WILLIAM TELISH, Plaintiff and Appellant, v. STATE PERSONNEL BOARD et al., Defendants and Respondents; DEPARTMENT OF JUSTICE et al., Real Parties in Interest and Respondents.
No. B250856
Second Dist., Div. Three.
Mar. 10, 2015.
1479
DesJardins & Panitz and Eric A. Panitz for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Assistant Attorney General, Christine B. Mersten and Chris A. Knudsen, Deputy Attorneys General, for Real Parties in Interest and Respondents.
OPINION
EDMON, P. J.—Plaintiff and appellant William Telish (Telish) appeals a judgment denying his petition for writ of administrative mandate (
The essential issue presented is the admissibility of recorded telephone conversations between Telish and his former girlfriend, L.D., which evidence was received at the administrative hearing in this matter.
A participant may properly record a telephone conversation at the direction of a law enforcement officer, acting within the course of his or her authority,
Although Telish contends the criminal investigation was a “sham,” the Board determined L.D. duly recorded the telephone conversations pursuant to the direction of DOJ in connection with a criminal investigation, and the Board‘s finding is supported by substantial evidence. Therefore, the recorded telephone conversations were admissible at the administrative hearing. We also reject Telish‘s other arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND3
In June of 2006, while working as senior special agent in charge at the Bureau of Narcotic Enforcement‘s (BNE) Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (LA IMPACT), Telish began a consensual sexual relationship with a subordinate employee, L.D., who worked as an administrative assistant and financial analyst. Their relationship continued on and off until the end of 2009. L.D. was one of approximately 100 employees supervised by Telish. He supervised L.D. from 2005 until 2008. On March 20, 2008, L.D. left LA IMPACT and accepted a position with the Placentia Police Department.
In October of 2007, rumors of Telish‘s relationship with L.D. surfaced at work. Jerry Hunter (Hunter), assistant chief at BNE, inquired about the rumors. Telish denied the relationship and admitted only to having gone to dinner with L.D. By the end of the conversation, Hunter believed Telish‘s account of his platonic work relationship with L.D. Telish then confronted L.D. about the rumors, upon which she explained that she had revealed their relationship to several coworkers. Telish was upset and instructed L.D. to deny their relationship and tell the coworkers that she had exaggerated it. Telish also directed L.D. to tell Douglas Law, deputy director
On October 27, 2009, while at L.D.‘s home, Telish inquired about a risqué text he saw on L.D.‘s cell phone. He kept looking through the phone after being asked to stop and he accused L.D. of sleeping with other men. A struggle for the phone ensued. Telish held L.D.‘s arm down to keep her from reaching the phone.
On December 9, 2009, L.D. reported to her current boss, Placentia Chief of Police James Anderson (Chief Anderson), that she had been assaulted by Telish and that in 2007 he had threatened to release nude photographs of her if she failed to recant statements she had made about their affair. Believing that Telish had committed assault and battery as well as extortion, Chief Anderson reported L.D.‘s allegations to DOJ Deputy Director Rick Lopes and to the Orange County District Attorney.
In January 2010, DOJ began a criminal investigation regarding L.D.‘s allegations against Telish. As part of the investigation, at the direction of DOJ, L.D. surreptitiously recorded multiple telephone conversations she had with Telish. After being provided with a report from DOJ, the Orange County District Attorney‘s Office declined to prosecute.
DOJ dismissed Telish from his position as a senior special agent in charge, effective July 19, 2010, alleging he intimidated, threatened to release sexually explicit photographs of, and physically assaulted a subordinate employee with whom he had a consensual relationship. DOJ also alleged Telish misused his state-issued vehicle, made derogatory racial comments about a supervisor, discussed the physical attributes of candidates for a position on a task force, falsely claimed to have an informant who provided him with confidential information, was dishonest during an investigatory interview, and destroyed evidence.
- Administrative proceedings.
- The proposed decision of the administrative law judge (ALJ) denying Telish‘s motion to exclude evidence of the recordings and sustaining his dismissal.
Telish appealed his dismissal to the SPB. The hearing was conducted on February 28, and March 1 to 4, 2011. At the commencement of the hearing,
On March 17, 2011, the ALJ issued an order, separate from her proposed decision, denying Telish’s motion to exclude evidence of the recordings. The ALJ ruled that because the recordings were performed at the direction of DOJ and related to a criminal investigation of serious crimes, they were admissible pursuant to
With respect to the merits, the ALJ found Telish’s behavior constituted cause for discipline under various subdivisions of
- The Board’s decision, ruling the recordings were inadmissible but the remaining evidence was sufficient to uphold the dismissal.
The Board rejected the ALJ’s proposed decision and decided to hear the case itself. The parties appeared and presented oral arguments to the Board on December 13, 2011.
The Board adopted all of the ALJ’s findings of fact. However, it reversed the ALJ’s evidentiary ruling and held the evidence obtained from the surreptitious recordings was inadmissible. Citing Rattray v. City of National City (9th Cir. 1994) 51 F.3d 793 (Rattray), discussed post, the Board held that although the recordings were properly made by L.D. acting pursuant to the direction of law enforcement in connection with a criminal investigation (
The Board concluded that although the recordings should have been excluded, their admission by the ALJ was harmless error and therefore Telish’s dismissal remained intact. “Independent of the recordings, sufficient evidence exists in support of each cause of action for discipline found by the ALJ. . . . Notwithstanding the recordings, each factual basis in support of each sustained charge is corroborated by live testimony and/or other evidence admitted at [the] hearing.”
Superior court proceedings.
Telish filed a petition for writ of administrative mandate (
DOJ filed a cross-petition for writ of administrative mandate. DOJ‘s petition sought to overturn the Board‘s decision insofar as it excluded evidence of the recordings. DOJ requested that in all other respects the Board‘s decision be upheld.
After considering the papers and hearing argument, the trial court concluded the Board erroneously excluded the recorded phone calls because they were duly recorded by L.D., at the direction of DOJ, as part of a criminal investigation. (
The trial court entered judgment denying Telish‘s petition and granting DOJ‘s cross-petition. It directed the Board to set aside the portion of its decision that held the recorded phone conversations were inadmissible.
Telish appealed.
CONTENTIONS
We summarize Telish‘s contentions as follows: (1) the recordings and their progeny were inadmissible because they were obtained in a sham criminal investigation for use in administrative proceedings against him; (2) DOJ violated his rights under the Public Safety Officers Procedural Bill of Rights Act (POBRA) (
DISCUSSION
- Standards applicable to judicial review of an SPB decision.
Trial court review of an administrative decision is governed by
Because the SPB is vested with quasi-judicial powers, the trial court may not exercise its independent judgment, but must uphold the Board‘s findings if they are supported by substantial evidence. In applying the substantial evidence test, the trial court must examine all relevant evidence in the entire record, considering both the evidence that supports the Board‘s decision and the evidence against it, in order to determine whether that decision is supported by substantial evidence. (Coleman v. Department of Personnel Administration, supra, 52 Cal.3d at p. 1125; Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 742 [151 Cal.Rptr.3d 292] (Furtado).) This does not mean, however, that a court is to reweigh the evidence; rather, all presumptions are indulged and conflicts resolved in favor of the Board‘s decision. (Furtado, at p. 742.)
These standards “do not change on appellate review from a trial court‘s denial of a petition for writ of mandate from a decision of the SPB; an appellate court independently determines whether substantial evidence supports the SPB‘s findings, not the trial court‘s conclusions.” (Furtado, supra, 212 Cal.App.4th at p. 742.) However, insofar as an appeal from an administrative mandamus proceeding presents questions of law, our review is de novo. (Ibid.)
Trial court properly held the recorded phone calls were admissible because L.D. recorded them at the direction of law enforcement. - Statutory scheme.
The Invasion of Privacy Act (
The term “confidential communication” is defined as including “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto....” (
Subdivision (d) of section 632 provides for the exclusion of evidence obtained in violation of the statute. It states: “Except as proof in an action or prosecution for violation of this section, 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.” (Italics added.)
- Duly recorded phone calls are admissible in administrative proceedings.
As set forth above, notwithstanding section 632, an individual acting at the direction of a law enforcement officer may record a confidential communication. (
The Board found the exception of section 633 “allowed [L.D.] to record her telephone conversations with [Telish] at the direction of the DOJ.”
Although the Board found L.D. made the recordings at the direction of law enforcement, it ruled the recordings could not be admitted into evidence at the administrative hearing before the ALJ. Its rationale was that “section 633 is intended solely to permit law enforcement officers to continue to use electronic devices in criminal investigations, necessary in the performance of their duties in detecting crimes and apprehending criminals.... [I]n this case, even though the recording was performed pursuant to the direction of the DOJ in connection with a criminal investigation, the use of the recording was to discipline a DOJ employee in an administrative hearing, betraying the very purpose of the legislation, which is to detect crimes and apprehend criminals. Simply because DOJ obtained the recordings as part of a criminal investigation, does not mean that it has free rein to use the recordings at its own volition.”
The maxim expressio unius est exclusio alterius, which means “‘the expression of certain things in a statute necessarily involves exclusion of other things not expressed’ ” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391, fn. 13 [241 Cal.Rptr. 67, 743 P.2d 1323]), is applicable here. The exclusionary rule set forth in subdivision (d) of section 632 provides for the exclusion only of evidence obtained ”in violation of this section . . . in any judicial, administrative, legislative, or other proceeding.” (Ibid., italics added.) Thus, the exclusionary rule is not as broad as Telish would like. It does not restrict the use of evidence which was properly obtained in accordance with section 633. The Legislature certainly could have specified that evidence lawfully obtained pursuant to section 633, at the direction of law enforcement, may only be used in a criminal proceeding. It did not do so. This court cannot, under the guise of interpretation (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349 [45 Cal.Rptr.2d 279, 902 P.2d 297]), expand the exclusionary rule of section 632, subdivision (d), or insert a limitation in section 633, by adding terms which the Legislature chose not to include.
- Telish‘s authorities are inapposite.
Telish‘s, and the Board‘s, reliance on Rattray, supra, 51 F.3d 793 to disallow the recordings is misplaced. There, Officer Rattray was accused of sexually harassing a female coworker, Figueroa. In the course of investigating this complaint, the police captain directed “that Figueroa attempt to engage Rattray in a flirtatious conversation, and that she secretly record the incident. Figueroa subsequently taped a conversation between herself and Rattray.” (Id. at pp. 795-796.) Rattray sued, alleging inter alia, a claim of invasion of privacy based on the secret recording of his conversation with Figueroa. (Id. at p. 796.)
The district court relied upon the section 633 exception to dismiss plaintiff‘s claim, “ruling that because police captains could secretly record the private conversations of their employees by ‘wiring’ one party to the conversation prior to the enactment of § 633, the actions of Rattray‘s supervisors did not run afoul of § 632 in this case.” (Rattray, supra, 51 F.3d at p. 797, fn. omitted.) The Ninth Circuit reversed, stating “[t]he legislative history of § 633 and the dictates of the California Constitution, however, compel a conclusion that § 633 protects only electronic recording and eavesdropping in the course of criminal investigations, and not police recordings of their own employees as a matter of internal discipline.” (Rattray, supra, at p. 797, italics added.)
Thus, in Rattray, the section 633 exception did not apply because the recording was not obtained in the course of a criminal investigation. Rather, there was merely an internal investigation into Figueroa‘s accusation that coworker Rattray had sexually harassed her.
Here, unlike Rattray, the recordings occurred in the context of a criminal investigation, so as to bring this fact situation within the section 633 exception for a recording made at the direction of law enforcement. Rattray stands for the proposition that section 633 only protects recordings which were made in the course of criminal investigations. As the trial court observed herein, ”Rattray has nothing to do with the use of a recorded telephone call, properly recorded in a criminal investigation, in a civil or administrative case.” (Italics added.)
Dyson does not assist Telish. Unlike Dyson, where the evidence was seized unlawfully, L.D. duly recorded her conversations with Telish pursuant to the direction of law enforcement, in connection with an active criminal investigation. (
Likewise, In re M.B. (1996) SPB Precedential Dec. No. 96-08, cited by Telish, is inapposite. There, evidence was excluded in an administrative proceeding because it was obtained in violation of the federal wiretapping law. (
- No merit to Telish‘s contention the criminal investigation was a sham; the Board properly determined L.D. duly recorded the conversations at the direction of law enforcement.
In an attempt to avoid section 633‘s allowance of recordings at the direction of law enforcement, Telish contends the criminal investigation was a “sham” to enable DOJ to invoke section 633, which authorizes recording of conversations at the direction of law enforcement.
Whether a criminal investigation is a sham is a factual issue. (Van Winkle v. County of Ventura (2007) 158 Cal.App.4th 492, 498 [69 Cal.Rptr.3d 809] (Van Winkle) [former deputy sheriff contended sheriff‘s departments
In 2009, L.D. was working for the City of Placentia as the administrative assistant to its police chief, Chief Anderson. In late 2009, L.D. told Chief Anderson that (1) Telish had assaulted her in her home by holding her down on a couch while he examined her cell phone history, and (2) Telish had threatened to show L.D.‘s son nude photographs of her if she failed to recant statements she had made about their affair.
Based on L.D.‘s report, Chief Anderson felt that Telish had potentially committed crimes of domestic violence and extortion. Chief Anderson was extremely upset and felt that Telish should not be in law enforcement. Chief Anderson reported L.D.‘s statements to Director George Anderson and Deputy Director Rick Lopes of DOJ‘s Division of Law Enforcement which oversees the Bureau of Narcotic Enforcement, which is where Telish worked.
DOJ commenced a preliminary investigation by having L.D. interviewed by two investigators from its professional standards group. L.D. told them that she was involved in a sexual relationship with Telish, he had physically assaulted her, and he had threatened to release nude photographs of her if she did not cooperate in concealing their affair. The interviewers found L.D. spoke candidly and was credible.
Based on the report from the interviewers, Director Anderson opined “it appeared that we had criminal violations in the area with domestic violence, dissuading a witness, perhaps perjury.... [¶] So at that point on, we had to investigate it criminally.”
The criminal investigation was first in time, and was separate from the administrative investigation, which was conducted by DOJ‘s Employment Law Office, outside the Division of Law Enforcement.
Director Anderson met with a criminal supervising deputy attorney general, Canzoneri, to obtain an independent evaluation of possible criminal charges and to discuss how to proceed. It was determined the potential charges against Telish consisted of witness intimidation and false imprisonment.
The criminal investigation was conducted by Special Agent Stauts. He advised L.D. that it was legal for her to surreptitiously record the conversations as an agent of a peace officer. Stauts instructed L.D. to record her telephone conversations with Telish, and to discuss that he had held her down on the couch and had threatened to expose her nude photographs if she did not cooperate in concealing their relationship. L.D. expressed concern that this discussion would cause Telish to know that she was recording the conversations, but Stauts assured her that based on his experience, Telish would not react that way. After each telephone call, L.D. contacted Stauts and gave him a synopsis. Stauts then would meet with L.D., obtain the recorder, and download the recording to his computer. L.D. recorded eight telephone conversations with Telish.
In the final taped conversation on February 23, 2010, Telish acknowledged he had held L.D. down on the couch while he looked through her phone. That was sufficient because Canzoneri had advised Stauts that false imprisonment was the stronger of the two charges. Stauts then prepared a report on the criminal investigation and submitted it to the Orange County District Attorney’s Office, which declined to prosecute.
In sum, substantial evidence supports the Board’s conclusion that section 633 applied insofar as “[L.D.] . . . record[ed] her telephone conversations with [Telish] at the direction of the DOJ.” The evidence showed the DOJ criminal investigation was prompted by a report from Chief Anderson, at an outside law enforcement agency, that Telish had engaged in domestic violence against L.D. and had threatened her if she refused to recant statements she had made about their affair. It was Chief Anderson who contacted DOJ because he believed Telish “had committed a crime against her.” Stauts directed L.D. to record the conversations because he “didn‘t think there was any other way we were going to prove or disprove her allegations.” The record supports the Board’s determination that L.D. duly recorded the conversations, at DOJ’s direction, in its criminal investigation of Telish. Accordingly, we reject Telish’s contention the criminal investigation was a sham to circumvent section 633.
Telish‘s POBRA arguments. - The protections of POBRA do not apply to an officer subject to an independent criminal investigation conducted by his or her employer.
POBRA (
- Statute of limitations.
Telish also contends this matter is time-barred because, pursuant to POBRA, DOJ had one year from the time of an earlier investigative report, dated March 28, 2008, to proceed against him.10
On June 29, 2010, Telish was served with a notice of adverse action (NOAA) of dismissal. The NOAA alleged that in 2007 it was reported to management that he and L.D. were having an affair, and that he coerced L.D. to recant her statement that they were having an affair. ”However, it was not until December 2009 that DOJ learned that the reason [L.D.] recanted the story of the affair... in 2007 was that you threatened to release the nude pictures that you had of her to her son and others, if she did not do so. In other words, you coerced her to lie.” (Italics added.)
In ruling the action was timely, the Board determined, “There is no evidence that anyone meeting the definition of a ‘person authorized to initiate an investigation’ [(
We perceive no error. We are mindful it was not until late 2009 that L.D. disclosed Telish‘s threats to Chief Anderson. Therefore, substantial evidence supports the Board‘s determination that DOJ did not discover this misconduct until December 2009. We conclude Telish‘s contention DOJ should have discovered the threats in 2007 or 2008 is meritless.
- Telish‘s contentions with respect to the merits of the Board‘s decision.
- No merit to Telish‘s contention that L.D.‘s credibility should be reevaluated and that her testimony should be given no weight.
Telish contends L.D.‘s credibility should be reevaluated and that her testimony should be given no weight. We summarily reject Telish‘s argument that the Board should have disbelieved L.D.‘s testimony. “[C]redibility of witnesses and the proper weight to be given to their testimony were matters within the exclusive province of the [B]oard.” (Lorimore v. State Personnel Board (1965) 232 Cal.App.2d 183, 189 [42 Cal.Rptr. 640]; accord, Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 877 [130 Cal.Rptr. 292];
- No challenge to sufficiency of the evidence to support Board‘s decision.
Apart from attacking L.D.‘s credibility and contending the criminal investigation was a sham, Telish does not challenge the sufficiency of the evidence to support the Board‘s adverse decision on the various charges against him.
Further, Telish‘s opening brief, which sets forth the evidence in the light most favorable to him, cannot be construed as presenting such a contention. “‘When an appellant challenges an administrative decision as unsupported by substantial evidence in light of the record as a whole, it is [the] appellant‘s burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency‘s decision.’ [Citation.] A recitation of only the part of the evidence that supports the appellant‘s position ‘is not the “demonstration” contemplated under the above rule. [Citation.] Accordingly, if... [appellants] contend “some particular issue of fact is not sustained, they are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived.“’ [Citations.]” (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 749 [39 Cal.Rptr.3d 189].)11
- Unnecessary to address whether the Board‘s decision can be sustained if the recordings and their progeny were disregarded.
Finally, Telish contends that absent the recordings and their progeny, the Board‘s adverse decision cannot be upheld. In view of our conclusion that L.D. duly made the recordings at the direction of law enforcement in the course of a criminal investigation (
The judgment is affirmed. DOJ shall recover its costs on appeal.
Kitching, J., and Aldrich, J., concurred.
On March 13, 2015, the opinion was modified to read as printed above.