PERSPECTIVE ON CITY GOVERNMENT : Out of an Easy Case Came Bad Law : The Police Commission has specific and exclusive authority that is not subordinate to the City Council.

Superior Court Judge Ronald Sohigian’s decision preventing the Los Angeles Police Commission from suspending Chief Daryl F. Gates with pay while it investigates the Rodney King beating may be a first. Rarely, if ever, in the United States has an employer found itself blocked from temporarily suspending with pay an employee whose conduct was under investigation and whose presence on duty could possibly impede the investigation.

Particularly when employee suspensions are investigatory and not disciplinary, courts refrain from interfering. An investigatory suspension could end with the employee being reinstated, leaving nothing for a court to decide. If it goes the other way, and the employee is terminated or otherwise disciplined, then a court might legitimately consider questions concerning the legality of an employer’s final disciplinary action. In addition, most employees suspended with pay during investigations willingly step aside because they not only retain their salaries but also gain a chance to clear their names. Ordinarily they do not sue, and those who sue do not win.

Under the Los Angeles City Charter, the Police Commission has authority “to supervise, control, regulate and manage” the Police Department, including authority to “appoint” and “remove” the chief. Nowhere in the charter is that power subordinated to that of the City Council.

Sohigian’s decision in favor of Gates is all the more extraordinary because the City Charter, quite anachronistically, provides Civil Service protection for the chief, raising serious obstacles to any Police Commission effort to terminate him. So even if the commission’s investigation produced the kind of evidence that would justify the termination of a chief executive officer in the private sector, the commission could probably do little more than attempt to reform the department through directions to the chief on how this might be carried out.

Nevertheless, the commission’s investigation could possibly lead to the best of reform measures: naming as Gates’ successor (after his resignation or retirement) someone who has never worked for the LAPD. Temporarily removing the chief would have lessened the possibility that the commission’s attempts to explore those questions might be blocked by a coverup, a not-unheard-of response to governmental inquiries, as the Watergate and Iran-Contra scandals demonstrated.

In any event, the commission never was poised to conduct a vigorous investigation. It has no funds to hire independent investigators, and its permanent staff is made up primarily of uniformed police officers whose advancement is controlled not by the commission but by the command structure within the police department.

Sohigian reached his dubious conclusion in favor of Gates by putting the cart before the horse. He acknowledged the commission as the chief’s exclusive employer. But then he immediately denied its authority to act like an employer.

He decided that the City Council could properly order the city attorney to enter into a settlement with the chief, under which he would agree to be restored to duty and not sue the city because of his suspension. Sohigian also decided that the city attorney had no conflict of interest in agreeing to the settlement, even though the city attorney had provided legal advice to the commission on how it could suspend Gates.

In his 49-page opinion, Sohigian said that the City Charter gives the City Council “dominant” authority over litigation involving the city and that the Police Commission is an agency not entirely independent of other branches of city government. That is generally true. But Sohigian’s analysis failed to focus on a narrower but key point.

The City Council’s dominant authority over litigation cannot sensibly include authority over litigation concerning a function that the City Charter assigns to the Police Commission exclusively. The commission alone, not the City Council, has the charter-conferred power to manage the Police Department. Only by managing the chief, as the chief manages the Police Department, can the commission carry out that function. Investigating his job performance is obviously an essential part of the management function.

Every big-city police chief has undefined and largely unarticulated political power. It stems from widespread perceptions that any interference with the manner in which a police department wants to run itself, day to day, may interfere with the ability of the police to protect the law-abiding.

Aware of that informal but very effective power of a police chief, a city council may respond by reacting too swiftly, and without real justification, to put down legitimate efforts to change the way a police department wants to conduct its business. That is what the Los Angeles City Council did when it ordered the city attorney to make an end run around the Police Commission through what amounts to a gimmick-like settlement with Gates. In deciding whether or not to rebuff the City Council, Sohigian had an easy case, but he used it to make bad law by giving the council unprecedented and unauthorized discretion to micro-manage the Los Angeles Police Department.