Filed 3/4/22 Lane v. State Personnel Board 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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Plaintiff Cameron Lane is a correctional officer employed by the Department of Corrections and Rehabilitation (Department). His responsibilities as the armory sergeant at the California Institute for Women (CIW) involved overseeing the operation and maintenance of the armory. After an investigation of the armory revealed that multiple items were not properly stored, there were no inventory logs for various items, and numerous items were missing,[1] the Department found plaintiff culpable of four counts of misconduct (e.g., incompetence, inexcusable neglect of duty) and reduced his salary by 10 percent for 18 qualifying pay periods as a penalty for his misconduct. Plaintiff appealed the penalty imposed by the Department, and following an administrative hearing, the Administrative Law Judge (ALJ) issued a proposed decision upholding the penalty. Thereafter, the State Personnel Board (Board) adopted the ALJ’s proposed decision.

Plaintiff appeals from the trial court’s denial of his mandamus petition to set aside the Board’s decision. He argues substantial evidence does not support the Board’s findings of misconduct and that the Board abused its discretion in temporarily reducing his salary as a penalty for his misconduct. Finding no error, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Factual Background

Plaintiff became a correctional officer with the Department in 2000. In 2006, he was promoted to correctional sergeant at the CIW. Thereafter, he served as the armory sergeant on several occasions, including from June 2013 to January 2014 and February/March 2017 to May 2017.

As the armory sergeant, plaintiff oversaw the operation and maintenance of the CIW’s main armory and all of its sub-armories.[2] He was responsible for the handling, security, and safekeeping of all armory equipment (e.g., weapons, ammunitions, chemical agents, tactical response gear), which included issuing, maintaining, repairing, replacing, and inventorying the equipment. He was also responsible for ensuring that the armory was properly supplied, maintaining proper records of all equipment under the supervision of the armory, and supervising the armory officer, who was required to provide an inventory of all armory equipment at the beginning of each month. At all relevant times, plaintiff was aware of his duties and responsibilities as the armory sergeant.

Only three individuals at the CIW had access to the armory: the armory officer, the armory sergeant, and the supervising lieutenant. When a change in the armory sergeant occurs, the first task for the new armory sergeant is to conduct an inventory to confirm that all armory equipment is accounted for and the inventory logs are correct.[3] The armory sergeant and the armory officer are responsible for the condition of the armory, including ensuring that the inventory logs are updated each time equipment is removed from the armory.

In November 2017, plaintiff received a performance evaluation for the time period from March 10, 2017 to October 18, 2017, which included his second stint as the armory sergeant. Plaintiff was rated as exceeding expected standards in the areas of quality of work and taking independent action, and rated as meeting expected standards in the areas of quantity of work, work habits, relationships with people, meeting work commitments, analyzing situations and materials, supervising the work of others, and personnel management practices. His performance evaluation did not include any negative ratings or comments.

In February 2018, plaintiff was assigned to the position of armory sergeant for a third time. His direct supervisor was Lieutenant Rudy Arellano.

In late June 2018, plaintiff began a three-week vacation.

On July 3, 2018, the armory officer discovered that there were at least three, but possibly as many as six, MK-9 Oleoresin Capsicum (OC) (pepper spray) Streamers (MK-9s) missing from the armory. The armory officer did not immediately report the missing items, but instead informed plaintiff about the missing items upon his return to work on July 16. Later that same day, the armory officer advised Lieutenant Arellano of the same. In response, Arellano directed plaintiff and the armory officer to each prepare a memorandum explaining what had happened.

The following day, plaintiff wrote a memorandum to Arellano. He explained that six MK-9s were missing from the armory and that he was unable to determine when or how they went missing. He stated that he had not issued any MK-9s since May 2018 and that the “inventory was correct” at that time. He claimed that the missing MK-9s were not lost and that the discrepancy between the inventory log and the amount of MK-9s in the armory was “a recordkeeping issue.”

The armory officer’s memorandum, written on the same day as plaintiff’s memorandum (July 17), also stated that six MK-9s were missing from the armory but did not indicate when or how the MK-9s went missing.

In response to the memoranda, Arellano ordered plaintiff and the armory officer to conduct an inventory of the armory.

On August 6, 2018, plaintiff informed Arellano that the MK-9s were no longer missing and that all armory equipment was accounted for. Three days later, an investigation regarding the missing MK-9s was ordered.

During that investigation, three senior staff members, Associate Warden Richard Montes, Captain Stanley Dutro, and Lieutenant Arellano, found the armory to be in a state of disrepair; it was dusty, unorganized, and cluttered with empty boxes and papers. Due to the condition of the armory, a complete inventory was conducted, which revealed that numerous items were missing, including one OC Vapor Grenade, one OC Grenade Blast, 13 MK-9s, and four wood baton rounds. The inventory also revealed that two handguns had been removed from the armory without proper documentation in the appropriate inventory log. Some of the missing items were found the next day (August 10) in an unsupervised armory van parked outside the secured perimeter.

On August 13, 2018, plaintiff was relieved of his duty as the armory sergeant and an additional inventory of the armory was ordered. The second inventory revealed that multiple items were not properly stored, there were no inventory logs for various items, and numerous items were missing. The second inventory also revealed a number of other discrepancies. For instance, the armory’s recordkeeping system indicated that there were 144 “Chem. AG Inert Grenade[s]” in the armory, but the actual amount in the armory was 156.

Neither inventory determined when any of the items went missing from the armory or were improperly stored. Nor did either inventory determine how the missing items were lost, misplaced, or improperly stored, or who made incorrect entries in the inventory logs.

Procedural Background

In April 2019, the Department served plaintiff with a Notice of Adverse Action (Notice) pursuant to Government Code section 19574,[4] informing him of a 10 percent reduction in his salary for 18 qualifying pay periods. The Notice identified four grounds for the adverse action: incompetence (§ 19572, subd. (b)); inefficiency (id., subd. (c)); inexcusable neglect of duty (id., subd. (d)); and other failure of good behavior (id., subd. (t)). The adverse action was predicated on plaintiff’s misconduct in failing to properly inventory and maintain the correct count of items in the armory during the period “on or about July 3, 2018 and continuing.”[5]

In May 2019, plaintiff appealed the adverse action. At the November 2019 hearing, the ALJ heard testimony from several witnesses, including plaintiff, Lieutenant Arellano, Associate Warden Montes, Captain Dutro, and two other correctional officers. The ALJ also admitted various documents into evidence.

The ALJ took the matter under submission and issued a 21-page proposed decision in January 2020. The ALJ sustained the allegations of misconduct set forth in the Notice and upheld the penalty imposed by the Department. In sustaining the allegations, the ALJ found that plaintiff had failed to properly inventory and maintain a correct count of items in the armory, and was unable to provide an accurate accounting of MK-9s after he was informed that up to six were missing from the armory. The ALJ further found that plaintiff “incorrectly” told Arellano that all of the MK-9s had been located and that all armory equipment was accounted for, as an inventory of the armory conducted three days later revealed multiple discrepancies in the counting and inventory of armory equipment, including 13 missing MK-9s. The ALJ concluded that plaintiff’s misconduct was not a “one-time counting mistake of one item in the armory, but [rather] the failure to properly count numerous items in the [a]rmory,” and that the degree of potential harm to the public from such misconduct was serious, since his failure to account for armory equipment undermined the security of the CIW and its primary objective of ensuring the safety of inmates and the public, which included being prepared to respond to emergency situations and preventing inmates from acquiring lost or misplaced equipment that could be used against others or to facilitate escape. The ALJ also determined that the reputation of CIW “would severely suffer” if the public knew that equipment was missing from the armory, “leading to public outrage and the possible loss of morale among staff members.”

In upholding the penalty imposed by the Department, the ALJ found that plaintiff’s failure to adequately perform his duties as the armory sergeant violated “the trust his superiors bestowed upon him” and “could have severely hindered the Department’s ability to carry out its important responsibilities.” The ALJ further found that plaintiff failed to acknowledge his poor judgment, blamed others for the problems with the armory, and failed to appreciate the seriousness of the charges against him.

The ALJ stated: “[Plaintiff] failed to realize he . . . ha[d] an independent obligation to resolve past discrepancies. Thus, [he] did not recognize that the charges against him stemmed from his own failure and inability to properly inventory equipment contained within the . . . [a]rmory, which resulted in dangerous munitions being unaccounted for. [His] failure to accept full responsibility for his actions, or show an understanding of why he was disciplined, indicates a high likelihood of recurrence.” It concluded: “Given the likelihood of recurrence, and the serious harm to the public . . . that could result if [plaintiff] engages in similar conduct, modification of the penalty [imposed by the Department] is not warranted.”

In March 2020, the Board issued a resolution and order adopting the ALJ’s proposed decision in its entirety.

In May 2020, plaintiff filed a verified petition for writ of mandate seeking to set aside the Board’s decision. After hearing argument from counsel, the trial court denied the petition and entered judgment in favor of the Board. This timely appeal followed.

DISCUSSION

I

Standard of Review

The Board is the state agency vested with authority to review disciplinary actions taken against public employees. (Thaxton v. State Personnel Bd. (2016) 5 Cal.App.5th 681, 691.) In undertaking that review, the Board acts in an adjudicatory capacity under powers granted by the California Constitution. (Ibid.) As such, the Board acts much as a trial court would in an ordinary judicial proceeding; it makes factual findings and exercises discretion on matters within its jurisdiction. (Ibid.)

The Board’s decision may be reviewed by the superior court by way of a petition for writ of administrative mandamus. (Code Civ. Proc., § 1094.5, subd. (a).) The trial court reviews the Board’s findings for substantial evidence, considering all relevant evidence in the administrative record including evidence that fairly detracts from the evidence supporting the Board’s findings. (Cate v. State Personnel Bd. (2012) 204 Cal.App.4th 270, 281 (Cate).) The scope of appellate review is the same as that of the trial court; we independently determine whether substantial evidence supports the Board’s findings, not the trial court’s conclusions. (Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487 (Telish); Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 742.)

“ ‘Substantial evidence’ is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. [Citation.] Such evidence must be reasonable, credible, and of solid value.” (California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584-585.) In applying the substantial evidence test, “ ‘ “[w]e do not reweigh the evidence; we indulge all presumptions and resolve all conflicts in favor of [the Board’s] decision. Its findings come before us ‘with a strong presumption as to their correctness and regularity.’ [Citation.] We do not substitute our own judgment if [the Board’s] decision ‘ “ ‘is one which could have been made by reasonable people. . . .’ [Citation.]” ’ ” [Citations.]’ ” (Palmieri v. State Personnel Bd. (2018) 28 Cal.App.5th 845, 851.) The appellant bears the burden of demonstrating that the Board’s findings are not supported by substantial evidence. (Telish, supra, 234 Cal.App.4th at p. 1497.)

The penalty imposed by the Board is reviewed for abuse of discretion. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217; County of Los Angeles v. Civil Service Com. of County of Los Angeles (2019) 40 Cal.App.5th 871, 877 (County of Los Angeles).) We will not disturb the Board’s choice of penalty unless the Board “ ‘patently abused its exercise of discretion by acting arbitrarily, capricious, or beyond the bounds of reason.’ ” (Cate, supra, 204 Cal.App.4th at p. 284; see also County of Los Angeles, at p. 877 [the penalty imposed must be upheld if there is any reasonable basis to sustain it].) “ ‘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.’ ” (Bautista v. County of Los Angeles (2010) 190 Cal.App.4th 869, 879.)

In considering whether an abuse of discretion occurred in the context of public employee discipline, “ ‘the overriding consideration . . . is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, “[h]arm to the public service.” [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.’ [Citation.] The public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability.” (County of Santa Cruz v. Civil Service Commission of Santa Cruz (2009) 171 Cal.App.4th 1577, 1582; see also County of Siskiyou v. State Personnel Bd. (2010) 188 Cal.App.4th 1606, 1615.) In weighing such factors, the nature of the employee’s profession must be considered, “because ‘some occupations such as law enforcement, carry responsibilities and limitations on personal freedom not imposed on those in other fields.’ ” (County of Los Angeles, supra, 40 Cal.App.5th at p. 878 [“[p]eace officers . . . are held to higher standards of conduct than civilian employees, and dishonesty by law enforcement personnel is considered to be highly injurious to their employing agencies”].)

II

Sufficiency of the Evidence

Plaintiff contends the Board’s findings of misconduct are not supported by substantial evidence. He argues there is insufficient evidence to establish that he failed to properly inventory and maintain the correct count of items in the armory during the relevant time period. We disagree.

There is ample evidence in the record supporting the Board’s decision. The record establishes that, at all relevant times, plaintiff was aware of his duties and responsibilities as the armory sergeant, which involved overseeing the operation and maintenance of the armory. He was responsible for ensuring that the armory was properly supplied, and for the handling, security, and safekeeping of all armory equipment, which included issuing, maintaining, repairing, replacing, and inventorying the equipment. He was also responsible for maintaining proper records of all equipment under the supervision of the armory, and for supervising the armory officer, who was required to provide an inventory of all armory equipment at the beginning of each month. The record further establishes that on July 16, 2018, during plaintiff’s third stint as the armory sergeant (which began in February 2018), he and his supervisor (Lieutenant Arellano) were advised by the armory officer that MK-9s were missing from the armory. Several weeks later, plaintiff told Lieutenant Arellano that the MK-9s were no longer missing and that all armory equipment was accounted for. However, an inventory conducted three days later revealed that the armory was in a state of disrepair, numerous items were missing (including 13 MK-9s), and two handguns had been removed without proper documentation in the appropriate inventory log. After plaintiff was relieved of his duty as the armory sergeant several days later, a second inventory of the armory revealed, among other things, that multiple items were not properly stored, there were no inventory logs for various items, and numerous items were missing. On this record, plaintiff’s substantial evidence argument fails. The record clearly contains sufficient evidence to support the Board’s findings of misconduct.

We reject plaintiff’s contention that reversal is required because the Department failed to establish exactly when items went missing from the armory or were miscounted. Such a showing was not required to prove the allegations of misconduct. As we have explained, the evidence demonstrated that plaintiff failed to properly inventory and maintain a correct count of items stored in the armory when he was the armory sergeant and responsible for overseeing the operation and maintenance of the armory. We find no merit in plaintiff’s contention that the record lacks sufficient evidence to establish that the alleged misconduct occurred while he was responsible for the armory. The record does not support plaintiff’s assertion that he was not culpable of the alleged misconduct because the “issues with the inventory occurred while [he] was on vacation and [the armory officer] and Lieutenant Arellano oversaw the armory.” Nor does the record support plaintiff’s assertion that the Department failed to establish he was responsible “for any of the issues pertaining to the armory” because multiple people had access to the armory during the relevant time period and could have engaged in the alleged misconduct. In making these assertions, plaintiff ignores the evidence in the record, including the evidence showing that he held a supervisory position and was responsible for the condition of the armory during the time period when the alleged misconduct occurred. The fact that others (such as the armory officer) may have also committed misconduct is irrelevant to the question of whether there is substantial evidence supporting the Board’s findings of misconduct against plaintiff.

We also reject plaintiff’s suggestion that reversal is required because the trial court misconstrued the allegations in the Notice. On appeal, our task is to independently determine whether substantial evidence supports the Board’s findings rather than the trial court’s conclusions. (Telish, supra, 234 Cal.App.4th at p. 1487; Furtado v. State Personnel Bd., supra, 212 Cal.App.4th at p. 742.) As such, the trial court’s construction or interpretation of the allegations in the Notice is irrelevant to our resolution of this appeal.

III

Penalty

Plaintiff contends the Board abused its discretion in temporarily reducing his salary (10 percent for 18 qualifying pay periods) as a penalty for his misconduct. He argues that reversal is required because the penalty is excessive. We are not persuaded.

A correctional 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. Honesty, credibility and temperament are crucial to the proper performance of an officer’s duties. Dishonesty is incompatible with the public trust.” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.) “ ‘The safety and physical integrity of inmates is one of the . . . paramount responsibilities’ ” of a correctional officer. (Cate, supra, 204 Cal.App.4th at p. 286.) Public safety is particularly implicated when the performance of law enforcement officers is at issue because they “ ‘are the guardians of the peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintaining law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them.’ ” (Hankla v. Long Beach Civil Service Com. (1995) 34 Cal.App.4th 1216, 1224.)

We see no abuse of discretion in the penalty imposed by the Board. This case involves the failure of a correctional officer in a supervisory position to properly inventory and maintain the correct amount of equipment in the armory of a prison. As the ALJ observed, plaintiff’s misconduct violated his position of trust and his responsibility to provide for the safety of inmates and others, which caused “harm to the public service.” Plaintiff’s inadequate performance of his duties put other correctional officers and inmates at risk of serious injury or death and the Department at risk of incurring liability and suffering reputational harm. And his failure to accept full responsibility and appreciate the gravity of his misconduct indicated that there is a significant likelihood of recurrence. Under these circumstances, the Board acted well within its discretion in temporarily reducing plaintiff’s salary as a penalty for his misconduct. Plaintiff’s argument to the contrary is not persuasive.

DISPOSITION

The judgment is affirmed. The Department shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

/s/

Duarte, J.

We concur:

/s/
Mauro, Acting P. J.

/s/
Renner, J.

[1] Throughout the record, there are references to “missing” armory equipment. In the context of this case, missing means unaccounted for.

[2] The CIW’s main armory was located outside the security perimeter. The record does not disclose the location of the sub-armories. Because this case only concerns the main armory, all further references to “armory” are to the main armory.

[3] The CIW used a computer program called the Centralized Armory Tracking System (CATS) to inventory armory equipment. There were also inventory logs for each type of equipment in the armory, which were used to make hand-written notations to keep track of the equipment. The armory staff was required to use the inventory logs to update the CATS.

[4] Further undesignated statutory references are to the Government Code.

[5] The Notice also included an allegation that plaintiff had committed misconduct by bringing contraband (cell phone and folding knife) into the armory. This allegation was dismissed by the Board. Because this aspect of the Board’s decision is not challenged on appeal, we do not include the evidence relating to this allegation of misconduct in our statement of facts.