Opinion
E032328.
7-7-2003
THE COUNTY OF RIVERSIDE, Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF RIVERSIDE, Respondent. TERRY HAGEN, Real Party in Interest.
Liebert Cassidy Whitmore and Debra L. Bray for Petitioner. No appearance by Respondent. Twm Sion Cati Welsh American Legal Defense Fund and Rees Lloyd for Real Party in Interest.
The County of Riverside (the County) brought this administrative mandamus proceeding to challenge an arbitrators decision overturning the termination of Terry Hagen, a county employee, based on Hagens conviction for selling devices designed to receive cable television programming without paying for it. The superior court upheld the arbitrators decision, and the County filed this appeal, which we will treat as a petition for writ of mandate. We conclude the arbitrator abused his discretion in ruling that Hagens conduct did not constitute cause for termination and grant the petition.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Hagens Employment with the County
Hagen was hired as a senior engineer in the Countys Waste Management Department (the Department) in 1994. In 1995, he was appointed principal engineer of the environmental division. In that capacity, he supervised about a dozen employees, including other engineers. Hagen reported to Robert Nelson, the general manager and chief engineer of the Department.
The Department is responsible for providing a waste disposal system for the County. It has about 170 employees and four divisions, including the environmental division. Its annual budget is about $ 50 million.
Hagens normal work hours were 8:00 a.m. to 6:00 p.m., with one hour for lunch. He was allowed to take mid-morning and mid-afternoon breaks, with no specified time.
B. Events Leading to Hagens Arrest and Conviction
1. Cable television technology
Cable television signals are transmitted through cable wiring from the provider to its customers. "Basic" cable services provided to all cable customers include programming such as network television channels. For additional fees, a customer may also purchase "premium" programming, such as HBO, and "pay per view" programming, which is sold by event. The basic cable box a customer receives from the provider will only allow access to basic programming. If a customer wants premium channels or pay per view, an additional decoder is required. (People v. Prevost (1998) 60 Cal.App.4th 1382, 1388.)
Cable companies do not sell their cable boxes to customers. They provide them when the customer orders service and retrieve them when the customer discontinues the service. The boxes fall into private hands when they are stolen from warehouses or when customers exchange them to third parties for illegally modified boxes.
2. March 1998 sale
In or before 1998, a cable television company, Media One, obtained information that Hagen was selling illegal cable boxes and began an investigation. Ramon Pulido, a Media One employee, contacted Hagen in March 1998 using a toll-free number Hagen had advertised in a flyer under the name The Cable Guy. Pulido said he was interested in a cable box, and Hagen directed Pulido to meet him at about 2:30 p.m. in a restaurant parking lot in Corona.
Pulido met with Hagen and bought a cable box for $ 275. Hagen also gave Pulido some flyers to pass around to his friends. He told Pulido that if he bought more boxes he would get a better price.
The box Hagen sold Pulido had been manufactured by Scientific Atlanta, a brand of box some cable companies provide to their customers when they purchase cable service. The serial number on the box had been removed. There was a "quick board" installed inside the box that would enable it to defeat a cable providers security devices so that it could receive all cable channels, even those for which the customer was not paying. The only use of quick boards is to provide access to channels without paying for them. Pulido tested the box and confirmed that it was capable of receiving all channels.
2. May 1998 sale
Pulido contacted Hagen again in May 1998 and stated he was interested in more boxes. Hagen directed Pulido to a restaurant in Anaheim Hills. They met about 6:30 p.m. Pulido bought two cable boxes for $ 625. He also saw more cable boxes in the trunk of Hagens car.
The two boxes Hagen sold Pulido had been modified to receive all cable channels. Pulido learned that one of the boxes had been issued to a Media One subscriber but had not been returned to Media One after termination of service.
3. August 1998 sale
Pulido next contacted Hagen in August 1998. Pulido asked to meet Hagen at a hotel parking lot in La Mirada, and Hagen agreed. They met there about 6:30 p.m. Pulido paid Hagen $ 600 for two boxes that had been modified to receive all channels without paying for them. One of the boxes had been issued by but not returned to Media One.
4. October 1998 exchange
Pulido contacted Hagen again in October 1998 and said he had some boxes he wanted to give Hagen in exchange for having Hagen modify one of the boxes. They met at a park in Riverside at about 5:30 p.m. Hagen said that, unless Pulido had the boxes covered, they should move to another location, because there was a lot of police activity at the park.
Pulido gave Hagen four boxes and received one in return. The box Pulido received had been reported stolen from a Media One office. Pulido told Hagen he should be careful with the boxes because they were taken from a cable company warehouse. Hagen laughed.
Pulido next contacted Hagen about a week later, again in October 1998. They met at the same park in Riverside, a little after 2:30 p.m. Hagen gave Pulido back one of the boxes Pulido had given him. The box had been modified to receive all channels.
5. December 1998 arrest
Pulidos next contact with Hagen was in December 1998. Pulido told Hagen he was interested in getting more boxes, and they arranged to meet at the park in Riverside, about two miles from Hagens workplace. Pulido went to the park accompanied by Los Angeles County Sheriffs Department Detective Hiles, and they met with Hagen.
Hiles told Hagen he was supplying some of the cable TV boxes that were going to be given to Hagen in trade and informed Hagen that the boxes were stolen. Hagen shrugged his shoulders and took the boxes from Hiles. Hagen said he had been involved in this kind of activity for about five years. Hagen offered to sell Hiles a cable TV converter that had been modified.
When Hiles started examining one of the cable boxes away from the car trunk, Hagen became nervous and said, "Lets not let everybody see what were doing here."
Hiles arrested Hagen. He also searched Hagens car, office, and residence the day of the arrest. He found devices, advertisements, and tools used in the cable theft industry at all three locations. There were more than 400 such devices at Hagens residence.
In total, Hagen had 550 illegal devices. Each device is valued at a $ 10,000 potential loss of revenue to the cable industry, plus five percent in local government and franchise fees.
Hiles confirmed that some of the devices Hagen had were stolen. Hagen admitted to Hiles that he was manufacturing cable theft devices and had received cable boxes in the past that he knew were stolen.
A videotape regarding Hagens arrest was broadcast on a Channel 11 news program. One of the Department employees brought a videotape of the broadcast to work, and it was viewed by employees in the office.
Hagens work records showed that, except for the day he was arrested, each of his contacts with Pulido took place on a work day, during which he reported he had worked either eight or nine hours.
C. Criminal Proceeding
In January 1999, Hagen was charged with a felony violation of Penal Code section 593d (section 593d) and five felony counts of receiving stolen property. In June 1999 he pled guilty to the section 593d felony charge, and that plea was in effect at the time he was terminated. However, Hagen made an agreement with the police and district attorney that if he cooperated with them he would be able to plead to a misdemeanor.
In relevant part, section 593d makes it a crime to knowingly and willfully manufacture, assemble, modify, import, distribute, sell, offer, or advertise for sale, or possess for any of these purposes, a device designed to receive an encoded, scrambled, or other nonstandard signal from a video provider, without authorization from the Federal Communications Commission. (§ 593d, subd. (b).) A violation involving 10 or more devices is punishable as either a misdemeanor or a felony. (§ 593d, subd. (d)(2)(A).)
Although section 593d was not enacted until 1996, manufacturing or selling equipment for unauthorized cable reception was illegal before then under the Cable Communications Policy Act of 1984, 47 United States Code section 521 et seq. (1984 Cable Act), specifically 47 United States Code section 553(a).
Hagen did cooperate, and in April 2000 he was allowed to withdraw his guilty plea. On the Peoples motion, the charge was reduced to a misdemeanor, and Hagen pled guilty to that charge. The remaining counts were dismissed on the Peoples motion.
The court placed Hagen on three years summary probation. It committed him to the custody of the Riverside County Sheriff for 90 days but stayed that sentence for six months. Hagen agreed to pay $ 100,000 restitution to Media One.
D. Hagens termination in August 1999
After Hagen was arrested, the Countys human resources department investigated the matter and recommended to the Department that Hagen be terminated. Hagens supervisor, Robert Nelson, decided to terminate Hagen for engaging in an illegal activity, in part using the Departments office, and for involving subordinates in the activity. Nelson had lost trust in Hagen as his representative. Nelson also believed Hagens subordinates had lost respect for and confidence in him.
Although Hagen was classified as an at-will employee, his termination was not handled as an at-will termination, because the Department did not have an acknowledgment of the at-will provision in its personnel file. Throughout this matter, including on appeal, the parties have proceeded on the basis that the County needed cause to terminate Hagen.
Hagen was terminated effective August 23, 1999. The reasons stated in the notice of proposed termination were dishonesty, neglect of duty, willful violation of employee regulations, conviction of an offense involving moral turpitude, and conduct adversely affecting job performance or department operations. The County alleged Hagen had operated an illegal business at work on County property, used County equipment to do so, and sold illegal devices to County employees.
E. Arbitration Proceeding
In August 1999, Hagen filed an administrative appeal of the decision to terminate him. Pursuant to the Countys established procedures, the appeal was heard by an arbitrator, subject to the right of either party to petition for review by writ of mandate under Code of Civil Procedure section 1094.5.
According to the County, the arbitrators findings and decision "are treated as the final administrative decision of the County."
At the arbitration hearing, which spanned several months, the County presented the evidence of the events leading to Hagens arrest, set forth ante. The parties also presented additional evidence concerning Hagens dealings in cable television devices, as follows:
1. Hagens manufacture and sale of cable devices
Hagen testified he had been a cable television customer since 1975. In 1995, he ordered a cable box from a private company through a magazine advertisement. The advertisements Hagen saw had disclaimers saying the boxes were sold for educational test purposes only and that the buyer should notify the cable company.
Hagen started modifying cable boxes in 1996. He bought boxes from an individual in Los Angeles. The individual gave Hagen a disclaimer saying he was selling the equipment for educational test purposes only and that, in case the buyer should contact the cable company, the equipment was not intended to defraud the company.
Hagen eventually developed a device called a cube that would turn a box on without opening the box. He started selling the cubes to members of the public. He also started making and selling quick boards. He made two to four sales a week. He received calls on an 800 number on his personal pager, which he carried at work, and he returned calls on a pay phone after hours or at lunch time.
Hagen consulted an attorney in 1996 about going into business selling cable equipment to the public. The attorney asked how the equipment could be educational, and Hagen explained that "this communication was a new technology," and "this could be essentially a demonstration of this technology." The attorney said Hagen should be within the law if he used a disclaimer, because it was really up to the individual that bought the equipment to contact the cable company.
Beginning in 1996, Hagen advertised his business with handout sheets, refrigerator magnets, and ads in the Pennysaver, using the name "The Cable Guy." The handouts contained large type at the top of the page stating, "TURN-ON YOUR CABLE TV BOX WITHOUT OPENING IT"; "TAKE CONTROL OF YOUR TV!;" and "ITS LEGAL! CABLE TV TEST EQUIPMENT."
A copy of one of the handout sheets, taken from the administrative record, is attached as appendix A, post, pages 28-29.
A disclaimer in small type at the bottom corner of the handouts stated, "Your Cable Company has no way of knowing that you are using test equipment. It is not our intent to defraud any Cable Company. We do not advocate theft of service and assume no responsibility for claims arising from the use of products sold."
The back of the handouts contained a "GUARANTY & WARRANTY" stating, "We unconditionally Guaranty that these products will Turn-On ALL CHANNELS supplied to your cable box. All MOVIE, PAY-PER-VIEW, and ADULT CHANNELS."
Hagen denied ever advocating or instructing anyone to use the equipment he sold to obtain premium channels without paying for them. However, he admitted he knew the devices would permit people to receive pay per view or premium channels without paying for them, if the buyers chose to do so. Hagen also admitted that the phrase, "turn on your cable box" in his advertisements meant, in part, that purchasers could use the devices to view channels they otherwise could not receive.
Hagen further admitted he provided his customers with written instructions on how to install quick boards. He also provided a bit that would fit the screws on the bottom of one of the models of boxes used by the cable companies, which had an odd screw. He provided the screw bit for the purpose of enabling customers to remove the screws to make alterations or modifications to their boxes.
2. Hagens transactions with coworkers
Hagen kept some completed devices in his desk at work at times. The parties also presented evidence that Hagen sold, traded, or loaned his devices to numerous coworkers over the years, as follows:
In 1995, Hagen sold cable boxes to county employees Arthur Fuentes and Tim Evans. According to Hagen, he made the deliveries in the county parking lot at lunch time or after work hours. Fuentes paid Hagen $ 350 or $ 400 for his box. According to Fuentes, the box allowed him to get stations he could not get before.
Hagen also delivered a box to county employee Thomas Wilson in 1995 or 1996. Hagen testified he made the delivery at a gym on nonwork time; Wilson testified Hagen gave him the box in the county parking lot at the start of the workday. According to Wilson, Hagen had announced to a group of employees in a trailer at work that he had cable boxes for sale.
Hagen traded a cable box to county employee Hans Kernkamp for a furnace in 1995 or 1996. Six months later, he traded another box to Kernkamp for an evaporative cooler.
Early in 1996 a subordinate approached Hagen about buying a cable box. Hagen sold him a box for $ 300 at Hagens house on a Saturday.
In early or mid 1996, Hagen solicited several employees while at work, telling them he had a cable box to sell that would allow them to get pay per view for free. At some point, Hagen told two of his subordinates that he had chips and boxes for sale that would permit the user to receive cable TV channels without paying for them. Hagen offered to sell coworkers the boxes.
Hagen informed one of his subordinates, Martin Bumgardner, in early 1997 that he had cable boxes available for sale. In 1997 or 1998, Hagen sold a cable box to Robert Byrd, principal accountant for the Department. He gave the box to Byrd at Hagens home on a weekend.
Hagen also gave a box to Nelson, his supervisor, to try. According to Hagen, Nelson returned the box, told him it worked, laughed and said, "Is this legal?" According to Nelson, he tried the box and found it allowed his television to receive channels he was not authorized to access, but he did not watch a full program using the box. He brought the box back to Hagen and told him, "Yes, it works, but it does not seem right to me to use it."
Nelson testified he believed Hagen had given him the box to impress him with his technical knowledge. It did not occur to Nelson that Hagen would go into business selling cable boxes or that Hagens activities were anything other than home experimenting.
3. Hagens conduct of outside business at work
Several employees noticed that Hagen would receive numerous pages at work, sometimes one or two per hour. Sometimes he would interrupt meetings to return the phone calls. Hagen also received pages at conferences, sometimes 10 pages a day. At a couple of conferences, he excused himself several times to go make phone calls. He would return the calls at pay phones. According to Kernkamp, Hagen was not available to the staff when he was needed.
Prior to April 1996, Nelson received reports from one or more employees that Hagen might be involved in an outside business. Nelson thought Hagen might be doing parcel map work, which he had done in the past. He did not suspect Hagen was involved in selling cable television equipment.
Nelson told Hagen that any private business had to be conducted totally off county property and off county time. Hagen agreed to comply with those requirements. Nelson also circulated a memorandum in April 1996 to Department employees, advising them they were not permitted to engage in outside business activity on county property or county time. Hagen signed the memorandum, indicating his agreement to abide by the policy.
F. Arbitrators Opinion and Award
After hearing the evidence set forth above, the arbitrator issued his opinion and award in June 2001. The arbitrator found Hagen "knowingly and willingly engaged in an enterprise whose sole purpose was to allow the consumer to defraud cable companies providing cable transmission to the consumer." Hagens criminal involvement "was extensive enough and prolonged enough to be deemed serious," and "there was an overlap, even if tangential, between his improper activity and his work time and place . . . ."
The arbitrator found enough of a nexus between Hagens criminal activity and his public position to warrant discipline. He found that helping to defraud cable companies "smacks of moral turpitude, but not in the extreme." Hagens conduct as judged by the legal community, workplace, and public was "not so heinous" as to justify discharge automatically.
The arbitrator further found that the Department and public would not suffer from Hagens return to service, and there was no evidence those who interfaced with him would react adversely. Many coworkers had purchased and used his products, and Nelson had never cautioned or admonished him about his questionable private business. There also was no evidence of adverse reaction from the public. The Countys claim of loss of trust had to be viewed with skepticism given the fact managerial personnel were aware of what Hagen was doing.
The arbitrator concluded Hagens misconduct justified removing him from his leadership position, but not his termination. He ruled Hagen should be suspended for up to 90 days and demoted to senior engineer upon his return to service.
It appears questionable whether the arbitrator had the authority to order Hagen reinstated to a position below the position he held when he was terminated. The Countys disciplinary regulations provided that, if an arbitrator found an employees discharge should be modified or rescinded, the employee was to be reinstated "to a position in the classification held immediately prior to discharge . . . ." The parties have not commented on the propriety of the reinstatement order, and we express no opinion on the issue.
G. Administrative Mandamus Proceeding
In August 2001, the County brought the present proceeding in superior court, seeking a writ of mandamus compelling the arbitrator to set aside his decision and sustain Hagens termination. In March 2002, the court issued a peremptory writ of mandate. The court ruled the arbitrators findings were supported by substantial evidence, but he abused his discretion in imposing a 90-day suspension, because the Countys regulations permitted suspension for no more than 40 days. The court vacated the arbitrators decision and remanded the matter to him on the issue of the discipline to be imposed.
In July 2002, the arbitrator submitted a Remedial Award Upon Remand. The award stated the arbitrator was still of the opinion that the County had failed to meet the standards of just cause, and the fact only a 40-day suspension could be imposed did not justify discharge as an alternative. Accordingly, the arbitrator ordered reinstatement of Hagen to the position of senior engineer upon completion of a 40-day suspension.
In August 2002, the County filed a notice of appeal from the courts grant of the peremptory writ of mandate. The County stated it was filing the notice to protect its right to appeal, even though the court had not yet entered a judgment.
In September 2002, the court entered a judgment on the Countys petition for writ of mandate. The judgment vacated the arbitrators decision and remanded the matter to him on the sole issue of the discipline to be imposed. It is not clear from the record whether the court was aware when it issued the judgment that the arbitrator had determined the suspension should be reduced to 40 days.
The County then filed a second notice of appeal, appealing from the September 2002 judgment.
II
DISCUSSION
A. Appealability
Neither party has raised the issue of appealability, but we are required to do so on our own motion. (Olson v. Cory (1983) 35 Cal.3d 390, 398, 197 Cal. Rptr. 843, 673 P.2d 720.) As stated, the only judgment rendered by the superior court remanded the matter to the arbitrator on the issue of discipline. A judgment remanding a proceeding to an administrative body, even solely on the issue of the proper remedy, is not appealable. (Village Trailer Park, Inc. v. Santa Monica Rent Control Bd.
(2002) 101 Cal.App.4th 1133, 1140-1141.) A court may, however, exercise its discretion to treat the appeal as a petition for a writ of mandate. (Id. at p. 1140.)
This is an appropriate case in which to exercise our discretion. The superior courts judgment, while technically not appealable, is essentially final because the only thing left to be done, the arbitrators reconsideration of the appropriate discipline, has already been done. The appeal has been fully briefed, and it would serve no purpose to dismiss it at this point when it is clear what the courts ultimate judgment would be. We therefore elect to consider the merits of the appeal.
B. Standard of Review
With respect to the issue of whether Hagen committed the misconduct alleged against him, we review the record to determine whether substantial evidence supports the trial courts conclusions. With respect to the question of punishment, neither the trial court nor this court may substitute its discretion for that of the administrative decisionmaker, in this case the arbitrator. We conduct a de novo review of the trial courts determination of punishment but may reverse the arbitrators decision on the issue only if we find it to be an abuse of discretion. (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 45-46.)
Although our review of the punishment imposed is deferential, "the purpose of the writ of mandamus procedure is not to rubberstamp every administrative decision that is rendered. . . . While the agency has discretion to act, that discretion is not unfettered. [Citation.]" (Hankla v. Long Beach Civil Service Com. (1995) 34 Cal.App.4th 1216, 1222.)
C. Propriety of Termination
With due deference to the arbitrators decision, we are compelled to conclude his ruling that the County lacked cause to terminate Hagen was an abuse of discretion. On the contrary, we find the County had multiple grounds for termination given the nature and extent of Hagens misconduct.
1. Moral turpitude
The Countys disciplinary regulations authorized dismissal for conviction of a criminal offense, whether a felony or misdemeanor, involving moral turpitude. In determining whether an offense involves moral turpitude so as to justify a public employees dismissal, a court is not limited to the statutory elements of the offense, but may look to the manner in which the employee committed it. (Padilla v. State Personnel Bd. (1992) 8 Cal.App.4th 1136, 1141.) The threat to the public interest posed by employees who commit crimes involving moral turpitude "is not diminished by the consideration that others could violate the same criminal statute without moral turpitude." (Ibid.)
Considering the manner in which Hagen violated section 593d in this case, we find no support for the arbitrators conclusion that "helping to defraud cable companies of fees rightfully due them, and for financial gain smacks of moral turpitude, but not in the extreme." To the contrary, we find Hagens conduct showed moral turpitude in the extreme.
Grand theft "necessarily involves both moral turpitude and dishonesty . . . ." (People v. Cudjo (1993) 6 Cal.4th 585, 626, 863 P.2d 635.) Hagen essentially made a business out of aiding and abetting theft, and he did so on a scale that can only be equated to grand theft. His advertisements unmistakably, though never explicitly, encouraged purchasers to receive cable programming without paying. He assured purchasers that "ITS LEGAL!" without ever explaining that possession of his products for the purpose of receiving unauthorized programming was not legal. Yet he clearly knew that to be the case, for he included a disclaimer saying he was not responsible for a customers "theft of service." Hagen went on to assuage any qualms buyers might have about using the devices for that purpose by assuring them, "Your Cable Company has no way of knowing that you are using test equipment."
In Matter of Wojihoski-Shaler (Ind. 1992) 603 N.E.2d 1347, the Supreme Court of Indiana held that an attorney who was employed by a corporation which sold satellite equipment to private purchasers, and who knowingly assisted in the receipt of satellite programming by persons not entitled to do so, was properly subject to suspension from practice, as her conduct could be seen as "counseling another on the theft of such rights." (Id. at p. 1348.)
Use of such disclaimers is commonly recognized in decisions involving sale of unauthorized cable devices as an indication that the disclaiming party "was well aware that his actions were unlawful." (U.S. v. Gardner (7th Cir. 1988) 860 F.2d 1391, 1396; accord, Time Warner Entertainment/Advance-Newhouse Partnership v. Worldwide Electronics, L.C. (S.D. Fla. 1999) 50 F. Supp. 2d 1288, 1296-1297.)
Receipt of unauthorized programming was the only purpose of the devices Hagen sold and obviously was the only reason people would pay substantial sums of money for them. As the arbitrator aptly found, Hagen "knowingly and willingly engaged in an enterprise whose sole purpose was to allow the consumer to defraud cable companies providing cable transmission to the consumer. The market for [Hagens] product was the television public seeking to avoid the obligation of paying for restricted programming." (Italics added.)
A public employees acts of moral turpitude may be so extreme that dismissal is appropriate even without a showing of a nexus between the acts and the employment. Government Code section 19572 (section 19572), like the Countys disciplinary regulations in this case, authorizes dismissal of an employee for conviction of a misdemeanor involving moral turpitude. (See § 19572, subd. (k).) In Wilson v. State Personnel Bd. (1974) 39 Cal. App. 3d 218, 114 Cal. Rptr. 134, the court held the statute does not impose any nexus requirement where dismissal is based on a conviction involving moral turpitude: "No basis appears for creating a special requirement of nexus where conviction of a crime is considered as a ground for discipline. There is no variety of public employment in which conviction of a crime involving moral turpitude would not reasonably be regarded by the appointing authority and the board as grounds for discipline. Moral turpitude reflects a trait of character that may continue, and affect an employees performance of duties not related to the circumstances in which it was manifested. [Citation.]" (Id. at pp. 221-222.)
Those words are apt here. Regardless of whether Hagens conduct was likely to affect his work performance, it would be wholly unjustified to require the County to retain in its employ a professional engineer who so misused his technical knowledge and skill. The arbitrator abused his discretion in finding Hagens conduct insufficiently culpable to constitute cause for dismissal.
2. Dishonesty
The Countys disciplinary regulations also specified dishonesty as a ground for dismissal. Dishonesty similarly constitutes cause for discipline of a state employee under section 19572. (& sect; 19572, subd. (f).) Cases under section 19572 have defined dishonesty as connoting "a disposition to deceive." (Gee v. California State Personnel Bd. (1970) 5 Cal. App. 3d 713, 718, 85 Cal. Rptr. 762.) There can be no dispute that Hagens trafficking in devices designed to receive cable programming without paying for it and without the knowledge of the cable providers demonstrated a disposition to deceive.
Cases applying section 19572 further establish that dishonesty need not occur in the course of, or be connected with, the employees public employment to warrant dismissal. In Gee v. California State Personnel Bd., supra, 5 Cal. App. 3d 713, an auditor for the State Department of Justice was dismissed when it was learned he had obtained liquor licenses for three bars by falsely representing he was the sole owner of the bars. The misconduct had no connection with the employees work. In fact, he had severed his connection with two of the bars before beginning work for the state. The court nonetheless found cause for dismissal, stating: "Honesty is not considered an isolated or transient behavioral act; it is more of a continuing trait of character. By its enactment of section 19572, subdivision (f), the Legislature indicated a strong public policy against having dishonest employees in the state service." (Id. at p. 719.)
Again, those words are apt in this case. Hagens dishonesty was profound in its seriousness and extent. He engaged in continuous ongoing criminal activity for three or more years. When arrested, he possessed more than 50 times the number of devices required to make his conduct a felony. The County should not be required to accept Hagens cooperation with the authorities after his arrest as sufficient assurance his character had been transformed so as to make him suitable for public service. The arbitrator abused his discretion in finding Hagens dishonesty not to constitute sufficient ground for dismissal.
3. Conduct affecting job performance or department operations
The Countys disciplinary regulations also authorized dismissal for "conduct either during or outside the duty hours which adversely affects the employees job performance or operation of the department in which he is employed." We find no support for the arbitrators conclusion that because Hagens coworkers were aware of his activities his misconduct did not compromise his job performance. Our recitation of the evidence in part I.E., ante, plainly shows Hagens conduct impinged on his activities at work. Coworkers testified he received excessive numbers of pager calls at work, and he interrupted meetings and excused himself from conferences to return the calls. At least one coworker believed Hagen was not available to the staff when he was needed.
Contrary to the arbitrators conclusion, the overlap between Hagens unlawful activities and the workplace was far from "tangential." Our factual recitation, ante, demonstrates that Hagen involved, or attempted to involve, numerous coworkers in his criminal conduct by soliciting them to buy devices he knew they or others would use to receive unauthorized programming. Hagen obviously viewed the workplace as fertile ground for carrying out his illegal business.
Moreover, the arbitrators assertion that Hagens activities were "not met with any meaningful hostility from within" overlooks the fact Hagen occupied a position of high seniority, and most of his coworkers were subordinate to him. That the coworkers did not openly express hostility does not mean their morale was unaffected by concern over the fact illegal conduct was occurring in their workplace. Two of Hagens subordinates testified they believed his products were not legal. One also testified that, when Hagen solicited him, he felt pressured by the fact that his supervisor was offering something for sale.
Nor are we persuaded by the arbitrators view that the absence of criticism from the public about Hagens activities meant his misconduct did not affect his ability to perform his job. The court in Gee v. California State Personnel Bd. specifically rejected any requirement that an employees conduct be shown to have actually caused discredit to the employing agency by becoming known to the general public. Rather, the court found it sufficient that the conduct "would reflect discredit on the employing agency or the position held by the person engaging in such conduct, regardless of whether the conduct is publicized or not. [Citation.]" (Gee v. California State Personnel Bd., supra, 5 Cal. App. 3d 713, 719.) The California Supreme Court in Nightingale v. State Personnel Board (1972) 7 Cal.3d 507, 102 Cal. Rptr. 758, 498 P.2d 1006 similarly stated, "It would be logically absurd . . . to permit misconduct so long as it was kept within the family, or to require that an agency publicize the misdeeds of an employee in order to be able to discipline him." (Id. at p. 513; accord, Szmaciarz v. State Personnel Bd. (1978) 79 Cal. App. 3d 904, 919, 145 Cal. Rptr. 396 [misconduct under section 19572 "does not have to be publicly known, resulting in actual discredit to the agency"].)
By confining his inquiry to whether Hagens conduct caused overt disruption of the workplace, the arbitrator missed the point. The extent to which overt disruption occurs is a legitimate consideration in determining whether conduct is cause for dismissal. But illegal conduct in a public agency, even if it is tolerated or even participated in by coworkers, is still disruptive. It inculcates a disrespect for the employers mission and the public trust by indicating to employees that obedience to the law is not valued or demanded. When such conduct emanates from one in a position of superiority, as in this case, it is doubly disruptive. The arbitrator abused his discretion in finding Hagens activities had insufficient impact to constitute cause for dismissal.
The arbitrators assertion that, "as long as [Hagen] is not performing at the Principal Engineer level his misconduct did [sic] not adversely affect the operation of the Department" reflects a disturbing logic. It is the equivalent of saying that a police officer who brutalizes arrestees is appropriate for retention as long as he is reassigned to a desk job where he wont have to arrest people.
4. Disparate treatment
Hagen suggests the arbitrators conclusion that his termination was excessive is supported by the facts that Nelson and Kernkamp, who received illegal devices from him, were not disciplined, and in fact Kernkamp was promoted to Hagens former position. We are not persuaded that the Countys treatment of Hagens coworkers should be a basis for overturning his dismissal.
First, Hagens assertion that Kernkamp did not suffer any discipline is not accurate. Kernkamp testified he received a written reprimand in lieu of a 27-hour suspension for possession of the cable box and for not notifying management about Hagens activities.
Second, even where employees commit similar acts of misconduct, there is no requirement that a public agency impose identical penalties. (Pegues v. Civil Service Com. (1998) 67 Cal.App.4th 95, 106; Talmo v. Civil Service Com. (1991) 231 Cal. App. 3d 210, 230-231, 282 Cal. Rptr. 240.) Here, the conduct of Nelson and Kernkamp was not remotely similar to Hagens. Nelsons installation of the cable box he received from Hagen may have been technically illegal, but there was no evidence he did anything other than confirm that the box worked, conduct hardly comparable to Hagens.
Kernkamps conduct is more troubling in that there was evidence he may have used the boxes for extended periods of time. However, he did not make a business of selling the boxes as Hagen did. Nor was there any evidence Kernkamp attempted to involve other employees in illegal activity as Hagen did. While the Countys unexplained promotion of Kernkamp notwithstanding the reprimand he received is puzzling, ultimately the propriety of that action is not before us. We conclude only that whatever disparity may have existed between the treatment of Kernkamp and Hagen was not so great in view of their disparate conduct to undermine the legitimacy of the Countys decision to discharge Hagen.
III
DISPOSITION
We deem the purported appeal a petition for writ of mandate. Let a peremptory writ of mandate issue directing the superior court to vacate the judgment filed September 11, 2002, and to issue a new order granting the Countys petition for a writ of mandate. The order granting the petition shall direct the issuance of a peremptory writ of mandate commanding the arbitrator to set aside his decision and to sustain the termination of Hagen. The County shall recover costs on appeal.
We concur: WARD J., and GAUT J.