Filed 4/15/14 Johnson v. State Personnel Board CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




ERIC JOHNSON,                                                                                C066333

                   Plaintiff and Appellant,                                        (Super. Ct. No. 34-2009-
                                                                                  80000347-CU-WM-GDS)
         v.

STATE PERSONNEL BOARD,

                   Defendant;

CALIFORNIA HIGHWAY PATROL,

                   Real Party in Interest and Respondent.




         While off duty, plaintiff, former California Highway Patrol (CHP) Officer Eric
Johnson, transported his wife home from the scene of a solo vehicle accident, before
investigating officers arrived, while suspecting at the time she was under the influence.
When he returned to the scene without his wife and spoke with fellow officers, he
claimed he did not know where his wife was, and he disputed a witness’s identification of


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him as the person who took his wife away. The CHP dismissed plaintiff from his
employment for inexcusable neglect of duty, dishonesty, and other failure of good
behavior while off duty that caused discredit to the CHP or his employment. Plaintiff
challenged his dismissal as excessive discipline, but the State Personnel Board (the
Board) sustained the termination, and the trial court denied plaintiff’s petition for writ
relief.
          Plaintiff appeals from the trial court’s judgment. He contends, first, that sufficient
evidence does not support the Board’s statutory grounds for his discipline. In this regard,
he claims there was no evidence he committed inexcusable neglect of duty. Second,
plaintiff contends the Board exceeded its discretion by imposing a penalty of dismissal
for his conduct. On this point, he argues the Board abused its discretion by concluding
dismissal was justified (A) based on the possibility a district attorney might have to
disclose plaintiff’s conduct under Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d
215] (Brady), and (B) without properly assessing the factors it was to consider when
determining a penalty, as set forth in Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194
(Skelly).
          We disagree with plaintiff’s contentions and affirm the trial court’s judgment.
                                             FACTS
          Plaintiff became a CHP officer in 1988. Prior to this matter, he had not been
subject to any adverse employment actions. His wife, Christina Johnson, struggles with
alcoholism, depression, and other medical illnesses. Oakdale police have responded to
plaintiff’s residence on numerous occasions on account of Christina’s behavior, including
three times for her attempting to harm herself and once for her battering her husband.
          On November 22, 2006, at 12:50 a.m., approximately one week after she had been
taken into protective custody for attempting to harm herself, plaintiff’s wife was involved
in a solo vehicle accident. David Pell came upon the scene and reported the incident to
the police. Mrs. Johnson was slurring her words and was staggering. She identified

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herself to Pell as plaintiff’s wife and gave him her driver’s license. She called plaintiff,
who was at home and off duty. She told him she had wrecked the vehicle and asked him
to come help her. He asked her to determine her location and call him back. She called
him back and handed the phone to Pell, who told plaintiff their location. Plaintiff told
Pell he was an employee of the CHP and was coming to the scene. Plaintiff also told Pell
not to call the police, and that he would take care of it.
       Minutes later, plaintiff arrived at the scene of the collision in his personal vehicle,
a white Chevrolet pickup truck. When he arrived, he quickly took his wife and told her,
“Come on, let’s go, they’re almost here. They’ll be here shortly.” He told Pell to tell the
responding officers to tow the vehicle. He helped his wife into the truck, ran around the
front of the truck, jumped in, and drove off. Plaintiff drove his wife home, despite
knowing she had possibly been driving under the influence. He smelled alcohol on her.1
       Plaintiff knew the responding officers would want to speak with his wife, but he
wanted to get her home so she could relax and become calm. He was trying to control
the situation and her response. At home, he advised his wife to sit down. He was going
to go back to the scene and take care of the vehicle. He continued to smell alcohol on
her.
       CHP Officers Eldon Sousa and Kurt Kusick were dispatched to the accident. Prior
to arriving, Sousa was informed plaintiff’s wife was the driver and that plaintiff was on
his way to the scene. Sousa and plaintiff had been CHP partners at one time for over




1       Plaintiff testified that when he arrived on the scene, his wife and Pell were
arguing. He yelled at his wife to “get [her] ass in the fucking truck.” After his wife got
in the truck, she broke down crying. He told her to relax and he would be right back. He
spoke with Pell about the accident. He told Pell he was a CHP officer and that he worked
with the officers who would be responding to the scene of the accident. He told Pell to
instruct the officers to have the car towed. Plaintiff told Pell that the officers had his cell
phone number and could call him. He told Pell he was taking his wife home.

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three years. Because of that relationship, Sousa asked Kusick to take the lead on the
investigation, and he would draw a diagram if needed.
       When the CHP officers and other emergency and law enforcement personnel
arrived at the scene, they found a Jeep that had crashed into a wooden utility pole. They
were unable to locate plaintiff’s wife. Pell told them someone had come and picked her
up. They located her identification in the vehicle.
       Plaintiff arrived back on the scene about five minutes after the CHP officers had
arrived. Pell recognized plaintiff’s white pickup, and he told Officer Kusick it looked
like the pickup that had picked up the driver. As plaintiff exited the pickup, Pell said
plaintiff was the person who had picked up the driver.
       After arriving, plaintiff told Officer Sousa, “I’m going to take care of this, I’m
going to knock her out.” Plaintiff asked Sousa who else was aware of the incident.
Sousa said a lot of people were aware of it. Plaintiff asked him if the witness was still
there and what he had said. Sousa told him Pell had said plaintiff had been there earlier
in his pickup and had picked up the driver.
       Plaintiff told Officer Sousa he did not know the whereabouts of his wife. Plaintiff
said “his official answer was that he had not been there before and he didn’t know where
[his wife] was at.” Officer Sousa told plaintiff Pell had identified plaintiff and his pickup
as the person and vehicle that picked up the driver. Plaintiff replied that his wife had a
lot of friends who had the same type and color of vehicle as him. Officer Kusick testified
plaintiff said in effect that “a lot of people drive white pickups around here.” During the
entire collision investigation that night, plaintiff did not inform either Officer Sousa or
Officer Kusick he had already transported his wife home.
       After the CHP officers talked with each other, they informed Pell they would take
care of the situation, everything was under control, and he could leave. Pell believed the
officers were going to cover up the incident, so he notified the Oakdale Police
Department and the CHP’s Modesto office about it.

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       The CHP launched a criminal investigation into plaintiff’s actions. On October 3,
2007, the CHP terminated plaintiff’s employment. It dismissed him on the grounds his
behavior the night of the accident constituted inexcusable neglect of duty, dishonesty, and
other failure of good behavior while off duty that caused discredit to the CHP or his
employment. (Gov. Code, § 19572, subds. (d), (f) & (t).)
       By letter dated April 18, 2008, some six months after plaintiff’s dismissal, the
Stanislaus County District Attorney informed the CHP she would not initiate criminal
charges against plaintiff because the statute of limitations had expired. However, she had
concluded plaintiff had been untruthful during an official investigation, and, as a result,
her office was mandated under Brady, supra, 373 U.S. 83, to disclose this information to
the defense in any ongoing cases in which plaintiff was a material witness. Her office
also required corroboration of plaintiff in any new case referred for prosecution where he
was a material witness. Without corroboration, her office would not prosecute the case.
                                PROCEDURAL HISTORY
       Plaintiff appealed his dismissal to the Board. The Board, adopting the
administrative law judge’s decision, found that plaintiff’s transportation of his wife from
the accident scene and his failure to advise CHP officers of her whereabouts constituted
inexcusable neglect of duty, dishonesty, and the failure of good behavior. It determined
plaintiff’s misconduct caused serious harm to the public service by interfering with an
investigation into a possible criminal violation and placing personal considerations before
the public’s protection. Plaintiff discredited the CHP in the eyes of a member of the
public, who believed the CHP engaged in a cover-up at the accident scene. He placed his
fellow officers in a compromising position, inviting them to cover up his misconduct.
       In addition, plaintiff’s conduct had limited his usefulness as a CHP officer.
Because plaintiff had been dishonest, he would be subject to impeachment in a court of
law regarding his CHP duties if called to testify. The Board mentioned the District



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Attorney’s notice of her intention not to prosecute a case where plaintiff was a material
witness unless his testimony could be corroborated.
       The Board noted plaintiff’s misconduct was not likely to recur, and that his actions
were caused by a desire to protect his wife. However, plaintiff’s “misconduct involved
intentional, conscious deception over an appreciable period of time. After he dropped
[his wife] off at their house and returned to the scene, he could have acknowledged his
misconduct, but he failed to do so. . . . [¶] Peace officers . . . are held to a higher
standard of behavior. [Citation.]” It found dismissal was warranted.
       Plaintiff petitioned the Board for rehearing. The Board granted the petition,
entertained additional arguments, and then again affirmed plaintiff’s termination of
employment.
       Plaintiff filed a petition for writ of mandate in the trial court, claiming the Board
abused its discretion and imposed an excessive discipline. The trial court denied the
petition. It found the Board did not abuse its discretion affirming plaintiff’s dismissal, as
substantial evidence supported the Board’s findings. Plaintiff’s breaches of his official
duty caused serious harm to the public service, discrediting the integrity and operation of
the CHP. His dishonesty also subjected him to impeachment under Brady, restricting the
District Attorney’s prosecution of cases and his ability to fulfill an important duty of his
job. Despite plaintiff’s prior good record and his intent to protect his wife, the court
found the penalty of dismissal was not manifestly disproportionate to the seriousness of
the harm to the public service and plaintiff’s ability to perform his duties.
       Plaintiff timely appealed from the trial court’s judgment.
                                         ANALYSIS
                                               I
                   Substantial Evidence Supporting the Findings of Fact
       Plaintiff’s contends substantial evidence does not support the Board’s findings of
fact. However he challenges only one finding. He claims no evidence supports the

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Board’s finding he committed inexcusable neglect of duty. (Gov. Code, § 19572, subd.
(d).) He does not challenge the Board’s findings that he was dishonest and his actions
constituted other failure of good behavior while off duty that caused discredit to the CHP
or his employment. (Gov. Code, § 19572, subds. (f) & (t).) We thus affirm the latter two
findings on the basis of forfeiture, and we address, and ultimately affirm, the first finding.
       Our scope of review on appeal from a judgment affirming a Board decision is
identical to that of the trial court. (California Youth Authority v. State Personnel Bd.
(2002) 104 Cal.App.4th 575, 584.) Decisions of the Board are reviewed “only to
determine whether substantial evidence supports the determination, even when vested
rights are involved. [Citations.]” (Coleman v. Department of Personnel Administration
(1991) 52 Cal.3d 1102, 1125-1126.) “ ‘The State Personnel Board is an agency with
adjudicatory powers created by the California Constitution.’ [Citation.] As such the
Board acts much as a trial court would in an ordinary judicial proceeding. Thus, the
Board makes factual findings and exercises discretion on matters within its jurisdiction.
On review the decisions of the Board are entitled to judicial deference. The record must
be viewed in a light most favorable to the decision of the Board and its factual findings
must be upheld if they are supported by substantial evidence. [Citation.]” (Department
of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 823-824.)
       Plaintiff asserts no evidence supports the finding he committed inexcusable
neglect of duty. He contends because he was off-duty the night of the incident, was not
wearing a uniform, and did not flash his badge or use any inherent authority of his
position when he took his wife home, he cannot be found to have neglected his duty. We
disagree.
       The Board defines “inexcusable neglect of duty” under Government Code section
19572, subdivision (d), to be “the intentional or grossly negligent failure to exercise due




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diligence in the performance of a known official duty.” (In the Matter of the Appeal by
E.W. (1999) SPB Case No. 98-2130, Dec. No. 90-09 <http://spb.ca.gov/content/
precedential/99-09%20W_E.pdf>, at p. 19, fn. omitted.) CHP General Order 0.8 imposes
on all CHP employees a duty to adhere to certain professional values in order to maintain
the department’s professionalism and integrity. Those values include:
          “Honesty[:] Uphold the truth, and maintain the trust and confidence placed upon
[the CHP] by the citizens of California.
          “Professionalism[:] Constantly strive for quality and excellence.
          “Principles[:] Adhere to the highest conduct which promotes moral and ethical
ideals.
          “Respect[:] Display a positive and service-oriented attitude towards the public
and each other.
          “Integrity[:] Be honorable, open, and fair; this is the cornerstone of [the CHP’s]
profession.”
          Substantial evidence indicates plaintiff failed, intentionally or with gross
negligence, to exercise due diligence in fulfilling these duties of professional
responsibility. He used his official position against Pell and directed him not to call the
police about the accident. He removed a suspect from a potential crime scene before
investigating officers arrived. When he returned, he did not bring the suspect, he
misrepresented her location, and he denied being the person who had removed her from
the scene. At the hearing, plaintiff acknowledged his actions were not consistent with the
duties imposed by CHP General Order 0.8. These actions demonstrate plaintiff violated
his duties of professional responsibility and more than adequately support the Board’s
determination that he committed inexcusable neglect of duty.




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                                               II
                         Abuse of Discretion in Imposing Dismissal
       Plaintiff contends the Board abused its discretion when it affirmed the CHP’s
decision to dismiss him from his employment as the penalty for his misconduct. He
claims the Board erred by relying on the District Attorney’s letter announcing she would
disclose his actions under Brady and require corroboration for his testimony. He also
asserts the Board erred by not properly assessing factors required by Skelly before
imposing discipline. We disagree with plaintiff’s contentions.
       “Generally speaking, ‘[in] a mandamus proceeding to review an administrative
order, the determination of the penalty by the administrative body will not be disturbed
unless there has been an abuse of its discretion.’ [Citations.]” (Skelly, supra, 15 Cal.3d
at p. 217.) “Neither an appellate court nor a trial court is free to substitute its discretion
for that of the administrative agency concerning the degree of punishment imposed.
[Citations.]” (Constancio v. State Personnel Bd. (1986) 179 Cal.App.3d 980, 990-991.)
We will not disturb the penalty imposed by the Board unless we find it was “clearly
excessive.” (Id. at p. 991.)
A.     Brady notice
       Plaintiff argues the Board abused its discretion by relying on the District
Attorney’s notice that she would disclose his dishonesty under Brady in any case in
which plaintiff was a material witness as a ground for dismissing him. Plaintiff claims
this evidence is insufficient to sustain his dismissal because the CHP does not have a
policy prohibiting officers who are subject to Brady disclosure requirements from being
employed, and because the CHP did not in fact dismiss plaintiff for that reason.
       Plaintiff also argues the letter was hearsay. Although plaintiff objected to the
letter on that basis, the administrative law judge admitted it for the limited purpose of
showing the impact it had on the CHP. Plaintiff claims the letter should not have been



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admitted for that purpose, as it had no impact on the CHP’s decision. The CHP had
already dismissed plaintiff months before it received the letter.
       Both the Board and the trial court relied upon the District Attorney’s notice as a
basis for affirming plaintiff’s dismissal. They did not abuse their discretion in doing so
because the letter was admissible. First, it was not hearsay because it was not admitted
for the truth of its assertions. Evidence that would be admissible over objection in civil
court proceedings is admissible to support a finding in administrative hearings. (Gov.
Code, § 11513, subd. (d).) The letter was admitted to show the CHP’s reaction to it.
Kenneth Hill, Assistant Chief of the CHP, testified that as a result of the letter, the CHP,
if plaintiff were returned to employment, would have to ensure plaintiff’s observations
were always corroborated. For this purpose, the letter was not hearsay.
       Second, the letter was relevant to determine the appropriate penalty. As discussed
below, the primary consideration in determining an employment discipline is the extent
to which the employee’s conduct resulted in harm to the public service. (Skelly, supra,
15 Cal.3d at pp. 217-218.) The letter, and the CHP’s reaction to it, corroborated the
CHP’s earlier conclusion that plaintiff’s conduct had severely harmed the public service.
Indeed, Assistant Chief Hill testified an officer in plaintiff’s position was rendered
ineffective and unable to perform the full course of his duties unless his actions were
corroborated by another person, something that is not always a likely scenario. The letter
was relevant to this issue. It confirmed the validity of the CHP’s earlier conclusions.
       Plaintiff argues the letter was insufficient to justify his dismissal because the CHP
does not have a policy preventing officers subject to Brady disclosure from serving, and
the CHP did not rely upon the letter as a basis for his dismissal. These points are
irrelevant. The letter was admitted to show its effect on the CHP if plaintiff was
reinstated to employment and the resulting harm to the public service, not as part of the
record on which the CHP relied when it decided to dismiss plaintiff.



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       In addition, the letter was not the only basis on which the Board affirmed
plaintiff’s dismissal. The CHP’s response to the letter was just one factor among many
on which the Board relied. The Board did not abuse its discretion in relying on the letter
for its limited purpose.
B.     Assessment of Skelly factors
       Plaintiff contends the Board did not assess all of the relevant factors necessary for
deciding upon his dismissal. Specifically, he claims the Board did not consider all of the
circumstances surrounding his misconduct (his wife’s personal problems and his motive
to help her), and the likelihood the misconduct would not happen again. We disagree
with his contention. The Board did consider all of the relevant factors; it just did not give
them the weight plaintiff does.
       “[W]hile the administrative body has a broad discretion in respect to the
imposition of a penalty or discipline, ‘it does not have absolute and unlimited power. It is
bound to exercise legal discretion, which is, in the circumstances, judicial discretion.’
[Citations.] In considering whether such abuse occurred in the context of public
employee discipline, we note that the overriding consideration in these cases is the extent
to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[harm]
to the public service.’ [Citations.] Other relevant factors include the circumstances
surrounding the misconduct and the likelihood of its recurrence. [Citation.]” (Skelly,
supra, 15 Cal.3d at pp. 217-218.)
       The Board adequately considered each of these factors and did not abuse its
discretion in its assessment of them. The Board assessed the effect plaintiff’s misconduct
had on the public service, and it concluded the effect was severe. It found plaintiff had
“interfered with an investigation into a possible criminal violation, and in doing so,
placed personal considerations before the protection of the public. He discredited the
CHP in the eyes of Pell, a member of the public, who believed that the CHP engaged in a
cover-up at the scene of an accident, and in the eyes of the allied law enforcement

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officers who were present at the accident scene. He placed his fellow officers in a
compromising position, tacitly inviting their participation in a ‘Code of Silence’ to cover
up his misconduct.” The Board also found plaintiff’s usefulness as a CHP officer had
been substantially compromised, another negative effect on the public service, because
the CHP would have to ensure his actions were corroborated if he was reinstated.
       The Board also considered all of the circumstances surrounding the incident
plaintiff wanted it to consider. It noted plaintiff’s actions were “caused by a desire to
protect his wife, a basic, understandable motivation.” The Board also recognized the
misconduct was not likely to recur. It stated plaintiff “was an excellent officer and an
asset to the CHP. . . . [E]ven if a similar situation occurred, it is believed that [plaintiff]
would uphold his CHP duties.”
       Nevertheless, the Board did not abuse its discretion when it determined these
interests were outweighed by the effect plaintiff’s misconduct had on the public service.
“[Plaintiff’s] misconduct involved intentional, conscious deception over an appreciable
period of time. After he dropped Christina off at their house and returned to the scene, he
could have acknowledged his misconduct, but he failed to do so. . . . [¶] Peace officers
. . . are held to a higher standard of behavior. [Citation.] Given the discredit this incident
caused the CHP, the serious harm to the public, and the ongoing impact [plaintiff’s]
dishonesty would have on his ability to fulfill the duties of his position, dismissal is
warranted.”
       Even plaintiff admitted his misconduct violated his duties and seriously harmed
the public service. Reviewing his actions, plaintiff testified: “When I look back at it
from an officer’s point of view, I took someone away from the scene of an accident that I
shouldn’t have, that had had alcohol on her breath, and had taken some medication. I
should have stayed at the scene, or removed her back from the scene aways [sic] so that
her and Pell [sic] would not argue anymore and she’d stay calm until the officers arrived.



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       “My actions not only affected my job, but it affected the jobs of the officers. A
good friend of mine, [Officer] Sousa, his job, the whole Department, as far as the whole,
I affected that by my actions that night. I regret wholeheartedly what I did. I did not do
it that night to create this problem. I did it on an emotional basis, of how upset and
confused I was over my relationship personally away from the job.
       “That night, my job didn’t even come into my mind. I was more concerned with
fixing something that I could not fix, do something to make something go away, or to
help in the process of getting it resolved when it’s not my duty to do that. My duty is to
be, again, a witness to not only an incident but to be what I was at the time, a good
Highway Patrol officer.”
       In light of this evidence, we cannot say the Board abused its discretion or imposed
a clearly excessive penalty when it affirmed plaintiff’s dismissal. It sufficiently
considered and assessed all factors relevant to making its decision, and substantial
evidence supports its findings. We thus affirm its decision.
                                      DISPOSITION
       The judgment is affirmed. Costs on appeal are awarded to real party in interest
CHP. (Cal. Rules of Court, rule 8.278(a).)


                                                        NICHOLSON              , J.


We concur:



      BLEASE                , Acting P. J.



      MURRAY                , J.




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