Opinion
C038427.
7-9-2003
DEPARTMENT OF THE YOUTH AUTHORITY, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent; PAMELA KING, Real Party in Interest and Respondent.
A youth correctional officer employed by the Department of the Youth Authority (Department), real party in interest Pamela King (King), failed to disclose in her preemployment health questionnaire that she had twice been hospitalized for psychiatric treatment. Kings hospitalizations came to light six years later, when she submitted to a psychiatric evaluation after she filed a workers compensation claim for stress. The Department concluded King had intentionally falsified her responses on the health questionnaire, and dismissed her for dishonesty.
The State Personnel Board (the Board) reversed the Departments action and ordered King reinstated. The Board found that Kings failure to disclose her prior hospitalizations was not intentionally dishonest. The Board also found the Department violated the Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.) and Kings right to privacy under article I, section 1, of the California Constitution by using medical information the Department obtained through Kings workers compensation claim to dismiss her. The Board designated its decision as a precedent, meaning the decision contained a significant legal or policy determination of general application upon which the Board could rely in future cases. (Gov. Code, §§ 19582.5, 11425.60.)
The trial court denied the Departments petition for writ of administrative mandamus. (Code Civ. Proc., § 1094.5.) The Department appeals from the judgment denying the petition, and contends the Board erred in concluding that Kings privacy rights were violated, and abused its discretion in compelling the Department to retain a dishonest law enforcement employee.
We conclude, under the applicable standard of review, that substantial evidence supports the Boards factual findings that King was not dishonest. This obviates the need for us to examine the constitutional and statutory privacy issues, although we register three caveats regarding the Boards precedential decision on these matters. Accordingly, we affirm the judgment.
BACKGROUND
Backdrop
In 1981, King checked herself into the psychiatric ward of a hospital because she was suffering from depression caused by extreme stress from her job as a surgical nursing assistant. She stayed in the hospital about a month, and was treated with antidepressants, lithium and sleep medication.
In 1982, King was hospitalized again for depression-related symptoms, this time at the initiative of her parents. She spent slightly more than a month in the hospital on this occasion.
In 1991, King applied to the Department for a job. During preemployment screening, potential Department employees are asked to complete a health questionnaire. On that questionnaire, King answered "no" to the following questions:
The health questionnaire asks applicants to check a box marked "Yes" or "No" to the following questions:
"Have you ever had or do you have the following [P] . . . [P]
"1. Do you wear or have you ever worn glasses?
"2. Do you or have you ever worn contact lenses?
"3. Have you had any eye injury, surgery, or disease?
"4. Are you blind in one eye?
"5. Are you blind in both eyes?
"6. Lung or respiratory trouble, including bronchitis, tuberculosis, or asthma
"7. Residuals of poliomyelitis
"8. Hepatitis, jaundice, or other liver ailments
"9. Cancer, malignant tumor or cysts
"10. Diabetes or sugar in urine
"11. Pernicious anemia, leukemia or other blood disorder or ailment
"12. Mental illness or nervous breakdown
"13. Any disorder of the nervous system
"14. Seizure disorder or loss of consciousness
"15. Severe headaches or migraine
"16. Heart trouble—including circulatory disease
"17. Rheumatic fever
"18. Any defect of bones or joints, including amputations, dislocations, broken bones
"19. Rheumatism, arthritis, or bursitis
"20. Back pain or back injury
"21. Head injury
"22. Any problems with hips, knees, ankles or feet
"23. Any problems with hands, elbows, or shoulders
"24. Fainting spells or dizziness
"25. Skin trouble
"26. Allergies
"27. Sensitivity to dust or smoke
"28. High or low blood pressure
"29. Varicose veins
"30. Stomach or duodenal ulcer or other bowel problem
"31. Rupture or hernia
"32. Gall bladder trouble
"33. Kidney or bladder trouble
"34. Shortness of breath
"35. Do you wear a hearing aid or have you had at any time a problem with your hearing?
"36. Any speech impairment
"37. History of or addiction to drugs or alcohol
"38. Any existing temporary medical condition such as broken bones, recovery from surgery, pregnancy, etc.? If yes, list condition and anticipated date of recovery.
"39. Are you at present under a doctors care for any condition? Give reason and doctors full name and address[.]
"40. Are you taking any medication now or in the last 12 months? If yes, what?
"41. Have you ever been hospitalized? If yes, list reason and date of hospitalization[.]
"42. (a) Have you had an illness or injury which caused you to lose time from work?
"(b) Does this illness or injury continue to limit your ability to perform certain types of work?
"43. Have you ever had any other illness, injury or physical condition not named above which required treatment as an outpatient or where surgery was recommended (exclude common minor illnesses, e.g., colds, flu, etc.)?"
"Have you ever had or do you have the following [P] . . . [P]
"12. Mental illness or nervous breakdown" [P] . . . [P]
"41. Have you ever been hospitalized? If yes, list the reason and date of hospitalization[.] [P] . . . [P]
"43. Have you ever had any other illness, injury or physical condition not named above which required treatment as an outpatient or where surgery was recommended (exclude common minor illnesses, e.g., colds, flu, etc.)?"
King was hired and became a youth correctional officer at the Departments Ventura School facility. This is a peace officer position.
In 1997, King filed a workers compensation claim for stress arising from alleged sexual harassment. The workers compensation claim form completed by King asked: "Before this accident did you ever suffer from any injury or disease?" King checked the box marked "yes" and indicated that she had been treated in a hospital for job-related stress in 1981-1982.
King was sent to a state-appointed psychiatrist for evaluation. The psychiatrist told King that the usual doctor/patient confidentiality did not apply, but he did not tell King that he would send a report to the Department, nor did he obtain a written authorization from King allowing him to release medical information. King told the psychiatrist the details of her two psychiatric hospitalizations and also disclosed that she had undergone two cesarean section deliveries and other medical procedures. In a written report, the psychiatrist relayed to the Department what King had told him.
When the Department received the psychiatrists report, it launched an investigation into whether King had disclosed her psychiatric hospitalizations during the preemployment screening.
A Department investigator interviewed King concerning her responses on the health questionnaire. At the outset, he informed King that if she refused to answer his questions, she could be disciplined for insubordination. The investigator did not have a copy of Kings health questionnaire, so he read aloud from a blank form similar to the one completed by King.
When he read question 41 aloud to King ("have you ever been hospitalized?"), she responded that she had been hospitalized and described the circumstances. King explained she had previously answered "no" to question 41 because she "didnt think it applied to [her]"; she had misunderstood the question to ask whether she had been hospitalized for a reason defined in the preceding series of questions, or during a defined period (not including 1981 and 1982). She also indicated she thought the question referred only to surgeries.
The investigator questioned King closely about the reasons for her psychiatric hospitalizations. King responded that prior to each hospitalization she had suffered from depression and mood swings. She told the investigator her hospitalizations were "stress-related," but she "didnt think [they] amounted to a mental illness or a nervous breakdown" as those words are used in question 12. King denied that her answers to the health questionnaire were intended to conceal her hospitalizations or to deceive the Department.
The investigator concluded that King had falsified her responses to the health questionnaire, and the Department terminated her employment.
Kings dismissal notice stated that, in light of her dishonesty in answering questions 12, 41, and 43, she was being dismissed from her position for "fraud in securing appointment" (Gov. Code, § 19572, subd. (a)); dishonesty (Gov. Code, § 19572 , subd. (f)); "discourteous treatment of the public or other employees" (Gov. Code, § 19572, subd. (m)); and "failure of good behavior" of such a nature as to "cause[] discredit to the appointing authority or the persons employment" (Gov. Code, § 19572, subd. (t)).
The Administrative Proceedings
King appealed her dismissal and the matter was heard by an administrative law judge (ALJ) appointed by the Board. The only factual issue before the ALJ was whether King had dishonestly failed to state on her health questionnaire that she had been hospitalized in 1981 and 1982.
Asked about those psychiatric hospitalizations, King testified that on both occasions, she knew that "something was going on with [her]." The first time, her coworkers let her know that she "needed to be seen professionally" and King recognized that she was "stressed." On the second occasion, her parents initiated the involuntary commitment because they believed she was suicidal: she "hadnt been eating regular" and "had some kind of chemical off balance."
Although the health questionnaire is normally completed with a proctor available to answer questions about the form, King testified she completed it at home and thought she had completed it correctly. She explained that, at the time she completed the form, she had received no medical training on the definition of "mental illness," did not know the definitions of "mental illness," "nervous breakdown," or "depressed," and had never been told she had a mental disorder or emotional breakdown. At the hearing, King insisted she still did not regard her hospitalizations as treatment for a mental illness, nervous breakdown or psychiatric problem. King explained she had answered "no" to question 12 because she didnt think the words "mental illness" or "nervous breakdown" "applied to [her]"; answered "no" to question 41 because she wasnt hospitalized for any of the reasons enumerated in questions 1 through 40; and answered "no" to question 43 for "the same reason. I hadnt had any outpatient treatment for any of the above."
To provide further evidence that Kings answers resulted from misunderstanding rather than deceit, Kings attorney introduced evidence that King has difficulty comprehending what she reads. King required special help with her studies at the Departments training academy because she experienced difficulty learning vocabulary, mastering certain concepts, and performing on written tests. Her early performance evaluations likewise indicated that she needed to improve her writing and record keeping. After she lost her job with the Department, King had her reading comprehension skills assessed. She was informed she has a learning disability, and a demonstrable difficulty with reading and comprehension.
A Department personnel analyst who handles preemployment health screening testified that she would expect a candidate who had been twice hospitalized in a psychiatric ward to answer "yes" to question 41.
The superintendent of the Department facility where King worked testified that, had King disclosed her prior hospitalizations on her health questionnaire, she would not necessarily have been denied employment by the Department, but would have been further investigated.
The ALJs Proposed Decision
The ALJ recommended that Kings dismissal be revoked, and that she be reinstated.
The ALJ said the evidence on whether King deliberately failed to disclose her two psychiatric hospitalizations (questions 41 and 43) was "equivocal" and "an ultimate finding on the question of whether she deliberately withheld information on the State health questionnaire form is difficult to reach." Kings "failure to disclose her obstetric hospitalizations suggests that mendacity is not the only plausible explanation for [King]s failure to disclose the psychiatric hospitalizations. Haste, sloppiness, inattention, or fatigue, either alone or in combination, may have played a significant role."
Kings explanation for her "no" answer to question 12 (denying that she had ever suffered from "mental illness or nervous breakdown"), said the ALJ, "is not wholly implausible," in light of "the inherent subjectivity of this term . . . and given that [King] is not intellectually sophisticated."
But the ALJ ruled that no finding on Kings intentions was necessary, in view of the "overwhelming" and "compelling evidence of unlawful conduct" by the Department, which acted unlawfully by requiring King to complete a medical questionnaire before she received an offer of employment; by employing a "coercive investigative interview to obtain confidential medical information which it had no legal right to demand"; and by apparently dismissing King on the basis of her mental disability.
The Boards Decision
The Board rejected the ALJs Proposed Decision, and announced that it would decide the matter based on the record, additional briefing, and oral argument. (Gov. Code, § 11517, subd. (c)(2)(E).) Although the Board agreed with the ALJ that the Department improperly required King to complete the health questionnaire before she received an employment offer, the Board disagreed that an otherwise valid adverse action could be rescinded on that ground.
In its decision, the Board found that "the evidence introduced by the Department to support the charges against [King] should have been excluded as having been obtained and/or used in violation of the Confidentiality of Medical Information Act [Civ. Code, § 56 et seq.] and the right to privacy encompassed in article I, section 1 of the California Constitution." The Board reasoned that (1) the Confidentiality of Medical Information Act (CMIA) prohibits an employer, without authorization of its employee, from using or disseminating employee medical information it receives, unless the use and disclosure falls within a statutory exception, and no exception permits the use of medical information obtained in a workers compensation proceeding as the basis for an adverse employment action; (2) the Departments use of medical information communicated by King to the evaluating psychiatrist conflicted with her legally cognizable interest in preserving the privacy of that information, and her reasonable expectation that (absent written authorization) such medical information would be used only for the specific workers compensation purposes for which it was given; and (3) the exclusionary rule applies to bar the use of evidence obtained in violation of a persons constitutional rights in proceedings before the Board.
Moreover, the Board concluded as an independent basis for its decision that, "even assuming the Department was legally entitled to use such evidence to support the adverse action, the Board finds the Department failed to prove that [King] intended to make false representations." The Board found Kings "explanations of why she answered as she did credible and her interpretation of the questions not implausible." Her characterization of her brief hospitalizations as "care for work-induced stress" rather than as either mental illness or a nervous breakdown (question 12) is not incredible; her explanation as to why she failed to mention any hospitalizations in response to question 41 is consistent with her failure to disclose "the cesarean births of her two children, despite the fact that the Department was well aware of the existence of her children and had no reason to hold these births against her in her employment application"; and her answer of "no" to question 43 is "plausible since technically [King]s [psychiatric] hospitalizations neither required outpatient treatment nor a recommendation for surgery." In sum, the Board concluded, a preponderance of the evidence does not establish that King answered these questions with the intent to deceive.
The Board revoked the adverse action and ordered King reinstated with pay.
The Trial Courts Decision
The Department then petitioned the superior court pursuant to Code of Civil Procedure section 1094.5 for a writ of administrative mandamus directing the Board to set aside its reinstatement of King.
The Departments petition claimed that the Board erred in concluding that the Department violated the CMIA, because information acquired or disclosed in connection with a workers compensation claim is exempt from that acts limitations; erred in concluding that the Department violated Kings right to privacy under the California Constitution, because it failed to properly consider the Departments countervailing interests and affirmative defenses of waiver, consent, and unclean hands; and erred in applying the exclusionary rule in this case. The Department also argued that the Board committed "factual and legal" error in finding that "no substantial evidence exists in the record to prove King was dishonest in completing the health questionnaire."
The trial court denied the petition for mandamus, opining that the Boards decision "has a legally and factually sound basis." The Department now appeals.
DISCUSSION
1. Standard of Review
The Board is a statewide administrative agency which is created by, and derives its adjudicatory power from, the state Constitution. (Cal. Const., art. VII, §§ 2, 3.) Under that constitutional grant, the Board "shall . . . review disciplinary actions." (Art. VII, § 3, subd. (a).) "The boards power to hold hearings and render decisions in disciplinary proceedings involves, of course, the examination of facts, the resolution of conflicts in the evidence, and the exercise of judgment with respect thereto." (Shepherd v. State Personnel Board (1957) 48 Cal.2d 41, 47, 307 P.2d 4; see Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal. App. 3d 813, 823-828, 284 Cal. Rptr. 839 [tracing development of civil service laws and the Boards role in adjudicating disciplinary actions]; cf. Kensington University v. Council for Private Postsecondary etc. Education (1997) 54 Cal.App.4th 27, 40.)
Hereafter references to articles are to the articles of the California Constitution.
The Board may modify or revoke the Departments imposition of discipline if "(1) the evidence does not establish the fact of the alleged cause for discipline; (2) the employee was justified; or (3) the cause for discipline is proven but is insufficient to support the level of punitive action taken." (Department of Parks & Recreation v. State Personnel Bd., supra, 233 Cal. App. 3d at p. 827.)
The Boards action is reviewable in an administrative mandamus proceeding under Code of Civil Procedure section 1094.5. In such a proceeding, the reviewing courts inquiry is limited to whether the Board "has proceeded . . . in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the [Board] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b).)
The Boards factual findings are reviewed for substantial evidence. (Code Civ. Proc., § 1094.5, subd. (c).) Trial courts do not exercise independent judgment—only substantial evidence review—in reviewing findings of fact by agencies authorized by the California Constitution to exercise adjudicatory powers, such as the Board here. (Ibid.; Covert v. State Board of Equalization (1946) 29 Cal.2d 125, 131-132, 173 P.2d 545; Fukuda v. City of Angels (1999) 20 Cal.4th 805, 813, fn. 5, 977 P.2d 693; see Pollak v. State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1404.) On appeal, we act in the same role as the trial court, "namely, to determine whether the [factual] findings of the [] Board are supported by substantial evidence [citation]. . . . In making such determination, the appellate court must also regard the evidence in the light most favorable to the findings made by the [] Board, not those made by the superior court, and draw all legitimate and reasonable inferences to support [the Boards] conclusion [citations]." (Peradotto v. State Personnel Board (1972) 25 Cal. App. 3d 30, 33, 101 Cal. Rptr. 595, italics omitted; accord, Flowers v. State Personnel Bd. (1985) 174 Cal. App. 3d 753, 758, 220 Cal. Rptr. 139.)
2. Substantial Evidence Supports the Boards Conclusion that King Intended no Deception
When a disciplined employee appeals an adverse employment action to the Board, the employer "bears the burden of proof by a preponderance of evidence that the employee engaged in the conduct on which the disciplinary charge is based and that such conduct constitutes a cause of discipline under the applicable statutes." (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1153, 899 P.2d 79.)
The Board concluded in this case that, "even assuming the Department had legitimately obtained the information it relied upon to support the action," the Department failed to produce evidence sufficient to establish that King intended to misrepresent facts when she answered "no" to the three questions at issue, and thus failed to support its charge of dishonesty.
In reviewing these factual findings by the Board, it is "well established that an appellate court may not substitute a decision contrary to that made by the Board, "even though such decision is equally or more reasonable, if the determination . . . is one which could have been made by reasonable people." [Citation.]" (Flowers v. State Personnel Bd ., supra, 174 Cal. App. 3d at p. 759.) We must indulge all legitimate and reasonable inferences in support of the Boards decision. (Peradotto v. State Personnel Board, supra, 25 Cal. App. 3d at p. 33, and cases cited therein.)
Mindful of our limited role in the review of factual determinations by the Board, we conclude substantial evidence supports its determination that King did not intend to deceive the Department by her answers on the preemployment health questionnaire.
Substantial evidence supports the Boards conclusion that King did not intend to answer question 12 dishonestly ("Have you ever had or do you have the following [P] . . . [P] Mental illness or nervous breakdown"). King had never heard anyone characterize either of her two psychiatric hospitalizations as "mental illness" or a "nervous breakdown"; she viewed them as care for work-induced stress; and neither hospitalization apparently involved any ongoing outpatient care or medication. Although Kings subjective interpretation of the terms "mental illness" and "nervous breakdown" was narrow, the terms themselves are subjective and ambiguous. Furthermore, Kings explanation was found credible by the Board; we do not reject testimony believed by a trier of fact unless it is physically impossible or its falsity is apparent without resorting to inferences or deductions. (See People v. Barnes (1986) 42 Cal.3d 284, 306, 228 Cal. Rptr. 228, 721 P.2d 110; Flowers v. State Personnel Bd., supra, 174 Cal. App. 3d at p. 759.)
Substantial evidence likewise supports the Boards conclusion that King was not intentionally dishonest when she answered "no" to question 41 ("Have you ever been hospitalized? If yes, list reason and date of hospitalization"). Unlike question 12, question 41 contains no terms reasonably susceptible of differing interpretations; but the question does follow an almost 40-item list of various medical ailments, disorders, conditions, and symptoms. King explained that she thought question 41 either referred to a hospitalization for one of the listed ailments, disorders, etc., or sought to ascertain whether she had been hospitalized for surgery or something similar. Around the time King completed the health questionnaire, she generally did not process written information well. Furthermore, King did not complete the health questionnaire in a setting in which she could ask questions or receive guidance. These factors offer support for her explanation. Her explanation receives additional support from the evidence that she also failed to note hospitalizations for her two cesarean deliveries; there was no reason to omit these hospitalizations, as the Department was aware that she had children and would not have held it against her that her deliveries were surgically assisted.
Finally, substantial evidence supports the Boards conclusion that King was not intentionally deceitful in answering "no" to question 43, which asked whether she "ever had any other illness, injury or physical condition . . . which required treatment as an outpatient or where surgery was recommended (exclud[ing] common minor illnesses, e.g., colds, flu, etc.)." Nothing in the evidence suggests that either psychiatric hospitalization required treatment as an outpatient or involved a recommendation of surgery.
No different result is compelled by the fact that we are reviewing the Boards determination that the Department failed to prove that King made intentionally false representations on her health questionnaire after the ALJ declined to make any factual finding on that question. "The Board, not the ALJ, is the ultimate factfinder, entitled to draw inferences from the available evidence. The statutorily mandated deference to findings of fact runs in favor of the Board and not in favor of the initial trier of facts, the ALJ. Although entitled to some weight, the ALJs factual findings, even demeanor-based credibility findings, are not conclusively binding on the Board." (Trustees of Cal. State University v. Public Employment Relations Bd . (1992) 6 Cal.App.4th 1107, 1129.) The Board did not, as the Department suggests, make credibility findings contrary to those made by the ALJ; rather, the ALJ stated that no credibility findings were necessary in light of the Departments unlawful actions.
We conclude that substantial evidence supports the Boards factual findings that King intended no deception in answering questions 12, 41, and 43 on the health questionnaire. Given this conclusion, there is no basis for Kings dismissal and we will affirm the trial courts judgment.
We do, however, register three caveats concerning the Boards precedential decision on the constitutional and statutory privacy issues.
The first caveat concerns the scope of the Boards decision on the constitutional issue. The California Constitution contains an explicit right of privacy that operates against private and governmental entities. (Art. I, § 1; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 20, 865 P.2d 633; Pettus v. Cole (1996) 49 Cal.App.4th 402, 439.) A prima facie showing of an invasion of that right requires (1) a legally protected privacy interest (such interests include an "informational privacy" interest in precluding the dissemination or misuse of sensitive and confidential information); (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by the defendant constituting a serious invasion of privacy. (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at pp. 35-40; Pettus v. Cole, supra, 49 Cal.App.4th at p. 439.)
Constitutional privacy interests are not absolute, however. They must be balanced against other important interests. In countering a prima facie showing of such a privacy invasion, a defendant may argue that the invasion is justified because it substantially furthers one or more countervailing interests. (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at pp. 37, 40.) The Department has alleged two countervailing interests here: preserving the integrity of the civil service process; and ensuring its youth correctional officers are fit for duty as peace officers. The Boards precedential decision analyzes only the prima facie showing, and not any countervailing interests on the Departments part. (There is a brief, passing reference to potential countervailing interests in the decisions "Conclusion" section, but nothing in the way of real analysis.) For this reason, the Boards decision cannot be considered as precedent on the issue of countervailing interests.
The second caveat reflects a similar concern regarding how the Board treated the statutory privacy issue. The CMIA regulates, in pertinent part, the disclosure to employers of employee medical information by employer-hired health care providers, and the disclosure and use of employee medical information by employers who receive such information. (Civ. Code, § 56 et seq., 56.10, subd. (c)(8), 56.20.) The Boards precedential decision on this issue involved only a question of statutory interpretation regarding which of two competing CMIA provisions governed the use of employee medical information obtained by employers in workers compensation matters. Similar to the constitutional privacy portion of the Boards precedential decision, the CMIA portion of the Boards decision does not analyze the Departments counter interests; as pertinent here, those counter interests are recognized by the CMIA provision that allows employers to obtain and use employee medical information describing the "functional limitations" of the employee that may "limit the [employees] fitness to perform his or her present employment[.]" (Civ. Code, § 56.10, subd. (c)(8)(B).) Consequently, the Boards decision cannot be considered as precedent on the issue of counter interests.
As for the third caveat, we agree with the trial court that the federal Fourth Amendment exclusionary rule does not apply here in excluding any evidence obtained through a state constitutional privacy violation. Instead, as the trial court noted, such evidence would be "properly excluded as a direct application and enforcement of the state constitutional provisions prohibiting an agency from misusing private information that it has legally obtained for one purpose for a separate and unrelated purpose." (Pettus v. Cole, supra, 49 Cal.App.4th at pp. 458-459.)
DISPOSITION
The judgment is affirmed.
We concur SCOTLAND, P.J., and BLEASE, J.