Neal v. The Civil Service Commission of Kern County

Filed 11/13/09 Neal v. The Civil Service Commission of Kern County 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Kern County. Linda S. Etienne, Commissioner.

Seth N. ODell, Jamie R. Long and Swanson ODell for Plaintiff and Appellant.

Theresa A. Goldner, County Counsel and Devin W. Brown, Deputy, for Defendant and Respondent.

No appearance for Real Party in Interest.

-ooOoo-

INTRODUCTION

Moses Neal, a Captain with the Kern County Fire Department (KCFD or Department), appeals from the denial of his petition for writ of mandate. He contends that there is a lack of substantial evidence to support the superior courts findings that he knew or should have known the correct departmental procedures for responding to two infectious materials exposure and failed to follow them. He also contends that the Kern County Civil Service Commission abused its discretion in reducing his compensation based upon these incidents. For the following reasons, we affirm.

STATEMENT OF THE CASE

On September 2, 2006, appellant was served with a Notice of Proposed Disciplinary Action in which he was informed that he would be reduced in rank from Fire Captain, Step E to Engineer, Step E. The proposed disciplinary action was based upon alleged violations of Civil Services Rules 1705.01 (Absence without leave), 1705.06 (Incompetency or inefficiency), 1705.09 (Neglect of Duty), and 1705.11 (Violation of lawful or reasonable order).

The notice alleged that appellant committed these violations when he failed to (1) follow the guidelines set forth in the KCFD EMS Policy Manual during two exposure incidents, (2) process 26 vehicle accident reports, (3) process fuel receipts, (4) complete three assigned goals, and (5) complete a comprehensive exchange of position with his replacement during which he failed to report for one day.

On November 7, 2006, appellant and his attorney met with Chiefs Thompson, Klinoff, Dunn, and Chief Deputy County Counsel Margo Raison to discuss the proposed disciplinary action. After the meeting, appellant was informed that he was reduced in rank from Captain, Step E to Captain, Step A. He also was prohibited from working overtime or holiday time, except during emergencies or mandatory callback, until May 17, 2007.

On December 19, 2006, appellant appealed this disciplinary action to the Kern County Civil Service Commission (CSC). The Department then filed a Bill of Particulars in support of the disciplinary action.

On March 13, 14, 15 and 19, 2007, the CSC heard testimony from most of the critical witnesses involved in these incidents, including appellant. Both the Department and appellant presented documentary evidence. The parties agreed that the most serious allegation was that appellant neglected his duty as a safety officer when he failed to contact the on-call Kern County Health Officer (Health Officer) during two incidents where a firefighter was exposed to blood, a potentially infectious material. Appellant contended that he did substantially all of what he was required to do and he went beyond what he was required to do to ensure the safety of these two individuals.

On March 20, 2007, after reviewing the evidence, the CSC affirmed the Departments disciplinary action and ordered appellants compensation reduced. The CSC determined that appellant was guilty of violating Civil Service Rules 1705.09 (Neglect of Duty) and 1705.06 (Incompetency or inefficiency), but found that appellant was not guilty of violating Civil Service Rules 1705.01 (Absence without leave) and 1705.11 (Violation of lawful or reasonable order).

The CSC found that appellants testimony confirmed that he was unfamiliar with the procedures involved in handling infectious materials exposures when the potential exposure occurred on April 22, 2006. [Appellant] failed to fully complete the process in a timely fashion and did not personally contact the Health Officer. The CSC also determined that, after this incident, Battalion Chiefs Richard Cross and Darryl Whisnand reviewed the relevant procedures with appellant, and that both believed appellant clearly understood what he should do, and that he would follow proper procedures in the future. The CSC further determined that appellants testimony about the June 30, 2006 exposure incident confirm that, despite the review with the Battalion Chiefs in April, he still did not understand what to do in these situations. [Appellant] once again failed to contact the Health Officer in the exposure of June 30, 2006, because, according to his testimony, he had begun a Royce Log entry at the hospital where the patient was seen. [Appellant] testified that in starting the Royce Log he had done what was required

Appellant then filed a petition for writ of mandate pursuant to Government Code section 1094.5 in the superior court. A hearing was held on September 17, 2008. At that hearing, the parties waived any and all assertions of confidentiality with respect to the proceedings. On October 17, 2008, the superior court ruled against appellant and denied the petition. On November 3, 2008, the superior court signed an order denying the petition.

In the order, the court found that appellant knew or should have known of the proper procedures for responding to the infectious materials exposure incidents, and that appellant did not follow them and placed lives in jeopardy. According to the court, with respect to the two exposure incidents, petitioner asserts that he pursued an alternate and equally acceptable procedure in one instance, and in the other instance determined that the exposure posed no real threat to the employee because the employee exposed had no open wounds at the time, nor did the blood enter through some other means. The trial court, however, found that appellant clearly knew or should have known of the applicable exposure procedures and should have followed them. The trial court found that the alternative procedure implemented by petitioner did not offer the same level of assurance of timely notice and prompt medical response that the procedure outlined in the exposure procedures policy did, and therefore failed to offer the same level of protection to the individual exposed. Moreover, [a]n on-site assessment whether there has been an actual exposure or a means by which the possibly contaminated blood could enter the victims system is neither required by the policy, nor consistent with the purpose of the policy. According to the superior court, [a]dherence to the established procedure is, quite literally, a life or death proposition. Petitioner does not dispute that he did not follow that procedure in either instance. Thus, [p]etitioner has failed in his burden of proving the findings are not supported by the evidence.

The court also determined that the CSC acted well within its discretion to impose the pay reduction against appellant.

On December 16, 2008, appellant timely filed an appeal.

FACTS

Appellant has worked for the Department since November 16, 1991, and was a captain at the time he was assigned to the training division of the Department on April 24, 2005. The training division is tasked with providing accurate and timely training, developing the safety programs and procedures, and acting as role models. Those assigned to the training division, including appellant, also are charged with the weekly rotating duty as the Departments safety officer. A safety officer carries a pager, and is required to respond to emergencies or to exposure reports after hours. Safety officers can communicate with other members of the training division by cellular telephones.

On April 22, 2006, appellant was the safety officer when he was called on to respond to an infectious materials exposure incident. On that day, Firefighter Zachary Wells was exposed to infectious materials through the prick of a needle contaminated with a patients blood. Firefighter Wells was in the back of an ambulance that was carrying a critical patient to a hospital. Firefighter Wells was assisting the paramedic with changing out the needle that had been used to draw blood from the patient into a syringe when the ambulance hit a speed bump and Firefighter Wells stuck the needle in his right index finger. He called his captain, Captain Rice, and also the on-call safety officer, who was appellant. Appellant informed Firefighter Wells about the process that needed to be followed and the paperwork that needed to be filled out.

Since 1992, the Department has put in place defined procedures for the handling of infectious materials exposures, called the Exposure Procedures Policy. Battalion chiefs and captains have a responsibility to know the procedures, but every employee is required to be familiar with these procedures. These procedures call for the safety officer to talk directly to the person that is exposed and to start an infectious disease log. After speaking with the exposed subject and determining that an actual or potential exposure has occurred, the safety officer must contact the on-call health officer with the available information.

According to Fire Chief Thompson, who helped in the writing of the exposure procedures policy, he wanted the first contact from the safety officer to be with the on-call health officer because the health officers are specifically trained and experienced and the most readily available persons with th[e] training and expertise to deal with the potential exposure, provide advice on treatment, if any, to our exposed employee and they have specific powers to deal with the hospitals and to require source patient testing under specific circumstances. Contacting the health officer quickly allows for certain prophylactic tests to be performed, such as tests for HIV, Hepatitis B and Hepatitis C. These tests may prevent the exposed individual from becoming infected or allow for treatment and cure. During this particular incident, Firefighter Wells was exposed to blood containing the Hepatitis-B virus. Luckily, he later found out that he did not contract the disease.

In this case, appellant did not contact the health officer as required by the policy. Appellant testified that, after he was paged that there was an exposure incident, he called the treating physician of the critical patient who was the source of the potentially infectious material. He also spoke with Firefighter Wells and Captain Rice. Appellant also called Battalion Chief Daryl Whisnand to inform Chief Whisnand about the steps that he had taken. Chief Whisnand testified that, during this conversation, he told appellant to contact the health officer. Appellant testified that he knew that contacting the health officer was part of the response process, but he did not realize until that moment that he did not know the number for the on-call health officer. Because he did not know the number for the on-call health officer, appellant testified that he called the health department and left a voice message about the incident for the Director of Public Health, Dr. Babatunde Jinadu. Dr. Jinadu, however, is not listed as one of the on-call health officers. Moreover, Dr. Boyce Dulan, Deputy Health Officer and Director of Disease Control for the health department, testified that no one at the health department ever recalled receiving or responding to appellants alleged message. Appellant also testified that he called the Kern Medical Center (KMC) and asked the KMC charge nurse to page the health officer.

Appellant did not get in contact with a health officer about this incident until April 25, 2006, when he learned from Battalion Chief Richard Cross that he could call Emergency Communication Center (ECC), also known as dispatch, to page the on-call health officer. Dr. Dulan testified that the four-day delay was absolutely unacceptable.

On April 25, 2006, appellant had met with Chief Whisnand and his direct supervisor, Chief Cross, to discuss the incident involving Firefighter Wells. Chief Whisnand wanted to make sure that all the proper testing had been done. He also wanted to make sure that appellant had the process down. Chief Whisnand left the meeting believing that [appellant] understood the proper procedures and he would know what to do in the future.

Chief Cross testified that after Chief Whisnand left, he sat down with appellant and they went through a very detailed discussion of what should have happened and the correct procedure. Chief Cross testified that he left that meeting feeling that appellant clearly understood what he was supposed to do as the safety officer.

During this meeting, Chief Cross also mentioned other reporting mechanisms that are used to report infectious exposures, such as the Royce Log procedure. Appellant testified that Chief Cross told him that [y]ou dont necessarily want to use the health officer, call the health officer for minor or minute exposures. Instead, you could use the Royce Log procedure. Chief Cross, however, denied that he told appellant that the Royce Log could be used by the safety officer to report exposures in lieu of contacting the health officer. To the contrary, Battalion Chief Cross told appellant about the unreliability of the Royce Log. Use of the Royce Log is specifically not mentioned in the Departments Exposure Procedures Policy. Chief Cross only mentioned the Royce Log because sometimes the Department would not find out that a patient had a communicable disease except by checking with the hospitals Royce Log. According to Chief Thompson, when he and other members of the Department were formulating the Exposure Procedures Policy, they learned of the Royce Log but determined that the Royce Log process was insufficient to ensure that their employees would be followed up and potentially treated carefully enough to prevent any illness in the event that they truly were exposed.

Between April 22, 2006, and June 30, 2006, appellant reviewed the procedures for responding to infectious materials exposure.

On June 30, 2006, appellant was again faced with responding to a potentially infectious materials exposure. On this date, Firefighter Nicholas Swihart was on his way to his station and happened upon a serious vehicle accident. He responded to the accident by assisting a combative and wounded male victim out of the vehicle. Firefighter Swihart testified that: In the course of my giving him help and assistance, he pretty much assaulted me, spit on me, pinched my arms, got blood all over me. Firefighter Swihart noticed that the victim did break his skin, but no blood was drawn. After Firefighter Swihart went to his station and decontaminated himself, he contacted his captain, who then called the on-call safety officer, who was appellant.

Appellant was paged about the exposure. He came to the station and spoke with Firefighter Swihart. Together, appellant and Firefighter Swihart used the Departments written procedures to determine what category of exposure existed. The incident was categorized as a minimal exposure and an Infectious Materials Exposure Report was completed by appellant and Firefighter Swihart.

Appellant did not contact a health officer about the incident. Instead, appellant testified that he determined that technically there was no exposure, but to be safe, he decided to report the incident by using the Royce Log process. Although appellant asserted that he used the Royce Log process, Dr. Dulan testified that during his investigation into both exposure incidents, he never found evidence of a Royce Log entry for either exposure.

During this time period, appellant had been approved to transfer out of the training division. Although his transfer was to take effect in May of 2006, he was asked and agreed to stay until September of 2006. At the time of his transfer from the training division, it was discovered that appellant had not completed some of his duties as a member of the safety division, including completing 26 vehicle accident reports. Instead, these vehicle accident reports were left for the new additions to the training division, Captain Mark Phillips and others, to complete.

Appellant also had specific assignments delineated in his annual employee performance review given to him on November 2, 2005. The first assignment was to complete a DMV Proposal and turn it into his supervisor. Although it was due by July 1, 2006, appellant did not turn it in until his pre-disciplinary hearing on November 7, 2006. He also was given the assignment of completing a Truck Assignment Manual. Appellant also did not turn this assignment in to Chief Cross until the same time as the DMV Proposal. Appellant testified that he initially believed that he did not have to finish these assignments because his time with the safety division was over with.

Fire Chief Thompson took these incidents into account, as well as negative performance marks on appellants past annual Employee Performance Reports, when he made the decision to reduce appellants pay. The original proposed level of discipline was for a demotion from Fire Captain to Fire Engineer. However, after considering all of the facts and appellants apologetic response and assertion that he had learned from his mistake, Fire Chief Thompson came to the determination that the pay reduction was more appropriate. He testified that he believed the disciplinary action was appropriate because of the magnitude of the errors and conditions and in not following through on the part of Captain Neal, plus there is an indication that there were similar circumstances addressed in prior situations where as captain, he was not doing everything that he should have done . At the hearing, Chief Thompson indicated that he should have stuck with the original proposed level of discipline because he felt that appellant had not learned his lesson based upon appellants testimony during the hearing.

DISCUSSION

I.

Standard of Review

The parties agree on the applicable standards of review. In reviewing whether the superior court erred in finding that appellant knew or should have known the correct departmental procedures for responding to infectious materials exposure and failed to follow them on April 22, 2006 and June 30, 2006, we review the record to determine whether substantial evidence supports the superior courts findings. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52 (Kazensky).) In reviewing the evidence, an appellate court must resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment. When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court. [Citation.] (Pasadena Unified Sch. Dist. v. Commission on Professional Competence (1977) 20 Cal. 3d 309, 314.) Evidence is substantial if any reasonable trier of fact could have considered it reasonable, credible and of solid value. (Kazensky, supra, 65 Cal.App.4th at p. 52, [citation].)

On the issue of whether the CSC abused its discretion in imposing a reduction in rank from Captain, Step E to Captain, Step A, we review the record de novo. (Kazensky, supra, 65 Cal.App.4that p. 53.) In determining whether an agency abused its discretion in assessing a particular penalty, a court will look to whether reasonable minds may differ as to the propriety of a penalty imposed. (Lake v. Civil Service Commission (1975) 47 Cal.App.3d 224, 228.) Judicial interference with the agencys assessment of a penalty will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency. (Ibid.)

II.

Superior Courts Findings

Appellant first contends that substantial evidence does not support the superior courts conclusion that he failed to follow the exposure procedures policy on two separate occasions.

According to appellant, with respect to the first incident on April 22, 2006, he substantially complied with the requirements because he contacted the health officer several days after the exposure. Appellant contends that the delay should not have formed a basis for imposing discipline because: (1) the policy does not state how a safety officer will contact the health officer and Chief Whisnand failed to inform appellant that he could use ECC to page the on-call health officer; (2) the source patient, not the health officer, dictates the prophylactic tests that are required; and 3) appellant requested, and the doctor performed, the hepatitis tests on the patient. Thus, according to appellant, the failure to immediately contact the health officer did not result in any harm to the employee or increase his risk of contracting a disease. Further, the failure to make immediate contact with the health officer was not due to negligence, inefficiency, or incompetence.

Appellant also argues that he substantially complied with the exposure procedures policy in the second incident of June 30, 2006. Appellant contends that he had the discretion under the policy to make an on-site determination that there was minimal or minor exposure, and that he properly relied upon the oral instructions of Chief Cross that he should not contact the health officer for minor or minute exposure and the use of the Royce Log was sufficient.

We disagree that there is a lack of substantial evidence to support the superior courts findings that appellant knew or should have known of the proper procedures to respond to infectious materials exposures and failed to follow them. The policy clearly requires that [o]nce the necessary information has been gathered, and the determination has been made that an exposure, or potential exposure, has occurred the Safety Officer shall proceed to notify the health officer. Thus, the policy clearly requires that the safety officer immediately contact the health officer once the necessary information is gathered and a determination is made that an exposure or potential exposure has occurred. Appellants own testimony, as well as the testimonies of Battalion Chief Cross and Fire Chief Thompson, show that the policy requires urgent contact with the health officer in order to allow for prophylactic tests, and if possible, treatment.

With respect to the April 22, 2006 incident, a delay of four days before contacting the health officer is, as Dr. Dulan testified, unacceptable because it is beyond the window of opportunity to treat or prevent certain communicable diseases such as HIV.

Appellant is correct that the exposure procedures policy does not provide telephone numbers for the on-call health officers. However, substantial evidence in the record, mainly from Battalion Chief Crosss testimony, supports the finding that appellant was or should have been aware that he could contact ECC or his fellow training division officers to inquire about how to contact the on-call health officer. The fact that Battalion Chief Whisnand, who was not in the training division, did not inform appellant that he could use ECC to contact the health officer is irrelevant since appellant had a duty, as a safety officer, to be fully informed about the proper procedures and how to implement them. If appellant was unsure about the proper response given that this was his first exposure incident, appellant should have contacted his fellow officers in the training division for help.

Finally, the fact that Firefighter Wells was not infected is irrelevant because it does not change the fact that appellant did not contact the health officer within the appropriate time. Whether Firefighter Wells was or was not infected, and luckily he was not, does not affect the superior courts findings that appellant did not follow the required procedures.

Thus, there is substantial evidence to support the superior courts conclusion that appellant knew or should have known about the required procedures but failed to follow those procedures on April 22, 2006.

With respect to the June 30, 2006 incident, Battalion Chief Crosss testimony explicitly contradicts appellants testimony. The superior court may credit Chief Crosss testimony that he did not tell appellant that appellant could use the Royce Log process in lieu of contacting the health officer. The exposure procedures policy itself also does not mention the Royce Log process. Indeed, the only method of notification provided in the policy is contacting the on-call health officer.

Appellants best argument is that he made an on-site determination that contacting the health officer was not necessary. The policy requires that the safety officer determine that an exposure or potential exposure has occurred before contacting the health officer. In this case, however, appellant had determined that there was an exposure, albeit a minimal exposure, when appellant and Firefighter Swihart filled out an infectious materials exposure report indicating that there was minimal exposure. A minimal exposure is still an exposure, or at least, a potential exposure. Thus, once it was determined that there was an exposure or potential exposure involving Firefighter Swihart, and once appellant had gathered the necessary information about the incident, appellant was required under the policy, to contact the health officer. He did not do so. Thus, there is substantial evidence in the record to support the superior courts conclusion that appellant failed to follow the required response procedures on June 30, 2006.

II.

Imposition of Discipline

Appellant also contends that the CSC abused its discretion in ordering the reduction of appellants pay from Fire Captain, Step E, to Fire Captain, Step A. In determining whether a public agency abused its discretion in imposing a level of discipline, the appellate court considers: 1) the extent to which the conduct harms the public service, 2) the likelihood of the conduct recurring, and 3) the circumstances surrounding the misconduct. (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 218.)

Appellants conduct harmed the public service because it undermines the trust that the Departments employees have in the Departments ability to provide them with the best possible care during infectious materials exposure incidents. The firefighters in these two incidents believed that the safety officer knew the proper procedures, and appellants conduct weakened that belief. The lack of trust by firefighters and any resulting lack of morale undermine the Departments ability to protect the public. Thus, appellants conduct harmed the public service.

We do not think that appellants conduct will recur, especially since appellant is no longer in the training division. However, the fact that appellant failed to follow the proper procedures in June 30, 2006, after already failing to follow the proper procedures in April 22, 2006, indicates that appellant has problems with following the Departments rules and regulations.

Finally, the circumstances surrounding the misconduct indicate that the imposition of a reduction in compensation from Fire Captain, Step E to Fire Captain, Step A, was not done in an arbitrary, capricious or patently abusive manner. Appellant was given extensive training about his duties as a safety officer. Even if he was overwhelmed by the information or by his first exposure incident, appellant could have drawn upon the assistance and expertise of his fellow officers in the training division who were accessible by cellular telephone. Nevertheless, he failed to follow procedures and did not correct his errors until four days had passed. Subsequently, appellant was given an opportunity to show that he had learned from his mistakes when he had to respond to a second exposure incident on June 30, 2006. Appellant had been re-instructed by Battalion Chief Cross about the proper procedures for responding to exposure incidents. Nevertheless, he failed to follow those procedures during the June 30, 2006 incident. Even if appellant did file a Royce Log entry for this second incident, the Departmental procedures did not allow him to use the Royce Log notification process. Thus, the circumstances of the misconduct support the level of discipline imposed.

In reviewing the exposure incidents, as well as other minor incidents which show appellants repeated failure to comply with the Departments rules and regulations, we conclude that no reasonable mind would differ on the propriety of the discipline, except in a manner that would be adverse to appellant. Thus, the CSC did not abuse its discretion in reducing appellants compensation from Fire Captain, Step E to Fire Captain, Step A.

DISPOSITION

The order denying the petition for writ of mandate is affirmed. Costs to Respondent.

_____________________

Ardaiz, P.J.

WE CONCUR:

_____________________

Cornell, J.

_____________________

Kane, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com