CALIFORNIA SCIENCE CENTER, Plaintiff and Respondent, v. STATE PERSONNEL BOARD, Defendant and Respondent; RUDY ARELLANES, Real Party in Interest and Appellant.
No. B244387
Second Dist., Div. One.
July 25, 2013.
1302
Kasey Christophe Clark and David De La Riva for Real Party in Interest and Appellant.
Joan A. Markoff, Will M. Yamada, Frolan R. Aguiling and Gail T. Onodera for Plaintiff and Respondent.
No appearance for Defendant and Respondent.
JOHNSON, J.—Rudy Arellanes appeals the trial court‘s grant of a petition for writ of mandate by the California Science Center (Center) seeking to reverse the decision of the State Personnel Board (SPB) overturning Arellanes‘s termination. The trial court also denied Arellanes‘s petition for writ of mandate seeking reinstatement. We conclude that the administrative law judge (ALJ) and the SPB erred in excluding evidence of Arellanes‘s termination by the Los Angeles Sheriff‘s Department (LASD), and we affirm.
BACKGROUND
Arellanes submitted three examination and/or employment applications to the Center‘s department of public safety (department). On December 28, 2006, Arellanes applied for the position of department chief. On March 20, 2007, he applied for the position of museum security officer, a position for which he was hired on April 24, 2007. On July 14, 2007, Arellanes applied for the position of supervising museum security officer, and he was promoted to that position on September 10, 2007.
The first two applications asked in question 5: “Have you ever been dismissed or terminated from any position for performance or other disciplinary reasons? . . . [¶] If ‘Yes’ to Question #5, give details in item #12, and refer to the instructions for further information.” The third application used slightly different language in question 5: “Have you ever been fired, dismissed, terminated, or had an employment contract terminated from any position for performance or for disciplinary reasons? . . . If ‘Yes’ to Question #5, give details in Item #12.” Arellanes answered “YES” to question 5 on each application and provided the following explanation in item 12 in his applications on December 28, 2006, and March 20, 2007: “03-95: K-Mart—Violated store policy for not having two officers when making arrest. 09-90: L.A. Co. Sheriff—Terminated for violating Department policy for failing to report contacts with my informant of non-workable information.” His application on July 14, 2007, stated in item 12: “09-90: L.A. Co. Sheriff—Terminated for violating Department policy for failing to report contacts with my informant of non-workable information,” omitting his termination from Kmart.1
The instructions stated: “All questions must be answered completely and accurately, except as noted. You may be disqualified for any false or
On May 4, 2009, the Center terminated Arellanes from his position as a supervising museum security officer, effective May 12, 2009. The notice of adverse action informed Arellanes that he was terminated pursuant to
Sergeant Young‘s CHP administrative investigation report determined that Arellanes had been terminated from the LASD for violating four LASD policies by ” ‘maintain[ing] a personal association with persons . . . under criminal investigation or indictment . . . where such association would be detrimental to the image of the Department’ “; ” ‘act[ing] in . . . a manner . . . “discredit[ing] . . . himself or the Department” ’ “; failing to ” ‘report to his . . . supervisor . . . information . . . that might indicate the need for Department actions’ “; and failing to ” ‘maintain . . . competency to properly perform [his . . .] duties.’ ” The reason Arellanes had provided on his employment application “was neither truthful nor the same as the reasons for the actual termination, as detailed and outlined in the 1991 Los Angeles County Civil Service Commission decision and 199[5] appellate court decision sustaining [his] termination.” The department would not have hired Arellanes had he truthfully explained his termination from LASD, and contrary to the certification on his applications, the information Arellanes provided “was not true, correct, or complete because [he] misrepresented the actual reasons for [his]
Arellanes appealed to the SPB. An ALJ stated in a July 28, 2011 opinion that at the hearing, Arellanes moved to suppress evidence because “Sergeant Young obtained Appellant‘s personnel records from the County Records Center without Appellant‘s consent or by using proper discovery methods.” (Fn. omitted.) The ALJ concluded that the records were personnel records within the meaning of
On December 28, 2011, Arellanes filed a petition for a writ of mandate in superior court under
At a hearing on July 10, 2012, the trial court defined the issue as “whether there was a false statement in a series of employment applications by . . . Arellanes.” After hearing argument, the trial court adopted its tentative decision as its order, granted the Center‘s writ petition, and denied Arellanes‘s writ petition.
The trial court‘s thorough 15-page order applied the substantial evidence standard of review to the SPB decision and reviewed the SPB‘s legal conclusions de novo. The court concluded that there was no substantial evidence that Sergeant Young obtained Arellanes‘s personnel records from the LASD or from a Civil Service Commission archive. Instead, Sergeant Young
The improperly excluded evidence showed that Arellanes was dishonest in his applications and his answers were incomplete, despite the instructions and his signature under penalty of perjury. Any negligence by the department in not investigating Arellanes‘s discharge from the LASD did not make Arellanes‘s false statements immaterial. The records also showed fraud and failure of good behavior causing discredit to the department with the latter based on Arellanes‘s 2007 application during his employment by the department.3
In a judgment filed August 14, 2012, the trial court issued a peremptory writ of mandate remanding the proceedings to SPB and commanding SPB to set aside its August 9, 2011 reinstatement of Arellanes and denied Arellanes‘s petition. Arellanes filed this timely appeal.4
DISCUSSION
“[T]he trial court appropriately applied substantial evidence review to examine the entire administrative record, to determine whether the agency‘s findings were supported by substantial evidence. [Citations.] [¶] On review, our task is similar. Here, . . . [citation], ‘we are not free to indulge in an independent reconstruction of the events . . . .’ We examine all relevant evidence in the administrative record and view that evidence in the light most favorable to the judgment, resolving all conflicts in the evidence and drawing all inferences in support of the judgment. [Citations.]” (Do v. Regents of University of California (2013) 216 Cal.App.4th 1474, 1489–1490 [157 Cal.Rptr.3d 630].) “The burden is on [the department to show that] there was an abuse of discretion through the issuance of a decision . . . unsupported by substantial evidence.” (Id. at p. 1490.) We review questions of law, such as the exclusion of evidence, independently of the trial court and of the SPB. (Department of Transportation v. State Personnel Bd. (2009) 178 Cal.App.4th 568, 575 [100 Cal.Rptr.3d 516] (Department of Transportation).)
Our independent review leads us to agree with the trial court that the SPB erred in applying the exclusionary rule to the evidence regarding Arellanes‘s termination from LASD. “The courts have seldom applied the exclusionary rule in administrative cases, even ones in which severe penalties are imposed based on the admission of illegally seized evidence.” (Department of Transportation, supra, 178 Cal.App.4th at p. 576.) In balancing whether the social benefit of excluding the evidence outweighs the likely costs, courts consider whether the evidence was obtained under circumstances which shock the conscience or which constitute egregious police behavior so as to offend the collective conscience of the people. (Id. at pp. 579–578.)
In Dyson v. State Personnel Bd. (1989) 213 Cal.App.3d 711 [262 Cal.Rptr. 112], the agency conducted an unconstitutional search of Dyson‘s home, and the trial court answered yes to the “narrow question . . . whether the law requires the exclusion from an administrative disciplinary proceeding of evidence unconstitutionally seized from the employee‘s home by an agency employee who is a peace officer searching for evidence of theft of agency property.” (Id. at p. 719.) The invalidity of the seizure, and the propriety of suppression, had been determined in a criminal proceeding (the criminal charges were later dismissed), so that the agency was collaterally estopped from denying the invalidity of the search. (Id. at pp. 722, 728.)
In this case there is no evidence that the department, through the CHP, conducted an unconstitutional search. Sergeant Young testified at the administrative hearing that he was given the Court of Appeal decision, initially unpublished, copied from an online database. He also received a Lexis printout of the published decision that showed the decision had later been published. The next day, he made a phone call to the LASD and asked for information regarding Arellanes‘s termination. When LASD informed him that they would not release the information without a waiver from Arellanes, Sergeant Young ceased his efforts to get the records from LASD. On February 13, 2009, Sergeant Young then went to the Court of Appeal and obtained a certified copy of the decision. Armed with the appellate decision, Sergeant Young then went to what he called “the LA County Records Center,” where, using the superior court case number, he asked for “records that were made public” because they were made available to the courts, and he was led to a room with other members of the public. There he obtained several rolls of microfilm, containing “several cases from different people.” Finding Arellanes‘s case on the microfilm, Sergeant Young reviewed the record and printed from the exhibits documents he believed were relevant to the investigation. The printed records were presented to the ALJ.
Further, the facts do not implicate
II. The SPB‘s conclusion that Arellanes was not dishonest is not supported by substantial evidence.
A. The trial court did not improperly rely on the appellate opinion.
Arellanes argues that the trial court improperly relied on the appellate opinion‘s statement of facts. This is contrary to the record. In its opinion, the trial court explicitly stated “the facts set forth in an appellate opinion are not admissible in a civil proceeding to prove their truth,” and “the facts are supported by the attached investigative reports and undercover tape.” At the hearing, the court explained: “I want to be clear, although I cite to the Court of Appeal decision in Arellanes [v. Civil Service Com., supra, 41 Cal.App.4th 1208] for the facts, that is only for convenience . . . . Generally, appellate opinions are not admissible in a civil proceeding. . . . [T]he underlying documents I believe that were excluded contain the same information, and I
B. The excluded evidence shows that Arellanes was dishonest.
The documents obtained by Sergeant Young and excluded from the administrative proceedings were attached as exhibit D to the Center‘s writ petition. The documents included a Civil Service Commission recommended decision dated June 20, 1991, reflecting that Arellanes‘s termination from his job as a deputy sheriff had resulted from his violation of four provisions of the LASD Manual of Policy and Procedures.
The decision made findings of fact as follows. During his full-time employment with LASD, Arellanes had received a prior five-day suspension for “prohibited association.” He received five telephone calls in a five-week period from a criminal, Robert Arrand, and did not discourage him from calling or deny knowledge of other criminals mentioned. Arellanes met with Arrand on May 10, 1989, and Arrand told him he had been arrested. “Arrand requested information from [Arellanes] about another alleged criminal, a potential hit, and asked if he could pay [Arellanes] on the same basis as convicted criminal ‘Jay’ for additional information.” Arellanes did not report this contact to his supervisors. This behavior violated LASD‘s Manual of Policy and Procedures regarding general behavior, reporting information, incompetence, and prohibited association. The hearing officer concluded that Arellanes was properly discharged and recommended that the discharge be sustained. The Civil Service Commission adopted the findings and recommendation of the hearing officer as its final decision.
Also in the excluded materials was a transcript of a February 19, 2009 interview of Arellanes by Sergeant Young, in which Arellanes stated that his LASD termination “was for not reporting information of . . . specifically contacts that [he] had with [his] employer,” after “being investigated by internal affairs for [his] contacts with [his] informant a year ago that [he] did not report to them.” Confronted with the four department rule violations, Arellanes stated: “Oh, yeah, yeah. . . . They added some other stuff . . . .” Sergeant Young read to Arellanes portions of the appellate court decision, and Arellanes responded “as them, having evidence, it was never produced in court.” Asked why he did not list the four violations, Arellanes responded: “I just didn‘t. It wasn‘t that I was trying to be evasive or, or dishonest. I figured, could talk to the [INAUDIBLE] if they wanted to, uh, to investigate more, they have, they could‘ve done that.” “I just tried to summarize it.” Arellanes
The evidence regarding Arellanes‘s discharge from LASD uncontrovertibly demonstrates that Arellanes was dishonest when he wrote on his applications for employment as a security officer that he had been “terminated for violating Department policy for failing to report contacts with [his] informant of non-workable information.” Arellanes met with a criminal who Arellanes admitted was not his informant and who offered to pay Arellanes for information. Arellanes was terminated for violating LASD policies regarding general behavior, reporting information, incompetence, and prohibited association. There is no substantial evidence that Arellanes was telling the truth on his applications. This was in violation of
Further, it is immaterial whether the department was diligent or thoroughly investigated the reasons for Arellanes‘s termination by LASD before hiring Arellanes. Arellanes was dishonest when he completed the applications and signed the certification under penalty of perjury, regardless of what the department did or did not investigate after he applied.
Substantial evidence does not support the SPB decision revoking Arellanes‘s termination.
DISPOSITION
The judgment is affirmed. Costs are awarded to respondent California Science Center.
Rothschild, Acting P. J., and Chaney, J., concurred.