Williams v. Cal. State Personnel Bd. CA2/6 ( 2021 )

Filed 1/21/21 Williams v. Cal. State Personnel Bd. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
PERRY WILLIAMS, 2d Civ. No. B300667
(Super. Ct. No. BS174290)
Plaintiff and Appellant, (Los Angeles County)
v.
CALIFORNIA STATE
PERSONNEL BOARD, ET AL.,
Defendant and Respondent.
Perry Williams challenged his non-punitive termination
and dismissal from the California Department of Corrections and
Rehabilitation (“CDCR”) by writ of administrative mandamus.
The superior court denied his petition but reversed the State
Personnel Board’s (the “Board”) finding of dishonesty under
Government Code section 19572, subdivision (f).1 We conclude
All statutory references are to the Government Code
1
unless otherwise noted.
substantial evidence supported the Board’s finding and reinstate
its decision in full. We affirm the judgment as so modified.
STATEMENT OF FACTS
CDCR hired Williams as a correctional officer in 2008. He
transferred to the position of parole agent in 2010 and thereafter
worked at the Van Nuys unit of CDCR’s Division of Adult Parole
Operations. A condition of Williams’ employment was that he
remain eligible to carry a firearm at all times.
Williams was involved in a domestic violence incident in
September of 2015. Two officers with the Los Angeles Police
Department (“LAPD”) visited his apartment in response to
reports he had assaulted a man named Phillip Henry. The
officers found Henry standing alone outside with bruises and
cuts. He initially blamed Williams for his injuries but promptly
recanted his story and asked the officers to leave. Williams did
not report the LAPD visit to CDCR for five weeks. He denied
being present in the apartment that night or involved with the
incident leading up to the 911 call. Around the same time, CDCR
placed Williams on long-term medical leave after he suffered
injuries while arresting a parolee. The record indicates his
medical leave was not related to the domestic violence incident.
Officers visited Williams’s apartment again in March of
2017. He was still on medical leave from CDCR. They found
Williams and Henry bruised and cut from a physical altercation
but did not arrest them. The men petitioned for mutual
restraining orders, which the trial court issued after a hearing.
The orders prohibited both men from owning or possessing
firearms.
Williams did not immediately report the restraining order
or its firearms provision to CDCR. Instead, he hired an attorney
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to seek a modification allowing him to keep his CDCR-issued
firearm and wear it to work when his medical leave ended.
CDCR learned about the restraining order when a special agent
spoke to Henry in May of 2017.
CDCR served Williams with two notices on July 14, 2017:
(1) a Notice of Non-Punitive Termination (“NPT”) pursuant to
section 19585; and (2) a Notice of Adverse Action (“NOAA”)
pursuant to section 19572. The NPT alleged Williams no longer
met the minimum qualifications of his job because he could not
carry a firearm. The NOAA alleged a list of conduct violations
under section 19572 relating to the domestic violence incidents
and Williams’s lack of candor with CDCR and LAPD. Both
notices had an effective date of July 21, 2017.
Williams appealed the notices. Following a three-day
hearing, the Administrative Law Judge sustained the NPT
because CDCR proved the restraining order kept Williams from
legally owning and possessing a firearm at the time CDCR served
notice.2 He rejected Williams’s arguments that his efforts to
reinstate his rights precluded his termination. The ALJ also
sustained the NOAA, finding Williams’s failure to report the
restraining order constituted legal cause for discipline under
three subdivisions of section 19572: (d) inexcusable neglect of
duty; (f) dishonesty; and (t) other failure of good behavior. The
Board adopted the ALJ’s decision.
2 The superior court later modified the April 18 order to
allow Williams to carry a CDCR-issued firearm while on duty in
the event he completed a domestic violence course. The record
does not indicate whether he finished the course. This occurred
after his July 21, 2017 termination date and does not affect this
appeal.
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Williams sought to set aside his dismissal by petitioning for
a writ of administrative mandate. (Code Civil Proc., § 1094.5.)
The court denied the petition and entered judgment on July 19,
2019. Williams appeals.
DISCUSSION
1. Standard of Review
The superior court reviews disciplinary decisions of the
Board for substantial evidence in light of the whole record. (See
Coleman v. Department of Personnel Administration (1991) 52
Cal.3d 1102, 1125, citing Skelly v. State Personnel Board (1975)
15 Cal.3d 194, 217, fn. 31 [“Decisions of the State Personnel
Board, an agency of constitutional authority [citation], are
reviewed only to determine whether substantial evidence
supports the determination, even when vested rights are
involved”].) We independently review whether substantial
evidence supports the Board’s findings without deferring to the
superior court’s conclusions, resolving any questions of law de
novo. (Telish v. State Personnel Bd., (2015) 234 Cal.App.4th
1479, 1487.) We review the penalty imposed for abuse of
discretion. (County of Siskiyou v. State Personnel Bd. (2010) 188
Cal.App.4th 1606, 1615.)
2. The Civil Service Act Permitted CDCR to Serve
the NPT and NOAA Simultaneously
Federal and state due process standards require permanent
civil service employees receive certain procedural protections
before termination of employment. (Skelly v. State Personnel
Board, supra, 15 Cal.3d at p. 215; Cleveland Bd. of Educ. v.
Loudermill (1985) 470 U.S. 532, 546 [84 L.Ed.2d 494].) The State
Civil Service Act (the “Act”) provides the statutory framework for
these protections in California. (§ 19570 et seq.) Williams
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asserts, as he did below, that CDCR violated the Act’s
disciplinary procedures when it served the NPT and NOAA
simultaneously. We review this issue of statutory construction de
novo. (Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113,
1119.)
The Act permits an employer to use an NPT “in lieu of
adverse action . . . when the only cause for action against an
employee is his or her failure to meet a requirement for
continuing employment, as provided in this section.” (§ 19585,
subd. (a).) Williams contends this language requires CDCR to
choose between these two different methods of ending his
employment. We do not agree. The permissive phrase “may be
used in lieu of adverse action” means only that an employer may
serve an NPT under section 19585 when cause does not exist for
serving an NOAA under section 19571. The two statutes apply in
different situations and serve different purposes. Serving both
allowed CDCR and Williams to address two factually related, but
legally distinct, grounds for dismissal without wasting time and
expense on duplicative administrative proceedings. (See In the
Matter of Novencido (1998) SPB Case No. 97-2003 NO. 98-10, pp.
8-14 [CDCR could simultaneous seek non-punitive termination
and dismissal of employee convicted of battery after domestic
violence incident and prohibited from owning or possessing a
firearm].)
An NPT is a non-disciplinary separation mechanism that
ensures a public employee acquires and maintains the “specified
licenses, certificates, registrations, or other professional
qualifications, education, or eligibility for continuing employment
or advancement” within their class of employment. (§ 19585,
subd. (d).) The employer “has no statutory obligation to justify its
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decision to terminate an employee so long as the statutory
prerequisites for a non-punitive termination are satisfied.” (In
the Matter of Lannes (1992) SPB Dec. No. 92-10 Case No. 30141,
p. 5.) The employee remains eligible for reinstatement with
backpay once they regain the qualification at issue. (§§ 19140,
19585, subds. (g) & (i).) The employer has the option of placing
the employee on a leave of absence during this period rather than
terminating, demoting, or transferring them. (§ 19585, subd. (b).)
An NOAA, in contrast, focuses on an employee’s conduct.
The employer seeking to dismiss an employee pursuant to an
NOAA must demonstrate the employee engaged in one or more
types of misconduct set forth in section 19572 that constitute
grounds for adverse action. (See, e.g., § 19572, subds. (g)
[drunkenness on duty] & (p) [misuse of state property].) “NPT-
type” issues like the loss of a required license or certificate are
not among those listed. Once final, a dismissal by adverse action
removes the employee’s name from the state civil service list,
terminates their salary as of the dismissal date, and leaves them
ineligible for reinstatement. (§ 19583.1; See Roe v. State
Personnel Bd. (2004) 120 Cal.App.4th 1029, 1037 [employee could
not seek reinstatement as a retiree under section 19140 because
he retired pending termination for cause].)
Section 19585’s text does not bar CDCR from serving an
NPT and NOAA when grounds existed to serve each on its own.
Williams losing the right to carry a firearm entitled CDCR to
terminate him under section 19585 as a matter of law. His
withholding of that information entitled CDCR to discipline him
under section 19571. Reading mutual exclusivity into this text
would create a dilemma for employers: either serve an NPT and
forego disciplining an employee for misconduct under section
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19571, or serve an NOAA and ignore the employee’s failure to
meet their job requirements under section 19585. We decline to
interpret section 19585 as requiring employers to make this
choice, or to adjudicate factually related cases piecemeal.
Even if the Board erred, we do not see how serving the
notices together prejudiced Williams. The Act afforded him
identical due process rights whether dismissed pursuant to an
NPT, NOAA, or both. (§§ 19586 [rehearing of Board decisions],
19588 [right to seek review of Board decision by writ of
mandate].) The Act required CDCR to prove the allegations in
both by a preponderance of the evidence. (See In the Matter of
Domino (2019) SPB Dec. No. 19-01 Case No. 18-1948, citing
Lannes, supra, SPB Dec. No. 92-10 Case No. 30141 [“In an appeal
from [an NPT], the agency bears the burden of proving by a
preponderance of evidence that the employee failed to acquire or
retain the specified license, certificate, registration, or other
professional qualifications”]; In the Matter of Spence (2017) Case
No. 17-0511 NO. 17-02, pp. 14-15 [“In a disciplinary appeal, the
appointing power must prove the charges against the employee
by a preponderance of the evidence”].)
3. The Board’s Findings on CDCR’s Non-Punitive Termination of
Williams Is Supported by Substantial Evidence
Appellant does not dispute the restraining order’s firearms
prohibition or the requirement that he maintain his firearm
rights as a condition of his employment. Rather, he invokes a
safe harbor provision for employees experiencing bureaucratic
delays while trying to renew a required license, registration, or
certificate. (§ 19585, subd. (e) [“[A]n employee who has filed a
proper and timely application for renewal of a required license,
registration, or certificate shall be considered as having
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maintained the license, registration, or certificate unless it is
subsequently denied, revoked, or suspended”].) Williams
analogizes losing his firearms rights to an expired license, and
his attempts to regain those rights as trying to “renew” that
license under the safe harbor provision.
We decline to so interpret subdivision (e). The restraining
order did not revoke “a required license, registration, or
certificate” held by Williams. He lost his rights when he behaved
in a way justifying a restraining order, not because of a
paperwork bottleneck at the Bureau of Firearms or the County
Sheriff’s Office. We cannot untether the safe harbor provision
entirely from the statute’s text. (Vasquez v. State of California
(2008) 45 Cal.4th 243, 253 [courts may not “rewrite the statute to
conform to an assumed intention that does not appear in its
language”].) In addition, subdivision (e)’s safe harbor is limited
to those situations in which the employee is not at fault for the
underlying delay. (See In the Matter of Torossian (2003) SPB
Case No. 02-1147 NO. 03-04, pp. 13-14 [“we cannot believe, that
in enacting Section 19585, the legislature intended that
employees lose their permanent civil service rights . . . solely for
reasons that are beyond their control”].) Appellant alone is
responsible for the restraining order issued against him.
4. The Board Properly Exercised Its Discretion When It Upheld
CDCR’s Dismissal of Williams by Adverse Action
The Board found legal cause for discipline under three
subdivisions of section 19572: (d) inexcusable neglect of duty; (f)
dishonesty; and (t) other failure of good behavior. The superior
court disagreed with the Board’s finding of dishonesty because
Williams did not affirmatively misrepresent any fact to his
employer. It nevertheless denied Williams’ petition because
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substantial evidence supported his dismissal under subdivisions
(d) and (t).
Williams argues the superior court’s dishonesty finding
warrants a wholesale reassessment of his dismissal under Skelly
v. State Personnel Board, supra, 15 Cal.3d 194. We do not agree.
Existing precedent does not confine dishonesty to instances in
which an employee actively lies, steals, or engages in self-dealing,
or as preventing an employer for dismissing an employee for
dishonesty when the employee fails to disclose material
information in circumstances such as these. (See In the Matter of
Sandoval (1995) SPB Case No. 35789 NO. 95-15 [DMV employee
acted dishonestly when she failed to notify supervisors that she
used branch terminal to conduct personal business].) Williams’s
decision to refrain from reporting the restraining order to his
employer constitutes substantial evidence in support of the
Board’s findings. His status as a correctional officer only
highlights his lack of candor. (See Ackerman v. State Pers. Bd.
(1983) 145 Cal.App.3d 395, 400, quoting Board of Trustees v.
Stubblefield (1971) 16 Cal.App.3d 820, 824 [“‘There are certain
professions which impose upon persons attracted to them,
responsibilities and limitations on freedom of action which do not
exist in other callings. Public officials such as judges, policemen,
and school teachers fall into such a category.’”]; In the Matter of
E.A. (2009) SPB Dec. No. 09-01 Case No. 06-2706, p. 18 [“Peace
officers are held to a higher standard of conduct than are non-
peace officer employees”].) The Board’s findings under
subdivision (d) and (t) are likewise supported by substantial
evidence.
Our review of the record confirms the Board acted well
within its discretion when it sustained Williams’ dismissal. (See
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County of Siskiyou v. State Personnel Bd., supra, 188 Cal.App.4th
at p. 1615, citing Pollak v. State Personnel Bd. (2001) 88
Cal.App.4th 1394, 1404 [reviewing court will not disturb SPB
decision in mandamus proceeding “unless the SPB patently
abused its exercise of discretion by acting arbitrarily,
capriciously, or beyond the bounds of reason”]; § 19582, subd. (a)
[“Hearings may be held by the board, or by any authorized
representative, but the board shall render the decision that in its
judgment is just and proper”].)
DISPOSITION
We reverse the judgment to the extent the superior court
found the Board’s finding of dishonesty under section 19572,
subdivision (f) not supported by substantial evidence. We affirm
the judgment in all other respects.
CDCR shall recover its costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
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James C. Chalfant, Judge
Superior Court County of Los Angeles
______________________________
Janssen E. Diaz, Staff Counsel, California Correctional
Peace Officers Association, for Plaintiff and Appellant.
Michael P. Doelfs, for Real Party in Interest and
Respondent California Department of Corrections and
Rehabilitation.
No appearance for Respondent California State Personnel
Board.
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