A police officer who was subject to disciplinary proceedings could agree to waive his right to an administrative appeal under the Public Safety Officers Procedural Bill of Rights Act (“POBRA”) and to resign if similar misconduct charges were upheld in the future. (Lanigan v. City of Los Angeles (— Cal.Rptr.3d —-, Cal.App. 2 Dist., October 4, 2011).)
In 2006, while Robert Lanigan (“Lanigan”) was off-duty from his job as an officer for the Los Angeles Police Department (“LAPD”), he was stopped by an officer from another police department for wrongly driving his personal vehicle in a carpool lane. The stop resulted in three misconduct allegations including harassment and refusal to comply. The chief of police referred the matter to the Board of Rights (“BOR”) and recommended termination. Before the BOR hearing, Lanigan’s attorney negotiated a settlement agreement (“Agreement”) with the LAPD. The attorney advised Lanigan to sign the Agreement to avoid having Lanigan appear before the BOR because the attorney believed the BOR would terminate Lanigan.
The Agreement provided that in exchange for reducing Lanigan’s penalty to a 22-day suspension, Lanigan agreed to waive some of his rights under POBRA if additional disciplinary charges were filed against him in the future. Lanigan agreed he would immediately resign if there were future complaints that he harassed or failed to cooperate with any officer from an outside agency. Lanigan agreed to provide a signed letter of resignation and the LAPD would hold the letter in abeyance and not execute it unless he violated the terms of the Agreement. Lanigan agreed to forego legal or administrative remedies in the event he failed to abide by the terms of the Agreement and to release the City of Los Angeles (“City”) from all claims and damages. The Agreement provided Lanigan had 21 days to consider the Agreement and seven days after execution to revoke it. Lanigan acknowledged that he was knowingly and intentionally waiving his rights.
In 2008, Lanigan sustained 10 new misconduct charges after he allegedly showed up at an emergency room intoxicated, lied about driving himself to the hospital and failed to cooperate with an officer from the sheriff’s department. As a result of this incident, the chief of police processed Lanigan’s resignation and removed Lanigan from his employment with the LAPD.
Lanigan filed a petition for writ of mandate seeking judicial review of the LAPD’s decision. The trial court held that the Agreement was unenforceable and void and reinstated Lanigan to his employment.
The Court of Appeal reversed the judgment of the trial court and held the Agreement was valid and enforceable. The Court held that an officer may waive his or her POBRA protections in the context of a pending disciplinary action.
The Code of Civil Procedure section 1094.5 provides for judicial review of administrative decisions of public entity employers such as the LAPD. POBRA mandates that basic rights and protections must be provided to all peace officers by the public entities that employ them, including rights connected to disciplinary proceedings and the right to an administrative appeal.
The Court concluded an officer may waive POBRA protections when he or she is faced with disciplinary proceedings as long as any waiver is voluntary and the officer is aware of the circumstances and likely consequences. A statutory benefit given pursuant to law established for a public reason may be waived as long as the applicable statute does not prohibit the waiver, the public purpose of the statute is incidental to its primary purpose and the waiver does not seriously undermine the statute’s public purpose.
Here, the Court concluded Lanigan’s waiver of POBRA protections did not violate Civil Code section 3513, which prohibits a law that is established for public reason from being contravened by a private agreement. Lanigan was not required to provide a preemployment blanket waiver of his rights under POBRA. Lanigan was faced with a choice between signing the Agreement or appearing before the BOR and facing what his attorney thought would be certain termination. Lanigan’s decision to sign the Agreement allowed him to enjoy the benefits of continued employment subject only to a future event that he was able to control.
During the time Lanigan was still employed under the terms of the Agreement, he never challenged its validity. The Court concluded Lanigan’s only complaint could be that he engaged in conduct that triggered the terms of the Agreement that caused him to resign. Lanigan cannot now avoid the discipline that he consented to when he signed the Agreement. Lanigan’s waiver of his POBRA rights was knowingly made and he was well aware of the relevant circumstances and likely consequences.
The Court held Lanigan failed to show that his decision to enter into the Agreement was the result of fraud, mistake, undue influence or duress. He did not establish that he had no reasonable alternative other than signing the agreement because he could have appeared before the BOR. Lanigan could not show that the Agreement was procedurally unconscionable because he failed to establish it was adhesive, oppressive or a surprise. The Agreement was not substantively unconscionable because it was not unfairly one-sided and it protected Lanigan’s job.
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.