Mifflin v. McDonnell

 

 

 

 

 

 

 

 

Filed 9/6/13  Mifflin v. McDonnell CA2/5

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b).  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
FIVE

 

 
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JASON MIFFLIN,               Plaintiff and Appellant,               v.   JAMES MCDONNELL et al.,               Defendants and Respondents.

B244804         (Los Angeles County       Super. Ct. No. NS024743)

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Joseph E. DiLoreto, Judge.  Affirmed.

            Law Office
of James E. Trott and James E. Trott for Plaintiff and Appellant.

            Robert E.
Shannon, City Attorney and Christina L. Checel, Senior Deputy City Attorney for
Defendants and Respondents.

 

 

 

 

 

 

 

            Jason Mifflin appeals from the judgment denying his
petition for writ of mandate brought pursuant to Code of Civil Procedure
section 1094.5.  The effect of the denial
was to sustain his suspension for 40 hours from his employment as a Long Beach
Police Officer.  Mifflin contends there
is no evidence to sustain the charges against him, and the 40 hour suspension
was an abuse of discretion.  Finding no
error, we affirm.href="#_ftn1" name="_ftnref1"
title="">[1]

 

I.  FACTS

 

            The facts
in this case were undisputed.  On February 17, 2010, Officer Mifflin
was in the booking area of the Long Beach Police Department (the
“Department”).  He used the camera in his
cell phone to record a video of a woman who was face down on the floor in restraints,
screaming and yelling.  Mifflin then sent
the video to his wife, along with a message stating, “I hope you’re enjoying
the party at home.  This is what I am
doing.”  His wife, who also worked for
the Department, was hosting their son’s birthday party.  He also sent the video to a good friend,
along with a message stating, “This is what I’m doing at work tonight.  Do not forward this to anybody.”  The friend did not work for the Department.

            It was also
undisputed that police officers commonly take personal videos and photographs
for their own and the Department’s protection. 
There was no rule or regulation specifically prohibiting officers from
forwarding videos or photographs taken in the course of their duties.

 

 

 

 

 

 

II.  DISCUSSION

A.  Violations

 

            The Department charged Mifflin with engaging in
“negligent and unprofessional conduct” by videotaping the suspect and
forwarding the video to his wife and friend. 
The Department found this conduct violated three provisions of the Civil
Service Rules and Regulations, five provisions of the Department Manual and a
provision of the Long Beach Municipal Code.   


            Appellant
appealed the decision to the Long Beach Civil Service Commission (the
“Commission”), which referred the matter to a hearing officer.  The officer held a hearing and declined to
sustain the 40 hour suspension.  The
officer found:  “This hearing officer
relies primarily on Article VII, § 84 of the Civil Service Rules and
Regulations of the City of Long Beach which sets forth causes for suspension,
demotion, release or discharge.  Based
upon the evidence presented, this hearing officer finds no inexcusable
misconduct on the part of Officer Mifflin. . . . This may have been a minor
lapse in judgment but it does not rise to the level of egregious, malicious, or
inexcusable conduct as alleged by the Complainant’s primary witness.” 

            The
Department opposed the hearing officer’s report and requested the Commission to
hear the matter or find the charge was sustained.  Among other things, the Department noted
there was no allegation Mifflin engaged in “misconduct,” and no violation which
was based on “egregious” or “malicious” conduct.href="#_ftn2" name="_ftnref2" title="">[2]  The Commission’s president reported:  “The Commission found the charge was
sustained by substantial evidence.  Officer
Mifflin admitted to the charge and only disputed that his actions constituted
misconduct . . . . The Commission sustained the chief of police’s decision to
suspend Officer Mifflin for four days.” 

            Appellant
filed a petition for writ of administrative mandamus in the superior
court.  The petition was denied.  “[T]he Court found the weight of the evidence
supports the decision of the Long Beach Civil Service Commission to suspend
[Mifflin].”  

            Appellant
contends both the Commission and the superior court failed to “tie the facts of
the case to the charges resulting in a lack of necessary proof.”

            We review
the superior court’s determination that the Commission did not abuse its
discretion de novo.  (See >Talmo v. Civ. Serv. Comm’n (1991) 231
Cal.App.3d 210, 226.)  That is, we review
“the administrative determination, not that of the superior court, by the same
standard as was appropriate in the superior court.”  (Schmitt
v. City of Rialto (1985) 164 Cal.App.3d 494, 501.)href="#_ftn3" name="_ftnref3" title="">[3]

 

1.  The Commission’s findings of violations

 

            The
Commission’s president reported, “The Commission found that [Mifflin’s] actions
violated Civil Service Rules and Regulations, Article VIII, Section 84,
Subsections 1, 4 and 10;  Long Beach
Police Department Manual Sections 3.1, 3.2, 3.4 and 3.7.”  We review the evidence pertinent to each of
these violations.

 

a.  “Inexcusable Neglect of Duty”

 

Civil Service Rules and Regulations
section 84(4) prohibits the “[i]ntentional or grossly negligent failure to
exercise due diligence in the performance of a known official duty.” 

            Levy
testified some officers will routinely videotape or take pictures to protect
themselves and the Department during the course and scope of their
employment.  He added, “And I think in
this case, perhaps, the first part of what [Mifflin] did, taking the photo to
protect himself, protect the Department” was appropriate.  The negligence occurred in forwarding the
video to a friend with “the potential that that had, for that person to forward
it or post it or do whatever where it gets, as you said,
‘viral’ . . . .” 

            Mifflin did
not safeguard the video he took in the booking area.  By instructing his friend to not forward the
video, Mifflin demonstrated he was aware the video could be sent to others, and
potentially go viral.  This evidence is
sufficient to support the finding that Mifflin negligently failed to exercise
due diligence in the performance of his duty.

 

b.  Courtesy

 

Civil Service Rules and Regulations
section 84(10) prohibits “[d]iscourteous, disruptive or harassing conduct
toward the public or other employees.” 
Department Manual section 3.4 requires an employee to be “courteous and
orderly when working with the public.” 

            Discourteous
conduct includes behavior which is lacking consideration or respect for
others. 
(http://en.wiktionary.org/wiki/discourteous; see
http://www.merriam-webster.com/dictionary/courtesy.)  Sending a video of a person in restraints who
is agitated and emotional shows a lack of consideration or respect for that
person.  It is not courteous.

Mifflin argues his conduct was not
discourteous because the suspect’s face was not visible in the video and her
name was not mentioned.  While these
facts reduce the level of discourtesy, they do not eliminate it.  The suspect’s clothing, hair and skin tone
were visible, and her voice audible.  It
was certainly possible she could have been recognized by someone who knew
her.  This evidence is sufficient to
support the finding that Mifflin was discourteous.

 

 

 

c.  Fairness

 

            Department Manual section 3.2 requires employees to
“[t]reat all persons equally and with fairness.”  Mifflin singled out the suspect in this
incident for videotaping and commentary, apparently because of her extreme
emotional distress.  He did so for his
own personal benefit.  It is reasonable
to conclude Mifflin did not treat this suspect the way he treated other
suspects.  This evidence is sufficient to
support the finding that Mifflin acted unfairly toward the suspect.

 

d. Integrity of the
Department

 

            Department
Manual section 3.7 requires employees to “conduct their private and
professional lives in such a manner as not to harm the integrity or reputation
of the Department.” 

            Mifflin’s
behavior could have damaged the integrity or reputation of the Department.  Commander Levy testified the Department
“works very, very hard day in and day out to garner the respect and trust of
the community members and the people that we serve, especially in the minority
of the community.”  He opined the video
sent by Mifflin had the potential to be very damaging to the reputation of the
department.  Levy also pointed out that
with a video “once you hit that send button, it’s out there.” 

Appellant contends there was
nothing in the video to identify the suspect or the Department, and so there
was no possible harm.  The video was sent
from Mifflin’s cell phone.  Mifflin’s
friend knew the video was made and sent by a Long Beach police officer while on
duty.  Further, as we have discussed, it
is certainly possible the suspect could be recognized by people who knew
her.  The suspect herself could explain
when and where the video was taken.  The
video could have been easily linked to the Department. 

In addition, the restraints and the
position of the suspect strongly suggested the suspect was in law enforcement
custody.  As Commander Levy explained,
misconduct by any police officer affected the reputation of the entire
profession of law enforcement. 
Misconduct in the New York Police Department would affect the Long Beach
Police Department and vice versa.  This
evidence is sufficient to support the finding that Mifflin failed to conduct
his personal and professional lives in manner that would not harm the integrity
or reputation of the Department.

 

e.  Obey other rules and regulations

 

            Civil Service
Rules and Regulations section 84(1) prohibits “[v]iolation of any provision of
the Charter of the City, the Rules and Regulations of the Commission, or any
written departmental or citywide policy, procedure, rule, regulation, or
directive.”  Department Manual section
3.1 requires employees “to obey all State laws, all laws and regulations of the
Department, all Orders and Directives of the Department and Divisions thereof,
and the City of Long Beach Civil Service Rules and Regulations.”

            As we
discuss in this opinion, Mifflin violated provisions of the Civil Service Rules
and Regulations and the Department Manual. 
In so doing, he violated section 84(1) and section 3.1.

 

2.  Superior court’s denial of the writ

 

            In the
minute order denying the writ, the superior court found:  “Although it is true that Officer Mifflin
never violated any specific rules of the Department, [nevertheless] the Court
questions his judgment.  [¶]  Officer Mifflin’s conduct in sending a phone
video to others showing an arrest during the course of a difficult booking
jeopardizes the legal exposure of the City and himself for potential violation
of privacy rights of another.  [¶]  Given the broad language of Chapter 4 of the
Long Beach Police Department Manual section 3.7 his conduct did potentially
harm the integrity or reputation of the Long Beach Police Department” 

            Mifflin
claims the court’s statement that “Mifflin never violated any specific rules of
the Department” means the court found he did not violate any provision in the suspension
letter.  He is incorrect.  In context, the court was simply referring to
the undisputed fact that the Department did not have a rule specifically
prohibiting taking or forwarding videos or photos of a suspect at the police
station.  Violations of eight other rules
and regulations were included in the suspension letter, and the court
specifically found a violation of one of them, Department Manual section 3.7.

Mifflin also argues there was no
“legal exposure” to the Department because the suspect’s face was not visible,
nothing in the video linked it to the Department, and the video did not in fact
go “viral.”  The court was evaluating
Mifflin’s judgment at the time he sent the video.  Mifflin’s comments show he was aware of the
potential for the video to be forwarded, yet sent it anyway.  As we have explained, there was a potential
for the suspect and the Department to be identified. 

 

B.  Penalty

 

            Mifflin
contends the 40-hour suspension was excessive, and the Commission and superior
court abused their discretion in upholding it.

            A court may
overturn an administratively imposed penalty only if the penalty is found to be
“grossly excessive or a manifest abuse of discretion.”  (Richardson
v. Board of Supervisors (1988) 203 Cal.App.3d 486, 494.)

            Generally,
three factors should be considered in evaluating an administrative
penalty:  “the circumstances surrounding
the misbehavior, the degree to which it affected the public service and the
likelihood of its recurrence.”  (>Blake v. State Personnel Board (1972) 25
Cal.App.3d 541, 553-554.)  The court also
considers the nature of the employee’s profession, “since some occupations
carry responsibilities and limitations on personal freedom not imposed on those
in other fields.  [Citation.]”  (Thompson
v. State Personnel Board (1988) 201 Cal.App.3d 423, 429.)  Peace officers may be held to higher
standards of conduct than civilian employees. 
(Department of Corrections &
Rehabilitation v. California State Personnel Board (2007) 147 Cal.App.4th
797, 808.)

            Mifflin
exercised poor judgment in sending the video to his friend.  In so doing, he created a risk of legal
liability for the Department.  “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. [Citation.]”  (>Hankla v. Long Beach Civil Service
Commission (1995) 34 Cal.App.4th 1216, 1223.)  Further, Commander Levy explained the level
of discipline was determined in part by the fact Mifflin knew his conduct was
wrong and did it anyway.href="#_ftn4"
name="_ftnref4" title="">[4]  

 

III.  DISPOSITION

 

            The
judgment is affirmed.  Respondents are to
recover costs on appeal.

                                    NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS

 

                                                KUMAR,
J.href="#_ftn5" name="_ftnref5" title="">*

 

We concur:

 

TURNER, P. J.

 

KRIEGLER, J.