Judge: Curtis A. Kin, Case: 23STCP00914, Date: 2024-09-17 Tentative Ruling

Case Number: 23STCP00914    Hearing Date: September 17, 2024    Dept: 86

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

I.       Factual Background

A.           Diaz’s Claim for Overtime Compensation

            Real party in interest Gerard Diaz joined petitioner California Highway Patrol (“CHP”) as an officer on February 26, 1996. (AR 417.) Diaz graduated from the academy on August 30, 1996, after which he was assigned to the East Los Angeles Area (“ELAA”) office as a motorcycle officer. (AR 3257, 3261, 4380.) On January 1, 2014, Diaz was promoted to Sergeant and worked in the West Los Angeles Area office. (AR 2608, 4380.) On January 1, 2015, he returned to the ELAA office as a Sergeant. (AR 2608, 4380.) At all relevant times, Diaz was assigned to the ELAA office. (AR 4381.)

Diaz voluntarily worked overtime in the Caltrans Maintenance Zone Enhanced Enforcement Program (“MAZEEP”). (AR 388.) An audit of CHP’s voluntary overtime program at its ELAA office uncovered numerous anomalies, and CHP management initiated concurrent criminal and administrative investigations. (AR 388.) Diaz was investigated and interrogated. (AR 390, 2567-68 [HT 148:23-149:2], 2608 [HT 189:2-8].) During his administrative interrogation, Diaz admitted that there were times that he may have possibly left an overtime shift a little early. (AR 2499-2500 [HT 80:24-81:13].) April 17, 2017 was one such occasion. (AR 388-89.)

On April 17, 2017, Diaz falsely claimed six hours and 30 minutes of overtime work, while the evidence showed that he only worked six hours and was on his way home for the remainder of the MAZEEP detail. (AR 389.) CHP found Diaz signed and submitted a false CHP 415 timesheet to claim an extra thirty minutes of overtime he did not work, thereby fraudulently obtaining approximately $48.65 in compensation. (AR 389.) Diaz was served a Notice of Adverse Action (“NOAA”). (AR 385-93.) The penalty was dismissal, effective December 18, 2019. (AR 387.)

            Prior to his dismissal, Diaz had been disciplined only one other time, which was for a March 22, 2017 arrest for driving under the influence while off-duty. (AR 392, 4380.)

B.           CHP’s Policies Concerning Overtime

The CHP provides training regarding the completion of forms related to officers’ daily activities. Relevant here, CHP trains all officers on its policies related to its timesheets, the CHP Form 415. (AR 1133 [HT 50:15-24].) The official CHP policy regarding Form 415 reporting requires the officers to “[r]ecord the start and finish time of the actual overtime worked.” (AR 3165 [¶ 5].) Officers are trained on how to complete 415s in the Academy and during break-in training. (AR 1143 [HT 60:4-21]; 1146 [HT 63:4-16].) Diaz admitted he was aware of CHP policy on how to complete 415s. (AR 1567 [HT 144:2-21].)

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, as well as for travel time between the ELAA office and the worksite. (AR 1156-57 [HT 73:2-74:7], 1158 [HT 75:4-12], 3170, 3173.)

Although not part of the Agreement, the ELAA 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 3208 at ¶ 9.) Diaz has admitted that he was aware of the SOP provision that, if a detail ended early, he had to remain available to Caltrans by standing by at the office. (AR 1577-78 [HT 154:20-155:7].)

C.           Procedural Administrative History

Diaz was served a Notice of Adverse Action (“NOAA”). (AR 385-93.) The penalty was dismissal, effective December 18, 2019. (AR 387.) The NOAA asserted that Diaz’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 387-88.)

On January 15, 2020, Diaz appealed his dismissal to the State Personnel Board (“SPB”). (AR 401.) An evidentiary hearing was held on August 1-5 and 8-9, 2022. (AR 4378.)

During the hearing, Diaz argued that his claim of unearned overtime compensation was the result of a “command failure.” (See AR 2631 [HT 212:10-16].) Diaz also blamed “past practice” at the ELAA office, claiming that personnel just had to “be available” and not necessarily in the office if a detail ended early. (AR 2540-41 [HT 121:24-122:17].) The administrative investigations conducted by CHP concluded that Diaz and numerous other CHP officers, as well as sergeants, claimed overtime for hours they did not actually work. (AR 4403.)

On January 25, 2023, the Board Resolution and Order/Proposed Decision was served. (AR 4424.) The Board adopted ALJ Ralph W. Kasarda’s Proposed Decision, which sustained all charges against Diaz, but modified the penalty to a one-year suspension. (AR 4374, 4423.) The SPB’s Decision included a dissenting opinion by one of the board members, who believed that Diaz should have been terminated. (AR 4375-76.)

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, 218. (AR 4416.) Under Skelly, “the overriding consideration” is the extent to which the employee’s conduct resulted in, or, if repeated, is likely to result in harm to the public service. (AR 4417.) Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence. (AR 4417.)

With respect to Diaz’s assertion of a “command failure,” the SPB noted that some evidence at the hearing could suggest that ELAA management knew uniformed personnel were claiming unearned overtime but declined to stop the practice. (AR 4417-18.) However, the SBP ultimately determined that the evidence was insufficient to support such an assertion. (AR 4419.) In the alternative, the SPB found that, even if management had condoned the improper claiming of overtime, it would not have excused Diaz’s conduct; instead, it would have suggested that managers were part of a scheme to defraud the State. (AR 4419-20.)

The SPB found that Diaz’s conduct resulted in “serious harm” to the public service. (AR 4417.) It wrote:

A peace officer’s job is a position of trust, and the public has a right to the highest standard of behavior from whose they invest with the power and authority of a law enforcement officer. The actions of a law enforcement officer must be above reproach, lest they bring discredit on the officer’s employer. When the behavior of peace officers fall below the high standards expected of them, those peace officers violate the public trust and discredit themselves and the department that employed them.

(AR 4417, citations omitted.) The SPB found that Diaz’s claiming compensation for overtime he did not actually work was dishonest and resulted in and, if repeated, is likely to result in harm to public service. (AR 4417.)

Despite finding Diaz’s conduct dishonest, the SPB modified his penalty from termination to a one-year suspension. (AR 4421.) The SPB found that, while “dishonesty by a peace officer warrants harsh discipline” (AR 4421, citing David E. Gillespy (1992) SPB Dec. 92-08), “court decisions do not…compel discharge from employment as a penalty for dishonesty in every circumstance.” (AR 4421, citing County of Siskiyou v. State Personnel Bd. (2010) 188 Cal.App.4th 1606, 1617.) In the Decision, the SPB noted that, while Diaz was a sergeant with supervisory responsibilities, a dismissal is out of proportion to the proven misconduct due to the “limited and singular nature of his offense, the low likelihood of recurrence, and his long devotion to public service as a CHP peace officer.” (AR 4420-21.) The SPB noted that Diaz “broke down during his testimony and expressed extreme and sincere remorse for his actions,” which “strongly suggest[ed]” that he “learned from his mistake and the likelihood that he will engage in future misconduct is low.” (AR 4420.)

Diaz received prior discipline—suspension without pay for six working days after a DUI arrest—but the SPB noted that he only received this one disciplinary action in his long career and that it was unrelated to his overtime misconduct. (AR 4420-21, 4126-29.) Finding a one-year suspension just and proper under the circumstances, the SPB reasoned that the suspension would impart upon Diaz that “dishonest behavior by a CHP Sergeant is condemnable and will always be deserving of severe penalty up to and including dismissal.” (AR 4420-21.)

II.      Procedural History

             On March 22, 2023, petitioner CHP filed a Petition for Writ of Mandate. On May 12, 2023, real party in interest Diaz filed a verified Answer. On June 8, 2023, respondent SPB filed a verified Answer.

            On July 24, 2024, CHP filed an opening brief. On August 16, 2024, Diaz filed an opposition. On August 30, 2024, 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 contends that the SPB abused its discretion in imposing a one-year suspension on Diaz instead of terminating him. The Court finds that the SPB did not manifestly abuse its discretion by imposing the punishment that it did for Diaz’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 4420; Skelly, 15 Cal.3d at 218 [relevant factor in evaluating penalty is “circumstances surrounding misconduct” and likelihood of recurrence].)

Here, compared to cases in which CHP officers were dismissed for submitting multiple, costly claims for overtime, Diaz’s discipline is based on a single instance of claiming 30 minutes of unearned overtime compensation, amounting to $48.65. (Compare AR 4397-98 [co-appellant in administrative hearing claimed unearned overtime on 21 occasions totaling 46.25 hours].) Based on this one incident, it was not unreasonable for SPB to find that Diaz was unlikely to engage in future misconduct. (AR 4420; 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 Diaz’s 24-year tenure with CHP and his supervisor’s general praise of his work performance. (AR 4420-21.) Even though Diaz had previously been disciplined for driving under the influence, that prior discipline and underlying conduct was entirely unrelated to the dishonesty at issue in here. (AR 4420-21.)

The SPB found that, under the circumstances presented, dismissal would be disproportionate, 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 Diaz’s remorse at the hearing was the result of having been caught lying, not for the lying itself. As evidence for this assertion, CHP points to testimony in which Diaz attributed the unearned claiming of overtime to a “command failure” and “past practice” at the ELAA office. (AR 2540-41 [HT 121:24-122:17], 2631 [HT 212:10-16].) The SPB also noted that Diaz initially claimed the end times on his timesheets were incorrect and only conceded they were false when pressed. (AR 4404-05.) Diaz also denied he was aware that he was violating the Standard Operating Procedures on Overtime but conceded that he was paid 30 minutes of overtime which he did not work. (AR 4405.) Due to Diaz’s evasive answers, the SPB did not credit his claim that he was unaware that he had violated overtime policy or falsified his timesheets. (AR 4405.)

Nonetheless, the Court has no cause to doubt the SPB’s evaluation of Diaz’s remorse. The SPB noted that Diaz “became emotional during his testimony when he conceded that he had made a mistake.” (AR 4405.) Diaz “shed tears and couldn’t answer questions for a brief moment.” (AR 4405.) The SPB found Diaz’s expressions of remorse to be “genuine and profound,” thereby demonstrating that he learned from his past conduct. (AR 4420.) It is true that a reasonable person might attribute such expressions to Diaz having been caught falsifying his timesheet and not being genuinely remorseful for his conduct. But another reasonable person certainly could find that, when finally confronted with the wrongfulness of his conduct, Diaz understood what he had done wrong and was able to “express[] extreme and sincere remorse for his actions.” (AR 4420.)  Thus, having learned from his mistake, the likelihood that Diaz would engage in future misconduct is low. (AR 4420.) The Court cannot say that the SPB’s assessment of Diaz’s remorse was a manifest abuse of discretion. 

CHP also argues that, although Diaz was only charged with one false claim of overtime, he admitted there were times that he may have possibly left an overtime shift a little early. (AR 2499-2500 [HT 80:24-81:13].) Notably, Diaz only admitted it was possible. More to the point, CHP did not charge Diaz with more than one false claim of overtime. Accordingly, Diaz’s vague concession is not sufficient to attribute a propensity to commit future misconduct where there is evidence of only one instance of such misconduct.

“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 Diaz’s conduct. To be sure, Diaz’s misconduct of claiming 30 minutes of unearned overtime compensation was serious and warrants significant discipline, but the Court cannot say that a one-year suspension is unreasonable, considering the proportionality of the discipline to the single offense and Diaz’s lack of prior discipline for dishonest conduct in his 24 years of employment with CHP.

CHP cites cases for the proposition that courts do not tolerate peace officer dishonesty. (Opening Br. at 15:19-17:4.)  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 here.

Discharge is not 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, the existence of numerous cases upholding dismissal as an appropriate sanction for an officer’s dishonesty still does not compel the conclusion 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 throughout. (Id. at 282-83, 285.) That egregious misconduct warranting termination is not comparable to Diaz’s misconduct of falsely claiming 30 minutes of unearned overtime.

CHP also argues that Diaz’s dishonesty will need to be disclosed to counsel for criminal defendants under Brady v. Maryland (1963) 373 U.S. 83. (OB at 10:21-11:15; Association for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 40.)  That may be true for the rest of Diaz’s career, but this particular single incident of proven dishonesty does not necessarily suggest “a disposition to cheat, deceive, or defraud” (see Gee, 5 Cal.App.3d at 719), such that Diaz 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 Diaz’s “long devotion to public service” and the “low likelihood of recurrence” outweigh the harm inflicted by Diaz’s single offense. (AR 4421; see Skelly, 15 Cal.3d at 217-218.)  The violation at issue does not necessarily render Diaz 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 Gerard Diaz shall prepare, serve, and ultimately file a proposed judgment.