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Alan Weingarten v. California State Personnel Board

September 2, 2011

ALAN WEINGARTEN, PLAINTIFF AND RESPONDENT,
v.
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.

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NOT TO BE PUBLISHED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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...


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