Meghan Pasos v. Los Angeles County Civil Service Commission, Los Angeles County Sheriff's Department, Real Party in Interest and Appellant

The Los Angeles County Sheriff’s Department

(Department) discharged Deputy Sheriff Meghan Pasos based on

her failure to report another deputy’s use of force against an

inmate and her failure to seek medical assistance for the inmate.

During the Department’s subsequent investigation Pasos

admitted she did not report the use of force because she was

concerned she would be “labeled as a rat” by her fellow deputies.

The custody division’s acting chief determined discharge was

appropriate because Pasos’s conduct in perpetuating a code of

silence among deputies undermined the Department’s operation

of the jail and brought embarrassment to the Department. The

Los Angeles County Civil Service Commission (Commission)

affirmed the discharge, but the trial court granted Pasos’s

petition for writ of mandate and directed the Commission to set

aside Pasos’s discharge, award her back pay, and reconsider a

lesser penalty. On appeal, the Department contends the trial

court erred by substituting its own discretion for that of the

Department in determining the appropriate penalty. We agree

and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. Pasos’s Employment

The Department hired Pasos as a deputy sheriff on

June 24, 2007. Beginning in November 2007, she worked at the

3

Men’s Central Jail. In early 2010 Pasos was one of five deputies

assigned to a floor that housed 1,200 inmates. Prior to the

September 27, 2010 use of force incident, the Department had not

taken any disciplinary action against Pasos.

B. The September 27, 2010 Incident1

At approximately 7:30 p.m. on September 27, 2010

commissary employee Anna Garcia informed Pasos, Deputy

Omar Lopez, and Deputy Mark Montez that an inmate had stolen

a bag of food items from the canteen. Garcia provided the

deputies with a physical description of inmate Dequan Ballard.

Lopez took Ballard to the elevator landing area outside the view

of surveillance cameras, where he searched Ballard. Montez

provided security; Pasos stood outside the landing as a lookout.

According to Lopez, during the strip search Ballard tensed

up, so Lopez jabbed him once in the side of his stomach with the

palm of Lopez’s right hand.2 Lopez found the bag of food on

Ballard during the search. Ballard admitted to stealing the bag,

and Lopez sent him back to his dormitory. On Ballard’s return,

he attempted to intimidate Garcia by accusing her of being a

“snitch.”

Garcia reported Ballard’s threat to Montez and Pasos, who

told Lopez. Lopez then pulled Ballard from his dormitory and

took him to an area near the control booth outside the view of the

surveillance cameras. Lopez placed a piece of paper over the

1 The facts are taken from the internal investigations and

testimony before the Commission. Other than where indicated,

the facts are not in dispute.

2 Pasos denied seeing Lopez or Montez hit Ballard during the

strip search.

4

window on the door leading to the dormitory to prevent other

inmates from seeing his interaction with Ballard. A custody

assistant working in the control booth ordered the inmates in the

dorm to get on their bunks. Pasos stood outside the control booth

area and served as a lookout. According to the Internal Affairs

Bureau (IAB) investigative summary, “Lopez then pushed

Complainant Ballard’s head against the wall, causing severe

bleeding from his face, nose, and mouth areas.” Ballard’s blood

soaked his clothing and splattered on the wall and the floor in

front of the control booth. Lopez told the IAB investigators he

pushed Ballard’s face against the wall because Ballard made a

“fast movement” towards him.

According to Pasos, she was not paying attention to the

interaction between Lopez and Ballard because she was

monitoring the inmates approaching the hallway area. She was

standing four or five feet away from Lopez and Ballard with her

back to them.3 At some point she turned around and saw Ballard

wipe his bloody nose. Pasos also saw blood on the wall and on

Ballard’s clothing. Pasos asked Lopez what happened, and Lopez

told her he had shoved Ballard’s head into the wall. Pasos told

Lopez he “better handle the paperwork” and report his use of

force. Lopez stated, “Don’t worry about it, I will.” Pasos

responded, “Well, you better because you are on your own.”

Pasos left and continued with her shift.

Lopez left Ballard in the control booth area, then Lopez

returned with a custody assistant and clean inmate clothing for

Ballard. Ballard changed his clothing, and Lopez escorted him

3 Pasos told the IAB investigators she was standing 10 feet

away from Lopez and Ballard during the incident. But she later

testified before the Commission she was four to five feet away.

5

back to his dorm room. Floor Sergeant Robert Jones walked into

the area after the battery, but no one notified Sergeant Jones of

the use of force. After the sergeant left, Lopez and the custody

assistant kicked Ballard’s bloody clothing away from the control

booth area and down the hallway. Lopez directed a trusty4 to

clean the floor and wall area in front of the control booth. Lopez

described the blood on the wall as “visible.” Lopez and the trusty

later threw Ballard’s bloody clothing into the trash.

C. Ballard’s Complaint and the Investigations

At approximately 10:00 p.m. Ballard notified floor Sergeant

Joseph Monarrez that he had been assaulted by Lopez and

another deputy in the elevator landing, and again in the control

booth area. Sergeant Monarrez observed a cut on the bridge of

Ballard’s nose and sent him to the clinic for medical treatment. A

physician examined Ballard and treated him for his injuries.

According to the IAB investigative summary, the medical records

“indicate that the bridge of Complainant Ballard’s nose was

swollen with a 1/2 inch curved superficial laceration, his left

lower lip was swollen and had been lacerated by his teeth, and he

had large swelling underneath his right eye with a pinpoint

superficial puncture in the center.”

Sergeant Monarrez viewed the videos from the surveillance

cameras, which corroborated Ballard’s description of the deputies’

actions. After discovering that none of the three deputies had

reported the two incidents, Sergeant Monarrez notified the watch

commander, who informed the commander captain. The

4 A trusty is an inmate who performs duties in the jail in

return for privileges. (Bradshaw v. Duffy (1980) 104 Cal.App.3d

475, 478.)

6

commander captain requested the Internal Criminal

Investigations Bureau (ICIB) conduct a criminal investigation.

After an investigation, the ICIB submitted the case to the

district attorney’s office for review. The district attorney’s office

declined to file felony charges. On June 14, 2012 the case was

referred to the IAB for an administrative disposition.

D. Pasos’s IAB Interview

During her interview with the IAB investigators, Pasos

stated Lopez told her he had shoved Ballard’s head into the wall.

Pasos explained, “At that point, I freaked out. I didn’t know what

the hell to do.” Pasos stated Lopez put her “in a really bad

position.” She added, “And at that point, a million things are

going through my mind. I felt like, ‘Dude, I didn’t—I didn’t do

this. Why did you even have to tell me? Like if this was

something you were going to do, then keep that shit to yourself.’

But I acted on impulse, I just honestly wanted to close my eyes

and act like I didn’t see shit. I didn’t want to know anything. I

just wanted to get out of there.”

Pasos admitted she did not report the incident to a

supervisor or write a report. Pasos explained, “It’s kind of like I

didn’t want to be labeled as a rat. And just decided to keep my

mouth shut. And I kick myself in the ass every day ’cause I’d

much rather have that label right now than be in the position I’m

in.” Pasos later added, “[Lopez] always worked my shift and I

always worked on his, and you know, I’ve never been put in that

situation before. . . . [I]f he didn’t want to take it upon himself to

report his force that he used, I thought that if I stepped above

him, and took it on myself and reported it, I was going to be

ratting on him and I was afraid of the repercussions of, you know,

7

ratting on him with my partners . . . . I just didn’t report it. I

don’t have an excuse.” Pasos stated at the conclusion of the

interview, “I continued to work after this incident occurred and I

truly learned my lesson.”

E. Pasos’s Discharge and Appeal to the Commission

On April 2, 2013 Alexander R. Yim, chief of the custody

division, made the initial decision to discharge Pasos. A panel of

three commanders from other divisions reviewed Pasos’s case and

agreed with Chief Yim’s decision. On April 8, 2013 the

Department served Pasos with a letter of intent to discharge her,

effective April 29, for failing to report the use of force and not

seeking medical attention for Ballard despite observing Ballard

bleeding from the nose and Lopez’s disclosure he had pushed

Ballard’s head into a wall. The letter concluded, “Your actions

have brought discredit upon yourself and the Department.” The

Department charged Pasos with multiple violations of the

Department’s Manual of Policy and Procedures (MPP) (1996),

including sections 3-01/030.05 (general behavior), 3-01/050.10

(performance to standards), 3-01/030.10 (obedience to laws,

regulations and orders), 3-10/100.00 (rev. 12/19/12) (use of force

reporting and review procedures), and 3-01/040.97 (safeguarding

persons in custody).

MPP section 3-01/030.05 (general behavior) states, “A

member shall not act or behave privately or officially in such a

manner as to bring discredit upon himself or the Department.”

MPP section 3-01/050.10 (performance to standards) provides,

“Members shall maintain sufficient competency to properly

perform their duties and assume the responsibilities of their

positions.” A member demonstrates a lack of competence by “[a]n

8

unwillingness or inability to perform assigned tasks” or a

“[f]ailure to conform to work standards established for the

member’s rank or position.” MPP section 3-01/030.10 (rev.

5/22/11) (obedience to laws, regulations, and orders) provides for

disciplinary action for violation of Department rules, regulations,

or policies, including a written reprimand, suspension without

pay, reduction in rank, and dismissal.

MPP section 3-10/100.00 (rev. 12/19/12) (use of force

reporting and review procedures) requires deputies to notify their

supervisors whenever they “witness[] reportable force used by

another Department member.” The section also provides that a

suspect must be transported to a medical facility for examination

and treatment if the suspect “[s]trikes their head on a hard

object, or sustains a blow to the head/face, as a result of the

application of force by a Deputy, regardless of how minor any

injury to the head/face may appear. . . .” Section 3-10/040.97

(safeguarding persons in custody) provides, “Members having in

their custody any person under arrest or detention shall properly

safeguard such person and his property.”

David Fender, who was then the acting chief of the Men’s

Central Jail, conducted a Skelly5 hearing on April 29, 2013. As

the hearing officer, Acting Chief Fender reviewed the entire case

file, including the interview transcripts and videos, investigation

5 In Skelly v. State Personnel Board (1975) 15 Cal.3d 194,

215, the Supreme Court held a permanent civil service employee

has due process rights to certain preremoval safeguards,

including “notice of the proposed action, the reasons therefor, a

copy of the charges and materials upon which the action is based,

and the right to respond, either orally or in writing, to the

authority initially imposing discipline.”

9

reports, and videos from the surveillance cameras. Acting Chief

Fender determined discharge was the appropriate discipline.

Pasos was discharged on May 7, 2013. Pasos appealed her

discharge to the Commission.

F. Testimony Before the Commission’s Hearing Officer

1. Acting Chief Fender’s testimony

Acting Chief Fender testified discharge was the appropriate

discipline. He explained, “It was actually—it’s a pretty troubling

case and a very sad case, in that there was another deputy that

caused the injury to this inmate. But when you look at the case

and the facts, it was actually Ms. Pasos’[s] actions that are

probably more egregious in the sense that it has to do with—with

what the public is usually concerned about, and that’s [the] code

of silence. [¶] And that’s something that’s seen, and Deputy

Pasos elected not to do anything about it, not report what she had

seen to a supervisor. And basically hoped that either Lopez did

what he said he was going to do and take full responsibility, or

just hope that nothing ever came up. She walked away. But

that’s not what we expect of our employees.” Acting Chief Fender

added, “Seeing misconduct, and not reporting it to the supervisor

and distancing herself, not taking responsibility, not caring for

the inmate. . . . That’s what people believe at times goes on in

law enforcement, and that’s something we do not stand for. [¶]

When you have a situation like this, you have to take action. You

have to discipline the employees, and you have to send a loud and

clear message throughout the organization. This will not be

tolerated.”

Acting Chief Fender concluded Pasos violated the

Department’s general behavior policy by “not reporting

10

misconduct, walking away from a situation where an inmate was

injured, [and] not ensuring that the inmate received medical

care.” He added, “[Pasos] created a situation that would bring

embarrassment to the Department. [¶] The period of time that

this incident plays out is also at a time the Department was

under scrutiny by the public, by the [B]oard of [S]upervisors, as it

turns out the FBI, believing that there was excessive force being

used in Men’s Central Jail. You know, it just added to the

embarrassment that the Department was under at that time.”

Acting Chief Fender also found Pasos violated the

Department’s performance to standards policy. Although Pasos

did not see Lopez’s use of force, “[s]he had enough information to

know what happened.” But “[s]he never questioned Deputy

Lopez again. Never went back to him to see if he had reported it

to a supervisor. Never bothered to check to see if the inmate

received medical care.” Acting Chief Fender added he might not

have discharged Pasos if her failure to report force and to seek

medical attention was simply an oversight or a training issue.

But Pasos “was more concerned about repercussions from her

peers being viewed as a rat, being viewed as a snitch, that was

more of her concern.”

Acting Chief Fender denied using Pasos to send a message.

But he admitted, “We needed to send a message in how we dealt

with code of silence issues, excessive force, unwarranted force.

You know, what level discipline we were going to impose. It was

like, zero tolerance.”

Under the guidelines for discipline in effect at the time, the

discipline for failing to safeguard an inmate ranged from a

reprimand to a 10-day suspension. The discipline for failure to

report witnessed force ranged from a suspension of five to 15

11

days. But discipline for violations of the performance to

standards and general behavior policies ranged from a written

reprimand to discharge.6

2. Pasos’s testimony

Pasos testified she was “acting as [Lopez’s] eyes” when she

monitored the other inmates in the hallway. She was standing

four to five feet away and had her back to Lopez and Ballard at

the time of the battery and did not see or hear what was going on.

At one point, she turned around and saw Ballard wipe his bloody

nose. But Ballard did not turn and face Pasos, so Pasos did not

see a fat lip or cut on his nose. She denied being present when

Lopez gave Ballard new clothing, when Lopez asked a trusty to

clean blood off the wall, or when the trusty cleaned up the blood.

Pasos admitted she did not take Ballard to the clinic for a

medical evaluation or check to see if he had been given medical

assistance.

Lopez told Pasos he shoved Ballard’s head into the wall,

but she did not ask for any details. She explained, “I wasn’t

going to question my partner on why he used force or why he

didn’t use force. It is not my place to ask him the details of the

force that he used. That’s the supervisor’s job. That if he used

6 The guidelines provide that “[g]enerally, discipline will

follow a ‘progressive-step method.’” However, “[i]t is not

necessary to have imposed each lower step of discipline prior to

imposing a given level. Circumstances may call either for bypassing or imposing repetitive discipline.” Further, “[f]ailure of

an employee to perform his or her assigned duties so as to meet

stated or implied standards of performance may constitute

adequate grounds for suspension, reduction or discharge.”

12

force he need[s] to report it.” Pasos denied she had a duty to

report if she was simply aware of the use of force, explaining, “My

understanding of the force policy was if I physically used force on

an inmate or I witnessed with my eyes that my partner was using

force, then I needed to report force.”

Pasos learned Lopez had not reported his use of force when

she spoke with ICIB investigators by telephone the next morning.

Pasos continued to work for a year on a different floor without

any disciplinary issues. She received “very good” performance

evaluations during the time periods before and after the incident.

Pasos was relieved from duty on October 4, 2011. She was

surprised she was being discharged, stating, “I didn’t see my

partner use force. I didn’t think that I needed to report my

partner’s force. And I didn’t think I did anything wrong.” She

thought Lopez was going to report his use of force because he

indicated he would and “it is common sense.” As to her concern

she “didn’t want to be labeled as a rat,” Pasos testified, “In my

line of work, all we have is each other’s word and each other’s

trust. And I never want to create a situation for my partner

where I was going to report force that he used that I knew

nothing about. [¶] I didn’t want to just jump ahead of him and

assume he wasn’t going to report force and go report force to our

supervisor and create a situation where now I could potentially

get him in trouble when in all reality he was going to report his

force, on his time.”

3. Sergeant Cheatham’s testimony

Sergeant Eric Cheatham testified as a character witness for

Pasos. Cheatham was a postcertified force instructor who

supervised Pasos in 2010 as the supervising line deputy.

13

Deputies were required to report if they used force or witnessed

force. If deputies came after the use of force was over and

observed injuries on an inmate, they were not required to report

it. Cheatham testified, “[I]n my 23 years I have never heard of a

deputy getting in trouble for that, for not reporting secondhand

use of force which I believed occurred to [Pasos].”

Cheatham disagreed with the decision to discharge Pasos.

He explained, “I don’t think what occurred was right. And it was

so—at the time at Men’s Central Jail there was a political

climate. It was like the Department was turned upside down on

its head all the way going to the top from sheriff down. [¶] And

so when deputies had incidents during this time period, they

were judged swiftly and harshly. . . . Some deputies deserved to

get that trouble and to be terminated. But I also think that there

are some instances and hers in particular which is egregiously

over correct was made in reference to her incident. [¶] . . . [¶]

She was the best deputy on the floor. She was one of the hardest

working deputies on the floor. And to my knowledge she had a

flawless record. She had never been disciplined. I never

disciplined her. She is my go-to person. She had a minimum of

very good annual evaluations.”

G. The Commission’s Decision

On April 12, 2016 the Commission’s hearing officer issued

his proposed findings of fact, conclusions of law and

recommendation. The hearing officer found Pasos intentionally

chose not to report Lopez’s use of force and failed to seek medical

attention for an injured inmate. Pasos did not report Lopez’s use

of force because she was “concerned about being considered a ‘rat’

or ‘snitch’ by her co-workers and the impact that may have on

14

relationships with her co-workers and shift partner.” Further,

Pasos’s “actions w[ere] clearly a discredit to the Department as

well as presented potential legal actions.” The hearing officer

found the Department met its burden to provide evidence Pasos

violated the MPP for general behavior; performance to standards;

obedience to laws, regulations and orders; use of force reporting

and review procedures; and safeguarding persons in custody.

The hearing officer concluded, “[I]t is clear that [Pasos’s] behavior

in this matter was so egregious that it merited the highest level

of discipline available.” The Commission adopted the hearing

officer’s findings of fact and sustained the Department’s decision

to discharge Pasos.

H. The Trial Court’s Decision

On February 16, 2017 Pasos filed a verified petition for writ

of mandate in the superior court challenging her discharge. After

a hearing, on May 3, 2018 the trial court granted the petition and

ordered the Commission to set aside Pasos’s discharge. The court

found Pasos violated the Department’s policies by failing to

report the use of force and to obtain medical treatment for

Ballard, bringing embarrassment to the Department. But the

court concluded, “The Commission manifestly abused its

discretion by upholding the Department’s discharge of Pasos.”

The court reasoned, “The Department’s desire to clean up inmate

abuses at the jail is a legitimate and just operational

consideration. It apparently is also true that the [c]ode of

[s]ilence among deputies was creating problems for the

Department’s effort to do so.” However, “[t]he Department—

Chief Fender in particular—seemed to be caught up in the

whirlwind of negative publicity about inmate abuse at the jail,

15

deciding to discharge every deputy involved in any aspect of an

inmate abuse incident in order to deflect media and public

criticism. That was not his job. As decision-maker, he was

tasked with imposing a fair and appropriate discipline for Pasos’s

misconduct under the [g]uidelines, taking into account any

potential adverse publicity for the Department, but also

considering Pasos’s actual misconduct. He may not discharge

employees out of departmental hysteria to avoid criticism.” On

June 14, 2018 the trial court entered a judgment granting Pasos’s

petition for writ of mandate.

DISCUSSION

A. Standard of Review

“‘[In] a mandamus proceeding to review an administrative

order, the determination of the penalty by the administrative

body will not be disturbed unless there has been an abuse of its

discretion.’” (Skelly v. State Personnel Board (1975) 15 Cal.3d

194, 217 (Skelly); accord, County of Los Angeles v. Civil Service

Com. of County of Los Angeles (2019) 40 Cal.App.5th 871, 877

(County of Los Angeles).) “Neither an appellate court nor a trial

court is free to substitute its discretion for that of the

administrative agency concerning the degree of punishment

imposed.” (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395,

404; accord, Bautista v. County of Los Angeles (2010)

190 Cal.App.4th 869, 877 (Bautista); County of Los Angeles, at

p. 877 [“The court may not substitute its own judgment for that of

the Commission, nor ‘disturb the agency’s choice of penalty

absent “‘an arbitrary, capricious or patently abusive exercise of

discretion’” by the administrative agency’ [citation], but must

16

uphold the penalty if there is any reasonable basis to sustain

it.”].)

“The appellate court conducts a de novo review of the

penalty assessed, giving no deference to the trial court’s

determination.” (Deegan v. City of Mountain View (1999)

72 Cal.App.4th 37, 46; accord, Cate v. State Personnel Bd. (2012)

204 Cal.App.4th 270, 284.) “Only in an exceptional case will an

abuse of discretion be shown because reasonable minds cannot

differ on the appropriate penalty.” (County of Los Angeles, supra,

40 Cal.App.5th at p. 877; accord, Bautista, supra,

190 Cal.App.4th at p. 879.)

B. The Department Did Not Abuse Its Discretion in

Discharging Pasos

Pasos contends the Department was required to follow its

written guidelines for discipline and impose a lesser penalty than

discharge. Under the Department’s guidelines for discipline, the

penalty for failure to report witnessed force ranges from a

suspension of five to 15 days, and the penalty for failure to

safeguard an inmate ranges from reprimand to a 10-day

suspension. But Pasos’s conduct went beyond a failure to report

the force and to seek medical attention for Ballard. According to

Acting Chief Fender, Pasos committed a more egregious violation

of Department policy by perpetuating a code of silence among

deputies in the jail, which encouraged other deputies to ignore

their responsibilities and brought embarrassment to the

Department. Thus, Pasos’s conduct also violated the general

behavior policy, which requires a deputy “not act or behave

privately or officially in such a manner as to bring discredit upon

17

himself or the Department.” Discipline for a violation of either of

these policies ranges from a written reprimand to discharge.7

“In considering whether . . . abuse occurred in the context

of public employee discipline, . . . the overriding consideration in

these cases is the extent to which the employee’s conduct resulted

in, or if repeated is likely to result in, ‘[harm] to the public

service.’” (Skelly, supra, 15 Cal.3d at p. 218; accord, County of

Los Angeles, supra, 40 Cal.App.5th at p. 878 [same]; Kolender v.

San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716,

721 (Kolender) [“‘The public is entitled to protection from

unprofessional employees whose conduct places people at risk of

injury and the government at risk of incurring liability.’”].)

“Other relevant factors include the circumstances surrounding

the misconduct and the likelihood of its recurrence.” (Skelly, at

p. 218; accord, County of Los Angeles, at p. 877.) “Whether an

employee’s conduct has resulted or is likely to result in harm to

the public service if repeated requires consideration of the nature

of the employee’s profession, because ‘some occupations such as

law enforcement, carry responsibilities and limitations on

personal freedom not imposed on those in other fields.’” (County

of Los Angeles, at p. 878; accord, Cate v. State Personnel Bd.,

supra, 204 Cal.App.4th at p. 285.)

“‘A deputy sheriff’s job is a position of trust and the public

has a right to the highest standard of behavior from those they

7 Because we conclude the Department did not abuse its

discretion in discharging Pasos based on her perpetuation of the

code of silence in the jail, we do not reach whether the

Department could have discharged Pasos under the general

behavior policy or performance to standards policy based only on

her failure to report the force and to seek medical attention.

18

invest with the power and authority of a law enforcement officer.

Honesty, credibility and temperament are crucial to the proper

performance of an officer’s duties.’” (Kolender, supra,

132 Cal.App.4th at pp. 721; accord, County of Los Angeles, supra,

40 Cal.App.5th at p. 878 [“[p]eace officers specifically are held to

higher standards of conduct than civilian employees”].) Law

enforcement officers “‘are the guardians of the peace and security

of the community, and the efficiency of our whole system,

designed for the purpose of maintaining law and order, depends

upon the extent to which such officers perform their duties and

are faithful to the trust reposed in them.’” (Hankla v. Long Beach

Civil Service Com. (1995) 34 Cal.App.4th 1216, 1224 (Hankla);

accord, County of Los Angeles, at p. 879.)

The Courts of Appeal have upheld the discharge of law

enforcement officers where the officers’ conduct resulted in harm

to the public service. (See, e.g., County of Los Angeles, supra,

40 Cal.App.5th at pp. 878-879 [Commission abused its discretion

in reducing deputy sheriff’s discharge to 30-day suspension where

deputy failed to report fellow deputy’s use of force and lied during

investigation];8 Cate v. State Personnel Bd., supra,

204 Cal.App.4th at pp. 272, 285-287 [State Personnel Board

abused its discretion in reducing correctional officer’s dismissal to

30-day unpaid suspension where officer encouraged a mentally ill

inmate to attempt suicide, altered the inmate’s “bed card” to

include self-serving statements, called a fellow officer a snitch,

8 County of Los Angeles, supra, 40 Cal.App.5th 871 involved

the discipline imposed on Montez following his failure to report

the use of force by Lopez against Ballard on September 27, 2010

and Montez’s subsequent lie that he had not observed any

injuries to Ballard.

19

and lied about his conduct]; Kolender, supra, 132 Cal.App.4th at

pp. 721-722 [civil service commission abused its discretion in

reducing deputy sheriff’s penalty from dismissal to 90-day

suspension where deputy lied about another deputy’s physical

abuse of an inmate]; Hankla, supra, 34 Cal.App.4th at pp. 1225-

1226 [civil service commission abused its discretion in reducing

police officer’s discharge to suspension where off-duty officer

engaged in unjustified traffic dispute, escalated argument, and

recklessly discharged firearm]; Talmo v. Civil Service Com.

(1991) 231 Cal.App.3d 210, 229 [upholding discharge of deputy

sheriff who “committed battery on prisoners, made threats and

racial slurs against a co-employee and . . . falsely denied these

actions to his supervisors”]; Paulino v. Civil Service Com. (1985)

175 Cal.App.3d 962, 972 [upholding dismissal of deputy sheriff

who made false statements about his health and sick leave

usage]; Flowers v. State Personnel Bd. (1985) 174 Cal.App.3d 753,

756, 761 [upholding dismissal of correctional officer who “was

dishonest, misused state property, and was insubordinate”].)

Our decision in Bautista is instructive. In Bautista, the

Department discharged a deputy sheriff for engaging in a close

personal relationship with a known heroin-addicted prostitute, in

violation of the Department’s prohibited-association policy.

(Bautista, supra, 190 Cal.App.4th at p. 871.) In upholding the

discharge, we considered the division chief’s testimony that the

deputy’s “long-standing personal association with [the prostitute],

along with her multiple detentions by the Gardena Police

Department while he was with her, embarrassed the Department

and undermined its reputation in both the law enforcement

community and the public it is charged with protecting.” (Id. at

p. 878.) We rejected the deputy’s contention the Commission

20

abused its discretion in upholding his termination, noting the

Department’s guidelines for discipline expressly stated discharge

was the appropriate punishment. (Id. at p. 879.)

Similar to Bautista, Acting Chief Fender testified Pasos’s

conduct brought potential embarrassment to the Department and

undermined its reputation with the public “at a time the

Department was under scrutiny by the public.” Acting Chief

Fender described Pasos’s conduct as furthering the code of silence

at the Men’s Central Jail, requiring the Department to take

action, including disciplining the employees involved and sending

“a loud and clear message throughout the organization [that t]his

will not be tolerated.”

Further, Pasos’s conduct in following the code of silence

undermined the Department’s trust and confidence in Pasos as a

deputy sheriff and negatively impacted the operation of the jail.

As Acting Chief Fender explained, “[Y]ou have to expect that

you’ve hired good credible people that are going to speak up when

they see something wrong, or they see, in this case, force. They

have to report it just like the individual that used it. And if they

don’t, then it opens the door for other people to violate policy,

conduct themselves in a way that violates law, policy.” As the

court in County of Los Angeles, supra, 40 Cal.App.5th at page 880

observed, “It is simply intolerable that dishonesty and a culture

of silence that countenances abuse of prisoners be permitted

within the ranks of those charged with public safety and welfare.”

In addition, at the Commission hearing Pasos minimized

her responsibility to report the use of force, asserting she had no

duty to report because she had not personally witnessed the

battery. But Lopez admitted to Pasos he pushed Ballard’s face

into the wall; Ballard suffered “severe bleeding from his face,

21

nose, and mouth areas”; Pasos saw Ballard wipe blood from his

nose; and she saw blood on the wall and on Ballard’s clothing.

There was so much blood from Ballard’s injuries that Lopez had

to bring him a change of clothes and enlist the assistance of a

trusty to clean the blood off the floor and wall. Pasos testified she

saw Ballard wipe his bloody nose, but somehow she did not see

that he had a swollen lip, a cut on his nose, and “large swelling

underneath his right eye.” Notwithstanding the severity of the

battery, Pasos stated at the Commission hearing, “I wasn’t going

to question my partner on why he used force or why he didn’t use

force. It is not my place to ask him the details of the force that he

used. That’s the supervisor’s job. That if he used force he need[s]

to report it.” Pasos’s claim she had no duty to report ran counter

to her initial stated reason for not reporting the use of force—that

she did not want to “rat” on her partner. As she explained, “I

thought that if I stepped above him, and took it on myself and

reported it, I was going to be ratting on him and I was afraid of

the repercussions of, you know, ratting on him with my

partners . . . .”

We recognize Pasos’s conduct did not involve the level of

dishonesty at issue in many law enforcement discharge cases,

including County of Los Angeles, supra, 40 Cal.App.5th at pages

878 to 879, in which our colleagues in Division One found the

Commission abused its discretion in reversing Montez’s discharge

for failure to report Lopez’s use of force where Montez also lied

about the incident during the investigation. Similarly, in

Kolender, supra, 132 Cal.App.4th at page 722, the deputy was

terminated because he was “complicit in covering up abuse of an

inmate” by lying to protect a fellow deputy. Likewise, in Talmo v.

Civil Service Com., supra, 231 Cal.App.3d at page 229, the

22

deputy was discharged because he committed battery on inmates,

made threats and racial slurs towards fellow employees, and lied

about his actions to his superiors. But we are not “free to

substitute [our] discretion for that of the administrative agency

concerning the degree of punishment imposed.” (Barber v. State

Personnel Bd., supra, 18 Cal.3d at p. 404; accord, Bautista, supra,

190 Cal.App.4th at p. 877.) Given the Department’s reasoned

explanation that discharge was necessary in light of Pasos’s

furtherance of the code of silence in the Men’s Central Jail and

the resulting embarrassment and loss of trust in the Department,

this is not the “exceptional case” where “reasonable minds cannot

differ on the appropriate penalty.” (County of Los Angeles, at

p. 877; accord, Bautista, at p. 879.)9

The judgment is reversed. On remand the trial court shall enter a new judgment denying the petition for writ of mandate. The trial court faulted the Department for not considering as mitigation, among other factors, Pasos’s lack of prior discipline and positive work with inmates for more than a year after the incident. But given Pasos’s stated fear from the consequences of “ratting” on a fellow deputy and minimization of her responsibility to report the severe battery on Ballard, these factors do not demonstrate misconduct is unlikely to recur. (See County of Los Angeles, supra, 40 Cal.App.5th at pp. 880-881 [rejecting Commission’s conclusion misconduct was unlikely to recur because deputy sheriff had “received ratings of ‘Very Good’ in his performance evaluations, including after the use of force incidents” and “continued to perform his duties at the jail for a year after the incident with no reports of abuse or misconduct”].) The Los Angeles County Sheriff’s Department is entitled to recover its costs on appeal.