Hunter v. City of Los Angeles Plaintiffs' Opposition to Motion for Intervention and Declaration of Bill Lann Lee

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me 208

BILL LANN LEE 
CONSTANCE L. RICE 
KEVIN S. REED 
NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC.
315 West Ninth Street, Suite 208 
Los Angeles, CA 90015 
Telephone: (213) 624-2405

THERESA FAY-BUSTILLOS 
MEXICAN-AMERICAN LEGAL 

DEFENSE AND EDUCATIONAL 
FUND
634 South Spring Street, Eleventh Floor 
Los Angeles, CA 90014 
Telephone: (213) 629-2512

RENEE Y. RASTORFER
10951 West Pico Boulevard, Third Floor
Los Angeles, CA 90064 
Telephone: (310) 446-0130

l /  '
/

KATHRYN K. IMAHARA 
ASIAN PACIFIC AMERICAN LEGAL 
CENTER

1010 South Flower Street, Suite 302
Los Angeles, CA 90015 
Telephone: (213) 748-2022

Attorneys for Plaintiffs 

UNITED STATES DISTRICT COURT 

CENTRAL DISTRICT OF CALIFORNIA

JOHN W. HUNTER, et al.,

Plaintiffs,

vs.

CITY OF LOS ANGELES,

Defendants.

LATIN AMERICAN LAW 
ENFORCEMENT ASSOCIATION,

Plaintiff,

vs.

CITY OF LOS ANGELES,

Defendant.

CASE NOS. 92-1897 AWT (CTx) and 
92-1898 AWT (CTx)

PLAINTIFFS’ OPPOSITION TO 
MOTION FOR INTERVENTION 
AND DECLARATION OF BILL 
LANN LEE

Hearing Date:
Time:
Courtroom:

November 23, 1992 
10:00 a.m.
2

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TABLE OF CONTENTS

I. STATEM ENT................................................................................................................... 1

A. Prior P roceedings................................................................................................ 1
B. The Would-Be Intervention............................................................................... 3

II. REASONS TO DENY INTERVENTION AS OF RIGHT .................................  3

A. The Intervention is Not T im e ly ........................................................................ 4

1. The Legal Standard ............
2. Stage of Proceedings .........
3. Prejudice to Existing Parties
4. Reasons for the Delay and Length of Delay

B. Would-be Intervenors Have No Protectible In te re s t.................................... 7

C. No Impairment of Any Interest Will R e su lt..................................................  8

D. Would-be Intervenors’ Interest Has Been Adequately Represented By
Their Own Past Participation As Amici Curiae ...........................................  9

III. CONCLUSIO N ................................................................................................................  9

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Plaintiffs John W. Hunter, Latin American Law Enforcement Association ("LaLey") 

and Korean American Law Enforcement Association ("KALEA") oppose the motion for 

intervention filed by white LAPD officers Richard Dyer, Daniel Pugel and Douglas Abney.

I.

Statement

A. Prior Proceedings.

A complete summary of the prior proceeding (as of July 1992) and the facts is set forth 

in Plaintiffs’ Memorandum in Support of Proposed Consent Decree 1-9, filed July 8, 1992.

This employment discrimination act was initiated in October 1988 with the filing of 

administrative class action charges of discrimination alleging discrimination in the denial to 

minority LAPD officers of promotions, pay grade advancement and assignment to coveted 

positions. After the California Department of Fair Employment and Housing found probable 

cause, a settlement was reached by plaintiffs and defendant City of Los Angeles in late 1991. 

The settlement was approved by LAPD Chief Gates, the City Personnel Department, the City 

Attorney, the Police and Civil Service Commissions, and, ultimately, the City Council on 

November 5, 1991.

The administrative proceedings and settlement were the subject of extensive media 

coverage. See, e.g.. "LAPD Holds Back Black Officers, State Says," Los Angeles Times. 

January 24, 1991, Metro Bl; "Minority Officers Hail Bias Accord," Los Angeles Times. 

November 7, 1991, Metro Bl. These articles are attached as Exhibit A to the Declaration of 

Bill Lann Lee ("Lee Declaration"). After the City’s Council approved the Proposed Decree, 

the Police Protective League, the collective bargaining agent for all LAPD officers, published 

and distributed to all its members a special bulletin on December 24, 1991 entitled "Proposed 

Consent Decree and Agreement Resolving Litigation re Police Department Promotions, 

Paygrade Advancements, and Assignments to Coveted Positions." The bulletin is attached as 

Exhibit B to the Lee Declaration. Addressed to League members, the bulletin stated that its 

purpose was "to personally inform you of the key provisions of the proposed Consent Decree 

and Agreement regarding promotions and assignments in the Police Department." Exhibit B

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at 1. Referring to errors made by the news media, the League stated that its "Board of 

Directors decided to carefully analyze all of its provisions in consultation with its panel of 

attorneys before personally communicating with you." Id. The League then described the 

terms of the proposed decree in four and a half single-spaced pages. The bulletin stated that 

"the League cannot concur, oppose or participate in the proposed Consent Decree and 

Agreement." Id. LAPD officers were also told to contact League Directors if they had any 

questions. Id. at 6.

The judicial proceedings were initiated with the filing of two complaints on March 27, 

1992, which were consolidated on April 6, 1992. The proposed Consent Decree and 

Agreement was filed concurrently with the complaint. The Court entered an order certifying 

the class, authorizing notice of the proposed settlement to the class and setting a fairness 

hearing for July 13, 19^.

At the fairness hearing, the Court permitted the three white LAPD officers who now 

seek to intervene to submit an "amicus curiae brief opposing confirmation of consent decree 

and agreement" on behalf of white LAPD officers. The brief stated that they "ha[d] not made 

a formal motion to intervene . . .  as the likelihood of prevailing on FRCP Rule 24 action at 

this date would be very unlikely," citing several cases on untimely filing. Amicus brief 7. The 

brief nevertheless presented numerous arguments that the provisions of the proposal were 

unconstitutional and unfair to white officers.

In order to consider the claims made in the amicus brief, the Court continued the 

fairness hearing until August 10, 1992, permitting the parties to respond and amici to file a 

reply brief. Amici’s reply brief reiterated and expanded upon arguments made in their earlier 

brief. The two briefs filed by amici are 50 pages in length, exclusive of exhibits. At the 

continued fairness hearing, amici’s counsel also orally argued extensively.

On August 27, 1992, the Court entered a Judgment and Order Approving Consent 

Decree and Agreement. In response to amici’s argument that the term of the Decree 

suggested that it was not a temporary affirmative action program, the Court amended the 

term of the Decree from 12-15 years to 15 years subject to the right of defendant City of Los

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Angeles to move at any time to be relieved of its obligation under the Decree upon a showing 

that objectives of the Decree had been accomplished, Judgment 22, in reliance upon Davis 

v. City of San Francisco. 890 F.2d 1438, (9th Cir. 1989), cert, denied sub, nom. San Francisco

FireFighters v. County of San Francisco,___U.S.___, 112 L.Ed.2d 206, 111 S.Ct. 248 (1991).

Otherwise, the Court rejected amici’s arguments.

Since the entry of judgment, nothing has come before the Court concerning the Decree 

or its implementation.

B. The Would-Be Intervention.

On October 16, 1992, Lieutenant Dyer, Sergeant Pugel and Sergeant Abney filed a 

motion for intervention as of right pursuant to Fed.R.Civ.P. 24(a)(2), a supporting 

memorandum, a proposed complaint-in-intervention and a declaration of Sgt. Pugel. The 

papers suggest that the purpose of the intervention is to challenge facially the Court’s prior 

approval of the Consent Decree as well as implementation of the Decree. See Memorandum 

14-15 ("[I]t is incumbent upon the district judge to ensure before entering the decree that the 

interests of all parties in interest are adequately represented . . . The district judge failed to 

consider the non-minority officers’ interest . . .") Complaint-in-Intervention 2 ("[Tjhe new 

selection procedures used by the Los Angeles Police Department . . . implemented by virtue 

of a consent decree entered into by the City of Los Angeles and Plaintiffs’ [sic] Hunter et. al. 

case #  92-1897 AWT and 92-1898 AWT . . . will adversely impact, on the basis of ethnic 

origin, sex, race, or color, qualified non-minority police officers").

Would-be intervenors’ papers reiterate claims about the purported unconstitutionality 

and unfairness of the Decree that they had earlier raised as amici. See Memorandum; 

Complaint-in-Intervention. None of the would-be intervenors’ papers, however, complain of 

any specific post-approval act or conduct. Id.

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life  2 0 8

Reasons to Deny Intervention as of Right

This is a frivolous motion. Would-be intervenors plainly do not meet the Rule 24(a)(2) 

criteria for intervention as of right, fe., timeliness, existence of a protectible interest, 

disposition impairing their interest, and inadequate representation. They merely seek a back 

door way to upset a judicially-approved Consent Decree on which they were previously given 

a full opportunity to be heard and to launch a preemptive strike prior to suffering any 

adverse effect from the actual implementation of the Decree.

A. The Intervention is Not Timely.

1. The Legal Standard.

Timeliness is a threshold question addressed to the sound discretion of the court based 

upon a consideration of all the circumstances. NAACP v. New York. 413 U.S. 345, 366, 37 

L.Ed.2d 648, 93 S.Ct. 2591 (1973); See Schwarzer, Tashima & Wagstaffe, Cal. Practice Guide: 

Fed Civ. Pro. Before Trial 11 7:182 (TRG 1992). While the timeliness requirement is to be 

liberally construed, post-judgment intervention, particularly after approval of a consent decree, 

is disfavored. Id. at 1111 7:184-88. See e.g.. Ragsdale v. Turnock. 941 F.2d 501, 504 (7th Cir.

1991), cert, denied sub nom Murphy v. Ragsdale. ___U.S.___, 116 L.Ed.2d.784, 112 S.Ct. 879

(1992). ("Once parties have invested time and effort into settling a case it would be 

prejudicial to allow intervention . . . [Intervention at this time would render worthless all of 

the parties’ painstaking negotiations because negotiations would have to begin again and [the 

intervenor] would have to agree to any proposed consent decree . . .  A case may never be 

resolved if another person is allowed to intervene each time the parties approach a resolution 

of it")(citations omitted); Alaniz v. Tillie Lewis Foods. 572 F.2d. 657 (9th Cir. 1978), cert- 

denied sub nom Beaver v. Alaniz. 439 U.S. 837, 58 L.Ed.2d 134, 99 S.Ct. 123 (1978)("The crux 

of [would-be-intervenors’] argument is that they did not know the settlement decree would 

be to their detriment. But surely they knew the risks. To protect their interests, [would-be 

intervenors] should have joined the negotiation before the suit was settled, [would-be 

intervenors] have not proved fraudulent concealment. It is too late to reopen this action.")

II.

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die 206

In addition to the stage of the proceedings, the other timeliness factors are prejudice 

to the existing parties resulting from the would-be intervenors’ failure to request intervention 

earlier and the reason for and length of delay. Schwarzer, Tashima & Wagstaffe Wl 7:191, 

194.

2. Stage of Proceedings.

In the instant case, the would-be intervenors assert that "they have only known of their 

interest in the litigation for a short period of time," Memorandum 5, and that plaintiffs and 

defendant City "purposefully failed to fully apprise the non-minority officers of the 

ramifications of the consent decree." Id. They state the Decree was not made public until 

April 1992, id., and that Sgt. Pugel became aware of the proposed Decree only in May 1992. 

Pugel Declaration 1.

Notwithstanding the timing of would-be intervenors’ subjective knowledge of the 

proposed Decree, the standard is an objective one. NAACP v. New York. 413 U.S. at 366 

("appellants knew or should have known of the pendency of the . . . action"); Alaniz. 572 F.2d 

at 657 (would-be intervenors "either knew or should have known of the continuing 

negotiations") See Schwarzer, Tashima, and Wagstaffe, H 7:197. The November 1991 

newspaper accounts of the Consent Decree after the City Council vote and the December 

1991 Police Protective League summary of the Decree plainly put all white LAPD officers, 

including would-be intervenors1, on actual or constructive notice of the settlement and its 

impact on white officers such that they should have intervened in the administrative 

proceedings or as soon as the judicial action was filed. Indeed, the League bulletin stated not 

only the League’s neutrality in the proceedings that lead to the Decree, Exhibit B, at 1, but 

that "the Consent Decree and Agreement did not establish a quota system." Id. at 5. The fact 

that the League and its lawyers had access, as did newspaper reporters, to the Consent Decree 

in late 1991 obviously undermines any suggestion by would-be intervenors that the parties hid 

the Decree from anyone, much less white LAPD officers.

1 Sgt. Pugel’s declaration states that he is a League member. Pugel Declaration 2.

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tile 208

Even if Sgt. Pugel’s declaration is accepted at face value, the would-be intervenors had 

a copy of the Decree a month and a half before they filed their amicus brief at the July 13th 

fairness hearing and four and a half months before they sought intervention. Clearly, would- 

be intervenors could have contacted the parties, the League or sought intervention earlier. 

Would-be intervenors were right to admit their untimeliness on July 13th in their amicus brief; 

they are surely right today.

3. Prejudice to Existing Parties.

With respect to prejudice to the existing parties, plaintiffs and the City stand to lose 

the substantial benefits of a comprehensive settlement of a class action challenge to the 

LAPD’s promotional and advancement policies. See Ragsdale. 941 F.2d at 504; Alaniz. 572 

F.2d at 657. Would-be intervenors minimize this prejudice by denigrating plaintiffs’ interest 

in obtaining equal employment opportunity and hypothesizing, with no basis in fact, that 

defendant City "would suffer no prejudice as allowing the non-minority officers party status 

would stave off a rash of discrimination suits brought by non-minority officers challenging the 

consent decree." Memorandum 8. The same claims, of course, were earlier rejected by the 

Court in approving the Decree over the objections of the then-amici.

Other than ignoring that the existing parties have any interest in the Decree, would-be 

intervenors contend that they themselves would suffer prejudice. Prejudice to the would-be 

intervenors if their motion is denied, however, is irrelevant to determining whether a motion 

is timely; the only proper inquiry is whether the delay in seeking intervention has prejudiced 

the existing parties. Schwarzer, Tashima and Wagstaffe, 11 7:192. Would-be intervenors, in 

any event, suffer no prejudice from denial because their arguments about the facial invalidity 

of the Decree were heard, considered and rejected by the Court. If the Decree in the future 

is implemented to affect impermissibly the interest of any would-be intervenor, he may then 

intervene or file his own action.

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4. Reasons for the Delay and Length of Delay.

With respect to their reasons for the delay, would-be intervenors give no reason why 

they delayed filing their intervention until this late date or why they filed as amici in July 

instead of as intervenors if they really believed (contrary to their contemporaneous 

representation) in the timeliness of their application. As early November or December 1991, 

they knew or should have known the interest they assert could be adversely affected and might 

not be protected by the parties. See Schwarzer, Tashima and Wagstaffe, 11 7:196.

As to the length of the delay would-be intervenors should have filed immediately with 

the filing of the lawsuit in March 1992 because they knew or should have known of the 

Decree since November or December 1991. They are therefore six and a half months late. 

At the very least, they are three and a half months late because, assuming their best case on 

the facts, would-be intervenors should have intervened last July.

* * *

The proposed intervention therefore is untimely.

B. Would-be Intervenors Have No Protectible Interest.

Would-be intervenors are required to show "a protectible interest in the outcome of 

the litigation of sufficient magnitude to warrant inclusion in the action." Smith v. Pangilinan. 

651 F.2d 1320, 1324 (9th Cir. 1981).

In the instant case, Lt. Dyer, Sgt. Pugel, and Sgt. Abney identify themselves merely as 

"non-minority LAPD sworn officers . . . [bjeing discriminatorily denied employment 

opportunities by the operation of the discriminatory and illegal consent decree," Complaint- 

in-Intervention 3, without any specification of how the Decree has actually adversely affected 

their employment opportunities in any way. They cite Howard v. McLucas. 782 F.2d 956 

(11th Cir. 1986) for the proposition that they have standing because their promotional 

opportunities were restricted by the Decree. In Howard, however, white employees were 

found to have an interest in challenging the reservation of "240 target promotions" for black 

employees for which they claimed to be eligible. 782 F.2d at 959. In the instant case, the 

Decree reserves no positions or assignments for minority employees. The Decree merely

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establishes flexible goals for qualified minority officers. As the League put it in its bulletin, 

the Decree contains no quotas.2 Thus would-be intervenors have no proper interest in 

challenging the Decree on facial invalidity grounds. They, in any event, raised these claims 

as amici and the Court properly rejected them after full consideration.

The interest that would-be intervenors assert is unripe with respect to implementation 

of the Decree. None of the three has alleged or can allege that he has actually been denied 

a promotion, paygrade advancement or coveted assignment because of the Decree’s 

affirmative action program. Would-be intervenors admit as much. Memorandum 11 ("Once 

the Chief begins his rampage of affirmative action promotions decisions, more qualified non­

minority officers’ interests will be impaired . . ."). See, e.g.. Doherty v. Rutgers School of 

Law-Newark, 651 F.2d 893, 899-900 (3d Cir. 1981). Absent such a threshold showing, claims 

that white officers have suffered reverse discrimination are completely speculative.

C. No Impairment of Any Interest Will Result.

Would-be intervenors must show that disposition of the pending action would have a 

potentially adverse impact on would-be intervenors’ interest. Schwarzer, Tashima and 

Wagstaffe, 11 7:225.

The would-be intervenors in the instant case insist that the approval, ana 

implementation of the Decree will impair their ability to protect their interest because "factual 

and legal determinations’ regarding the Consent Decree’s Constitutionality [sic] will be made." 

Memorandum 11.

2Furthermore, in a subsequent decision in the same case the Eleventh Circuit 
essentially reversed its ruling. The Court found standing to be "tenuous" where the 
intervenors presented no evidence that they in fact were eligible for any of the reserved 
promotions. 871 F.2d 1000, 1005 ("Employment, in and of itself, does not confer the right 
to challenge an affirmative action plan. For example, in In re Birmingham Reverse 
Discrimination Employment Litigation, 833 F.2d 1492 (11th Cir.1987), an opinion that post 
dates our remand in this case, we held that the claim that a consent decree resulted in 
reverse discrimination could not accrue until those seeking redress were denied 
promotions. IcL at 1498-99").

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With respect to the Court’s adoption of the Decree, those very same three individuals, 

through the very same counsel, submitted the very same claims of unconstitutional 

infringement of their interest they now make. This Court rejected those claims for good 

reasons. Would-be intervenors make no claim of changed law or circumstances. The Court’s 

prior decision is law of the case.3 Unlike the usual proposed intervention, these would-be 

intervenors have actually participated in prior proceedings. They are not being denied a bite 

of the apple, only a second bite.

As to Decree implementation issues, there is no possible impairment to any proper 

interest because they may still intervene or sue in a separate case if a ripe controversy 

develops with any future actual injury. Would-be intervenors, in short, will have another bite 

of the apple in the future if appropriate.

D. Would-be Intervenors’ Interest Has Been Adequately 
Represented By Their Own Past Participation As Amici Curiae.

There is no right to intervene if "the applicant’s interest is adequately represented by 

existing parties." Fed.R.Civ.P. 24(a)(2).

In the instant case, the would-be intervenors are already amici curiae. The interests 

of would-be intervenors in arguing the unconstitutionality of the Decree have been adequately 

represented by themselves as amici. That the intervention papers merely repeat arguments 

they made as amici demonstrates as much. Moreover, the efficacy of their participation a 

amici is demonstrated by the fact that the Court altered the Consent Decree in response to 

their arguments.

Would-be intervenors’ real quarrel is that the Court rejected their unmeritorious 

arguments in approving the bulk of the Decree. But that is not something that intervention 

as of right would or should address.

' Would-be intervenors did not seek to intervene in sufficient time to appeal the 
Courts’s approval of the Decree.

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III.

Conclusion

For the foregoing reasons, the motion of Dyer, Pugel, and Abney to intervene as of 

right pursuant to Fed.R.Civ.P. 24(a)(2) should be denied.

Dated: November 9, 1992

Attorneys for Plaintiff 
John W. Hunter

Theresa Fay-Bustillos 
Renee Y. Rostorfer 
Attorneys for Plaintiff 
Laley

Kathryn K. Imahara 
Attorney for Plaintiff 
KALEA

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DECLARATION OF BILL LANN LEE

I, Bill Lann Lee, do hereby declare:

1. I am counsel of record for John W. Hunter, et al., in connection with the above 

captioned lawsuit. I am admitted to practice in the United State District Court in the Central 

District of California and am a member in good standing of the State Bar of California.

2. Attached hereto as Exhibit A are true and correct copies of "LAPD Holds Back 

Black Officers, State Says," Los Angeles Times, January 24, 1991, Metro B1 and "Minority 

Officers Hail Bias Accord," Los Angeles Times, November 7, 1991, Metro Bl.

3. Attached hereto as Exhibit B is a true and correct copy of the bulletin 

published and disseminated by the Los Angeles Police Protective League entitled "Proposed 

Consent Decree and Agreement Resolving Litigation Re Police Department Promotions, 

Paygrade Advancement, and Assignments to ‘Coveted Positions’," dated December 24, 1991.

I declare under penalty of perjury under the laws of the State of California that the 

foregoing is true and correct.

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METRO
LAPD Holds Back Black Officers, State Says
■ Bias: Fair employment agency finds great 
disproportion between those who are 
qualified for raises and promotions and 
those who have received them.

By RICHARD A. SERRANO
TIM ES  STAFF  W RITER

Following a similar finding last month for Latino 
officers, California fair employment officials accused the 
Los Angeles Police Department on Wednesday of discrimi­
nating against black police officers in the way that they are 
promoted, granted raises and moved up to coveted job 
assignments.

The investigation by the state Department of Fair 
Employment and Housing found a "‘great disproportion" 
between the number of qualified black officers who have 
applied for promotions, raises and favorable job assign­

ments and those who actually have seen their careers rise 
within the department

The complaint also said the department utilizes “dis­
criminatory selection examinations" that cancel out many 
qualified black candidates for job promotions.

Patrick Patterson, an attorney for the NAACP Legal 
Defense and Educational Fund, said the accusations 
involving black officers, coming so closely after similar 
allegations in December involving Latino police promo­
tions, show “the pervasive and blatant pattern of discrimi­
nation against minorities in the LAPD."

“Minority police officers put their lives on the line on the 
streets of Los Angeles every day,” said Patterson, who as 
an attorney for the fund brought the allegations to the 
state agency on behalf of John W. Hunter, a black officer.

“They deserve fairness when it comes to job advance­
ment and promotion," he said. “If a police department is to 
represent fairness to the community, it must first be fair 
and unbiased to its officers."

In the case involving Latino officers, the agency said
Please see LAPD, B4

LAPD: Bias Against Black Officers Charged
Continued from B1
Latino officers in the Los Angeles 
Police Department have been un­
fairly held back for a decade be­
cause of biased and unfair job 
promotion procedures. Now, the 
two separate complaints involving 
Latino and black officers await 
hearings before the state Fair Em­
ployment and Housing Commis­
sion.

The commission has the power 
to order the Police Department to 
change its procedures to ensure 
that blacks and Latinos receive 
equal treatment

In the black officers' case, the 
agency wants the Police Depart­
ment to revise its system of testing 
officers for promotion and to follow 
affirmative action requirements in 
the way qualified candidates are 
selected for promotion.

The agency also is asking that 
the Police Department pay Hunter 
and other black officers back wag­
es and job benefits that they would 
have received had they not been 
passed over for promotions.

Cmdr. William Booth, the Police 
Department’s chief spokesman, de­
nied that black police officers are 
treated any differently than other 
police personnel

"I really don'! I,.-hove anvon.

with any sincerity can claim that 
this department is discriminatory,” 
Booth said. “The promotional op­
portunities are the same for every­
one, and I think the ultimate dispo­
sition in this case will be that our 
position will be upheld.”

Booth said the Police Depart­
ment is working under a federal 
court consent decree which man­
dates that the 22% of the police 
force consist of black officers.

He also said the higher ranks 
within the department include 
black supervisors, including one 
assistant chief and one deputy 
chief.

The department has 8,400 sworn 
police officers, 13.8% of them 
black.

“Nobody’s being singled out,” he 
said. “Our public posture and our 
recruitment posters have said for 
some time that on the LAPD, all 
our officers come in blue (uni­
forms).

“And we’re not just posturing 
there," he added. . . There is no 
discrimination."

Officer Hunter said lie joined the 
department in 19GS, and that he 
made the rank of detective 11 in the 
narcotics division eight years later. 
Uni lie loi<i I lie 1 )eparl in<-MI of Fair 
Kin|' !o v ne-i 11 and I ion: me i lia!

since 1980, he was repeatedly 
passed over for a promotion to 
detective III.

He added that he was finally 
promoted to detective III recently, 
but only because he filed the 
complaint with the state agency.

“I was passed over time and 
again in favor of white officers, and 
finally got the position (of detec­
tive III] only a few months ago 
after I filed this complaint," he 
said.

‘Tve proven my qualifications 
over 16 years as a narcotics detec­
tive. I’ve risked my life in this job. 
Then I discover that I can't get 
ahead, just because I’m black.”

In describing examples of alleged 
discrimination against black offi­
cers, the state Department of Fair 
Employment and Housing charged 
that:

•  Between 1986 and 1987, 26.9% 
of the white officers and only 
11.8% of the black officers were 
promoted to the rank of detective.

• While 20.1% of the white offi­
cers who applied for sergeant were 
promoted to that rank, only 5.77' 
of the black officers made sergeant.

•  A total of 23.!)% of the whin, 
officers and only 4.2% of t i l e  black 
officers who applied were promo!.
< 1 i I*> i sen!o i l an i



~ r A ) u r s d q y ,  W(5U- 7y "G / Lo^> Af70u=kl^ // '^7-7^-G-S.

P J \ £ 7 ~ F Z . 0 .

Hail Bias Accord
■ Discrimination: They say the settlement 
of a state complaint will ensure that the 
LAPD’s upper ranks reflect L.A. population.

By LOUIS SAHAGUN
TIMES STAFF WRITER

■

With sweaty palms and a dry throat, S g t Emilio Perez 
walked into Police Chief Daryl F. Gates’ office one spring 
day in 1984 to complain that Latino officers were being 
held back in promotions and pay raises.

Gates listened politely to the training officer and issued a 
challenge. ’T he chief said, ‘If you can prove these things 
occur and affect the service we provide the community, I'll 
do something it about,’.’’ said Perez, then-president of the 
Latin American Law Enforcement Assn. (La Ley).
. But a few years later, Perez still was unhappy with the 
response of the department’s brass. So he .took the 
concerns to a private attorney—and to state authorities 
who filed a discrimination complaint in 1989 against the 
city and the 8,300-member department ■ Jy

To avoid litigation, the Los Angeles City Council agreed 
Tuesday to setUe the complaint filed by the California 
Department of Fair Employment and Housing by promis­
ing to promote more Latino, African-American and 
Asian-American officers to the ranks of detective, sergeant 
and lieutenant ~ .

The council also approved a motion by Councilman Zev 
Yaroslavsky to include the department's ,-1,100 women 
officers in the promotion goals established by the landmark 
agreement that will affect the 3,000 minority officers on 
the force. ,,

Please see PROMOTE, B4

• ->



PROMOTE: M ore M inority Officers

7 W . 7 7 > N\£.r2_0.

C o n t i n u e d  f r o m  B1
On W ednesday, Perez was 

among half a dozen minority offi­
cers who, along with their attor­
neys, held a news conference at the 
NAACP Legal Defense Fund’s 
downtown headquarters to hail the 

! settlement, which was designed to 
ensure that the ethnic makeup of 

J the department's upper ranks re- 
flects.the population it serves.

j 6 *•r"P  he purpose of the settlement 
X. is to build a promotion sys­

tem at the department that is based 
on merit and open access to all 
officers rather than to favoritism 
that favors Anglo officers," said 
Therqsa Fay-Bustillos, attorney 
for La Ley.

While the city has been operat­
ing for 10 years under consent 
decrees requiring that the depart­
ment increase recruitment of mi­
nority and women officers, those 
agreements “did nothing for pro­
motions," Fay-Bustillos said. “As a 
result, you had a very frustrated 
sworn police force of Hispanics, 
African-Americans and Asians.”

Between 1983 and 1989, Anglos 
won 76% of all promotions to 
detective, 70% of promotions to 
sergeant and 85% of promotions to 
lieutenant, Fay-Bustillos said.

Today, there are seven Latinos, 
seven blacks and no Asian-Ameri- 
cans above the rank of lieutenant. 
There is one minority, a black, 
among the department’s seven 
deputy and assistant chiefs, ac­
cording to department figures.

“We are not looking for an unfair 
advantage, just a system that is fair 
to everybody,” said Sgt. A1 Ruval- 
caba. “Right now, we are up 
against institutional bias and a 
good-old-boy system.”

Ruvalcaba, 42, said he knows 
firsthand.

Although Ruvalcaba had 15 
years of experience with the de­
partment, “I had to take oral exams 
29 times over a seven-year period 
before 1 won a pay-grade advance­
ment,” jhe said. “The existing sys­
tem is slow and we’re merely 
trying to squirt oil on the wheels of 
justice.”

Jess Gonzalez, a senior staff 
attorney for the California Depart­
ment of Fair employment and

Housing, said, “I can’t prove that 
there is a good-old-boy network in 
the department, but my gosh, sta­
tistics indicate that Anglo candi­
dates have been favored over eligi­
ble minorities.”

The settlement aims to shatter a 
so-called “glass ceiling” that has 
prevented minority officers from 
rising in greater numbers to super­
visorial levels and coveted posi­
tions in the department

“This is a breakthrough for all 
minority officers because it gives 
them the opportunity to compete 
equally with non-minority candi­
dates,” Gonzalez said. “It also pro­
vides for scholarships, tutorial and

‘This is a breakthrough 
for all minority officers 

because it gives them the 
opportunity to compete 

equally with non-minority 
candidates. It also 

provides for scholarships, 
tutorial and training 

programs to help eligible 
officers prepare for 

written and oral exams.'
JESS GONZALEZ 

Attorney

training programs to help eligible 
officers prepare for written and 
oral exams.”

Specifically, the settlement re­
quires that the Police Department 
promote 80% of the officers in each 
ethnic group who either qualify or 
apply for promotion each year.

At the end of three years, the 
number of minorities in top posi­
tions must be equivalent to the 
percentage of each group in the 
general population.

The city must make progress 
reports to a state administrative 
law judge. If the department fails to 
meet these goals, city officials must 
explain the problem in a federal 
Court hearing.

A

The settlement—which needs to 
be finalized in federal court before 
the end of the year—also calls on 
the city to set aside $1.5 million for 
training and counseling programs, 
and an unspecified amount for a 
black narcotics detective who 
joined the complaint.

The city is to deposit $500,000 of 
that amount to create training 

programs to prepare minority offi­
cers for administrative and super­
visory positions, and $1 million for 
scholarships and retirement bene­
fits for minorities who have been 
victims of discrimination.

Fay-Bustillos said women were 
not included in the initial complaint 
because "we couldn't find a female 
officer willing to come forward and 
file a charge of discrimination be­
cause of fear of reprisal.” 

Yaroslavsky’s motion seeks to 
include all female officers in the 
settlement's promotion goals. “Al­
though they are not part of the 
consent decree, they are beneficia­
ries,” Fay-Bustillos said.

Gates was unavailable for com­
ment Wednesday. But Cmdr. Bob 
Gil, spokesman for the department, 
said, “The chief is satisfied with the 
settlement.”

“The chief’s position," Gil said, 
“is that he wants to do everything 
he can to create a system that will 
provide everyone with an opportu­
nity to compete and be evaluated in 
a fair, objective and impartial man­
ner.”

Detective George Min, president 
of the Korean-American Law E n­
forcement Assn., recalled having to 
deal with taunts from other officers 
when they learned an Asian- 
American was seeking a promo­
tion.

"They’d say, ‘There’s so few of 
you in the department, why do you 
want to be promoted?’ ” Min said. 
“I’d say, ‘It’s a not a popularity 
contest, we just want a crack at a 
better position.'

“The settlement was imp.,riant,” 
Min added, "because peons's alti- 
lude.s are hard to change."



COMPRISED OF 
POUCC OFFICERo 
OFTMCOTY 

OPUMANOeXS

ouo tlG H TH  STREET •  LOS ANGELES, CALIFORNIA 90014
(213)626-5341

December 24, 1 9 9 1
Bulletin No. 3

CONSEMT d e c r e e AND AGREEMENT L1T1gA H O H  r e p olice d e p a r t m e n t ROXOTIQNS, PAYGRADE ADVANCEMENTS, and 
ASSIGNMENTS TO "COVETED POSITIONS"

the key^provisions°oftthe aronee^ ?  inform yon of

before personally communicating with" ™ * 11 ptS panel of att°rneys important for all Leatmo g w^ t t l Y°u- From the outset, it is
was not, end will t S 9?* " T ^ E f  ta ™derstand that the League 
this proposed settlement pa5 ty,.to ^he litigation which led to 
fairly repiesent ali o' P *  t a E e  the League must
race, religious o? ™ w o n X  ^ U t I e g a I i £“  their sex,oppose or particinate in League cannot concur.Agreement. ^ lclPate the proposed Consent Decree and

D€partmentBoffcFai^EmploSmenteS H ^TT:L8,-1990/ t h e  California administrative compSi^t^aainl? i-h°U?*?g <"DFEH").filed an and the Personnel Department n ^ S the Police Departmentdiscriminatory aaain^rw?ent ?hallen g m g  as racially '
the City ffiak2  p ? o ^ L n s  I n S ^ a v a S d r 3^  processes by which Officer III paygrade and thf ££?£!* ad^ cements in the Police 
classifications, a  s e S o n d ^ o m S ? * ^ 1^ ! / ^ 9631^' and Lieutenant to African American officers S i s ^ t  containing similar claims as 
that time, the parties CLa n f ln JanuarY  1991. sinceCity, and DFEH) have met r-emiT' ^et®9 uive John W. Hunter, the 
settlement of this liticration ln^^n effort to negotiate a
this litigation represents1"the J ° the cit* attorney,success over +-he nscf , • Price the City must pay" for its
Make was designed to provide1" lmPlementing the Blake decree, 
underrepresented pr°Ilde equal opportunity to

ps at the sworn Police entry level. To the



extent that goal has been achieved, expectations of advancement 
ave arisen. Frustrations arose as well when those expectations 

were not fully met above the level of police officer. The key 
provisions of the proposed Consent Decree and Agreement are:

Classes Included. Included are (1 ) African American, 
ispanic, and Asian Pacific applicants for promotion to the 
o n c e  Sergeant, Police Detective, and Police Lieutenant 

classifications,- (2) African American, Hispanic, and Asian 
Pacific applicants for advancement to the Police Officer III, 
Police Sergeant II, Police Detective II, Police Detective III 
and Police Lieutenant II paygrades; and (3 ) African American/ 
Hispanic, and Asian Pacific applicants for assignment to certain defined "coveted positions."

Form of Settlement. The DFEH will dismiss its two 
administrative complaints, the complainants will file an action 
in U. s. District Court, and the new action will be resolved 
through a Consent Decree and Judgment. Notice to the members of 
the concerned classes and a "fairness hearing" will be necessary. 
The claims of all noticed class members who fail to "opt out" 
will be extinguished. The District Court will retain 
jurisdiction over the parties to enforce the terms of the Consent 
Decree. The League will notify all members of the date and 
location for the "fairness hearing".

< Future Selection Devices. Provided it is substantially 
complying with the terms of the Decree, the City may employ any 
selection devices it desires in the relevant classes and paygrades.

Wr^tten Multiple-choice Test Weighing. The City will 
reduce the weighing of promotion-,- written multiple-choice tests 
in the relevant classes from 40% to 30%. if this does not

statistfcally significant adverse impact at the "bottom 
1 X?f- ,the CltY will revert to a qualifying— or pass/fail—  multiple choice written test.

Modifications to oral Interview Procedures. For
paygrade advancement and assignment to "coveted positions," oral

provide for standardized written questions, with 
n -£0l^0W"Up <3uesti°ns permitted as appropriate, uniform rating criteria, quantified scoring, and established review 

procedures. "Coveted positions" include lieutenant, sergeant, 
detective, and police officer staff and Internal Affairs Division 
assignments, officer-in-charge and commanding officer positions, 
adjutants, assistant watch commanders, and senior lead officer positions.



Modification of Application of "Rule of Three Whole 
8cores." The City will use its best efforts to secure the 
consent of the Police Protective League to a procedure where all 
applicants on a relevant promotion certification list will be 
considered equally eligible for advancement during the last six 
months of a two-year roster of eligibles. Just as at present, 
candidates would be considered in order of whole score bands, 
exhausting each band before promoting from the next lower band, 
during the first eighteen months of a two-year roster of 
eligibles. As previously mentioned, because of its duty to 
fairly represent all members, the League cannot concur, oppose- or 
participate in any aspect of the proposed Consent Decree and Agreement.

Affirmative Action Management Training Program. The
City will develop a training-program for Police Department 
managers and supervisors specifically addressing affirmative 
action selection techniques, non-discriminatory approaches to 
selection, and methods for broadening employee advancement opportunities.

Career Counseling Program. The Police Department will 
develop a program in which one or more career counselors will 
assist all employees seeking promotions, paygrade advancements, 
and assignment to "coveted positions." A single, full-time- 
counselor will be assigned to this task during the first year of.- 
the decree, and the usefulness of the program will then be evaluated.

Supervisory Cross-Training Program. The city will 
develop a program in which a number of Detectives wiVl h.o 
permitted to train and work as Sergeants, and an equal number: of: 
Sergeants will be allowed to train and work as Detectives. The 
objective of this program will be to provide expanded experience, 
opportunities to selected officers, thereby increasing their career advancement potential.

workplace Diversity Program. The parties will attempt, 
to identify those Police Department units in which African 
Americans, Hispanics, or Asian Americans are substantially 
underrepresented. The City will use vigorous good faith efforts, 
to reduce such underrepresentation.

Annual Goals for Promotion, Paygrade Advancement, and 
Assignment to "Coveted Positions." The proposed decree 
establishes feeder classes for each target class. For each 
target class, the City will seek to assure annual promotion, 
advancement, or assignment rates of African American, Hispanic, 
and Asian Pacific applicants of at least 80% of the proportion 
each group holds in the appropriate feeder class. This is not a



nScint S?8^  n^ ^ d°eS that the Department promote 80or a n r . l v  5 ^ e  officers in each ethnic group who either qualifyooR
at least 80 J25In£X°2 **Ch T**** Tt ±S simply a to promoterp<rr<rent of minority officers who meet then- escaolished minimum requirements for promotion.

,___ Interim Goals for Promotion, Paygrade Advancement,, andc-
f o ^ S ^ h  £ t 0 "Co7 eted Positions." over each three-year, periodrf ■» 
naJrrrJSo tar^et class, the City will seek to assure promotion-, .. .advancement, and "coveted position” assignment rates- of-
lefita?n^?eriC^ '  Hispanic' and Asian Pacific applicants of ati* ~ 
feeder class^ ^  Proportion each group holds in the appropriates-

Annual. Monitoring and Review of Goal Attainment
Success, and Modification of Procedures as. Appropriate. Thev —
it annually— or more frequently if they considers,,
dete^fl!1 ” ^ 0^ ^ 1 2 0 1 1 3 3 ^  selection data of the previous year^i.tos oSnITS whether annual and interim goals: are being met,. ancbtcoA
innfih?r *ny chan^es in selection procedures which might: assist^-, m  achieving any goals not being met.

~ ..Tarm“ °* Conaont Decree. After twelve years, the citv-i 
i ^ i t ^ i n 10? to.^Q relieved of its obligations under the decree? -. 
D^oiisSn* h°Aft  ^ s u b s t a n t i a l l y  complied with the decree's . 
Sill b« fl£teen years' such substantial compliance., .

($100 000 ^ ° f ing . The c i t y  w i l 1  appropriate $500,000
ODeS°tn°Ji? Y i * r  f ° r  flVe years) to fund a tutoring program TP aPP^lcants for the relevant classes and paygrades
aDDroval1^? W l 1 1 b<7  administered by the complainants with City '
written anf  W l 1 1 seek to provide training in:... 'test *nd oral interview techniques to applicants seeking^ promotions and paygrade advancements. rT

decrfe t h f * Y S °f the entry of the Proposed a d S n ? 4 t ™ * deposit $500,000 into an account to be
comolafnanr^ ?y ^  c°mPlainants to partially compensate omplainant class members adversely affected by past selection
and°toUfl?owy aii°Yin^ them to Pursue educational development,. 
todparticiDatSe^ ai" 7!fcently retired complainant class members to thP similar programs. The complainants will report
the olrSonJ °n a -m?nthly bas^  on the status of the account, on
for each nJvonJeiVi£g funds.from ^  account, and on the basis ,
a second a n d i ^ en the lnitial $500,000 account is exhausted, econd and final $500,000 account will be funded The
in^ilfillina^h' • ifH ^ ey WiSh' retain a Special Master to assist 
will r e i £ b u ? L ln mana<?in<? ^ i s  account. The City
and the Tt- $10'000 of fee  ̂ for the Special Master,the fund itself will compensate any additional fees.



Attorneys Fees. The complainants will receive' an' awardi 
or attorneys fees under the applicable statutes. Though subject:-: 
to further negotiation, the combined attorneys fees to the present are approximately $85,000.

On November 5, 1991, the City Council agreed to settle the 
DFEH complaints by voting 10 to 1 to enter into the Consent 
Decree and Agreement. Because the Consent Decree and Agreement 
did not establish a quota system, the Chief of Police, the 
(General Manager of the Personnel Department, the city Attorney 
and the Board of Police and Civil Service Commissioners concurred 
^?„J:fcommend^n9 that the Consent Decree and Agreement be settled. NOTE: By Los Angeles city Council action, women were added tothis Consent Decree on November 5, 1991.

EMPLOYEE ASSISTANCE PROGRAM
^rticle 40 of the current MOU (7/1/88 through 6/30/92) 

provides for an Employee Assistance Program ("EAP") designed, to 
provide family counseling services to League members in the area 
°r alcohol and substance abuse, juvenile delinquency, marital

problems, financial problems, etc. In accordance 
h JTv Provision the League contracted with Occupational ^ervica*» Inc. as the EAP provider effective January l, 
of Pursuant to the provisions of the MOU, the Board

•Ct0r* wimhea to remind you that the EAP nroaral w in terminate on December 31 . ig<n . — M
MANDATORY random drug testing

19 9 0 the LeaUue filed an Unfair Employee
atop the DeoartienrC$°r9e ■am? a class actton Ufievance seeking to Drooram w<<-h!tii*aent*.fron imPlementmg a random drug testing S S I 2 I L « i ? 10Ut: meetin<? and conferring with the League.
Leagu^ 1 t h e ^ i t v ^ d ^ r ^ n  agreement was reached between the 
testina and Cl S L D e p a r t m e n t  which allowed random drug 
less than 2 6 Vm £I °^her things, granted officers who have 2 1  but 
additional26 y  t  S °f service with the Department one (1 )
year) aSd 0^f?ce«nwhSYhif0r^  °f 23 dayS °f vacatio11 pertwo (2) additional davs^f 6 26 leSS 1:11311 30 years of service
vacation per year} 1 L  f (f°r a total of 24 days of
reached, a League member fife**" sel:tlement agreement was
and constitutionality*3of the DeSaitSSt^ cha;4 en<?ing the legality 
testing. This lawsuit was Sell nS??oT, .In̂ ndat0ry random d^ug Despite the fact that' the eetti*SS^iCi2ed by the news media, that by entering: into the aerreesent^ *‘?reement expressly provided 
argument or claim that-any officewii *.! League did not waive any may have regarding tha lem»i i ' represented by the League
aspect of t h e  m a n d a to r y r a S d o m Yd r u g Ct S I t } t U t i ° n a l i t Y  ° f  a n y9 testing program, Mayor 1Tom

- 3-



Bradley' rafusedi to sigrrthe settlement agreement and: the 
ordinance necessary to._off icially implement the additional -- -- 
vacation; benefits because; of. the. lawsuits Throughout, the last 
few months many efforts by the League to convince the Mayor to 
implement the agreement have been refused and/or ignored. As a 
result, the League does not expect that the additional vacation 
leave benefits will. be credited to concerned officers on January 
1, 1992.. The Board of Directors has authorized its attorneys.toe 
take all legal steps necessary to ensure that all League membersr 
obtain ther benefits agreed, upon by all parties to the settlement 
agreement.

If. you have' any. questions regarding any of the matters 
discussed in this Bulletin, please contact any Director at the..... 
League.

------ . . .  -  -  •

BOARD OE DIRECTORS
Los Angeles Police Protective League.

- 6 -

I



I

PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the county of Los Angeles, State of California. I am over the age of 

18 and not a party to the within action; my business address is: 315 West Ninth Street, Suite 
208, Los Angeles, California 90015.

On November 9, 1992, I served the foregoing document described as PLAINTIFFS’ 

OPPOSITION TO MOTION FOR INTERVENTION AND DECLARATION OF BILL 

LANN LEE, on all interested parties in this action by placing true copies thereof enclosed in 
sealed envelopes addressed as follows:

JAMES K. HAHN, City Attorney JOHN K. PIERSON, ESQ.

200 North Main Street 
Los Angeles, CA 90012

I am readily familiar" with the firm’s practice of collection and processing 

correspondence for mailing. Under that practice it would be deposited with U.S. postal service 

on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary 

course of business. I am aware that on motion of the party served, service is presumed invalid 

if postal cancellation date or postage meter date is more than one day after date of deposit for 
mailing in the affidavit.

Executed on November 9, 1992, at Los Angeles, California.

I declare that I am employed in the office of a member of the bar of this court at whose 
direction the service was made.

ROBERT CRAMER, Assistant City 
Attorney
CITY ATTORNEY, LOS ANGELES 
1800 City Hall East

LAW OFFICES OF JOHN K. PIERSON 
AUERBACH PLAZA
2001 Wilshire Boulevard, Ste. 301 
Santa Monica, CA 90403-5683