Telephone Conversations Surreptitiously Recorded As Part of Law Enforcement Agency's Criminal Investigation Were Admissible In Officer's Administrative Appeal of His Termination

William Telish worked as a Senior Special Agent in Charge at the Bureau of Narcotics Enforcement's L.A. Interagency Metropolitan Police Apprehension Crime Task Force (LA IMPACT). In June 2006, he began a consensual sexual relationship with L.D., an administrative assistant and financial analyst that he supervised from 2005 until 2008.

In October 2007, rumors of Telish's relationship with L.D. surfaced at work, and the Assistant Chief at the Bureau of Narcotics Enforcement asked Telish about the rumors. Telish denied the relationship and said that he and L.D. had only gone out to dinner one time. Telish then confronted L.D. about the rumors. L.D. admitted that she had told several co-workers about their relationship. Telish instructed L.D. to deny their relationship and tell her co-workers that she had exaggerated it. He also told L.D. to tell the Deputy Director of LA IMPACT that she had made up or embellished their relationship. Telish had taken over 100 sexually explicit photographs of L.D. and threatened to post them online or email them to L.D.'s son if she did not recant her statements.

Telish and L.D.'s relationship continued on and off until the end of 2009. In March 2008, L.D. left LA IMPACT and took a position with the Placentia Police Department. In October 2009, while at L.D.'s home, Telish questioned L.D. about a text he saw on her phone. L.D. asked Telish to stop looking through her phone, but he continued to look and accused her of sleeping with other men. An argument ensued and Telish held L.D.'s arm down so that she could not reach her phone. In December 2009, L.D. told her boss, Placentia Chief of Police James Anderson, that Telish had assaulted her and that in 2007, he had threatened to release nude photos if she did not recant statements about their affair. Chief Anderson believed that Telish had committed assault, battery, and extortion, and reported L.D.'s allegations to a DOJ Deputy Director and the Orange County District Attorney.

The DOJ began a criminal investigation, and directed L.D. to surreptitiously record her telephone conversations with Telish. In July 2010, the DOJ terminated Telish's employment for, among other things, intimidating, threatening to release sexually explicit photographs of, and physically assaulting a subordinate employee with whom he had a consensual relationship.

Telish appealed his termination to the State Personnel Board (Board), and an administrative law judge (ALJ) conducted a five-day hearing. Telish moved to exclude from evidence the surreptitious recordings of his conversations with L.D. on the basis that the recordings were made in violation of Penal Code section 632. The ALJ denied Telish's motion and upheld the termination. The Board rejected the decision and heard the case itself. It held that the recordings should have been excluded from the hearing, but still found sufficient cause to uphold Telish's termination. Telish filed a petition for writ of mandate seeking to set aside the Board's decision to uphold his termination. The DOJ filed a cross-petition, seeking to overturn the Board's decision to exclude the audio recordings from evidence. The trial court denied Telish's petition and granted the DOJ's petition. Telish appealed, and the Court of Appeal affirmed.

Telish argued on appeal that the recordings were inadmissible because they were used in an administrative proceeding against him and were obtained in a sham criminal investigation. The Invasion of Privacy Act, Penal Code section 630 et seq., prohibits one party to a conversation from recording it without the other party's consent. Section 632, subdivision (d), provides that "no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding." However, section 633 provides that nothing in section 632 prohibits a person who is acting pursuant to the direction of a law enforcement officer, acting within the scope of his or her authority, from recording any conversation that they could lawfully record before the Invasion of Privacy Act was enacted.

The Board found that L.D. surreptitiously recorded her conversations with Telish under the direction of Special Agent Stauts, who was conducting a criminal investigation of Telish on behalf of the DOJ. It also found that while section 633 allowed L.D. to record her conversations, the recordings could not be used to discipline an employee in an administrative hearing. The Court of Appeal disagreed with the Board's interpretation of the Invasion of Privacy Act. While section 632 prohibits the admission of evidence obtained in violation of section 632 in any judicial, administrative, legislative, or other proceeding, it does not prohibit the admission of evidence obtained in compliance with section 632. As long as the evidence is obtained without violating section 632, nothing in the statute limits the manner in which such evidence may be used. Further, while the Legislature could have specified that evidence lawfully obtained at the direction of law enforcement may only be used in criminal proceedings, it did not do so. Therefore, the Court of Appeal held that the recordings were lawfully obtained under the direction of law enforcement and were admissible in the administrative hearing.

The Court of Appeal also rejected Telish's argument that the criminal investigation was a "sham" created so that the DOJ could invoke section 633 and record his conversations. The Board's finding that L.D. recorded her telephone conversations under the direction of the DOJ in connection with a criminal investigation was supported by substantial evidence. Chief Anderson, from an outside law enforcement agency, was extremely upset when his administrative assistant told him that Telish had held her down on her couch while he went through her cell phone history and threatened to show her son nude photographs unless she recanted statements about their affair. Chief Anderson thought Telish had potentially committed crimes of domestic violence and extortion, and contacted the DOJ's Division of Law Enforcement. Only after Chief Anderson made these reports did the DOJ begin a preliminary investigation. L.D. was interviewed, and the interviewers found her credible, so they initiated a criminal investigation. As part of the criminal investigation, Special Agent Stauts directed L.D. to surreptitiously record her conversations. In the final conversation, Telish acknowledged that he had held L.D. down on the couch while he looked through her phone. Stauts prepared a report on the criminal investigation and submitted it to the Orange County District Attorney's office, which declined to prosecute. The criminal investigation preceded any administrative investigation. In light of this evidence, the Court of Appeal rejected Telish's allegation that the criminal investigation was a sham used to circumvent section 633.

Telish also argued on appeal that the DOJ violated his rights under the Public Safety Officers' Procedural Bill of Rights Act (POBRA). The POBRA provides procedural rights for a law enforcement officer who is the subject of an administrative investigation. The Court of Appeal held that the POBRA did not apply when he engaged in telephone conversations with L.D. because he was the subject of an independent criminal investigation, not an administrative investigation.

Telish also argued that the disciplinary matter was time-barred under the POBRA's one-year statute of limitations because he received a notice of dismissal on June 29, 2010, but the DOJ learned of his alleged misconduct in 2007 or 2008. However, the Board found that no one at the DOJ who was authorized to initiate an investigation had knowledge that Telish threatened to release nude photographs until December 2009, when L.D. reported the threat. The Court of Appeal held that substantial evidence supported the Board's finding that the DOJ did not discover Telish's misconduct until December 2009, and rejected Telish's statute of limitations argument.

On those bases, the Court of Appeal affirmed the trial court's judgment in favor of the DOJ.

Note:

The POBRA does not apply to "investigations concerned solely and directly with alleged criminal activities." (Cal. Gov. Code, section 3303, subd. i.) Telish argued that the POBRA applied to the investigation into his misconduct because the investigation was conducted by his employer, and in California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294, the Court of Appeal stated that "the criminal investigations referred to in subdivision (i) of section 3303 . . . must be ones conducted primarily by outside agencies without significant active involvement or assistance by the employer."

In Telish, the Court of Appeal addressed this argument and prior case in a footnote. It quoted a Court of Appeal decision from 2007 to state that "there is no language in [POBRA] which supports" the interpretation set forth in California Correctional Peace Officers Assn. v. State of California. Therefore, the POBRA does not apply to criminal investigations, regardless of whether the investigation is being conducted by an employer or an outside agency.

Telish v. California State Personnel Bd. (2015) 234 Cal.App.4th 1479.