Graham v. San DiegoCountyCivil Service Commission

Filed 9/11/07 Graham v. San Diego County Civil Service Commission CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Patricia Y. Cowett, Judge. Affirmed.

Arlesia Graham appeals a judgment denying her petition for writ of administrative mandate against San Diego County Civil Service Commission (CSC). The petition challenged the CSC's decision affirming an order of the San Diego County Sheriff's Department (Sheriff) terminating her employment with Sheriff. On appeal, Graham contends: (1) the evidence is insufficient to support the trial court's finding that she violated the Sheriff's policy prohibiting its employees from associating with convicted felons or felons serving time in custody; and (2) the level of discipline imposed by the Sheriff (i.e., termination of her employment) was excessive punishment as a matter of law.

FACTUAL AND PROCEDURAL BACKGROUND

In 1999, Graham was a long-time employee of Sheriff in the position of a detention processing technician (booking clerk) at the downtown jail. While visiting her brother, who was incarcerated at Calipatria State Prison, Graham met her brother's cellmate, Bobby Graham.^[1] In or about March 2002, after three years of visiting her brother in prison and developing a relationship with his cellmate, she married Bobby Graham (Husband). In April Sheriff promoted Graham to the position of detention processing supervisor.

In February 2005, following an internal affairs investigation, Sheriff issued an order terminating Graham's employment for cause, citing eight causes including:

"CAUSE I [] You are guilty of Failure of Good Behavior as set forth under Section 7.2(r) of Rule VII of the Rules of the Civil Service Commission as it relates to Sheriff's Policy and Procedures Section 2.9 Associations, in that: You met a man while he was incarcerated in State Prison, entered into a relationship with, and subsequently married[,] him, in direct violation of Department policy."

Graham appealed that termination order to the CSC, which held an administrative hearing before a CSC hearing officer.

On July 6, 2005, the CSC hearing officer issued a 13-page proposed decision, summarizing the proposed decision as follows:

"[Graham] was a Detention Processing Supervisor at the Central Jail who willfully violated the Sheriff's Department policy against associating with convicted felons. [Graham] entered into a relationship [with], and then married, a convicted felon, all while he was incarcerated in a State prison. While [Graham] had a record of good performance and no prior discipline, the blatancy and permanence of the policy violation merits affirming the Department's Order of Termination."

The proposed decision included the following findings:

"3. At the [CSC] hearing, the [Sheriff] presented its Policy & Procedure Section 2.9 entitled Associations. [Citation.] It states: [] [']Employees shall not associate on either a personal or business basis or have dealings with persons whom they know, or should know, or have reason to believe are, or have been racketeers, sexual offenders, drug dealers, illegal drug users, illegal gamblers, persons whom the employee suspects, or should suspect, are involved in felonious activities, convicted felons, persons held in county custody, felons serving or who have served time in custody, or persons under criminal investigation or indictment, except as necessary to the performance of official duties, or where unavoidable because of other personal relationships.

"4. At the [CSC] hearing, the following testimony was uncontradicted: Approximately five years ago, [Graham] became acquainted with a convicted felon incarcerated in Calipatria State Prison. [Graham] met him while visiting her brother[,] who was also incarcerated at Calipatria. He was her brother's cell mate. In or about March 2002, she married him. [Citation.] She remains married to him today and he remains incarcerated." (Italics added.)

The proposed decision then stated the following conclusions:

"A. [Sheriff] proved by a preponderance of the evidence that [Graham] violated Policy and Procedure  2.9 by intentionally becoming involved with, and marrying, an incarcerated felon. [Graham] is highly intelligent as is corroborated by her Performance Reviews. [Citation.] The policy was clear enough on its face without the subsequent training she received [on it in 2003]. [Graham's] argument that the relationship was unavoidable gives too much weight to the power of attraction. Clearly, she had a choice not to enter into a relationship with her brother's cellmate despite her encounters with him while visiting her brother. . . . It would be a reasonable assumption that  2.9 does not require cessation of all contact with an incarcerated family member. However, none of these considerations apply to her relationship with her husband. In fact, it can be said that she twice violated  2.9: [f]irst by entering into a relationship with him and second by deciding to marry him. This second decision essentially placed her in permanent violation of  2.9. Even though there appears to be no immediate and direct risk that she can misuse her position to benefit her husband, on a long term basis, it is a conceivable risk. If  2.9 is given the relaxed interpretation that [Graham] suggests, eventually an employee married to a felon will find herself in a position which will be misused as a result of the relationship. [] . . . []

"C. While this appears to be the first discipline of a long tenured employee with good performance reviews, termination is appropriate because of the willfulness and permanence of her violation of [Sheriff's] Policy and Procedure  2.9. The fact that the other [seven] Causes were not proven is of no consequence since they were secondary allegations.

"D. [Graham] is guilty of Cause I, Failure of Good Behavior . . . ."

The proposed decision recommended the CSC affirm the Sheriff's order to terminate Graham's employment.

On July 6, the CSC issued a decision adopting and approving the hearing officer's proposed decision. The CSC affirmed the Sheriff's order terminating Graham's employment.

On October 3, Graham filed the instant petition for writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5, challenging the CSC's decision. In her petition, she argued:

"a. [CSC] proceeded in excess of its jurisdiction, in that the liberty to marry is subject to due process protection. The [CSC's] hearing officer concluded that this relationship arose while visiting her brother in state prison. And that it would be a reasonable assumption that section 2.9 does not require cessation of all contact with an incarcerated family member. He also concluded that there appears to be no immediate or direct risk that she can misuse her position to benefit her husband. [Citation.] [] . . . []

"f. There was a clear abuse of discretion by [CSC] in that[] the decision to terminat[e] [Graham's] employment is not supported by the findings, because the penalty is excessive as a matter of law in light of the findings of failure of good behavior and the [Sheriff's] practice of progressive discipline."

On September 1, 2006, following a hearing on the trial court's tentative ruling, the court issued a minute order confirming that tentative ruling, which stated:

"The Court denies the petition for a writ of mandate.

"In Ortiz v. Los Angeles Police Relief Assn. (2002) 98 Cal.App.4th 1288, the court addressed a situation where the trial court granted summary judgment in defendant's favor in a case where defendant fired plaintiff after she married an incarcerated felon. There, plaintiff worked for 'a private nonprofit association having the principal function of managing and administering the employee benefits of current and former LAPD officers.' [Citation.] After a review of the Constitutional protection of the right to marry, the Ortiz court concluded, 'In sum, we find that Ortiz's right to marry, as guaranteed by the privacy provision of the California Constitution, was not violated because LAPRA--in response to Ortiz's decision to marry an incarcerated felon--made a rational decision to further legitimate interests: the personal safety and well-being of police officers and their families.' [Citation.]

"Here, [Sheriff] has a uniform policy that prevents [its] employees from associating with incarcerated felons. The provision in section 2.9 that allows unavoidable associations does not apply in this instance because [Graham] began her association with her now husband while he was an incarcerated felon and she a Sheriff's employee. Although [Graham's] association with [Husband] may now be unavoidable, the relationship leading to the courtship and marriage was avoidable."

On September 5, the trial court entered a judgment denying Graham's petition for writ of mandate.

Graham, in propria persona, timely filed a notice of appeal.

DISCUSSION

I

Standards of Review

"[I]f the order or decision of the agency substantially affects a fundamental vested right, the [trial] court, in determining under section 1094.5 of the Code of Civil Procedure whether there has been an abuse of discretion because the findings are not supported by the evidence, must exercise its independent judgment on the evidence and find an abuse of discretion if the [agency's] findings are not supported by the weight of the evidence."^[2] (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 44.) "Where . . . a case involves a police officer's [or other law enforcement employee's] vested property interest in his [or her] employment, the trial court is required to exercise its independent judgment. [Citations.] . . . [A]n exercise of independent judgment does permit (indeed, it requires) the trial court to reweigh the [administrative hearing] evidence by examining the credibility of witnesses." (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.) "In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) Nevertheless, "[b]ecause the trial court ultimately must exercise its own independent judgment, that court is free to substitute its own findings after first giving due respect to the agency's findings." (Id. at p. 818.)

Unlike the independent judgment test applied by a trial court to an agency's findings of fact, a trial court must not disturb the penalty imposed by that agency unless there is a manifest abuse of discretion shown. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 53.) "The penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated. [Citations.] Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. [Citation.]" (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 404.) A court may not interfere with an agency's chosen penalty merely because, based on the court's evaluation of the circumstances, the penalty appears too harsh. (Pegues v. Civil Service Com. (1998) 67 Cal.App.4th 95, 107.) "If reasonable minds might differ as to the propriety of the penalty imposed, this fact serves to fortify the conclusion the administrative body acted within the area of its discretion. [Citations.]" (Ibid.)

On appeal, an appellate court reviews the trial court's findings of fact by applying the substantial evidence test "[e]ven when . . . the trial court [was] required to review [the] administrative decision under the independent judgment standard of review." (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 824.) In applying the substantial evidence test, "our review of the record is limited to a determination whether substantial evidence supports the trial court's conclusions and, in making that determination, we must resolve all conflicts and indulge all reasonable inferences in favor of the party who prevailed in the trial court. [Citations.]" (Barber v. Long Beach Civil Service Com., supra, 45 Cal.App.4th at pp. 659-660.) However, in reviewing a trial court's determination whether an agency abused its discretion in imposing the degree of punishment, we apply the same abuse of discretion standard of review as the trial court and, accordingly, give no deference to the trial court's conclusion. (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 47.) "[T]he appellate court reviews the agency's selection of the penalty for abuse of discretion, and the trial court's determination finding an abuse of discretion or not is not binding on the appellate court. [Citation.]" (Ibid., italics added.) Accordingly, we, like the trial court, "do not substitute our discretion for that of the administrative agency on the degree of punishment to be imposed. [Citations.]" (Ibid.) "The appellate court conducts a de novo review of the penalty assessed, giving no deference to the trial court's determination [of that issue]." (Id. at p. 46.)

II

Evidence to Support the Trial Court's Finding

Graham contends there is insufficient evidence in the record to support the trial court's finding that she violated Sheriff's section 2.9 associations policy.

A

Although the trial court issued a tentative ruling and minute order confirming that ruling, it did not issue a written statement of decision. Instead, after making certain oral statements at the hearing on the Petition, the court simply entered a minute order stating in part:

"Here, [Sheriff] has a uniform policy that prevents [its] employees from associating with incarcerated felons. The provision in section 2.9 that allows unavoidable associations does not apply in this instance because [Graham] began her association with her now husband while he was an incarcerated felon and she a Sheriff's employee. Although [Graham's] association with [Husband] may now be unavoidable, the relationship leading to the courtship and marriage was avoidable."

In so doing, the trial court apparently did not make express findings of fact.^[3] When a trial court does not issue a statement of decision, we imply all findings of fact necessary to support its decision.^[4] (Tusher v. Gabrielsen, supra, 68 Cal.App.4th at p. 140; Lee v. Department of Motor Vehicles (1983) 142 Cal.App.3d 275, 284; Hall v. Bureau of Employment Agencies, supra, 64 Cal.App.3d at p. 496; Small v. Smith (1971) 16 Cal.App.3d 450, 455.) As the California Supreme Court stated, when "the parties [do] not request a statement of decision or findings of fact . . . , all intendments favor the ruling below [citation], and we must assume that the trial court made whatever findings are necessary to sustain the judgment. [Citation.]" (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793, superseded by statute on another ground as noted in In re Zacharia D. (1993) 6 Cal.4th 435, 448.) In any event, in applying the substantial evidence test, "our review of the record is limited to a determination whether substantial evidence supports the trial court's conclusions and, in making that determination, we must resolve all conflicts and indulge all reasonable inferences in favor of the party who prevailed in the trial court. [Citations.]" (Barber v. Long Beach Civil Service Com., supra, 45 Cal.App.4th at pp. 659-660.)

B

In this case, the trial court expressly denied Graham's petition for a writ of mandate and, in so doing, at least impliedly found she had violated Sheriff's section 2.9 policy by associating with (and ultimately marrying) Husband, a convicted felon who was (and apparently still is) incarcerated in state prison. Based on the record, we conclude there is substantial evidence to support that finding by the trial court. As quoted above, Sheriff's section 2.9 associations policy states: "Employees shall not associate on either a personal or business basis or have dealings with persons whom they know, or should know, or have reason to believe are, . . . convicted felons, persons held in county custody, felons serving or who have served time in custody, . . . except as necessary to the performance of official duties, or where unavoidable because of other personal relationships." At the CSC hearing, Sheriff's internal affairs investigator testified Graham admitted to her that while she (Graham) visited her brother, who was incarcerated in prison, she met and began a relationship with Husband, her brother's cellmate. After about three years of visiting Husband in prison, in 2002 Graham married him. Graham has never disputed those facts.

We conclude the evidence is sufficient to support findings, whether express or implied, and reasonable inferences therefrom, by the trial court that Graham began a relationship with Husband while he was her brother's cellmate in prison and Graham therefore knew Husband was a convicted felon serving time in state prison when she began that relationship. Furthermore, the evidence supports findings that Graham continued the relationship for three years before marrying Husband in 2002 and continued that relationship during the remainder of her employment with Sheriff. Furthermore, the evidence supports a reasonable inference Graham had knowledge of Sheriff's section 2.9 associations policy that prohibited her from associating with convicted felons or felons incarcerated in state prison. Accordingly, there is substantial evidence to support the trial court's finding that Graham violated Sheriff's section 2.9 associations policy.

Direct evidence that Graham had the specific intent to violate Sheriff's section 2.9 associations policy was not required for the trial court to find she violated that policy. Rather, circumstantial evidence supporting a reasonable inference she knew of that policy and consciously began and continued a relationship with a convicted felon serving time in state prison (i.e., Husband) was sufficient. Furthermore, there was no requirement that the trial court find Sheriff suffered any actual harm from her violation. The violation of that policy, by itself, was sufficient cause for Sheriff to take disciplinary action against her.

Graham also argues that actions in violation of Sheriff's section 2.9 associations policy do not constitute a "failure of good behavior" required for discipline for cause of a civil servant pursuant to Government Code section 19572, subdivision (t), because that subdivision requires the failure of good behavior to be "of such a nature that it causes discredit to the appointing authority or the person's employment." However, we conclude there is substantial evidence to support a reasonable inference by the trial court that Graham's violation of Sheriff's section 2.9 associations policy did, in fact, discredit Sheriff by virtue of her formation of a relationship with (and ultimate marriage to) a convicted felon serving time in state prison. For example, the court could have reasonably concluded Sheriff's reputation for integrity and confidentiality of information among the public and, in particular, inmates of its jails and other criminal offenders could have been denigrated by questions of whether one of its employees' loyalty was, or may have been, "compromised" by her relationship with, and marriage to, a convicted felon serving time in a state prison. Therefore, Graham's conduct could reasonably be found to have caused discredit to Sheriff (as well as Graham's employment with Sheriff).^[5] (Gov. Code,  19572, subd. (t).)

Finally, we are not persuaded by Graham's argument that there was insufficient evidence to support a finding that her relationship did not qualify for the exception for "unavoidable" associations. Associations by Sheriff's employees with convicted felons or felons serving time in custody are prohibited under section 2.9, "except . . . where unavoidable because of other personal relationships." In this case, the CSC hearing officer assumed, as presumably the CSC and the trial court did also, that section 2.9 did not prohibit Graham from continuing her preexisting relationship with her brother despite his incarceration in state prison. Therefore, she presumably was allowed to visit her brother in prison because that relationship was "unavoidable" because of her sibling relationship with him. However, Graham was not allowed to essentially "bootstrap" that exception for her relationship with her brother into an exception covering her formation and continuation of new relationships with other convicted felons in prison, even though she met those other felons in the course of visiting her brother. In particular, Graham's personal relationship with her brother did not make it "unavoidable" that she begin and continue a new relationship with Husband. Accordingly, Graham has not carried her burden on appeal to show there is insufficient evidence to support the trial court's finding that she violated Sheriff's section 2.9 associations policy.^[6]

III

Termination of Graham's Employment

Graham contends Sheriff abused its discretion by selecting termination of her employment as the appropriate disciplinary action for her violation of its section 2.9 associations policy.

A

Neither a trial court nor an appellate court can disturb or "second guess" the degree of penalty imposed by that agency unless there is a manifest abuse of discretion shown. (Kazensky v. City of Merced, supra, 65 Cal.App.4th at p. 53; Barber v. State Personnel Bd., supra, 18 Cal.3d at p. 404.) A court may not interfere with an agency's chosen penalty merely because, based on the court's evaluation of the circumstances, the penalty appears too harsh. (Pegues v. Civil Service Com., supra, 67 Cal.App.4th at p. 107.) "If reasonable minds might differ as to the propriety of the penalty imposed, this fact serves to fortify the conclusion the administrative body acted within the area of its discretion. [Citations.]" (Ibid.)

Nevertheless, as Graham contends, "[i]n considering whether such abuse occurred in the context of public employee discipline, we note that the overriding consideration in these cases is the extent to which the employee's conduct resulted in, or if repeated is likely to result in, '[h]arm to the public service.' [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence. [Citation.]" (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.)

B

Considering the circumstances in this case, we conclude Sheriff did not abuse its discretion by selecting termination of Graham's employment as the appropriate penalty for her violation of its section 2.9 associations policy. Although Graham argues "a reasonable person could readily conclude that a lesser penalty rather than an outright dismissal was the appropriate penalty," she does not acknowledge the appropriate standard of review. Rather than considering what lesser penalty a reasonable person may have imposed, on appeal we review the record to determine whether Sheriff abused its discretion in imposing the penalty it did (i.e., termination of Graham's employment). (Kazensky v. City of Merced, supra, 65 Cal.App.4th at p. 53; Barber v. State Personnel Bd., supra, 18 Cal.3d at p. 404; Pegues v. Civil Service Com., supra, 67 Cal.App.4th at p. 107.) "If reasonable minds might differ as to the propriety of the penalty imposed, this fact serves to fortify the conclusion the administrative body acted within the area of its discretion. [Citations.]" (Pegues, supra, at p. 107.) In the circumstances of this case, we conclude reasonable minds could differ on whether the termination of Graham's employment was the appropriate penalty for her violation of Sheriff's section 2.9 associations policy. Accordingly, applying the appropriate standard of review, Sheriff did not abuse its discretion by terminating Graham's employment.

Furthermore, we are not persuaded by Graham's argument that there is no likelihood of recurrence of her violation because she is now married to Husband. As the CSC found, Graham entered into a relationship with, and later married, Husband, a convicted felon in custody in state prison. Rather than concluding her marriage made the "unavoidable" association exception to that policy applicable to preclude future violations, Sheriff could reasonably interpret and apply section 2.9 to, in effect, disallow that exception for a relationship with a convicted felon that ultimately results in marriage if its employee improperly began that relationship in violation of section 2.9. Therefore, Sheriff (and the CSC) could reasonably conclude Graham, by marrying Husband after improperly beginning a relationship with him, in effect made her violation of section 2.9 permanent, thereby disallowing any exception to that policy for "unavoidable" associations.

Finally, Graham argues that because she had limited access to confidential information and could not directly help Husband, her conduct did not result in, or if repeated is not likely to result in, harm to the public service. (Skelly v. State Personnel Bd., supra, 15 Cal.3d at p. 218.) We assume arguendo that Graham's access to information in the course of her employment with Sheriff did not and could not directly help Husband (e.g., by changing his prison or criminal records). Nevertheless, that is not the test of Skelly. Rather, it is whether Graham's conduct resulted in, or if repeated is likely to result in, harm to the public service. (Ibid., italics added.) In the circumstances of this case, Sheriff could have reasonably concluded Graham's violation resulted in harm to the public service because her relationship with and marriage to Husband denigrated or otherwise harmed Sheriff's reputation for integrity and confidentiality of information among the public and, in particular, inmates of its jails and other criminal offenders who may question whether one of Sheriff's employees' loyalty was, or may be, "compromised" by her relationship with, and marriage to, a convicted felon serving time in a state prison. Therefore, Graham's conduct could reasonably be found to have caused discredit to or otherwise harm Sheriff, as well as Graham's employment with Sheriff, and therefore constituted "harm to the public service." (Skelly, supra, at p. 218.)

Furthermore, to the extent Graham argues she did not have access to any confidential information that potentially could harm any jail inmates, state prison inmates, or members of the public, the record is unclear regarding the exact information to which she had access. In any event, the record supports the inference that Graham, as either a booking clerk or detention processing supervisor for Sheriff, had access to the social security numbers, telephone numbers, cell locations, and other presumably confidential information of jail inmates. Sheriff could reasonably conclude that because of Graham's relationship with and marriage to Husband, it could not trust her to maintain the confidentiality of that information in the event Husband asked her for such information.^[7] Also, despite Graham's denial, there is support in the record for an inference she has access to CLETS (California Law Enforcement Telecommunications System) and other databases that contain the confidential criminal histories of individuals, which information could be subject to misuse by Graham (and Husband and others). (Gov. Code,  15150, 15153; People v. Martinez (2000) 22 Cal.4th 106, 113, 120-121; Gilbert v. City of Sunnyvale(2005) 130 Cal.App.4th 1264, 1274, fn. 2.) We conclude there is sufficient evidence supporting a finding the Skelly test was satisfied. Accordingly, we conclude Sheriff did not abuse its discretion by terminating Graham's employment.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.

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^[1] Bobby Graham apparently was serving a prison term of about 20 years.

^[2] Code of Civil Procedure section 1094.5, subdivision (b) provides that a trial court's inquiry "shall extend to the questions . . . whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the [agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." Code of Civil Procedure section 1094.5, subdivision (c) provides: "Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. . . ."

^[3] However, by the language used in the tentative ruling, the trial court clearly made at least some implied findings of fact (i.e., that Sheriff had a policy against its employees associating with convicted felons and that Graham violated that policy by associating with Husband while he was an incarcerated felon).

^[4] Because the record does not show the parties timely requested a statement of decision, they waived the issuance of factual findings and legal conclusions by the trial court. (Code Civ. Proc.,  632; Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 140; Hall v. Bureau of Employment Agencies (1976) 64 Cal.App.3d 482, 496.)

^[5]Johnstone v. City of Daly City (1958) 156 Cal.App.2d 506 and the other cases cited by Graham are factually inapposite and do not persuade us to conclude otherwise.

^[6] To the extent the trial court quoted and discussed Ortiz, we conclude it did so in disposing of Graham's apparent assertion that Sheriff's section 2.9 associations policy violated her constitutional rights to privacy and marriage and did not do so in finding sufficient evidence to support its finding she violated that policy. Because Graham does not raise any constitutional contentions on appeal, we need not address, and do not rely on, Ortiz in deciding this appeal.

^[7] Sheriff, with knowledge of the gang situation in today's jails and prisons and the lines of communication among gang members, could reasonably conclude Husband could be pressured by gang members to have Graham obtain confidential information for improper uses (e.g., revenge attacks, etc.).