Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for Los Angeles County No. BS102379, Dzintra Janavs, Judge.
Stone Busailah, Michael P. Stone and Marc J. Berger for Plaintiff and Appellant.
Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Senior Assistant City Attorney, and Gregory P. Orland, Deputy City Attorney, for Defendants and Respondents.
WILLHITE, J.
Appellant Francis Brien was discharged from his employment as a police officer with the Los Angeles Police Department (the Department) after a Board of Rights found him guilty of “engag[ing] in unbecoming conduct when [he] inappropriately and unnecessarily engaged in behavior that had the potential to escalate into domestic violence.” The Board’s guilty finding is final, having been affirmed by the trial court in an earlier proceeding, from which an appeal was not taken. As a result of that earlier proceeding, however, which reversed a guilty finding on another count, the Board reconvened to determine the appropriate penalty and make its recommendation to respondent William Bratton, Chief of Police. The Board recommended that Brien be discharged, and Bratton adopted that recommendation. Brien filed a new petition for a peremptory writ of mandate, challenging the penalty. The trial court denied the petition and entered judgment in favor of respondents Bratton and the City of Los Angeles. Brien appeals from that judgment, which we now affirm.
BACKGROUND
Brien was hired by the Department in April 2000. On June 25, 2002, Brien was assigned to patrol duties in the West Valley Division. His patrol partner, and driver of the patrol car, was Officer Keith Spencer. It was a busy evening; Brien and Spencer went from radio call to radio call, with only about 10 minutes of available time. Most of their radio calls were in the eastern and central parts of the West Valley Division, which is about 56 square miles.
Sometime between 8:00 and 9:00 that evening, Brien and Spencer drove past the home of Officer Carol Hale, which was in the western-most part of the West Valley Division. Hale was a friend of Brien’s girlfriend, Officer Jamie Smolko. Brien believed that Smolko and Hale were having dinner together at an El Torrito restaurant, but he became suspicious when he saw Hale’s truck in her driveway, because Hale and Smolko usually took separate cars when they met for dinner. Shortly thereafter, Brien told Spencer with “a sense of urgency” that he had diarrhea and needed to go back to the station. They returned to the station at around 9:00 p.m., and Brien advised the watch commander that he was going home.
Hale’s home was not near Brien’s and Spencer’s patrol area, and Spencer did not recall why they drove by it when he testified at the Board of Rights two years later. He said it is possible that Brien directed him there. He also noted that he typically drove by his in-laws’ house each night, which was about five minutes from Hale’s home.
After leaving work, but before going home, Brien drove by the El Torrito to see if Smolko’s car was in the parking lot. It was not. After driving around a little bit longer, Brien went home and tried to call Smolko on her cell phone, but her phone was turned off. A little while later, Brien decided to see if Smolko was at another restaurant, the Ranch, that she and Hale often went to. He drove to the Ranch, around 15 to 20 miles away, but she was not there. As he was driving home, Smolko called and said she was on her way home. When Brien got home, he waited in his garage for 20 minutes, until Smolko called to say she was home. He went to her apartment, and they had a very long and emotional confrontation, during which Smolko admitted that she had been out with her patrol partner, Officer James Nuttall, and that they had sexual relations.
Smolko and Brien lived in the same apartment complex. Smolko was planning to move into Brien’s apartment a week after this incident, on July 1.
At some point during their confrontation, Smolko fell to the ground, and Brien fell on top of her. There is a dispute about what happened next. According to Brien, they cried and held each other for a short time, then he got up and sat against the wall and Smolko sat next to him. Smolko told Internal Affairs investigators, however, that while she was on the floor with her eyes closed she heard Brien’s holster unsnap. Although she did not observe Brien remove his weapon from his holster, she believed Brien reholstered his weapon when he got off of her. She asked him later that night what happened with his gun, saying she heard him unholster it, and he told her he had pointed the gun at himself. Smolko made similar statements to Hale and Nuttall a few days after the incident.
Smolko did not testify at the hearing because of the marital privilege. Although she was not married to Brien at the time she was interviewed by Internal Affairs investigators, she and Brien were married at the time of the hearing. The Board received into evidence the tape recordings of Smolko’s interviews over Brien’s hearsay objection.
After Smolko told Nuttall that Brien knew about their relationship, Nuttall called Brien to apologize. Based upon comments Brien made during that conversation, Nuttall became concerned that Brien might become violent. Nuttall called his brother, who also was a police officer, and told him he thought Brien was going to kill him. Nuttall also called his supervisor, Sergeant Paul Sciarillo, to report his encounter with Brien. Nuttall also told Sciarillo about Brien’s encounter with Smolko. According to Sciarillo, Nuttall told him that Smolko told him that Brien put a gun to her head; according to Nuttall, he told Sciarillo that Smolko told him that Brien put a gun to his own head. As a result of Nuttall’s report to Sciarillo, four Los Angeles Sheriff’s deputies were sent to Brien’s apartment for a welfare check.
Six months later, in December 2002, Brien’s roommate, Officer Mark Dain, found a note in Brien’s bedroom addressed to “any person who cares.” The three-page note begins with the sentence, “I can’t deal with my pain and hurt anymore” and ends with the following: “I can no longer be hurt by people I love and care for. I’m sorry for doing this, I tried to get everyone to understand how much I hurt inside, but no one really wanted to listen. Now everyone will know how much pain I was in. Forever forgotten, Francis John Brien.” Concerned, Dain made a copy of the note and brought it to work to ask for a sergeant’s advice. He and the sergeant made several phone calls to try to reach Brien, and notified the West Valley Captain and the Department’s Behavior Sciences Section (BSS). Brien was directed by his commanding officers to be examined by Dr. Michael Craw, a police psychologist with BSS, for a suicide assessment. After meeting with Brien several times, reviewing the note with him, and speaking with Smolko, Dr. Craw determined that Brien was not a danger to himself.
On May 8, 2003, Brien was charged with four counts of misconduct and ordered to face those charges at a Board of Rights. The first two counts related to Brien allegedly drawing his weapon and pointing it at himself. Count 3 alleged that Brien threatened Nuttall with bodily harm, and count 4 alleged that Brien, “while off duty, unnecessarily became involved in a domestic violence incident.”
After the evidence was presented at the hearing, the Board advised the parties that it was going to amend count 4 to state, “On or about June 26th, 2002, [Brien] engaged in unbecoming conduct when [he] inappropriately and unnecessarily engaged in behavior that had the potential to escalate into domestic violence.” The Board asked Brien’s attorney if she needed additional time to prepare a defense to the amended count, and she responded that she did not. She did, however, argue that the amended count was vague because it did not include the specific facts that make up the charge. The chairman of the Board told her that “Count 4 encompasses everything that occurred that night. . . . From the beginning from when he went by, I believe it was Officer Hale’s house, all the way up to and including the encounter with Officer Smolko.” Brien’s attorney responded, “Okay.” She then gave her closing argument related to the amended count 4.
The Board found Brien not guilty of counts 1 and 2, because the only evidence in support of those counts was Smolko’s statements as reported by Internal Affairs investigators, and her statements to Hale and Nuttall. Because Brien denied the allegations against him, the Board determined it could not make a finding of guilty based solely on hearsay. The Board did, however, find Brien guilty of counts 3 and 4. Brien was discharged, and filed a petition for a writ of mandate in Case No. BS092798. The trial court in that case granted in part and denied in part Brien’s petition. It ruled that the administrative record shows that the weight of the evidence supports the guilty finding as to count 4, but not as to count 3, and remanded the matter to redetermine the appropriate discipline to be imposed based solely on count 4. In discussing the guilty finding as to count 4, the trial court stated: “This finding is supported by the weight of the evidence and, if it were the only reason why petitioner was discharged, the finding would have supported the administrative decision. [¶] The discharge was based in part, however, on the finding by the board that petitioner inappropriately threatened Officer Nuttall with bodily harm. The weight of the evidence contained in the administrative record does not support that finding.”
The record does not include the transcript related to the Board’s determination of penalty, nor does it include the petition filed in the first proceeding. The minute order from that writ proceeding is included in the record, and it indicates that Brien was discharged, but it does not state whether the Board recommended termination, or whether Bratton decided to terminate Brien despite a recommendation of a lesser sanction.
Brien did not appeal from the trial court’s judgment on his first writ petition. On remand, Bratton reconvened the Board of Rights to reconsider the appropriate penalty without considering the previous guilty finding on count 3. The Board unanimously concluded that “even without a finding of guilt as to count 3, the same reasoning that previously caused the Board to conclude that discharge was the appropriate penalty now leads us to the same conclusion when guilt has been established only with respect to count 4.” The Board took into account a number of factors, including the Department’s disciplinary guidelines; the seriousness of the charge; Brien’s personnel package, disciplinary history, and tenure with the department; the prior testimony from Brien’s character witness; and Brien’s character, as demonstrated by his testimony at the proceeding.
The Board noted that the charge of which Brien was found guilty was very serious, and that the Department’s disciplinary guidelines recommend a penalty of admonishment to discharge. It also noted that Brien had previously received an admonishment of unbecoming conduct for an off-duty domestic violence incident, and that both the instant incident and the previous incident occurred within Brien’s first two years with the Department.
Although the Board noted that Brien’s character witness testified that Brien “did a fine job while assigned to the Valley Court Liaison section,” the Board found that Brien was not credible, and that his testimony was self-serving and not forthcoming. As examples of Brien’s lack of credibility, the Board cited Brien’s testimony that he and his partner just happened to drive by Hale’s home during routine patrol, and that he left work early that night because he had diarrhea, even though he then drove by the El Torrito restaurant to check for Smolko’s car and later drove 15 to 20 miles to the Ranch restaurant and back and then waited in his garage for 20 minutes. In addition, the Board found that Brien’s testimony that he remained calm and did not yell when he confronted Smolko “defies common sense.” Finally, the Board was troubled by Brien’s inability to recall even the approximate date of his relatively recent marriage to Smolko.
In addition to noting Brien’s lack of candor, the Board expressed concern about Brien’s judgment, common sense, and lack of self control based upon the events of June 25 and 26, 2002. The Board concluded that the Department “cannot afford to have such character flaws in its officers. The traits could expose the City and the Department to liability should an officer act inappropriately while on duty.” It noted that its conclusion was “reinforced” by the note Dain found in Brien’s bedroom. Although it acknowledged Dr. Craw’s testimony that the note was not a suicide note, the Board did not find his testimony persuasive. The Board observed that Dr. Craw was in a therapeutic relationship with Brien, and he “specifically stated he could not speak to Officer Brien’s ability to emotionally deal with social issues, police issues, or his mental state to do police work.”
In light of all of these considerations, the Board recommended that Brien be discharged from his position as a police officer. Bratton adopted the Board’s recommendation, and Brien filed a new petition for peremptory writ of mandate challenging the penalty determination. The trial court denied the writ, finding the administrative record disclosed no abuse of discretion. Brien timely filed a notice of appeal from the resulting judgment.
DISCUSSION
Brien raises four issues on appeal. First, he contends that legal irregularities in the proceedings before the Board and the trial court in the first case deprived him of a fair hearing. Second, he argues he was deprived of due process because the Board relied upon credibility issues despite the absence of a charge of dishonesty, and it made unreasonable adverse inferences. Third, he asserts the Board abused its discretion in recommending discharge because there was no showing of harm to the public service. Fourth, he contends that termination is an excessive penalty for the sustained misconduct charge. We are not persuaded.
A. Standard of Review
“The penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated. [Citations.] 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.” (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 404.) “‘In reviewing the exercise of this discretion we bear in mind the principle “[c]ourts 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.]’” (Landau v. Superior Court (1998) 81 Cal.App.4th 191, 218, quoting Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 230.) “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, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence. [Citation.]” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.)
B. Irregularities in Prior Proceedings
In his opening brief on appeal, Brien contends he “was denied a fair hearing on the penalty because of an accumulation of legal irregularities during both phases of the hearing process.” He cites to three irregularities to support his contention: (1) the charge upon which his termination was based was amended mid-hearing, so he did not have an opportunity to prepare to meet the amended charge; (2) the Board placed undue emphasis on credibility issues; and (3) the trial court in the previous writ proceeding inappropriately stated in its minute order that a guilty finding solely on count 4 would have supported the termination decision. The City and Bratton argue that Brien waived or is collaterally estopped to assert these alleged irregularities because he failed to appeal from the judgment in the prior proceeding. We need not decide that issue, however, because Brien fails to show how these purported irregularities denied him a fair hearing on the penalty.
As to the first alleged irregularity, the Board offered Brien additional time to prepare his defense at the time it amended count 4, but Brien’s attorney stated that she did not need any more time and she proceeded with her closing argument. The reconvened Board also gave Brien’s attorney an opportunity to address the Board before it deliberated on the penalty, but she did not take that opportunity. Given these facts, it cannot be said that the amendment of the charge during the prior proceeding deprived Brien of a fair hearing before the reconvened Board.
As to the second alleged irregularity, it simply is not an irregularity. As discussed in section C., post, an administrative body determining a penalty may take into account the character of the accused, “‘as evidenced by his behavior and demeanor at trial.’” (Landau v. Superior Court, supra, 81 Cal.App.4th at p. 223, quoting Yellen v. Board of Medical Quality Assurance (1985) 174 Cal.App.3d 1040, 1059.)
As to the third alleged irregularity, there is no indication that the first trial court’s statement in its minute order played any part in the reconvened Board’s determination to recommend that Brien be discharged. Rather, the record shows that the Board reconsidered the penalty without considering count 3 and based its recommendation on a number of factors, including the Board’s concern about Brien’s judgment, common sense, and lack of self control as demonstrated by all of his conduct on June 25 and 26, 2002.
C. Deprivation of Due Process
Brien contends he was denied due process because he was not charged with dishonesty and therefore was not given notice “of the possibility that inaccuracy on collateral matters such as the date of his marriage could be used against him as a basis for termination.” He also contends that the Board and the trial court relied upon unreasonable inferences in concluding that he lacked self control and that he and his partner deliberately drove by Hale’s home on June 25, 2002. We disagree.
As noted above, the credibility of an accused is always relevant to the determination of a penalty. (See Landau v. Superior Court, supra, 81 Cal.App.4th at pp. 221-223.) “‘[E]ven in a criminal proceeding, the court may take into account the defendant’s attitude toward the offense and his character as evidenced by his behavior and demeanor at trial.’” (Id. at p. 223.) Given that honesty (or lack of honesty) “is not considered an isolated or transient behavioral act; it is more of a continuing trait of character” (Gee v. California State Personnel Bd. (1970) 5 Cal.App.3d 713, 719), the Board properly could take into account Brien’s lack of credibility while testifying in determining the appropriate penalty, even if Brien was not charged with dishonesty.
Although Brien challenges the Board’s and the trial court’s inferences that supported the Board’s finding that he was not forthcoming in his testimony, the record fully supports those inferences. For example, Brien asserts the Board improperly inferred that he directed his patrol partner to drive by Hale’s home to check on Smolko’s whereabouts. He contends that inference is unreasonable in light of the evidence presented. To the contrary, the inference is amply supported by the evidence that Hale’s house was not in Brien’s assigned patrol area and was not in the vicinity of any of the radio calls he and his partner took that evening. Although Spencer, his patrol partner, did not remember Brien directing him to that location, he testified that it is possible that Brien did direct him. Moreover, even if Brien and Spencer were within a five-minute drive of Hale’s house because Spencer made a courtesy drive-by of his in-law’s house, there would have been no reason for them to drive in the direction of Hale’s house because it was farther from the assigned patrol area and in a low-crime area.
Similarly, Brien criticizes the Board for disregarding his testimony that he exercised self control, and finding instead that he “is lacking self-control, common sense, and sound judgment.” Brien misapprehends the Board’s finding, in that he contends this finding related only to his actual confrontation with Smolko. To be sure, the Board disbelieved Brien’s testimony that he remained calm when confronting Smolko. But the Board’s finding that Brien lacked self-control related to Brien’s conduct throughout the entire episode -- from driving by Hale’s house to confirm his suspicions, to feigning illness so he could leave work early, to confronting Smolko while his emotions were running high.
Brien also criticizes the Board for placing too much significance on his “inability to recall the date of his marriage,” particularly since his “error” did not affect any issue in the case. Although the date of his marriage was not particularly critical, it was relevant (because he had asserted the marital privilege at an earlier hearing to prevent Smolko from testifying), and his “error” was indicative of his lack of candor. When he was asked on May 5, 2004 when he and Smolko were married, he testified, “September of last year, 2003. [¶] . . . The 19th, I believe.” A member of the Board questioned him a short while later, noting that the Board met on September 5, 2003 to hear motions, one of which raised the marital privilege, and asked him how he could have been married at that time. He responded that he got the date wrong because his “head is a cloud right now” and he does not know the exact date. At the next hearing, held on May 18, 2004, Brien provided a copy of his marriage license, which showed that he and Smolko married on April 19, 2003. He also testified that he and Smolko had celebrated their first wedding anniversary on a cruise only two weeks before he testified at the previous hearing. Given these facts, it was not unreasonable for the Board to conclude that his incorrect testimony was not simply a mistake, but was further evidence of his general lack of candor.
Finally, Brien’s assertion that he was not given notice that he could be discharged for testifying inaccurately is meritless. He was a police officer, “held to the highest standards of behavior.” (Paulino v. Civil Service Com. (1985) 175 Cal.App.3d 962, 972.) “[T]he credibility and honesty of an officer are the essence of the function; his duties include frequent testifying in court proceedings.” (Ackerman v. State Personnel Bd. (1983) 145 Cal.App.3d 395, 400.) Before testifying at the hearing, Brien took an oath that he would testify truthfully. There is no question that Brien was well aware of his obligation to give accurate testimony. Moreover, contrary to Brien’s assertion, the Board did not discharge him for his inaccurate testimony, it merely took his lack of candor into account when determining the appropriate penalty for his unbecoming conduct.
D. Harm to the Public Service
As noted above, the “overriding consideration” in public employee discipline cases “is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’” (Skelly v. State Personnel Bd., supra, 15 Cal.3d at p. 218.) Brien contends the Board abused its discretion in recommending discharge because there was no showing that his conduct resulted in harm to the public service. He is incorrect. The evidence, and inferences reasonably drawn from the evidence, at the very least showed that (1) Brien directed his patrol partner to drive by Hale’s house, which was some distance from their assigned patrol area, to determine whether his girlfriend was where she told him she was; and (2) having discovered that Smolko was not out with Hale, Brien left work early so he could find and confront her, thus taking his patrol unit out of service. This alone constitutes harm to the public service.
E. Excessive Penalty
In arguing that his termination was an excessive penalty for the sustained misconduct, Brien focuses solely on his actual confrontation with Smolko. He contends that his failure to wait before confronting Smolko does not warrant termination, particularly in light of the fact that he did not become violent, despite the unfaithfulness of his girlfriend and having been “grievously wronged by a fellow officer.” But as we have noted, the sustained misconduct involved more than the actual confrontation with Smolko -- it included such conduct as driving by Hale’s home and feigning illness in order to leave work early. Moreover, we are not “free to substitute [our] discretion for that of the administrative agency concerning the degree of punishment imposed.” (Barber v. State Personnel Bd., supra, 18 Cal.3d at p. 404.) “It may be that others might have decided that a term [of] suspension rather than discharge was the appropriate sanction but ‘[t]he fact that reasonable minds may differ as to the propriety of the penalty imposed [will fortify] the conclusion that the administrative body acted within the area of discretion.’” (Ackerman v. State Personnel Bd., supra, 145 Cal.App.3d at p. 401.) In light of all the evidence presented, Brien’s discharge did not “‘exceed the bounds of reason.’” (Ibid.)
Brien also complains that the Board improperly found its termination decision was reinforced by the note he wrote in December 2002, because his treating therapist, Dr. Craw, testified that the note was not a suicide note. Despite Dr. Craw’s testimony that Brien “was not a danger to himself,” the Board reasonably could be concerned about Brien’s fitness to serve as a police officer, based upon the content of the note.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: EPSTEIN, P. J., MANELLA, J.