California Court of Appeals, Second District, Third Division
[As modified Mar. 13, 2015.]
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BS139506 James C. Chalfant, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
DesJardins & Panitz and Eric A. Panitz for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Assistant Attorney General, Christine B. Mersten and Chris A. Knudsen, Deputy Attorneys General, for Real Parties in Interest and Respondents.
EDMON, P. J.
Plaintiff and appellant William Telish (Telish) appeals a judgment denying his petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) wherein he sought to set aside a decision by defendant and respondent State Personnel Board (SPB or Board) upholding his dismissal from his position with the Department of Justice (DOJ).
The essential issue presented is the admissibility of recorded telephone conversations between Telish and his former girlfriend, L.D., which evidence was received at the administrative hearing in this matter.
A participant may properly record a telephone conversation at the direction of a law enforcement officer, acting within the course of his or her authority,
in the course of a criminal investigation. (Pen. Code, § 633.) Further, section 633 does not limit the use of duly recorded communications to criminal proceedings.
Although Telish contends the criminal investigation was a “sham, ” the Board determined L.D. duly recorded the telephone conversations pursuant to the direction of DOJ in connection with a criminal investigation, and the Board’s finding is supported by substantial evidence. Therefore, the recorded telephone conversations were admissible at the administrative hearing. We also reject Telish’s other arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In June of 2006, while working as Senior Special Agent in Charge at the Bureau of Narcotics Enforcement’s (BNE) Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (LA IMPACT), Telish began a consensual sexual relationship with a subordinate employee, L.D., who worked as an administrative assistant and financial analyst. Their relationship continued on and off until the end of 2009. L.D. was one of approximately 100 employees supervised by Telish. He supervised L.D. from 2005 until 2008. On March 20, 2008, L.D. left LA IMPACT and accepted a position with the Placentia Police Department.
In October of 2007, rumors of Telish’s relationship with L.D. surfaced at work. Jerry Hunter (Hunter), Assistant Chief at BNE, inquired about the rumors. Telish denied the relationship and admitted only to having gone to dinner with L.D. By the end of the conversation, Hunter believed Telish’s account of his platonic work relationship with L.D. Telish then confronted L.D. about the rumors, upon which she explained that she had revealed their relationship to several coworkers. Telish was upset and instructed L.D. to deny their relationship and tell the co-workers that she had exaggerated it. Telish also directed L.D. to tell Douglas Law, Deputy Director
of LA IMPACT, that she had made up or embellished their relationship. Telish had taken over 100 sexually explicit photographs of L.D. and he threatened to post them online or email them to her son if she did not recant her statements about being in a relationship with him.
On October 27, 2009, while at L.D.’s home, Telish inquired about a risque text he saw on L.D.’s cell phone. He kept looking through the phone after being asked to stop and he accused L.D. of sleeping with other men. A struggle for the phone ensued. Telish held L.D.’s arm down to keep her from reaching the phone.
On December 9, 2009, L.D. reported to her current boss, Placentia Chief of Police James Anderson (Chief Anderson), that she had been assaulted by Telish and that in 2007 he had threatened to release nude photographs of her if she failed to recant statements she had made about their affair. Believing that Telish had committed assault and battery as well as extortion, Chief Anderson reported L.D.’s allegations to DOJ Deputy Director Rick Lopes and to the Orange County District Attorney.
In January 2010, DOJ began a criminal investigation regarding L.D.’s allegations against Telish. As part of the investigation, at the direction of DOJ, L.D. surreptitiously recorded multiple telephone conversations she had with Telish. After being provided with a report from DOJ, the Orange County District Attorney’s office declined to prosecute.
DOJ dismissed Telish from his position as a Senior Special Agent in Charge, effective July 19, 2010, alleging he intimidated, threatened to release sexually explicit photographs of, and physically assaulted a subordinate employee with whom he had a consensual relationship. DOJ also alleged Telish misused his State-issued vehicle, made derogatory racial comments about a supervisor, discussed the physical attributes of candidates for a position on a task force, falsely claimed to have an informant who provided him with confidential information, was dishonest during an investigatory interview, and destroyed evidence.
1. Administrative proceedings.
a. The proposed decision of the administrative law judge (ALJ) denying Telish’s motion to exclude evidence of the recordings and sustaining his dismissal.
Telish appealed his dismissal to the SPB. The hearing was conducted on February 28, and March 1 to 4, 2011. At the commencement of the hearing,
Telish moved to exclude evidence of the surreptitious recordings of conversations between him and L.D. contending that, among other legal theories, the recordings were made in violation of section 632. He argued the recordings were made without his consent, were not recorded as part of a pending criminal investigation with probable cause, were not recorded with the supervision of a law enforcement agency, and were inadmissible during an administrative hearing.
On March 17, 2011, the ALJ issued an order, separate from her proposed decision, denying Telish’s motion to exclude evidence of the recordings. The ALJ ruled that because the recordings were performed at the direction of DOJ and related to a criminal investigation of serious crimes, they were admissible pursuant to section 633.
With respect to the merits, the ALJ found Telish’s behavior constituted cause for discipline under various subdivisions of Government Code section 19572 and that the appropriate penalty was dismissal.
b. The Board’s decision, ruling the recordings were inadmissible but the remaining evidence was sufficient to uphold the dismissal.
The Board rejected the ALJ’s proposed decision and decided to hear the case itself. The parties appeared and presented oral arguments to the Board on December 13, 2011.
The Board adopted all of the ALJ’s findings of fact. However, it reversed the ALJ’s evidentiary ruling and held the evidence obtained from the surreptitious recordings was inadmissible. Citing Rattray v. City of National City (9th Cir. 1994) 51 F.3d 793 (Rattray), discussed post, the Board held that although the recordings properly were made by L.D. acting pursuant to the direction of law enforcement in connection with a criminal investigation (§ 633), the recordings ...