Cal. Dept. of Corrections etc. v. Cal. State Personnel Bd.
Filed 1/30/14 Cal. Dept. of Corrections etc. v. Cal. State Personnel Bd. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
CALIFORNIA
DEPARTMENT OF CORRECTIONS AND REHABILITATION,
Plaintiff and Appellant,
v.
CALIFORNIA
STATE
PERSONNEL BOARD,
Defendant and Respondent;
REGINA
TUCKER,
Real Party in Interest and
Respondent.
B247123
(Los
Angeles County
Super. Ct.
No. BS135379)
PETITION for
Stephen A. Jennings for Plaintiff
and Appellant.
Alvin Gittisriboongul and Dorothy
Bacskai Egel for Defendant and Respondent.
Daniel Luna for Real Party in
Interest and Respondent.
_____________________
The
California Department of Corrections
and Rehabilitation (the Department) dismissed real party in interest Regina
Tucker from her position as an academic teacher at Wasco State Prison (Wasco)
because she violated the Department’s policy regarding contact with an inmate whom
she initially disclosed as a “personal friend,†but with whom she corresponded,
and with whom she was romantically involved, before, during, and after his
incarceration. Tucker contested her
dismissal, and an administrative law
judge (ALJ) issued a proposed decision sustaining Tucker’s dismissal. The State Personnel Board (Board) adopted the
ALJ’s proposed decision.
The Department appeals from the
trial court judgment granting Tucker’s petition for writ of administrative
mandamus seeking to overturn the Board’s decision to sustain her dismissal.
which the judgment is based, refers to a different case involving a “thirty
percent penalty given to petitioner,†and ordering repayment of overpaid
benefits.
Upon our review of the
superior court proceedings, we conclude the judgment entered was in error, the Board’s
decision is supported by substantial evidence, and Tucker’s dismissal was not
an abuse of discretion. We therefore
reverse the judgment with directions to deny the petition and to reinstate the
Board’s decision to dismiss Tucker.
FACTUAL AND PROCEDURAL BACKGROUND
Tucker was dismissed from her
position as an academic teacher at Wasco after an investigation revealed she
had knowingly, or with gross negligence, violated the Department’s policy that
prohibits giving inmates written messages or any kind of gifts, and that requires
the employee to inform the warden in writing if an inmate contacts the
employee. Tucker appealed her dismissal,
and the appeal was heard by an ALJ.
1.
Administrative Hearing Testimony
In June 2009, Tucker learned that
inmate Scott DeSmyther would be confined to Wasco. DeSmyther is a family friend with whom Tucker
also is romantically involved. Tucker
told Matthew Koop, the principal and supervisor of
that DeSmyther would be incarcerated at Wasco.
She did not tell Koop that she was romantically involved with
DeSmyther.
a. Tucker’s Notification
of Committed Relative or Friend
Tucker received annual training
regarding the Department’s inmate-staff relations policy. As required under the policy, Tucker
presented Koop with a form dated June 5, 2009, entitled
“Notification of Committed Relative or Friend†(hereafter, notification form), describing
DeSmyther as a “personal friend.†Koop
signed the notification form and suggested that DeSmyther be transferred to
another facility. On June 10, 2009, the warden instructed staff to transfer DeSmyther.
Tucker admits that Koop told her to
have no contact with DeSmyther. She
understood Koop’s directive to mean “don’t go out into the building and sit in
the Day Room with him.†Tucker believed
that once she filled out the notification form she could correspond with DeSmyther.
Brian Kibler, the former public
information officer and administrative assistant to the warden, testified that
the purpose of the notification form is to ensure employees’ safety and
security. Completing the notification form
does not give the employee permission to contact or correspond with the inmate.
Joseph Way Bolls works in the
investigative services unit at Wasco. He
provides training on the Department’s inmate-staff relations policy. Tucker’s training log showed that she
attended Bolls’s inmate-staff relations classes in March and September of 2008. During these training classes, Bolls discusses
the purpose of the notification form. Bolls
emphasized that the notification form does not permit an employee to contact or
correspond with an inmate. Employees are
informed during training that they must obtain permission from the warden to
contact or communicate with an inmate.
b. Tucker’s
Correspondence with DeSmyther
On June 2, 2009, Tucker
wrote the first of several letters to DeSmyther. These letters revealed she sent him books,
envelopes, and paper, along with attempting to put money on his phone
card. Initially, Tucker used her
friend’s post office box to correspond with DeSmyther. Later, she obtained a post office box and
used the name “G. DeSmyther.†Tucker
stated that she took these steps to protect her privacy.
Tucker testified she told Koop that she
intended to write to DeSmyther. Koop contradicted
this testimony, stating they never discussed the issue.
Tucker told her coworker, Marjorie
Lawrence, that she intended to use her friend’s post office box to write to DeSmyther. Lawrence told Tucker that writing letters to DeSmyther would violate the
Department’s inmate-staff relation policy.
Lawrence reported Tucker’s conduct.
c. Tucker’s Contact
with DeSmyther
While Desmyther was at Wasco, Tucker
had contact with him on two occasions.
As part of her job duties, Tucker assessed inmates’ reading levels by
administering the test of adult basic education or “TABE†test. Tucker conducted DeSmyther’s TABE test in
June 2009. In August 2009, DeSmyther
still had not been transferred, and Tucker changed a TABE test list from one
housing unit to DeSmyther’s housing unit.
DeSmyther appeared on the TABE test list, even though he already had
taken the test. DeSmyther did not take
the test again, but a corrections officer was not available to take him back to
his housing unit. Instead, Tucker took
DeSmyther into an empty classroom to watch a movie until the other inmates
completed the TABE test and joined them.
Koop testified it violated the Department’s
inmate-staff relations policy for Tucker to conduct DeSmyther’s TABE test. Koop, however, never communicated this
information to Tucker.
d. DeSmyther is
Transferred to Chino
In
November 2009, DeSmyther was transferred to Chino State Prison. Tucker visited DeSmyther after she completed
a visitation request form. She did not
obtain approval from the warden at Wasco to visit DeSmyther, as required under the
Department’s inmate-staff relations policy.
Tucker testified she was not
aware of that requirement.
In January 2010, before DeSmyther
was released from Chino State Prison, Tucker sent a memo to the warden at
Wasco, describing her relationship with DeSmyther. She informed the warden that DeSmyther would
be staying with her “until other living arrangements can be made.â€
e. Investigation,
Dismissal
Tucker was given notice that she
would be dismissed from her position following an investigation into
allegations that she engaged in an over familiar, romantic relationship with
DeSmyther, provided false statements to her supervisor regarding the nature of
her relationship with DeSmyther, and maintained a clandestine relationship with
DeSmyther while he was an inmate at Wasco.
Tucker invoked her right to appeal her dismissal to the Board.
2.
The ALJ’s Findings of Fact and Conclusions of Law
Following the administrative
proceedings, the ALJ issued a proposed decision to sustain Tucker’s dismissal. The ALJ concluded that Tucker’s acts of
corresponding with DeSmyther, sending him packages while he was at Wasco, and
having personal contact with him on August 7, 2009,
the date his name appeared for a second time on the TABE test list, constituted
inexcusable neglect of duty. (Gov. Code,
§ 19572, subd. (d).) Additionally, the
ALJ concluded that Tucker was dishonest in her statements, both verbal and
written, surrounding her relationship with DeSmyther. (Gov. Code, § 19572, subd. (f).) Tucker’s conduct also constituted other
failure of good behavior on or off duty causing discredit to her employer. (Gov. Code, § 19572, subd. (t).)
In making factual findings, the ALJ recounted
the conflicting evidence concerning Tucker’s mistaken belief that she had
obtained permission to correspond with DeSmyther. The ALJ concluded Tucker’s testimony that she
received permission from Koop to correspond with DeSmyther lacked credibility
because her co-worker, who received the same training on inmate-staff relations,
knew that only the warden could authorize communication between staff and
inmates. The ALJ also noted that Tucker’s
explanation for the use of post office boxes and different surnames was
“disingenuous and her testimony that she believed she was permitted to
correspond with DeSmyther [was] not credited.â€
The ALJ concluded Tucker’s dismissal
was just and proper.
3.
The Board’s Decision
The Board adopted the ALJ’s factual
findings and legal conclusions in their entirety, and the ALJ’s proposed
decision became the decision of the Board.
Thereafter, the Board denied Tucker’s petition for rehearing.
4.
The Petition for Writ of Mandate
Tucker brought the instant petition
for a writ of administrative mandamus.
(Code Civ. Proc., § 1094.5.)
After taking the matter under submission, the trial court’s order
granting the petition reflects a ruling on a different case. (See fn. 2, ante.) The Department filed
a timely appeal from the judgment granting the petition and awarding costs to
Tucker.
DISCUSSION
1.
The Law Governing Discipline and the Standard of
Review
The Board enforces civil service
statutes and reviews disciplinary actions.
(California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584 (Youth Authority); see Gov. Code, § 19578.) Because the Board is created by, and derives
its adjudicatory powers from, the California Constitution (Cal. Const., art.
VII, §§ 2, 3), it acts much as a trial court in reviewing disciplinary
actions, making factual findings and exercising discretion on matters within
its jurisdiction. (Youth Authority, at p. 584.)
On appeal, we give no deference to
the trial court’s judgment.
name="_ftnref3" title="">[3] (Davis
v. Civil Service Com. (1997) 55 Cal.App.4th 677, 686.) Our scope of review is identical to that of
the trial court (Youth Authority,
governed by Code of Civil Procedure section 1094.5, subdivision (c). “Decisions of the State Personnel Board, an
agency of constitutional authority [citation], are reviewed only to determine
whether substantial evidence supports the determination, even when vested
rights are involved.†(
Administration (1991) 52 Cal.3d 1102, 1125-1126.)
“ ‘Substantial evidence’ is
relevant evidence that a reasonable mind might accept as adequate to support a
conclusion.†(Youth Authority, supra,
104 Cal.App.4th at pp. 584-585.) The
Board’s findings “ ‘come before us “with a strong presumption as to their
correctness and regularity.†’ â€
(Id. at p. 584.) We do not reweigh the evidence, nor do we
substitute our judgment if the Board’s decision is a reasonable one. (Ibid.) In Board proceedings, when determining
whether substantial evidence exists, we consider all the evidence presented,
including that which fairly detracts from the evidence supporting the Board’s
decision. (Id. at pp. 585-586.)
We do not interfere with the penalty
imposed by the Board to fix appropriate disciplinary action unless it has
abused its discretion. (
It is under the foregoing principles
that we must consider Tucker’s claims that: (1) the Board’s decision is not supported
by substantial evidence because she did not have notice that her conduct was
prohibited, and thus she was not dishonest or neglectful of any duties when she
initially described her relationship, wrote to DeSmyther, or visited him while
he was incarcerated at Chino State Prison; and (2) the Board’s decision to
dismiss her is an abuse of discretion because the Board ignored its
precedential decisions in which it reduced the penalty or applied progressive
discipline.
2. The Board’s
Decision is Supported by Substantial Evidence
Tucker contends the Board’s decision
lacks substantial evidence that she had notice she could not correspond with DeSmyther. In support of her argument, Tucker cites to
her testimony that Koop told her not to contact DeSmyther, but he did not
specifically prohibit her from writing letters to DeSmyther. She also points out that neither the warden
nor the warden’s agents told her she had to obtain permission to write letters
to DeSmyther.
Taking into account Tucker’s cited
evidence, the record contains substantial evidence that Tucker had notice the
Department’s policy on inmate-staff relations prohibited any contact with inmates.
prohibitions against contacting inmates without permission. Lawrence, Tucker’s co-worker and friend, received
the same training and knew Tucker could not write letters to DeSmyther without
the warden’s permission. The record does
not reveal that Lawrence had any incentive to fabricate damaging testimony. (See Flowers
v. State Personnel Bd. (1985) 174 Cal.App.3d 753, 759 [“ ‘The trier of
fact’s determination will be interfered with on appeal only when it appears
that the witness’ testimony is inherently so improbable as to be unworthy of
belief’ â€].) Tucker’s belief that once
she filled out the notification form she could correspond with DeSmyther was
not a reasonable one given her inmate-staff relations training, and Koop’s instruction
not to have any contact with DeSmyther.
The notification form does not grant employees any rights to contact or
correspond with inmates, and the notification form clearly states the personal
information provided “shall only be utilized for the purpose of notifying all pertinent
officials of any committed relatives and/or friends.†Based upon the entire record, Tucker had
notice not to correspond with DeSmyther.
ALJ’s findings and, by extension, the Board’s decision.
Tucker next contends the evidence
does not support a finding that she was dishonest when she initially described
DeSmyther as a “personal friend†in her notification form. In her June 2, 2009
letter to DeSmyther, written before Tucker filled out the notification form,
she closes with, “I love you!†Tucker
also used her friend’s post office box, and later obtained a post office box
using DeSmyther’s surname to correspond with him. The ALJ did not believe Tucker’s explanation
as to why she failed to disclose the true nature of her relationship with
DeSmyther, or her explanation as to why she did not use her surname in her
correspondence. The ALJ’s credibility determination and
finding is supported by substantial evidence.
3. Dismissal from
Employment Was Not an Abuse of Discretion
Tucker contends her dismissal was
too harsh a penalty, and the Board should have followed its precedent to reduce
the penalty or apply progressive discipline.
The propriety of a penalty imposed
by an administrative agency is a matter resting in the sound discretion of the
agency, and its decision will not be disturbed unless there has been an abuse
of discretion. (Blake v. State Personnel Board (1972) 25 Cal.App.3d 541, 553; see
also Davis v. Civil Service Com., supra,
55 Cal.App.4th at pp. 687-688.) “In
determining whether the misconduct warranted dismissal, consideration should be
given to the circumstances surrounding the misbehavior, the degree to which it
affected the public service and the likelihood of its recurrence.†(Blake
v. State Personnel Board, supra,
at pp. 553-554.) “The fact that
reasonable minds may differ as to the propriety of the penalty imposed will
fortify the conclusion that the administrative body acted within the area of
its discretion. [Citation.]†(Id.
at p. 553.)
The Board concluded dismissal was
appropriate for Tucker’s conduct in failing to disclose the true nature of her
relationship with DeSmyther, corresponding with him after being told not to
have any contact with him while he was at Wasco, using a friend’s post office
box, using a different surname to correspond with him, and deliberately
deceiving her supervisor. The Board was
concerned that Tucker not only violated the Department’s inmate-staff relations
policy, but she also put herself and other employees at risk by maintaining a
romantic relationship with an inmate.
The Board thus properly focused on the potential harm to the public
service posed by Tucker’s misconduct.
While Tucker contends that others
received less severe penalties for similar misconduct, or alternatively
received progressive discipline, this contention does not show an abuse of
discretion in the selected penalty in her case.
In the penalty-reduction cases Tucker cites, the employees’ conduct was
not comparable to Tucker’s misconduct in which she put herself and other
employees at risk by maintaining a romantic relationship with an inmate. (See, e.g., In re Rey (1999) State Personnel
Bd. Precedential Dec. No. 99-10, pp. 14-18 [single incident of off-duty misconduct];
In re Fan (1993) State Personnel Bd.
Precedential Dec. No. 93-12, pp. 7-11 [cashiering errors].)
Tucker also relies on
Precedential Dec. No. 92-07, which she argues is similar to her case. Not so.
In Nelson, the Board did not agree
that dismissal of a San Quentin gunrail officer was the appropriate penalty.
The gunrail officer failed to stay alert on the job, and the Board found that
the harm to the public service was serious, as other officers and inmates rely
on the gunrail officer for their personal safety and essential security. (Id.
at p. 6) The Board, however, reduced the
penalty and applied progressive discipline to provide the employee with an
opportunity to improve her work performance.
The Board acknowledged progressive discipline is “well-suited to
treating problems of poor work performance, [but] it should be noted that
serious willful misconduct on the part of an employee may well warrant
dismissal in the first instance.†(
poor work performance for which progressive discipline would have been
appropriate. The Board did not abuse its
discretion in sustaining Tucker’s dismissal.
DISPOSITION
The judgment granting the petition
is reversed with directions to enter judgment denying the petition and
reinstating the State Personnel Board’s decision to dismiss Tucker. Appellant shall recover costs on appeal.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
KLEIN, P. J.
KITCHING, J.
Board filed a respondent’s brief in this appeal, stating it will comply with
the final disposition of this matter.
name="_ftn2" title="">
waived objections to the late-filed opposition.
Real party in interest is not involved in the petition which seeks only
to set aside the thirty percent penalty given to petitioner. Petitioner is liable to repay benefits that
were overpaid. [¶] The petition for writ of mandate is
granted. There is sufficient evidence
showing ‘willful’ (knowing) failure to report a material fact.â€
