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Robert Lanigan v. City of Los Angeles et al

October 4, 2011

ROBERT LANIGAN, PLAINTIFF AND RESPONDENT,
v.
CITY OF LOS ANGELES ET AL., DEFENDANTS AND APPELLANTS



APPEAL from a judgment of the Superior Court of Los Angeles County, David P. Yaffe, Judge. (Los Angeles County Super. Ct. No. BS123970)

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

CERTIFIED FOR PUBLICATION

Reversed with directions.

The City of Los Angeles (City) appeals 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)*fn1 (Government Code, § 3300 et seq.).*fn2 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 HISTORY

1. 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.*fn3 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.

Under the Agreement, which had no expiration date, in exchange for the City's reduction of Lanigan's penalty to a 22-day suspension, Lanigan agreed to specific future discipline in the event of additional disciplinary charges being filed against him on the basis of a specific category of future misconduct, and agreed to waive several of his rights under POBRA.

In particular, Lanigan agreed to immediately resign from the LAPD if he "acquires any future complaints, while on and/or off duty, based on actions that occur after signing this Agreement, where he engages in any acts of harassment toward any officer(s) of an outside agency and/or fails to cooperate with any on duty officer(s) of an outside agency . . . which are sustained by the Chief of Police." Lanigan agreed to "submit a signed letter of resignation, which [would] be held in abeyance and not executed unless he violates the terms and conditions of this agreement." He confirmed he "[understood] that, should he fail to comply with the terms and conditions of this agreement, his letter of resignation from the [LAPD] previously submitted shall immediately take effect." Lanigan further "accept[ed] his penalty to be served at a time determined by the Chief of Police," agreed in advance to "a factual basis for said discipline and penalty," and "acknowledge[d] that the charges sustained and the discipline imposed will be reflected in his personnel record . . . ."

Lanigan also made promises regarding future remedies, agreeing to forego legal or administrative remedies, and "explicitly waive[d] all rights and remedies available either under the [L.A. Charter] or state law in order to effectuate this Agreement." He "release[d] and forever discharge[d] the City . . . from any and all past, present or future claims, . . . [and] damages," including "all claims or damages which he does not know or suspect to exist at the time of . . . this Agreement and Lanigan" agreed "[t]his release and discharge shall be a fully binding and complete settlement between the parties to this Agreement."

Furthermore, Lanigan confirmed "that before signing this Agreement, he has consulted with an attorney of his own choosing regarding the release of any such claims that he may have as a result of the alleged acts or omissions of the City" and "has been advised that he has twenty-one (21) days to consider this Agreement and . . . seven (7) days after the date on which he signs this Agreement within which to revoke it." Moreover, he agreed that by signing the Agreement he "knowingly and intentionally waives the . . . period for consideration . . . and the . . . revocation period." In the Agreement's last clause, Lanigan confirmed that he "had the opportunity to seek the advice of his[] counsel of choice regarding the terms . . . , that those terms are fully understood and voluntarily accepted by each of the parties."

Lanigan signed the Agreement and resignation on February 18, 2008. At the time Lanigan signed the Agreement, Sergeant Jatkowski, who did not pressure or coerce Lanigan to sign the Agreement, did not recall Lanigan "making any statements to the effect that he felt pressured or 'under duress' or otherwise had any hesitation at all in signing the Agreement."

2. Lanigan's Second Disciplinary Charges and Resignation Pursuant to the Agreement

On September 14, 2008, Lanigan entered an emergency room seeking treatment for lacerations to his right hand. Due to his behavior at the hospital, Lanigan sustained 10 new misconduct counts as set forth in the September 10, 2009 complaint. The new complaint alleged that Lanigan entered the hospital intoxicated, unnecessarily identified himself as an officer, "terrified" other patients, and exhibited discourteous conduct that caused the hospital staff to call the Los Angeles County Sheriff's Department (LASD). The complaint further alleged that he lied to the LASD deputies, claiming he had been dropped off at the hospital by a friend and that his keys belonged to that friend. On September 3, 2009, Deputy Chief Kirk Albanese subsequently charged Lanigan with providing false information and failing to cooperate with an LASD officer.

On September 10, 2009, the chief of police sustained the complaint, processed Lanigan's resignation pursuant to the Agreement, and removed Lanigan from employment.

3. Lanigan's Petition for Peremptory Writ of Mandate

On December 7, 2009, Lanigan filed a petition for writ of mandate to obtain judicial review of the LAPD's decision. Lanigan argued that the Agreement was unenforceable because (1) it purported to waive statutory rights under POBRA enacted for a public purpose and was therefore contrary to law and public policy, and (2) the Agreement was procedurally and substantively unconscionable. Lanigan's petition sought a peremptory writ commanding the City to reinstate him in good standing, award full back pay, and remove the ...


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