Difference In Tenure Can Justify Different Disciplinary Penalty

Benjamin Padilla became a California Highway Patrol officer in March 2003. On August 11, 2005, Padilla and a female officer were working the graveyard shift in the same patrol car. The officers held hands while they were transporting an arrestee, and Padilla failed to observe the arrestee when the arrestee was evaluated for drug use by a drug recognition expert, and instead sent his partner a text message saying, “I love you, sweetie. I want your body so bad right now.”

After the arrest, Padilla drove his patrol car to a “park-and-ride” lot outside his area of responsibility. Padilla and his partner engaged in sex for approximately ten minutes. When the CHP learned of the event, it terminated Padilla. Padilla challenged his termination in the California Court of Appeals.

Padilla first argued that his termination was too harsh. The Court disagreed, reasoning that “given that Padilla’s conduct, if known to the public, would also subject the CHP to discredit, we cannot say that the State Personnel Board’s ruling was arbitrary or capricious. The decision explains Padilla chose to expose his penis and allow his partner to masturbate him to the point of ejaculation while he was parked in his patrol unit at a ‘park-and-ride’ location that he knew to be patrolled by other CHP officers. By risking discovery while he was engaged in such conduct in a public parking lot, he risked arrest for the crime of lewd conduct, and consequential discredit to the CHP. The termination decision concludes the CHP should not be obliged to risk recurrence of Padilla’s inappropriate behavior.”

Padilla also argued that a prior case involving a CHP officer who engaged in sex on duty but was not terminated establishes that Padilla’s punishment was too harsh. The Court disagreed, finding differences between the two cases: “Unlike the prior case, Padilla had only been employed for two years (rather than five years) when he engaged in the misconduct at issue. He offered no evidence whether, like the other officer, he participated in counseling, voluntary or otherwise. Further, the circumstances surrounding Padilla’s misconduct differ from the circumstances in the prior case in one very important way area: Here, Padilla’s on-duty sexual escapade did not occur in the relative privacy of his partner’s home or in a closed department store dressing room. Padilla’s wrongdoing occurred in a public setting frequented by CHP officers, and subjected him to the risk of arrest.”

Padilla v. State Personnel Bd., 2010 WL 1208286 (Cal. App. 4 Dist. 2010).

This article appears in the May 2010 issue