Personnel Bd.
Filed 9/6/12 Rye v. State Personnel Bd. 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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)
----
SUKHDEV RYE,
Plaintiff and Appellant,
v.
STATE PERSONNEL BOARD,
Defendant and Respondent;
STATE BOARD OF EQUALIZATION,
Real Party in Interest and
Respondent.
C064445
(Super.
Ct. No.
34-2008-00008321-CU-WM-GDS)
About to be
rejected from probation in his new position, an attorney working for the State
Board of Equalization (BOE), petitioner Sukhdev Rye, took a notebook from the
desk of another attorney in the office and used notes found in that notebook
concerning confidential attorney-client communications to try to prove that the
BOE was not giving him a fair chance in his new position. Dismissed for his conduct, Rye
sought a writ of administrative mandate
in the trial court. The court upheld the
dismissal, and Rye appeals.
On appeal, Rye
raises a multitude of issues concerning his hearing before the State Personnel
Board (SPB), including, most extensively, a contention that the SPB violated a
privilege attaching to Rye’s communications
with his union representative. We
conclude that Rye fails to
establish prejudicial error.
Accordingly, we affirm.
PROCEDURAL AND
FACTUAL BACKGROUND
Rye
began working for the state in 1997 in the position of Tax Counsel on the staff
of BOE member Johan Klehs. He was
promoted to Tax Counsel III in July 2004, on a probationary basis, and was
assigned as one of the two employees in the Sacramento
office of then-BOE member John Chiang, whose primary office was in Los
Angeles. The
other employee in the Sacramento
office was Sylvia Tang, who oversaw the office.
In
late September 2004, Rye received
from Tang and Audrey Noda, Chiang’s chief deputy, an unfavorable probation
report.
On
October 7, 2004, Tang met
with BOE Senior Tax Counsel Brian Branine and discussed the process for
rejecting Rye on probation. In her notebook, Tang devoted one page to
this discussion and, on a second page, noted the name of the attorney who would
temporarily replace Rye.
The
next day, October 8, 2004,
Tang, Noda and Rye met. Tang explained to Rye
that his work had not shown enough improvement, but she proposed that if he
voluntarily returned to his former position as Tax Counsel, Range D, in the
BOE’s legal division, she would remove his unfavorable probation report from
his personnel file. Rye
declined.
Rye
met with Roberta Battle, a nonattorney labor representative employed by Rye’s
union, CASE,
title="">[1]
and discussed his unfavorable probation report and the October 8 meeting.
In
early January 2005, Rye was served
with a probation rejection notice. He
received a Skelly
10. Attempting to prove that Tang denied
him a fair opportunity to succeed on probation, Rye
showed Skelly hearing officer Randie
Henry copies of the two pages of Tang’s notes described above, and provided
Henry with a copy of the first page.
Henry upheld Rye’s probation
rejection, and notified the BOE’s personnel department about the notes.
On
January 13, 2005, the BOE
placed Rye on paid leave while it
investigated how he obtained Tang’s notes.
BOE personnel formally interviewed Rye
on three occasions. During the first
interview, on January 18, 2005,
Rye was represented by Battle,
his nonattorney union representative (apparently, Battle
left her employment with CASE prior to Rye’s
second BOE interview). During this first
interview with the BOE on January 18,
2005, Battle advocated Rye’s
position that the copies of Tang’s notes had been left on Rye’s
desk and were therefore not confidential.
In
March 2005, after completing its investigation, the BOE dismissed Rye
from his position as Tax Counsel, Range D.
The BOE maintained that Rye
took his supervisor’s confidential notes (i.e., Tang’s notes) concerning her
discussion with BOE counsel about Rye’s
job performance, and failed to return those notes when ordered to do so.
In
a dismissal hearing, an administrative law judge (the ALJ) upheld Rye’s
dismissal. The BOE subpoenaed Battle
to testify at this hearing regarding what Rye
had told her concerning Tang’s notes (this testimony did not support Rye’s
position that copies of Tang’s notes had been left on his desk). The ALJ, however, ultimately found that these
Rye-Battle communications were privileged, and the ALJ did not use Battle’s
testimony in upholding Rye’s
dismissal.
The
SPB initially adopted the ALJ’s decision, but then granted Rye’s
petition for rehearing to decide the case itself (on the administrative record)
and to consider the privilege issue.
With one member dissenting on the issue of privilege, the SPB found that
no evidentiary privilege applied to Rye’s
conversations with Battle. On January
8, 2008, the SPB concluded unanimously: “[A]fter reading [Battle’s]
testimony, the [SPB] concludes that [Rye]
not only took the [Tang] notes as alleged by the [BOE], but also breached his
ethical and confidentiality duties as an attorney and employee. The [SPB] therefore sustains [Rye’s]
dismissal.”
Rye
unsuccessfully petitioned the trial court for a writ of administrative mandate
to overturn the SPB decision. The trial
court, too, found no evidentiary privilege covering Rye’s
conversations with Battle.
DISCUSSION
I
Rye
contends that a statement made by a BOE investigator during the investigation
now binds the BOE. The contention is
frivolous.
Rye
contends that a BOE investigator stated “at the conclusion of eight hours of
interviewing Rye over three days
that ‘we don’t know who . . . has gone through [Tang’s notebook] and
taken a photocopy of it and provided it to [Rye].’” Rye
has taken this passage out of context.
This was not an admission by the BOE, but simply a technique the
investigator used in questioning Rye. No authority supports the contention that a statement
made by a government employee during an investigation is binding on the
government.
As support for his
contention, Rye cites two cases involving summary judgment. (See Le
Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1060,
fn. 12; FPI Development, Inc. v.
Nakashima (1991) 231 Cal.App.3d 367, 396 [“The admissions of a party
receive an unusual deference in summary judgment proceedings.”].) However, Rye offers no reasoning for applying
summary judgment principles to this case, which does not involve a summary
judgment. That leaves his contention
with no authoritative support and renders the contention unpersuasive. (See Troensegaard
v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228 [contention
without authoritative support is meritless].)
Despite the
fragility of Rye’s contention, he claims that the BOE forfeited its opposition
to the contention because the BOE responded to it in a footnote in its
respondent’s brief. This claim is not
only frivolous but requires a discussion, at the outset, to dispel Rye’s
mistaken notions and assertions about appellate procedure.
On appeal, the
appellant bears the burden of establishing prejudicial error. The California Constitution provides: “No judgment shall be set aside, or new trial
granted, in any cause, on the ground of misdirection of the jury, or of the
improper admission or rejection of evidence, or for any error as to any matter
of pleading, or for any error as to any matter of procedure, unless, after an
examination of the entire cause, including the evidence, the court shall be of
the opinion that the error complained of has resulted in a miscarriage of
justice.” (Cal. Const., art. VI, § 13.)
Under this
standard, the appellant bears the burden to show error and to establish that it
is reasonably probable that the appellant would have received a more favorable
result had the error not occurred. (
836.) “Injury is not presumed from
error, but injury must appear affirmatively upon the court’s examination of the
entire record. ‘But our duty to examine
the entire cause arises when and only when the appellant has fulfilled his duty
to tender a proper prejudice argument.
Because of the need to consider the particulars of the given case,
rather than the type of error, the appellant bears the duty of spelling out in
his brief exactly how the error caused a “miscarriage
of justice.”’ [Citation.]” (In re
Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337 (McLaughlin).)
Even if a
respondent fails to file a brief, “we do not treat the failure to file a
respondent’s brief as a ‘default’ (i.e., an admission of error) but
independently examine the record and reverse only if prejudicial error is
found. [Citations.]” (Kennedy
v. Eldridge (2011) 201 Cal.App.4th 1197, 1203.)
In this
perspective, Rye’s arguments concerning the BOE’s supposed forfeiture of its
opposition to his binding-admission contention are nonsensical. He claims that the BOE’s placement of its
argument on this issue in a footnote constitutes forfeiture. For this proposition, he cites a criminal
case in which the appellant made a
contention in a footnote and did not clearly indicate that it was intended to
be a separate contention. (
482, fn. 2.) Rye also faults the BOE for
not making the argument under “a separate heading or subheading summarizing the
point.” (Cal. Rules of Court, rule
8.204(a)(1)(B).) These arguments fail to
relieve Rye of the burden of establishing prejudicial error.
II
Rye contends the
SPB denied him a fair hearing by erroneously determining that no evidentiary
privilege exists for communications between a state civil service employee and
his nonattorney union representative. We
conclude the contention is without merit because Rye has failed to establish
prejudice. We need not, therefore,
consider the merits of his contention.
In his opening
brief, Rye argued that the testimony of Battle, his nonattorney union
representative, should have been excluded based on an implied privilege. He claimed that the SPB “erroneously and
prejudicially” considered Battle’s testimony concerning what Rye told her --
that is, that he took Tang’s notebook from her desk. While Rye, in his opening brief, discussed at
length his argument that considering Battle’s testimony was erroneous, which
argument we need not recount at length here, he did not “‘spell[] out in his
brief exactly how the error caused a “miscarriage of justice.”’ [Citation.]”
(McLaughlin, supra, 82
Cal.App.4th at p. 337.)
As we noted,
establishing error is not enough to prevail on appeal. Because he failed to also establish
prejudice, his argument does not require reversal, even assuming for the
purpose of argument that error occurred.
Based on Rye’s opening brief, we could have concluded, without more,
that the purported error did not require reversal because of an absence of
argued prejudice; however, we exercised our discretion to give Rye a chance to
establish prejudice through supplemental briefing after oral argument. In the letter soliciting supplemental
briefing, we cited article VI, section 13 of the California Constitution and
963, which held that a party filing a petition for writ of administrative
mandate must show not only error in the agency proceedings but also prejudice
resulting from that error, using the state constitutional standard. (Id.
at p. 968.)
Once again, in
Rye’s supplemental opening brief, he failed to assert prejudice. Instead, he argued that the purported error
was reversible per se -- that is, reversible without a finding of prejudice. That argument, however, is without
merit.
The standard of
review for prejudice resulting from admission of privileged information is
whether it is reasonably probable that the appellant would have obtained a more
favorable result absent the error. (
707; Leal v. Gourley, supra, 100
Cal.App.4th 963.) Yet Rye ignores this
standard and argues instead that the admission of the privileged information
was some kind of structural or similar error requiring reversal without
determining prejudice. He is wrong, and
the cases he cites for this proposition are distinguishable. (See In
re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 291-293 (
Cal.App.3d 983, 993 (American Motors).)
In
the trial, preventing a party from putting on its case. We held that this was a violation of the
party’s fundamental right to a fair trial.
Because the party was not allowed to present its evidence, prejudice
could not be assessed and reversal was required without a finding of
prejudice. We relied on precedent
stating that “‘[d]enying a party the right to testify or to offer evidence is
reversible per se.’ [Citations.]” (Carlsson,
supra, 163 Cal.App.4th at p. 291.)
Rye’s case does
not feature the fundamental denial of the right to a fair trial found in
prematurely. Unlike the circumstances of
Carlsson, there is nothing here
stopping us from determining whether actual prejudice occurred. Indeed, it is not uncommon for us, and
constitutionally required, to determine from the entire record whether an error
in the admission of evidence caused prejudice.
(Cal. Const., art. VI, § 13.)
In
court’s nullification of a New Motor Vehicle Board adjudication without regard
to actual prejudice because the composition of the board was fundamentally
flawed, necessarily biased in favor of one of the parties by its structure. (American
Motors, supra, 69 Cal.App.3d at p. 993.)
Here, there was no such flaw in the structure of the SPB as an
adjudicatory body.
Rye cannot elevate
the error to one that is reversible per se simply by claiming it violated his
fair trial and due process rights. To
the contrary, the constitutionally-mandated prejudice analysis applies unless,
as in Carlsson or
or structural problem with the hearing.
Therefore, Rye’s argument that the purported error was reversible per se
is unpersuasive.
Because (1) Rye’s
argument that the purported error is reversible per se is without merit and (2)
Rye makes no attempt to establish actual prejudice in his supplemental opening
brief, he has forfeited any assertion of prejudice. This court is neither obligated nor inclined
to comb the record for support for a finding of prejudice. (Mansell
v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.) Therefore, Rye forfeited consideration of
whether the purported error was a miscarriage of justice.
Even if we were to
reach the issue of prejudice, a review of the entire record supports a finding
that it is not reasonably probable Rye would have obtained a more favorable
result absent the purported error.
The ALJ decided in
favor of Rye on the issue of privilege (and thus excluded Battle’s testimony)
but found, based on the rest of the evidence, that Rye was properly
dismissed. The ALJ found, specifically,
that Rye was not credible, as he gave conflicting accounts, contradicted himself,
and was evasive and guarded in answering even simple questions. The ALJ stated that Rye “has shown by his
conduct that he will disregard confidentiality and the attorney-client
privilege when it suits his own ends, and has no qualms about lying to cover
his behavior. [He] still denies his
actions, which makes the likelihood of recurrence high.”
The SPB initially
accepted the ALJ’s opinion. However, on
Rye’s insistence, the SPB decided to rehear the case and consider the issue of
privilege. The SPB’s second decision,
which unlike the ALJ’s decision considered Battle’s testimony, was that Rye was
properly dismissed. On the matter of
whether he was properly dismissed, Rye has lost at every level, with and without
Battle’s testimony.
Rye admittedly
possessed and used Tang’s confidential notes –- a serious ethical lapse, even
without considering how he got them.
Those notes contained obvious attorney-client communications.
All the evidence,
except Rye’s own self-serving and contextually incredible denials, leads to the
conclusion that he took the notes from Tang’s office and then lied about having
done so. Rye had access to Tang’s office
and, according to the card-key records, was in the office over the weekend when
he obtained the notes. Rye told his
friend Steven Kamp, who was also a BOE attorney and active union member, that
he found the notes in Tang’s office and looked through them. And Kamp recounted Rye’s admission to another
BOE attorney, Mary Ann Alonzo. Rye then
brazenly used the notes in his Skelly
hearing as evidence of the attorney-client communication between Tang and
Branine. He told Randie Henry, the
notes from Tang’s notebook and that Tang did not know he had them.
When ordered to return
the notes, Rye refused, claiming that he had no documents to return. And he continues, even in this court, to lie
concerning how he got the notes.
Rye was unethical
(as shown by his possession and use of the notes containing information
protected by the attorney-client privilege) and dishonest (as shown by his
persistent lies concerning how he got the notes). It is not reasonably probable that he will
obtain a result more favorable than dismissal if we send this case back to the
SPB for reconsideration without Battle’s testimony.
We agree with the
SPB’s reasoning for dismissing Rye, which reasoning does not depend for its
persuasiveness on Battle’s testimony.
The SPB said: “Here, [Rye] has
concocted a story designed to conceal his improper behaviors, breached his duty
as an attorney, violated departmental policy, and, for his own benefit,
generally engaged in a course of conduct undermining the sacred trust so
necessary to the attorney-client relationship.
It is inconceivable that the [BOE] could regain enough confidence in
[Rye] to render him useful as a staff attorney and, as a result, [Rye’s]
actions have harmed the public service.
Moreover, [Rye] has shown no remorse for his actions and continues to find
fault or conspiracy with everyone but himself.
Under these circumstances, the [SPB] finds that the likelihood of
recurrence is probable and that dismissal is the just and proper penalty.”
To summarize our
conclusions with respect to Rye’s argument that it was error for the SPB to
consider Battle’s testimony, we need not consider the argument because (1) he
forfeited it by failing to assert prejudice in his opening brief, (2) he again
forfeited it by failing to assert prejudice in his supplemental opening brief,
and (3) in any event, it is not reasonably probable that he would have obtained
a more favorable result absent the purported error.
III
Tang’s Attorney-Client Privilege
Rye contends that
there was no remaining attorney-client privilege attached to Tang’s notes when
he obtained them because Tang had revealed to Rye the substance of the
notes. The contention is without merit
because, although Tang used BOE counsel Branine’s advice, she did not reveal to
Rye what Branine told her.
The
attorney-client privilege may be waived if the holder of the privilege
“disclosed a significant part of the communication.” (Evid. Code, § 912, subd. (a).) However, “a client does not waive the
privilege by testifying about facts which might have been discussed in
confidential conversations with his or her lawyer, as such testimony is not
equivalent to disclosure of the actual content of those attorney-client
conversations. [Citation.]” (Maas
v. Municipal Court (1985) 175 Cal.App.3d 601, 606.) Similarly, here, Tang talked to Rye about
matters that she may have discussed with Branine, but she did not disclose the
actual content of her conversation with Branine. Therefore, she did not waive any
attorney-client privilege regarding her notes by discussing points in them with
Rye.
IV
Trial Court Standard of Review
Rye contends that
the trial court erred because it applied the independent judgment test to a
factual finding of the SPB rather than applying the
Rye quotes the
following statement by the trial court as evidence that the court applied the
independent judgment test rather than the substantial evidence test:
“Once a person, no
matter how true his or her motives may be or how frustrated he or she may be at
the time, goes into a supervisor’s desk and photocopies sections of notes –-
even if the person believes the notes are helpful or somehow or other prevent
an injustice -– then denies that that activity ever occurred, and then refuses
to surrender the notes, you have behavior which rises to the level of
seriousness that supports the SPB’s decision with regard to penalty.”
Here, the court
was not applying the independent judgment test; instead, it was summarizing the
facts and the SPB’s findings. Because
Rye does not establish that the trial court applied the independent judgment
standard of review, his contention is without merit.
In any event, Rye
makes no effort to establish that any error in applying an improper standard of
review resulted in prejudice. He
therefore forfeited a prejudice analysis.
(McLaughlin, supra, 82
Cal.App.4th at p. 337.)
V
Compelled Disclosure
The ALJ compelled
Battle to testify concerning the substance of her communication with Rye before
the ALJ made its ruling that the communication was privileged. Rye contends that compelling disclosure
before ruling on the privilege was error.
We need not consider this contention because, even if it was error, it
is not reasonably probable that Rye would have obtained a more favorable result
absent the error. The timing of the
disclosure adds nothing to our discussion in part II establishing the lack of
prejudice to Rye in admission of the evidence of the communication.
VI
Rye contends the
SPB committed a prejudicial abuse of discretion in deciding that he was
insubordinate and willfully disobedient.
He claims that the factual findings the SPB relied on to reach the
decision were not supported by substantial evidence. We conclude that there was no prejudicial
abuse of discretion because the record supports a finding that Rye was
insubordinate and willfully disobedient.
The focus of Rye’s
argument that the evidence was insufficient with respect to insubordination and
willful disobedience is that there was no evidence he refused to return the
Tang notes (or copies he made) when ordered to do so. To the contrary, the evidence was sufficient.
The SPB’s decision
concerning Rye’s failure to return the notes included the following findings:
“[
that she expressly asked [Rye] to return Tang’s notes to her and he did not do
so. [BOE] investigator, Dolores Giorgi,
also testified that, on several occasions, she expressly requested that [Rye]
return Tang’s notes to the [BOE].
Further evidence establishes that the [BOE] made several written
requests that [Rye] return ‘all copies of documents not directly related to his
assignments that were copied, faxed, or removed by [Rye] during his assignment
in Chiang’s office,’ and that [Rye] claimed that he did not have any of the
documents sought by [the BOE].”
Rye argues that,
to establish insubordination and willful disobedience, the evidence must show
that he disobeyed a direct order from a supervisor to return the notes. The record includes such evidence. Jefferson Vest was Rye’s supervisor. Vest sent memos to Rye, entitled “Retained
Confidential Documents,” directing him to “return all copies of documents not
directly related to your assignments copied, faxed or removed by you while
employed in Mr. Chiang’s office.” Rye
claimed at the time not to have any such documents, even though he still had a
copy of Tang’s notes, and he claims now that the order was too vague to support
a finding of insubordination and willful disobedience.
In addition to
Vest’s direction to Rye to return the documents, there were other requests from
the hearing officer (Henry) and a BOE investigator (Giorgi) specifically for
the return of the copies of Tang’s notes.
Rye’s remonstrance that Vest’s direction was too vague and that Rye did
not understand it to include the copies of Tang’s notes is utterly
unpersuasive, in context.
There was
additional evidence of Rye’s refusal to return copies of Tang’s notes, but the
evidence we have cited is sufficient to reject Rye’s contention. In any event, Rye does not explain how a
different finding as to insubordination and willful disobedience would have
changed the result in his favor. He was
still unethical and dishonest.
VII
Failure to Specify Evidence
Rye contends: “The SPB committed prejudicial abuse of
discretion by failing to proceed in the manner required by law, by failing to
specify evidence of the demeanor, manner, or attitude of witnesses Henry,
Alonzo, Battle, and Giorgi, that supports its credibility determinations, as
required by Government Code section 11425.50, subdivision (b).” We conclude that the SPB did not commit a
prejudicial abuse of discretion.
An administrative
board such as the SPB is required to make findings to support its adjudicatory
decisions. (Gov. Code, § 11425.50, subd.
(a); California Youth Authority v. State
Personnel Bd. (2002) 104 Cal.App.4th 575, 590.) Government Code section 11425.50, subdivision
(b) states, in pertinent part: “If the
factual basis for the decision includes a determination based substantially on
the credibility of a witness, the statement shall identify any specific
evidence of the observed demeanor, manner, or attitude of the witness that
supports the determination, and on judicial review the court shall give great
weight to the determination to the extent the determination identifies the
observed demeanor, manner, or attitude of the witness that supports it.”
Rye claims that
the SPB did not include in its decision an identification of sufficiently
specific evidence relevant to its credibility determinations. He argues that this was a prejudicial abuse
of discretion in that the SPB did not proceed in the manner required by law. However, he fails to cite any authority that
failing to provide specific evidence concerning credibility determinations is,
by itself, a prejudicial abuse of discretion requiring reversal.
Here, it appears
the SPB adopted the credibility determinations of the ALJ, which determinations
were supported by specific evidence, and added its own reasoning concerning the
evidence. Therefore, the SPB both agreed
with the ALJ’s credibility determinations with respect to Rye and noted the
corroborations among the witnesses on the version of events adopted by both the
ALJ and the SPB. The SPB therefore
identified specific evidence upon which it based its credibility
determinations.
In any event, even
if the SPB should have identified more specific evidence to support its
credibility determinations, that failure was not a reversible abuse of
discretion. Instead, as stated in the
statute, whether the SPB provided specific evidence to support credibility
determinations affects only the weight to which those credibility
determinations are entitled on judicial review.
(See California Youth Authority v.
State Personnel Bd., supra, 104 Cal.App.4th at p. 588.) In other words, failure to provide specific
evidence to support credibility determinations is not a failure to proceed in a
manner provided by law that, by itself, requires reversal.
In this case, the
trial court reviewed the SPB record for substantial evidence supporting the
findings. The court, at least impliedly,
did not accord great weight to the SPB’s credibility determinations. Therefore, the court acted properly, even if
the SPB failed to provide specific evidence to support its credibility
determinations.
VIII
Rye contends that
Mary Ann Alonzo’s testimony about what Steve Kamp told her about what Rye told
him about how he got Tang’s notes was inadmissible
hearsay. We disagree. In the administrative forum, the evidence was
admissible.
Government Code
section 11513, subdivision (c) states that an administrative hearing “need not
be conducted according to technical rules relating to evidence and witnesses,
except as hereinafter provided. Any
relevant evidence shall be admitted if it is the sort of evidence on which
responsible persons are accustomed to rely in the conduct of serious affairs,
regardless of the existence of any common law or statutory rule which might
make improper the admission of the evidence over objection in civil
actions.” Subdivision (d) of the same
section adds: “Hearsay evidence may be
used for the purpose of supplementing or explaining other evidence but over
timely objection shall not be sufficient in itself to support a finding unless
it would be admissible over objection in civil actions.” (Gov. Code, § 11513, subd. (d).)
Here, Alonzo’s
testimony was credible and corroborated.
Rye, himself, admitted to having the notes. And Henry testified that Rye said he found
Tang’s notebook on her desk. Alonzo’s
testimony, therefore, was not used by itself to support a material
finding. (See Gov. Code, § 11513, subds.
(c), (d); see also Gov. Code, § 19578.)
Therefore, Alonzo’s testimony was admissible in the SPB hearing.
IX
Contentions
Rye points out
several of what he argues are incorrect factual findings by the SPB, and he
claims that making those findings was a prejudicial abuse of discretion. He asserts the evidence was insufficient to
conclude that (1) he did not have an attorney-client privilege as to his
communications with Battle, (2) Chiang’s office suite was accessible only with
a card-key, (3) his own statements about how he obtained Tang’s notes were
inconsistent, (4) he reported to Tang, (5) Tang managed the office, (6) he and
Tang did not have common assignments, (7) he was not a good fit for the job,
and (8) he was “assigned” to work for Chiang.
Rye, however, makes no attempt to explain how these asserted problems in
the SPB’s decision were prejudicial to him.
Because he does not make an identifiable prejudice argument, we conclude
there was no prejudice and decline to consider the factual contentions. (McLaughlin,
supra, 82 Cal.App.4th at p. 337.)
X
Penalty
Rye contends that
we should remand to the SPB for a new penalty determination because the SPB
improperly relied on Battle’s testimony in concluding that Rye should be
dismissed.
v. State Personnel Bd. (1957) 48 Cal.2d 41, 51 [remand to SPB if reasons
for dismissal partially fail].) We
disagree for two reasons: (1) even
assuming without deciding that the SPB should not have admitted Battle’s testimony,
the improper admission was harmless (as we discuss at length above) and (2)
even disregarding Battle’s testimony, the SPB’s conclusions that Rye took the
notebook from Tang’s desk, kept the copies of notes, and failed to return them
when directed to do so are supported by convincing
evidence.
Rye also contends
the record is “devoid of any evidence showing that [his] alleged actions caused
any harm to the public service, much less risk of repeated harm.” There are three problems with this
argument. First, Rye’s actions are no
longer simply alleged but instead have been proved. Second, the argument completely ignores the
fact that the unethical and dishonest actions of an attorney in public service
are harmful to public service because they engender distrust in government
generally and the BOE specifically and, as the SPB found, the public service is
harmed because Rye cannot be trusted as an employee. And third, Rye’s continued insistence that he
did nothing wrong increases the risk that he will engage in wrongful conduct in
the future.
Therefore, a
remand would serve no valid purpose.
DISPOSITION
The
judgment is affirmed. Rye’s request for
attorney fees is denied because the SPB did not act arbitrarily or
capriciously. (Gov. Code, § 800.) The BOE is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
NICHOLSON , Acting P. J.
I concur:
MAURO , J.
I respectfully
dissent. Unlike the majority, I do not
believe we can avoid the merits of the union/legal representative privilege
issue simply by claiming forfeiture of the issue on prejudice grounds, or
assuming error and finding no prejudice.
I base this belief on two grounds.
First, I note
that in the majority’s accurate summary of the facts, we learn that the State
Personnel Board (the SPB), in deciding the case for itself, concluded: “[A]fter
reading [Battle’s]
Rye’s nonattorney union representative who counseled him here, Roberta Battle;
the Board of Equalization (BOE) subpoenaed Battle to testify against Rye at his
employment dismissal hearing], [the SPB] concludes that [Rye] not only took the
[Tang] notes as alleged by the [BOE], but also breached his ethical and
confidentiality duties as an attorney and employee. [The SPB] therefore sustains [Rye’s]
dismissal.” (Italics and third bracketed
material added.) (Maj. opn.,
without finding Battle’s testimony pivotal to the SPB’s dismissal decision.
Second, the
majority concludes that it can apply the traditional state law standard of
harmless error, distinguishing this court’s decision in In re Marriage of Carlsson (2008) 163 Cal.App.4th 281 (
putting on its case-in-chief. (
concluded that this error, which deprived the party of its full day in court,
was not subject to the harmless error doctrine.
(Id. at p. 293.)
I am familiar
with Carlsson. I authored it. What occurred there approximates what
occurred here, in terms of unfairness.
Here, one party subpoenaed its adversary’s legal representative to
testify against that adversary, and the representative was compelled to do so;
just to be clear, the legal representative was forced to testify against her
client. The majority distinguishes
does not feature the fundamental denial of the right to a fair trial found in
[Rye] was afforded a full hearing.
The proceedings were not ended prematurely. Unlike the circumstances of
us from determining whether actual prejudice occurred.” (Maj. opn., ante, at p. 10.) The
full hearing described in Carlsson,
though, was the right to a
too full, with his legal representative testifying against him; what was
lacking was a fair hearing. I
acknowledge that Rye is not the most sympathetic of litigants. But many of the legal rights we have come to
cherish trace their genesis to litigants much more unsavory than this one.
With that said,
I now turn to the merits of the privilege issue. For the reasons that follow, I conclude that
the communications between a permanent state civil service employee (like Rye)
and his or her nonattorney designated representative (like Battle), in the
context of an employment adverse action investigation, are privileged. I would reverse and remand this matter for
the SPB to reconsider its dismissal decision without using Battle’s testimony.
Any discussion
concerning the existence of an evidentiary privilege must begin with Evidence
Code section 911, which states:
“Except as
otherwise provided by statute:
“(a) No person
has a privilege to refuse to be a witness.
“(b) No person
has a privilege to refuse to disclose any matter or to refuse to produce any
writing, object, or other thing.
“(c) No person
has a privilege that another shall not be a witness or shall not disclose any
matter or shall not produce any writing, object, or other thing.”
As succinctly
explained in the seminal high court decision on this subject,
33 Cal.3d 766 (Crisan), “In
section 911 of the Evidence Code, the Legislature clearly intended to abolish
common law privileges and to keep the courts from creating new nonstatutory
privileges as a matter of judicial policy.
[Citations.] Thus, unless a
privilege is expressly or impliedly based on statute, its existence may be
found only if required by constitutional principles, state or federal.” (33 Cal.3d at p. 769.)
The issue of
whether a new evidentiary privilege should be recognized presents a question of
law; therefore, this issue is determined independently of the trial court. (American
Airlines, Inc. v. Superior Court (2003)
114 Cal.App.4th 881, 887-888 (American
Airlines).)
for my decision here. In
concluded that communications between welfare claimants and lay
representatives—authorized to represent claimants in administrative fair hearings
under the Aid to Families with Dependent Children (AFDC) program—are subject to
a privilege comparable to the attorney-client privilege, because such a
privilege is impliedly based on a statute, Welfare and Institutions Code
section 10950. (Crisan, supra,
along the following points of interest.
The first point was the United States Supreme Court’s decision in
[25 L.Ed.2d 287], which held that AFDC recipients have a federal due process
right to an evidentiary hearing before their benefits are terminated. (Crisan,
Next,
the evidentiary privilege was implied there, former Welfare and Institutions
Code section 10950. (Stats. 1981, ch. 1,
1st par., p. 3.) That statute,
consistent with Goldberg and federal
regulations, stated as pertinent, “‘If any applicant for or recipient of public
social services is dissatisfied with any action of the county department
relating to his application for or receipt of public social services
. . . he shall, in person or
through an authorized representative[,] . . . be accorded an
opportunity for a fair hearing.’” (
‘authorized representative’ rather than ‘counsel’ or ‘attorney,’ the
Legislature made it clear that claimants have a right to be represented by lay
representatives as well as by members of the bar” (and Crisan further noted in footnote 1 that state regulations made this
explicit). (Crisan, supra,
33 Cal.3d at p. 770 & fn. 1.)
representative’ signifies an expansion of the right of representation that
previously had been accorded welfare claimants.
Before the enactment of [Welfare and Institutions Code] section 10950,
the [former] applicable statute . . . had provided: ‘At the hearing the applicant or recipient
may appear in person with counsel of his own choosing, or in person and without
such counsel.’ The substitution of
‘authorized representative’ for ‘counsel’ suggests that the Legislature
recognized that attorneys alone could not satisfy the representational needs of
the state’s welfare claimants and that assistance through [nonattorney]
representation was necessary to insure the meaningfulness of the ‘fair hearing’
right provided by statute [and mandated by due process]. [¶] . . . [Fn. omitted.] [Citations.]
[T]he considerations which support the [attorney-client] privilege are
so generally accepted that the Legislature must have implied its existence as
an integral part of the right to representation by lay persons. Otherwise that right would, in truth, be a
trap by inducing confidential communications and then allowing them to be used
against the claimant. We do not
attribute such a sadistic intent to the Legislature.” (Crisan,
My analytical
route follows that of Crisan.
First, as the state Supreme Court
recognized in Skelly v. State Personnel
Bd. (1975) 15 Cal.3d 194, the
California statutory scheme regulating civil service employment confers upon a
“permanent” state civil service employee, like Rye, a property interest in the
continuation of his employment which is protected by due process. (Id.
at p. 206.) Before such an employee
may be subjected to an “adverse action” (i.e., dismissal, demotion, suspension
or other disciplinary action), he must be afforded notice of the proposed
action, the reasons therefor, a copy of the charges and materials upon which
the action is based, and the right to respond, orally or in writing, to the
authority initially imposing discipline.
(Skelly, at p. 215; see Gov. Code, § 19570 [defining “adverse
action”].)
Next come the
two Government Code statutes from which any evidentiary privilege here is to be
implied: sections 19574.1 and 19579.
Government Code
section 19574.1 states, as pertinent, “An employee who has been served with
notice of adverse action, or a
representative designated by the
employee, shall have the right to inspect any documents in the possession of,
or under the control of, the appointing power which are relevant to the adverse
action taken or which would constitute ‘relevant evidence’ as defined in
. . . the Evidence Code. The
employee, or the designated
representative, shall also have the right to interview other employees
having knowledge of the acts or omissions upon which the adverse action was
based.” (Gov. Code, § 19574.1, subd. (a),
italics added.)
And Government
Code section 19579 adds, “Failure of either party (the employee, the employer,
the [adverse action] hearing shall be deemed a withdrawal of the action or
appeal, unless the hearing is continued by mutual agreement of the parties, or
upon showing of good cause.” (Italics
added.)
As for
Government Code section 19574.1, an amendment to it came right on the heels of
for “an attorney.” (Legis. Counsel’s
Dig., Sen. Bill No. 231, 4 Stats. 1983, ch. 154, § 1, p. 45; see Sen.
Bill No. 231, approved by Governor, June 29, 1983, Sen. Final Hist. (1983-1984
Reg. Sess.) p. 186.) As shown by
“representative” rather than “attorney” in Government Code section 19574.1, the
Legislature made it clear that permanent state civil service employees
subjected to the adverse action process have a right to be represented by lay
representatives as well as by members of the bar (and, as in
explicit).
Of course,
Government Code section 19574.1 specifies only that the employee’s designated
representative has the right to inspect any relevant documents in the
appointing power’s possession or control, and the right to interview other
knowledgeable employees. This is not as
broad-based a representative right as provided by the statute at issue in
section 10950—which specified that a welfare claimant, “in person
be accorded an opportunity for a fair hearing.”
(Crisan, supra, 33 Cal.3d at p. 770.)
This is where
Government Code section 19579 comes in.
Section 19579 specifies that “[f]ailure of either party (the employee,
the employer, or their representatives)
to proceed at the [adverse action]
the action or appeal,” unless certain conditions are met. (Italics added.) Government Code section 19574.1, then,
contemplates a representative (designated by the employee) conducting
discovery, and Government Code section 19579 contemplates a representative
designated by the employee carrying out the hearing based on that discovery. This one-two punch contemplates a designated
representative fully representing a permanent state civil service employee in
the adverse action context. This is
confirmed by (1) the fact that Government Code section 19579 was rewritten in
1985 (following the 1983 amendment to Government Code section 19574.1) to add
the term “representatives” (Stats. 1985, ch. 1195, § 4.5, pp. 4047-4048;
see Stats. 1949, ch. 1416, § 9, p. 2469), and (2) companion Government
Code sections 19578 and 19582, which provide for adversarial hearings before
the SPB in the adverse action context.
With that
clarified, I return to the Crisan roadmap. Analogizing to Crisan, the 1983
substitution of “representative” for “attorney” in Government Code section
19574.1, and the 1985 addition of the term “representatives” in Government Code
section 19579, signify an expansion of the right of representation that
previously had been accorded state civil service employees. These legislative expansions suggest that the
Legislature recognized that attorneys alone could not satisfy the
representational needs of the state’s civil service employees, who recently had
secured full collective bargaining rights, and that assistance through
nonattorney representation was necessary to ensure the meaningfulness of the
discovery and hearing rights afforded by Government Code sections 19574.1 and
19579 (and confirmed by companion Government Code sections 19578 and
19582).
Given all these
parallels between Crisan and the
present matter, Crisan’s conclusion
applies with analogous force here:
“[T]he considerations which support the [attorney-client] privilege are
so generally accepted that the Legislature must have implied its existence as
an integral part of the right to representation by lay persons [in Government
Code sections 19574.1 and 19579].” (
p. 771.) Otherwise, as the
administrative law judge aptly put it here, and again, mirroring
the SPB to allow a layperson to represent [a permanent state civil service
employee], and then permit [the employing agency] to call the lay
representative to testify about admissions made by the [employee] during the
course of [that lay] representation, or the legal strategies they discussed.” (See Crisan,
at p. 771 [not willing to attribute “such a sadistic intent to the
Legislature” in laying such a “trap”].)
I conclude that
communications between a permanent state civil service employee and his or her
nonattorney designated representative in the context of an adverse action
investigation are privileged.
name="_ftnref7" title="">[7]
The BOE argues
against such a conclusion by asserting that an adverse action was not the
context here. The BOE claims that Rye
informed Battle of the origin of the Tang notes while Battle was representing
Rye in the context of his probation rejection, a nonadverse action. (See Gov. Code, § 19570 [defining
“adverse action”].)
However, Battle
represented Rye, not just during Rye’s probation rejection, but through the
BOE’s first investigative interview of Rye on January 18, 2005, which concerned
how he had obtained Tang’s notes. This
investigation comprised the heart of the adverse action against Rye. And Battle vigorously advocated on Rye’s
behalf during this investigative interview, using information Rye had provided
her. To compel Battle to testify what
Rye disclosed to her in this context is to make a mockery of the concepts of
meaningful representation and fair hearing, as envisioned by Government Code
sections 19574.1 and 19579 (and confirmed by Government Code sections 19578 and
19582). As I have explained, the
court to travel there.
Finally, the
dearth of decisional law on this subject only bolsters my conclusion. If not much has been said over the years
concerning the existence of an evidentiary privilege in the context presented
here, that is probably because it goes without saying. (See Crisan,
case on this issue provides substantial support for our conclusion: during the 17 years in which the right of lay
representation in welfare hearings has existed in California, the implicit
guarantee of confidentiality has apparently gone unquestioned.”].)
Accordingly, the
BOE and the SPB could not compel Battle to testify against Rye regarding their
communications. The question then
becomes, what now
The SPB granted
Rye’s petition for rehearing, heard this matter on its own (using the
administrative record), and concluded, as noted: “[A]fter reading [Battle’s] testimony, [the
SPB] concludes that [Rye] not only took [Tang’s] notes as alleged by the [BOE],
but also breached his ethical and confidentiality duties as an attorney and
employee. [The SPB] therefore sustains
[Rye’s] dismissal.” Battle’s testimony,
then, was pivotal in the SPB’s decision and penalty.
The SPB should
not have considered Battle’s testimony.
Consequently, I would reverse and remand this matter to the trial court
to issue a writ of administrative mandate directing the SPB to set aside its
dismissal decision and to reconsider this matter without using Battle’s
testimony. (See Shepherd v. State Personnel Board (1957) 48 Cal.2d 41, 51
[where the basis of a state personnel board dismissal decision “partially
fails,” the matter should be remanded for reconsideration].)
BUTZ , J.
name="_ftn1" title="">[1] CASE is the acronym for “California
Attorneys, Administrative Law Judges, and Hearing Officers in State
Employment.”
name="_ftn2" title="">[2] Skelly
v. State Personnel Bd. (1975) 15 Cal.3d 194 (Skelly); the record does not reflect why Rye was afforded such a
hearing for a probation rejection.
