Provided by CPOA Legal Counsel, James R. Touchstone, Jones & Mayer
The California Second District Court of Appeal, in Amezcua v. L.A. Cnty. Civil Serv. Comm’n, held that there was ample evidence to support the trial court’s conclusion that plaintiff was “absent from duty” and had “time away” from duty, such that the Los Angeles County Sheriff’s Department was permitted to extend his period of probation pursuant to Los Angeles County Civil Service Rules, rule 12.02(B). Because the Court correspondingly found no error in the trial court’s conclusion that the plaintiff was a probationary employee at the time of his firing, it necessarily rejected his related argument that he was entitled to a hearing before the Civil Service Commission pursuant to Los Angeles County Civil Service Rules, rule 18.03.
On January 25, 2015, the Los Angeles County Sheriff’s Department (the “Department”) hired David Amezcua as a deputy sheriff generalist. The Department placed Amezcua on a 12-month period of probation.
Generally, a candidate selected for appointment to a position with Los Angeles County (the “County”) must complete a probationary period before obtaining status as a permanent employee, according to rule 12.01(A) of the Los Angeles County Civil Service Rules (“Civil Service Rules”). “The period of probation shall be no less than six nor more than 12 calendar months from the date of appointment to a permanent position, as established by the director of personnel for each class.” (Rule 12.02(A).)
If “an employee is absent from duty during a probationary period, the appointing power may calculate the probationary period on the basis of actual service exclusive of the time away.” (Rule 12.02(B).) “‘Actual service’ means time engaged in the performance of the duties of a position or positions including absences with pay.” (Rule 2.01.) “If a change in the probationary period is made, the employee shall be notified prior to the end of the original probationary period.” (Rule 12.02(B).)
An employee who is still on probation may be terminated “without a hearing and without judicially cognizable good cause.” (Phillips v. Civil Service Com. (4th Dist. 1987) 192 Cal.App.3d 996, 1000; accord, Hill v. California State University, San Diego (4th Dist. 1987) 193 Cal.App.3d 1081, 1090.) A permanent employee, however, is entitled to a hearing before any such termination. (Rule 18.03.)
In July 2015, Amezcua became the subject of an administrative investigation when a female inmate at the detention center where Amezcua was assigned complained that Amezcua had asked her inappropriate personal questions and expressed a desire to have a relationship with her after her release. On or about July 24, 2015, the Department placed Amezcua on relieved of duty status. Amezcua was told that he had to turn in his gun and his badge, go home, and stay at home from 8:30 a.m. to 5:00 p.m. from Monday through Friday.
On or about August 6, 2015, the Department sent Amezcua a letter notifying him that his probationary period was being extended pursuant to rule 12.02: “In accordance with Civil Service Rule 12.02, your probationary period as a Deputy Sheriff Generalist … has been extended. This extension is due to your absence from work as a result of being Relieved of Duty. [¶] Upon your return to full duty status, your unit will notify Personnel Administration and your probationary period will be recalculated.” Amezcua signed a receipt of service, certifying that he had received the letter extending his probation.
On July 18, 2016, the Department terminated Amezcua. Although the administrative investigation was deemed unresolved, the Department concluded that Amezcua had a “propensity to engage in inappropriate communication with inmates, lack of attention to safety, unethical conduct, and poor judgment.”
Amezcua’s subsequent appeal of the probationary discharge was denied in December 2016 by the County Department of Human Resources. Amezcua’s appeal of his termination with the Los Angeles County Civil Service Commission (the “Commission”) was also denied in December 2016. His amended appeal was also denied in February 2017.
Amezcua filed a petition for writ of mandate, contending that: The Department improperly extended his probation; he became a permanent employee 12 months after his hire date; and as a permanent employee, he was entitled to a hearing before discharge. Amezcua argued that the Department violated the Civil Service Rules by extending his probationary period; that he was never “absent from duty” within the meaning of rule 12.02(B), and that his firing as a probationary employee was improper as a matter of law because he became a permanent employee on January 24, 2016, that is, 12 months from the date of his hire.
The trial court denied Amezcua’s petition. The court first determined that “there should be no dispute that [Amezcua] was absent from duty when he was on ‘relieved of duty’ status.” The court also concluded that Amezcua was not performing “actual service as defined in [rule] 2.01 because he was not ‘engaged in the performance of the duties of a [deputy sheriff].’” Pursuant to rule 12.02, the Department was thus entitled to release Amezcua during his extended period of probation. Finally, the court found that Amezcua, as a probationary employee, was not entitled to a hearing before the Commission under rule 18.03.
The Second District Court of Appeal observed that “[t]he construction of county ordinances and rules is subject to the same standards applied to the judicial review of statutory enactments.” (Department of Health Services v. Civil Service Com. (2nd Dist. 1993) 17 Cal.App.4th 487, 494-5; accord, Dobbins v. San Diego County Civil Service Com. (4th Dist. 1999) 75 Cal.App.4th 125, 129.)
Amezcua raised a number of challenges to the trial court’s conclusion that he was a probationary employee at the time of his firing. First, he argued that under the Civil Service Rules, the Department was not authorized “to unilaterally extend [his] probationary period.” Based on the plain reading of rule 12.02(B), the Court rejected this argument, because rule 12.02(B) permitted the “appointing power,” in this case, the Department, to “calculate the probationary period on the basis of actual service exclusive of the time away.” Thus, the Court found no prohibition against the Department acting unilaterally if the other requirements of rule 12.02(B) were satisfied.
Amezcua also argued that because he was paid while on relieved of duty status, the Department was precluded from excluding this period of time from its calculation of his 12-month period of probation under rule 12.02(B). According to Amezcua, because “actual service” was defined as “time engaged in the performance of the duties of a position or positions including absences with pay” (italics added), only absences without pay may be excluded from the calculation of the probationary period. The Court disagreed, explaining that if the drafters of the Civil Service Rules intended to limit the ability of the appointing power to calculate the probationary period based on whether an employee was absent with or without pay, they could have so stated; however, they did not. The Court maintained that rule 12.02 instead expressly permitted the Department to exclude from the calculation of the probationary period those times when an employee was “absent from duty,” and made no reference as to whether that absence was paid or unpaid.
Moreover, the Court explained that even if it accepted Amezcua’s interpretation of “actual service” as “including all absences with pay”—and the Court observed that the term “all” did not appear in rule 2.01—the Court would not correspondingly accept Amezcua’s interpretation of rule 12.02(B) as limiting the calculation of the probationary period to “the basis of actual service” only. The Court found that Amezcua’s construction would render the term “exclusive of the time away,” which immediately followed, as mere surplusage. (Department of Health Services v. Civil Service Com., supra, 17 Cal.App.4th at p. 495, fn. 6.)
Amezcua summarily contended that “[a]lthough the Department relieved [him] of duty, it did not cause him to be ‘absent from duty,’ or impose any ‘time away,’ as those phrases are used in [rules 12.01 and 2.01]”. The Court construed this argument to mean that during the time he was on relieved of duty status, Amezcua was engaged in the duties of a deputy sheriff and thus not absent from or away from duty.
The Court observed that Amezcua failed to identify any duties he was required to perform during the period he was on Relieved of Duty status, and the record did not reflect that while Amezcua was assigned home he was obligated to engage in any task, conduct, service, or function of a deputy sheriff or any other employee. Thus, the Court found there was ample evidence to support the trial court’s conclusion that Amezcua was “absent from duty” and had “time away” from duty, such that the Department was permitted to extend Amezcua’s period of probation pursuant to rule 12.02(B). Accordingly, the Second District concluded that the trial court did not err in denying Amezcua’s petition for writ of mandate. Because Amezcua was a probationary employee at the time of his firing, the Court correspondingly rejected Amezcua’s related argument that he was entitled to a hearing before the Commission pursuant to rule 18.03. The Second District Court of Appeal accordingly affirmed.
A dissenting judge disagreed with the holding, finding that the majority opinion “disregard[ed] key text” and therefore misinterpreted the Civil Service Rules. The dissent argued that rule 2.01 defined “actual service” to mean time engaged in the performance of the duties of a position or positions including absences with pay. Therefore, when considering the definition of “actual service” in rule 2.01 together with rule 12.02, an absence from work with pay qualified as being engaged in the performance of the duties of a position, and under rule 12.02, a probationary period could only be extended (“calculate[d],” in the words of the rule) by excluding any “time away.” Because Amezcua here was being paid during the time when he was placed on relieved of duty status, the dissent maintained that he did not have any “time away” during the period, nor was he “absent from duty.” The dissent therefore would have reversed.
HOW THIS AFFECTS YOUR AGENCY
This opinion affirms the general principle that a probationary employee may be released from service, so long as the reason for the release does not infringe upon constitutional rights or is discriminatory in some manner. The decision also highlights the precision to which agencies must define their terms and policies with respect to personnel issues. The rules of statutory construction were critical to the Court’s analysis in this case, as they are frequently.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at firstname.lastname@example.org.
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 2019 Cal. App. LEXIS 1318 (2nd Dist. Dec. 18, 2019)
 L.A. County Code, tit. 5, appen. 1.
 Pursuant to the Department’s manual of policies and procedures, “[a]n employee may be relieved of duty for disciplinary reasons … .” An employee on relieved of duty status will have his or her badge, identification card, and County-issued firearm taken away. Further, an employee on relieved of duty status may be assigned either to his or her residence or to a relieved-of-duty position. Reasons to assign a relieved of duty employee to his or her residence include if the employee could be discharged.
 The record showed that the only “task” Amezcua was required to perform was to stay at home for particular hours, but the Court stated that the obligation to stay at home, on its own, cannot be characterized as one of the duties of Amezcua’s position as a deputy sheriff.