28 Cal. App. 5th 845
Cal. Ct. App. 5th2018Background
- Pamela Palmieri, a Department of Corrections attorney who prosecuted employee discipline matters, was fired for misconduct after a 21-day administrative hearing and Board review; the OAH ALJ sustained 4 of 12 counts but reduced dismissal to a 30-day suspension; the Board later granted rehearing and upheld dismissal.
- Sustained misconduct counts included: (1) dishonesty/discourtesy to ALJ Krestoff about taking a one-hour lunch contrary to the ALJ's order; (2) chronic and extreme tardiness before ALJ R. Brown; (3) insubordination for failing to keep calendar/core-hours attendance; (4) abusive, profanity-laced outburst at personnel staff.
- The Board found these acts discredited the employer, created inefficiency, and showed a high likelihood of recurrence; no mitigating circumstances were credited.
- Palmieri filed a writ (mandamus) in superior court challenging the Board’s decision; the trial court denied relief and Palmieri appealed.
- On appeal Palmieri argued (inter alia) Board denied due process by rehearing after referring the case to an OAH ALJ, Evidence Code §703.5 barred ALJ testimony, insufficient evidence on dishonesty count, and that the State Bar regime precluded employer discipline of attorneys.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board violated due process by granting rehearing after referring hearing to non-Board ALJ | Board lost authority by referring the hearing to OAH and therefore could not later rehear | Board retained plenary, constitutionally grounded authority to render the final decision and could grant rehearing | Board did not violate due process; rehearing within Board discretion and constitutional authority affirmed |
| Whether Evidence Code §703.5 barred ALJs from testifying at discipline hearing | Testimony of Board ALJs (Krestoff, R. Brown) was incompetent under §703.5 | Objection was forfeited for untimely raising; §703.5 does not extend to administrative proceedings like this | Objection forfeited; even on merits §703.5 inapplicable to administrative hearings before Board/OAH; testimony admissible |
| Sufficiency of evidence for dishonesty (Krestoff incident) | Palmieri: her statement was opinion/jest; record insufficient to prove dishonesty | Board: contemporaneous transcript, witnesses, and conduct supported finding of false representation and discourtesy | Substantial evidence supports Board's finding of dishonesty; credibility determinations for trier of fact upheld |
| Whether State Bar discipline preempts Board/employer discipline for attorney conduct while practicing law | Palmieri: State Bar regime governs attorney professional conduct and precludes employer discipline for acts in practice of law | Department/Board: civil service/Board authority is distinct and constitutionally grounded; employer may discipline employees, including attorneys, for workplace misconduct | Board lawfully disciplined a state civil-service attorney; State Bar availability does not preempt Board discipline |
Key Cases Cited
- California Youth Authority v. State Personnel Bd., 104 Cal.App.4th 575 (appellate court) (agency factfinding entitled to deference; substantial-evidence standard)
- State Personnel Bd. v. Department of Personnel Admin., 37 Cal.4th 512 (Supreme Court) (Board's exclusive constitutional authority over state civil service discipline)
- Baron v. City of Los Angeles, 2 Cal.3d 535 (Supreme Court) (local regulation of practice of law may be preempted by State Bar Act when it regulates legal practice)
- Nasha v. City of Los Angeles, 125 Cal.App.4th 470 (appellate court) (procedural fairness review de novo)
- Bear River & Auburn Water & Mining Co. v. Boles, 24 Cal. 359 (Supreme Court) (waiver/forfeiture principles for objecting to witness competency)
- Hicks v. Reis, 21 Cal.2d 654 (Supreme Court) (trier of fact may reject uncontradicted testimony)
- Today's Fresh Start, Inc. v. Los Angeles County Office of Education, 57 Cal.4th 197 (Supreme Court) (appearance of impropriety insufficient without record evidence of unfair influence)
Disposition: Judgment affirmed; Department and Board awarded costs on appeal.