234 Cal. App. 4th 1479
Cal. Ct. App.2015Background
- Telish, a DOJ Senior Special Agent, had a consensual relationship with subordinate L.D.; allegations later arose that he assaulted her and threatened to release nude photos to coerce her to recant.
- L.D. reported the incidents to the Placentia Police Chief, who referred the matter to DOJ; DOJ opened a criminal investigation and, at DOJ agent Stauts’s direction, L.D. surreptitiously recorded multiple phone calls with Telish.
- The Orange County DA declined to prosecute; DOJ subsequently dismissed Telish for misconduct and he appealed to the State Personnel Board (SPB).
- At the SPB hearing Telish moved to exclude the recordings as unlawful under Penal Code §632 and on POBRA and other grounds; the ALJ admitted the recordings but the Board reversed, excluding them as usable only in criminal proceedings and nonetheless upholding dismissal as harmless error.
- The superior court held the recordings were admissible because they were lawfully made at DOJ’s direction under Penal Code §633 and affirmed the dismissal; Telish appealed and the appellate court affirmed the trial court judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of surreptitious recordings under Penal Code §§632/633 | Recordings violated §632 and §632(d) makes such evidence inadmissible in administrative proceedings | Recordings were made at the direction of law enforcement in a criminal investigation and thus lawful under §633 | Recordings lawful under §633 and §632(d) excludes only evidence obtained in violation of §632; recordings admissible in administrative proceedings |
| Whether the criminal investigation was a sham to evade POBRA/§633 limits | Investigation was a pretextual "sham" to manufacture recordings for administrative discipline | DOJ conducted a bona fide criminal investigation prompted by outside law enforcement; recordings were directed by DOJ agents | Findings that the investigation was a genuine criminal investigation are supported by substantial evidence; not a sham |
| Applicability of POBRA protections | Telish: POBRA procedural protections applied and were violated | DOJ: POBRA does not apply to an independent criminal investigation conducted by the employer | POBRA does not apply where the employer is conducting an independent criminal investigation; POBRA argument fails |
| Sufficiency of evidence / harmless error if recordings excluded | Without recordings and derivative evidence, dismissal cannot be sustained | Independent live testimony and other evidence corroborate charges; any error in admitting recordings was harmless | Appellate court need not decide further because recordings were admissible; Board’s findings independently supported by substantial evidence |
Key Cases Cited
- Rattray v. City of National City, 51 F.3d 793 (9th Cir. 1994) (section 633 protects recordings made in course of criminal investigations, not internal disciplinary recordings)
- Dyson v. State Personnel Bd., 213 Cal.App.3d 711 (Cal. Ct. App. 1989) (evidence unlawfully obtained in criminal case may be excluded in administrative proceedings under collateral estoppel)
- Coleman v. Department of Personnel Administration, 52 Cal.3d 1102 (Cal. 1991) (standard for substantial-evidence review of personnel board findings)
- Ribas v. Clark, 38 Cal.3d 355 (Cal. 1985) (Invasion of Privacy Act prohibits nonconsensual recording of confidential communications)
- Resha v. United States, 767 F.2d 285 (6th Cir. 1985) (suppression remedy applies only when interception itself was unlawful; lawful interceptions may be used in civil proceedings)