances, the county was left with no alternative but to remove Fauth "from employment based on the determination that she is no longer qualified to perform her duty."
By letter dated March 7, 2007, Hodson notified Fauth that she was not qualified to carry a gun required in the performance of her job duties and therefore her employment was terminated, effective March 17, 2007. Hodson added that, since Fauth did not have a property right to her job because she was unqualified, she was not entitled to a hearing on the matter. Hodson added that Fauth was not being terminated for disciplinary reasons and therefore the appeal procedures in Article XII of the MOU were inapplicable. In addition, Hodson stated: "Just as the District Attorney has asserted no illness or disability, you have provided no documentation from any physician, or other medical practitioner, indicating that you are ill or disabled in any way. Indeed, your representatives have consistently asserted that you consider yourself to be not disabled in any way. We have no reason to disagree with that assessment. . . . [D]isability retirement - industrial or non-industrial - while an option in some `fitness for duty' cases is not an option in your case."
About a week later, the RSA filed with the county pursuant to Article XII, of the MOU, a notice of appeal on Fauth's behalf, challenging termination of her employment. The county rejected Fauth's request for an MOU appeal hearing on the ground Fauth's employment was not terminated for a ...