IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
May 10, 2011
SEAN MINER, PLAINTIFF AND APPELLANT,
CITY OF ROSEVILLE ET AL., DEFENDANTS AND RESPONDENTS.
(Super. Ct. No. SCV-25468)
The opinion of the court was delivered by: Nicholson , J.
Miner v. City of Roseville
NOT TO BE PUBLISHED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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Terminated as a Roseville Police Department officer for insubordination and dishonesty, Sean Miner appealed to the City of Roseville Personnel Board. That Board concluded that Miner was insubordinate and dishonest and upheld the termination. Miner petitioned the trial court for a writ of administrative mandamus, and the trial court, exercising its independent judgment, found Miner was insubordinate and dishonest and concluded that termination was not an abuse of the City's discretion. Miner appeals.
On appeal, Miner contends that (1) the evidence is insufficient to establish insubordination and dishonesty, (2) the Board abused its discretion in terminating him, and (3) he is entitled to attorney fees. None of his contentions has merit. Therefore, we affirm.
FACTS AND PROCEDURE
Miner was a K-9 officer with the Roseville Police Department. On July 1, 2008, he trained with his dog and the K-9 team at Orchid Suites Hotel, beginning at 6:00 p.m. The team then agreed to meet at the Sierra Gardens Elementary School to continue the training. Miner misunderstood and went to the Eich Middle School, which is connected to Sierra Gardens by a greenbelt. Finding himself alone and after attempting unsuccessfully to contact the other team members, Miner went back to the police department. Meanwhile, the other team members continued training at Sierra Gardens.
Miner later testified concerning what he did after he got separated from the other K-9 team members: After his return to the police department, Miner used the restroom, checked e-mails, practiced with his dog at the firing range, broke down his gun, and placed his gun in the gun locker for cleaning. He then went to the fairgrounds, where he trained with the dog. Some, but not all, of these activities were corroborated by other evidence, such as logging onto the computer to check e-mails and placing the gun in the gun locker.
Miner left the department to go home before 10:00 p.m. Telephone records show that he received a cell phone call which connected through a cell tower while he was on Interstate 80, on his way home, at 9:19 p.m.
Sometime before or on July 9, 2008, Miner turned in a "Roseville Police Department K-9 Unit Training Report." These reports document K-9 training activities and must be accurate because they may be used in criminal or civil proceedings related to the actions of K-9 officers or their dogs.
In the training report, Miner stated that, on July 1, he put in four hours of overtime, from 6:00 p.m. to 10:00 p.m. He reported that he participated in training at Orchid Suites Hotel (which was correct) and Sierra Gardens (which he did not). Concerning training at the fairgrounds, Miner stated in the report that he trained his dog with the assistance of an agitator, someone who acts as the subject of the dog's attention (which was also incorrect because there was no agitator present).
The training report resulted in an internal affairs investigation. In an interview, Miner admitted that it was not true that he had trained at Sierra Gardens on July 1 or that he had the assistance of an agitator when he trained at the fairgrounds. He stated that he had fallen behind in filling out reports so he copied other reports. However, no other report was found with the same descriptions of training. Miner stated that copying from the other reports was a "'mistake.'"
After review of the investigation by the police chief and the city manager, the City terminated Miner. In doing so, it cited violations of various personnel rules. Some of the cited violations were falsifying work records, theft (based on claiming more time than worked), dishonesty, and insubordination (for lying in the internal affairs investigation).
Miner appealed to the City of Roseville Personnel Board, which heard evidence and issued a statement of findings and decision upholding the termination.
During the hearing, Miner continued to claim that he had copied other officers' reports, stating that he had not copied word-for-word but had "'grabbed the essence'" of the reports. He testified that he believed the department "made the records from which he copied 'disappear.'"
The Board made the following findings:
1. Miner falsified the report concerning the July 1 training at Sierra Gardens Elementary School.
2. Miner's explanation that he "mistakenly" copied other officers' reports was not credible because (a) there were no matching reports from which he could have copied and (b) he created the report within eight days after the training so he would have remembered then that he did not train at Sierra Gardens.
3. Miner falsified the report concerning what type of training he did at the fairgrounds on July 1.
4. Miner's explanation that he "mistakenly" copied his account of the fairgrounds training from other officers' reports was not credible because no other report was the same as Miner's report.
5. Miner lied to superior officers during the internal affairs investigation when he told them that he had copied the entries concerning Sierra Gardens and the fairgrounds from other officers' reports.
6. Miner was insubordinate for lying during the internal affairs investigation because he was ordered to tell the truth.
7. Miner lied concerning the same matters in his testimony at the Board's hearing.
8. The Board found it unnecessary to make findings concerning other alleged misconduct because the misconduct found to be true was sufficient to support the termination. (The Board's decision adds here: "However, the Personnel Board notes that it did not find Officer Miner to be a credible witness.")
9. Miner's misconduct violated various personnel rules and department policies.
10. The finding that Miner was dishonest and insubordinate is sufficient to warrant termination because (a) "honesty and credibility are essential qualities for a police officer who has the power and authority to take away someone's freedom on the basis of their [sic] word in a police report and in a court of law" and (b) his dishonesty is discoverable in a criminal proceeding (Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215]), "render[ing] Officer Miner useless as a witness in any criminal proceeding resulting from any law enforcement action in which he would subsequently be involved . . . ."
11. Miner did not commit theft because (a) the City tolerates falsification of time cards and (b) some of Miner's activities at the police department on July 1 were acceptable activities during training.
12. Miner's termination was reasonable and appropriate.
Miner filed a petition for writ of administrative mandamus in the trial court. He sought a judgment setting aside his termination with full back pay and attorney fees. The court heard the case based on the administrative record and the arguments of the parties. Exercising its independent judgment, the court, acting through a commissioner, found that the weight of the evidence supported the Board's finding of Miner's insubordination and dishonesty in the training report, the internal affairs investigation, and the Board hearing. It also found that termination was not an abuse of discretion because of the effect of the finding of dishonesty on his credibility as a witness.
Substantial Evidence Analysis
Code of Civil Procedure section 1094.5 governs inquiries "into the validity of any final administrative order or decision made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer . . . ." (Code Civ. Proc., § 1094.5, subd. (a).) When a vested, fundamental right, such as the right of an employee to continued employment is at issue, the trial court exercises its independent judgment to determine whether the employee's due process rights were violated and whether the agency's findings are supported by the weight of the evidence. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32.) "In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 (Fukuda).)
On appeal, we apply the substantial evidence test. (See Fukuda, supra, 20 Cal.4th at p. 824.) "'"We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court's decision. [Citations.] Where the evidence supports more than one inference, we may not substitute our deductions for the trial court's. [Citation.] We may overturn the trial court's factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings. [Citation.]"' [Citation.]" (Lake v. Reed (1997) 16 Cal.4th 448, 457.)
Miner claims that the evidence was insufficient to support the Board's finding of dishonesty because the evidence showed that he "negligently" completed the training report. He continues: "No evidence exists to suggest Miner intentionally completed the report to mislead or misrepresent the truth." This may have been an acceptable argument to make to the Board, but it is an untenable position on appeal after contrary decisions by the Board and the trial court. Ample evidence supports a finding that Miner was dishonest in completing the training report. Just days after the event, he reported that he did training that he did not do. He later lied to investigators and the Board concerning his copying of other officers' reports. Those representations were dishonest and, in light of the order to tell the truth, also insubordinate.
Miner claims that the finding of dishonesty cannot be sustained because (1) the evidence was overwhelming that he did not intend to deceive and (2) filing an inaccurate training report cannot be dishonest because the department accepts inaccurate time cards. Neither argument rationally challenges the sufficiency of the evidence.
Miner and the City argue over whether a finding of dishonesty requires a finding that Miner intended to deceive. We need not wade into the fray because, drawing appropriate and reasonable inferences, the evidence was sufficient to establish that Miner intended to deceive.
When reviewing the sufficiency of evidence, we draw every logical and reasonable inference in favor of the trial court's judgment. (Lake v. Reed, supra, 16 Cal.4th at p. 457.) Here, it is logical and reasonable to infer that Miner knew that the information he provided in his report just days after the training was untrue and was meant to deceive his superiors. Furthermore, it is logical and reasonable to infer from his later insistence that he negligently copied from other officers' reports that he was trying to cover up the fact that he had been willfully dishonest.
Miner responds that after he "admitted he completed the report inaccurately, there existed no motive for him to lie or be dishonest about copying the entries from other officers['] reports." That is both untrue and irrelevant -- untrue because Miner had woven the tangled web and desired to save face, and his job, by continuing in the dishonest avowals, and irrelevant because dishonesty, even without a clear motive, is damaging to his ability to be a credible police officer.
In an attempt to characterize his falsification of the training report as something other than dishonest, Miner claims that the training reports are trivial. To the contrary, the evidence established, and the Board found, that "[t]he training records are used in connection with any criminal law proceedings and civil litigation that may arise related to the actions of the K-9 Officers and their dogs. As such, the training records must be accurate." The training reports, therefore, are not trivial.
Miner's argument that he cannot be found dishonest because the department allows dishonesty in the other areas also fails. He states: "While the Board found Miner had not falsified his timecard for overtime worked on July 1, 2008, it failed to apply such logic to the allegations against Miner for inaccurately completing his K-9 training report. This finding is both internally inconsistent and is contrary to the weight of the evidence. Likewise, the [t]rial court dismissed this break in logic on the part of the Board and ignored the complete lack of substantial evidence to support a finding of dishonesty."
This assertion prompts several observations:
First, there is some merit in the assertion that allowing dishonesty as to the time cards while not allowing dishonesty as to the training reports is inconsistent. Miner's problem is that the inconsistency does not support his argument that he was improperly terminated for being dishonest. While the inconsistency reflects poorly on the department, it does not justify allowing all dishonesty. That would be disastrous to public safety and public confidence in the Roseville Police Department.
And second, Miner's assertion that the finding of dishonesty is contrary to the weight of the evidence is, again, both untrue and irrelevant. Although Miner attempts to characterize his falsifications as negligence, the weight of the evidence is that he was dishonest. In any event, it does not matter what the weight of the evidence is when we review under the sufficiency-of-evidence standard.
Perhaps realizing the lack of merit in his sufficiency-of-evidence argument, Miner attempts to win reversal by casting aspersions on the Board and the police department. He rails against the department for allowing dishonesty on time cards. But he saves his most vituperative attack for the Board. He states: "The Board has cleverly exonerated Miner on issues which have broad application to potential dishonest conduct on behalf of the entire department while choosing to sustain findings on the relatively unimportant K-9 training report log because Miner's was the only report on July 1, 2008 different from the other trainers'." Also: "[T]he Board was willing to excuse an allegation which may have implicated misconduct by other officers, but selectively chose to sustain allegations concerning the K-9 training report because it did not believe the other officers had falsified their K-9 training reports." This attack on the integrity of the Board is fruitless and ill-advised.
In summary, there was substantial evidence to support the Board's finding that Miner was dishonest, multiple times, and insubordinate for lying after being ordered to tell the truth.
Abuse of Discretion Analysis on Penalty
"When the superior court has conducted its review and has concluded that the agency properly found misconduct, the imposition of the appropriate penalty for that misconduct is left to the sound discretion of the agency. 'The penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated.' [Citation.] '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.' [Citation.] A significant aspect of this principle of judicial review is that it applies even when the superior court exercises its independent judgment on the evidence (i.e., '"weighs'" the evidence) in determining whether the agency abused its discretion in finding misconduct. [Citations.] . . . The superior court 'is not free to substitute its opinion for that of the administrative body as to an appropriate disciplinary measure.' [Citation.] 'The appellate court's review of the degree of discipline imposed . . . remains the same as that appropriate to the trial court: The discipline imposed will not be disturbed unless it is shown to have been a manifest abuse of discretion.' [Citation.] 'Neither a trial court nor an appellate court is free to substitute its discretion for that of an administrative agency concerning the degree of punishment imposed.' [Citations.] 'In reviewing the exercise of this discretion we bear in mind the principle "[c]courts should let administrative boards and officers work out their problems with as little judicial interference as possible . . . . Such boards are vested with a high discretion and its abuse must appear very clearly before the courts will interfere."' [Citations.] In determining whether an agency abused its discretion in assessing a particular penalty, a court will look to 'whether reasonable minds may differ as to the propriety of a penalty imposed.' [Citations.] Judicial interference with the agency's assessment of a penalty 'will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency.' [Citation.]" (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 53-54, fn. omitted.)
Simply put, the findings of dishonesty and insubordination support Miner's termination. As a police officer, he can properly be held to a high standard of truthfulness. A police officer's job "'is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper performance of an officer's duties. Dishonesty is incompatible with the public trust.' [Citation.] Dishonesty is not an isolated act; it is more a continuing trait of character. False statements, misrepresentations and omissions of material facts in internal investigations, if repeated, would result in continued harm to the public service. [Citation.]" (Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 721.)
Miner disagrees. He asserts that (1) he was negligent, not dishonest (which argument we have already debunked), (2) his conduct does not give rise to a Brady problem (which is simply untrue because the department would be obliged to reveal Miner's dishonesty in criminal proceedings), (3) his misconduct was an isolated incident (which is also untrue because he continued to lie through the internal affairs and Board proceedings), and (4) he has received many commendations for his service (which, even if true, does not establish an abuse of discretion in terminating him for dishonesty and insubordination).
We therefore conclude that the Board did not abuse its discretion in terminating Miner for dishonesty and insubordination.
Government Code section 800 provides for an award of attorney fees to a prevailing litigant against a public entity "if it is shown that the award, finding, or other determination of the proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his or her official capacity . . . ." (Gov. Code, § 800, subd. (a).) Miner is not entitled to an award of attorney fees under Government Code section 800 because he is not the prevailing party and did not establish that the City acted arbitrarily. (Zuehlsdorf v. Simi Valley Unified School Dist. (2007) 148 Cal.App.4th 249, 255.)
The judgment is affirmed. The defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
RAYE , P.
© 1992-2011 VersusLaw Inc.