Personnel Bd.
Filed 7/25/13 Cal. Science Center v. State Personnel Bd. CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
ONE
CALIFORNIA
SCIENCE CENTER,
Plaintiff and Respondent,
v.
STATE PERSONNEL BOARD,
Defendant and Respondent;
RUDY ARELLANES,
Real Party in
Interest and Appellant.
B244387
(Los Angeles
County
Super. Ct.
No. BS136681)
APPEAL from
a judgment of the Superior Court
of
County, James C. Chalfant, Judge. Affirmed.
Kasey
Christopher Clark, Chief Counsel, and David De La Riva, Legal Counsel, for Real
Party in Interest and Appellant.
Joan A.
Marcoff, Chief Counsel, Will M. Yamada, Deputy Chief Counsel, Frolan A.
Aguiling, Assistant Chief Counsel, and Gail T. Onodera, Labor Relations
Counsel, for Plaintiff and Respondent.
No
appearance for Defendant and Respondent.
——————————
>
Rudy
Arellanes appeals the trial court’s grant of a petition for writ of mandate by
the California Science
Center (Center) seeking to reverse
the decision of the State Personnel Board (SPB) overturning Arellanes’s
termination. The trial court also denied
Arellanes’s petition for writ of mandate
seeking reinstatement. We conclude that
the administrative law judge (ALJ) and the SPB erred in excluding evidence of
Arellanes’s termination by the Los Angeles Sheriff’s Department (LASD), and we
affirm.
BACKGROUND
Arellanes submitted three
examination and/or employment applications to the Center’s Department of Public
Safety (department). On December 28, 2006, Arellanes applied
for the position of department chief. On
March 20, 2007, he applied
for the position of museum security officer, a position for which he was hired
on April 24, 2007. On July
14, 2007, Arellanes applied for the position of supervising museum
security officer, and he was promoted to that position on September 10, 2007.
The first
two applications asked in question 5:
“Have you ever been dismissed or terminated from any position for
performance or other disciplinary reasons? . . . [¶] If ‘Yes’ to Question #5, give details in item
#12, and refer to the instructions for further information.†The third application used slightly different
language in question 5: “Have you ever
been fired, dismissed, terminated, or had an employment contract terminated
from any position for performance or for disciplinary
reasons? . . . If ‘Yes’ to Question #5, give details in
Item #12.†Arellanes answered “YES†to
question 5 on each application, and provided the following explanation in item
12 in his applications on December 28, 2006 and March 20, 2007: “03-95:
K-Mart—Violated store policy for not having two officers when making
arrest. 09-90: L.A. Co. Sheriff—Terminated for violating
Department policy for failing to report contacts with my informant of
non-workable information.†His
application on July 14, 2007 stated in item 12: “09-90:
L.A. Co. Sheriff—Terminated for violating Department policy for failing
to report contacts with my informant of non-workable information,†omitting his
termination from Kmart.
name="_ftnref1" title="">[1]
The
instructions stated: “All questions must
be answered completely and accurately, except as noted. You may be disqualified for any false or
misleading statements or for omitting information.†The instructions also stated: “Explain any ‘Yes’ answers [to question 5] in
Item 12. Include the facts in brief, the
grounds for any action taken against you, and the circumstances under which you
left the position.†Arellanes signed
each application under the following certification: “I certify under penalty of perjury that the
information I have entered on this application is true and complete to the best
of my knowledge. I further understand that
any false, incomplete, or incorrect statements may result in my disqualification
from the examination process or dismissal from employment with the state of
California. I authorize the employers
and educational institutions identified on this application to release any
information they may have concerning my employment or education to the State of
California.†(Italics omitted.)
On May 4,
2009, the Center terminated Arellanes from his position as a supervising museum
security officer, effective May 12, 2009.
The notice of adverse action informed Arellanes that he was terminated
pursuant to Government Code section 19572, which lists in subdivisions (a), (f)
and (t) as cause for discipline of an employee:
“Fraud in securing appointment.
[¶] . . . Dishonesty.
[¶] . . . [and] [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.†The notice stated that in January 2009,
department Assistant Chief Henry Fimbres had been alerted to a published
appellate decision by this court, Arellanes
v. Civil Service Com. (1995) 41 Cal.App.4th 1208. After discussing the appellate opinion with
colleagues, staff, and legal counsel, department Chief Scott Parker requested
an independent investigation by the
California Highway Patrol (CHP), which assigned Sergeant Doug Young to conduct
the investigation.
Sergeant
Young’s CHP Administrative Investigation report determined that Arellanes had
been terminated from the LASD for violating four LASD policies, by: “‘maintain[ing] a personal association with
persons . . . under criminal investigation or
indictment . . . where such association would be detrimental
to the image of the Department’â€; “act[ing] in . . . a
manner . . . ‘discredit[ing] . . . himself
or the Departmentâ€; failing to “‘report to
his . . . supervisor . . . information . . . that
might indicate the need for Department actions’â€; and failing to
“‘maintain . . . competency to properly perform
[his . . . ] duties.’â€
The reason Arellanes had provided on his employment application “was
neither truthful nor the same as the reasons for the actual termination,
as detailed and outlined in the 1991 Los Angeles County Civil Service
Commission decision and 199[5] appellate court decision sustaining [his]
termination.†The department would not
have hired Arellanes had he truthfully explained his termination from LASD, and
contrary to the certification on his applications, the information Arellanes
provided “was not true, correct, or complete because [he] misrepresented the
actual reasons for [his] termination . . . . [and] failed to indicate [his]
termination from Kmart†on the last application. “[D]ismissal from employment is, therefore,
the appropriate and well-noticed consequence.â€
Arellanes
appealed to the SPB. An ALJ stated in a
July 28, 2011 opinion that at the hearing, Arellanes moved to suppress evidence
because “Sergeant Young obtained Appellant’s personnel records from the County
Records Center without Appellant’s consent or by using proper discovery
methods.†(Fn. omitted.) The ALJ concluded that the records were
personnel records within the meaning of Penal Code sections 832.7 and 832.8,
and the Center had failed to file a motion for discovery of the records
pursuant to Evidence Code section 1043, subdivision (a). Absent Arellanes’s express waiver, the ALJ
concluded that the records had been improperly obtained and, prior to the
hearing, suppressed all the documents that Sergeant Young obtained from the
county records center, any use of the information in interviewing Arellanes,
and any use of the information in the drafting of the notice of adverse action,
as “‘fruit of the poisonous tree.’†The
ALJ also found that the excluded evidence and portions of the record were “only
evidence of a very marginally probative type.â€
Even considering the excluded evidence, the ALJ concluded that Arellanes
“did not secure his appointment . . . by way of fraud or dishonesty and did not
engage in other failure of good behavior.â€
Arellanes disclosed his prior terminations, which gave the Center
sufficient notice “to trigger [the Center’s] duty to engage in a thorough
pre-hire investigation.†The ALJ revoked
the dismissal. On August 9, 2011, the
SPB adopted the ALJ’s findings of fact, determination of issues, and proposed
decision.
On December
28, 2011, Arellanes filed a petition for a writ of mandate in superior court
under Code of Civil Procedure section 1085, seeking to enforce the SPB
decision. On April 3, 2012, the Center
filed a petition for a writ of administrative mandate under Code of Civil
Procedure section 1094.5, seeking to overturn the SPB decision or remand the
case to the SPB for further proceedings.
The trial court consolidated the two petitions.
At a
hearing on July 10, 2012, the trial court defined the issue as “whether there
was a false statement in a series of employment applications
by . . . Arellanes.â€
After hearing argument, the trial court adopted its tentative decision
as its order, granted the Center’s writ petition, and denied Arellanes’s writ
petition.
The trial
court’s thorough 15-page order applied the substantial evidence standard of
review to the SPB decision, and reviewed the SPB’s legal conclusions de
novo. The court concluded that there was
no substantial evidence that Sergeant
Young obtained Arellanes’s personnel records from the LASD or from a Civil
Service Commission archive. Instead,
Sergeant Young obtained the records from public information in a Los Angeles
County records center.
name="_ftnref2" title="">[2] The trial court also concluded that because
no search occurred, the Fourth Amendment was not implicated and the
exclusionary rule did not apply.
Therefore, the records should not have been excluded.
The
improperly excluded evidence showed that Arellanes was dishonest in his
applications and his answers were incomplete, despite the instructions and his
signature under penalty of perjury. Any
negligence by the department in not investigating Arellanes’s discharge from
the LASD did not make Arellanes’s false statements immaterial. The records also showed fraud and failure of
good behavior causing discredit to the department, with the latter based on
Arellanes’s 2007 application during his employment by the department.
In a
judgment filed August 14, 2012, the trial court issued a peremptory writ of
mandate remanding the proceedings to SPB and commanding SPB to set aside its
August 9, 2011 reinstatement of Arellanes, and denied Arellanes’s
petition. Arellanes filed this timely
appeal.
BACKGROUND
“[T]he
trial court appropriately applied substantial evidence review to examine the
entire administrative record, to determine whether the agency’s findings were
supported by substantial evidence.
[Citations.] [¶] On review, our task is similar. Here, . . . [citation],
‘we are not free to indulge in an independent reconstruction of the events . .
. .’ We examine all relevant evidence in
the administrative record and view that evidence in the light most favorable to
the judgment, resolving all conflicts in the evidence and drawing all
inferences in support of the judgment.
[Citations.]†(
California (2013) 216 Cal.App.4th 1474, 1489–1490.) “The burden is on [the department to show
that] there was an abuse of discretion through the issuance of a
decision . . . unsupported by substantial evidence.†(Id.
at p. 1490.) We review questions of law,
such as the exclusion of evidence, independently of the trial court and of the
SPB. (Department of Transportation v. State Personnel Bd. (2009) 178
Cal.App.4th 568, 575 (Department of
Transportation).)
I. The exclusionary rule does not apply.
Our
independent review leads us to agree with the trial court that the SPB erred in
applying the exclusionary rule to the evidence regarding Arellanes’s
termination from LASD. “The courts have
seldom applied the exclusionary rule in administrative cases, even ones in
which severe penalties are imposed based on the admission of illegally seized
evidence.†(Department of Transportation, supra,
178 Cal.App.4th at p. 576.) In balancing
whether the social benefit of excluding the evidence outweighs the likely
costs, courts consider whether the evidence was obtained under circumstances
which shock the conscience, or which constitute egregious police behavior so as
to offend the collective conscience of the people. (Id. at
pp. 579–578.)
In
Cal.App.3d 711, the agency conducted an unconstitutional search of Dyson’s
home, and the trial court answered yes to the “narrow question . . . whether
the law requires the exclusion from an administrative disciplinary proceeding
of evidence unconstitutionally seized from the employee’s home by an agency
employee who is a peace officer searching for evidence of theft of agency
property.†(Id. at p. 719.) The
invalidity of the seizure, and the propriety of suppression, had been
determined in a criminal proceeding (the criminal charges were later
dismissed), so that the agency was collaterally estopped from denying the
invalidity of the search. (
In this
case there is no evidence that the department, through the CHP, conducted an
unconstitutional search. Sergeant Young
testified at the administrative hearing that he was given the Court of Appeal
decision, initially unpublished, copied from an online database. He also received a Lexis printout of the
published decision that showed the decision had later been published. The next day, he made a phone call to the
LASD and asked for information regarding Arellanes’s termination. When LASD informed him that they would not
release the information without a waiver from Arellanes, Sergeant Young ceased
his efforts to get the records from LASD.
On February 13, 2009, Sergeant Young then went to the Court of Appeal
and obtained a certified copy of the decision.
Armed with the appellate decision, Sergeant Young then went to what he
called “the LA County Records Center,†where, using the superior court case
number, he asked for “records that were made public†because they were made
available to the courts, and he was led to a room with other members of the
public. There he obtained several rolls
of microfilm, containing “several cases from different people.†Finding Arellanes’s case on the microfilm,
Sergeant Young reviewed the record and printed from the exhibits documents he
believed were relevant to the investigation.
The printed records were presented to the ALJ.
Whether the
exclusionary rule barred the admission of the evidence “depends, first, on the
existence of a search or seizure that violates the protections of the Fourth
Amendment.†(Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1012.)
“search†or “seizure.†Sergeant Young
requested and received public records.
No evidence supported the application of the exclusionary rule.
Further,
the facts do not implicate Penal Code sections 832.7 and 832.8. These sections apply to administrative
proceedings as well as to criminal and civil proceedings. (Copley
Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1284.) Section 832.7, subdivision (a), provides that
“[p]eace officer . . . personnel
records . . . are confidential and shall not be disclosed
in any criminal or civil proceeding
except by discovery pursuant to sections 1043 and 1046 of the Evidence
Code.†Section 832.8 defines “‘personnel
records’†as “any file maintained under that individual’s name by his or her
employing agency,†including, under subdivision (d), records related to employee discipline. Sergeant Young did not obtain a file
maintained under Arellanes’s name by the agency which employed Arellanes. The records were not obtained from the LASD,
and there was no evidence to support the SPB’s conclusion that Sergeant Young
went to an archive of the Civil Service Commission. The public records Sergeant Young accessed by
providing a superior court case number from a published appellate decision are
not personnel records maintained by an individual’s employer and thereby
protected from disclosure.
II. The SPB’s conclusion that Arellanes was
not dishonest is not supported by substantial evidence.
A. The trial court did not improperly rely
on the appellate opinion.
Arellanes argues that the trial
court improperly relied on the appellate opinion’s statement of facts. This is contrary to the record. In its opinion, the trial court explicitly
stated “the facts set forth in an appellate opinion are not admissible in a civil
proceeding to prove their truth,†and “the facts are supported by the attached
investigative reports and undercover tape.â€
At the hearing, the court explained:
“I want to be clear, although I cite to the Court of Appeal decision in
41 Cal.App.4th 1208] for the facts,
that is only for convenience . . . . Generally, appellate opinions are not
admissible in a civil proceeding. . . . [T]he
underlying documents I believe that were excluded contain the same information,
and I simply cite to the Court of Appeal decision because it is a convenient
summary of the reasons why . . . Arellanes was fired.â€
Arellanes was dishonest.
The documents obtained by
Sergeant Young and excluded from the administrative proceedings were attached
as exhibit D to the Center’s writ petition.
The documents included a civil service commission recommended decision
dated June 20, 1991, reflecting that Arellanes’s termination from his job as a
deputy sheriff had resulted from his violation of four violations of provisions
of the LASD Manual of Policy and Procedures.
The
decision made findings of fact as follows.
During his full-time employment with LASD, Arellanes had received a
prior five-day suspension for “prohibited association.†He received five telephone calls in a
five-week period from a criminal, Robert Arrand, and did not discourage him
from calling or deny knowledge of other criminals mentioned. Arellanes met with Arrand on May 10, 1989,
and Arrand told him he had been arrested.
“Arrand requested information from [Arellanes] about another alleged
criminal, a potential hit, and asked if he could pay [Arellanes] on the same
basis as convicted criminal ‘Jay’ for additional information.†Arellanes did not report this contact to his
supervisors. This behavior violated
LASD’s Manual of Policies and Procedures regarding General Behavior, Reporting
Information, Incompetence, and Prohibited Association. The hearing officer concluded that Arellanes
was properly discharged and recommended that the discharge be sustained. The Civil Service Commission adopted the
findings and recommendation of the hearing officer as its final decision.
Also in the
excluded materials was a transcript of a February 19, 2009 interview of
Arellanes by Sergeant Young, in which Arellanes stated that his LASD
termination “was for not reporting information of . . . specifically contacts
that [he] had with [his] employer,†after “being investigated by internal
affairs for [his] contacts with [his] informant a year ago that [he] did not
report to them.†Confronted with the
four department rule violations, Arellanes stated: “Oh, yeah, yeah. . . . They added some other stuff . . . .†Sergeant Young read to Arellanes portions of the
appellate court decision, and Arellanes responded “as them, having evidence, it
was never produced in court.†Asked why
he did not list the four violations, Arellanes responded: “I just didn’t. It wasn’t that I was trying to be evasive or,
or dishonest. I figured, could talk to
the [INAUDIBLE] if they wanted to, uh, to investigate more, they have, they
could’ve done that.†“I just tried to
summarize it.†Arellanes later admitted
meeting once with “Aaron,†who “said he had information for
me . . . [a]nd when he didn’t give me . . . anything, uh,
we said our goodbyes,†and who had also called Arellanes at work. Arellanes stated: “Aaron was not an informant,†and Arellanes
“never did anything for him.â€
The
evidence regarding Arellanes’s discharge from LASD uncontrovertibly
demonstrates that Arellanes was dishonest when he wrote on his applications for
employment as a security officer that he had been “terminated for violating
Department policy for failing to report contacts with [his] informant of non-workable
information.†Arellanes met with a
criminal who Arellanes admitted was not
his informant and who offered to pay Arellanes for information. Arellanes was terminated for violating LASD
policies regarding general behavior, reporting information, incompetence, and
prohibited association. There is no
substantial evidence that Arellanes was telling the truth on his
applications. This was in violation of
Government Code section 19572, subdivision (f).
Further, it
is immaterial whether the department was diligent or thoroughly investigated
the reasons for Arellanes’s termination by LASD before hiring Arellanes. Arellanes was dishonest when he completed the
applications and signed the certification under penalty of perjury, regardless
of what the department did or did not investigate after he applied.
Substantial
evidence does not support the SPB decision revoking Arellanes’s termination.
DISPOSITION
The judgment is affirmed. Costs are awarded to respondent California
Science Center.
NOT TO BE PUBLISHED.
JOHNSON,
J.
We concur:
ROTHSCHILD,
Acting P. J.
CHANEY,
J.
name="_ftn1" title="">[1]
Each application included an “EMPLOYMENT HISTORY†section, but Arellanes did
not include the Kmart job in any of the three applications.
name="_ftn2" title="">[2]
The trial court stated in a footnote:
“S[ergeant] Young’s declaration and the Department’s request for
judicial notice, neither of which the court has considered, show that he in
fact went to the Court of Appeals’ records office.â€
