Morrison v. State Personnel Bd.

 

 

 

 

 

 

 

 

 

 

Filed 6/13/13  Morrison v. State Personnel Bd. CA3

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Sacramento)

----

 

 
>

JOANN MORRISON,                           Plaintiff and Appellant,               v.   STATE PERSONNEL BOARD et al.,                           Defendants;   DEPARTMENT OF CORRECTIONS AND REHABILITATION et al.,                           Real Parties in Interest and                         Respondents.

C069749   (Super. Ct. No. 34201080000731CUWMGDS)

 

 

 

            Plaintiff
Joann Morrison was terminated from her employment with the href="http://www.mcmillanlaw.com/">Department of Corrections and Rehabilitation
(the Department) at California’s
Pelican Bay State Prison after a random drug test revealed the presence of
marijuana in her system.  The State
Personnel Board (the Board) upheld the termination. 

            Plaintiff
appeals from the trial court’s judgment denying her petition for a writ of
mandate seeking to overturn the Board’s decision.  She contends the findings and conclusions of
the Board are not supported by substantial evidence; the Board misapplied
federal law in finding her guilty of other failure of good behavior; and the
penalty of dismissal is inappropriate. 
We disagree with plaintiff’s contentions and affirm the judgment. 

Facts and Proceedings

            On
September 16, 2000, having completed approximately three months of training
with the Department, plaintiff began her employment as a correctional officer
at Pelican Bay State Prison.  Plaintiff’s
training included information regarding the Department’s policy on random drug
and alcohol testing as outlined in the “CDC 1875,” the Department of Personnel
Administration (DPA) rules, title 15 of the California Code of Regulations,
applicable sections of the Department’s Operations Manual, and applicable
sections of the Bargaining Unit 6 Memo of Understanding (MOU). 

            Plaintiff
first considered using marijuana to treat her chronic insomnia in 2004 after
learning about the legalization of the drug in newspaper articles and on
television.  In June of that year, she
discussed with her primary care physician the possibility of using medicinal
marijuana, but did not obtain a recommendation at that time. 

            In
late-October 2004, plaintiff discussed with her supervisor, Lieutenant Mark
Ferguson, the possibility of using marijuana for medicinal purposes.  She later testified that Lieutenant Ferguson
gave her a copy of a page from the Department’s Operations Manual entitled “Employee
Disciplinary Matrix” (matrix), which states that an employee is subject to
discipline for “[u]se or possession of marijuana, illegal drugs, or narcotics
unless medically prescribed.”  According
to plaintiff, Lieutenant Ferguson told her she would not be terminated for
using marijuana as long as it was “medically prescribed, legally
prescribed.” 

            Plaintiff
was eventually referred to Dr. Ken Miller, who gave her recommendations for
medical marijuana in February 2005, October 2006, and December 2007.  She obtained subsequent recommendations from
Dr. Miller’s successor, Dr. Diane Dickinson. 
Plaintiff took her initial recommendation to the county Department of
Health and Social Services, and obtained a Proposition  215 card (otherwise known as a Prop 215
card).  She believed at the time that the
recommendation was a “legal prescription” proving she could legally use
marijuana. 

            Plaintiff
first obtained marijuana in March 2005 from the Humboldt
Patient Resource
Center, and thereafter purchased
about an eighth of an ounce every three months. 
She believed her purchase of marijuana was legal because she “followed
all the laws in the State of California.”  Plaintiff used marijuana two to three times a
month, but never used it during the work week. 
She continued using the drug until February 14, 2009. 

            Plaintiff
was selected for random drug testing on February
17, 2009.  The next day, she
and her union representative informed the medical review officer (MRO) and
Linda Perry, the employee relations officer (ERO) and substance abuse testing
coordinator at the time, that she “had a legal prescription for medical
marijuana” and might test positive. 

            On February 23, 2009, plaintiff was
notified she had indeed tested positive for marijuana. 

            On April 1,
2009, the Department issued a notice of adverse action dismissing plaintiff
from her employment at the prison based on allegations she violated Government
Code section 19572, subdivision (d) [inexcusable neglect of duty], and
subdivision (t) [“[o]ther 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 person’s employment”], as well as “Title 15, California Code
of Regulations, applicable sections of the CDCR Operations Manual, and a
section of the Bargaining Unit 6 Implementation
Plan . . . .” 
(Italics omitted.)

            Plaintiff
appealed to the Board.  Following a
contested hearing before an administrative law judge (ALJ), the Board, on June 10, 2010, adopted the proposed
opinion of the ALJ upholding plaintiff’s termination.  The ALJ’s findings included the
following:  (1) plaintiff was aware she
was subject to random drug testing; (2) plaintiff asked her supervisor,
Lieutenant Ferguson, about the use of medical marijuana.  According to plaintiff, Lieutenant Ferguson
told her use of medical marijuana would not subject her to discipline; (3)
plaintiff did not contact the ERO, the return to work coordinator (RWC), or any
other supervisor to inquire about whether her use of medical marijuana violated
the Department’s substance abuse policy; (4) plaintiff was unaware of the
distinction between a doctor’s recommendation and a doctor’s prescription; (5)
plaintiff admitted she did not obtain her medical marijuana from a pharmacy or
by using a doctor’s prescription; (6) the Department clarified its position on
the use of medical marijuana in a memo dated January 16, 2007, from
Undersecretary K. W. Prunty to all staff (the Prunty memo); (7) plaintiff did
not recall receiving the Prunty memo; and (8) Sergeant Donald Wolf, master
trainer for the Department, was unaware of the Prunty memo until three weeks
prior to the hearing. 

            The Prunty memo includes the
following language:

            “This memorandum is to provide
clarity on the subject of the impact of the use of medical marijuana when an
employee is subject to a departmental substance testing program.  It is hoped that the following information is
helpful to you and clears up any misconceptions that may exist on the subject
of medical marijuana.  [¶]
. . . [¶]

“No Legal
Prescription for Medical Marijuana 
[¶] . . . [¶]

            “A State employee must not use drugs
with a legal prescription, if it poses a threat to the health and safety
of the employee and others.  However, as
stated in the Health and Safety Code, physicians cannot legally prescribe
medical marijuana; they may only recommend its use.  Therefore, there is no legal justification
that will protect an employee from the consequences of a positive drug test for
the presence of the metabolites of marijuana. 
[¶] . . . [¶]

            “In conclusion,
if an employee tests positive for marijuana as a result of a reasonable
suspicion or random substance test, whether it is for alleged medical purposes
or not, he or she will be subject to the disciplinary action outlined in the
Employee Disciplinary Matrix under Controlled Substances.” 

            In
sustaining the charge of inexcusable neglect of duty, the ALJ found plaintiff
was aware of the Department’s drug-free policy and her duty to refrain from the
use of drugs.  Further, the ALJ found
that plaintiff’s academy training (which occurred after the passage of
Proposition 215) gave her no grounds upon which to base a belief that medical
marijuana was an exception to the Department’s substance abuse policy even
though she developed a belief otherwise. 
While plaintiff’s belief was reinforced by her conversation with
Lieutenant Ferguson, she did not call him as a witness, nor did she make any
effort to confirm the information she claimed to have obtained from him with
any other authority at the Department, or produce any documentation
demonstrating medical marijuana was exempt from the Department’s drug-free
policy.  While noting that “there may
have been some confusion among [the Department’s] employees about the use of
medical marijuana,” the ALJ found plaintiff failed to make further inquiry
about the Department’s policy regarding the use of medicinal marijuana, and in
any event admitted she did not obtain her marijuana using a prescription or
from a pharmacy. 

            In
sustaining the charge of failure of good behavior, the ALJ concluded that while
plaintiff’s use of marijuana pursuant to a physician’s recommendation may not
have subjected her to criminal prosecution under state law, it nonetheless
subjected her to potential prosecution under federal law.  As such, plaintiff’s use of marijuana,
coupled with her positive test for marijuana while on duty, violated federal
law and thus constituted a failure of good behavior. 

            In
sustaining the penalty of dismissal, the ALJ found that “[a] peace officer’s
job is a position of trust and the public has a right to the highest standard
of behavior from those they invest with the power and authority of a law
enforcement officer,” and concluded that, because plaintiff “violated [the
Department’s] substance abuse policy as well as federal law,” her conduct
resulted in, or if repeated is likely to result in, harm to the public
service. 

            Plaintiff
filed a petition for writ of administrative mandate in the superior court.  The court denied the writ petition,
concluding among other things that there was substantial evidence plaintiff had
notice of the potential for discipline for her use of medical marijuana even
with a physician’s recommendation. 
Plaintiff timely appeals. 

Discussion

I

>Standard of Review

            In
reviewing disciplinary actions, “the Board acts in an adjudicatory capacity,”
“much as a trial court would in an ordinary judicial proceeding.  Thus, the Board makes factual findings and
exercises discretion on matters within its jurisdiction.  On review, the decisions of the Board are
entitled to judicial deference.  The
record must be viewed in a light most favorable to the decision of the Board
and its factual findings must be upheld if they are supported by substantial
evidence.  [Citation.]  In addition, the Board’s exercise of
discretion must be upheld unless it abuses that discretion.”  (Department
of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813,
823; see also Fiske v. State Personnel
Board (1957) 147 Cal.App.2d 631, 633 [“all conflicts must be resolved in
favor of the findings of the board and all legitimate and reasonable inferences
indulged in to uphold their decision”].) 
Abuse of discretion is shown if the Board’s decision is not supported by
its findings.  (See Code Civ. Proc., §
1094.5, subd. (b).)

            “ â€˜Substantial
evidence’ requires evidence of ‘ponderable legal significance.’  [Citation.] 
It is not synonymous with ‘any’ evidence.  The evidence considered must be reasonable,
credible, and of solid value and must be ‘substantial’ proof of the essential
elements of the case.  [Citation.]  In assessing whether substantial evidence
exists, we consider all evidence presented, including that which fairly
detracts from the evidence supporting the Board’s determination.”  (Newman
v. State Personnel Bd. (1992) 10 Cal.App.4th 41, 47.)  “The abuse of discretion standard . . .
measures whether, given the established evidence, the act of the lower tribunal
falls within the permissible range of options set by the legal criteria.”  (Department
of Parks & Recreation v. State Personnel Bd., supra, 233 Cal.App.3d at
p. 831.)  It is presumed that the Board
regularly performed its duty, and the burden is on the appellant to prove
otherwise.  (Young v. Gannon (2002) 97 Cal.App.4th 209, 225.)

            Our scope
of review on appeal from a judgment in a case like this is identical to that of
the trial court.  (California Youth Authority v. State Personnel Bd. (2002) 104
Cal.App.4th 575, 584.)

II

>Sufficiency of Evidence to Support
Inexcusable Neglect of Duty

            Plaintiff
contends the charge of inexcusable neglect of duty (Gov. Code, § 19572, subd.
(d)) was not supported by substantial evidence in light of the evidence and
testimony she presented establishing her use of marijuana complied with the
Compassionate Use Act of 1996 (CUA) (Health & Saf. Code, § 11362.5).  In particular, she claims that, although she
knew she was subject to random testing for illegal substances and one of those
illegal substances was marijuana, she had a good faith belief her use of
marijuana pursuant to the CUA was “legal” and would neither violate the
Department’s policies nor subject her to dismissal.  That good faith belief was reinforced, she
contends, by her reading of the matrix, which, according to her, subjects an
employee to discipline for use or possession of controlled substances,
including marijuana, “unless medically prescribed.”  We are not persuaded.

            “It has
been held that in order to be guilty of [inexcusable] neglect of duty it must
appear that the act was done intentionally, designedly and without lawful
excuse.”  (Peters v. Mitchell (1963) 222 Cal.App.2d 852, 862; see also Gov.
Code, § 19572, subd. (d).)  That is, “the
person knows what he is doing and intends to do what he is doing.”  (Coomes
v. State Personnel Board (1963) 215 Cal.App.2d 770, 775.)

            There is
substantial evidence to support the Board’s finding that plaintiff acted
intentionally.  As plaintiff
acknowledges, she received, at or about the time she was hired, documentation
regarding the Department’s policy on substance abuse and alcohol testing, and
she knew from reading those documents that marijuana was a prohibited drug,
screened for in random drug tests to which she was subject in her position as a
correctional officer.  According to that
documentation, the Department’s policy clearly prohibits the use of
marijuana.  For instance, the
documentation on Bargaining Unit 6 Random Testing states that prohibited drugs
include marijuana, and identifies “Marijuana/Cannabinoids (THC)” among the
substances to be tested.  Nonetheless,
plaintiff knew the substance she was purchasing was marijuana, and intended to
and did use that substance, resulting in a positive test.

            Plaintiff
testified she relied on her conversation with Lieutenant Ferguson, and the
matrix she obtained from him, in making her decision to obtain and use
marijuana, concluding that, “[t]o use marijuana, it’s illegal unless medically
prescribed, so an officer, if they didn’t have a legal prescription for it,
would be subject to disciplinary [sic]
or termination, but if you have a legal prescription for it, then you’re not
going to be subject to termination.” 

            Plaintiff’s
stated reading of the disciplinary matrix ignores the ambiguity inherent in the
language set forth in that portion of the matrix on which she relies.  The matrix says that discipline can be
imposed for the “[u]se or possession of marijuana, illegal drugs, or narcotics
unless medically prescribed.”  It is
poorly worded, at the very least.  In its
current state, the language can be read to say that discipline could be imposed
for use of marijuana “unless medically
prescribed,” but it can also be read to say that discipline can be imposed
for use of marijuana, illegal drugs, or narcotics unless those narcotics are medically prescribed.  That is, the phrase relating to a medical
prescription modifies only the words “narcotics” and not the words “marijuana”
or “illegal drugs.”  Indeed, the latter
is the more logical reading of the wording.

            In either
event, plaintiff did nothing to make sure her reading of the language was
correct.  She acknowledged that Ferguson,
who she did not produce at the hearing to testify, was not the ERO at the time,
and that she did not seek out the ERO to inquire about the disciplinary matrix
or how the use of medical marijuana applied. 
Plaintiff admitted she did not contact her union representative to
inquire about potential discipline for the use of medicinal marijuana.  Nor, as the Board found, did she contact the
RWC or any other supervisor to determine whether her use of marijuana violated
the Department’s substance abuse policy. 
In short, she did nothing to confirm whether there was, in fact, an
exception to the Department’s policy for medicinal marijuana and, if so, how to
obtain and use the drug in a manner that would not subject her to disciplinary
action.  Moreover, there is no evidence
to suggest that plaintiff took any steps at any time to confirm her apparent
belief that a doctor’s recommendation
was the same as a medical prescription,
as those words are used in the disciplinary matrix.

            Plaintiff
points to the Prunty memo as evidence of confusion within the Department and
across the state regarding whether notice of random drug testing was sufficient
to warn correctional officers that use of marijuana for medicinal purposes was
prohibited.  She contends evidence in the
record suggests the Prunty memo was never disseminated and thus she was never
made aware of its existence and “was never apprised that using marijuana under
a doctor’s care would subject her to termination.”  We reject plaintiff’s claim for several
reasons. 

            First,
while the Board found “plaintiff could not recall receiving the [Prunty memo],”
our review of the record confirms the trial court’s observation that, “although
[plaintiff] testified generally that she never became aware of any [Department]
policy on medical marijuana, she never testified specifically that she was
unaware of the [Prunty memo].” 

            Next, as
the trial court pointed out, the Prunty memo expressly states it was directed
to “All Staff.”  The memo was dated
January 16, 2007, more than two years before plaintiff’s drug screening.  While Correctional Sergeant Wolf, a master
trainer for the Department, testified he had no knowledge of the Prunty memo
until three weeks prior to the hearing, he also testified he found the memo
after searching for it on the Department’s intranet website, thus supporting
the reasonable inference drawn by the trial court, one which we draw as well,
that the Prunty memo was “widely distributed, that it was available to
[plaintiff], and that she knew of it.” 

            Further,
plaintiff did not dispute at the hearing the fact that the Department has at
all times had a policy generally prohibiting the use of marijuana, and that she
was informed of that policy during her training in 2000.  While she claims she was “never apprised that
using marijuana under a doctor’s care would subject her to termination,” she
knew from the Department’s general anti-drug policy and from the language of
the matrix upon which she relied that she would be subject to discipline for
use of marijuana without a medical prescription.  As the Board found, she produced no evidence
of any representation by the Department permitting the use of medicinal marijuana
with only a physician’s recommendation which obviously is not the same as a
medical presecription.

            Plaintiff
contends the evidence does not support the finding that the Department’s
anti-drug policies provided to her during her academy training were sufficient
notice that she was prohibited from using medicinal marijuana.  In particular, she contends the evidence
demonstrated that cadets were only instructed about “the broad canons of
ethical behavior” and told they were subject to random urinalysis, but are not
instructed regarding the use of marijuana for medicinal purposes, nor were they
told whether marijuana can be prescribed or recommended by a physician.  From that evidence, she argues, the ALJ drew
“an arbitrary inference” that simply because plaintiff knew she was subject to
random drug testing, she therefore knew the Department prohibited medicinal
marijuana. 

            Again,
plaintiff ignores her own testimony that she not only knew she was subject to
random drug tests, she also knew marijuana was considered by the Department to
be an illegal substance and therefore a prohibited drug for which the
Department tested.  She also knew she
would be subject to discipline for use or possession of marijuana without, at
least, a medical prescription.  As the
Board found, she did not produce any documentation to demonstrate that medical
marijuana was exempted from the Department’s drug-free policy or that the
policy permitted use of marijuana pursuant to a physician’s
recommendation.  Moreover, she did not
produce Lieutenant Ferguson to provide corroborating testimony despite that,
other than Ferguson, there was no other Departmental employee or union
representative upon whom she relied in concluding that her use of marijuana for
medicinal purposes would not subject her to discipline.  

            Plaintiff
relies on Valenzuela v. State Personnel
Bd. (2007) 153 Cal.App.4th 1179 (Valenzuela),
as further support for her claim of inadequate notice regarding the
Department’s policies on the use of medicinal marijuana.  In that case, Valenzuela, a correctional
officer employed by the Department, obtained a prescription for weight loss
pills called Esbelcaps from a Mexican doctor. 
After filling the prescription legally and taking the drug, Valenzuela
was randomly drug tested by his employer. 
He tested positive for amphetamine, a byproduct of the medication, and
was dismissed from his employment.  (>Id. at pp. 1181-1182.) 

            Valenzuela
appealed to the Board.  The evidence
evinced at the administrative hearing included an undated memo warning
Department employees not to obtain medications from a foreign country without a
prescription from a physician in the United States, and further warning that
“Mexican diet pills may contain powerful stimulants which are or may be
metabolized into amphetamines [listing several by name, including Esbel].”  (Valenzuela,
supra, 153 Cal.App.4th at p. 1182.) 
Also admitted into evidence was another memo dated May 9, 2000, sent by
the medical review officer to drug and alcohol coordinators explaining his
January 6, 2000, memo regarding Mexican diet pills and repeating the
information in the first memo regarding the metabolization process.  Neither memo contained information about its
source or distribution.  (>Ibid.) 
Valenzuela testified he heard about, but had never seen, the earlier
memo and did not know the names of any of the prohibited medications.  (Ibid.)  Based on the two memos and testimony from the
medical review officer that he advised employees in 2000-2001 not to take
medication from Mexico, the Department argued employees were told not to obtain
Mexican medications of the sort obtained by Valenzuela.  (Id.
at p. 1183.)  The Board sustained the
dismissal, concluding Valenzuela was provided adequate notice of the danger of
taking the prescription of amphetamines for routine weight loss programs.  (Ibid.) 

            Valenzuela
brought a petition for writ of administrative mandate in the superior court
claiming his dismissal was not supported by substantial evidence.  The superior court agreed and granted the
petition, finding the Department failed to present substantial evidence
Valenzuela had legally adequate notice warning him that the Mexican
prescription could result in a positive test for amphetamines when there was no
evidence he was ever given, or had ever read, such a warning either at work or
during training.  (Valenzuela, supra, 153 Cal.App.4th at pp. 1183-1184.) 

            The
Department appealed.  The court of appeal
agreed with the trial court.  First,
because the parties’ experts agreed that the prescribed medication was not in
and of itself an amphetamine, but rather a substance metabolized by the body
into an amphetamine as a byproduct, the court took issue with the Board’s
finding that “ â€˜prescription of amphetamines for routine weight loss
programs is prohibited in the United States and Valenzuela was on notice as to
the danger of taking such prescriptions.’ â€  (Valenzuela,
supra, 153 Cal.App.4th at p. 1186.) 
Next, the medical review officer’s testimony that he told employees on a
general basis not to take Mexican diet pills did not demonstrate an established
Department policy of notifying employees regarding the exact nature of the
prohibited conduct.  (>Ibid.) 
Finally, there was no evidence as to how, if at all, the two 2000 memos
were distributed.  (Id. at pp. 1186-1187.) 
Affirming the lower court’s judgment, the appellate court concluded,
“The Department did not prove with substantial evidence that its employees in
general or Valenzuela in particular were placed upon sufficient constructive or
actual notice of the precise nature of the conduct that would constitute a
violation of the employer’s published standards.”  (Id. at p. 1187.) 

            This case
differs from Valenzuela in several
key respects.  First, Valenzuela obtained
a legal prescription and used that prescription to legally obtain his
medication.  In this case, plaintiff did
neither.  Next, the medicine Valenzuela
obtained was not in and of itself a prohibited amphetamine, and only became so
after being used and having metabolized in Valenzuela’s system.  Thus, it appears that mere possession of the
medicine prescribed to Valenzuela was legal. 
Here, in comparison, the drug obtained by plaintiff was marijuana and,
in and of itself, prohibited at the moment plaintiff obtained it.  Finally, whereas in Valenzuela there
were no published standards, just policy promulgated by word-of-mouth or
memoranda distributed to an unidentified number of employees, here the
Department’s policy was published not just in documents provided to plaintiff
during training.  From those published
documents, plaintiff admittedly knew the use of marijuana was prohibited at
least in the absence of a medical prescription. 


            In
addition, as previously discussed, there is sufficient evidence from which to
infer the Prunty memo was widely distributed to employees on the Department’s
intranet website and that it was available to plaintiff.

            There is href="http://www.mcmillanlaw.com/">substantial evidence to support the
Board’s finding of inexcusable neglect of duty.

III

>Other Failure of Good Behavior

            In sustaining
the charge of other failure of good behavior (Gov. Code, § 19572, subd. (t)),
the Board found that, while plaintiff’s “use of marijuana based upon a
physician’s recommendation may not have subjected her to criminal prosecution
in California state courts[, i]t nonetheless subjected her to possible
prosecution under federal law,” citing Gonzales
v. Raich (2005) 545 U.S. 1, 26-29 (Raich).  As such, the Board concluded, plaintiff broke
the law she was sworn to uphold by using marijuana and testing positive,
thereby discrediting herself and the Department. 

            Plaintiff
contends the Board misapplied the Raich
case, arguing Raich “addressed a
narrow jurisdictional issue pertaining to Congress’s Commerce Clause and not
the prosecution of medicinal marijuana users under href="http://www.fearnotlaw.com/">federal law.”  We disagree.

            In >Raich, the United States Supreme Court,
finding the application of provisions of the Controlled Substances Act
criminalizing the intrastate manufacture, distribution or possession of
marijuana did not violate the Commerce Clause, upheld Congressional authority
to regulate locally cultivated medical marijuana.  (Raich, supra, 545 U.S. at pp. 8-9.) 
The court observed that, because “Congress classified marijuana as a Schedule
I drug” (21 U.S.C. § 812(c)), but for one exception not relevant here,
possession and use of marijuana is a criminal offense under federal law.  (Raich,
at p. 14.) 

            Here, the
Board’s reliance on Raich for the
limited proposition that federal law prohibits the possession of marijuana was
proper.  Even assuming otherwise, we need
not rely solely on Raich as support
for that proposition.  The fact that
possession of marijuana is subject to federal criminal prosecution is clear
from federal statutory law (21 U.S.C. §§ 812, 844(a)), and an abundance of
federal and California case authority (see United
States v. Oakland Cannabis Buyers’ Cooperative (2001) 532 U.S. 483, 491-495
[149 L.Ed.2d 722]; City of Garden Grove
v. Superior Court (2007) 157 Cal.App.4th 355, 382 [“The upshot of >Raich is that the federal government and
its agencies have the authority to enforce the federal drug laws, even in a
state like California that has sanctioned the use of marijuana for medicinal
purposes”]; County of Butte v. Superior
Court (2009) 175 Cal.App.4th 729, 739 [“the [CUA] has no effect on
marijuana arrests and prosecutions or searches and seizures under federal
law”]; Ross v. RagingWire
Telecommunications, Inc. (2008) 42 Cal.4th 920, 926 [state law cannot
completely legalize marijuana for medical purposes because the drug remains
illegal under federal law, even for medical users].) 

IV

>Penalty of Dismissal

            Plaintiff
contends the Board’s decision to impose the penalty of dismissal was supported
by three nonprecidential State Personnel Board decisions, all of which are
distinguishable and none of which were accessible to her, thus violating her
right to due process.  As we shall
explain, the Board relied on a published decision to support its decision, and
thus plaintiff’s claim lacks merit.

            The record
makes clear that the Board first identified that the factors to be considered
in determining the proper penalty, if any, to impose include the extent to
which plaintiff’s conduct resulted in, or if repeated is likely to result in,
harm to the public service, as well as “the circumstances surrounding the
misconduct and the likelihood of its recurrence.”  (Skelly
v. SPB (1975) 15 Cal.3d 194, 218.) 

            Next,
acknowledging its history of decisions finding correctional officers are “peace
officers” and are “held to a higher standard of conduct than non-peace
officers,” the Board observed that the public “has a right to the highest
standard of behavior from those they invest with the power and authority of a
law enforcement officer” and noted that the CUA “did not change the drug
testing requirements [plaintiff] was under, or shield [her] from prosecution in
federal court.” 

            Finally,
the Board likened the facts before it to those in Joseph Garcia (1998) SPB Dec. No. 98-03 [1960 CA St. Personnel Bd.
LEXIS 13, May 5-6, 1998] (Garcia), a
published decision in which the Board sustained the dismissal of Garcia, a
parole agent employed by the Department of the Youth Authority, for admittedly
having smoked marijuana on one occasion in a motel room while off-duty.  There, the Board found Garcia’s duties
included “enforcing the conditions of his wards’ parole, investigating parole
violations, gathering information which could cause a change in parole status,
and apprehending parole violators.”  (>Garcia, at p. 10.)  Given that a ward’s parole could be revoked
if he or she were discovered smoking marijuana, “the Department could not
condone a parole agent engaging in the type of behavior that could cost one of
his parolees his freedom.”  (>Garcia, at p. 11.) 

            The Board
also found peace officers like Garcia “are held to a higher standard of
behavior than non-peace officers,” and “may be disciplined for violating laws
they are employed to enforce.”  (>Garcia, supra, SPB Dec. No. 98-03, at p.
12.)  Finally, the Board found that
because it is imperative that parole officers “maintain their credibility with
parolees, some of whom may have been incarcerated for crimes relating to the
sale or use of marijuana,” Garcia’s admitted use of marijuana could have a
significant adverse impact on his credibility both with his parolees and the
community.  (Garcia, at p. 13.)  The Board
concluded the penalty of dismissal for Garcia’s one-time use of marijuana was
not unreasonable under the circumstances. 
(Garcia, at pp. 14-20.) 

            Here, the
Board found the Garcia case was
“equally applicable” and concluded that while plaintiff testified she now
understood she was prohibited as a correctional officer from using marijuana
pursuant to a physician’s recommendation, dismissal was appropriate because she
nonetheless violated Department policy and federal law.  Given the substantial evidence to support the
charges of inexcusable neglect of duty and other failure of good behavior as previously
discussed, the Board’s decision is supported by its findings.

            Plaintiff
takes issue with the fact that the Board made note of three nonprecedential
State Personnel Board decisions “involving similar, if not almost identical
facts,” in which the penalty of dismissal was sustained.  It appears to us, however, that the Board
relied entirely on Garcia in reaching
its penalty determination, only mentioning the three nonprecedential decisions
for the purpose of highlighting the fact that it has, in the past, taken the
same position on penalties imposed in cases dealing with marijuana use.  In any event, we need not consider the three
nonprecedential decisions in rejecting plaintiff’s claims, given that the Board
properly relied on Garcia, and its
findings related thereto were supported by substantial evidence.

            Plaintiff
cites People v. Mower (2002) 28
Cal.4th 457, 482, in support of her claim that her conduct was legal under
California law pursuant to the CUA and therefore public policy disfavors the
penalty of dismissal.  In particular, she
cites the following language:  “As a
result of the enactment of [the CUA], the possession and cultivation of
marijuana is no more criminal--so long as its conditions are satisfied--than
the possession and acquisition of any prescription drug with a physician’s
prescription.”  (Mower, at p. 482.)  That
language makes plain that the CUA still requires that one satisfy its
conditions, just as one would be required to satisfy the conditions required to
obtain prescription painkillers, namely, obtain a legal prescription from a
physician and use that prescription to legally acquire the drug.  We need not repeat our discussion in parts II
and III, ante, but to note again that
plaintiff did not satisfy the conditions for the use of medical marijuana set
forth in the Act. 

            More
importantly, however, we review plaintiff’s conduct and argument not only in
the context of the CUA and California law, but also against the backdrop of
what is expected of a correctional officer working in the California prison
system.  In that regard, we echo the
Board’s finding that correctional officers are peace officers in whom the
public invests the power and authority to enforce the law.  While public policy might otherwise disfavor
punishment of an ordinary citizen who satisfies the conditions of the CUA,
plaintiff is a correctional officer and, as such, is required to act in a
manner that is above reproach.  Her
actions were inconsistent with her duties as a correctional officer.  (Garcia,
supra, SPB Dec. No. 98-03, at p. 18.) 
There is no violation of public policy here.

DISPOSITION

            The
judgment denying the petition for a writ of mandate is affirmed.  Respondents shall recover their href="http://www.mcmillanlaw.com/">costs on appeal.  (Cal. Rules of Court, rule 8.278(a).) 

 

 

                                                                                              HULL                           ,
J.

I concur:

 

 

 

          NICHOLSON              , Acting P. J.

 

 

 

I concur in the
result.

 

 

 

          ROBIE                          ,
J.