Operating Engineers Local No. 3 v. County of Monterey

Filed 10/17/07 Operating Engineers Local No. 3 v. County of Monterey CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

The trial court denied the petition for writ of administrative mandamus in which Deputy Sheriff Louis Parker,[1] sought to vacate the disciplinary action terminating his employment with the Monterey County Sheriffs Office (Sheriffs Office). The Sheriffs Office terminated Parker on the grounds that he was negligent when he accidentally shot a civilian and that he lied during the internal affairs investigation into the shooting. The Monterey County Board of Supervisors (the Board) upheld the termination.

Parker contends his due process rights were violated because his termination was based on charges that were not set forth in the Notice of Punitive Action. He asserts the Boards finding that other negligent discharge cases were dissimilar was not supported by substantial evidence and that substantial evidence does not support the Boards decision to distinguish this case from accidental discharge cases that did not result in human injury. He argues the decision to terminate him was an abuse of discretion because it was the result of disparate treatment and was not supported by the evidence. We find no error and affirm the superior court judgment.

Facts

Parkers Employment with Sheriffs Office

Deputy Parker began working for the Sheriffs Office in November 1995. He worked as a deputy in corrections at the Monterey County Jail for about three and one half years. During that time, he briefly transferred to the patrol section of the Sheriffs Office but was returned to corrections until he could improve his report writing skills.

In 1999, Parker transferred back to the patrol division. After brief stints in the Salinas and Monterey branch offices, he was assigned to the branch office in King City, where he worked as a patrol officer until his discharge in May 2003. As a patrol deputy, he was issued a 12-gauge shotgun and a .40 caliber Glock semi-automatic pistol.

In August 2000, the Sheriffs Office issued a memorandum to the deputies advising them that the department would be making Colt AR-15 semi-automatic[2] rifles available for use by the deputies. The memorandum inquired regarding the officers interest in obtaining the training and maintaining the qualification necessary to use the rifles. Parker responded affirmatively and indicated an interest in obtaining the training and using the rifle.

Patrol officers who carried the AR-15 rifles on regular patrol were required to attend a 16-hour weapons training course and qualify with the weapon. To qualify with a weapon, the officer has to shoot a designated number of rounds, place them on a target in locations that would be incapacitating to a human being, and obtain a minimum score, indicating his or her proficiency with the weapon. In response to Parkers request, the Sheriffs Office scheduled him to take the 16-hour training course on the AR-15.

Work on SWAT Team

In the latter part of 2000, Parker interviewed for a position on the Special Weapons and Tactics (SWAT) team. He was appointed to the SWAT team in October 2001. At that point in time, he still had not taken the 16-hour training on the AR-15. After he was appointed to the SWAT team, the Sheriffs Office cancelled Parkers 16-hour training course, reasoning that he would obtain training on the AR-15 as part of his training on the SWAT team.

In December 2001, the Sheriffs Office issued Parker an AR-15 with a canvas case for use on the SWAT team. The Sheriffs Office generally held monthly training sessions for the SWAT team on a variety of topics. The training sessions usually lasted a full day. Over the course of a year, the SWAT training covered the same material as the 16-hour rifle course on the AR-15.

After he was issued the AR-15, Parker decided he wanted some experience firing the weapon before the next SWAT training session. He therefore arranged to go to the Laguna Seca Rifle and Pistol Range with Deputy Rahiri to practice shooting the AR-15. They went to the range on their own time on January 4, 2002. Deputy Rahiri showed Parker how to load and unload the weapon. Parker testified that this was the first time anyone showed him how to load and unload the AR-15. Rahiri was surprised that Parker was having trouble loading and charging the weapon. However, after he showed him how to do it, Parker was able to operate the rifle correctly. After they were done shooting, Parker and Rahiri went to Rahiris house and Rahiri taught Parker how to break down and clean the AR-15.

The monthly SWAT training included gun range training at least four times a year. The SWAT training Parker attended on February 9, 2002, was an all-day session at the King City range and covered [v]arious shooting courses and weapons qualifications. Sergeant Garcia, one of the SWAT team leaders, recalled that Parker qualified on the AR-15 at that training session. Sergeant Teeter, the other SWAT team leader, testified that the team leaders do not allow SWAT team members to deploy their assigned weapons until they exhibit proficiency with the weapon and qualify.

Parker also attended a three-day basic SWAT training course in March 2002 that included some weapons qualifications. The deputies did drills with their handguns, the MP-5 rifles, and the AR-15 rifles. The drills with the AR-15 lasted an hour and a half on March 12, 2002. The officers also received training regarding cleaning the weapons on March 14, 2002. However, there was a factual dispute whether Parker attended this portion of the training because he had sustained an injury earlier that day.

Including the dates mentioned above, Parker attended 13 days of SWAT training between October 24, 2001, and August 1, 2002.

August 5, 2002 SWAT Mission

On August 5, 2002, 15 days before the shooting, Parker worked his regular 10-hour patrol shift from 7:00 a.m. until 5:00 p.m. Because the station was short-handed, he agreed to remain on duty and work the next shift. At about 8:00 p.m., during Parkers second shift, he was called out for a SWAT mission to help serve a search warrant on a house in Salinas as part of a homicide investigation. Parker remained on duty to complete the SWAT mission until 1:00 a.m. the following morning.

After receiving the call for the SWAT mission, Parker went to the Salinas station to meet with the SWAT team for a briefing and to obtain his SWAT gear. SWAT weapons are generally stored in the armory in the Salinas office of the sheriffs department, with the magazine out and the chamber unloaded. The Sheriffs Office allowed the SWAT officers to keep their SWAT weapons with them when on patrol, on the condition that they stored the weapons unloaded, with the magazine removed when outside the armory. In addition, SWAT team members assigned to the King City station were allowed to store their SWAT weapons, unloaded with the magazine removed, in their lockers in King City to allow for prompt access to the weapon in case of a SWAT mission in south county. Parker testified that he did not keep his AR-15 with him on patrol, although authorized to do so by the department, because he did not feel comfortable with the weapon.

The search warrant mission on August 5, 2002, was successful. No shots were fired. Upon completion of the SWAT mission, Sergeant Teeter gave an order for the team members to place their weapons on safe. The weapons remained loaded, but the selector switch was on safe, not fire. Parker could not recall whether he placed his AR-15 on safe.

The team traveled back to the Salinas station for a debriefing. After they arrived at the station, the deputies unloaded their weapons; they removed the magazines, cleared the chambers, placed the rifles in their cases, and returned them to the armory. On previous SWAT missions that Parker attended, the deputies unloaded and cleared their weapons as a group. However, the deputies did not unload as a group on August 5, 2002. Sergeant Teeter explained that they generally do not unload as a group after serving a search warrant.

Rather than return his AR-15 to the armory, Parker placed it in its case inside the trunk of his patrol car. He took the weapon with him so he could clean it and to comply with a directive from the SWAT sergeants to label his gun case. After he returned to the King City station, Parker placed the rifle case, with the AR-15 inside, in his locker. He completed a report from earlier in the day and went home. It was undisputed that Parker failed to clear his weapon of all live ammunition after the August 5, 2002 SWAT mission and that he left the AR-15 with the magazine loaded and a live round in the chamber when he placed it in the gun case. The Board found that Parker had failed to place the safety switch in the safe position.

Each deputy on the SWAT team was assigned a particular rifle and a black canvas gun case. The rifles and the cases belonged to the Sheriffs Office. When the deputies changed assignments on the SWAT team, the weapons would be reassigned. At their July training meeting, the SWAT team members were directed to put their names on their rifle cases. The SWAT team leaders suggested three methods: (1) that the deputies laminate a business card and attach it to the case; (2) that they put their names on an evidence tag and attach it to the case; or (3) that they write their names on a piece of tape and attach the tape to the bag. The team leaders did not tell the deputies these were the only ways to mark their gun cases. A few deputies owned their own cases. Those deputies had name tags sewn onto their bags, embroidered their bags, or used a white maker to label their bags. Several witnesses stated that it was inappropriate for a deputy to permanently mark a case that belonged to the Sheriffs Office.

Shooting Incident

On August 20, 2002, while off-duty, Parker and his wife took his gun case, with the AR-15 inside, to the Graphic Threads shop in King City to inquire about having Parkers name embroidered on the case. Parker had not examined the weapon since the search warrant mission on August 5, 2002. After parking his pick-up truck, he made a conscious decision to leave the rifle inside the gun case. He decided not to leave the gun inside the pick-up truck because his college-aged daughter had decided to remain in the truck, there was no other place to store the gun in the truck, and Parker did not want members of the public to see him pull the gun out of the case.

Parker took the gun case up to the store counter. Shop owner Nancy Ingalls had difficulty fitting an embroidery ring on the area of the bag that Parker wanted embroidered and asked him to remove the gun from the case. Parker unzipped the case at the butt end. As he started to remove the gun from the case, Don Ingalls, Nancys Ingallss husband and co-owner of the shop, got up from his desk and walked toward the counter. Don Ingalls, who was a hunter and had served in the military, became curious when he heard the word rifle and wanted to see the gun. Parker grabbed the rifle by the stock. He was positive he did not pull the trigger. As Parker pulled the gun from the bag, it discharged. A round went through the soft case and struck Mr. Ingalls in the abdomen.

Deputy Parker rushed to Mr. Ingallss side. After determining that Ingalls was alive, Parker went outside and called for help on his service radio, while Mrs. Parker, who was a nurse, tended to Mr. Ingalls. Mr. Ingalls received emergency treatment in Salinas and was then flown to the Santa Clara Valley Medical Center for further treatment. As a result of the incident, Don Ingalls lost one-third of his large intestine and one-third of his small intestine and had to use a feeding tube. Both Mr. and Mrs. Ingalls sued the county and Deputy Parker for personal injuries (Monterey County Superior Court Case No. M61739).

It was undisputed that Parkers work record was unblemished prior to the August 20, 2002 incident.

Procedural History

Immediately after the shooting, Parker was placed on paid administrative leave. He returned to active duty on October 22, 2002. Parker resigned from his position on the SWAT team on December 10, 2002. His letter of resignation stated that the shooting incident had caused unfair media attention to the SWAT team. He apologized to the team and the sheriffs department for the embarrassment he brought upon them. He remained on duty on his patrol assignment until March 13, 2003.

Internal Affairs Investigation

Shortly after the incident, the Sheriffs Office internal affairs department initiated an investigation into the shooting. The investigation focused on two issues: (1) whether Parker was negligent in handling his AR-15 at the embroidery shop and (2) whether Parker was dishonest when interviewed by internal affairs about the shooting. After an extensive investigation, the internal affairs investigator concluded that Parker was negligent in handling his AR-15 rifle at the embroidery shop. The investigator also concluded that Parker had been dishonest in responding to questions during the internal affairs investigation. In particular, the investigator concluded that Parker had been dishonest when he said that he had never received any training on his SWAT weapon and that he had never qualified on the AR-15.

In his first interview, Parker was asked, Did you receive any training as far as familiarization with that and qualification with that weapon? He answered, No. He said the range masters never gave him any training on the weapon and Deputy Rahiri showed him how to shoot it. In response to a question asking whether he had ever qualified with the AR-15 since being on the SWAT team, Parker stated that he did not know if it was a qualification. [He] just shot on the SWAT, [he] never qualified. He denied ever having any training at the King City range.

In his second interview, the investigator asked Parker why he had denied ever having any training on his SWAT weapon. Parker responded, Because I havent had training with it. When asked why he had said he had never qualified with the weapon, Parker responded, Because I . . . I was never qualified with that weapon. He stated that no one other than Deputy Rahiri had ever given him any instruction on the AR-15. After the investigator showed Parker documents that confirmed that he had attended a full day of SWAT training that included weapons training and qualification on the AR-15 at the King City Range on February 9, 2002, Parker said he did attend the training. After the investigator showed Parker documents regarding the three-day SWAT training in March 2002, Parker acknowledged that he had gone to the training and that firearms training took place on March 12, 2002.

On April 2, 2003, the Sheriffs Office Shooting Review Board made a formal finding that the shooting was not within department policy. Although not expressly stated in the record, it appears the discipline recommended was termination.

Skelly Hearing and Notice of Punitive Action

Parker requested a Skelly[3] hearing, which was held on April 30, 2003. After the hearing, Sheriff Mike Kanalakis upheld the recommended discipline. On May 9, 2003, the Sheriff issued a Notice of Punitive Action terminating Parkers employment effective that day. The termination was based on the internal affairs findings that Parker was negligent in handling his AR-15 and deceptive in his responses to certain questions during the internal affairs investigation.[4]

Sheriff Kanalakis acknowledged that Parker was remorseful and had apologized for what had happened. While Parker admitted that he had experience shooting the AR-15, there was a difference of opinion whether shooting the weapon was the same as qualifying with it. The Sheriff testified that Parker was not lying when he said he had not qualified on the AR-15. However, he also stated that he department does not provide weapons to deputies who have not qualified.

The Sheriff explained that the facts that Parker was negligent in handling the weapon and someone almost lost his life were critical to his decision to terminate Parker. The fact that Parker was deceitful during the internal affairs investigation left him no choice but to terminate him. The Sheriff also concluded Parker would not be a credible witness in a courtroom in a criminal case.

Appeal of Disciplinary Action to Board; Appointment of Hearing Officer

Parker appealed the discipline to the Board. Pursuant to the Memorandum of Understanding between the county and the Deputy Sheriffs Association, the parties selected and the Board appointed a hearing officer to conduct a hearing on the appeal.

The hearing was held on April 22, and May 12, 2004. At the hearing, the county argued that Parker should be terminated for the negligent shooting resulting in serious injury, coupled with his dishonest answers during the internal affairs investigation. The county asserted that Parker cannot be trusted to be truthful in the future, reducing his effectiveness in court proceedings and in dealings with his peers and superiors. The county argued that this case was distinguishable from other cases of officer discipline the Union was relying on to argue that Parker was treated disparately and without just cause.

The Union argued that Parker should not be terminated because, except for this incident, his record with the Sheriffs Office was unblemished. In addition, Parker immediately accepted responsibility for and showed remorse for the shooting. The Union contended that Parkers alleged untruthful answers were not untruthful because Parker and the investigator attached different meanings to the words trained and qualified as those terms relate to the use and handling of the AR-15. The Union also argued that termination was too severe a penalty when compared with other cases of negligent but accidental shootings by Monterey County deputy sheriffs, rendering Parkers discharge outside the accepted standard of just cause. The Union presented evidence related to eight accidental shooting cases, other than the subject incident, dating back to March 1998. Two of the cases resulted in injuries to persons, while six resulted in property damage. None of the other officers had been terminated.

The hearing officer reviewed extensive documentary evidence, including the 64-page internal affairs report. He also heard the testimony of Parker, Mr. and Mrs. Ingalls, Sheriff Kanalakis, Sergeants Teeter and Garcia, and other Sheriffs Office personnel.

Hearing Officers Decision

The hearing officer issued his opinion and award on September 7, 2004. He concluded that Parkers dismissal was without sufficient and just cause. The hearing officer gave less weight to the prior shooting incidents involving property damage. While recognizing that only fate determined whether a person or property was struck in most cases, he reasoned that the level of discipline can be justly different in cases where human beings, rather than property, are injured as a result of the negligent use of firearms by law enforcement officers. The hearing officer reviewed the other two shooting cases involving personal injuries and noted that one officer received no discipline, while the other officer received a three-week suspension. Because of the substantial difference in the disciplinary treatment of Parker compared to the other officers, the hearing officer concluded that Parker could not, under the standard of just cause, be terminated for the shooting.

With regard to the issue of dishonesty, the hearing officer concluded that a careful analysis of Parkers answers in his two [internal affairs] interviews, as well as the arbitration hearing,demonstrates to the arbitrator^[[5]] that Mr. Parker was not being intentionally deceptive. This is particularly evident when his answers are measured against his own actions to self-train himself with deputy Rahiri and to store his AR-15 in the Salinas office armory rather than his patrol car as well as the clear, seemingly sincere ambiguity and confusion in Parkers stated understanding of the meanings of trained and qualified. While there was testimony that during mandatory semi-annual shooting practices, the SWAT team stays at the range until all of its members qualify, there was no evidence presented that such a practice was known by all SWAT team members or was communicated to newer members, like Parker. The hearing officer also relied on the facts that Parker missed the 16-hour course on the AR-15 and missed a crucial section on the breakdown and cleaning of the AR-15 in March 2002. Thus, the hearing officer concluded that Parker was not dishonest or intentionally misleading in his answers to the investigator.

The hearing officer recommended Parker return to his former position as a patrol deputy without any loss of salary or benefits for the period of his dismissal, except that he be assessed three weeks pay to represent a disciplinary suspension for his negligence. He also recommended that Parker not be assigned the AR-15 nor be appointed to the SWAT team without the prior written approval of the Sheriff and the Board.

Board of Supervisors Decision

The hearing officers decision was submitted to the Board for final action. The Board disagreed with the hearing officers findings and conclusions. It rejected the hearing officers decision, independently reviewed the entire record, and made its own findings and conclusions. The Board issued its written decision around December 14, 2004.

The Board concluded that this case does not hinge on whether Parker was trained or qualified on the AR-15. Instead, the crucial issue is one of basic firearm safety in the handling of weapons an area in which Parker was fully trained. The Board noted that Parker had been trained in basic firearm safety that applies to all firearms, not just the AR-15, in the Coast Guard, in his academy training at Hartnell Junior College and Monterey Peninsula College, in his work with a field training officer at the Sheriffs Office, and in his SWAT training. In addition, the department posted universal firearm safety rules and continually reinforced basic firearm safety rules at regular qualification shoots for the patrol officers. Parker admitted that there was no training the department could have given him to cause him to remember to safe his weapon and that his failure to do so after the August 5, 2002 mission was due to being tired, not a lack of training.

The Board observed that Parker had many opportunities to avert the shooting, but failed to do so. The Board stated that Parker failed to follow basic safety practices and make his weapon safe after completing the SWAT mission on August 5, 2002. He failed to unload the weapon and store it properly when he returned to the Salinas station. At that time, he should have removed the magazine, unloaded any rounds from the chamber, and placed the selector switch on safe. He failed to check the rifle after taking it from the Salinas station. When he went to the embroidery shop, he should have left the gun in his locker and just taken the case. He did not check the gun when he removed it from his locker in King City. He should have left the rifle locked in his truck. He should have made sure it was safe in the shop and violated a fundamental rule of gun safety when he allowed Mr. Ingalls to walk in front of the muzzle of the gun.

The Board noted that the hearing officers recommendation to reinstate Parker was based solely on a disparate impact theory regarding disciplinary action for the negligent shooting and disagreed with the hearing officers analysis comparing this case to other cases involving accidental shootings by sheriff deputies. The Board focused on the two cases involving accidental shootings by deputies Carreras and Dyck that resulted in personal injuries. It rejected the hearing officers conclusion that the cases were similar to this case and found that the cases were dissimilar. The Board reasoned that deputies Carreras and Dyck were both acting in the course and scope of their duties and had legitimate reasons to have their weapons drawn, whereas Parker was off duty when the shooting occurred. The Board found that the shooting involving Deputy Carreras, while accidental, was not negligent since the officer had a legitimate reason to have his handgun drawn and his finger on the trigger. In the Dyck case, there was a finding of negligence. While the deputy had the right to draw his weapon, his finger should not have been on the trigger and the deputys negligence consisted of the failure to recognize the potential for cross-neurological reflex and avoid it. The Board contrasted the cases involving no negligence or a single act of negligence with the instant case involving multiple acts of negligence. It observed that the Dyck case did not involve serious injury; the Carreras case, which involved the shooting of a fellow officer, did not result in a lawsuit or media coverage. In contrast, this case resulted in a lawsuit with large-scale legal liability for the county and intense media coverage that tarnished the departments reputation in the community. For these reasons, the Board rejected the hearing officers finding that the shootings were similar and his conclusion that the similarities required that Parker be treated similarly with regard to discipline.

The Board made findings regarding Parkers credibility. However, the Board took a different view of the matters about which Parker was not truthful. It concluded that his lack of candor was not so much intentionally deceitful as it [was] more a denial of, and refusal by Parker to accept, responsibility for his negligent actions. . . . In denying the training he received in the use of the AR-15 . . . Parker trie[d] to lay the blame for his multiple acts of negligence elsewhere.

The Board concluded that Parker was subject to discipline under Sheriffs Department Manual section 205.03 (hereafter section 205.03), subdivisions C and L. Since the Board had no precedential disciplinary appeal decisions to rely on, it looked to the statutory grounds for discipline set forth in Government Code section 19572, subdivisions (c), (d), and (t), which it concluded were substantially similar to section 205.03, subdivisions C and L, for guidance.

The Board found that Parkers actions amounted to negligence in the handling of his AR-15 and were grounds for discipline under section 205.03, subdivision C, which authorizes dismissal for Inefficiency or negligence in the performance of duties. It noted that Parker had failed to make the AR-15 safe, either at the location of the August 5, 2002 SWAT mission or later at the Salinas office, in violation of workplace rules. Parker also transported his fully loaded rifle to the King City station and placed it in his locker, in violation of common sense and Department policy for the safe use of firearms. The Board reasoned that Parker should have left the gun in his locker on August 20, 2002, since it was irrelevant to the embroidery of the bag. It found Parker committed a gross failure of professional judgment when he made a conscious decision to leave the rifle in the gun case, when it was not necessary for his purpose and there were several alternatives available to him. It also concluded that Parker negligently allowed his finger to engage the trigger as he attempted to pull the gun from the bag when he knew or should have known Mr. Ingalls was approaching the counter and walking into his direct line of fire. The Board held that this violated basic firearm safety rules and General Order No. 58, which provides that firearms shall never be pointed at anyone unless the deputy intends to shoot.

The Board also concluded that Parkers conduct was also grounds for discipline under subdivision L of section 205.03, which authorizes the employer to dismiss an employee for: Conduct, either during or outside of duty hours, which adversely affects the employees job performance or operation of the Department, or harms the reputation of the Department with other governmental agencies with which the Department interacts. The Board stated that this was equivalent to Government Code section 19572, subdivision (t), which authorizes discipline for: Other failure of good behavior either during or outside of duty hours, which is of such a nature that it causes discredit to the appointing authority or the persons employment. The Board concluded that Parkers conduct had a significant negative impact on the Sheriffs Offices reputation in the community since it was a matter of county-wide interest that was reported in the media over a protracted period of time.

The Board reviewed the propriety of the termination under the factors set forth in Skelly, supra, 15 Cal.3d at page 218 and concluded it was appropriate to uphold the Sheriffs decision to terminate Parker. The Board also noted that even if Parker had been found truthful in his interview responses and his testimony at the hearing, he should be dismissed because of multiple acts of gross negligence in handling the AR-15.

Petition for Writ of Mandate in Superior Court

On February 10, 2005, Petitioners filed a petition for writ of mandate in the superior court against Monterey County (the County) and the Board challenging the Boards decision. Petitioners argued that the Board abused its discretion in evaluating the termination for dishonesty because it relied on grounds that had not been charged in the notice of discipline. They also contended there was insufficient evidence to support the dishonesty charge. Petitioners argued that the Board abused its discretion by terminating Parker when the department had consistently imposed lesser discipline in similar cases and that the punishment was excessive.

The County and the Board argued the Board did not abuse its discretion when it terminated Parker because this case was not similar to the other cases involving accidental shootings resulting in injury to persons. They argued the findings supported the decision to terminate Parker for dishonesty and that the punishment was not excessive.

The court denied the petition. The court agreed that this case was distinguishable from the two other shooting cases that resulted in injury to persons. The court observed that the nature of the penalty is left to the discretion of the Sheriffs Office and that while reasonable minds might differ regarding the propriety of terminating Parker, the Board had not abused its discretion in this case. With regard to the issue of dishonesty, the court found that while the Board agreed that Parker was not untruthful during the internal affairs investigation, the Board went beyond the findings of the hearing officer in assessing Parkers honesty. However, the court concluded there was no error in this, since the Board made clear that even if Parker had been truthful, he would have been dismissed for his acts of gross negligence in handling the rifle.

Discussion

I. Contentions

Parker contends his due process rights were violated because his termination was based on charges he had no notice of. He contends the Board relied on statutory authority and new charges of dishonesty that were not set forth in the Notice of Punitive Action. He also asserts the Boards finding that other negligent discharge cases were dissimilar was not supported by substantial evidence. Parker argues that substantial evidence does not support the Boards decision to distinguish this case from six other cases of accidental discharge on the basis that this case involved human injury, as opposed to property damage. He argues that the decision to terminate him was an abuse of discretion because it was the result of disparate treatment and was not supported by the evidence.

II. Standard of Review

The applicable standards of review at the superior court and appellate court levels differ depending upon which issues are under review. (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 45 (Deegan).)

Where the petitioner claims that the findings of the administrative entity are not supported by the evidence, one of two standards applies depending on the nature of the rights involved. If the decision substantially affected a fundamental vested right, the superior court exercises its independent judgment on the evidence in the administrative record in order to determine whether the findings are supported by the weight of the evidence. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Code Civ. Proc., 1094.5, subd. (c).) In all other cases, the superior courts review is limited to examining the administrative record to determine whether the decision was supported by substantial evidence. Even where the trial court exercises its independent judgment, however, it still must afford a strong presumption of correctness concerning the administrative findings. . . . [T]he 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 (Fukada).)

It has been held that discipline imposed on public employees affects their fundamental vested right in their employment. (Boctor v. Los Angeles County Metropolitan Transit Authority (1996) 48 Cal.App.4th 560, 572-573 (Boctor).) Accordingly, the superior court was required to exercise its independent judgment on the evidence and find an abuse of discretion if the Boards findings were not supported by the weight of the evidence. (Id. at p. 573.)

In exercising its independent judgment, the trial court examines the entire administrative record and reviews evidence both in support of, and in conflict with, the administrative agencys findings. (Deegan, supra, 72 Cal.App.4th at p. 45, citing Code Civ. Proc., 1094.5, subd. (c) and Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144 (Bixby).) The trial court resolves evidentiary conflicts and is required to assess witnesses credibility and to arrive at its own independent findings of fact. (Deegan, at p. 45.)

An appellate court reviewing the superior courts decision applies the substantial evidence standard regardless of what standard was applied by the superior court. (Fukuda, supra, 20 Cal.4th at p. 824; Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 368.) The substantial evidence test on appeal is applied either to the trial court judgment or to the administrative decision, depending on whether the superior court exercised independent judgment or applied the substantial evidence test. (See Fort Mojave Indian Tribe v. Department of Health Services (1995) 38 Cal.App.4th 1574, 1590.) If the superior court has exercised its independent judgment, the appellate court will review the record to determine whether the trial courts findings are supported by substantial evidence. (Bixby, supra, 4 Cal.3d at pp. 143-144; Deegan, supra, 72 Cal.App.4th at p. 45.)

With respect to the question of penalty, the superior courts powers of review are quite limited, and are exercised only with great deference to the administrative agencys findings. (Cummings v. Civil Service Com. (1995) 40 Cal.App.4th 1643, 1652.) Neither the trial court nor the appellate court is entitled to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. (Ibid.) The trial court may vacate but not modify the agencys determination of penalty if it finds a manifest abuse of discretion. (Ibid.) The appellate court conducts a de novo review of the penalty assessed, giving no deference to the trial courts determination. Again, the appellate court reviews the agencys selection of penalty and, if reasonable minds can differ with regard to the propriety of the disciplinary action, it finds no abuse of discretion. (Deegan, supra, 72 Cal.App.4th at pp. 45-46, italics added.) It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown. (Id. at p. 47.)

With regard to the question whether there was a fair trial, within the meaning of Code of Civil Procedure section 1094.5, subdivision (b), courts have held that this does not mandate a formal hearing under the due process clause. (Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1730.) The fair trial requirement of section 1094.5 is not synonymous with constitutional due process. (Ibid.) What is required is simply that there be a fair administrative hearing, (ibid.) affording the appellant a   reasonable opportunity to be heard. (Rodriguez v. Department of Real Estate (1996) 51 Cal.App.4th 1289, 1297; Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 555.) As our Supreme Court has explained, the requirement of fair procedure does not compel formal proceedings with all the embellishments of a court trial . . . nor adherence to a single mode of process. It may be satisfied by any one of a variety of procedures which afford a fair opportunity for an applicant to present his position. (Id. at p. 555, citation omitted.) Where an appellant claims that he or she did not receive a fair trial or that the agency did not proceed in the manner required by law, we will uphold the trial courts decision if it is supported by substantial evidence. (Vollstedt v. City of Stockton (1990) 220 Cal.App.3d. 265, 273.) If the evidence is undisputed, we independently review the fair trial issue for abuse of discretion (ibid.; Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1444; Wood v. City Civil Service Commission (1975) 45 Cal.App.3d 105, 111) and reverse only if the alleged error prejudicially affected Parkers substantial rights. (California Administrative Mandamus (Cont.Ed.Bar 2007) 6.57, pp. 202-203, citing Leal v. Gourley (2002) 100 Cal.App.4th 963, 969 and other cases.)

III. Notice Issues

Parker contends his due process rights were violated because, in upholding his termination, the Board improperly relied on matter that was not set forth in the Notice of Punitive Action, including Government Code section 19572, subdivision (t) and four new charges of dishonesty.

A. Government Code section 19572, subdivision (t)

The Notice of Punitive Action (Notice) stated that Parker was in violation of section 205.03 and set forth the applicable portions of the provision as: No permanent employee of the Department may be dismissed except for one or more of the following causes: [] A. Dishonesty. [] B. Incompetence. [] C. Inefficiency or negligence in the performance of duties. [] D. Neglect of duty. [] [] L. Conduct, either during or outside of duty hours, which adversely affects the employees job performance or operation of the Department, or harms the reputation of the Department with other governmental agencies with which the Department interacts. [] [] Q. Making a false official statement or falsifying records and/or reports. The Notice did not mention Government Code section 19572.

Parker argues that section 205.03 lists the exclusive grounds for dismissing a permanent employee. Moreover, he asserts that the Board based his termination in substantial part on subdivision L of section 205.03; that this subdivision was nearly the entire basis of the Boards decision to terminate him. As noted previously, subdivision L provides that a Sheriffs Office employee may be dismissed for Conduct, either during or outside of duty hours, which adversely affects the employees job performance or operation of the Department, or harms the reputation of the Department with other governmental agencies with which the Department interacts. In its decision, the Board stated [t]his provision is the equivalent of Government Code section 19572 [subdivision] (t). Parker challenges this conclusion, arguing that the Government Code provision is far more extensive than section 205.03. Government Code section 19572, subdivision (t) provides that grounds for disciplining a state civil service employee include: Other failure of good behavior either during or outside of duty hours, which is of such a nature that it causes discredit to the appointing authority or the persons employment. Parker argues that the two provisions are not equal. He asserts section 205.03 prohibits off-duty conduct that harms the departments reputation with other governmental agencies, while Government Code section 19572, subdivision (t) is broader because it prohibits any conduct that causes discredit to the appointing agency. Moreover, he contends the Board did not make a finding and there was no evidence that the Sheriff's Offices relationship with other governmental agencies was negatively impacted in any way.

The County and the Board do not respond to these contentions.

The liberal rules of administrative pleading require only that the respondent be informed of the substance of the charge and afforded the basic, appropriate elements of procedural due process. (Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931, 942.) A variance between the allegations of a pleading and the proof is not a basis for reversal unless it prejudicially misleads a party in maintaining his or her action or defense on the merits and may be disregarded when the action has been as fully and fairly tried on the merits. (Ibid.; Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 143-144.) However, if a particular violation is not alleged in the charging document, it is error for the administrative agency to discipline an individual based on that charge. (Wheeler v. State Bd. of Forestry (1982) 144 Cal.App.3d 522, 526-527 [error to discipline for gross incompetence when accusation charged deceit, misrepresentation or fraud].)

Although Parker contends the Board relied primarily on section 205.03, subdivision L, our review of the Boards decision reveals that it relied primarily on subdivision C of section 205.03 (Inefficiency or negligence in the performance of duties). The Board devoted over two pages of its decision to discussing the various ways the Parker was negligent in handling the AR-15 between the end of the SWAT mission and the time of the shooting. In contrast, in discussing subdivision L of section 205.03, it states merely that Parkers conduct during off-duty hours significantly negatively impacted the Sheriffs and the Sheriffs Offices reputation in the community. It was a matter of County-wide interest that was reported in the media over a protracted period of time. We therefore disagree with Parkers conclusion that subdivision L was nearly the entire basis for his termination.

Moreover, section 205.03, subdivision L sets forth more than one ground for discipline. It provides that an employee may be dismissed for conduct on or off duty that that (1) adversely affects the employees job performance or operation of the Department or (2) harms the reputation of the Department with other governmental agencies with which the Department interacts. Parkers notice argument focuses on the second prong of subdivision L, but ignores the first prong. It was undisputed that the shooting of Don Ingalls negatively impacted the reputation of the Sheriffs Office and resulted in a substantial legal liability and unwanted media attention. Accordingly, the case falls under the first prong of subdivision L because it adversely affected the operation of the department.

Finally, although the Board stated that section 205.03, subdivision L is the equivalent of Government Code 19572(t), it did not analyze the statute or rely on or cite any cases that discuss the statute.

Since the Boards conclusions fit under the express provisions of section 205.03, subdivisions C and L, of which Parker had notice, we find no prejudicial lack of notice resulting from the Boards brief mention of Government Code section 19572, subdivision (t) in its decision.

B. Four New Charges of Dishonesty

Parker contends the termination decision should be vacated because the Board failed to give him notice of four new charges of dishonesty.

The Notice of Punitive Action charged Parker with dishonesty in his responses to questions during his two internal affairs interviews and specified that he had been dishonest when he stated he had no training with the SWAT rifle and had never qualified on his SWAT weapon. The notice also stated that Parker had failed to respond honestly to questions about [his] training and about the incident resulting in Mr. Ingalls[s] injury during the internal affairs investigation.

In its decision, under the Heading Facts Relating to Allegations of Untruthfulness, the Board discussed Parkers internal affairs interviews and his testimony about his training and qualification on the AR-15, as well as the testimony of other witnesses, in great detail. The Board acknowledged that there may have been some confusion or miscommunication regarding whether Parker ever formally qualified on the weapon. The Board stated: If the meaning of training and qualifications were the only areas of misunderstanding or inconsistency in Parkers answers during the [internal affairs] investigation, the Board would have to agree with the Hearing Officers determination that Parker was not untruthful. Unfortunately they are not. In the end, however, this case does not hinge on whether Parker was trained or qualified on the AR-15. Instead the crucial issue is one of basic firearm safety in handling weapons an area in which Parker was fully trained.

After stating that conclusion, the Board discussed the four areas that are at issue on appeal. The Board concluded Parkers testimony about the time of his doctors appointment on March 14, 2002 (the third day of the basic SWAT training), and his absence from the training session on the breakdown and cleaning of the AR-15 was not credible. The Board concluded that Parkers testimony regarding Sergeant Teeters response to his request to take August 6, 2002, off because he had worked a double shift on August 5, 2002, was untruthful. The Board discussed allegations that Parker was untruthful when he stated that he did not make his weapon safe after the August 5, 2002 mission because they were in a bad neighborhood, but did not make a finding. The Board cited his testimony about his SWAT training and firearms training in the internal affairs interview and at the hearing, but did not make a finding.

Parker argues the termination order must be vacated because he was not put on notice of these four new counts of dishonesty. Again, the County does not address this issue.[6]

As noted above, the Board made factual findings regarding only two of the areas in dispute. However, the Board took a different view of the matters about which Parker was not truthful. It concluded that his lack of candor was not so much intentionally deceitful as it [was] more a denial of, and refusal by Parker to accept, responsibility for his negligent actions. . . . In denying the training he received in the use of the AR-15 . . . Parker trie[d] to lay the blame for his multiple acts of negligence elsewhere. In its conclusion, the Board stated, there is substantial evidence in the record to support the proposition that Parker was less than forthright in both his [internal affairs] interviews and in his testimony at the hearing. It is the determination of the Board that even if Parker had been found truthful . . . , he should still be dismissed because of his multiple acts of gross negligence in the safe handling of his AR-15.

In our view, it was not inappropriate for the Board to make findings related to Parkers credibility as part of its overall review of the case. Although the Board made express findings that Parker lied about the time of his doctors appointment on March 14, 2002 and whether he was present at the training session on the breakdown and cleaning of the AR-15 that day, as well as Sergeant Teeters response to his request to take August 6, 2002, off, it is not clear whether the Board based its decision to uphold the termination on those findings. Reading the decision as a whole, it appears the Board understood that Parker was charged with dishonesty in his responses about his training and qualification on the AR-15. Assuming the Board relied on its two dishonesty findings in upholding Parkers termination, any error in doing so because Parker was not charged with these two counts of dishonesty, was not prejudicial. The Board clearly stated that Parker would have been dismissed for his negligent handling of the AR-15, regardless of the findings on the dishonesty issue.

Sufficiency of the Evidence Supporting Conclusion that Other Negligent Discharge Cases Were Dissimilar

Parker had argued that termination was an excessive penalty in his case because no other Sheriffs Office deputies involved in accidental shootings had been terminated by the Sheriffs Office and his case was similar to eight other cases involving accidental shootings. Parker contends the trial courts finding that the other accidental shooting cases involving Monterey County sheriff deputies were dissimilar from this case was not supported by substantial evidence.

As noted previously, the superior court was required to exercise its independent judgment on the evidence and find an abuse of discretion if the Boards findings were not supported by the weight of the evidence. (Boctor, supra, 48 Cal.App.4th at p. 573.) On appeal, we review the record to determine whether the trial courts findings are supported by substantial evidence. (Deegan, supra, 72 Cal.App.4th at p. 45.)

In our view, the trial courts finding that this case was dissimilar from the other cases involving accidental shootings was supported by substantial evidence. The parties presented evidence regarding eight other cases involving accidental shootings. Six resulted in property damage; two resulted in personal injuries. None of the officers in the other eight cases were terminated.

We begin by noting that all but one of the other shooting incidents involved either the Glock semi-automatic handgun or the Remington model 870 shotgun that the deputies carry on patrol, while this case involved Parkers SWAT weapon, the AR-15 semi-automatic rifle. The distinction is important because there was testimony that department policy differed regarding the handling of each weapon. Sergeant Clark, the departments training manager, and Deputy Don Dietrich, a certified firearms instructor, testified that department policy required that while the officer is on duty, the Glock handgun is supposed to be fully loaded with one round in the chamber in a holster. The Glock has no external safety mechanism. There are three or four internal safety mechanisms. If the officer takes his or her finger off the trigger and puts it outside the trigger guard, all of the handguns safety mechanisms are deployed.

The shotgun is supposed to have four rounds loaded in the spring-fed tube magazine, with none in the chamber until it is being deployed. It is stored with the safety off and the hammer down so all the officer has to do is remove the weapon from the lock in the patrol car and work the slide to bring the first round into the chamber.

The AR-15 rifle, whether assigned to a patrol deputy or a SWAT team member, is supposed to be stored with the magazine out and the chamber unloaded until the weapon is deployed.

The only other case that involved the accidental discharge of an AR-15 was distinguishable from this case. Deputy Duanes had been carrying an AR-15 rifle around in his patrol car for about one month with a round in the chamber, in violation of department policy. One day, while on duty, Duanes checked the weapon and it accidentally discharged, damaging the light bar on a patrol car. Unlike Parker, to ensure proper firearm safety, Duanes pointed the weapon away from a nearby fellow officer. Thus, no persons were injured.

We agree with both the trial court and the hearing officer that it was reasonable to distinguish between cases that involved property damage and those that resulted in personal injury. Four of the six property damage cases resulted in damage to patrol cars. In one case, the officer damaged the ceiling in the departments underground parking garage. In the other, the officer damaged the walls and a bathroom mirror of a hotel room.

Only two of the other accidental shooting cases involved injury to persons, the shootings involving Deputy Carreras and Deputy Dyck.

In 1998, Deputy Carreras accidentally discharged his Glock pistol at a SWAT training session, injuring a fellow deputy, Sergeant Teeter. Again, department policy required that he carry the Glock with a round in the chamber. Sergeant Teeter was shot in the abdomen, recovered fully from his injuries, and returned to work for the department. The incident resulted in a workers compensation claim against the County. The record does not contain much information regarding the mechanism of injury or the circumstances of the shooting.[7] Deputy Dietrich opined that Carreras must have had his finger on the trigger, inside the trigger guard, before he was on target with what he intended to shoot. According to Sheriff Kanalakis, Carreras was not disciplined; nothing in the record suggests that any allegations of negligence were made against Carreras.

On July 9, 2003, Deputy Dyck shot a suspect with his Glock pistol while on patrol. Deputy Dyck received a call regarding a disturbance with people fighting in the street. He responded with other deputies. When he arrived on the scene, there were several people milling around the area. He lit them up with a spotlight and saw one man duck into the darkness, out of view. The suspect came walking out of the darkness. Deputy Dyck drove down the road to detain the suspect. The deputy opened the door to his patrol car, crept along behind the suspect, and ordered him to stop. The suspect failed to stop. He hunked down and put his hands in his waistband, where the officer could not see them. Deputy Dyck deployed his Glock pistol, pointed it at the suspect, and decided to get out of the car and engage the suspect on foot. As he placed the patrol car in park, the pistol discharged, striking the suspect in the back of the head. The bullet entered beneath the skin, skidded along the skull and exited the opposite side. The suspect was treated and released from the hospital with in a day or two.

Deputy Dietrich testified that Dycks weapon was properly charged and drawn and that Dyck violated department policy when he placed his finger on the trigger. Although the review process had not been completed, the department recommended Dyck be suspended for three weeks, with one week held in abeyance.

Both deputies Carreras and Dyck were on duty, using their Glock pistols when the shootings occurred. Even Deputy Duanes, the only other officer using an AR-15 at the time of the accidental shooting, was on duty when the accidental discharge causing property damage occurred. Although Parker was attempting to comply with the SWAT team leaders directive to get his name on his gun case, he was off duty with a cover jacket over his uniform, when the incident occurred. Both Carreras and Dyck had their weapons properly charged and drawn. Parker did not even need to bring the rifle into the store or take it out of his locker to accomplish his task. Department policy authorized the officers to carry the Glock on duty with a round in the chamber. Department policy required Parker to store and to carry the AR-15 with the magazine out and the chamber empty. Deputy Dietrich testified that deputies Dyck and Duanes did not blame others for the situation or complain that they had not received sufficient training on their weapons. There was no evidence the Dyck shooting exposed the county to costly litigation or unwanted media attention, like the Parker shooting.

For all these reasons, we conclude there was substantial evidence to support the trial courts conclusions that the Parker shooting was dissimilar from other shootings that had resulted in discipline short of termination.

Excessiveness of Penalty

Parker contends the Board abused its discretion when it upheld his termination because the termination was a result of disparate treatment and an incomplete application of the Skelly factors.

As noted previously, we review the Boards selection of penalty for an abuse of discretion and, if reasonable minds can differ with regard to the propriety of the disciplinary action, there was no abuse of discretion. (Deegan, supra, 72 Cal.App.4th at pp. 45-46.) It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown