Filed 7/11/17 Turner v. Cal. State Personnel Bd. CA5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

CHAD TURNER,

Plaintiff and Appellant,

v.

CALIFORNIA STATE PERSONNEL BOARD,

Defendant and Respondent;

CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,

Real Party in Interest and Respondent.

F072974

(Super. Ct. No. CV-278915)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw, Judge.
Law Office of Michael A. Morguess and Michael A. Morguess for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Hazel Bergtholdt for Real Party in Interest and Respondent.
-ooOoo-
The California Department of Corrections and Rehabilitation (Department) employed appellant, Chad Turner, as a correctional sergeant. The Department terminated Turner from his position on the grounds of inexcusable neglect of duty, dishonesty, discourteous treatment of the public, and discrediting his employer. Following a hearing before an administrative law judge (ALJ), respondent, California State Personnel Board (Board), upheld the termination.
Turner argues he was denied due process because the written reasons for dismissal served on Turner did not include the allegations the ALJ relied on to find Turner was dishonest. Turner further contends that substantial evidence does not support the ALJ’s decision and that the Board abused its discretion when it terminated Turner’s employment.
The record does not support Turner’s position. Thus, we will affirm the judgment.
BACKGROUND
In February 2011, the Department served Turner with a notice of adverse action (Notice) dismissing him from state service. The Notice stated the Department was basing this dismissal on causes for discipline under the following subdivisions of Government Code section 19572:
“(d) Inexcusable neglect of duty;
“(f) Dishonesty;
“(m) Discourteous treatment of public or other employees; and
“(t) 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 person’s employment.”
The Notice also set forth the facts supporting the discipline.
The genesis of the discipline is the incident described in the Notice as:
“On or about February 2, 2010, … [y]ou entered the office, looked at inmate Courage, interrupted the conversation, and stated words to the effect, ‘What the fuck are you doing in my chair?’ You then pulled out your baton, struck at the floor between inmate Courage’s feet hitting his right foot, while stating words to the effect, ‘We’ll keep you from doing that again.’ Inmate Courage immediately rose from his seat, apologized, and left the office.”
The Notice then outlined the resulting investigation, including descriptions of the memoranda prepared by Turner and the officer who conducted the inquiry. Regarding Turner’s memoranda, the Notice alleges:
“On February 26, 2010, you reported to Capt. Lundy in his office and informed him that you had completed your memo as requested. In your memo you documented that you were aware of the rumors that were circulating regarding you striking a handcuffed inmate with your baton in the unit office. You reiterated that the allegations were all false, and that you never hit inmate Courage with a baton and never had him in the office with handcuffs. You further informed Lundy that you wanted to assure him that nothing inappropriate occurred.…
“[¶] … [¶]
“On February 27, 2010, you submitted a second memo in regards to the incident involving inmate Courage. In your memo you stated that you needed to clarify ‘a small portion of a previous memo’ you wrote, specifically addressing facts which you failed to disclose in your initial memo. You noted that when you instructed inmate Courage to get out of the staff chair, he failed to do so immediately. As a result, with a closed baton, you hit the ground between inmate Courage’s feet in order to get his attention, and make him aware that you were serious about your instructions. You further noted that your use of the baton in such a manner was not the best choice, and may have given the impression you struck the inmate; but you never hit him either deliberately or accidentally.”
The Notice concluded:
“Based upon the foregoing, it has been determined your conduct described above is in violation of the rules and policies as set forth in this action. As a peace officer, you are held to a higher standard and your actions in this incident failed to meet the standard of conduct expected from peace officers. Your action in the above-described incident demonstrate, without limitation, inexcusable neglect of duty, dishonesty, discourteous treatment of public or other employees, and other failure of good behavior causing discredit to the Department.”
Turner administratively appealed the discipline and the Board appointed an ALJ to hear the matter. Following an evidentiary hearing, the ALJ issued her ruling.
The ALJ found a preponderance of evidence proved that Turner struck the ground near inmate Courage’s feet, but that the Department failed to meet its burden of proving that Turner hit Courage with the baton. The ALJ also concluded that Turner cursed and yelled at Courage as alleged in the Notice. The ALJ further determined that on February 26, 2010, the day Turner submitted his first memorandum, Turner “went to Lundy’s office and personally assured Lundy that he had never drawn his baton while the inmate was in his office.”
The ALJ sustained the inexcusable neglect of duty charge based on the findings that Turner cursed and yelled at Courage and that Turner drew his baton and struck the ground near Courage’s feet to get his attention. The ALJ noted Turner’s conduct did not conform to his duty to treat Courage in a courteous and professional manner. (§ 19572, subd. (d).) Based on this conduct, the ALJ also sustained the charge that Turner engaged in discourteous treatment “of the public or other employees” in violation of section 19572, subdivision (m).
Additionally, the ALJ sustained the dishonesty charge. The ALJ noted that under section 19572, subdivision (f), dishonesty is the intentional misrepresentation of known facts, or a willful omission of pertinent facts. The ALJ observed that, although Turner was directed to write a memorandum explaining his actions on the day at issue, Turner’s first memorandum addressed only the rumor that he hit Courage and that Courage was in handcuffs. Also, Turner assured Lundy that he had conducted himself properly with regard to Courage. The ALJ concluded that Turner’s failure to reveal that he used profanity and struck the ground with his baton near Courage’s feet constituted a willful omission of pertinent facts and thus established dishonesty.
Finally, the ALJ sustained the “other failure of good behavior” charge (§ 19572, subd. (t)) concluding that Turner’s failure to treat Courage with respect as required by the Department’s policies discredited the Department. The ALJ also found that Turner impeded the inquiry undertaken on behalf of the Department by intentionally concealing his use of his baton to strike the floor at Courage’s feet and thus further discredited the Department.
The ALJ determined that Turner’s dismissal was warranted because “he failed in his duty to be truthful regarding his conduct.” Further, Turner’s “failure to report all of his conduct during the initial fact-finding process thwarted [the Department’s] investigation and its ability to timely take action to correct inappropriate conduct.” Additionally, the ALJ found that Turner’s “disrespectful and confrontational manner” could have placed others in harm’s way and that his “conduct was unbecoming of a supervisor and set a poor example for subordinate staff.” Thus, Turner’s “conduct harmed the reputation and integrity of [the Department].” The Board adopted the ALJ’s ruling.
Turner filed a petition for writ of mandate in the trial court. Turner argued the Board could not terminate him based on factual allegations that were not contained in the Notice. Turner further asserted that substantial evidence did not support the dishonesty finding and that the Board abused its discretion when it dismissed him. The trial court denied the petition.
DISCUSSION
1. Standard of Review.
The appellate scope of review from a judgment on a petition for writ of mandate is the same as that of the trial court. (Department of Corrections & Rehabilitation v. State Personnel Bd. (2015) 238 Cal.App.4th 710, 716.) Thus, we review the Board’s factual findings under the substantial evidence standard of review and review questions of law de novo. (Ibid.)
In applying the substantial evidence test to a Board decision, this court must examine all relevant evidence in the entire record, considering both the evidence that supports the Board’s decision and the evidence against it, in order to determine whether substantial evidence supports that decision. (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 335.) Nevertheless, we do not reweigh the evidence. Rather, we indulge all presumptions and resolve all conflicts in favor of the Board’s decision. (California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584.) Moreover, the Board’s findings come before this court with a strong presumption as to their correctness and regularity. If the Board’s decision is one that reasonable people could have made, we do not substitute our own judgment. (Ibid.)
As to the penalty imposed, we may not disturb the Board’s decision unless there has been an abuse of discretion. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217 (Skelly).) On review, neither a trial court nor an appellate court is free to substitute its own discretion in the matter. Nor can the reviewing court interfere with the penalty imposed because in the court’s own evaluation of the circumstances, the penalty appears to be too harsh. (Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 966 (Cadilla).) Rather, such interference is appropriate only when there is an arbitrary, capricious or patently abusive exercise of discretion, i.e., the action exceeds the bounds of reason. (Ibid; Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 721 (Kolender).)
2. The Notice adequately alleged the reasons for Turner’s dismissal.
The Notice alleged that Turner was dishonest when he denied hitting inmate Courage with his baton. As noted above, while the Board found a preponderance of evidence proved that Turner struck the ground near inmate Courage’s feet, it concluded that the Department failed to meet its burden of proving that Turner hit Courage with the baton. Turner argues that, because “[t]he entire focus of the dishonesty allegation” is his denial of striking Courage, the Notice did not apprise him of the charges. Therefore, Turner contends, he was denied due process.
Due process requires that the employee receive adequate notice both of the claimed legal standard and the events alleged to have contravened it. Where the cause for discipline potentially applies to a broad range of conduct, the allegations set forth not only what must be proved, but also provide criteria by which to narrow the charge. (Brown v. State Personnel Bd. (1985) 166 Cal.App.3d 1151, 1164, fn. 5.) The Notice must state the reasons for the adverse action “in ordinary language.” (§ 19574, subd. (a).)
Contrary to Turner’s interpretation, the Notice set forth the reasons the Board relied on to sustain the dishonesty charge. In addition to stating that Turner hit Courage on the foot, the Notice alleged that Turner struck at the floor with his baton and used profanity. The Notice described Turner’s first memorandum as merely denying the rumors regarding his striking a handcuffed inmate. Thus, Turner omitted that he used his baton to strike the ground near Courage’s feet and that he used profanity. These omissions left out significant aspects of Turner’s interaction with Courage. Further, while Turner’s second memorandum admitted to having hit the ground with his baton, Turner continued to omit his use of profanity.
The Notice also alleged that Turner informed Lundy that he “wanted to assure him that nothing inappropriate occurred.” Unquestionably, Turner’s striking the ground with his baton and using profanity was inappropriate. Therefore, Turner’s assurance was dishonest.
Thus, the Notice alleged dishonesty beyond Turner’s claim that he did not hit Courage on the foot. Accordingly, Turner received adequate notice of the reasons underlying the dishonesty charge.
3. Substantial evidence supports the dishonesty finding.
Turner argues substantial evidence does not support the dishonesty finding because, in his initial memorandum, he was simply responding to the directive to address the rumor that he “had beaten” up inmate Courage. In this memorandum, Turner explained:
“I walked into the sergeant’s office and found Courage sitting in one of the staff chairs visiting with Sergeant Westergren. I yelled at Courage to get out of the chair and get out of the office. Courage complied and left my office. I didn’t hit Courage with a baton and he wasn’t in handcuffs.”
Therefore, Turner contends, there is no support for the finding that he was dishonest by omitting his use of his baton and his profanity.
However, the investigating officer directed Turner to prepare a “memorandum explaining [his] actions on that day and what happened.” Based on this broad request, it is reasonable to infer that Turner purposefully omitted his use of the baton and his swearing at Courage. Further, the Board found that on “February 26, 2010, [Turner] volunteered to Lundy that he had not drawn his baton at any time when he was in the sergeants’ office with Inmate Courage.” Considering Turner later admitted to using his baton, it is reasonable to find that Turner was being dishonest when he made this claim.
In sum, indulging in all presumptions and resolving all conflicts in favor of the Board’s decision, substantial evidence supports the dishonesty finding.
4. The Board did not abuse its discretion in dismissing Turner.
In determining whether dismissal of an employee is excessive as a matter of law, the overriding considerations are the extent of harm to the public service resulting from the employee’s conduct or the likelihood such conduct, if repeated, would result in such harm. Other considerations include the circumstances surrounding the employee’s conduct and the likelihood of its recurrence. (Skelly, supra, 15 Cal.3d at p. 218.)
Turner posits that the Board dismissed him based largely on the dishonesty finding. According to Turner, this penalty was excessive as a matter of law in that there “is no evidence of harm to the public service, and to the extent there may be, it certainly is not in an amount that supports termination.”
However, a peace officer is in a position of trust and is held to the highest standards of behavior. The officer’s honesty and credibility are crucial to proper performance of his or her duties. Accordingly, dishonesty is intolerable. (Paulino v. Civil Service Com. (1985) 175 Cal.App.3d 962, 972.) Moreover, “[d]ishonesty is not an isolated act; it is more a continuing trait of character. False statements, misrepresentations and omissions of material facts in internal investigations, if repeated, would result in continued harm to the public service.” (Kolender, supra, 132 Cal.App.4th at p. 721.)
Further, the Board dismissed Turner based on more than dishonesty. In addition to being dishonest about his encounter with Courage, the Board found Turner inexcusably neglected his duty, was discourteous, and discredited the Department. Turner has not challenged these findings on appeal.
In reviewing Turner’s dismissal, we cannot substitute our own discretion or interfere on the ground that the penalty appears to be too harsh. (Cadilla, supra, 26 Cal.App.3d at p. 966.) Rather, we can only interfere when there is an arbitrary, capricious or patently abusive exercise of discretion. In other words, reversal is justified only when the action exceeds the bounds of reason. (Ibid; Kolender, supra, 132 Cal.App.4th at p. 721.)
Here, the Board concluded that Turner was dishonest regarding his interaction with Courage. As discussed above, substantial evidence supports this finding. Further, the Board sustained the charges of inexcusable neglect of duty, discourteous treatment, and other failure of good behavior.
In considering the penalty, the Board determined that Turner’s disrespectful and confrontational manner could have placed himself and others in harm’s way. The Board also found that Turner’s conduct was unbecoming of a supervisor, set a poor example for subordinate staff, and harmed the reputation and integrity of the Department. The Board further considered Turner’s general failure to accept and admit responsibility for his conduct.
On this record, dismissing Turner did not exceed the bounds of reason. As a peace officer, Turner was in a position of trust and held to the highest standards of behavior. Therefore, the penalty was not excessive as a matter of law.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to real party in interest and respondent.


LEVY, J.
WE CONCUR:



HILL, P.J.



GOMES, J.