IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
September 2, 2011
ALAN WEINGARTEN, PLAINTIFF AND RESPONDENT,
CALIFORNIA STATE PERSONNEL BOARD, DEFENDANT AND RESPONDENT; CALIFORNIA DEPARTMENT OF FISH AND GAME, REAL PARTY IN INTEREST AND APPELLANT.
(Super. Ct. No. 34-2009-80000209)
The opinion of the court was delivered by: Blease , Acting P. J.
Weingarten v. Cal. State Personnel Bd.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Real party in interest California Department of Fish and Game (DFG) appeals from a judgment granting a peremptory writ of mandate directing the California State Personnel Board (Board) to set aside its decision sustaining a six-month suspension of plaintiff Alan Weingarten, a Fish and Game warden, for sexual harassment, inexcusable neglect of duty, discourteous treatment of the public and a co-worker, and "[o]ther failure of good behavior" causing discredit to DFG. (Gov. Code, § 19572, subds. (d), (m), (t), & (w).)*fn1 As relevant here, the trial court found that the six-month penalty "was excessive in light of the circumstances of the case."
DFG contends the trial court erred in concluding the penalty was excessive. DFG asserts the Board acted well within its discretion in sustaining the six-month suspension because peace officers such as Weingarten are held to a higher standard of behavior, Weingarten displayed "a remarkable lack of judgment," caused discredit to DFG, exposed DFG to civil liability, and failed to appreciate the inappropriateness of his behavior making it likely he would engage in similar behavior in the future.
Weingarten counters that DFG has failed to provide this court with an adequate record on appeal, and thus cannot meet its burden of establishing reversible error. Weingarten does not address the substance of DFG's contention that the Board did not abuse its discretion in sustaining the six-month suspension.
We shall conclude that the record is adequate given the limited issue raised on appeal, and that the Board did not abuse its discretion in sustaining the six-month suspension. Accordingly, we shall reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND*fn2
Weingarten has worked as a Fish and Game warden since 1994. In 2005, he received a corrective memorandum for discourteous treatment of the public or other employees and was required to attend an anger management class. He has no prior adverse actions.
In May 2007, Weingarten was served with a notice suspending him from his position as a warden for six months. (§ 19574.) The discipline was based on two separate incidents in 2006. Weingarten appealed to the Board. (§ 19575.) An evidentiary hearing was conducted before an Administrative Law Judge (ALJ). (§ 19578.)
The following evidence was adduced at the hearing: On June 24, 2006, Weingarten observed three people, Michelle Conn and two males, take an inflatable raft from a box and blow it up. He watched as they drank beer, loaded beer into an ice chest, placed the ice chest in the raft, and float off, leaving the empty box filled with trash on the shore. After taking photographs of the box and its contents, Weingarten drove his truck to a point along the river and waved the rafters over to the shore. Weingarten determined that none of the rafters was old enough to consume alcohol: Conn was 18 years old, and the two males were 19 and 20 years old. He cited the rafters for littering within 150 feet of the waterway but not for possession of alcohol. Nor did he confiscate the alcohol or instruct the rafters to pour it out. He told the rafters that it was too late for them to raft down the river and instructed them to retrieve their car before the park closed. Conn explained that she had no money for a taxi or other means to return to her car and asked Weingarten for a ride. He agreed but did not inform dispatch he was transporting Conn to her car or note the transport in his daily activity report.
During the drive, Weingarten received a mobile telephone call from another warden. Weingarten told the warden that he had "a very pretty young woman in his truck" and that she was "wearing nothing but a hot pink bikini." He then handed Conn the phone and told her to talk to the other warden. Weingarten's actions caused Conn "anxiety and fright." She felt Weingarten was sexually harassing her, which made her extremely uncomfortable and fearful for her safety. When they arrived at her car, she jumped out of Weingarten's truck, got into her car, locked the doors, and drove away. Weingarten did not administer a field sobriety test to Conn before allowing her to drive her car.
Conn filed a complaint three months after the incident when she learned there was an avenue for her to do so. After conducting an investigation, DFG sustained the complaint and concluded disciplinary action was appropriate.
Roughly two months later, on September 9, 2006, Weingarten chased and apprehended a suspect in a rice field. After the suspect provided him with incorrect information, he contacted dispatch. While he was waiting for dispatch, he received a mobile telephone call from another warden who asked what time Warden Billie Mills, who was performing administrative tasks at home, started work that day. Weingarten accidentally responded over his DFG radio instead of his mobile telephone, stating: "O fucking dark 30 and there's gonna be some overtime earned in her panties today, guaranteed." Weingarten's response could be heard by anyone monitoring DFG radio and was heard by at least four people, including Lieutenant John Laughlin of DFG and an employee of the Department of Parks and Recreation. Weingarten admitted broadcasting profane language over the radio but denied there was any discriminatory or sexual connotation to the broadcast.
Following the evidentiary hearing, the ALJ issued a proposed decision upholding the six-month suspension. (§ 19582, subds. (b), (e).) The ALJ found that Weingarten's failure to confiscate the alcohol from the rafters, failure to administer a field sobriety test to Conn before allowing her to drive, behavior toward Conn, and failure to inform dispatch or note in his daily activity report that he had transported Conn constituted an inexcusable neglect of duty. The ALJ further found that Weingarten's behavior toward Conn constituted discourteous treatment of the public, other failure of good behavior causing discredit to DFG, and sexual harassment. With respect to the radio broadcast, the ALJ found Weingarten's comments concerning Warden Mills constituted an inexcusable neglect of duty, discourteous treatment of a co-worker, other failure of good behavior causing discredit to DFG, and unlawful discrimination.
The Board adopted the ALJ's findings of fact, determination of issues, and proposed decision. (§§ 19582, subd. (b), 19583.) The Board denied his petition for a rehearing. (§ 19586.)
Weingarten filed a petition for writ of administrative mandamus in the trial court (§ 19588; Code Civ. Proc., § 1094.5), claiming, among other things, that the Board erred in (1) sustaining the charges of inexcusable neglect of duty and unlawful discrimination based on the radio broadcast because such conduct was not charged in the Notice of Adverse Action; (2) sustaining the charge of unlawful discrimination based on the radio broadcast; (3) sustaining discipline based upon dishonesty because such conduct was not charged in the Notice of Adverse Action; (4) sustaining the charge of inexcusable neglect of duty based on his failure to confiscate the alcohol or administer a field sobriety test to Conn; (5) sustaining the charge of unlawful sexual harassment based on his behavior toward Conn; and (6) sustaining a charge of inexcusable neglect of duty based upon his failure to document Conn's transport. He also asserted that the six-month suspension was excessive under the circumstances because his conduct "resulted in limited harm to the public service," he "will not likely engage in such conduct again," and "[t]he penalty does not comport with the principles of progressive discipline."
The trial court rejected most of Weingarten's claims. It found the Amended Notice of Adverse Action did charge Weingarten with inexcusable neglect of duty and unlawful discrimination based upon the radio broadcast, and that the Board did not sustain discipline based on Weingarten's dishonesty. The court explained that the ALJ properly "found [Weingarten] was dishonest (i.e. not credible) in his testimony at the hearing -- especially in regard to his testimony that his comments had no sexual connotation."
The trial court also concluded that the Board correctly determined that Weingarten's behavior toward Conn constituted unlawful sexual harassment, explaining that "[a]t the time, Conn was extremely vulnerable, being confined in his moving vehicle, at dusk, without shoes, and wearing only a bikini. Under these circumstances, [Weingarten's] comments to and behavior toward Conn was sufficiently offensive, demeaning, and threatening to support discipline for unlawful sexual harassment."
The court also agreed with the Board that Weingarten's radio broadcast was "profane, offensive, and sexually-related" but found the Board abused its discretion in finding cause to discipline Weingarten for unlawful discrimination based on the radio broadcast. The court found that "there was no evidence that [Weingarten] made the comment about Warden Mills because of her gender," and that "the comment was not sufficiently severe or pervasive to create a hostile or abusive work environment."
The court further found that the Board properly sustained the charge of inexcusable neglect of duty based on Weingarten's failure to remove the alcohol from the possession of the rafters and his failure to administer a field sobriety test to Conn before allowing her to drive her car but concluded the Board "erred in sustaining the charge of inexcusable neglect of duty based on [his] failure to notify dispatch that he was transporting Conn and failure to report Conn's transport in his daily activity report . . . ." The court explained that "[w]hile the evidence . . . establishes that reporting and documenting any transport of a civilian is a 'best practice,' the evidence is insufficient to support the finding that it was an official duty."
Finally, without explanation, the court determined "that the penalty of a six-month suspension was excessive under the circumstances." Accordingly, the court issued a peremptory writ of mandate directing the Board to set aside its decision and to reconsider the same in light of the court's judgment and decision.
As a preliminary matter, we reject Weingarten's assertion that DFG "failed to provide the court with the administrative record necessary to evaluate the Board's decision," and as a result, cannot meet its burden of establishing reversible error.
The sole question before us is whether the Board abused its discretion in sustaining the six-month suspension. "In reviewing the trial court's determination, this court's duty is to determine whether the Board's decision was supported by the findings and the findings by substantial evidence or whether the Board abused its discretion by failing to proceed in the manner required by law. (Code Civ. Proc., § 1094.5, subds. (b), (c); Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 334-335 [25 Cal.Rptr.2d 842].)" (Young v. Gannon (2002) 97 Cal.App.4th 209, 224-225.)*fn3 Here, Weingarten complains that the reporter's transcript of the evidentiary hearing before the ALJ, which is not part of the record on appeal, is essential to our determination of the issue raised on appeal. He is mistaken.
The underlying facts are not at issue. The ALJ's factual findings were adopted by the Board. While Weingarten challenged some of those factual findings in his petition for writ of administrative mandamus, the trial court determined that the factual findings were supported by substantial evidence, and Weingarten has not challenged the trial court's determination.*fn4 Moreover, while the trial court did conclude that certain of the Board's "conclusions of law" were not supported by the evidence, DFG's appeal is limited to the trial court's determination that the six-month suspension is excessive.*fn5 Thus, to the extent we must determine whether the Board's findings are supported by substantial evidence, we shall rely on the evidence as set forth in the ALJ's factual findings; a transcript of the evidentiary hearing before the ALJ is not essential to our review.
Turning to the merits, "[g]enerally 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.] Nevertheless, while 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." (Skelly v. State Personnel Board, supra, 15 Cal.3d at pp. 217-218; see also Department of Corrections v. State Personnel Bd. (1997) 59 Cal.App.4th 131, 150.) "'In weighing these factors, we may consider the nature of the profession in issue, since some occupations such as law enforcement, carry responsibilities and limitations on personal freedom not imposed on those in other fields. [Citation.]' [Citation.]" (Department of Corrections v. State Personnel Board, supra, 59 Cal.App.4th at p. 150.)
The Board cited a number of factors supporting its finding that the six-month suspension was justified. As a peace officer, Weingarten is in "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."*fn6 Weingarten "displayed a remarkable lapse in judgment in both of these incidents." He put the rafters and the public "at extreme risk of harm" by leaving alcohol in the rafter's possession and allowing Conn to drive without administering a field sobriety test. His comment concerning Conn's "state of undress," made while the two were in a closed truck, "was so unprofessional that it subjects DFG to potential civil liability." As for the radio broadcast, the Board noted that "[e]ngaging in a personal conversation while engaged in an enforcement action (in which he had just had to chase down and catch the suspect) was very dangerous. Dividing his attention led to the inappropriate broadcast of the personal conversation." Weingarten's failure to perceive the inappropriateness of his actions suggested the actions were likely to recur in the future. Finally, while Weingarten had no adverse actions in the past, the Board found that mitigation was unwarranted because "[a]ny further recurrence could result in much graver consequences, as well as further discredit to [Weingarten] and to the Department." Each of these findings was supported by substantial evidence.
While the trial court found that the Board abused its discretion in concluding that Weingarten's radio broadcast constituted unlawful discrimination, the court agreed with the Board that the broadcast was "profane and offensive" and did not disturb the Board's findings that the broadcast constituted an inexcusable neglect of duty, discourteous treatment of a co-worker, and other failure of good behavior causing discredit to DFG. Moreover, while the court found the Board erred in concluding that Weingarten's failure to report Conn's transport constituted an inexcusable neglect of duty, it found the Board properly sustained the charge based upon Weingarten's failure to confiscate the alcohol or conduct a field sobriety test on Conn before allowing her to drive.*fn7
Having considered all the circumstances of this case, we conclude the Board did not abuse its discretion in upholding the six-month penalty based upon Weingarten's inexcusable neglect of duty, discourteous treatment of Conn and Mills, other failure of good behavior causing discredit to DFG, and sexual harassment of Conn. (See Skelly, supra, 15 Cal.3d at pp. 217-218; see also Department of Corrections v. State Personnel Board, supra, 59 Cal.App.4th at p. 150.) Weingarten's sexual harassment of an 18-year-old girl during the course of performing his duties as a warden and broadcast of profane and offensive comments over DFG radio plainly resulted in harm to the public service. His failure to confiscate alcohol from three underage rafters and failure to administer a field sobriety test to Conn before allowing her to drive placed Conn, the other rafters, and the public in danger. His actions also reflected extremely poor judgment, particularly so given his position in law enforcement. His lack of judgment coupled with his failure to acknowledge the egregiousness of his actions makes it more likely the misconduct will reoccur in the future.
The judgment is reversed. DFG shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: ROBIE , J. DUARTE , J.