Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCV040487. James E. Oakley, Judge.
Department of Corrections and Rehabilitation, Office of Legal Affairs, Debra L. Ashbrook, Chief Counsel and Stephen A. Jennings, Staff Counsel, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
California Correctional Peace Officers Association, David Sanders, General Counsel, Daniel Lindsay, Chief Legal Counsel and Shelley Lytle, Supervising Legal Counsel, for Real Party in Interest and Respondent.
OPINION
Before Ardaiz, P.J., Levy, J. and Poochigian, J.
Twelve years ago in Kazensky v. City of Merced (1998) 65 Cal.App.4th 44 (Kazensky) we stated “[i]t has long been the rule that ‘[t]he penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated’ and that ‘[n]either 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.’” (Kazensky, supra, citing Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 404.) In this case we apply this well established rule and conclude that the administrative body (respondent California State Personnel Board) did not abuse its discretion in imposing an 18-month suspension without pay on respondent Michael Coakley, even though Coakley’s employer (appellant California Department of Corrections and Rehabilitation (the Department)) contends that the superior court should have ordered the Board to terminate Coakley’s employment. We will affirm the order of the superior court denying the Department’s petition for writ of mandate.
FACTS
The Board’s findings of fact are not in dispute on this appeal. Coakley was a correctional officer employed by the Department and worked at the Central California Women’s Facility. On January 23, 2005, he was assigned to the third watch of a prison kitchen, and on that date he engaged in inappropriate horseplay with a female inmate. After some verbal banter between Coakley and the inmate, the inmate grabbed Coakley’s hat, and the two then wrestled to the floor. They stopped when they were seen by a cook, Mario Uribe. Uribe reported the incident to a supervisor. A subsequent investigation resulted in Coakley’s dismissal on January 27, 2006. During the investigation, Coakley told an investigating lieutenant that he (Coakley) had slipped on grease from a gravy spill. Coakley’s story contradicted accounts given by all three of the witnesses who observed the incident as well as the account of the incident given by the inmate involved. Coakley also told the investigating lieutenant that a Supervising Cook, Cortez Anderson Jackson, was aware of the gravy spill. When the lieutenant interviewed Jackson, Jackson denied that there had been any such spill. The Department dismissed Coakley from employment.
Coakley appealed his dismissal. After a hearing before an administrative law judge (ALJ), the ALJ made the findings of fact described above. The ALJ found that Coakley’s behavior constituted inexcusable neglect of duty (Gov. Code, § 19572, subd. (d)), willful disobedience (Gov. Code, § 19572, subd. (o)), and behavior causing discredit to the appointing authority (Gov. Code, § 19572, subd. (t)). Most pertinent to this appeal is the ALJ’s finding that Coakley “did not truthfully answer questions regarding his interaction with [the inmate] during the investigative interview” and “[a]ccordingly, ... was dishonest in violation of Government Code section 19572(f).” The ALJ’s Proposed Decision recommended that Coakley’s dismissal be modified to a one year suspension.
The Board adopted the ALJ’s Proposed Decision as the Board’s Decision “with the exception of the rationale for the penalty determination....” The Board determined the appropriate penalty to be a suspension of 18 months. The Board’s Decision stated: “[Coakley] engaged in horseplay with an inmate. While such conduct is cause for discipline, ordinarily an employee with [Coakley’s] employment history would not be subject to the imposition of harsh discipline for such a transgression. Here, however, [Coakley] repeatedly denied having engaged in any misconduct. Dishonesty on the part of a peace officer is always a very serious matter and can certainly lead to that officer’s dismissal. Under all of the circumstances presented here, however, we are satisfied that appellant is deserving of one final chance to prove that he is a trustworthy employee. As a result, we find that the just and proper penalty in this case is a suspension for 18 months.” The Board’s Decision was four to one, with the dissenting Board member stating that “dishonesty in a peace officer must always be viewed as an extremely serious transgression [fn. omitted], ” and that “I would sustain [Coakley’s] dismissal.”
The Department petitioned the superior court for a writ of mandate directing the Board to reinstate the Department’s penalty of dismissal. The superior court found no abuse of discretion by the Board and denied the petition, thus upholding the Board’s determination that the penalty of an 18-month suspension was lawful, and entered judgment in favor of the Board.
THE BOARD DID NOT ABUSE ITS DISCRETION
In Kazensky, supra, we stated:
“When the superior court has conducted its review and has concluded that the agency properly found misconduct, the imposition of the appropriate penalty for that misconduct is left to the sound discretion of the agency. ‘The penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated.’ (Barber v. State Personnel Bd. [(1976)] 18 Cal.3d [395, ] 404.) ‘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.’ … The superior court ‘is not free to substitute its opinion for that of the administrative body as to an appropriate disciplinary measure.’ (Bailey [v. City of National City (1991)] 226 Cal.App.3d [1319, ] 1325, fn. 4.) ‘The appellate court’s review of the degree of discipline imposed … remains the same as that appropriate to the trial court: The discipline imposed will not be disturbed unless it is shown to have been a manifest abuse of discretion.’ (Ibid.) ‘Neither a trial court nor an appellate court is free to substitute its discretion for that of an administrative agency concerning the degree of punishment imposed.’ (California Real Estate Loans, Inc. v. Wallace [(1993)] 18 Cal.App.4th [1575, ] 1580.) ‘In reviewing the exercise of this discretion we bear in mind the principle “[c]ourts should let administrative boards and officers work out their problems with as little judicial interference as possible.… Such boards are vested with a high discretion and its abuse must appear very clearly before the courts will interfere.”’ (Talmo v. Civil Service Com. [(1991)] 231 Cal.App.3d [210], 230, quoting from Maxwell v. Civil Service Commission (1915) 169 Cal. 336, 339 [].) In determining whether an agency abused its discretion in assessing a particular penalty, a court will look to ‘whether reasonable minds may differ as to the propriety of a penalty imposed.’ (Lake v. Civil Service Commission [(1975)] 47 Cal.App.3d [224], 228; see also Cal. Administrative Mandamus, supra, § 4.87.) Judicial interference with the agency’s assessment of a penalty ‘will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency.’ (Lake v. Civil Service Commission, supra, 47 Cal.App.3d at p. 228.)” (Kazensky, supra, 65 Cal.App.4th at pp. 53-54.)
The rule we applied in 1998 in Kazensky was nothing new at that time. “In 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.” (Magit v. Board of Medical Examiners (1961) 57 Cal.2d 74, 87; in accord, see also Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217.) “[I]t is well settled that in reviewing the penalty imposed by an administrative body, neither a trial court nor an appellate court is free to substitute its own discretion as to the matter.” (Nightingale v. State Personnel Board (1972) 7 Cal.3d 507, 515; in accord, see also Barber v. State Personnel Board, supra, 18 Cal.3d at p. 404.) Nor has the rule changed since then. (See, e.g., Flippin v. Los Angeles City Bd. of Civil Service Commissioners (2007) 148 Cal.App.4th 272, 279.)
The Department first contends that this court should make a de novo determination of the appropriate penalty for Coakley’s misconduct. For this the Board cites County of Santa Cruz v. Civil Service Commission of Santa Cruz (2009) 171 Cal.App.4th 1577. That case, however, does not so hold. County of Santa Cruz applied the same well established standard of review we recognized in Kazensky, supra, 65 Cal.App.4th 44. The only thing “de novo” about our review is that we do not defer to the superior court’s ruling, but instead conduct the same review conducted by that court. The County of Santa Cruz decision so states: “We review the administrative determination of the Commission under the same standard of abuse of discretion applied by the trial [court] in its review of the ‘Petition for Writ of Administrative Mandamus.’ [Citation.] Reversal is warranted when the administrative agency abuses its discretion, or exceeds the bounds of reason.” (County of Santa Cruz, supra, 171 Cal.App.4th at pp. 1581-1582.)
The Department then contends that even under an abuse of discretion standard, the Board must be found to have abused its discretion in imposing any discipline short of dismissal from employment when the employee is disciplined for “[d]ishonesty” (Gov. Code, § 19572, subd. (f)). The Department argues: “The Fourth District Court of Appeal in Kolender v. San Diego County Civil Service Commission (2005) 132 Cal.App.4th [716] ruled that lowering a penalty would be an abuse of discretion based on a sustained allegation of dishonesty.” The superior court did not so read Kolender, and neither do we. In Kolender the San Diego County Sheriff terminated the employment of a sheriff’s deputy “for lying to cover up a fellow deputy’s physical abuse of an inmate.” (Kolender, supra, 132 Cal.App.4th at p. 718.) The terminated deputy appealed, and the San Diego County Civil Service Commission “reduced the penalty to a ninety-day suspension.” (Ibid.) The Sheriff, deeming this penalty to be insufficient, petitioned the superior court for a writ of mandate to vacate the Commission’s order. The superior court denied the Sheriff’s petition. The Sheriff appealed, and the Court of Appeal agreed with the Sheriff that the Commission had abused its discretion. Notably, however, the Kolender decision was based on the facts of the case before that court, and the decision nowhere holds that a penalty of dismissal must be imposed in all cases in which an employee has been found to have been dishonest. Nor are we aware of any such case.
At oral argument counsel for the Department clarified the Department’s position: not all dishonesty must result in dismissal from employment, but here the employee’s dishonesty was sufficiently severe that imposition of any lesser penalty would be an abuse of the Board’s discretion. As we subsequently explain, however, we do not read the existing case law as stripping the Department of discretion to impose any penalty other than dismissal under the circumstances of this case. We also note that if the Board had found the proper penalty to be dismissal, and if Coakley had then appealed and had contended the dismissal was too severe, we would have concluded that a penalty of dismissal was similarly within the permissible range of the Board’s discretion under the facts of this case. But that, of course, is not what happened here.
To the contrary, at least one decision of the State Personnel Board imposing a lesser penalty for dishonesty than dismissal was found to still be so excessive as to constitute an abuse of discretion. In Catricala v. State Personnel Bd. (1974) 43 Cal.App.3d 642, an employee of the Office of State Printing called in sick and then was seen two hours later playing cards in a cardroom. His employer demoted him indefinitely from the position of offset press assistant to the lower position of printing trades assistant. A hearing officer sustained those actions, and “[t]he hearing officer specifically found that petitioner was guilty of dishonesty.” (Catricala, supra, 43 Cal.App.3d at p. 644, fn. 2.) The Board “adopted the proposed decision of the hearing officer” (Catricala, supra, at p. 644) which included the aforementioned finding of dishonesty and the penalty of indefinite demotion. The employee petitioned the superior court for a writ of mandate to set aside the Board’s decision and penalty. The court found that there was substantial evidence to sustain the Board’s finding of dishonesty but that the penalty of indefinite suspension was an abuse of the Board’s discretion. After the writ issued and the matter was remanded to the Board, the Board modified the penalty from indefinite demotion to a one-year demotion. The employee still deemed the penalty to be excessive, again sought superior court relief, and the superior court agreed and “entered its findings that the one-year demotion was still so excessive that it was an abuse of discretion.” (Catricala, supra, at p. 645.) The Board appealed and contended that the modified penalty of a one-year demotion was not excessive, but the Court of Appeal agreed with the trial court. It concluded that “a demotion for one year for the first offense involved herein appears vindictive, capricious and arbitrary” and that “the penalty imposed was..., for a first offense, so clearly excessive as to constitute a patent abuse of discretion.” (Catricala, supra, 43 Cal.App.3d at p. 648.)
Perhaps more instructive to the case presently before us is Warren v. State Personnel Bd. (1979) 94 Cal.App.3d 95, which involved a peace officer who made untruthful statements to other officers conducting an investigation. A hearing officer found that the “‘false statements... constitute dishonesty within the meaning of Government Code Section 19572(f)’” and “found that appellant’s conduct fully warranted his dismissal.” (Warren, supra, 94 Cal.App.3d at p. 103.) The board adopted the hearing officer’s proposed decision as its own. The dismissed officer’s petition for writ of mandate to the superior court resulted in an upholding of the board’s decision of dismissal. (Ibid.) On appeal, the Court of Appeal rejected the argument that the penalty of dismissal was so severe as to constitute an abuse of discretion. Of significance to the case presently before us, however, is the language used by the Warren court in rejecting the argument that the penalty was excessive. The court did not say that dismissal was the only appropriate penalty. Rather, it said: “[W]e are unable to say that the board abused its discretion in determining that dismissal was the proper discipline to be imposed. We are mindful that appellant presented mitigating factors; however, these factors were fully considered by the board and found insufficient to justify a lesser penalty.” (Warren, supra, 94 Cal.App.3d at p 108.)
“In considering whether such abuse [of discretion] occurred in the context of public employee discipline, we note that the overriding consideration in these cases is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence. [Citation.]” (Skelly v. State Personnel Bd., supra, 15 Cal.3d at p. 218.) The Board’s decision imposing the penalty of an 18-month suspension expressly stated that the Board was applying the above-quoted language from Skelly. It explained its reasons for its choice of a penalty as follows:
“While this Board cannot condone dishonesty under any circumstances, the fact that the underlying incident did not involve abuse, excessive use of force, or other serious misconduct, has some bearing on the assessment of penalty. This case involves an appellant who allowed himself to be drawn into a situation where he engaged in childish, playful behavior with an inmate and then, when confronted about his conduct, refused to admit his unprofessional behavior. Also of significance is that appellant is a long-term employee with no history of disciplinary problems, and his supervisor testified that he would have no qualms regarding appellant’s return to duty.
“We also find that the likelihood of recurrence is low, provided a sufficiently stringent penalty is imposed. While appellant was not forthright when confronted with his unprofessional conduct, we believe that appellant is fully capable of learning from his mistakes, as evidenced by his otherwise good work history. Modification of the penalty from a dismissal to a suspension for 18 months should sufficiently convey to appellant the highly inappropriate nature of his misconduct, while also providing an otherwise good employee one final chance to demonstrate his ability to conform his conduct to the standards expected of a peace officer.” (Fn. omitted.)
Coakley’s “long-term” and discipline-free employment as a Correctional Officer had lasted nine years, with eight of them at the same facility (CCWF) at which he then committed the misconduct which resulted in the matter presently before us. Under these circumstances, we cannot conclude the Board’s choice of a penalty exceeded the bounds of reason so as to constitute an abuse of discretion. We also note that Coakley’s conduct, while dishonest, did not involve harm to or any intent to harm an inmate, and was not intended to cover up any infliction of harm or any attempt to harm an inmate.
The cases relied on by the Department involved conduct which the Board could reasonably deem to have been significantly more severe than Coakley’s. In County of Santa Cruz v. Civil Service Commission of Santa Cruz, supra, a Sergeant Jack was told by a higher ranking officer not to speak to a subordinate, Officer Diana Holland, who had made accusations against Jack. Within hours, Jack violated this order by contacting Holland, ordering her to come with him and then speaking with Holland for three hours. Jack then contacted the superior officer and lied to him, stating: “‘Diana approached me and asked for a few minutes. I ended up giving her a few hours. I was mostly a good listener. We had a good conversation and I think we’ve worked this all out.’” (County of Santa Cruz, supra, 171 Cal.app.4th at p. 1580.) An internal affairs investigation resulted in Jack being demoted for insubordination and making false statements. Jack appealed his demotion to the Civil Service Commission, which ultimately reinstated Jack to the rank of sergeant and imposed a penalty of only a 30-day suspension. The County sought a writ of mandate to reverse the Commission’s decision to reinstate Jack. The trial court denied the petition and upheld the Commission’s decision that the penalty be only a 30-day suspension, but the Court of Appeal found that the Commission “abused its discretion in reinstating Jack’s Sergeant rank, and reducing his penalty to a 30-day suspension.” (County of Santa Cruz, supra, 171 Cal.App.4th at p. 1584.) The Court of Appeal stated the Commission’s “findings, that Jack made false statements, was insubordinate and was willfully disobedient, did not support a reduction of the penalty; rather, they provided a basis for the original demotion ordered by the Sheriff.” (Ibid.) The Court of Appeal further stated that “[t]he Commission’s conduct in reducing the penalty here exceeds the bounds of reason.” (Ibid.) In Kolender v. San Diego County Civil Service Com., supra, Deputy Padilla repeatedly bumped an inmate’s head against a wall, causing the inmate to suffer injuries for which he needed medical care. The inmate filed a grievance about the incident and an investigation was begun. Deputy Berry, who had been accompanying Padilla and the inmate while the inmate was being moved from one area of the detention center to another, “followed Padilla’s request and lied about the incident, saying Padilla simply took the inmate to the medical holding area.” (Kolender, supra, 132 Cal.App.4th at p. 719.) The Sheriff terminated Berry “for his lack of truthfulness.” (Id. at p. 720, fn. omitted.) Berry “appealed his termination to the Civil Service Commission and stipulated to the facts underlying the truthfulness cause; therefore, the only issue in dispute was Berry’s penalty.” (Ibid.) The Commission found the appropriate penalty to be a 90-day suspension. The Sheriff sought a writ of mandate vacating the Commission’s order. The superior court denied relief, but the Court of Appeal held that the Commission had abused its discretion in reinstating Berry. “‘An abuse of discretion occurs where, as here, the administrative decision manifests an indifference to public safety and welfare.’” (Id. at p. 721.) The Court of Appeal observed that Berry “lied regarding a grave matter, and thereby forfeited the trust of his office and the public.” (Id. at p. 721.) In the matter presently before us Coakley’s lie, while serious, was an attempt to deny his horseplay with an inmate, and could reasonably be viewed by the Commission as not as “grave” a matter as an attempt to cover up the beating of an inmate, and as a matter not warranting the termination of Coakley’s employment. We find no abuse of discretion.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.