Seifert v. Cal.State Personnel Bd.

Filed 8/15/07 Seifert v. Cal. State Personnel Bd. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Donald G. Umhofer, Judge. (Retired judge of the San Luis Obispo Muni. Court, assigned by the Chief Justice pursuant to art. VI, 6, of the Cal. Const.) Affirmed.

Lackie & Dammeier, Dieter C. Dammeier and Steven J. Brock for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, Jacob A. Appelsmith, Senior Assistant Attorney General, Michael E. Whitaker, Supervising Deputy Attorney General, and Stephen A. Mesi, Deputy Attorney General, for Real Party in Interest and Respondent.

Following an administrative hearing during which petitioner and appellant Matthew Seifert challenged his employment discharge as a California Highway Patrol (CHP) officer, the California State Personnel Board (Board) affirmed Seiferts discharge. Seifert filed a petition for writ of mandamus in the trial court challenging the Boards affirmance of the CHPs termination of Seifert. After a hearing on Seiferts writ petition, the trial court dismissed Matthew Seiferts writ petition and entered judgment in favor of the CHP (the real party in interest) and the Board.

Seifert appeals the judgment denying his petition for writ of mandate seeking to reverse his discharge. Seifert contends his discharge constituted an excessive penalty, and therefore this court should overrule the trial courts denial of his writ petition and remand the matter to the trial court for issuance of a writ of mandate compelling the Board to impose a lesser penalty.

We conclude termination of Seiferts employment was not a grossly excessive penalty. Seifert was caught falsely reporting over a two-year period his sick leave as vacation time and tampering with CHP computer records and the sergeants log. Such conduct reflected a propensity for dishonesty warranting Seiferts dismissal. There being no abuse of discretion in the Board upholding Seiferts discharge, we affirm the judgment.

1. Factual Background

The pertinent facts are undisputed. Seifert was employed as a CHP traffic officer for seven and a half years. From April 1, 2001, until his termination effective August 18, 2003, he worked the graveyard shift in Woodland Hills. He had no prior discipline and had received numerous merit commendations.

Between June 26, 2001, and May 11, 2003, Seifert called in sick approximately 20 times. Each time, his superiors entered the information in the computer on an electronic sergeants log. At the end of each shift, a hard copy of the daily sergeants log was printed out and placed in a binder in the sergeants office.

Seiferts supervisors also filled out a red temporary CHP Form 415 Daily Field Report, noting Seifert had called in sick and placed the form on the administrative clerks desk. These forms are in red ink and are temporary because the officer calling in is unable to fill out a form until returning to work. Therefore the sergeant fills out the form 415 and puts it in a box in the sergeants office. The clerk would pick up the forms each day and retains them until the officer returns and fills out a permanent form 415. Normally, the clerk would not enter the information from the temporary form in the computer system if the officer submitted a permanent form within a few days.

When Seifert returned to work after calling in sick, instead of reporting on form 415 that he had been out on sick leave, Seifert reported that he was on vacation. Sick leave and vacation time were deducted from the same time-bank. Three or four times he took from the clerks desk temporary 415 forms stating he had called in sick, discarded the forms, and did not tell anyone.

On one occasion, after his sick time had already been entered into the CHP computerized records, Seifert convinced the clerk to change the entry from sick leave to vacation time. The clerk noted the change because she was not supposed to make any changes once the information was entered in the computer.

On at least one occasion, Seifert accessed the electronic sergeants log and deleted references to his calling in sick. Seifert testified he made such changes on four or five occasions to avoid being asked where his sick leave form was. Seifert also removed the original log page from the binder in the sergeants office, substituted a hard copy of the page he had altered, and destroyed the original log page.

When Seifert returned to work after calling in sick, he failed to submit STD 634 forms required after being on sick leave. Seifert claimed he did not do so because it was easier to fill out the vacation time form than the sick leave form.

Sergeant Goulding, Seiferts supervisor, accidentally discovered Seiferts actions on May 23, 2003, when he checked to see if the 415 forms matched the sick list in the master schedule. Seiferts 415 form for sick leave on May 11 did not match. The form stated he took vacation time. Goulding recalled filling out a temporary form 415 after Seifert called in for sick leave on May 11. When Goulding checked the sergeants log, he discovered his print out of the log entry on May 11, stating Seifert called in sick, was missing. Seiferts sick leave nevertheless could be traced because it remained marked on the master calendar.

Goulding also discovered his computer entry on the computer log was also missing. The CHP statewide departmental computer expert confirmed that on May 13, 2003, Seifert had deleted Gouldings entry stating Seifert was on sick leave and had changed the entry.

Goulding reported the incident to the area commander and the matter was internally investigated. During Seiferts recorded internal investigative interview on June 11, 2003, Seifert acknowledged he was aware of the requirements for properly submitting 415 and 634 forms for sick leave. He also admitted he had changed the sergeants electronic log; made improper notations and changes in the computerized log; printed out the changed computer record and put it in the log in the sergeants office; discarded the original print out; and failed to report his sick leave on the 415 and 634 forms.

2. Procedural Background

On August 4, 2003, the CHP served Seifert with a notice of adverse action terminating his employment as a CHP officer, effective August 18, 2003. The notice stated Seifert was discharged under Government Code section 19572 for inexcusable neglect of duty; dishonesty; misuse of state property; violation of prohibitions stated in Government Code section 19990; and, other failure of good behavior during or outside of duty hours which causes discredit to the CHP or Seiferts employment.

The notice further alleged that Seifert (1) had claimed vacation time instead of sick time on form 415 on at least 20 occasions over a two-year period; (2) failed to submit an STD 634 form for the days he phoned in sick; (3) on several occasions removed from the sergeants log the temporary 415 form reporting Seifert had called in sick and replaced it with a new 415 form indicating vacation time; (4) accessed the sergeants electronic log, deleted any reference to being sick, printed out a new version of the form indicating vacation time, and placed the new print out in the sergeants log book; and (5) intended to deceive area supervisors regarding his sick leave.

In addition, Seifert allegedly misused CHP computer information in violation of HP 101; violated Penal Code section 502, subdivision (c), a computer crime, by knowingly accessing and without permission adding, altering, damaging, deleting, or destroying computer data; violated the Highway Patrol Manual (HPM) concerning reporting sick leave on 415 and STD 634 forms; and violated CHP General Order 0.8, Professional Values, relating to honesty, principles and integrity.

Seifert appealed his termination to the Board. Following a hearing on the matter before an administrative law judge (ALJ), the authorized representative for the Board, the ALJ, issued a proposed decision upholding Seiferts discharge. The Board adopted the ALJs decision, with the exception the Board did not adopt the ALJs finding that Seifert committed a computer crime in violation of Penal Code section 502. The Board stated in its decision that it made no determination as to whether Seiferts conduct violated any criminal statute.

Seifert filed in the superior court a petition for writ of mandamus under Code of Civil Procedure section 1094.5, challenging the Boards decision. Seifert also filed a Pitchess motion ( 1043) seeking records concerning discipline of another CHP officer for similar misconduct. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.) After granting the Pitchess motion and considering the additional records and administrative record, the trial court denied Seiferts writ petition, finding that there was substantial evidence to support the Boards findings and decision, and the Board did not abuse its discretion affirming Seiferts termination. Seifert appeals the trial courts ruling denying Seiferts writ petition.

3. Standard of Review

The Boards determination as to Seiferts penalty for misconduct will not be disturbed absent a manifest abuse of discretion. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217-218 (Skelly); Paulino v. Civil Service Com. (1985) 175 Cal.App.3d 962, 970 (Paulino).) Neither the trial court nor this court may substitute its discretion for the Boards as to the degree of penalty imposed. (Ibid.; Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 404-405.)

This court may not interfere with the Boards imposition of a penalty merely because in our evaluation of the circumstances the penalty of dismissal may appear too harsh. (Paulino, supra, 175 Cal.App.3d at p. 970; Macfarlane v. Dept. Alcoholic Bev. Control (1958) 51 Cal.2d 84, 91.) Discretion is abused where the penalty imposed exceeds the bounds of reason; the fact reasonable minds may differ as to the propriety of the penalty supports a finding the [Board] acted within its discretion. [Citation.] In determining whether the penalty of termination was excessive as a matter of law, the overriding considerations are the extent of harm to the public service resulting from [Seiferts] conduct or the likelihood such conduct, if repeated, would result in such harm; other considerations are the circumstances surrounding [Seiferts] misconduct and the likelihood of its recurrence. (Paulino, supra, 175 Cal.App.3d at pp. 970-971.)

As noted in Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 54: In reviewing the exercise of this discretion we bear in mind the principle [c]ourts should let administrative boards and officers work out their problems with as little judicial interference as possible . . . . Such boards are vested with a high discretion and its abuse must appear very clearly before the courts will interfere. [Citation.] In determining whether an agency abused its discretion in assessing a particular penalty, a court will look to whether reasonable minds may differ as to the propriety of a penalty imposed. [Citations.] Judicial interference with the agencys assessment of a penalty will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency. [Citation.]

4. Seiferts Termination Was Not an Excessive Penalty

Citing Skelly, supra, 15 Cal.3d194 and Richardson v. Board of Supervisors (1988) 203 Cal.App.3d 486 (Richardson), Seifert contends that under the totality of the circumstances, his termination was an excessive penalty and a clear abuse of discretion. He argues his seven and a-half years tenure as an officer, with no prior discipline, the relatively benign nature of his misconduct, the lack of any public harm, and the unlikely recurrence of such conduct, required a lesser penalty. He also complains that another employee received a far less severe penalty for similar but more egregious misconduct.

Skelly, supra, 15 Cal.3d194 and Richardson, supra, 203 Cal.App.3d 486 are distinguishable. In Skelly, the Department of Health Care Services terminated Skellys employment as a physician for extending his allotted lunch time by five to 15 minutes and twice leaving the office for several hours without permission. The California Supreme Court held Skellys termination constituted an abuse of discretion because his misconduct did not adversely affect public service and was excessive punishment. (Skelly, supra, 15 Cal.3d at p. 218.)

The facts in the instant case are quite different. Seifert was employed as a CHP officer, as opposed to a physician, and was terminated for committing acts of dishonesty. (Skelly, supra, 15 Cal.3d at pp. 197, 200.) CHP officers are held to a higher standard of honesty than other employees because they are entrusted with enforcing the law. (Ackerman v. State Personnel Bd. (1983) 145 Cal.App.3d 395, 398-399 (Ackerman).)

In Ackerman, supra, 145 Cal.App.3d 395, in which a CHP officer was discharged for stealing motorcycle parts and lying during a subsequent investigation, the court explained that the officers actions would probably warrant some form of punishment less than dismissal if he was not a police officer. However, a police officer must be held to a higher standard than other employees. A police officer is expected to tell the truth. (Ackerman, supra, 145 Cal.App.3d at pp. 398-399.)

The Ackerman court added: CHP officers are held to the highest standard of behavior: the credibility and honesty of an officer are the essence of the function; his duties include frequent testifying in court proceedings. . . . [] The position of a CHP officer by its nature is such that very little direct supervision over the performance can be maintained. The CHP necessarily must totally rely on the accuracy and honesty of the oral and written reports of its officers as to their use of state time and equipment. Any breach of trust must therefore be looked upon with deep concern. Dishonesty in such matters of public trust is intolerable. (Ackerman, supra, 145 Cal.App.3d at p. 400.)

As in Ackerman, in the instant case Seifert committed acts of dishonesty. Although such acts did not occur while enforcing the law, they indicated a propensity for dishonesty. There was evidence that Seifert had committed numerous acts of dishonestly reporting his sick time as vacation time, along with instances of illicitly altering the sergeants log and changing Seiferts leave records on the CHP personnel computer. Such conduct, no doubt, would have continued had it not been discovered. Upon discovering the misconduct, the CHP reasonably concluded Seifert could no longer be trusted as an officer. Because honesty, integrity, and trustworthiness are critical character attributes of an officer, Seiferts termination based on dishonest acts was not an excessive penalty.

Seifert argues his termination constituted excessive punishment because, as in Skelly, his misconduct did not adversely affect public service. (Skelly, supra, 15 Cal.3d at p. 218.) Seifert also claims his misconduct was not serious because his vacation time and sick time were deducted from the same annual leave bank.

We disagree. His misconduct was serious and adversely affected public service. Seiferts acts of calling in sick and then surreptitiously changing the CHP leave records, along with deleting comments the sergeant made concerning Seifert, reflected a propensity for dishonesty and not following internal rules. Seiferts actions imperiled the integrity of the CHP leave records and interfered with the CHPs oversight of Seiferts use of sick leave.

The court in Paulino, supra, 175 Cal.App.3d 962 distinguished Skelly, noting that Skelly did not involve intentional dishonesty by a peace officer. In Paulino, Deputy Paulino was terminated from his employment for calling in sick as a pretext for taking time off to spend the afternoon and evening with friends. On another occasion, Paulino told his sergeant he could not work because he had strep throat but then threw a Halloween party. During the departments investigation of Paulinos deceptive conduct, Paulino lied about his activities, leading to his termination. (Paulino, supra, 175 Cal.App.3d at p. 972.)

The county civil service commission in Pauline upheld the termination, as did the superior court and Court of Appeal, on the grounds Paulino deceived his employer about his health and sick leave usage, and falsely reported ill. Also, in his oral and written reports he provided false and misleading statements and omitted material facts. In addition, he asked another deputy to corroborate his story. (Paulino, supra, 175 Cal.App.3d at p. 972.)

In affirming the trial courts judgment denying Paulinos petition for writ of mandate, the Paulino court stated: Dishonesty is not an isolated act; it is more a continuing trait of character. [Citation.] False statements, misrepresentations and omissions of material facts in official reports, if repeated, were likely to result in harm to the public service. Under the countys progressive discipline guidelines, dismissal was within the range of punishment for the first offense of dishonesty. Further, on this record dismissing Paulino did not exceed the bounds of reason. The Commissions imposing the penalty of termination was not excessive as a matter of law. The court properly denied mandate. (Paulino, supra, 175 Cal.App.3d at p. 972.)

Here, as in Paulino, Seiferts misconduct involved intentional dishonesty by a peace officer. Seifert submitted numerous false vacation time reports, after calling in sick, and tampered with the CHP computer leave records and the sergeants log by altering and eliminating records indicating Seifert was on sick leave. Such conduct reflected a propensity for dishonesty.

Seifert argues his misconduct was relatively benign. There was no evidence he acted in bad faith and he did not cause the department to suffer any monetary loss. Seifert notes the following circumstances show that the termination penalty was excessive: (1) his sick and vacation leave are in one annual leave bank; (2) his pay was the same regardless of whether he reported his absences as vacation or sick leave; (3) he was not accused of falsely calling in sick or abusing his sick leave; (4) the CHP stations timekeeper testified filling out the sick form was so tedious that some officers did not fill it out; (5) Seifert told his supervisor he was calling in sick and this was reflected on the master calendar; (6) out of the 20 times he called in sick over two years, eight instances were prearranged family sick leave for childbirth, and only three instances were related to overtime assignments; (7) Seifert had always used the vacation form; and (8) he had permission to access the CHP computer sheet detailing daily events.

Seifert contends he should not have been terminated under these circumstances because he committed the misconduct not realizing the seriousness of his acts. He claims he now knows better and promises not to commit the same misconduct again.

But Seifert acknowledged during his interview that, when he committed the misconduct, he knew he was supposed to report his sick leave as such, rather than as vacation time on the 415 form, and was also supposed to submit a 634 form. And even if his misconduct might not have been sufficiently egregious to warrant dismissal had he not been a CHP officer, we conclude there was no abuse of discretion in discharging him for his dishonest acts since a peace officer must be held to a higher standard than other employees. His dishonest conduct, particularly his tampering with the CHPs computer records and sergeants log, reflected an inability to adhere to the CHPs heightened standards of honesty and integrity. (Ackerman, supra, 145 Cal.App.3d at p. 399.)

Seiferts reliance on Richardson, supra, 203 Cal.App.3d 486, for the proposition his termination was an excessive penalty, is also misplaced. In Richardson, Deputy Richardsons employment was terminated for insubordination, being absent without leave, and discourteous conduct. Richardson and his supervisor, Sergeant Edmondson, got into an altercation over Richardson issuing a citation to a friend of the sheriffs for breaking the law. Before Richardson issued the citation, Edmondson had told Richardson to cite the individual under the appropriate section. After the sheriff was informed of the citation, the sheriff called Edmondson and complained about it. Edmondson, in turn, admonished Richardson, who became irate at Edmondson and the sheriff for interfering with his enforcement of the law.

The Richardsoncourt affirmed the trial court holding that, under such circumstances, in which Richardson had reason to object to Edmondson and the sheriffs interference with Richardsons enforcement of the law, particularly after Edmondson initially told Richardson to issue the citation, Richardsons termination constituted a grossly excessive penalty. (Richardson, supra, 203 Cal.App.3d at p. 495.) The Richardsoncourt emphasized that Richardsons conduct was not likely to result in harm to public service if repeated. (Ibid.)

Unlike in the instant case, Richardsoninvolved a single isolated incident; Richardsons conduct was not dishonest and did not cause any harm or danger to the public; and the incident was unlikely to recur since Richardsons conduct arose from provocation in which Edmondson and the sheriff interfered with Richardsons law enforcement duties. (Richardson, supra, 203 Cal.App.3d at p. 495.)

Seifert also argues the CHP unfairly singled him out by imposing a more severe penalty than that imposed on another officer whose conduct was far more serious. After Seifert filed his writ petition, the CHP imposed a 30-day suspension penalty on another officer for 10 separate incidents of similar, but more egregious, misconduct. The officer submitted false CHP 415 forms, claiming she had worked a full day, when she had actually been off duty, and submitted false CHP 415 forms claiming vacation pay when she was actually using personal or sick leave. She had previously been docked several times for the same conduct and warned about committing such acts. In addition, the officer had lied during an informal internal affairs investigation of the misconduct.

There is no evidence that the CHP unlawfully discriminated against Seifert in any way or singled him out for more severe punishment. In addition, the record supports the finding that Seiferts dismissal was not a grossly excessive penalty due to Seiferts dishonest misconduct. Evidence that another CHP employee was not punished as severely as Seifert for similar misconduct does not require this court to set aside Seiferts penalty. The circumstances and facts of Seiferts case support termination of his employment, regardless of whether the CHP later decided to impose a less severe penalty upon another employee for committing similar misconduct.

There are various possible explanations for Seifert calling in sick and then changing his leave to vacation time. He claims he did so because filling out the required sick leave form, form 634, was time consuming and onerous. Other possible reasons, which Seifert attempts to refute, are: (1) By calling in sick, he did not need to prearrange for time off, as was required for vacation time; (2) When he changed his sick leave to vacation time on the computer log and sergeants log, he removed any unfavorable comments; (3) By replacing documentation of his sick leave with vacation leave documentation, he avoided or hindered oversight and tracking of his sick leave; and (4) By changing his sick leave to vacation time, he avoided any indication that he might be abusing his sick time by resting after working overtime or after his graveyard shift. Seifert was one of the top five overtime workers in the office.

Sergeant Curtin testified at the arbitration hearing that, after reviewing all of the CHP records, including the master calendar and 415 forms, he concluded Seiferts use of 20 days of sick leave over two years was abusive. Curtin also stated that, while Seifert stated he changed his sick leave to vacation time to avoid filling out the 634 form, Seifert also said he changed some of the log entries because there were unfavorable comments.

Although Seiferts sick leave was reported on the master calendar and remained unchanged there, Seifert may not have been aware of this or may have believed the other records were relied on when reviewing an officers sick time and overtime.

Whatever the true reason or reasons for Seiferts misconduct, his conduct violated internal rules and was dishonest, particularly his surreptitious alteration of the CHP computer records and sergeants log. We accordingly conclude there was no abuse of discretion in the Board affirming the CHPs discharge of Seifert. The penalty was not grossly excessive. Seiferts dishonest conduct betrayed the underlying values of honesty and integrity necessary to protect and serve the public, and engendered the CHPs lack of trust in Seifert in future employment situations.

5. Disposition

The judgment is affirmed. The CHP and Board are awarded their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Hollenhorst

Acting P. J.

s/Miller

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.