Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M86028.
Mihara, J.
Appellant Jason Tomlinson sought a writ of administrative mandamus to compel the County of Monterey (the County) to set aside its decision discharging him from employment as a deputy sheriff. On appeal from the trial court’s denial of his petition, he contends the court erred (1) in sustaining his termination, because “substantial evidence did not exist to support the charge” that he intentionally walked into the jail’s changing room on three separate occasions to observe three different female inmates in various states of undress; and (2) in determining that neither the investigation nor the administrative proceedings deprived him of a fair hearing in violation of his due process rights. We affirm.
I. Factual Background
Three women about to be released on bail found themselves in the same holding cell on January 29, 2003. A male deputy had separately escorted each from her housing unit to the female changing room and, once she had changed into street clothes, from the changing room to the holding cell.
As they waited for their paperwork to be completed, the women noticed a deputy “walking back and forth” in front of the holding cell. One of them, Lori, asked the others if he was the deputy who had escorted them. When Cassandra and Cynthia said that he was, Lori asked, “Did he do anything strange to you?” Cassandra did not want to tell Lori the deputy had surprised her while she was changing. “[W]ell, honestly, I told [her], he just asked me for my number, that’s it, you know. That’s all I said.” The deputy had also walked in on Cynthia when she was undressed, but she too provided no details. “I just told her, I told both of them, yeah well, something like that happened but not exactly.... Just that he was looking at me and he was asking me questions.” Lori said “well, you know what he did to me?” Lori told them the deputy walked in when she was undressed, grabbed her breast “[a]nd... sucked on her nipple.”
Lori told Cassandra she was going to try to get money out of the deputy. “And she told me well, give me your number... so we both get money out of him. I told [her], I’m not that type of person. And then... she told me well, give me your name, and I just told her, Sandra, right, just told her Sandra. And she told me give me your number, and honestly, I gave [her] a wrong number, a wrong telephone number.” Cynthia did not give Lori her phone number either. “[L]ike I told her, I don’t want to get involved in anything.” None of the three reported the deputy’s behavior that night.
Six months later, Cassandra told her probation officer, “I got to tell you something that went on in the jail.” He remembered reporting a similar incident a year earlier, “and I’m like oh no, maybe it’s the same guy again and they didn’t do anything with it the first... time around, so I took it upon myself to call” the sheriff's office.
II. Procedural Background
A. The Investigation
The sheriff’s department opened concurrent internal and criminal investigations. Headed by then Sergeant (now Commander) Mike Richards, the internal investigation focused on 10 issues: whether Tomlinson (1) walked in on Cassandra while she was changing, in violation of department policy and procedure and Penal Code section 4021, which makes it unlawful for an officer to enter a room occupied by a prisoner of the opposite sex except in the company of an employee of the same sex as the prisoner; (2) attempted to establish a personal relationship with Cassandra by asking for her phone number while she was still in custody, in violation of department anti-fraternization rules; (3) attempted to establish a personal relationship with Cassandra after her release by asking for her phone number at the courthouse; (4) walked in on Cynthia while she was changing; (5) attempted to establish a personal relationship with Cynthia by asking for her phone number while she was still in custody; (6) walked in on Lori while she was changing; (7) committed a sexual battery on Lori; (8) engaged in conduct unbecoming a deputy; (9) willfully violated any federal or state statute or local ordinance; and (10) was untruthful in his statements during the investigation.
Detective William Kaye investigated the sexual battery allegation. After reviewing Detective Kaye’s report, the district attorney decided “the overall evidence [wa]s not sufficient to foster any hope of a [criminal] conviction, ” because Lori’s statements to Cassandra and Cynthia indicated the act “may have been consensual” and that, coupled with the fact that “[Lori] was considering extorting money from the accused, ” would have been “devastating to her credibility at trial.”
Further statutory references are to the Penal Code unless otherwise noted. Section 4021, subdivision (a) provides in pertinent part that “[w]henever any female... prisoners are confined in any local detention facility... there shall be an appropriately trained female custodial person assigned, available, and accessible for the supervision of the female prisoners.” (§ 4021, subd. (a).) Subdivision (b) makes it unlawful “for any officer, ... jailer, or custodial personnel... to enter into the room or cell occupied by any prisoner of the opposite sex, except in the company of an employee of the same sex as the prisoner.” (§ 4021, subd. (b).)
Department Manual (DM) section 206.33(A) states that “[e]mployees shall refrain from establishing, or attempting to establish, any personal or business relationship with an in-custody prisoner....” DM section 206.33(C) states that “[e]mployees shall refrain from establishing, or attempting to establish... a personal or business relationship with any person against whom criminal charges are pending....” DM section 206.33(D) states that “[e]mployees shall not fraternize with convicted former inmates of any county jail....”
DM section 206.04 states that “Department members shall so conduct their private and professional lives as to avoid bringing discredit to the Department.” DM section 206.05 states that “Department members, whether on or off duty, shall be governed by the ordinary and reasonable rules of good conduct and behavior.” DM section 206.21 states that “Department members shall not engage in any behavior that may bring ridicule or embarrassment upon... the Department... in any public place or in any Department or County facility.” DM section 206.31 states that “Department members shall not act or behave privately or in any official capacity in such a manner as to bring discredit upon him/herself or the Department.”
DM section 206.30 states that “Department members shall not willfully violate any federal or state statute, or local ordinance.”
DM section 206.02 states that “Department members shall speak the truth at all times whether under oath or not.” DM section 206.03 states that “Department members during the course of any official investigation shall be required to give a full, complete and truthful statement if requested.”
The investigation took 10 weeks. Cassandra, Cynthia, and Lori were each interviewed several times. Duty rosters, jail and court logs, overtime slips, and other documents were examined. Those on duty on the dates in question—the jail commander, jail and court sergeants, and a number of deputies and former deputies—were also interviewed. A former inmate who had spoken to Lori in the holding cell on January 29, 2003 was located, and another inmate released that night was interviewed.
Commander Richards interviewed Cassandra on July 21, 2003. She told him the male deputy who had escorted her from her housing unit to the changing room had suddenly appeared as she began undressing. “And then I told him, um, excuse me, I told him, I’m changing. And he told me, and all of a sudden like a little boy, he told me, ‘Ah, man!’ And he stepped out. So I was like oh, gosh, so I just covered myself and I went to a corner and changed myself really quickly.” The same male deputy returned five or 10 minutes later to escort her to the holding cell. “And he told me, can I get—can I have your number?” “And I just stayed quiet, cuz I saw all these cameras on the wall.... And I don’t know if he was testing me... you know, I didn’t [know] what to think. And I just stayed quiet, and then he told me well, can I get it from your file?” Cassandra entered the holding cell without responding. “But then... when I was in court [a week later] I saw him again.” “[H]e told me well, can I still at least get your number?” “[A]nd that’s when my court started, so I told him well I have to go in there.” After court, Cassandra told her sister the deputy had winked at her, and “she’s like, you know, he did that to me too.... So... he just winked at my sister, so he was like kind of being flirty.”
Cassandra told Commander Richards, “I could identify him if I see a picture. I could describe him.” She was shown a photo display of six individuals that included a photo of a deputy (not Tomlinson) who was under investigation at the time. The other five individuals in the photo display were not deputies. Asked if she saw the deputy who had walked in on her, Cassandra answered, “No... he’s white, his—he has spiky hair.... [I]t’s blonde, also.” Several days later, she was shown a second photo display. There were seven color employment photos of deputies, including Tomlinson, in that display. Commander Richards’s notes reflect that “Cassandra... immediately recognized and pointed to the photograph of Deputy Jason Tomlinson and stated that he was the deputy who walked in on her while she was changing and asked her for her telephone number, both at the jail and at the courthouse in Salinas.”
Detectives Kaye and Oakley interviewed Cassandra on August 11, 2003. In his report, Detective Kaye wrote, “I went over the incident with her one more time. She repeated the same story.... She thought he had done it on purpose to try and see her. She thought he tried to make it look like a mistake. [¶]... He also told her not to tell her mom or anyone.” Cassandra said “she thought the older lady [Lori] was kind of showing off to them, telling them that the Deputy had sucked on her nipple. She seemed like she was being honest about it though....”
Detective Kaye interviewed Cynthia on August 19, 2003, and Commander Richards interviewed her on October 7, 2003. Cynthia told the same story to both. She was in jail from “around noontime” on January 28, 2003, and she had been “in the waiting room for one day” before being booked into housing. Later that night, “already pas[t] midnight, ” a male deputy came to the housing unit to escort her to the changing room. On the way to the changing room, the deputy “was just looking at my breasts.” “I told him that I had a boyfriend and that I didn’t like other people... staring at me in that way.” The deputy “didn’t say anything, he was just like, looking at me and... ask[ed] for my name and my phone number and I just said, no.” When they reached the changing room, the deputy told Cynthia to get undressed and he would return with her street clothes. When he returned, “[h]e kind of knocked and he asked if he could come in and I said, well just leave the clothes in the front[.] I’ll get them because I’m naked. And he just didn’t listen to me, he just kept walking towards me.” He told her, “ ‘It’s O.K. I am a Police Officer.’ ” She held her jumpsuit in front of her. “I was covered with the jumpsuit because I didn’t want him to see me, but he was still going sideways just to look at me.” “[H]e almost fell, just going like that [tilting her head sideways].” She asked for her clothes, he handed them to her, “and I waited for him to get out.”
Cynthia told Detective Kaye she would recognize the deputy if she saw him again. He showed her the photo display of seven jail deputies in uniform. Detective Kaye’s notes reflect that Cynthia selected Tomlinson’s photo and “said the Deputy looked like him but had a different haircut. She said his hair was shorter and was light colored.” Commander Richards later asked Cynthia about the photo she had picked out of the photo display that Detective Kaye had shown her. “Was that the deputy that got you from your housing unit?” She replied that “it looked like him but I told [Detective Kaye] he had like blond hair now and this deputy that he showed me on the picture had black hair. I just told him it looks like him but just except the color [of] his hair.”
Cynthia said she was in the holding cell for five to 10 minutes before “the blonde” lady [Lori] was brought in. The subject of the deputy came up then, “cause he passed by and he looked at her and she looked at him you know. And she started telling us what happened in the room when she was getting dressed.” Lori said “the officer... did something to her breast or touched her in a certain way... and grabb[ed] her.” Cynthia found Lori credible “[be]cause after that she was saying that, she was gonna try to... get his... DNA samples... and try to... sue... him or sue someone....” Cynthia could not recall what Cassandra said, “but I... am pretty sure that she said... he asked her for her phone number or something like that.”
Detective Kaye asked Cynthia if she had told anybody what had happened. She said she had told her incarcerated boyfriend and the visiting deputy at the jail shortly after the incident. Detective Kaye interviewed both visiting deputies, who remembered Cynthia because she came to visit her boyfriend almost every week, arriving an hour early on the bus. She had mentioned the incident in conversation. The deputies advised her to report it but she did not want to do that. Deputy Raymond Cantu found Cynthia believable. Deputy Cesar De La Rosa said he didn’t believe her at first, but when she described the room and what had happened, he believed her. Deputy De La Rosa reported the conversation, in writing, to his supervisor.
Based on Cassandra’s description of the deputy and a review of jail and court rosters, it appeared to Commander Richards that Tomlinson was the “common denominator.” The next day, he received a memorandum from Captain Liebersbach, who had independently arrived at the same conclusion. The records confirmed that Cassandra had been arrested at 4:00 p.m. on January 28 and would have arrived at the jail “like half an hour” later, “around five-ish.” She saw Tomlinson “later on that night”—“a couple hours” later. Tomlinson had a training class that day but finished his 12-hour shift at the jail, working from 7:30-11:30 that evening. He worked a 12-hour shift the next day. There was a shortage of female deputies on that shift, and Tomlinson was assigned to the women’s section of the jail as a floor deputy. He was the only jail deputy who worked an overtime shift as a court bailiff on February 5, 2003, the day of Cassandra’s court hearing.
Tomlinson was given written notice of the investigation in late August 2003. The notice directed him to report on September 4, 2003 to answer questions about allegations of inappropriate conduct and informed him that he had the right to representation. Commander Richards and Sergeant Jim Scariot questioned him in the presence of his attorney.
Tomlinson told Commander Richards he occasionally worked the women’s section but “January 29 doesn’t stand out, doesn’t ring a bell.” He was “sure I have, I know I’ve pulled the clothes before. I couldn’t tell you a specific time or specific instan[ce].” He claimed not to recall Cassandra. “Doesn’t ring a bell.” Told what Cassandra had reported, he said he “could’ve... you know” escorted her from the housing pod to the dressing room, but he did not walk in on her while she was changing clothes. “That didn’t happen with anybody.” He denied asking for her phone number at the jail. “Definitely not.” He denied asking for her phone number at the courthouse. “Not to my recollection.” “[T]he name doesn’t ring a bell, the incident doesn’t ring a bell.” “I don’t know what else I can say for you.”
Tomlinson also denied Cynthia’s allegations, suggesting, “I don’t know if you guys looked into this at all, uh, obviously inmates get together and come up with stories and what not.... And they could have sat and stewed in that tank for hours, you know and got together....” “I’m sure you guys have heard rumors that there’s Deputies in there that are you know, constantly hitting on the girls in there. [¶]... I heard rumors.” He denied Lori’s allegations as well. “No way.” “No. Doesn’t ring a bell.” “I don’t recall any of the names you gave me. The picture I don’t recall.” “It didn’t happen. Didn’t happen.”
Five weeks later, the sheriff’s department concluded that the investigation disclosed facts sufficient to sustain issues 1-6 and 8-10. The sexual battery allegation (issue 7) was not sustained. On November 3, 2003, Tomlinson was served with a written Notice of Intent to Take Punitive Action, specifically, termination of his employment. The notice described the charges and the results of the investigation. It informed him that the materials on which the action was based were available for his inspection, that he had a right to respond to the proposed action, “either orally, in writing, or both, ” and that he had the right to have a representative assist him in preparing and making his response. Copies of relevant provisions from the Memorandum of Understanding (MOU) between Monterey County and the Deputy Sheriffs’ Association were attached.
Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly).
Asserting that Sheriff Mike Kanalakis’s campaign promise to clean up the department and his comments to the press assured that he would not “get a fair shake” at a Skelly hearing in Monterey County, Tomlinson requested that the hearing instead be conducted by San Benito County Sheriff Curtis Hill. At the Skelly hearing, Tomlinson took the position that he had been “wrongfully accused” and was “getting a raw deal” and “a bum rap.” His counsel labeled Lori “just flat out... just a liar” and described Cassandra and Cynthia as “obviously confused.” Tomlinson’s counsel stated that while it would be “real simple just to claim that from our side, oh these women are liars..., I believe though that something to some degree did occur while they were in the jail but the evidence doesn’t show it was definitely Tomlinson who was the culprit if something did indeed occur.” (Italics added.) “It’s my belief that something did occur [but] it was not [by] Deputy Tomlinson but by another deputy or other deputies.” (Italics added.) “Now... all that might have happened to [Cassandra] is that someone might have inadvertently walked in walked right out didn’t do anything else. [Cynthia] more, apparently more happened but there’s no evidence that it was Deputy Tomlinson.” Tomlinson conceded, however, that there were only two deputies working the women’s section on January 29, 2003—himself and female Deputy Evans.
Sheriff Hill taped the Skelly hearing, which he estimated lasted an hour and a half to two hours. After the hearing, he listened to the audio tapes and “spent quite a lot of time going back, using [his] notes and going back and looking and reading different exhibits in the file.” On December 30, 2003, Sheriff Hill wrote the Monterey County Sheriff’s Department: “After review of the documents provided to me... and after reviewing the response by Deputy Tomlinson at the Skelly hearing, I recommend the allegations... be sustained and that he be terminated from employment....” As Sheriff Hill later testified, “[t]here were two things that stood out. One was the credibility of the three women... and I felt that... [Cassandra] was very credible. I felt that [Cynthia] was also credible when you brought the whole width and breadth of the matter together. [¶] The second piece is that I found that... if you put all of the letters of the alphabet out... and each 26 are the facts pointed out in this case, what I found was that... [Tomlinson’s counsel] focused on issues that didn’t, you know, bite to what the meat of the discipline focused on. I was not provided with anything that would significantly impact me to come up with any other decision than what I arrived at.”
Sheriff Kanalakis adopted Sheriff Hill’s conclusion. Tomlinson was served with a written Notice of Punitive Action informing him that his rights to appeal were set forth in the MOU, and that he also had certain rights under Government Code section 3300 et seq.
C. Administrative Appeal
The MOU’s administrative appeal process begins with an advisory arbitration at which both parties have an opportunity “to call and examine witnesses, to cross-examine opposing witnesses on any matter relevant to the issues, to impeach any witness and to rebut the evidence against him/her. Technical rules relating to evidence and witnesses do not have to apply to such hearings. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding....” “[T]he burden of proof shall be upon the appellant.”
“At the conclusion of the hearing, the hearing officer shall prepare a summary record of the proceedings and prepare recommend[ed] findings, conclusions and decision. The hearing officer shall submit a copy of said record of findings, conclusions and decision to the Board of Supervisors [(the Board)].” “[T]he Board shall adopt such recommended findings, conclusions and decision, or shall reject the recommendations of the hearing officer and adopt its own findings, conclusions and decision after a review of the record. The Board shall affirm, modify or reverse the order of the appointing authority causing the disciplinary action.” “The decision of the Board shall be final.”
Tomlinson’s administrative appeal was heard by a neutral hearing officer selected by the parties. Among the documents admitted into evidence were the Internal Affairs Investigation Report and attachments (e.g., witness interview transcripts, photo displays, deputy duty rosters), disciplinary notices, and Skelly materials (transcript, hearing officer notes, recommendation). After five days of testimony, the hearing officer issued an advisory opinion concluding that the charges had not been proven by a preponderance of the evidence. He recommended that the Board offer Tomlinson reinstatement with back pay.
The Board “questioned and/or disagreed with various of the Hearing Officer’s findings, ” and, after “independently and individually review[ing] the entire evidentiary record, ” adopted its own findings of fact, conclusions, and decision. The Board upheld Tomlinson’s termination. In a detailed 30-page decision, it noted that the hearing officer had failed to support many of his conclusions with references to the transcripts or exhibits. Among other things, the hearing officer did “not set forth any logical or credible reasons why Tomlinson is to be believed over the female inmates; and in fact, the evidence points strongly in the opposite direction. Several long-time peace officers whose job it often is to correctly judge individual credibility have found [Cassandra] and [Cynthia] to be very believable victims.” “[Commander] Richards, who has had FBI training on witness deception..., noted [Cassandra] and [Cynthia] did not display any of the behaviors indicative of deception.” The hearing officer “provides no specifics... as to what creates his ‘doubts’ regarding [Cassandra’s] and [Cynthia’s] identification of Tomlinson, or why he devalues the uniform opinion of credibility that these peace officers give to [Cassandra’s] and [Cynthia’s] statements....” “Neither... has anything to gain from her testimony....” “[Cassandra’s] and [Cynthia’s] testimony should be believed because testimony and documents corroborate their stories.”
The Board rejected Tomlinson’s criticisms of the photo displays. “Tomlinson has to show the photo lineup(s) were unduly suggestive. [Citation.] This he cannot do; and the [hearing officer] makes no attempt to do so, either.”
The Board emphasized that “[w]ith Tomlinson’s admissions against interest[], it is evident from documents and testimony that [he] is the only male Deputy who could have been the perpetrator.” Among other things, “[o]ther Deputies on duty in the jail at the time who, according to Tomlinson, resembled him or had blond-tipped hair either were not identified from the photo lineup [Trumble...; Hoffman... ]; did not work in the jail at that time [... Smith...]; or bear no resemblance to Tomlinson due to race/skin color [... Arreola... Urquidez...].” “Deputy Owen, a Caucasian, was in the photo-line up and was not identified by any of the women. The remaining deputies can be excluded by gender or race.” “Deputy Trumble testified he has never been mistaken for Tomlinson.” “The end result, then, is Tomlinson’s admission that he took the 3 women up front on the night in question to change out. That admission is coupled with the elimination of the other male Deputies working that evening as possible perpetrators. It is further strengthened by the identification of Tomlinson by both [Cassandra] and [Cynthia] as the Deputy who escorted them from the Women’s section to the female change out room, got their street clothes for them, and who observed/attempted to observe them naked.... Several peace officers who are accustomed to making credibility determinations have rated both [Cassandra] and [Cynthia] as being credible victims. In contrast, the Hearing Officer has offered no evidentiary support for his conclusion that this charge has not been proven by a preponderance of the evidence. The Hearing Officer’s conclusion does not even begin to square with the ample evidence to the contrary in the record.”
The Board also rejected the hearing officer’s finding that the fraternization charges had not been proven by a preponderance of the evidence, noting that he had given “no real explanation or citation to the contrary evidence (or lack thereof) on which he relies. This is not a satisfactory explanation; in fact, it is no explanation at all.” The Board contrasted Tomlinson’s curt denial of the charges with [Cassandra’s] and [Cynthia’s] detailed descriptions of what had happened. The Board noted Cassandra’s testimony that Tomlinson “mentioned to me that I looked very cute and that if he can get my number...” and Cynthia’s testimony that he asked her “personal questions like where I lived, my phone number and I kept on telling him that I was married and he said, ‘Well, he’s not going to find out.’ ” The Board further noted that although Tomlinson offered his overtime slip to deny that he was at the court on the afternoon of Cassandra’s hearing, “his overtime slip does not state or prove where Tomlinson was after 11:30 a.m. on February 5, 200[3]; and he offered no alternative explanation for his whereabouts and activities during the crucial time period from 1:00 to 1:45 p.m. on February 5.”
Finally, the Board rejected the arbitrator’s conclusion that Sheriff Kanalakis had based his decision solely on the conclusion that Tomlinson had lied during the Internal Affairs investigation. That conclusion, the Board said, “is erroneous and an improper misinterpretation of the Sheriff’s testimony.” Moreover, “[e]ven in the absence of the allegations about untruthfulness, the Board believes there is sufficient proof of the remaining allegations by a preponderance of the evidence..., both testimonial and documentary, to sustain the termination of Tomlinson’s employment.” The Board found “more than ample evidence in the record” to sustain the termination.
D. Writ Proceeding in the Trial Court
Tomlinson sought a writ of mandate in the trial court, contending, among other things, that the investigation was “haphazard, ” the photo displays “unduly suggestive, ” and both Sheriff Kanalakis and the Board biased against him. The trial court denied the petition. The court rejected Tomlinson’s contention that the Board’s failure to conduct an evidentiary hearing denied him due process. “[A]n actual hearing is not required, ” the court ruled. “Review is adequate ‘if the decision maker “reviewed the record to a sufficient extent to enable him to make an informed judgment.” ’ [Citation.]”
The court also rejected Tomlinson’s attacks on Cassandra’s and Cynthia’s credibility. “[D]espite some obvious reasons to take particular care in evaluating their testimony, the Board was justified in finding their essential claims to be true, especially since other evidence tended to corroborate their reports. For instance, it was shown that [Tomlinson] was the only male deputy working the women’s jail on the night in question, and [he] does not deny he was the one who escorted the women.”
Finally, the court rejected Tomlinson’s claim that the investigation was so flawed as to deprive him of due process. “The court finds that none of the claimed flaws, either singly or as a whole, were [sic] so severe as to deprive [Tomlinson] of a fair hearing.” The court concluded that the Board’s decision was supported by the preponderance of the evidence and that no abuse of the Board’s discretion had occurred. Tomlinson filed a timely notice of appeal.
III. Discussion
A. Standard of Review
Code of Civil Procedure section 1094.5 governs inquiries “into the validity of any final administrative order or decision made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer....” (Code Civ. Proc., § 1094.5, subd. (a).) When a vested, fundamental right, such as the right of an employee to continued employment is at issue, the trial court exercises its independent judgment to determine whether the employee’s due process rights were violated and whether the agency’s findings are supported by the weight of the evidence. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 (Fukuda).)
The appellate court applies the substantial evidence test and must sustain every finding of fact supported by substantial evidence. (See Fukuda, supra, 20 Cal.4th at p. 824.) Under the substantial evidence test, “ ‘ “[w]e must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.] Where the evidence supports more than one inference, we may not substitute our deductions for the trial court’s. [Citation.] We may overturn the trial court’s factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings. [Citation.]” ’ ” (Lake v. Reed (1997) 16 Cal.4th 448, 457.)
“[T]he ultimate determination of whether the administrative proceedings were fundamentally fair is a question of law, ” which we review de novo. (Rosenblit v. Superior Court (1991)231 Cal.App.3d 1434 1443 (Rosenblit), citations omitted; accord, Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1077.)
B. Substantial Evidence
Tomlinson contends there was not substantial evidence to support the trial court’s finding “that [he] intentionally walked in on three female inmates... to see them in a partially dressed state....” Emphasizing his consistent and “adamant” denials of all charges, he asserts that the facts the trial court found are “worlds... away from being substantial evidence of guilt....” Tomlinson also disputes the finding that he entered the women’s changing room on January 29, 2003. He claims the victims’ testimony shows, at most, “that some deputy inadvertently entered the changing room... and immediately left when told.” (Italics added.) The trial court rejected these contentions, as had the Board before it, and substantial evidence supports the trial court’s determination.
The restricted jail setting provided a limited group of possible perpetrators. The record reflects that Tomlinson was the only male deputy on duty in the women’s section of the jail on the night in question. Significantly, he “ha[s] never denied that [he] took those women up front.” Equally significantly, although Tomlinson conceded on cross-examination that he would have corrected any factual misstatements his attorney made at the Skelly hearing, he has never challenged his attorney’s statement that he believed “something to some degree did occur while [Cassandra, Cynthia, and Lori] were in the jail” that night.
The trial court could reasonably have rejected Tomlinson’s assertion that some other deputy, specifically, Deputy Urquidez, Trumble, or Owen, committed the acts in question. Cassandra described the offending deputy as white, with blond “spiky hair.” Cynthia likewise described him as “white, a white person” with “light colored” hair. Tomlinson testified that he “highlights” his hair—“like a blondish-light color”—“about three times a year, ” although he “couldn’t say for sure” if it was highlighted in January 2003. Commander Richards “recall[ed] seeing him around the office over that time period” and said his hair “was pretty light.”
Cassandra’s and Cynthia’s description of the offending deputy eliminates Deputy Urquidez, who is not Caucasian. Deputy Trumble is Caucasian, but he testified that he has never been mistaken for Tomlinson, and Tomlinson himself could not recall ever having been mistaken for Trumble. The only other deputy on duty that night, Deputy Monahan, was assigned to the men’s housing unit, where as even Tomlinson acknowledged, he would have been too busy to wander over to Receiving. Moreover, none of the deputies whom Tomlinson tries to implicate has Tomlinson’s reputation for not staying in the work area to which he was assigned. Given all of this evidence, the trial court could reasonably have concluded that Tomlinson was the offending deputy. That both Cassandra and Cynthia identified him in the photo displays—and did not select the photos of Deputies Trumble, Owens, or Urquidez, which were also included—bolsters the trial court’s conclusion.
Relying on criminal cases, Tomlinson challenges the photo displays as unduly suggestive and “coached.” The County responds that although the criminal standard of proof beyond a reasonable doubt does not apply in this civil case, even under the stricter criminal standard, Tomlinson cannot prevail. We agree with the County that the trial court properly rejected Tomlinson’s challenge to the photo displays.
In criminal cases, “[a] conviction based on eyewitness identification at trial after a pretrial display of photographs, including photographs of the defendant, ‘will be set aside... only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ [Citations.]” (People v. Hunt (1977) 19 Cal.3d 888, 894.) “To determine whether a procedure is unduly suggestive, we ask ‘whether anything caused [the] defendant to “stand out” from the others in a way that would suggest the witness should select him.’ ” (People v. Yeoman (2003) 31 Cal.4th 93, 124 (Yeoman).) “[F]actors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” (Neil v. Biggers (1972) 409 U.S. 188, 199-200 (Biggers); People v. Gordon (1990) 50 Cal.3d 1223, 1242 (Gordon), overruled on another ground in People v. Edwards (1991) 54 Cal.3d 787.) “Each case must be considered on its own facts....” (Simmons v. United States (1968) 390 U.S. 377, 384.) “Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification.” (Yeoman, at p. 125.)
The cases Tomlinson cites are easily distinguished. Stovall v. Denno (1967) 388 U.S. 293 (Denno), overruled on another ground in Griffith v. Kentucky (1987) 479 U.S. 314, says nothing about photo displays. The court held that a “show-up” in the hospital room of a gravely injured woman who was the only witness to her husband’s murder was not “so unnecessarily suggestive and conducive to irreparable mistaken identification” that it denied the defendant due process. (Denno, at p. 302.) Gordon, supra, 50 Cal.3d 1223, overruled on another ground in People v. Edwards, supra, 54 Cal.3d at p. 835, which Tomlinson claims shows “[j]udicial disapproval of coached photo identification, ” is inapposite because there is no evidence in the record that Cassandra and Cynthia were “coached” by anyone. People v. Nation (1980) 26 Cal.3d 169 (Nation) is inapposite because none of the deficiencies that tainted the photo and police displays in that attempted rape case is present here. In Nation, “[n]o effort was made to separate the witnesses so as to assure separate appraisals.” (Id. at p. 180.) “[T]he witnesses felt constrained to select one of the mug shots as the assailant...” and the identification “was a product of ‘mutual reinforcement of opinion’ among [them].” (Ibid., citation omitted.) The witnesses were permitted to take the defendant’s photo home for a week to show others, including the mother of one of the girls, who had not witnessed the crime, but claimed to have received lewd comments in the vicinity that same day. (Nation, at p. 174.) When she later identified the defendant in a police display, the group was told she had selected the “right” man, while the girls had selected the “wrong” man. (Ibid.)
Here, there was nothing in the photo displays to cause Tomlinson’s photo to stand out from the others in a way that would suggest a witness should select him. Both photo displays showed Caucasian males of apparently similar age. The display that included Tomlinson’s photo was comprised of color employment photos of short-haired deputies in uniform. Some, unlike Tomlinson, had facial hair. Cassandra and Cynthia were both properly admonished to keep in mind that some features, like facial hair or hair color, could change, and that the subject of the investigation was not necessarily included in the photo display. Cassandra specifically testified that she was given ample time to view the photo displays.
Application of the Biggers factors here suggests no likelihood of misidentification. Cassandra and Cynthia each had ample opportunity on multiple occasions to view Tomlinson. Each walked with him down a more than 100-yard-long jail corridor from the women’s housing pod to the changing room and again from the changing room to the holding cell. They saw him again as he walked back and forth in front of the holding cell. Cassandra encountered and spoke with him again at the courthouse. There is no suggestion in the record that the lighting at either location was inadequate. The fact that Tomlinson engaged both women in conversation, and that Lori specifically asked Cassandra and Cynthia whether the deputy walking back and forth in front of the holding cell was the deputy who had escorted them, suggests that the witnesses’ degree of attention would have been high.
Tomlinson insists there is no substantial evidence that he asked Cassandra for her phone number at the courthouse because she “did not testify” that he did so, “only that he winked at her while in the courtroom.” Tomlinson chose not to cross-examine Cassandra about their courtroom encounter. However, there was sufficient evidence in the record, including interview transcripts, to support the charge, and Cassandra specifically testified that she would have “remembered more” at the time of the interviews than at the arbitration almost three years later. The interview transcripts were “very accurate, ” she said, and to the extent there was any difference between her testimony and the transcript, “I would say go by the transcript.”
Cassandra described the offending deputy in detail before she saw any photographs. During her first interview with Commander Richards, she volunteered, “I could identify him if I see a picture. I could describe him.” She said the deputy was white and clean-shaven, with a “regular build”—“[n]ot big, not small.” He looked “twenty-six, twenty-eight” and had blond “spiky hair” cut in a “fade.” “But like I said, if I see him again... I could recognize him.” She was off on her estimate of Tomlinson’s height, describing him as about four inches taller than her five feet two inches when he is in fact five feet 10 inches, but he has never challenged any other aspect of her description of him.
Although she viewed the photo displays about six months after the incident, Cassandra’s level of certainty could not have been stronger. She rejected all of the photos in the first display. “Yes, I was shown these pictures and I looked at them very closely, you know, and everything and it wasn’t in the stack.” “I told him it was none of these guys right here and then he showed me another set of pictures.” Cassandra quickly pointed to the photo of Tomlinson in the second photo display. As she testified, “[Commander Richards] showed me various pictures at the time and when he showed me Mr. Tomlinson’s picture, I right away recognized that it was him.” “There was no doubt.” “I looked at them very closely and right away... I knew it was him. I did not hesitate at all.” “It was him, you know. I could not, you know, really confuse them at all. Just at that time, he had slick, spiky hair, short.” “It was blond.” She did not select the photo of Deputy Batson, although she recognized him as another deputy she had seen at the jail.
Cynthia similarly stated, at her first interview, that she would recognize the offending deputy if she saw him again. Her level of certainty, while not as conclusive as Cassandra’s, was nonetheless strong. Shown the color photo display of seven jail deputies in uniform, she selected Tomlinson’s photo and “said the Deputy looked like him but had a different haircut. She said his hair was shorter and was light colored.”
On these facts, the trial court could reasonably have determined that the photo displays were not tainted. We conclude that substantial evidence supports the trial court’s determination that Tomlinson committed the charged misconduct.
Tomlinson claims Commander Richards’ handwritten investigation notes “document an interview with [Cassandra] that occurred on July 22, 2003.” He argues that the notation, “[c]ouldn’t ID Batson, Oh, and Trumbell” suggests Cassandra “had already seen two of the deputies’ photos (Batson and Trumbell) that would later be included in the display in which she allegedly identified Deputy Tomlinson.” It appears to us, however, that the notes Tomlinson relies on relate to an entirely different Internal Affairs investigation. His case was Internal Affairs Case SS03-38, but the notes, according to his trial counsel, “say ‘SS 03-08’ at the top in handwriting....” The notes are not included in the record on appeal. Commander Richards testified that they did not refresh his recollection. He recalled only two meetings with Cassandra, not three. “I specifically remember her coming in twice.”
C. Due Process
Tomlinson contends the investigation and the subsequent administrative proceedings deprived him of a fair hearing, and the trial court erred in finding otherwise. Reversal is required, he argues, because this “accumulation of due process violations” “incurably tainted” the termination proceedings. The trial court properly rejected this contention.
“Due process principles require reasonable notice and an opportunity to be heard before governmental deprivation of a significant property interest.” (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612.) But “[i]t is clear that due process does not require the state to provide the employee with a full trial-type evidentiary hearing prior to the initial taking of punitive action.” (Skelly, supra, 15 Cal.3d 194 at p. 215.) “[D]ue process does mandate that the employee be accorded certain procedural rights before the discipline becomes effective. At a minimum, these pre-removal safeguards must include notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing the discipline.” (Rosenblit, supra, 231 Cal.App.3d at p. 1443.) “Due process also requires that the final decision be made by an impartial authority....” (Vollstedt v. City of Stockton (1990) 220 Cal.App.3d 265, 274, citation omitted.) “ ‘The factor most often considered destructive of administrative board impartiality is bias arising from pecuniary interests of board members.... Personal embroilment in the dispute will also void the administrative decision..., although neither prior knowledge of the factual background which bears on a decision nor pre-hearing expressions of opinions on the result disqualifies an administrative body from acting on a matter before it.... [Citations.]’ ” (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1170.)
1. The Investigation
Tomlinson argues that the investigation was so “haphazard, reckless and grossly negligent” that it constituted a denial of his due process rights. He asserts that a variety of mistakes demonstrates that “[o]verall, ... the investigation sought only to obtain and document evidence that would support the complainants’ allegations, while ignoring any and all exculpatory evidence.” The trial court decided this issue against him, ruling that “none of the claimed flaws, either singly or as a whole, were so severe as to deprive [him] of a fair hearing.” We conclude that substantial evidence supports the trial court’s findings, and those findings support its determination that the investigation did not violate Tomlinson’s due process rights. (People v. Cooper (1991) 53 Cal.3d 771, 810-811 [investigation need not have been perfect as long as law enforcement authorities acted in good faith].)
Tomlinson argues that “[t]here was no effort made to determine the credibility of the complainants despite the fact that all three were convicted of crimes of moral turpitude.” But the record reflects that Commander Richards routinely asked those he interviewed to assess the victims’ credibility. He asked Cassandra and Cynthia whether they believed Lori. He asked the jail’s visiting deputies whether they believed Cynthia. He asked Cassandra’s probation officer for his “feeling on the credibility of [her] statements.” The probation officer, trained in witness deception, replied that he found her “very credible, ” adding that “[s]he is by far not jail material; she’s scared to death of being in trouble. So I... don’t think she has any reason to lie, she just wanted to get something off her chest, because it’s bothering her.” Commander Richards was also entitled to rely on his own training in witness deception. As he testified at the arbitration, neither Cassandra nor Cynthia exhibited any indicators of untruthfulness.
Tomlinson argues that Commander Richards’s failure to obtain a CJIS [Criminal Justice Information System] record reflecting that Cassandra and Cynthia had been assigned bunks near each other “proves” Cassandra was “lying” when she testified that she and Cynthia “had not talked while in the Women’s Pod, and that their bunks were not near each other.” We think the testimony on this point—provided two years and nine months after Cassandra’s day-and-a-half incarceration—is inconclusive. Cassandra readily admitted at the arbitration that she could no longer remember “small details.” She remembered what Cynthia looked like but could no longer recall her name. She did recall “talking [to her] in the holding section and once we were actually in the jail, actually in there, ” but also testified that they did not speak in the pod. (Italics added.) She could not remember if Cynthia was in the same pod: “If she was in that pod, she might have been at the corner because I remember there was not really that many bunk beds.” Asked if Cynthia’s bunk was “right near” hers, she responded, “No.”
Emphasizing that Commander Richards was not aware of the specific crime Cynthia was charged with and didn’t consider it important, Tomlinson argues that this “reveal[s] that [he] conducted the investigation with blinders on seeking only to sustain the allegations.” The trial court could reasonably have rejected this argument. Commander Richards testified that “[w]hat was important was what she had to say [about] her interaction with one of our deputies. [¶] I understood that she was in jail....”
Tomlinson next argues that “all three complainants were in the holding cell together for a lengthy period of time during which [Lori] concocted a plot to extort money out of Tomlinson and sought [Cassandra’s] and [Cynthia’s] assistance.” But the record reveals Cassandra and Cynthia declined to participate in any such plot. As Cassandra explained, when Lori suggested they might both “get money out of” the offending deputy, “I told [her], I’m not that type of person.” Cassandra gave Lori a false name and a made-up telephone number. Cynthia did not provide her phone number either. “[L]ike I told her, I don’t want to get involved in anything.”
Cassandra’s and Cynthia’s post-release actions bolster the conclusion that neither had extortion on her mind. Neither has ever told her story to the media, and neither has ever threatened or filed suit against Tomlinson or the County. Cynthia was reluctant to report Tomlinson’s actions even after the visiting deputies advised her to do so. Her allegations came to light only after Commander Richards located her in the course of his investigation. The trial court properly rejected Tomlinson’s extortion argument.
Tomlinson next argues that Commander Richards “failed to document witness interviews and other activities conducted during the course of the investigation.” We assume Tomlinson is referring to his earlier assertion that Commander Richards “admitted that he did not document [two] witness statements on the issue of whether Tomlinson would have been hanging around the courthouse two hours after his overtime shift ended on February 5, 2003.” Commander Richards “recall[ed] asking other individuals if they ha[d] ever known [Tomlinson to] be around the courthouse even though he wasn’t working.” But as he explained, those inquiries did not elicit any definitive information. And even if we were to assume for the sake of argument that he should have documented those interviews, we would find no due process violation, because both officers whose interviews were not documented testified at the arbitration. Sergeant Mary McMullen stated in general terms that when she was the sergeant in Court Services, Tomlinson “worked a lot of overtime for me, ” but she had never observed him staying after his shift “other than maybe going to lunch with some of his friends.” Sergeant Phillip Ferrari was asked whether he ever had any issues with Tomlinson “hanging around the court when he shouldn’t be.” He answered, “No.” He added, however, that “[n]othing would prohibit him from staying in the courthouse beyond me telling him to leave.” There is no evidence in the record that either officer was at the courthouse on February 5, 2003. In our view, the trial court could reasonably have rejected these officers’ very generalized testimony and chosen instead to credit Cassandra’s eyewitness testimony about what happened when she encountered Tomlinson at the courthouse that day.
Tomlinson next argues that “there were witness interviews conducted that likely uncovered exculpatory evidence that were not documented.” In our view, the trial court could reasonably have inferred that no undisclosed exculpatory evidence existed. Tomlinson testified at the arbitration that he “had to spend a lot of [his] own money to hire a private investigator to do a job... [he] felt should have been done by the Sheriff’s Department.” Despite this, he has never produced any undisclosed exculpatory evidence or identified any undocumented interviews other than those of Sergeants McMullin and Ferrari.
We conclude that the trial court properly determined that the investigation did not violate Tomlinson’s due process rights.
2. Administrative Proceedings
Tomlinson contends the conduct of the administrative proceedings violated his constitutional due process rights in “numerous ways” that, when cumulated, require invalidation of his termination. The trial court properly rejected this contention.
Tomlinson asserts that the Board was biased against him and should have been disqualified because it was “embroil[ed]” in the “ongoing public controversy over disciplinary matters in the Sheriff’s Department.” This contention is not supported by argument or citation to the record. Accordingly, we treat the point “ ‘as waived, and pass it without consideration.’ ” (McComber v. Wells (1999) 72 Cal.App.4th 512, 522 (McComber).)
For the same reason, we will not consider issues Tomlinson mentions only in passing: “the Board’s refusal to permit Tomlinson’s counsel to present oral argument, ” “denial of counsel at hearing, ” “a constitutionally unsound review process, ” and “interference with attorney-client relations.” (McComber, supra, 72 Cal.App.4th at pp. 522-523.)
Tomlinson next argues that the Board had a “disqualifying appearance of financial bias” because a decision to reinstate a terminated employee with back pay “directly impacts on the public fisc.” But impact on the public fisc is not the sort of “financial bias” the cases condemn. Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, on which Tomlinson relies, addressed the way a county selected hearing officers. The court held that it presented the appearance of bias because “while the adjudicator’s pay is not formally dependent on the outcome of the litigation, his or her future income as an adjudicator is entirely dependent on the goodwill of a prosecuting agency that is free to select its adjudicators and that must, therefore, be presumed to favor its own rational self-interest by preferring those who tend to issue favorable rulings.” (Id. at p. 1029.) The financial interest in Haas was the hearing officers’ personal financial interests, not, as here, the county’s public finances. Here, as the County correctly points out, none of the supervisors had a personal financial stake in Tomlinson’s case. His reliance on Haas is misplaced.
Tomlinson next contends the Board was “politically subservient to the Sheriff” and “accordingly did [the Sheriff’s] bidding” in response to his “unmistakable signal... as to what [he] wanted them to do in the case.” The public comment to which Tomlinson refers appeared in a newspaper article noting that the district attorney had decided against filing criminal charges: “ ‘The D.A. has to take (the case) before a jury and has to decide if he thinks he can win the case, and if he doesn’t think he can, he made the right decision, ’ Kanalakis said. ‘I’m disappointed, it’s regrettable, but that’s how the system works and I accept it.’ ” The story appeared in the local newspaper in October 2003, more than three years before the Board rendered its decision. Monterey County Board of Supervisors members are elected officials. They are not appointed by the sheriff, nor do they answer to him. We find nothing in the record to suggest that the Board was in any way “politically subservient” to the sheriff. There is no evidence to suggest the sheriff’s statement influenced any Board member in any way.
Tomlinson next contends that the findings adopted by the Board were prepared by the Office of the County Counsel “and transmitted to the Board by way of an ethically questionable ex parte communication.” “The involvement of County Counsel in drafting findings for the Board, ” he asserts, “violated Tomlinson’s due process rights by receiving evidence and argument ex parte, outside the presence of Tomlinson and his counsel.” He asserts that “[s]uch receipt of ex parte evidence was held a denial of due process in Greene v. McElroy [(1959)] 360 U.S. 474....” “To the same effect, ” he adds, “see also Patrick v. Miller [(10th Cir. 1993)] 953 F.2d 1240....” The trial court properly rejected this argument.
The cases on which Tomlinson relies are inapposite. In Greene v. McElroy (1959) 360 U.S. 474 (Greene), an aeronautical engineer for a private defense contractor lost his job after the defense department revoked his security clearance based on confidential reports that were never made available to him. “These reports apparently were compilations of statements taken from various persons contacted by an investigatory agency. [The engineer] had no opportunity to confront and question persons whose statements reflected adversely on him or to confront the government investigators who took their statements.” (Id. at p. 479.) The United States Supreme Court held that “in the absence of explicit authorization from either the President or Congress the [government] w[as] not empowered to deprive [the engineer] of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination.” (Id. at p. 508.) Here, unlike in Greene, there is no evidence that the Board’s decision was based on secret or confidential reports or testimony. Tomlinson has not directed our attention to any evidence suggesting county counsel received or transmitted any “evidence” or “argument” outside the administrative record. To the contrary, the Board’s detailed 30-page decision makes it plain that it is based entirely on evidence and testimony adduced during the arbitration. Unlike the defendant in Greene, Tomlinson had a full opportunity to confront, question, and cross-examine his accusers. Greene does not support his position.
Nor does Patrick v. Miller (10th Cir. 1993) 953 F.2d 1240 (Patrick). In that case, a city’s personnel director, who had served as the hearing officer during the former city finance director’s pre-termination hearing, was “given a prepared memorandum finding that [the director] should be terminated. [He] felt coerced into approving [the] termination because he thought his own job might be jeopardized by finding in [the director’s] favor. Thus, he approved the termination although he disagreed with it.” (Id. at p. 1245.) The former city finance director sued, and on appeal from a summary judgment entered in favor of the city, the court held that the evidence was “sufficient to demonstrate a genuine issue of material fact as to whether [the city’s] conduct denied [the former city finance director] an unbiased tribunal.” (Id. at p. 1246.) Here, unlike in Patrick, there is no evidence that the Board was biased against Tomlinson. There is no evidence that county counsel drafted the Board’s decision without input from the Board. Nor is there any evidence that any Board member felt coerced by county counsel to adopt any draft decision.
Tomlinson next argues that the county “inexcusably and prejudicially delayed” the arbitration for almost two years, which caused him prejudice. The County responds that he waived his right to raise the delay issue in this court by failing to raise it during the administrative proceedings. The County further argues that any delays were caused and/or acquiesced in by Tomlinson, who has in any event failed to demonstrate prejudice. We agree that Tomlinson waived his right to assert the issue.
“In administrative mandamus actions brought under section 1094.5 of the Code of Civil Procedure, appellate review is limited to issues in the record at the administrative level.” (City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1019 (City of Walnut Creek), italics added; accord, Chrisman v. City of Los Angeles (2007) 155 Cal.App.4th 29, 41 (Chrisman) [police officer’s failure to raise conflict of interest claims before board of rights precluded him from raising them in his mandamus petition or on appeal].) Here, there is no evidence that Tomlinson raised delay in bringing the case to arbitration as an issue at the arbitration. He has failed to preserve that issue for appeal. (City of Walnut Creek, at pp. 1019-1020; Chrisman, at p. 42.)
Tomlinson next contends that the Board’s failure to adopt or reject the hearing officer’s findings within 30 days of the decision, as the MOU requires, “effectively affirmed the hearing officer’s decision.” We disagree.
The interpretation of the MOU provision presents a question of law that we review de novo. (Bettencourt v. City and County of San Francisco (2007) 146 Cal.App.4th 1090, 1102 (Bettencourt).) In the absence of a clear expression of contrary intent, time limits are typically deemed directory. (People v. Lara (2010)48Cal.4th 216, 225; Bettencourt, at p. 1102.) “The violation of directory time limits do not usually require the invalidation of the government action to which the time limits apply.” (Bettencourt, at p. 1102.) In Bettencourt, the court rejected an argument that a city’s failure to comply with a police department timing regulation required dismissal of disciplinary proceedings against five officers. (Ibid.) The court reasoned that the time limit was directory, and that the regulation “d[id] not specify any sanction if the chief of police fails to act within 60 days....” (Ibid.)
Here, the MOU provides that “[w]ithin thirty (30) days after the filing of the record and recommended findings, conclusions and decision of the hearing officer with the Board, the Board shall adopt... or reject the recommendations of the hearing officer....” Like the provision in Bettencourt, it does not specify a penalty or consequence for failure to comply with the time limit. Nothing in the language of the MOU provision suggests an intent to make the 30-day limit mandatory. We conclude that the Board’s failure to comply with the MOU’s time limit does not invalidate the Board’s decision.
The Board rejected the hearing officer’s recommendations 87 days after they were filed.
The cases Tomlinson cites do not compel a different conclusion. None addresses the issue presented here: whether the MOU’s 30-day time limit is mandatory or directory. In Garvin v. State Personnel Board (1924) 195 Cal. 212, the court held that where there was no evidence to support a civil service board’s dismissal of a police officer for insubordination, the trial court properly annulled the board’s action. (Id. at pp. 225-226.) In Wiles v. State Personnel Board (1942) 19 Cal.2d 344, the court held that a civil service employee who was discharged after the expiration of his six-month probationary period was entitled to reinstatement, because he had continued actively working even while hospitalized during a portion of the probationary period, and “his work while in the hospital met the approval of [his superior].” (Id. at pp. 348, 352.) Under those circumstances, the probationary period should not have been extended to compensate for the six weeks the employee had spent in the hospital. (Id. at pp. 347-348.) In Ahlstedt v. Board of Education (1947) 79 Cal.App.2d 845, the court held that a secretary who had been suspended for unsatisfactory service and later dismissed had waived a hearing on the suspension only. She had not waived her right to a complete investigation of her dismissal and was therefore entitled to reinstatement, because the required procedures for dismissal had not been followed. (Id. at p. 856.)
We conclude that the trial court properly rejected Tomlinson’s due process claims.
IV. Disposition
The judgment is affirmed.
WE CONCUR: Elia, Acting P. J., McAdams, J.