25 Cal. App. 5th 1
Cal. Ct. App. 5th2018Background
- Richard Paul Fisher served as an administrative law judge (ALJ) for the State Personnel Board (SPB) while also becoming "of counsel" to Simas & Associates, a boutique firm that litigated before SPB.
- Fisher did not seek SPB/CalHR permission or disclose the relationship on his Form 700, and he was listed on the firm website as an ALJ.
- During a high-profile SPB matter (Liebich), Fisher attended a judges' meeting where the case was discussed and later opened a colleague's draft decision sent to a group that included him; he did not recuse or disclose the firm connection.
- Fisher provided legal advice to a prospective client of Simas using his SPB e-mail and otherwise consulted on matters potentially subject to SPB review.
- SPB dismissed Fisher for violations of Gov. Code §§19572(r), 19990 and the agency's incompatible activities policies; after an OAH hearing the dismissal was upheld, the superior court denied mandamus, and Fisher appealed.
Issues
| Issue | Plaintiff's Argument (Fisher) | Defendant's Argument (SPB) | Held |
|---|---|---|---|
| Whether §19990 requires actual prior notice before disciplining for incompatible outside activity | Fisher: §19990 (and implementing rules) entitles him to actual notice; without it he could not be disciplined | SPB: §19990 flatly prohibits incompatible activities; no prior actual notice is required; appointing powers may identify additional proscribed activities | Court: Rejected Fisher; statute independently prohibited such conduct and did not require actual prior notice |
| Validity of SPB’s 2013 incompatible activities statement (underground regulation) | Fisher: The SPB policy functioned as a binding rule adopted without APA procedures | SPB: The statement governs internal management and is exempt from APA rulemaking | Court: Statement is internal policy, not an underground regulation; APA procedures not required |
| Sufficiency of evidence that Fisher knew or should have known and failed to disclose/recuse | Fisher: Disputed he had notice or that his conduct amounted to neglect or failure of good behavior | SPB: Substantial evidence he had access to and training about the policy, discussed an ethical wall, gave advice using SPB resources, and concealed the relationship | Court: Substantial evidence supported findings of neglect of duty, nondisclosure on Form 700, use of office prestige, and access to confidential materials |
| Appropriateness of dismissal as penalty | Fisher: Dismissal was unduly harsh given reputation, lack of proven public harm, and limited financial gain | SPB: Repeated, serious ethical lapses undermined public confidence and made recurrence likely; dismissal warranted | Court: Deferential review; no abuse of discretion—dismissal was justified |
Key Cases Cited
- Shepherd v. State Personnel Bd., 48 Cal.2d 41 (1957) (construed pre‑1949 statutory language on incompatibility and notice)
- Skelly v. State Personnel Bd., 15 Cal.3d 194 (1975) (procedural due process before adverse employment action)
- Arthur Andersen & Co. v. Superior Court, 67 Cal.App.4th 1481 (1998) (ignorance of law does not excuse noncompliance)
- California Dept. of Corrections v. State Personnel Bd., 121 Cal.App.4th 1601 (2004) (standard of review for SPB statutory interpretation and deference principles)
- Pollak v. State Personnel Bd., 88 Cal.App.4th 1394 (2001) (deferential review of penalty selection by SPB)