Judge: Curtis A. Kin, Case: 22STCP03433, Date: 2023-11-02 Tentative Ruling

Hon. Curtis Kin The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 22STCP03433    Hearing Date: November 2, 2023    Dept: 82

            Petitioner California Highway Patrol petitions for a writ of mandate directing respondent California State Personnel Board to set aside its decision imposing a one-year suspension of real party in interest Nathaniel Partridge’s employment and instead uphold petitioner’s penalty of dismissal from employment.

I.       Factual Background

A.           Partridge’s Claims for Overtime Compensation

            Real party in interest Nathaniel Partridge joined petitioner California Highway Patrol (“CHP”) as a Patrol Officer in May 2006. (AR 932.) Patridge was assigned to the East Los Angeles Office (“ELA”). (AR 932-33.) Partridge voluntarily worked overtime in the Caltrans Maintenance Zone Enhanced Enforcement Program (“MAZEEP”).

            In connection with an audit of MAZEEP, Partridge was investigated and interrogated about 22 occasions where Partridge certified time on his CHP 415 concerning when he was on MAZEEP detail. (AR 4, 1851:2-7; 2171:24-2172:10, 1371-75.) Partridge admitted that he may have gone home early from a MAZEEP detail two or three times but had been paid for overtime hours. (AR 1877:19-1878:19.) Partridge admitted that, on September 17, 2017 in particular, he left the office before the stated end of the overtime detail. (AR 1863:21-25.)

On September 17, 2017, Partridge claimed 10 hours of work while the evidence showed that he only worked six hours and 15 minutes and was at his home for the remainder of MAZEEP detail. (AR 5.) CHP found Partridge signed and submitted a false CHP 415 timesheet to claim an extra 3 hours and 45 minutes of overtime he did not work, thereby fraudulently obtaining approximately $288.98 of compensation. (AR 5.) During Partridge’s administrative interrogation, he admitted that he “took the chance to go home and would fall on the consequence if . . . called back.” (AR 1263:6-7.) CHP also found that Partridge further violated policy on eight occasions by not entering the time he returned his patrol vehicle on a required CHP 33 form. (AR 6, 1341-48.)

B.           Relevant CHP Policies and Procedures

Under the official CHP policy regarding CHP 415, officers are required to “[r]ecord the start and finish time of the actual overtime worked.” (AR 956, ¶ 5.) Officers are trained on how to complete CHP 415s in the Academy and during break-in training. (AR 1536:1-10.) Officers are required to fill out a CHP 415 form in order to be paid. (AR 1536:10-12.)

The CHP 33, or “Driver’s Equipment Check” form, remains inside each patrol vehicle. (AR 957, 1544:2-13.) At the end of every detail, officers are required to complete the time the vehicle is turned in (“Time In”), along with other relevant information. (AR 957-58, 1546:19-1547:13.) This policy is taught at the Academy and during officers’ break-in period. (AR 1547:17-20.)

The interagency agreement (“Agreement”) between CHP and the California Department of Transportation for reimbursable services for MAZEEP states that CHP officers will be paid for hours they work on an overtime detail, and for travel time to and from the worksite, from the ELA area office. (AR 961; 1542:9-23.)

Though not part of the Agreement, the ELA office’s Standard Operating Procedures (“SOP”) on Overtime read, in pertinent part: “Officers working overtime such as … MAZEEP details shall remain available during the duration of the reimbursable contract. If Caltrans ends a detail early due to unforeseen circumstances but continues to pay the officer for the duration of the contract, the officer shall remain available to Caltrans by standing by at the office. (AR 995.) Partridge admitted that Sergeant Connie Guzman told him this SOP provision required he remain at the office until the end of the scheduled detail. (AR 1947:22-1948:11, 3034:8-12.)

C.           Procedural Administrative History

CHP served Partridge with a Notice of Adverse Action (“NOAA”) on February 7, 2020. (AR 1-2.) The action was for dismissal, effective March 2, 2020. (AR 1.) The NOAA described that Partridge’s conduct violated Government Code § 19572, subdivisions: (d) inexcusable neglect of duty, (f) dishonesty, (p) misuse of state property, (r) violation of the prohibitions set forth in accordance with Government Code § 19990, and (t) other failure of good behavior. (AR 1.)

On March 23, 2020, Partridge appealed his dismissal to respondent State Personnel Board (“SPB”). (AR 12.) An evidentiary hearing was held on July 27-30 and August 2-4, 2021. (AR 3230.) During the hearing, Patridge testified that other sergeants and officers were leaving before the stated end time of a MAZEEP overtime detail. (AR 3027:14-3028:10; 3029:19-3030:4.)

On October 14, 2021, the Proposed Decision by ALJ Douglas A. Purdy was served. (AR 3267.) The ALJ sustained the charges of inexcusable neglect of duty and other failure of good behavior only and reduced the penalty to a one-month suspension. (AR 3631, 3265.) The SPB rejected the proposed decision and requested oral argument, which was held on February 9, 2022. (AR 3228, 3292.)

The SPB agreed with the ALJ’s finding that on eight separate occasions in a six-month period, Partridge failed to fully complete the CHP 33 following a MAZEEP detail, finding that Partridge “routinely omitted the time when he returned the patrol vehicle to the station.” (AR 3638, 3693.) This was found to be inexcusable neglect of duty and other failure of good behavior. (AR 3638.)

Regarding the single charged incident of falsifying time records and claiming $288.98 in fraudulent compensation (AR 1-9), the SPB found that Partridge had violated Government Code section 19572, subdivisions (d) inexcusable neglect of duty, (f) dishonesty, (p) misuse of state property, (r) violation of the prohibitions set forth in accordance with Government Code § 19990, and (t) other failure of good behavior. (AR 3640-47.)

In its written decision, the SPB acknowledged the factors affecting penalty as set forth in Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217-18, including the “overriding consideration” of the extent to which the employee’s conduct resulted in, or if repeated is likely to result in harm to the public service, the circumstances surrounding the misconduct, and the likelihood of recurrence of misconduct. (AR 3647.) The SPB Decision explicitly notes that:

there are professions, like that of law enforcement, which impose upon its servants certain ‘responsibilities and limitations on freedom of action which do not exist in other callings.’ [Citations.]” (Anderson v. State Personnel Bd. (1987) 194 Cal.App.3d 761, 771.) Hence, peace officers are held to a higher standard of conduct in comparison to other civil service positions. (County of Los Angeles v. Civil Service Com. of County of Los Angeles (2019) 40 Cal.App.5th 871, 878.)

(AR 3647.)

The Decision describes the harm to public service due to Partridge “knowingly violat[ing] written policy to claim compensation or taxpayers’ dollars for hours that he did not work nor was he legally entitled to claim.” (AR 3647.) The SPB found that Partridge’s actions “could easily cause members of the public to question the integrity of CHP officers and CHP as a whole.” (AR 3647.) The Decision acknowledges that Partridge’s actions were, “among other things, plainly dishonest.” (AR 3647.) The Decision further notes that, because “peace officers are specifically held to higher standards of conduct than civilian employees, their acts of dishonesty are considered highly injurious to their employing agencies. (AR 3647-48.)

In the Decision, the SPB noted that Partridge had been a CHP officer since 2006 and “appears to be” a good employee. (AR 3648.) The Decision notes that he had not suffered any prior disciplinary actions and had received excellent or proficient performance ratings in the prior three years. (AR 3648.) The SPB found this lengthy, discipline-free tenure was deserving of “serious consideration,” especially in light of the “minor transgression” of dishonestly claiming unearned overtime and a minor transgression in his “haphazard completion of CHP forms.” (AR 3648.)

The SPB also noted that other CHP officers who were dismissed for claiming unearned MAZEEP overtime compensation “generally involved multiple and costly claims for unearned overtime compensation indicative of a pattern of practice.” (AR 3648.) By contrast, Partridge was charged with a “singular” occasion where he “made a poor choice to claim three-plus hours of unearned overtime compensation.” (AR 3648-49.) The SPB concluded that the isolated charged event does “not necessarily” suggest Partridge has a propensity or disposition to lie, cheat, or deceive. (AR 3649.)

In evaluating the “totality of the circumstances,” the SPB wrote that “while dismissals of peace officers found to have been dishonest are generally justified, there is no authority suggesting that dismissal is the only option.” (AR 3649, citing County of Siskiyou v. State Personnel Bd. (2010) 188 Cal.App.4th 1606, 1617.) The Decision cites Department of Parks and Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 827 for the proposition that modification of a penalty is appropriate when the evidence establishes the cause of discipline is proven but is insufficient to support the level of punitive action taken. (AR 3649.) The SPB agreed that penalty modification is appropriate when the penalty is out of proportion to the proven misconduct. (AR 3649.)

Ultimately, the SPB “[did] not find there to be a tremendous likelihood of recurrence especially considering the limited nature of Partridge’s offense, the widespread disciplinary actions taken by CHP against officers who abuse the public trust in failing to adhere to CHP’s policies, and the stern discipline the Board will impose in this action.” (AR 3650.) The SPB found that, instead of dismissal, the imposition of a one-year suspension resulting in the loss of a year’s salary was just and proper under the circumstances. (AR 3650.)

II.      Procedural History

             On September 20, 2022, petitioner CHP filed a verified Petition for Writ of Mandate. On October 26, 2022, real party in interest Partridge filed a verified Answer. On November 2, 2022, respondent SPB filed a verified Answer.

            On September 5, 2023, CHP filed an opening brief. On October 3, 2023, Partridge filed an opposition. On October 18, 2023, CHP filed a reply.  The Court has received an electronic copy of the administrative record and a hard copy of the joint appendix.

III.     Standard of Review

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Lake v. Civil Service Commission (1975) 47 Cal.App.3d 224, 228.) If reasonable minds can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion. (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)

In considering whether an abuse of discretion occurred, the “overriding consideration … is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.)

“[A peace officer’s] job is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper performance of an officer’s duties.” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.)

IV.     Analysis

CHP asserts that the SPB abused its discretion in imposing a one-year suspension on Partridge instead of terminating him.

            As a preliminary matter, Partridge argues that CHP never enforced or complied with its overtime policies. (Opp. at 9:20-14:6.)  Seemingly attempting to relitigate whether a violation was proven, Partridge thus argues that “CHP did not prove by substantial evidence that Partridge was dishonest or had an intent to deceive.” (Opp. at 14:4-5.)  Putting aside the propriety of attempting to subvert a liability determination in an opposition brief defending the penalty imposed, Partridge’s contention is incorrect.  To begin with, the “controlling precedential decision” upon which Partridge relies for his argument—E.D. (1993) SPB Dec. No. 93-32—is inapposite.  In E.D., the SPB found that a finding of inexcusable neglect of duty or misuse of state property with respect to overtime required an intent by CHP to enforce the pertinent overtime policy, but, in E.D., the CHP never established that it had a policy concerning the practice at issue in that case. (E.D., SPB Dec. No. 93-32 at * 9.) Here, it is undisputed that CHP policies required the accurate completion of CHP 415 and 33 forms. (AR 956-58.)  Further, it is undisputed ELA’s SOP stated that officers working overtime such as MAZEEP should remain available to Caltrans by standing by at the office (AR 995)—a policy Partridge admitted Sergeant Guzman communicated to him. (AR 1947-48.)  It is also undisputed that Partridge violated these policies.  The SPB accordingly was entitled to find, as it did, that Partridge engaged in dishonest conduct.

            Nevertheless, the Court does agree with Partridge that the SPB did not manifestly abuse its discretion by imposing the punishment that it did for Partridge’s dishonest conduct. While noting that peace officers are held to a high standard of conduct, the SPB correctly noted that each individual case must be assessed on the totality of the circumstances. (AR 3648; Skelly, 15 Cal.3d at 218 [relevant factor in evaluating penalty is “circumstances surrounding misconduct” and likelihood of recurrence].)

            Here, compared to cases where CHP officers were dismissed for submitting multiple, costly claims for overtime, Partridge’s discipline is based on a single instance of claiming 3 hours and 45 minutes of unearned overtime compensation, amounting to $288.98. (AR 3637-38, 3648-49; cf. AR 3648, fn. 4 [listing cases where unearned overtime ranged from 2 separate occasions totaling 8 hours to 39 occasions].) Based on the one incident, it was within reason for SPB to find the absence of any indication that Partridge had a propensity to cheat, deceive, or defraud. (AR 3649; see Gee v. California State Personnel Bd. (1970) 5 Cal.App.3d 713, 718-19 [“‘Dishonesty’ connotes a disposition to deceive. [Citation.] It “denotes an absence of integrity; a disposition to cheat, deceive, or defraud”].) Consistent with that finding, the SPB noted Partridge’s lack of prior disciplinary actions and excellent and proficient ratings in his last three years of employment. (AR 3632, 3648.)

The SPB found that, under the circumstances presented, dismissal would be disproportional, whereas a one-year suspension would be just and proper. (AR 3649-50; see Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 827 [modification of penalty recommended by ALJ appropriate when “cause for discipline is proven but is insufficient to support the level of punitive action taken”].) Such a finding is not outside the bounds of reason. (Ng v. State Personnel Bd. (1977) 68 Cal.App.3d 600, 605 [“Discretion is abused when the action exceeds the bound of reason”].)

            CHP argues that Partridge omitted the time when he returned the patrol vehicle to the station on eight separate occasions in the CHP 33 forms. (AR 3638.) CHP argues that Partridge made it difficult for CHP management to detect an early return because he left no other fields blank. (Reply at 5:6-9; AR 1341-48.) The SPB sustained the ALJ’s finding of inexcusable neglect of duty and other failure of good behavior based on these eight occasions. (AR 3638.) However, with respect to dishonesty, the SPB found that entry of the return time on the CHP 33 form is not determinative of whether the officer would be entitled to claim full overtime compensation for the shift. (AR 3643.) This is because the SOP allowed the officer to stay at the station after an early release for the duration of the shift and claim full overtime. (AR 995, 3643.) Accordingly, while Partridge failed to comply with policy concerning the CHP 33 forms, it was not unreasonable to conclude that Partridge’s failure to enter the time he returned patrol vehicles is not indicative of intent to conceal his lack of entitlement to overtime or probative of his honesty concerning claims for overtime.

            CHP also argues that Partridge admitted he may have gone home early two or three times. (AR 1877:19-1878:19.) More precisely, Partridge only stated that he “possibly” left the East LA area two or three times. (AR 1878:1-5.) More to the point, CHP did not charge Partridge for more than one false claim of overtime. Accordingly, Partridge’s vague concession is not sufficient to punish Partridge for purportedly engaging in additional acts of dishonesty beyond the one with which he was charged.

“Judicial interference with the agency’s assessment of a penalty ‘will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency.’” (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 54.) Based on the foregoing, the Court does not find the SPB committed a manifest abuse of discretion when imposing a penalty for Partridge’s conduct. To be sure, Partridge’s misconduct of claiming three-plus hours of unearned overtime compensation was serious and warrants significant discipline, but the Court cannot say that a one-year suspension without pay is unreasonable, considering the proportionality of the discipline to the single offense and Partridge’s lack of prior discipline in his 16 years of employment with CHP. Even though Partridge did not enter his return time on the CHP 33 form on eight occasions, none of those occasions were meaningfully linked to a false claim for overtime.

CHP cites cases for the proposition that courts do not tolerate peace officer dishonesty. (OB at 17:3-13.)  That is true, and the courts should not.  But this Court has considered all of CHP’s cited authorities and finds they do not support a finding that the SPB manifestly abused its discretion under the circumstances of this case.

Case law does not support the proposition that discharge is required in all instances in which a police officer is found guilty of dishonesty. Without question, a law enforcement officer’s dishonesty may warrant discharge and often should. (See Ackerman v. State Personnel Bd. (1983) 145 Cal.App.3d 395, 398-99, 400-01 [upholding dismissal, finding discharge for theft of government property and lying twice about it did not “exceed the bounds of reason”]; Wilson v. State Personnel Bd. (1976) 58 Cal.3 865, 882 [upholding dismissal for false claim of overtime, finding “[n]o employer, including the state, is to be condemned for terminating one who has willfully defrauded his employer in such fashion”]; Haney v. City of Los Angeles (2003) 109 Cal.App.4th 1, 12 [upholding dismissal, finding that leaving duty post for barbecue and falsifying daily report to conceal time spent at barbecue]; Flowers v. State Personnel Bd. (1985) 174 Cal.App.3d 753, 761 [upholding dismissal based on dishonesty, misuse of state property, and insubordination]; Talmo v. Civil Service Comm. (1991) 231 Cal.App.3d 210, 229 [upholding dismissal where deputy sheriff committed battery against prisoners and lying about it to superior officers]; Nicolini v. County of Tuolumne (1987) 190 Cal.App.3d 619, 627-28 [upholding dismissal where deputy sheriff altered prescription, was dishonest, and was uncooperative]; Paulino v. Civil Service Com. (1985) 175 Cal.App.3d 962, 972 [upholding dismissal where deputy sheriff falsely reported ill and made false and misleading statements in reports about his purported sick day]; Kolender v. San Diego County Civil Service Commission (2005) 132 Cal.App.4th 716, 722 [upholding dismissal where deputy sheriff lied to protect a colleague who had abused an inmate].) However, these cases do not counsel that termination is the only appropriate penalty for every single act of dishonesty irrespective of the circumstances.  To the contrary, nothing prevents the SPB from considering mitigating circumstances in fashioning the appropriate discipline for any particular act of dishonesty.

To be sure, one episode of dishonesty may very well be sufficient to merit termination.  In this regard, the Court notes that, in Cate v. State Personnel Bd. (2012) 204 Cal.App.4th 270, the Court of Appeal found that the SPB abused its discretion when it reduced the punishment of a correctional officer from termination to a 30-day suspension. (Cate, 204 Cal.App.4th at 287.) However, in Cate, the prison guard encouraged a mentally ill patient to commit suicide, intimidated a witness, and was dishonest. (Id. at 282-83, 285.) That egregious misconduct warranting termination is not comparable to Partridge’s misconduct of falsely claiming three-plus hours of unearned overtime.

            CHP also argues that Partridge’s dishonesty will need to be disclosed to counsel for criminal defendants under Brady v. Maryland (1963) 373 U.S. 83. (OB at 12:22-13:14; Association for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 40.)  That may be true for the rest of Partridge’s career, but, as observed by the SPB, this particular single incident of proven dishonesty does not necessarily suggest “a propensity or disposition to lie, cheat, or deceive” (see AR 3649), such that Partridge might still be found to credibly testify in the future, even when confronted with or cross-examined about the false overtime claim.  Thus, it was not unreasonable for the SPB to conclude Partridge’s conduct is not likely to result in harm to the public service (see Skelly, 15 Cal.3d at 217-218), because the violation at issue does not necessarily render him unable to offer testimony as a law enforcement officer that can be found credible when called to do so, notwithstanding the prior violation.

            Based on the foregoing, the Court finds the SPB’s reduction of discipline from the CHP’s desired outcome of termination to a one-year suspension was not a manifest abuse of discretion.

V.      Conclusion

            The petition is DENIED. Pursuant to Local Rule 3.231(n), real party in interest Nathaniel Partridge shall prepare, serve, and ultimately file a proposed judgment.