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Salas v. Cal. State Personnel Bd.

Salas v. Cal. State Personnel Bd.
01:11:2013





Salas v






Salas v. >Cal.>
State>
Personnel Bd.





















Filed 12/10/12
Salas v. Cal. State Personnel Bd. CA6

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>

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>NOT TO BE PUBLISHED IN
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SIXTH APPELLATE DISTRICT




>






JAMES SALAS,



Plaintiff and Appellant,



v.



CALIFORNIA STATE
PERSONNEL BOARD,



Defendant and Respondent;



CALIFORNIA
DEPARTMENT OF CORRECTIONS AND REHABILITATION,



Real Party in Interest and Respondent.




H037215

(Santa Clara County

Super. Ct. No. 1-10-CV178823)






>I. INTRODUCTION

Respondent
California Department of Corrections and Rehabilitation (CDCR) dismissed
appellant James Salas from his employment as a parole agent after determining
that he had engaged in misconduct. Salas appealed the dismissal to the
California State Personnel Board (Board), which upheld the dismissal. Salas thereafter filed a petition for a writ
of administrative mandamus in the
superior court pursuant to Code of Civil Procedure section 1094.5.href="#_ftn1" name="_ftnref1" title="">[1] The court denied the petition and entered
judgment in favor of the CDCR and the Board.

On
appeal, Salas contends that “it does not appear that there is any indication that
the trial court applied the correct standard of review” with respect to the
Board’s decision and that the matter should be remanded so that the court may
apply the proper standard. He also
argues that there is not substantial evidence to support the Board’s
findings. Salas further contends that
his dismissal from employment was “grossly disproportionate to the alleged
wrongs.”

For
reasons that we will explain, we will affirm the judgment.

>II. FACTUAL AND PROCEDURAL BACKGROUND

>A. >The Termination of Salas’s Employment

In
December 2007, the CDCR notified Salas in writing that he was being dismissed
from his position as a parole agent effective January 17, 2008. The stated causes for
dismissal included inexcusable neglect of duty, dishonesty, violation of the
prohibitions set forth in accordance with Government Code section 19990,
and other failure of good behavior either during or outside of duty hours which
was of such a nature that it caused discredit to the appointing authority or
the person’s employment. (Gov. Code, §
19572, subds. (d), (f), (r) & (t).)
The written notice identified multiple incidents leading to the
dismissal, including that Salas had “attempted to use undue influence as a
peace officer to assist [another person] in avoiding a traffic citation,” that
Salas was “dishonest” during the subsequent internal investigation, and that
Salas “failed to request proper authorization” from his supervisor before
closing a parole office early.

>B. >The Proceedings Before the Board

Salas
appealed the dismissal to the Board, and a hearing was held before an
administrative law judge (ALJ). The
evidence presented at the hearing included the following.

>1.
Parole agents

Parole
agents are armed and have peace officer duties.
Parole agents from the San
Jose parole office were
responsible for supervising youth offenders who were released into the area
from the California Youth Authority or Division of Juvenile Justice
institutions. The parole agents’ duties
also included preparing various reports and documents, including parole
placement plans, reports regarding parole violations, and reports regarding
progress on parole. These documents were
used by the CDCR, and may also be used by the Juvenile Parole Board or the
court. The parole agents’ duties further
included testifying at parole violation hearings.

Parole
agents were expected to have the qualities of integrity and honesty. These qualities were important and affected a
parole agent’s “ability to be effective” in the position. For example, parole agents were expected to
be honest when testifying before the parole board and in preparing reports that
were used by the parole board. They were
also expected to be honest during an interview for an internal affairs investigation. Further, parole agents, as peace officers,
were expected to not take advantage of their position. Expectations concerning integrity and honesty
were communicated during basic parole agent academy, were reflected in the
peace officer oath, and were made familiar to parole agents during their
careers with the CDCR.

Salas
was a parole agent who had been employed by the CDCR for nearly
20 years. Since 2001, he had worked
as a “parole agent two, resident agent for Monterey County.” As a resident agent, he lived in the area and
worked out of a home office. He also
worked in the San Jose parole office.

>2.
Traffic citation incident

Joseph
Grebmeier,href="#_ftn2" name="_ftnref2" title="">[2]
the Chief of Police of the City of Greenfield,
testified about an incident that occurred on November 30, 2006, involving Salas. Chief
Grebmeier had been working in law enforcement since the late 1970’s, including
22 years in the Monterey County Sheriff’s Office. Chief Grebmeier prepared a memorandum about
the incident involving Salas the same day that it occurred, and he faxed it to
Salas’s supervisor. Chief Grebmeier
testified that the memorandum was written “within hours of the incident,” and
that its contents were his “most accurate recollection” of the incident.

According
to his memorandum, Chief Grebmeier contacted James Marlar because he believed
Marlar had driven the wrong way on a street.
As Chief Grebmeier was issuing a citation, Marlar walked over to him,
handed him a cell phone, and told him that someone wanted to talk to him. Chief Grebmeier took the phone, identified
himself as Chief Grebmeier, and asked to whom was he speaking. The person on the other end of the phone
“identified himself as Officer Sales [sic],
State Parole.” Chief Grebmeier asked
what Salas wanted, and Salas responded that Marlar “was a friend of his.” Chief Grebmeier then asked Salas “what his
involvement was in this traffic stop.”
Salas “replied that his friend had called him.” Chief Grebmeier then asked whether Salas “had
an issue with the traffic stop or wanted [Chief Grebmeier] to do
[something].” Salas did not
respond. Chief Grebmeier again
identified himself as the Chief of Police and asked Salas “what his interest
was in this traffic stop.” Salas “then
wanted to speak to [Sergeant] Perez.”
Chief Grebmeier responded that Sergeant Perez was not at work, and that
Sergeant Perez worked for him. Before
Salas could say anything further, Chief Grebmeier handed the phone back to
Marlar.

In
his memorandum, Chief Grebmeier stated that he “did not want the conversation
to go any further, as [he] felt that [Salas] was placing . . . himself in a
position that could result in charges being made against [Salas] for
Interfering with a Peace Officer (148 PC.).”
Chief Grebmeier expressed concern that 1) Marlar believed Salas “could
some how intervene on his behalf regarding” the traffic citation, and
2) Salas “would take this type of call and then try to speak to [the
issuing officer] about the traffic stop.”
Chief Grebmeier indicated that his department had worked with Salas’s
employer in the past and he wanted the “close cooperation to continue.” Chief Grebmeier felt, however, that Salas’s
“actions were inappropriate . . . .”

Chief
Grebmeier testified that Marlar knew, prior to handing over his phone, that he
was being issued a citation. When Chief
Grebmeier was subsequently on the phone with Salas, Salas did not sound
confused by the call, nor did he ask Chief Grebmeier why Marlar had handed over
the phone. Further, although Salas never
directly asked Chief Grebmeier on the phone not to issue a citation or ticket,
Chief Grebmeier had the “impression” that Salas was “trying to get [him] to not
write [Marlar] a ticket.” Chief
Grebmeier testified that he “couldn’t get a straight answer” from Salas about
why they were having the conversation.
After Salas said words to the effect that “this guy was a friend, or
working on his store,” Chief Grebmeier felt he was “starting to see the
connection” as to why Salas was talking to him and that the conversation “had
nothing to do with State Parole.” When
Salas indicated that he wanted to speak to Sergeant Perez, it was Chief
Grebmeier’s impression that “somebody wanted to speak to my supervisor while I
was writing a ticket.” Chief Grebmeier
ended the conversation out of concern that if it continued, “instead of just
being inappropriate, it would have been criminal.” Chief Grebmeier finished issuing the citation
to Marlar and returned to his office.

After
returning to his office, Chief Grebmeier contacted Jeff McLaughlin, who was an
assistant supervising parole agent for the CDCR and who supervised Salas for a
period of time. Chief Grebmeier told
McLaughlin about the incident. At
McLaughlin’s request, Chief Grebmeier wrote the memorandum regarding the
incident and faxed it to him. Chief
Grebmeier later learned from Sergeant Perez, to whom Salas had demanded to
speak, that the two knew each other from when Perez had worked for the Soledad
Police Department.

McLaughlin,
the assistant supervising parole agent, testified that the incident could
“tarnish” the reputation of the San Jose parole office or the CDCR with the
Greenfield Police Department.

Salas
testified that Marlar called him from Greenfield while Salas was approximately
150 miles away in the San Jose parole office.
Salas owned Subway restaurants in Soledad, Salinas, and Gonzales, and
Marlar was the contractor who had handled the construction or remodel of those
restaurants for Salas. When Salas
acquired his first Subway franchise, which was in Soledad, Marlar was the only
Subway-approved contractor in the area.
At the time of the phone call at issue, Marlar was handling the
construction of a Subway restaurant for Salas in Greenfield.

Salas
testified that Marlar told him, “I need you to talk [to] this officer.” Salas assumed Marlar was referring to a
police officer. Salas asked who it was,
and Marlar replied that he did not know.
Marlar then put Chief Grebmeier on the phone, without identifying him to
Salas. According to Salas, Marlar did
not state why he was putting Chief Grebmeier on the phone, nor did Marlar
mention anything about a traffic or parking citation. Based on past experience with Marlar starting
a new construction or remodeling job, Salas assumed that the phone call “was
just another routine call regarding the construction of the business.”

Salas
testified that the “majority” of Chief Grebmeier’s statements in the memorandum
concerning their phone conversation were lies.
Salas testified that Chief Grebmeier came on the phone yelling and
sounding upset. According to Salas,
Chief Grebmeier did not initially identify himself. Instead, Chief Grebmeier asked Salas who he
was. Salas responded that he was the
owner of the Subway. Chief Grebmeier
“cut [Salas] off mid-sentence” and asked “who do you work for.” According to Salas, it was only in response
to this question by Chief Grebmeier that Salas identified himself as a parole
agent who worked for the state. Chief
Grebmeier then stated that Salas was interfering with an investigation. Salas replied that he did not understand what
was going on. Chief Grebmeier again said
that Salas was interfering, and Salas stated, “you wanted to talk to me, I
don’t understand.”

Salas
testified that he “couldn’t get an answer out of” Chief Grebmeier and felt
frustrated with him. Salas eventually
asked whether Sergeant Perez was present.
Sergeant Perez was the “parole contact” and the only person Salas knew
in the Greenfield Police Department.
Sergeant Perez was a “calm” person, and Salas felt that Sergeant Perez
could tell him what was going on. If
Sergeant Perez was present, Salas was going to ask to speak to him.

According
to Salas, Chief Grebmeier became irate and belligerent. Chief Grebmeier stated that Sergeant Perez
worked for him and that he was the chief of police. Salas told Chief Grebmeier that he did not
understand what Chief Grebmeier wanted.
Chief Grebmeier indicated that he was going to talk to Salas’s
supervisor. Salas questioned what the
supervisor would be told. Chief
Grebmeier then asked whether Salas was “going to get involved with traffic
enforcement in the City of Greenfield.”
Salas “said what,” and then Marlar came back on the phone. Marlar told Salas he would call him back. Salas testified that during his phone
conversation with Chief Grebmeier, Marlar’s name never came up and Salas never
identified himself as a friend of Marlar.

Salas
testified that when he called Marlar approximately one-half hour later, Marlar
stated that he had been unhooking a trailer in front of the business when an
officer drove up. Marlar had called Salas
because he did not think he was doing anything wrong and thought Salas “could
talk some sense into” the officer. In
their phone conversation after the incident, Salas told Marlar that Marlar
needed to explain the situation to the officer himself.

Salas
testified that he had never tried to get someone out of a ticket. Salas further testified that he did not talk
to his supervisors about the incident immediately after it occurred because he
“didn’t think there was anything to say.”
Salas also did not attempt to further talk to Chief Grebmeier. Salas believed Chief Grebmeier would “calm
down” and that if Chief Grebmeier sent something to Salas’s supervisor, it
would “sound ridiculous” as Chief Grebmeier had been “doing all the yelling”
and “questioning” and they “never got to the facts of the situation.”

>3.
Internal investigation of traffic citation incident

An
internal affairs investigation was conducted by the CDCR regarding the traffic
citation incident and another incident, described below, regarding Salas’s
early closure of the San Jose parole office.
As part of the investigation, several individuals were interviewed on
June 15, 2007. Transcripts of the interviews of Chief Grebmeier, Sergeant
Perez, Marlar, Assistant Supervising Parole Agent McLaughlin, and Salas were
received into evidence at the hearing before the ALJ. All of these individuals, except Marlar, also
testified at the hearing before the ALJ.

According
to the transcript of Marlar’s interview, Marlar was asked why he had Chief
Grebmeier speak to Salas on the phone.
Marlar responded, “I figured professional courtesy between two
officers.” Marlar further stated that
“it was a bogus cite” by Chief Grebmeier, and that he “figured . . .
professional courtesy might kick in” after Salas identified himself as a parole
agent.

According
to the transcript of Salas’s internal affairs interview, Salas stated that
Marlar had called and told him, “ ‘I need you to talk to this guy.’ ” Salas reported that Marlar did not identify
the person. Salas thought the call
involved an issue related to the Subway restaurant that Marlar was building for
him, as he had in the past received calls from Marlar concerning “whether it’s
Coke or whether it’s carbonation or where does this go” or “where [are] you
going to mount this.” Salas told the
interviewer that he did not know the person was the chief of police or from the
Greenfield Police Department “ ‘til the end” of the call.

Salas
also informed the interviewer during the internal affairs investigation that he
did not initially identify himself as a parole agent to Chief Grebmeier on the
phone. Rather, he identified himself as
the owner of the Subway restaurant. It
was not until Chief Grebmeier specifically asked Salas who he worked for that
Salas claims he identified himself as a parole agent.

Additionally,
Salas denied in the internal affairs interview that he had asked to speak to
Sergeant Perez during the call. Salas
told the internal affairs interviewer that after Chief Grebmeier finally
identified himself as the Chief of Police from Greenfield, Salas made a comment
to Chief Grebmeier to the effect that the only person he knew in the Greenfield
Police Department was Sergeant Perez.

>4.
Early closure of parole office

The
“normal hours of operation” for the San Jose parole office were from
8:00 a.m. to 5:00 p.m. The office
was sometimes closed during the lunch hour between 12:00 and 1:00 p.m. There had also been times when an employee
party, such as a birthday party, that was usually was held during the lunch
hour went beyond that time and the office remained closed until 1:30 or
2:00 p.m.

Six
parole agents and two clerical staff worked at the San Jose parole office. About 20 to 30 percent of a parole agent’s
time was spent in the office, while the remainder of the time was spent working
in the field, including making contact with parolees and other agencies and
gathering evidence.

A
parole agent had to be present in the San Jose parole office if the office was
open. Staff members who were not peace
officers were not allowed to be left in the office by themselves.

The
“officer of the day” was a parole agent who was scheduled to be in the parole
office. The officer of the day had
various responsibilities, including fielding phone calls from law enforcement,
processing a parolee who came in to make a contact, and ensuring the safety and
security of the office. Although the
officer of the day “somewhat” oversaw the office, the officer of the day was
“still under supervision by one of the assigned supervisors.”

The
officer of the day did not have the authority to close the parole office
early. McLaughlin, the assistant
supervising parole agent who supervised Salas for a period of time, testified
that permission was needed from regional headquarters before the officer of the
day may close the office early. Ronald
George Cannon, who had been working for the CDCR for approximately 28 years,
had recently been working as a parole agent in the San Jose parole office for
approximately 12 years, and had “routinely served” as officer of the day,
similarly testified: “We operate under
supervision. The office should only be
shut down with the approval of a supervisor or an administrator.”

On
April 11, 2007, Salas was the assigned officer of the day at the San Jose parole
office. About 4:00 p.m., Salas closed
the office early and sent home two staff members. The two staff members were responsible for
transferring incoming phone calls to the cell phones of parole agents who were
not in the office.

Salas
had not contacted a supervisor before closing the office. About 4:05 p.m., parole agent Cannon
drove into the parking lot of the office and observed that the parking lot was
empty. After discovering that the office
was locked and that no one was in the building, he spoke by telephone with two
supervisors, McLaughlin and Reggie Watkins.
At the direction of McLaughlin, parole agent Cannon remained at the
office until the normal closing hour.
While Cannon was present in the office, one parolee came in for his
weekly office contact.

According
to McLaughlin, at some point after the office had been closed, Salas informed
him that he had closed the office because he had not felt well. At the hearing before the ALJ, McLaughlin
testified that he could not recall any other time that the San Jose parole
office was closed before normal business hours.
He further testified that if Salas had called him first, and if there
was no choice, he “most likely” would have directed the staff to go home.

It
is unknown whether there was any “harm” to the San Jose parole office as a
result of the office being closed early.
McLaughlin testified that if someone had called the office or if a
parolee had attempted to visit the office after it was closed early, that
“could cause a problem.”

Salas
testified that he felt sick before going to work that day. After arriving for work, he “progressively
got worse.” He threw up two or three
times, but “tried to hang in there as long as [he] could.” Salas eventually felt “so sick” that he
thought he was going to have to call his wife to pick him up. He “lasted up until” 4:00 p.m. Salas had previously been instructed that
clerical staff may not be left in the office alone, so he told the staff that
they had to leave, too. When interviewed
during the internal affairs investigation, Salas stated that he “planned on
letting [his] supervisor know the next day.”

Salas
testified that about 10 minutes after he left the parole office, he received a
call from his supervisor, Watkins.
Watkins had heard that the office was closed and wanted to know whether
Salas had left the office. Salas told
Watkins that he was feeling sick and that he had tried to stay at the office as
long as he could. According to Salas,
Watkins stated “that’s fine,” but indicated that Salas should try to inform him
beforehand. Salas testified that
McLaughlin called him thereafter and he again explained the situation. According to Salas, McLaughlin stated that he
would have told Salas “to do the same thing that [Salas] did,” so Salas “felt
reassured that [he] made the right decision . . . .”

Salas
testified that he had “seen the office . . . closed for a couple of hours for .
. . staff birthdays and for retirements and going away.” He further testified that he would not try to
leave the parole office early just because he wanted to, and that he had left
because he felt it was a “medical necessity.”

>C. >The Board’s Decision

The
ALJ issued a proposed decision, finding several causes for discipline of
Salas. Regarding the traffic citation incident,
the ALJ observed that Chief Grebmeier and Salas had offered conflicting
testimony regarding their phone conversation.
The ALJ made a credibility finding in favor of Grebmeier and stated that
Salas’s “testimony is not believed.”
Regarding these credibility findings, the ALJ explained as follows: Salas “offered inconsistent statements
regarding the incident,” Salas “had a motive to help Marlar avoid a traffic
ticket” because “Marlar was the only authorized Subway contractor” in the area,
Salas’s “actions after the phone call failed to comport with his version of the
incident” as “one would expect [Salas] to contact his supervisors or Grebmeier
to straighten out the misunderstanding” but he never did, Grebmeier “had no
motive to concoct the allegations against” Salas, and to the extent Grebmeier
“gave inconsistent statements” regarding whether Salas stated he was a friend
or business acquaintance of Marlar such “impeachment was minor, and
collateral.”

Based
on the credibility findings, the ALJ determined that Salas had “attempt[ed] to
dissuade a police chief from issuing a traffic ticket to his business
acquaintance.” The ALJ further found
that Salas knowingly made false statements during an investigative
interview, and closed the parole office early without informing his supervisors
although he knew he was required to inform them. The ALJ determined that Salas’s dismissal
from employment was the appropriate penalty.

The
Board subsequently adopted the ALJ’s proposed decision. Salas petitioned for rehearing. The Board granted the rehearing petition and
“decided to hear the case itself.” The
Board received written briefs from the parties, heard oral arguments, and
considered the record, including transcripts and exhibits. The Board again adopted the ALJ’s original
proposed decision.

>D. >The Petition for a Writ of Administrative Mandamus

In
August 2010, Salas filed an amended petition for a writ of administrative
mandamus in superior court seeking to have his dismissal from employment set
aside. The CDCR and the Board opposed
the petition.

The
matter was set for hearing on February 10, 2011. Prior to the hearing, Salas and the CDCR each
filed a memorandum of points and authorities in support of their respective
positions. The record on appeal does not
contain a reporter’s transcript of the hearing.

On
June 2, 2011, the superior court filed an order denying Salas’s petitionhref="#_ftn3" name="_ftnref3" title="">[3]
and entered judgment in favor of the CDCR and the Board. The CDCR filed a notice of entry of judgment
on June 8, 2011. Salas filed a href="http://www.fearnotlaw.com/">notice of appeal on August 1, 2011.

>III. DISCUSSION

On
appeal, Salas contends that the superior court erred in denying his petition
for a writ of administrative mandamus directing the Board to set aside his
dismissal from employment with the CDCR.
First, Salas argues that “it does not appear that there is any
indication that the trial court applied the correct standard of review” with
respect to the Board’s decision and that the matter should be remanded so that
the court may apply the proper standard.
Second, he contends that there is not substantial evidence to support
the Board’s findings. Third, Salas
argues that his dismissal from employment was “grossly disproportionate to the
alleged wrongs.” We will consider each
contention in turn.

>A. >Whether the Superior Court Used the Correct Standard in Reviewing
the Board’s Decision


Salas
contends on appeal, as he did below, that the superior court was required to
exercise its independent judgment on
the evidence before the Board, because the Board’s decision affected his
fundamental vested right in employment.
In the superior court, the CDCR had argued that the court had to
determine whether substantial evidence
supported the Board’s decision to dismiss Salas. Salas acknowledges that the record on appeal
does not reflect which standard the court applied. He nevertheless contends that “[w]here . . .
the wrong standard of review was argued [by the CDCR] and where the matter is
factually close, it would seem appropriate to remand so that the trial court
can evaluate the evidence of the administrative agency under the appropriate
standard of review.”

The
CDCR continues to assert that the substantial evidence test applies when the
superior court reviews the Board’s decision, as the Board is an agency of
constitutional authority.

For
the following reasons, we determine that remand, as requested by Salas, is not
warranted in this case.

First,
Salas fails to demonstrate that the superior court applied an incorrect
standard in reviewing the Board’s decision.
A fundamental rule of appellate review is that an “ ‘order of the
lower court is presumed correct. All intendments and presumptions are indulged
to support it on matters as to which the record is silent, and error must be
affirmatively shown.’ ” (>Denham v. Superior Court (1970) 2 Cal.3d
557, 564 (Denham); >Conservatorship of Rand (1996) 49
Cal.App.4th 835, 841.) In this case,
Salas acknowledges that the record is silent as to which standard the superior
court applies. Under the circumstances,
we must presume the court’s order is correct.

Second,
we are not persuaded by Salas’s argument that the superior court was required
to exercise its independent judgment
on the evidence before the Board.

“The
Board is a statewide administrative agency which is created by, and derives its
adjudicatory power from, the state Constitution. (Cal. Const., art. VII, §§ 2, 3 . . . .) Under that constitutional grant, the Board is
empowered to ‘review disciplinary actions.’
In undertaking that review, the Board acts in an adjudicatory capacity.
. . . As such the Board acts much as a
trial court would in an ordinary judicial proceeding. Thus, the Board makes factual findings and
exercises discretion on matters within its jurisdiction.” (Department
of Parks & Recreation v. State Personnel Bd
. (1991) 233 Cal.App.3d 813,
823 (Department of Parks & Recreation).)

“Because
the State Personnel Board derives its adjudicatory authority from the state
Constitution rather than from a legislative enactment, a superior court
considering a petition for administrative mandate must defer to the board’s
factual findings if they are supported by substantial evidence. [Citation.]”
(State Personnel Bd. v. Department
of Personnel Admin.
(2005) 37 Cal.4th 512, 522; accord Coleman v. Department of Personnel Administration (1991) 52 Cal.3d
1102, 1125 (Coleman); >Moosa v. State Personnel Bd. (2002) 102
Cal.App.4th 1379, 1384-1385 (Moosa);> Department of Parks & Recreation, >supra, 233 Cal.App.3d at p. 823; see >Pan v. State Personnel Bd. (1986) 180
Cal.App.3d 351, 357 (Pan).) Moreover, “[d]ecisions of the State Personnel
Board . . . are reviewed only to determine whether substantial
evidence supports the determination, even when vested rights are involved. ( . . . Strumsky
v. San Diego County Employees Retirement Assn.
(1974) 11 Cal.3d 28, 35 [(>Strumsky)] . . . .)” (Coleman,
supra, 52 Cal.3d at
pp. 1125-1126; accord Pollak v.
State Personnel Bd.
(2001) 88 Cal.App.4th 1394, 1404 (Pollak).)

In
Strumsky, the California Supreme
Court explained the basis for the different standards of judicial review. With respect to “the considerations which
counsel in favor of fuller judicial review in cases involving vested, fundamental
rights,” the court stated: “When an administrative decision affects a right
which has been legitimately acquired or is otherwise ‘vested,’ and when that
right is of a fundamental nature . . . [,] then a full and independent >judicial review of that decision is
indicated because ‘[the] abrogation of the right is too important to the
individual to relegate it to exclusive administrative extinction.’ [Citation.]”
(Strumsky, >supra, 11 Cal.3d at p. 34>.)
This reasoning “has been held inapplicable,” however, in the case of
“agencies of constitutional origin which have been granted limited judicial
power by the Constitution itself.
[Citations.]” (>Id. at p. 35, fn. omitted.) “It is established that when review of a
decision of an agency falling within [this category] is sought pursuant to
section 1094.5 of the Code of Civil Procedure, the court’s scrutiny of the
agency’s factual findings is limited to a determination whether those findings
are supported by substantial evidence in light of the whole record—and this is
so whether or not the decision of the
agency affects a fundamental vested right.”
(Ibid.)

The
Strumsky court explained that the
“roots” of the distinction with respect to “so-called ‘constitutional agencies’
can be traced to their ultimate source in one of our most fundamental
constitutional doctrines, that of separation of powers. That doctrine, which has been a part of the
Constitution of this state since its inception, is presently expressed in article
III, section 3 as follows: ‘The powers
of state government are legislative, executive, and judicial. Persons charged with the exercise of one
power may not exercise either of the others except
as permitted by this Constitution
.’
(Italics added.) It is the
italicized proviso which forms the basis for the exercise of judicial powers by
so-called ‘constitutional agencies’; insofar as specific constitutional
provisions relating to the individual agencies in question directly vest
judicial power in them, the agencies so favored can perform judicial functions
to the extent of the grant without offending the doctrine of separation of
powers. [Citations.] Thus, even though a vested fundamental right
be involved, the determination of the agency on factual issues is entitled to
all the deference and respect due a judicial decision.” (Strumsky,
supra, 11 Cal.3d at pp. 35-36, fns.
omitted.)

Although
Salas cites several cases, including Strumsky,
for the proposition that the superior court must exercise its independent
judgment when the administrative agency’s decision affects a fundamental vested
right, Salas fails to address the circumstance of a decision by an agency, such
as the Board, which “derives its adjudicatory authority from the state
Constitution.” (State Personnel Bd. v. Department of Personnel Admin., >supra, 37 Cal.4th at p. 522; accord >Strumsky, supra, 11 Cal.3d at pp. 35-36.)
Accordingly, we determine that Salas fails to articulate a persuasive
basis for remanding the matter to the superior court for reevaluation of the
evidence.

>B. >Substantial Evidence

The
Board adopted the ALJ’s decision, in which the ALJ determined that Salas
1) made an “attempt to dissuade a police chief from issuing a traffic
ticket to his business acquaintance,” 2) knowingly made false statements
during an investigative interview, and 3) closed the parole office early
without informing his supervisors although he knew he was required to inform
them.

On
appeal, Salas contends that substantial evidence does not support the Board’s
findings, and that his dismissal from employment should therefore be set aside.

In
response, the CDCR argues that there was “ample evidence” supporting the
Board’s findings.

The
scope of judicial review of an administrative mandate proceeding is set forth
in section 1094.5. The superior court’s
review may include whether there was any “prejudicial abuse of discretion” by
the Board. (§ 1094.5, subd. (b).) An abuse of discretion is established if the
Board’s “findings are not supported by the evidence.” (Ibid.) As explained, the superior court “must defer
to the board’s factual findings if they are supported by href="http://www.mcmillanlaw.com/">substantial evidence. [Citation.]”
(State Personnel Bd. v. Department
of Personnel Admin.
, supra, 37
Cal.4th at p. 522; accord Coleman, >supra, 52 Cal. 3d at p. 1125; >Strumsky, supra, 11 Cal.3d at p. 35; >Moosa, supra, 102 Cal.App.4th at pp. 1384-1385; Pollak, supra, 88
Cal.App.4th at p. 1404; Department of
Parks & Recreation
, supra,
233 Cal.App.3d at p. 823; Pan,> supra, 180 Cal.App.3d at p. 357.)

“
‘In reviewing a decision of [the Board] on a petition for administrative
mandamus, we [the appellate court] stand in the same shoes as the trial court,
applying the substantial evidence rule.’
[Citation.]” (>California Dept. of Corrections v. State
Personnel Bd. (2004) 121 Cal.App.4th 1601, 1611.) Under the substantial evidence rule, “all
reasonable and legitimate inferences must be drawn in support of [the Board’s
factual] findings.” (>Pan,
supra
, 180 Cal.App.3d at p. 357.)

>1.
Attempt to dissuade during traffic citation incident

Regarding
the Board’s first finding that Salas attempted to dissuade Chief Grebmeier from
issuing a traffic ticket, Salas contends that there is “nothing in the record
that hints that such an action took place.”
Salas points to Chief Grebmeier’s testimony that Salas “never asked” him
not to write Marlar a ticket. Salas also
points to testimony by Chief Grebmeier in which he indicated that he ended the
phone conversation before it went from what he thought was “inappropriate” to
being “criminal.” Salas asserts that the
Board’s findings concerning this incident “is simply inconsistent with the
testimony of Grebmeier.”

We
conclude that substantial evidence supports the finding that Salas attempted to
dissuade Chief Grebmeier from issuing a traffic ticket to a business
acquaintance. Although Salas did not
specifically ask Chief Grebmeier to not issue a ticket to Marlar, Chief
Grebmeier testified that it was his “impression” that Salas “was trying to get
[him] to not write this person a ticket.”
The evidence before the Board established that Marlar knew he was being
issued a citation before he had Salas talk to Chief Grebmeier. In the ensuing conversation between Salas and
Chief Grebmeier, Salas did not sound confused, nor did he ask Chief Grebmeier
why Marlar had handed over the phone.
During the phone call, Salas knew that Grebmeier worked for a police
department and that he was handling a traffic stop. Salas identified himself as a parole officer,
referred to Marlar as a friend or business acquaintance, and did not offer any
response when Chief Grebmeier specifically inquired as to whether Salas had “an
issue” with the traffic stop or wanted something done. After Chief Grebmeier again identified
himself and asked Salas about his interest in the traffic stop, Salas indicated
that he wanted to speak to Sergeant Perez, who worked in the same police
department as Chief Grebmeier. As noted
above, our review in this case is governed by the substantial evidence test,
and we must draw “all reasonable and legitimate inferences . . . in
support of [the Board’s factual] findings.”
(Pan, supra, 180 Cal.App.3d at p. 357.)
In this case, based on the circumstances of the phone call, and the
substance of Salas’s responses to Chief Grebmeier’s questions, a reasonable and
legitimate inference arises that Salas was attempting to dissuade Chief
Grebmeier from issuing a citation to Marlar.
Moreover, Salas admitted that during the call, he knew Chief Grebmeier
was angry, that Chief Grebmeier had indicated he was going to talk to Salas’s
supervisor, and that Chief Grebmeier had raised the issue of whether Salas was
“going to get involved with traffic enforcement” in Greenfield. Salas also admitted that Marlar later
explained to him the situation involving the ticket and that Marlar had thought
Salas “could talk some sense into” the officer.
Salas did not immediately thereafter try to clarify or explain the
situation to either his supervisor or Chief Grebmeier. Salas also had a motive to help Marlar avoid
a ticket, as Marlar was an authorized contractor for Subway and was handling
the construction of a Subway restaurant for Salas. In sum, after drawing “all reasonable and
legitimate inferences . . . in support of [the Board’s factual]
findings,” we determine there was ample evidence to support the conclusion that
Salas had attempted to use his parole agent or peace officer status for private
advantage during the phone call with Chief Grebmeier. (Pan,> supra, 180 Cal.App.3d at p. 357.)

>2.
False statements during internal investigation

The
Board’s second finding was that Salas knew the following statements were false
when he made them during an investigative interview on June 15, 2007: 1) he was unaware that Grebmeier was a police
officer when he spoke to him, 2) he did not initially identify himself to
Grebmeier as a parole agent, and 3) he did not ask to speak to Sergeant Perez.

On
appeal, Salas first contends that “no evidence was presented regarding this
issue” at the hearing before the ALJ.
Second, we understand Salas to contend that the ALJ improperly relied on
“findings of dishonesty” by an investigating officer who “did not testify at
the hearing” before the ALJ. According
to Salas, the ALJ “simply took the declaration of the investigating officer at
face value and adopted his conclusions of dishonesty” and Salas “was not
afforded a right to confront and cross-examine [this] adverse witness.”

We
are not persuaded by Salas’s arguments.
First, Salas fails to provide a citation to the record supporting his
claim that the ALJ relied on a “declaration” or “findings of dishonesty” by an
investigating officer involved in the internal affairs investigation. In another section of his brief on appeal, Salas
refers to a “Confidential Report dated June 29, 2007” by “Special Agent Paul
Edwards.” Salas does not provide a
citation to the record for this document, nor does it appear from the record
that such a report was introduced into evidence at the hearing before the
ALJ. Consequently, Salas fails to
demonstrate error due to the ALJ’s purported reliance on an investigating
officer’s declaration or findings. (See >Denham, supra, 2 Cal.3d at p. 564 [appellant must affirmatively show
error].)

Second,
there was evidence presented regarding Salas’s statements during the internal
affairs investigation. Specifically, a
transcript of Salas’s June 2007 internal affairs interview was introduced into
evidence at the hearing before the ALJ without objection. According to that transcript, Salas indicated
to the internal affairs interviewer that 1) he did not know Grebmeier was the
chief of police or from the Greenfield Police Department until the end of the
call, 2) he did not initially identify himself as a parole agent to Chief
Grebmeier on the phone, and 3) he did not ask to speak to Sergeant Perez during
the call. Based on this transcript and
other evidence presented at the hearing, including the testimony of Chief
Grebmeier and the memorandum he prepared shortly after the incident, and after
drawing “all reasonable and legitimate inferences . . . in support of [the
Board’s factual] findings,” we determine that there was substantial evidence to
support the finding that Salas had knowingly made false statements during the
investigative interview. (>Pan,
supra
, 180 Cal.App.3d at p. 357.)

>3.
Early closure of parole office without informing supervisors

The
Board’s third finding was that Salas closed the parole office early without
informing his supervisors although he knew he was required to inform them. On appeal, Salas contends that there was “no
policy regarding closure of the parole office,” the “office [was] closed on an
ad hoc basis,” and thus it was “inappropriate” to punish him for closing the
parole office.

We
determine that there was substantial evidence to support the Board’s finding
that Salas closed the parole office early, that he failed to inform his
supervisors before doing so, and that he knew he was required to inform
them. The evidence was undisputed that
the San Jose parole office was normally open until 5:00 p.m., and that Salas,
who was working as officer of the day, had closed the office about one hour
early. There was also undisputed
evidence that the officer of the day did not have the authority to close the
parole office early, and that permission was needed in order for the officer of
the day to do so.

A
reasonable inference arises that Salas knew he needed to inform a supervisor
before closing the office early. First,
Salas had worked as officer of the day numerous times. He testified that he “volunteered” to work
“extra officer of the day duties” and that at times, he worked “more than 30
hours a month” as officer of the day.
Thus, the officer of the day assignment was not unfamiliar to him. Second, two other individuals who had worked
out of the San Jose parole office—McLaughlin, an assistant supervising parole
agent who supervised Salas for a period of time, and Cannon, a parole agent who
had served as officer of the day—testified that they were aware of the
requirement that permission was needed in order for the officer of the day to
close the office early. Even Salas
admitted that after he told his other supervisor, Watkins, that he had left
early because he was sick, Watkins responded that Salas should “try to tell us
before.” Thus the policy requiring
advance notice to a supervisor before closing the office early appears to have
been generally known amongst those working out of the San Jose parole office. Third, in view of a) the duties of the
officer of the day, including fielding phone calls from law enforcement,
processing a parolee who comes in to make a contact, and ensuring the safety
and security of the office, and b) the fact that other staff may not remain in
the office without a peace officer present, commonsense dictates that an
officer of the day who desires to leave his job duties early and close the
office should seek to inform a supervisor beforehand.

Salas
points to evidence that the parole office was closed at times for staff
birthdays or similar events. Salas does
not, however, cite any evidence establishing that those closings were
undertaken by an officer of the day without first notifying a supervisor.

Salas
also challenges the following factual finding by the ALJ: “[Salas] had been instructed in the past that
he could not leave clerical staff in the office without a parole agent present,
because a parolee might drop by the office.”
We determine that there is ample factual support for this finding. According to the transcript of Salas’s June
2007 investigative interview, which as noted above was introduced into evidence
at the hearing before the ALJ without objection, Salas stated: “And it’s always been told to us that if
we’re not -- if we’re not there, we can’t have clerical there by themselves because
parolees come in.” Salas similarly
testified at the hearing before the ALJ as follows: “Reggie Watkins, my supervisor, he has told,
he has instructed me that anytime that we have to leave the office, that
clerical can’t be there by themselves.”

In
sum, after drawing “all reasonable and legitimate inferences . . . in support
of [the Board’s factual] findings,” we determine that there is substantial
evidence to support the Board’s finding that Salas closed the parole office
early without informing his supervisors, although he knew he was required to
inform them. (Pan, supra, 180
Cal.App.3d at p. 357.)

>C. >Penalty

The
Board determined that Salas’s dismissal from employment was an appropriate
penalty. The Board explained: “[Salas’s] misconduct harmed the public
service. His attempt to influence a
traffic ticket discredited CDCR in the eyes of another law enforcement
agency. Using his peace officer status
for private advantage, and then trying to cover up the incident with dishonest
statements, severely undercut [Salas’s] reputation for integrity. [Salas’s] dishonest statements could be used
to impeach him should he need to testify in court in the future, thereby
reducing [Salas’s] effectiveness and value as a parole agent. Failing to notify his supervisors that he was
closing down the parole office undermined his supervisor’s authority, and could
have impeded the efforts of parolees to report to their parole officers. Finally, [Salas’s] failure to acknowledge his
misconduct increases the odds that such misconduct could recur in the future.”

On
appeal, Salas argues that the Board abused its discretion because his dismissal
from employment was “grossly disproportionate to the alleged wrongs.”

The
CDCR contends that dismissal was appropriate, because Salas’s conduct “brought
harm to the public service, discredited CDCR, discredited his status as a peace
officer, and brings into question all of the work he has conducted.”

“
‘[I]n the context of public employee discipline,’ the ‘overriding
consideration’ is ‘the extent to which the employee’s conduct resulted in, or
if repeated is likely to result in, “harm to the public service.” [Citations.]
Other relevant factors include the circumstances surrounding the
misconduct and the likelihood of its recurrence. [Citation.]’ [Citations.]”
(County of Siskiyou v. State
Personnel Bd.
(2010) 188 Cal.App.4th 1606, 1615; accord >Thompson v. State Personnel Bd. (1988)
201 Cal.App.3d 423, 429 (Thompson).) The nature of the profession in issue may
also be considered, “since some occupations such as law enforcement, carry
responsibilities and limitations on personal freedom not imposed on those in
other fields. [Citation.]” (Thompson,
supra, 201 Cal.App 3d at p. 429.)

“
‘ “[I]n a mandamus proceeding to review an administrative
order
, the determination of the penalty by the administrative body will not
be disturbed unless there has been an abuse of its discretion.” ’ [Citations.]
‘Neither an appellate court nor a trial court is free to substitute its
discretion for that of the administrative agency concerning the degree of
punishment imposed.’ [Citation.] ‘It is only in the exceptional case, when it
is shown that reasonable minds cannot differ on the propriety of the penalty,
that an abuse of discretion is shown.’
[Citations.]” (>Bautista v. County of Los Angeles (2010)
190 Cal.App.4th 869, 879; accord Pollak,
supra, 88 Cal.App.4th at p. 1404; >JKH Enterprises, Inc. v. Department of
Industrial Relations (2006) 142 Cal.App.4th 1046, 1058, fn. 11
[“appellate court reviews the penalty de novo to determine whether the agency
abused its discretion”].)

In
arguing that his dismissal was “grossly disproportionate” to his conduct, Salas
first contends that the evidence shows only that he “may have taken a telephone
call from his contractor” and that he did not do anything improper, that there
were “no set policies” regarding closing the parole office and it had been
closed on other occasions, and that “the alleged falsity in the investigative
process does not appear to exist.”
Salas’s contentions are contrary to the Board’s factual findings and, as
we have explained, the Board’s factual findings were supported by substantial
evidence.

Second,
Salas challenges the ALJ’s finding that there were discrepancies between his
testimony at the hearing and his statements during the investigative
interview. We are not persuaded by
Salas’s argument that there were no discrepancies, or his argument that they
were “inconsequential.”

In
sum, Salas fails to offer a persuasive basis for concluding that the penalty of
dismissal in this case was an abuse of discretion by the Board.

>IV. DISPOSITION

The
judgment is affirmed.





___________________________________________

Bamattre-Manoukian, J.











WE CONCUR:









__________________________

ELIA, ACTING
P.J.















__________________________

GROVER, J.href="#_ftn4" name="_ftnref4" title="">*







id=ftn1>

href="#_ftnref1"
name="_ftn1" title=""> [1]
All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.

id=ftn2>

href="#_ftnref2"
name="_ftn2" title=""> [2]
In the transcript of the hearing before the ALJ, the reporter transcribed the
police chief as spelling his last name “Gredmeier.” However, in the police chief’s written
verification of form interrogatory responses and in a self-prepared memorandum,
he spelled his own name as “Grebmeier.”
We will use the latter spelling in this opinion.

id=ftn3>

href="#_ftnref3"
name="_ftn3" title=""> [3]
The record reflects that Judge Lucas presided over the February 2011 hearing on
Salas’s petition. The order denying
Salas’s petition was signed by Judge Overton pursuant to section 635. Section 635 states that, “[i]n all cases
where the decision of the court has been entered in its minutes, and when the
judge who heard or tried the case is unavailable, the formal judgment or order
conforming to the minutes may be signed by the presiding judge of the court or
by a judge designated by the presiding judge.”

id=ftn4>

href="#_ftnref4" name="_ftn4" title="">*Judge of the
Monterey County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.








Description Respondent California Department of Corrections and Rehabilitation (CDCR) dismissed appellant James Salas from his employment as a parole agent after determining that he had engaged in misconduct. Salas appealed the dismissal to the California State Personnel Board (Board), which upheld the dismissal. Salas thereafter filed a petition for a writ of administrative mandamus in the superior court pursuant to Code of Civil Procedure section 1094.5.[1] The court denied the petition and entered judgment in favor of the CDCR and the Board.
On appeal, Salas contends that “it does not appear that there is any indication that the trial court applied the correct standard of review” with respect to the Board’s decision and that the matter should be remanded so that the court may apply the proper standard. He also argues that there is not substantial evidence to support the Board’s findings. Salas further contends that his dismissal from employment was “grossly disproportionate to the alleged wrongs.”
For reasons that we will explain, we will affirm the judgment.
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