Judge James C. Chalfant, Case Number: 22STCP03301, Date: 2023-09-14 Tentative Ruling

Petitioner County of Los Angeles Probation Department (“Department”) seeks a writ of mandate compelling Respondent Los Angeles County Civil Service Commission (“Commission”) to vacate its decision not to discharge Real Party-in-Interest Hellen Carter (“Carter”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioner Department filed the Petition on September 6, 2022, alleging a single cause of action for administrative mandate under CCP section 1094.5. The Petition alleges in pertinent part as follows.

Carter began her employment with the Department on October 19, 2011. From 2013 until November 2014, she was a Bureau Chief for Juvenile and Adult Services. From 2014 to 2018, she was the Quality Assurance Services Bureau Chief.

On March 17, 2014, during a meeting with field directors at the Veterans Memorial Complex, Carter said that her grandfather was “one of the original wetbacks.” On October 28, 2014, Carter received a letter of reprimand for inappropriate conduct toward others based on national origin, discourtesy with fellow employees, and poor judgment.

On June 3, 2019, the Department issued a Notice of Discharge to Carter for 15 violations of Department policies consisting of failure to exercise sound judgment, dishonesty, violation of the Departmental or externally recognized code of ethics, abuse of supervisory or management authority or conduct unbecoming a position of power, failure to follow established rules or regulations, and providing false information during an administrative hearing.

On October 7, 2021, the hearing officer recommended overturning the discharge and reducing the discipline to written reprimand. His proposed decision found that the Department failed to prove the allegations of egregious behavior. The Commission adopted the recommendation over the Department’s objections.

The Department seeks a peremptory writ of administrative mandamus compelling the Commission to set aside its decision and restore Carter’s discharge. Neither the findings nor the weight of the evidence supports the Commission’s decision, and the Commission did not proceed as the law requires. The Department also seeks attorney’s fees and costs upon its success.

On September 12, 2022, the Department served the Commission with the Petition and Summons.

On October 6, 2022, the Commission filed a notice of no beneficial interest in the outcome of this Petition.

Also on October 6, 2022, Carter signed a notice and acknowledgment of receipt of the Petition and Summons.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP Section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999)20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). In other cases, the substantial evidence test applies. Mann v. Department of Motor Vehicles, (1999) 76 Cal.App.4th 312, 320; Clerici v. Department of Motor Vehicles, (1990) 224 Cal.App.3d 1016, 1023. An employer’s right to discipline or manage its employees is not a fundamental vested right, and the employer does not have a right for the trial court to exercise its independent judgment on the evidence. County of Los Angeles v. Civil Service Com., (1995) 39 Cal.App.4th 620, 633. Therefore, the substantial evidence test applies to the court’s review of an employer’s mandamus claim concerning employee discipline. Id.

“Substantial evidence” is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board, (“California Youth Authority”) (2002) 104 Cal.App.4th 575, 585) or evidence of ponderable legal significance, which is reasonable in nature, credible and of solid value. Mohilef v. Janovici, (1996) 51 Cal.App.4th 267, 305, n. 28. The petitioner has the burden of demonstrating that the agency’s findings are not supported by substantial evidence in light of the whole record. Young v. Gannon, (2002) 97 Cal.App.4th 209, 225. The trial court considers all evidence in the administrative record, including evidence that detracts from evidence supporting the agency’s decision. California Youth Authority, supra, 104 Cal.App.4th at 585.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The Commission consists of five members appointed by the Board of Supervisors, each for a four-year term. Los Angeles County Charter (“Charter”) §31. The Commission shall serve as an appellate body in accordance with the provisions of Charter sections 35(4) and 35(6). Charter §34.

The Commission may promulgate civil service rules (“CSRs”) to govern its proceedings. Charter §34. The purpose of the CSRs is to carry out the Charter provisions, assure the continuance of the merit system, promote efficiency in the dispatch of public business, and assure that all employees in the classified service system receive fair and impartial treatment at all times. CSR 1.02. To this end, the CSRs are liberally construed, and the Commission may make and enforce any order appropriate to effectuates those rules. CSR 1.02.

The term “discharge” is defined as a separation from service for cause. CSR 2.19. Before the discharge of a permanent employee in a nonsupervisory class becomes effective, the employee shall receive a written notice from the appointing power of intent to invoke discharge or reduction, and specific grounds and particular facts therefor. CSR 18.02(A). The employee shall then be allowed a reasonable time, not to exceed ten days, to respond orally or in writing to the appointing power before the discharge or reduction shall become effective. CSR 18.02(A). After the permanent employee receives a notice of discharge, the employee has 15 business days in which to reply thereto in writing and request a hearing before the Commission. CSR 18.02(B).

The Commission shall determine whether the discharge was justified. CSR 18.02(C)(1).

The Commission may not consider any information or charges made by the appointing power unless they are contained in the letter of discharge, or any made by the employee unless the employee has previously provided them to the appointing power for consideration, unless such information or charges were not then known and could not reasonably have been expected to be known by the appointing power or the employee. CSR 18.02(C)(1).

Discipline for failure to notify supervisor regarding absence or late arrival within policy time limits ranges from a warning to five-day suspension for the first occurrence, 10- to 30-day suspension for the second, and 30-day suspension to discharge for the third. AR 262.

Discipline for unauthorized or unscheduled absences may include discharge for the first and second offense and must be discharge for the third. AR 262. Unauthorized absence includes failure to report to work or to remain at work as scheduled, or to return to work on time after a break. AR 262.

Discipline for providing false information during an administrative investigation ranges from a 1-15 day suspension to discharge for a first offense, 30-day suspension to discharge for a second offense, and discharge for a third offense. AR 263.

Discipline for unbecoming conduct while performing duties, on County premises, during work hours, or when such conduct is related to the employee’s duties or interest of the Department or County range from a 30-day suspension to discharge for a first offense. AR 268. The discipline for a second offense is discharge. AR 268.

Discipline for discourtesy to fellow employees ranges from warning to discharge for a first offense, a 15-30-day suspension to discharge for a second offense, and discharge for a third offense. AR 268.

Discipline for an implied threat or threatening behavior that is intimidating or of sufficient gravity to cause fear that is directed at or about any employee ranges from a 15-30-day suspension to discharge for a first offense and discharge for the second offense. AR 270.

As of January 2012, the discipline for providing false information during an administrative investigation ranges from a 1-15 day suspension to discharge. AR 255 (Department Notice No. 1664). The discipline for misuse or falsification of sick time or submission of falsified or altered medical statements ranged from 30-day suspension to discharge. Id.

The first instance of providing any false or misleading information to the court carries a discipline of a 15-day suspension. AR 257.

In 1995, Carter received a diploma in neuropsychology from the American Board of Forensic Examiners. AR 175. She became a board-certified forensic examiner and received a diploma from the American Board of Forensic Examiners in 1996. AR 171-72. In 1998, Carter earned a PhD in philosophy with a major in clinical psychology from Walden University. AR 167, 373-376.

Sometime before her employment with the Department, Carter was the Chief Probation Officer in Gila County, Arizona. AR 159-60. A 2003 certificate shows that Carter attended 60 hours of Committee on Probation education courses in Arizona. AR 165. In 2004, Carter passed the firearms training necessary to be armed within the Arizona Probation System. AR 163-64. In 2005, Carter completed eight hours of continuing education on preparation and response to school shootings. AR 166.

In 2011, the Department conducted a background check and recommended Carter’s approval for hire. AR 312. The background check included Carter’s personal statement of her education history, residencies, and employment history. AR 315, 320-21, 324-25.

In October 2011, the Department announced Carter’s appointment as a Bureau Chief. AR 157. She was sworn in and received a badge number and ID as a “Peace Officer” with the Department. AR 159.

From 2011 until 2013, Carter was the Bureau Chief responsible for Juvenile Field Services. AR 1707-08. From 2013 to November 2014, she was the Bureau Chief for Juveniles and Adults in the Third District. AR 1708. From November 2014 to February 2018, she was the Bureau Chief of the Quality Assurance Services Bureau. AR 1708. Carter had two directors underneath her: a civilian director who supervised the contract managers and a director of probation officers and line staff. AR 1716.

In February 2018, Carter was transferred to Bureau Chief for the Staff Training Bureau. AR 1716. The Chief of Probation at that time was Terry McDonald (“McDonald”). AR 1716. Carter’s job was to assess and establish that the Training Bureau met state and County probation standards. AR 1717. She also was in charge of training probation and firearms officers. AR 1717. Walter Mann (“Mann”) was the only director she supervised at the Staff Training Bureau. AR 1716-17.

Carter’s Annual Performance Appraisals from 2016 to 2018 show that her performance was average or above average in almost every category. AR 178-209, 414-45. The Performance Appraisal from 2017-2018 shows that she did not meet every milestone but did contribute significantly to achieving it. AR 180-82. It also gave her a Pass rating for Professional Credibility, including whether Carter had provided false or misleading information. AR 179. The summary comments stated that, while Carter’s interactions were usually professional and collegial, they occasionally did not reflect the appropriate level of discretion and professional communication expected of an executive at her level. AR 187. Chief of Staff Tiana Murillo (“Murillo”) signed the Performance Appraisal as Department Head/Designee. AR 188.

On March 17, 2014, Carter attended a meeting with field directors at the Veteran’s Memorial Complex. AR 298. During the meeting, Carter made a statement to the effect of “My grandfather was one of the original wetbacks.” AR 298. The comment brought a noticeable hush in the meeting and caused an awkward silence to settle in. AR 298. Someone filed an anonymous complaint the next day. AR 298. Carter later said that she made the comment because she is Irish and it was Saint Patrick’s Day. AR 298.

On October 28, 2014, the Department issued Carter a letter of reprimand that her comments on March 17, 2014 were inappropriate conduct toward others based on national origin, discourtesy with fellow employees, and poor judgment. AR 298.

On May 10, 2018, Brian Call (“Call”) filed a Security Incident Report for May 8, 2018. AR 279. The report stated that Carter held a meeting with the training staff where she denied that she disclosed anyone’s personal information. AR 279-80. She then said that no one would pry all that information from her. AR 279. Even if she died, someone would have to pry it away from her dead hand along with her gun. AR 279.

On May 7, 2018, Carter was subpoenaed to testify at the May 10, 2018 disciplinary hearing of Department employee Rose Aguilar (“Aguilar”). AR 155-56. She marked on her calendar that she would be at the Hall of Administration for this hearing from May 9 to 10, 2018. AR 274-76.

Screenshots from the phone of the Department’s counsel, Janine McMillion, Esq. (“McMillion”), show a text to Carter on May 10, 2018 at 12:13 p.m. that she would not needed that day. AR 1066. At 1:19 p.m., McMillion added that there was no need for anyone that day. AR 1066. Carter replied “Just let me know” at 3:09 p.m. AR 1067.

Carter eventually testified at Aguilar’s hearing on June 4, 2018. She testified about the results of polygraphs administered to Aguilar. AR 536-38.[2] She recommended that Aguilar receive only educational discipline. AR 627.

Carter also testified to her credentials. Carter testified that she holds a bachelor’s degree in Kinesiology and Education, a master's degree in Police Science, a master’s degree in Public Administration, and a PhD in Clinical Psychology and Forensics. AR 619.

She testified that she had 43 years of experience in probation or community corrections. AR 619. She spent 28 years as Assistant Chief of the Maricopa County Probation Department, Juvenile. AR 619. She then was Chief Probation Officer in Gila County, Arizona. AR 619. She then spent four years revamping Arizona’s Department of Corrections and subsequently had her own forensic company before she moved to Los Angeles County. AR 619.

On cross-examination, Carter testified that she is a peace officer under the Penal Code has a POST certification from Arizona but California would not honor it. AR 627. She has a POST certification in California as well. AR 627. She admitted that she never took any polygraph certification courses. AR 627.

On May 11, 2018, the Department’s Professional Standard Bureau interviewed several officers as part of its investigation into Carter’s May 8, 2018 statement. Pertinent statements are as follows.

Call (“Call”) is a Supervising Deputy Probation Officer at the Probation Training Center (“PTC”). AR 698.

There was a May 8, 2018 meeting was for all Probation Training Center staff. AR 699. Someone had raised the issue that someone was taking pictures of meeting rosters with everyone’s contact information in the last meeting. AR 699. Carter assured staff that did not happen and that no one would get the contact information from her because they would have to pry her cell phone from her cold dead hand. AR 699. She compared her cell phone to her firearm as to how tightly she would grip it. AR 699-700. This did not seem threatening to Call; it was just an analogy. AR 700.

Carter said that she had moved to Orange County so that she could have a concealed weapon (“CCW”) permit and carry a firearm on her because she is having problems with a stalker. AR 701. Call heard Carter say that she always has a firearm on her. AR 702.

Call talked to his director about Carter’s statement because Department policy only allows armed deputies to carry firearms, and only if their badge says they can. AR 703.[3]

Kimberly Wells (“Wells”) has been a Supervising Deputy Probation Officer since April 2016. AR 709.

Carter mentioned something about her gun when she said on May 8, 2018 that someone would have to pry the contact information out of her cold, dead hands. AR 712. Wells does not remember the exact language. AR 712. She took it to mean that someone would have to get through Carter to get the information. AR 712.

Laura Hernandez (“Hernandez”) is a Senior Typist Clerk. AR 719. On May 8, 2018, Carter said no one has access to her cell phone. AR 724. Someone would have to pry it out of her hand just like they would if it was her gun. AR 724.

On May 31, 2018, Carter sent an email instructing subordinate Howard Wong (“Wong”) to remove vests and weapons from the Training Academy. AR 289. She said red guns should be sufficient, and that live weapons should be used only on the shooting range under the direction of a range master and there are no range masters qualified to use live weapons “on the PTC”. AR 289. Wong replied that he had no issue with returning the pistols to the armory, which was the only equipment loaned out to the Staff Training Bureau. AR 290.

Deputy Director Jim Green (“Green”) told Mann that he did not see the need for a back and forth and directed Mann to comply with Carter’s directions to surrender the weapons to Wong. AR 291.

In November 2018 thereafter, the Internal Affairs Bureau (“IAB”) conducted additional interviews to investigate Carter’s alleged violations of Department policy. AR 761. Pertinent statements are as follows.

When Chief McDonald first joined the Department, she performed a background check on all management. AR 762. She had heard outlandish stories about Carter. AR 762. Carter has said that she was a coroner, was in the military, has shot and killed people, and that she had been around bombing incidents. AR 762. Carter never gave quality reports, and she was not functioning well at the bureau chief level in work product and decision-making. AR 762. As a result, they moved her to the Staff Training Bureau. AR 762. Shortly after her move, she demonstrated to McDonald that she lacked the judgment and maturity to guide the Staff Training Bureau. AR 762.

Chief of Staff Murillo stated that Carter’s outlandish stories never felt like sarcasm. AR 868. They felt more like historical background to whatever story she told. AR 868. For example, during the discussion of a case, Carter interjected that she has not been able to hear out of one ear since she lost 70% hearing in a bomb blast in Afghanistan. AR 868.

Murillo has never seen anyone question Carter’s stories. AR 868. Some of the stories inherently cannot be true, and they created a sense of discomfort. AR 868. For example, she once said she was a qualified medical examiner, which requires a medical degree. AR 868. She also asserted she was starting law school at Pepperdine. AR 868. Those credentials cannot both be true because Carter also says she has a PhD. AR 868.

Carter does not know who McMillion is. AR 981. She was shown text messages from McMillion to her (Carter’s) phone. AR 981. Carter acknowledged the text messages but did not remember the woman’s name was McMillion. AR 981. Carter said that if her interviewer said the texts were from McMillion, she believed they were. AR 982. In the text messages, Carter asked what the plan was for the afternoon of May 10, 2018. AR 982. Upon clarification, Carter explained that the message “we will be in touch in regards to third day. You are not needed today. Thank you” was from McMillion. AR 982. Carter responded to the first text “Roger that” and asked about two other witnesses who would testify. AR 982.

Carter subsequently spoke to Murillo on the phone, who asked if she was coming back to the office from the Training Center. AR 989. Carter said that she was and would be in about 2:30 p.m. AR 989. To her recollection, Murillo did not ask Carter her whereabouts that day. AR 989.

Carter returned from the Training Center and checked in with Murillo. AR 990. The interviewer informed Carter that Murillo said that at 1:00 p.m. she asked Carter where she had been all morning and that Carter told Murillo that she had been in court on Aguilar’s case. AR 990. Carter remembered speaking to Murillo but did not remember that Murillo asked where she had been. Rather, Murillo said she received an anonymous call that Carter had a gun in her car. AR 991. Carter said that was not true and that Murillo, IA, or Security could search her vehicle. AR 991.

Carter based her peace officer status on her employment in Arizona. AR 1005. The interviewer asked if Carter had any documentation of her peace officer/probation officer status in Arizona. AR 1005. She admitted that she did not and explained that Arizona folds POST into another program, ALEA. AR 1006. She had documentation that showed she took a firearms course, but not that she was a sworn officer in Arizona. AR 1007. Aside from the firearms course, Carter had proof she completed a six-hour manager’s forum and 40 hours of POST-certified classes in Los Angeles County. AR 1007. Carter did not provide anything to the Department showing her peace officer status or certification in Arizona, which she stated that she had tried but was unable to obtain from the Supreme Court. AR 1008.

The interviewer stated that her documentation showed that Carter attended firearms training and arrest and control, but it does not show that Carter was a peace officer in Arizona. AR 1007. Carter replied that she was sworn in and given her California badge and ID card, which identified her as a peace officer. AR 1007.

Carter has told people she has worked as a coroner’s assistant. AR 1041. She has done a stint with a coroner’s office through forensic medical examining programs in 1978 and 1979. AR 1041-42. She is certified as a forensic medical examiner. AR 1042. She was never employed as a coroner or a coroner’s assistant, and she never said that she was. AR 1042.

On January 23, 2019, Sgt. Amber Veatch (“Veatch”) asked Walden University to confirm the authenticity of the transcripts Carter had provided. AR 470-71. Student Records told the Department to either contact the Canter partner school that Carter attended or have her request an official transcript to be sent directly to the Department. AR 470. When the Department asked if Carter had a PhD, Student Records again said to contact the Canter partner school. AR 470. Although the transcript says “Walden University,” it is a Canter partner school. AR 469. The Department would have to get information on any classes listed on the transcript as Canter courses. AR 469.[4]

The Department issued an Investigative Summary which addressed (1) Carter’s comments during a May 8, 2018 Training Bureau meeting that someone would have to pry the emergency contact list from her cold dead hand just like her gun, and that she carried her gun at all times; (2) Carter’s assertion on May 10, 2018 that she was in court all morning after she was advised she was not needed; (3) her May 31, 2018 order to remove firearms from the training facility; and (4) her June 4, 2018 testimony at Aguilar’s disciplinary hearing. AR 679-80.[5]

On April 10, 2018 Witness Gloria Barnes (“Barnes”) sent Mann an email asserting that an employee has taken pictures of the private emergency contact list that everyone had signed. AR 683. Barnes had not witnessed this personally, but a phone call later informed her that two colleagues saw it happen. AR 683.

Most of the May 8, 2018 attendees did not find the statements in question unprofessional. AR 682-91. Some, like Call, found them unprofessional but not threatening. AR 681.[6]

On April 5, 2019, the Department issued a Notice of Intent to Discharge to Carter. AR 3, 231.

On June 3, 2019, the Department issued a Notice of Discharge, effective that day[7]. AR 3, 231. The charges against Carter were for her failure to exercise sound judgment, violation of Department or externally-recognized code of ethics, abuse of supervisory or management authority or conduct unbecoming a position of authority, unauthorized or improper use or disclosure of confidential information, failure to follow established rules and regulations, unauthorized or unscheduled absences, shirking of work or failing to perform a full day’s work, inaccurate or material submission of false time cards, providing false information in the course of an administrative investigation, falsification of application or material omission of information for employment, failure to cooperate in an administrative investigation, and discourtesy with fellow employees. AR 3-4, 231-32.

The Notice of Discharge divided the factual summary by incident and relevant interviews. The incidents at issue included Carter’s discriminatory comments made during a May 7, 2018 training meeting (AR 5-6), comments during the May 8, 2018 staff meeting about how someone would have to pry the emergency contact list from her cold dead hands like her gun (AR 7-10), absence from the office on May 10, 2018 after she learned she did not need to appear in court that day (AR 10-12), May 31, 2018 email to Mann demanding the removal or firearms from the training academy (AR 12), misrepresentations about her credentials during her June 4, 2018 testimony at the Aguilar hearing (AR 13-14); and general tendency to make false assertions about her past (AR 16-17).

On June 12, 2019, Hon. Maurice Portley, Ret. submitted a letter where he called Carter one of the finest persons he has known, whose word is her bond and her ethics beyond reproach. AR 176. Carter and the judge would go anywhere and talk to anyone in Maricopa County to make a difference to help children and their communities. AR 177.

The Department’s pre-hearing statement identified its witnesses as Murillo, Mann, IA Sergeant Veatch (later “Mullings”), and Admin Deputy Robert Smythe (“Smythe”). AR 43.

Carter’s hearing occurred between 2020 and 2021. AR 1112. Pertinent testimony is as follows.

Murillo started with the County Counsel’s Office in 2014. AR 1121. She advised the Department for a year and a few months before reassignment to the jails. AR 1121.

The Chief Probation Officer is the highest ranking official in the Department. AR 1122. Murillo was the Chief of Staff Deputy Director when McDonald was Chief Probation Officer. AR 1127. Compared to the previous Chief Probation Officer, McDonald was open with her staff that she did not tolerate dishonesty in investigations, lack of cooperation in investigations, or a code of silence between officers to protect each other from discipline. AR 1140-41. McDonald gave Murillo that message many times. AR 1142.

In April 2018, Mann emailed Murillo that an employee at the Staff Training Bureau had complained because Carter had requested everyone’s contact information. AR 1171-72. Carter called the complainant a liar in an email to the Supervising Deputy Probation Officer union president. AR 1173.[8]

Mann later reported comments Carter made to Staff Training Bureau staff about a gun. AR 1179. The Chief Probation Officer generally decides who can have a gun at work, and only a few units in the Department receive that authorization. AR 1179. Mann alleged that Carter had a gun on her at all times. AR 1179.

Murillo did not know if the allegation was true, but she felt the need to remind Carter to keep any gun she may have in her gun locker while at work. AR 1179. Carter denied that she ever has carried, or will carry, a gun at work. AR 1179. Murillo explained it was just a reminder either way. AR 1179-80. Carter invited Murillo to search her car. AR 1180. Murillo chose not to conduct a search because it was not her role and she would not know how to do it. AR 1180. She decided to let IA handle any investigation. AR 1180.

Murillo had tried to have the conversation with Carter about the gun-carrying allegation several times earlier on that day of May 10, 2018. AR 1180-81, 1183-84. Carter was not in her office, and her secretary said she was at a hearing for Aguilar’s termination. AR 1181, 1183-84. Murillo emailed Carter to ask when she would be back. AR 1181. Carter replied: “Later.” AR 1181.

Murillo and Carter set a time to talk later that afternoon, and they spoke at 5:00 p.m. AR 1181. As small talk, Murillo asked about the Aguilar hearing. AR 1183. Carter replied that she did not know whether she would be called to testify or not, and she waited in the garage for an hour for someone to call her upstairs. AR 1185.

After her meeting with Carter, Murillo reached out to McMillion, who said that Carter was not present at the Aguilar hearing that day. AR 1191, 1202. McMillion had texted Carter to say she was not needed that day. AR 1202-03.

Carter has told Murillo that she was an Olympic swimmer the year the United States did not send a swim team to the Olympics. AR 1197. She has also said that she was an acrobatic pilot, she lost 70% of her hearing to a bomb in Afghanistan, she was a qualified medical examiner who once worked for an Arizona coroner, she was pursuing a law degree from Pepperdine Law School, she has a doctorate in criminal neurology, and she is a neurologist. AR 1197.

Mann normally reports to Carter, who reports to Efrain Munoz, who reports to Murillo. AR 1229. Murillo does not know why Mann reported his concerns about Carter directly to her. AR 1229. When he did so in April 2018, Murillo told him to work through the chain. AR 1229-1230. When he did it again in May, she did not admonish him but did ask Efrain Munoz to follow up. AR 1230.

Mann does not remember whether Carter ever represented herself as a sworn officer and his sources never told him whether she was one. AR 1289-90.

On or around August 10, 2018, Mann emailed Murillo because he was concerned about statements Carter made during a meeting. AR 1291-92. Carter was Mann’s direct supervisor, and Mann believed Murillo was Carter’s supervisor. AR 1292.

Anita Almada (“Almada”) – and also Hernandez and Barnes -- had approached Mann about Carter’s comment during the April 2018 staff meeting, which Mann had not attended. AR 1293-96. Carter had asked the 10-20 staff members to write down contact information on a piece of paper. AR 1294, 1298. One staff member -- whom Almada thought was unstable -- had then taken a picture of the paper on his phone when he thought Carter was not looking. AR 1295.

At a May 8, 2018 meeting, Mann spoke to Carter. AR 1297. At the meeting in front of 10-20 people, Carter said she did not disclose anyone’s personal information, which was on her phone. AR 1298. Someone would have to pry it from her dead hand like they would her firearm. AR 1299. She then said she never goes anywhere without her firearm. AR 1299. She moved from Los Angeles County to Orange County to obtain a CCW permit. AR 1299. She mentioned that she once woke up to find two stalkers in her house. AR 1299.

Carter’s comments shocked Mann. AR 1300. He saw Almada put her head down, visibly shaken. AR 1302. Call shook his head, smiled, and looked up and down. AR 1302. Almada later told Mann that she was afraid for her life, particularly as she knew another staff member took a picture of the contact sheet. AR 1303. Barnes and Hernandez expressed concern that Carter always carries a gun. AR 1303.

Call completed a security incident report about Carter’s comments. AR 1307. Call reminded Mann that a security incident report was necessary because Carter’s statements were about having a firearm at all times. AR 1308-09. Call’s report did not include the comment Carter made about two stalkers, and Mann never asked him why. AR 1315-16.

Mann did not remember sending Murillo him an email the month before his August 19, 2018 email about the May 8, 2018 comments. AR 1317. He did not recall Murillo telling him to follow the chain of command. AR 1318. He recalls that he shared the complaints via telephone or in person with his direct supervisor at the time, Smythe, before he told Murillo. AR 1322-23. In this way, he followed the chain of command, albeit not in writing. AR 1325-26. He did not tell Murillo he had already talked to Smythe. AR 1323-24. He previously had shared other incidents with Chief McDonald, who had then shared them with Murillo. AR 1324-25.

The degrees and courses on Carter’s transcript do not match how she described them. AR 1358. The MBA was an obvious example, and the Cantor school and forensics degree documentation was really a certificate that you get after mailing some sort of qualifying material to an organization. AR 1358.

This reflects a level of dishonesty and impacts Carter’s credibility when she testifies for civil service hearings. AR 1358. Credentials like degrees in forensics and kinesiology can add credibility and hurt credibility if plaintiff’s counsel digs into the witness’s background and finds the credentials to be false. AR 1358-59.

Mullings is a detective sergeant for the Los Angeles County Sheriff’s Department (“LASD”). AR 1418. Mullings had no formal training in background investigation from the Department or LASD. AR 1588.

On its face, it looked like an investigator had performed the necessary checks to clear Carter’s employment application. AR 1586-87. A Human Resources employee verified that investigator’s work. AR 1587. However, McDonald and Murillo had concerns that the Department was under turmoil and investigation for its background of hiring practices, and they questioned whether Carter’s background check was sufficiently thorough. AR 1557-58.

When Mullings tried to contact Doreen Heintzelman, the Human Resources Division employee who certified Carter’s background check, McDonald revealed that she had replaced the entire staff that was in place in 2011 due to allegations of misconduct. AR 1570-72. Mullings did not check to see if this was true. AR 1572.

Based on Mullings’ review, when the Department investigator cleared Carter for hire in 2011, it looked like he just did a DMV and criminal background check. AR 1551. To be hired as a Bureau Chief, Carter needed to demonstrate a certain educational background. AR 1552-53. Mullings does not believe that the investigator followed up to confirm that she met those requirements. AR 1553. On its face, the file says Carter has three degrees. AR 1554. Mullings confirmed she had a bachelor’s degree, a master’s degree, and a PhD. AR 1554-55, 1582. The submitted transcripts seemed authentic. AR 1573, 1582.

Carter believed that she had a forensic expertise background because of various certificates. AR 1580. She provided a few to Mullings, but none said “forensics.” AR 1580. Carter represented that her bachelor’s degree was in kinesiology, but it says “physical education” on the degree. AR 1581. Her transcript showed one kinesiology class in which Carter had a D. AR 1581. Mullings researched Goggle for the requirements for each degree. AR 1581. She also visited the website of Mullings’s alma mater for her bachelor’s degree, Arizona State University, which did not have issue kinesiology degrees. AR 1582. Mullings does not know when the term “kinesiology” came into use for a degree. AR 1583.

Carter mentioned that she had won several awards concerning boats and cars and prizes for the Pro Bass Circuit. AR 1483. Smyth went on the Pro Bass Circuit website and was unable to locate Carter’s name as a previous winner. AR 1483. Symth researched online for the full rosters of the 1980s Olympic swimmers and was unable to find Carter’s name on the lists. AR 1484. Mullings cannot confirm if the lists were from the U.S. Olympic Committee site. AR 1603-04. Carter said that she was in Afghanistan for approximately 30 days doing freelance work to help with juveniles who might be considered terrorists. AR 1484. She was in a convoy and there was a roadside bomb that went off and she lost her hearing. AR 1549.

When Mullings called Human Resources for the Arizona Corrections Department, it could not confirm her employment. AR 1594-95. Either their records did not go back far enough, or whatever position she held was not documented. AR 1595.

Mullings contacted William Caldwell, an Arizona POST employee. AR 1597. He could not find any record of Carter’s appointment as a peace officer in Arizona. AR 1598. Mullings noted that Arizona POST has nothing to do with the certification or training probation officers receive in Arizona. AR 1599.

Mullings spoke to Judge Peter Cahill, who was the Gila County Chief of Probation. AR 1563. He confirmed that Carter was the Chief Probation Officer for the period she had identified. AR 1563. He did not describe the job’s requirements. AR 1563.

Mullings’ review used different databases, the Internet, e-mails, and phone calls. AR 1588. Internet resources included the LinkedIn account, the Arizona and California POST contact information, contact information for all relevant universities, and the websites for the Pro Bass Circuit and U.S. Olympics. AR 1602-03. Mullings also had to use Google to find out what year the United States did not send an Olympic team. AR 1603.

Mullings knew that at one point Murillo advised Carter not to bring any firearms to work without McDonald’s permission. AR 1623. Mullings investigated whether Carter ever possessed a firearm on County property and found no evidence of it. AR 1623-24.

Mullings also investigated whether Carter had the discretion or authority to remove guns from the Training Center as she directed. AR 1626. Green and Wong confirmed that she did. AR 1626. One of them told Mann via email to comply with Carter’s order. AR 1626-27.

Bonnie Lane, Esq. (“Lane”) represented Aguilar at her disciplinary hearing. AR 1669. Lane subpoenaed Carter, who was the Skelly officer. AR 1669. Carter was required to appear on May 9 and 10, 2018, with the Skelly officer report. AR 1669. A motion to quash the subpoena was denied. AR 1670.

Lane assumed that she would reach Aguilar’s case on May 10, but one of the witnesses has to leave at noon that day. AR 1671. During the lunch break, Lane called or texted Carter to tell her that she was not needed that day. AR 1671. Lane confirmed Carter’s availability for the next hearing date, June 4, 2018. AR 1672.

Andrea Gordon (“Gordon”) was a County employee from the 1970s until her retirement, and she worked for the Department beginning April 1990. AR 1685.

Gordon would not object to a Bureau Chief’s request for employee contact information. AR 1701-02. When she worked for the County, she once had to confirm her staff’s location and if any of them had an emergency. AR 1702. She did not have their contact information and was unable to participate in the drill as much as she should have. AR 1702-03.

When she was hired by the Department, she had to fill out an extensive questionnaire, appear at the Downey office, and meet with an investigator to review every question on the application. AR 1719-20.

Carter received a POST number in California, and she believed it shows that she fulfilled the necessary requirements for POST certification. AR 1812.

Carter admitted that she said in March 2014 that her grandfather was “one of the original wetbacks.” AR 1792. She had told the story in other venues in relation to the Irish coming to America, and she thought she gave enough context this time too. AR 1793. She thought everyone present was an adult who could understand why she used an offensive word. AR 1793.

On May 8, 2018, the Tuesday before May 10, Carter commented at a staff meeting that someone would have to pry the contact list out of her cold dead hands, like Charlton Heston said. AR 1781-82, 1784-85. She never compared the list to prying away her gun, said that she always carries her gun, or told anyone in the Department that she did. AR 1783, 1786. She also never said that she moved from Los Angeles to Orange County to get a CCW permit. AR 1786.

On May 9, 2018, Carter testified at Aguilar’s disciplinary hearing for an hour. AR 1743. At 8:00 a.m. on May 10, 2018, Carter arrived at the STC. AR 1738. She stayed until 11:45 a.m. before she went downtown to go to Aguilar’s hearing. AR 1738-39. She parked in the County building’s holding area at 12:20 p.m. because Lane told her that she was not sure if she (Carter) would be called. AR 1738-39, 1742.

Carter texted Lane, not McMillion, that she was waiting. AR 1742-43. Carter does not know if she ever texted McMillion. AR 1743. Lane informed Carter over the phone 15-20 minutes later that she was not needed that day. AR 1742. Carter was going back to the STC but stopped at the nearby Burger King for lunch. AR 1750. When she was on her way back to the STC, at 2:30 or 3:00 p.m., Murillo phoned Carter to ask when she would return to Downey headquarters. AR 1750-51. Carter said that she was on her way to the STC but could come to Downey if necessary. AR 1751. She arrived at Downey at 3:45 p.m. and stayed until 6:30 p.m. AR 1751.

During that period, Carter met with Murillo and told her she never carried a firearm in County buildings. AR 1737. Murillo said that Carter’s calendar said she would be at Aguilar’s hearing all day. AR 1751. Carter said she told her secretary she was going to be off-campus, first at the STC and then Aguilar’s hearing if needed. AR 1751-52.

Carter now knows she did not accurately testify about her education during Aguilar’s hearing. AR 1822. Her master’s degree is in public administration and not a Masters of Business Administration (“MBA”). AR 1823. She was not trying to suggest that she had both. AR 1823. When she said she had a PhD in clinical psychology and forensics, she should have said a PhD in Clinical psychology and a certification in forensics. AR 1823. She did not intend to say she had a PhD in forensics. AR 1823. She has one bachelor’s degree, not two. AR 1829. She believed her bachelor’s degree is in kinesiology like she testified, but she later learned it was in physical education. AR 1828.

Carter testified about the polygraph at Aguilar’s hearing based on her experience with polygraphs. AR 1823-24. She testified that she is not an expert. AR 1825. She did not write a thesis on polygraphs for her master’s degree. AR 1824. Rather, she co-wrote a report on them with a County attorney. AR 1824.

If she had misrepresented her education or experience with malicious intent, she would agree that it would pose a concern for her position as a Bureau Chief. AR 1829-30.

On October 7, 2021, the hearing officer issued a report recommending that the Commission overturn Carter’s discharge and that the Department issue a written reprimand. AR 81-105.

The proposed decision divided the 80 paragraphs of alleged wrongdoing in the Notice of Discharge into seven categories. AR 83-84.

The hearing officer discussed background facts and witness credibility. The facts suggest that Mann collaborated with Murillo and other upper management to end Carter’s career. AR 93.

Carter’s subordinate, Mann, had worked to undermine Carter ever since she became Bureau Chief of the Staff Training Bureau. AR 85. All the allegations against Carter are from the April, May, and June 2018 period immediately after Carter’s appointment to Staff Training Bureau, and Mann was behind many of them. AR 85. He was not even at the April 10, 2018 meeting where Carter instructed employees to disclose their emergency contact information. AR 85.

Mann’s testimony was not credible. AR 93. He testified remotely with a virtual background and there was a poor connection. AR 93. At one point, the virtual background failed, and the image showed that Mann was in a moving vehicle. AR 93. When asked whether he was driving, Mann answered “no” and did not disclose that he was in a moving automobile’s passenger seat. AR 93. He misled the hearing officer. AR 94.

Mann’s testimony also was demonstrably false. AR 94. He testified that he emailed Murillo to complain about the April 10, 2018 incident because he thought Murillo was Carter’s direct supervisor. AR 94. Mann is a 30-year Department employee and an expert in political maneuvering within the Department. AR 94. He had to know that Smythe was Carter’s direct supervisor. AR 94. He also likely knew that both Murillo and McDonald disliked Carter, and that Murillo would act on his allegations whereas Smythe would not. AR 94.

Sgt. Mullings was a part of this bandwagon. AR 95. As the LASD investigator assigned to this case, she tilted the investigation to favor termination. AR 95. For example, Murillo told Mullins in her interview that Carter told her on May 10, 2018 that she waited to testify in the garage for an hour. AR 95. Yet, Mullings’s investigative summary said Carter complained about waiting around all morning. AR 95-96. This false accusation then appeared in the Notice of Discharge. AR 96. There were other falsities in Mullins’ report and Notice of Discharge. AR 96.

McDonald considers Carter an ineffective manager, but the Department cannot use the disciplinary mechanism to rid itself of a poorly performing manager. AR 94-95. According to Smythe’s testimony, he had no personal knowledge whether the allegations in the Notice of Discharge were true and someone else prepared it for his signature. AR 95.

Finding 3: Because Mann did not like Carter, he tried to remove her as his supervisor through a series of complaints. AR 99. Because the Department’s upper management viewed Carter unfavorably, they found the allegations credible and investigated further. AR 99.

b. Allegation 1: On May 7, 2018, Carter made discriminatory comments at a Department meeting about males being stronger and more qualified as probation officers. AR 84.

Finding 4: The Department offered no evidence to support the allegation of improper comments on May 7, 2018 and the allegation was unproven.

c. Allegation 2: On April 10, 2018, Carter asked her subordinates to list their emergency contact information on a paper before an unstable employee photographed it. AR 84.

Mann was not at the April 10, 2018 meeting where Carter instructed employees to disclose their emergency contact information. AR 85. Two employees reported the incident to Call, who reported it to Barnes, who then reported it to Mann. AR 86. Despite the fact that he was not present on April 10, Mann testified to this triple hearsay. AR 86.

Chief Probation Officer McDonald said in his interview that collecting the emergency contact information was not unreasonable. AR 86. The Department failed to prove any wrongdoing at the April 10, 2018 staff meeting. AR 86.[9]

d. Allegation 3: When questioned at a May 8, 2018 staff meeting about the emergency contact information obtained on April 10, Carter stated that she carries a firearm at all times. AR 84. Subordinates interpreted this statement to mean that she carries a firearm on County property and during work hours. AR 84.

It is undisputed that Carter addressed the subject of the contact information obtained at the April 10 staff meeting, that she said that she kept the contact information list on her phone, and that it would never be disclosed to anyone. AR 86.

Mann testified that Carter said that her home was broken into, she had stalkers, she keeps a gun in every room of her house and always carries one, and she moved from Los Angeles County to Orange County to obtain a CCW permit. AR 86-87.

Carter denied that anyone was able to photograph the list and told staff that she destroyed the original paper list. AR 86. Carter testified that she did not recall commenting on guns at the May 8 meeting. She denied that she ever carried a gun on County property. AR 87.

Call did not testify, but he stated in his interview that Carter had made comments expressing her enthusiasm for firearms at least three times before. AR 87. Call also said that he had never seen Carter with a gun, she never told him that she was carrying a gun, and he never heard from any source that she was carrying a gun on County property. AR 87.

The Department’s position is that Carter either carried a gun on County property without authorization or lied when she said she did. AR 87. Either way, the Department alleged serious misconduct. AR 87.

Finding 7: Mann was the only witness who testified whether Carter said that she always carries her firearm with her. AR 100. He was biased and not credible, and his testimony was not sufficient to carry the Department's burden of proof. AR 100.

e. Allegation 4: On May 10, 2018 Carter shirked her job duties and lied about her whereabouts that day and was accused of carrying a gun on County premises. AR 84.

Mann emailed Chief of Staff Murillo and expressed alarm that Carter said that she “always carries her firearm”, creating an inference that she carries a gun on County property or while on duty. AR 87. Murillo looked for Carter to speak with her about Mann’s accusation. AR 87. Carter’s calendar showed her as booked all day for Aguilar’s disciplinary hearing, so Murillo called Carter and said she wanted to speak with her. AR 87-88. When Carter returned to the office around 3:30 p.m., Murillo was busy attending a staff retirement party. AR 88. At 5:00 p.m., Murillo talked to Carter and asked how Agular’s hearing went. AR 88. Murillo testified that Carter looked flustered and uncomfortable. AR 88. Carter said she waited one hour but did not testify. AR 88. Murillo found that strange and made a note to investigate that later. AR 88.

Murillo then told Carter about the allegations that she kept a firearm either on her or in her car. AR 88. Carter insisted that she never did so and knew she was not authorized to carry a firearm. AR 88. Murillo immediately removed Carter from her post as Bureau Chief of the Training Bureau, forbade Carter from setting foot in the Training Bureau, and referred to matter to IA . AR 88.

When Murillo asked McMillion, the Department’s counsel at the Aguilar’s hearing, she said Carter did not testify on May 10, 2018. AR 88. Carter had been released that day at around 12:15 p.m. AR 89. The Department alleges Carter lied about waiting in the parking lot for one hour and did not testify. AR 89. The Notice of Discharge accuses Carter of saying she spent all morning or all day at the hearing. AR 89. According to the Notice, she lied to Murillo and shirked her job duties. AR 89.

Findings 8-18: Prior to the May 10, 2018 staff meeting, Carter made various statements that she embraced firearms. AR 100. There was no evidence that Carter ever carried or possessed a firearm on County property, and she never suggested or implied that she did. AR 101. On May 10, Murillo questioned Carter about whether she carried a firearm in person or in her car. AR 101. Carter emphatically denied so and asked Murillo to have her car searched. AR 101. Murillo did not do so. AR 1001.

Carter never told Murillo that she was in court all morning or all day on May 10, 2018. AR 102. The Department did not provide any evidence to show that she lied to Murillo or improperly neglected her duties while under subpoena for potential testimony. AR 102-03. Murillo generally testified credibly, and she passed along her suspicions that Carter was not being honest regarding her location on May 10, 2018. AR 102. Sgt. Mullings failed to properly investigate and document Carter’s whereabouts on May 10, and made a false statement that Carter told Murillo that she waited all morning in the courthouse parking structure. AR 102. There was no evidence that Carter lied to Murillo on May 10 and no evidence that she neglected her duties while under subpoena to testify on that date. AR 102-03.

f. Allegation 5: On May 31, 2018, Carter lied to a subordinate that Deputy Director Howard Wong (“Wong”) had ordered changes to the use of firearms at the training academy. AR 84.

Wong did not testify, and the Department presented no evidence on this issue. AR 89. The Department’s closing brief did not argue the issue and the Department abandoned this allegation. AR 89.

Finding 19-20: The Notice of Discharge alleged that on or about May 31, 2018, Cater lied to Mann in stating that Wong ordered the removal of certain firearms used in training. The Department failed to offer evidence on this issue and the allegation was unproven. AR 103.

g. Allegation 6: On June 4, 2018, Carter lied under oath at Aguilar’s disciplinary hearing about her academic and law enforcement credentials. AR 84.

The transcript from the Aguilar disciplinary hearing shows that Carter testified that she holds a bachelor's degree in kinesiology and education, a master’s degree in police science and “an MBA, and also in Public Administration[,]” and a PhD in clinical psychology and forensics. AR 90.

Carter’s school transcripts show that she has a bachelor of arts in education with a major in physical education. AR 90. She has a master of science degree with a major in police science and administration. She has a doctor of philosophy with a major in clinical psychology. AR 90.

Thus, Carter does not have a bachelor's degree in kinesiology. AR 90. Because kinesiology is the study of the human body’s movement, her testimony was close, but not exact, because of her degree in physical education. AR 90-91.

While Carter misstated her master of science degrees, she does possess a master of science degree with a major in police science and administration. AR 91. She does not possess a MBA. AR 91. Carter holds a PhD in clinical psychology but not forensics. AR 91. Carter testified that she holds a certificate for a course in forensics but agreed that she misstated her actual degree. AR 91.

The Department also alleged that Carter misstated her academic credentials in an online promotion application. AR 91. There was no evidence to support that allegation and the Department seems to have abandoned it. AR 91.

Findings 21-26: Carter’s description of her academic degrees and credentials at the Aguilar hearing was not entirely accurate. AR 103. She holds a bachelor of arts in education with a major in physical education, not kinesiology. AR 104. She has a master of science degree with a major in police science and administration and does not have a MBA. AR 104-05. She has a PhD with a major in clinical psychology, not in forensics. AR 104. Carter’s inaccurate description arose from insecurity, immaturity and carelessness, not an intent to deceive. AR 104. The errors were relatively minor and caused no harm, but they were improper and require correction. AR 104.

Carter is a sworn peace officer under California law, and she has completed at least one component of POST training. AR 104. In that sense, she is a POST-certified peace officer. Carter is not a police officer and not authorized to carry a firearm. AR 104. There is no evidence that Carter misstated her academic credentials in making a 2016 online application for promotion. AR 104.

h. Allegation 7: Carter told tall tales about her life experiences. AR 85. The Notice of Discharge alleges that Carter engaged in outlandish story-telling, including that she was a Pro Bass fisherman who competed on the Pro Bass Fishing Circuit, an Olympic swimmer, and an acrobatic pilot, that she lost 70% of her hearing in a bomb blast in Afghanistan, and that she is a qualified medical examiner. AR 91.

Some or all of Carter’s alleged statements may be true. AR 92. Carter could in fact have won a few tournaments on the Pro Bass Fishing Circuit as she stated in her interview. AR 92. She stated that she worked for a private contractor who was hired to do social service type work in Afghanistan in 2006, where an IED explosion caused damage to her hearing. AR 92. Carter was 53 years old at the time and a hearing loss of 70% would not be exceptional. AR 92. Her claim that she is a Qualified Medical Examiner is believable because of her PhD in clinical psychology; she may be a QME in psychology. AR 92. Her claim that she is an acrobatic pilot also may be true because she testified that she holds a pilot’s license. AR 92.

In any case, the Department offered no evidence that Carter made these statements. AR 92. Murillo could only testify that Carter claimed she was a Pro Bass fisherman at some unspecified date and some unspecified location. AR 92. There was no showing of any specific statements, no evidence that the statements were false, and no nexus between the statements and Carter’s job. AR 92. The hearing officer could find no wrongdoing with respect to the Allegation 7 statements. AR93.

Finding 27: The Department failed to prove that Carter’s stories about her personal life were actually made or that they were false. AR 104=05.

For Allegation 2, Carter was guilty of commenting to subordinates that she carries or likes to carry a firearm. AR 96-97. This reflects poor judgment only insofar as she should know some of her colleagues would use these careless statements against her. AR 97. She did not lie about carrying one on County property. AR 97. Her poor judgment was with respect to her personal conduct, not a duty-related issue. AR 97. The appropriate action is informal counseling to improve her conduct. AR 97.

For Allegation 6, Carter testified to a careless and inaccurate description of her academic credentials at the June 4, 2018 Aguilar disciplinary hearing. AR 97. She foolishly felt the need to inflate her credentials when most people would be happy with a bachelor of arts degree, a masters degree, and a PhD, all of which she earned. AR 97. This was not an intentional effort to deceive, just a lack of maturity in judgment. AR 97. The appropriate discipline is a written reprimand. AR 97.

Finding 28: Other than academic credentials testimony at the Aguilar hearing, the allegations in the Notice of Discharge are false. AR 105.

Many people find Carter a pleasant, likeable person, if a little quirky. AR 98. She should not be disciplined as part of a “fire Helen Carter” bandwagon. AR 98. The only substantive misconduct was a relatively harmless exaggeration of her academic credentials. AR 98. A written reprimand is the appropriate discipline. AR 97.

On November 9, 2021, the Commission gave notice that it would consider the hearing officer’s report on December 1, 2021. AR 106. At that meeting, it announced a proposed decision to accept the findings and recommended discipline therein. AR 107.

The Department filed objections to the hearing officer’s report. AR 108. On January 13, 2022, the Commission gave notice that it would consider the matter on March 9, 2022. AR 120. At the March 9, 2022 meeting, the Commission overruled the objections and adopted the hearing officer’s report as its final decision, including setting aside the reduction of discipline to written reprimand. AR 149-50. The Commission sent notice to the parties of its final decision and signed order on June 8, 2022. AR 121-22. The notice informed the parties that they could seek review of the decision under CCP section 1094.6 within 90 days. AR 121.

Petitioner County seeks to overturn the Commission’s decision on the basis that certain findings are not supported by the evidence.

Carter argues that the County untimely filed the Petition. The Commission made its decision overruling the Department’s objections on March 9, 2022. AR 149-55. Pursuant to CCP section 1094.6, the County was required to file the Petition challenging the Commission’s decision within 90 days. The Petition was filed on September 6, 2022, which is untimely. Opp. at 14. The County does not reply to this argument.

CCP section 1094.6(b) states that a petition for writ of administrative mandamus for a local decision pursuant to CCP section 1094.5 must be filed within 90 days of the date that the decision becomes final. Unless a statute, charter or rule provides for reconsideration of the decision or for a written decision, the decision is final on the date it is announced. CCP section 1094.6(b). If a provision for a written decision binds the agency, the decision is final for purposes of CCP section 1094.6 upon the date it is mailed by first-class mail, postage prepaid, to the party seeking the writ. Ibid.

Carter is correct that the Commission’s decision was made on March 9, 2022 and that the County filed the Petition on September 6, 2022, almost 180 days later. However, the 90-day period to file a mandamus action does not begin until the date the decision is mailed by first class mail. CCP section 1094.6(b). Notice was not sent to the parties until June 8, 2022, and the record does not even reflect that it was mailed. See AR 121. The June 8, 2022 notice states that it is the decision which may be reviewed by filing an action in superior court within 90 days of that June 8 date. Id. The Petition is not untimely.

The County attacks the hearing officer’s[10] Findings 3 and 7 (Allegation 3), 8-18 (Allegation 4), and 21-26 (Allegation 6) as unsupported.[11]

Although the County implies otherwise (Pet. Op. Br. at 6, 10), an employer’s mandamus claim is governed by substantial evidence, not independent, review. County of Los Angeles v. Civil Service Com., supra, 39 Cal.App.4th at 633. “On substantial evidence review, we do not ‘weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it.’” Doe v. Regents of University of California, (2016) 5 Cal.App.5th 1055, 1073. The court is required to accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the verdict. Minelian v. Manzella, (1989) 215 Cal.App.3d 457, 463. Credibility is an issue of fact for the finder of fact to resolve (Johnson v. Pratt & Whitney Canada, Inc., (1994) 28 Cal.App.4th 613, 622, and the testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact. In re Marriage of Mix, (1975) 14 Cal.3d 604, 614; Doe v. Regents of University of California, (2016) 5 Cal.App.5th 1055, 1074.

The substantial evidence standard of review bears heavily on the County’s arguments.

Finding 7: Mann was the only witness to testify as to whether Carter said she always carries her firearm with her. AR 100. He was biased and not credible, so his testimony alone was not sufficient to carry the Department's burden of proof. AR 100.

The County argues that, instead of thoroughly examining the various witness statements, the hearing officer made these conclusions based on his personal belief and not the evidence. Without any evidence, the hearing officer found that Mann instigated a scheme to dispose of Carter, and that upper management supported him because they disliked Carter. This finding has no supporting evidence. Pet. Op. Br. at 7.

As a result of this unsupported conclusion, the hearing officer found that Carter did not carry a firearm on County property, despite the fact that Allegation 3 charged her with saying that she was carrying a firearm -- not that she was actually carrying a firearm -- and subsequently lying about making such a statement. Apparently, the hearing officer did find that Carter made a statement about maintaining guns on her person at all times. The hearing officer reasoned that Carter simply made a careless statement, thereby demonstrating poor judgment, because she should have known her subordinates were “out to get her”. The hearing officer found that Carter, a Bureau Chief and high-level manager, must learn to exercise discipline in how she presents herself to her subordinates, and her failure to do so was poor judgment. AR 97. The hearing officer also found that the appropriate action is informal counseling to improve her conduct. Pet. Op. Br. at 8.

The County contends that Carter’s statement that she carried a firearm all the times was established by other witnesses’ statements who were not from upper management or Mann in contradiction to Finding 3. AR 712 (Wells: “there was mention of a gun”), 724 (Hernandez: “she said no one has access to her cell phone. They would have to pry it out of her hand just like they would if it was her gun”). Carter engaged in serious misconduct by lying her subordinates about carrying a firearm on County property. Pet. Op. Br. at 8; Reply at 3.

The County is wrong for multiple reasons. First, Mann was the only witness who testified about the firearm issue, and he was not even at the May 8, 2018 meeting. The hearing officer found Mann lacked credibility, based on the facts that Mann misled the hearing officer that he was not testifying from a moving car and that he was disingenuous about why he complained to Murillo and not Carter’s direct supervisor Smythe. AR 93-94. While the court agrees that the hearing officer’s conclusions that Murillo participated in a bandwagon effort to get rid of Carter is unsupported speculation, the credibility finding about Mann was not and the hearing officer was entitled to disregard all of Mann’s testimony.

Second, Mann was even at the May 8 meeting and could not testify from personal knowledge. His report of what others told him was uncorroborated hearsay. While hearsay may be used in an administrative hearing, it may not be used as direct evidence. No direct evidence was presented that Carter told staff at the May 8, 2018 staff meeting that she carries a firearm at all times.

Third, neither Wells nor Hernandez even said in their interview that Carter told staff meeting at the meeting that she always carries a gun. Wells only said that “there was mention of a gun”. AR 712. Hernandez only said that Carter “said no one has access to her cell phone. They would have to pry it out of her hand just like they would if it was her gun”. AR 724. Their statements do not show that Carter said that she always carries her gun. Call, who also did not testify, stated in his interview only that Carter has made comments expressing her enthusiasm for firearms at least three times before. AR 87. Findings 3 and 7 are supported by substantial evidence.

Findings 8-13: Prior to the May 10, 2018 staff meeting, Carter made various statements that were enthusiastic about firearms. AR 100. There was no evidence that Carter ever carried or possessed a firearm on County property, and she never suggested or implied that she did. AR 101. On May 10, Murillo questioned Carter about whether she carried a firearm in person or in her car. AR 101. Carter emphatically denied doing so and asked Murillo to have her car searched. AR 101. Murillo did not search her car. AR 101.

Findings 9-18: Carter never told Murillo that she was in court all morning or all day on May 10, 2018. AR 102. The Department did not provide any evidence to show that she lied to Murillo or improperly neglected her duties while under subpoena for potential testimony. AR 102-03. Murillo generally testified credibly, and she passed along her suspicions that Carter was not being honest regarding her location on May 10, 2018. AR 102. Sgt. Mullings failed to properly investigate and document Carter’s whereabouts on May 10, including making a false statement in her report that Carter told Murillo that she waited all morning in the courthouse parking structure. AR 102. There was no evidence that Carter lied to Murillo on May 10 and no evidence that she neglected her duties while under subpoena to testify on that date. AR 102-03.

The County argues that Carter tends to give contradicting statements. During her February 13, 2019 interview, Carter did not remember Murillo asking about her whereabouts and how the Aguilar disciplinary hearing went. AR 989-91. She did not recall telling Murillo that she was in court all day. AR 989-91. She denied telling Murillo that she was in the parking structure waiting to be called into court. AR 989-91. On the other hand, Carter testified that Murillo asked her about her whereabouts that day and she gave an explanation. AR 1751. This contradicted her interview statement that she never had any conversation with Murillo on May 10 about her whereabouts earlier that day. Pet. Op. Br. at 9; Reply at 4.

Additionally, in her February 13, 2019 interview, when asked if she had text messages with McMillion, Carter first responded that she did not remember. After being presented with the text messages, Carter admitted that the text messages were from her phone. AR 982. Carter continued this lie in her testimony that she did not know if she texted McMillion even though it was already established during her previous interview that she had been texting McMillion. AR 1743. Thus, she attempted to perjure herself. According to the Disciplinary Guidelines, discharge is appropriate for her violations. Pet. Op. Br. at 9; Reply at 4.

The County is incorrect. Contrary to the Notice of Discharge, Carter never said to Murillo that she was in court all morning on May 10, 2018. When Murillo and Carter met at 5:00 p.m., Murillo made small talk by asking about the Aguilar disciplinary hearing. AR 1183. Carter replied that she did not know whether she would be called or not, and she was waiting around in the garage for an hour for someone to call her upstairs. AR 1185. When Murillo reached out to McMillion afterwards, the latter said that Carter was not present at the hearing that day because she (McMillion had texted Carter that she was not needed for that day. AR 1191, 1202-03.

Carter testified to her whereabouts on May 10, 2018. She arrived at the STC at 8:00 a.m. AR 1738. She stayed until 11:45 a.m. before she went downtown to go to Aguilar’s hearing. AR 1738-39. She parked in the County building’s holding area at 12:20 p.m. because Lane told her that she was not sure if she (Carter) would be called. AR 1738-39, 1742.

Carter texted Lane, not McMillion, to inform her that she was waiting. AR 1742-43. Carter did not know if she ever texted McMillion. AR 1743. Lane informed Carter over the phone 15-20 minutes later that she was not needed that day. AR 1742. Carter was headed back to the STC but stopped at the nearby Burger King for lunch. AR 1750. On her way back to the STC, Murillo phoned to ask when Carter would return to Downey headquarters. AR 1750-51. Carter said that she was on her way to the STC but could come to Downey if necessary. AR 1751. She arrived at Downey at 3:45 p.m. and stayed until 6:30 p.m. AR 1751.

The hearing officer clearly believed Carter, and her timeline shows no neglect of duty or lying about her whereabouts. This is all that is necessary for substantial evidence. Credibility is an issue of fact for the finder of fact to resolve (Johnson v. Pratt & Whitney Canada, Inc., (1994) 28 Cal.App.4th 613, 622, and the testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact Doe v. Regents of University of California, (2016) 5 Cal.App.5th 1055, 1074.

In any event, Carter’s credibility is not seriously undermined by a comparison of her interview and testimony. In her interview, Carter did not know who McMillion was. AR 981. She was shown text messages from McMillion to her (Carter’s) phone and acknowledged the text messages from her phone but did not remember the sender’s name was McMillion. AR 981. Carter said that, if her interviewer said the texts were from McMillion, she believed they were. AR 982. In her testimony, Carter stated that she texted Lane to tell her that she was waiting, not McMillion. AR 1742-43. Carter does not know if she ever texted McMillion, whom she met just the day before. AR 1743. The contradiction only shows that Carter recalled contact with the attorney who subpoenaed her (Lane) and not the Department’s attorney (McMillion). A failure to recall is not a contradiction. Carter was not required to accept the texts as coming from McMillion if she did not recall them.

Similarly, in her interview Carter stated that she returned from the STC and checked in with Murillo. AR 990. The interviewer informed Carter that Murillo had said that she asked Carter where she had been all morning and Carter responded that she had been in court on Aguilar’s case. AR 990. Carter remembered speaking to Murillo but did not remember Murillo asking where she had been. Rather, Murillo said that she received an anonymous call that Carter had a gun in her car. AR 991. In her testimony, Carter said that Murillo said that her (Carter’s) calendar said that she would be at civil service all day. AR 1751. Carter said no, she was at the STC and reported that she would be there and then to Downey if needed. AR 1752. They then began to discuss “the firearms thing”. AR 1752.

This is not a serious contradiction. Murillo testified that she only asked about Carter’s morning as “small talk” when she really wanted to discuss the gun issue. AR 1185. It is no wonder that Carter focused on the gun issue in her interview and did not recall the small talk about her whereabouts. By the time of her testimony, Carter knew that her whereabouts on May 10 were part of the charges against her. She may well have refreshed her memory about this discussion by reading the witness statements. Whether she did so is unknown because she was never asked why she recalled it.

Findings 21-26: Carter’s description of her academic degrees and credentials at the Aguilar hearing was not entirely accurate. AR 103. She holds a bachelor of arts in education with a major in physical education, not kinesiology. AR 104. She has a masters of science degree with a major in police science and administration, and she does not have a MBA. AR 104-05. She has a PhD with a major in clinical psychology, not in forensics. AR 104. Carter’s inaccurate description arose from insecurity, immaturity and carelessness, not an intent to deceive. AR 104. They were relatively minor and caused no harm, but they were improper and require correction. AR 104.

Carter is a sworn peace officer under California law and she has completed at least one component of POST training. AR 104. In that sense, she is a POST-certified peace officer. Carter is not a police officer and not authorized to carry a firearm. AR 104.

There is no evidence that Carter misstated her academic credentials in making a 2016 online application for promotion. AR 104.

The County argus that Carter misrepresented her educational background under oath at the Aguilar disciplinary hearing (AR 619), and she admitted at her own hearing that she had done so. AR 1823, 1828. She also misrepresented the fact she was POST-certified in Arizona and California, and only clarified her mistake after push back from the investigators. AR 619, 1005-09. Even after clarifying her educational and work background during her interview, she continued misrepresenting her educational and work background at her hearing. AR 1812. Pet. Op. Br. at 10; Reply at 4-5.

According to the County, Carter has a clear propensity to lie. The allegations establish Carter’s failure to exercise sound judgment, violation of Department policies, abuse of supervisory or management authority or conduct unbecoming a position of authority, failure to follow establish rules or regulations, and providing false information during an administrative investigation. According to the Disciplinary Guidelines, discharge is appropriate for these violations. Pet. Op. Br. at 10; Reply at 5.

The issue is not whether Carter made misrepresentations but her intent and their materiality. The hearing officer found that the misrepresentations were not entirely accurate, arose from insecurity, immaturity and carelessness and not an intent to deceive, and were relatively minor and caused no harm, but were improper and require correction. AR 104. This finding was well supported. The County’s conclusion that Carter perjured herself and has a propensity to lie is not supported.

The propriety of a penalty imposed on a public employee by an administrative agency is a matter 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, (“Lake”) (1975) 47 Cal.App.3d 224, 228. The Commission’s decision must be “an arbitrary, capricious, or patently abusive exercise of discretion” to be overruled by the trial court. If there is “any reasonable basis to sustain it,” the penalty should be upheld. County of Los Angeles v. Civil Service Com. of County of Los Angeles, (“Montez”) (2019) 40 Cal.App.5th 871, 877. “Only in an exceptional case will an abuse of discretion be shown because reasonable minds cannot differ on the appropriate penalty.” Ibid.

In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly v. State Personnel Board, (“Skelly”) (1975) 15 Cal.3d 194, 217-18. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, (“Nightingale”) (1972) 7 Cal.3d 507, 515. The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions. Cadilla v. Board of Medical Examiners, (“Cadilla”) (1972) 26 Cal.App.3d 961.

The County argues that, even if the challenged findings are supported by the evidence, they do not support the decision to mitigate the discharge to a written reprimand. The hearing officer made his conclusions in Findings 3 and 7 out of personal belief and not from the facts in the case. Carter’s statement about carrying a firearm all the times was established by other witnesses’ statements who were not from upper management/ Mann in contradiction to Finding 3 and 7. For Finding 18, evidence was produced to show that Carter lied to Murillo on May 10, 2018 and neglected her duties while under subpoena for the Aguilar disciplinary hearing. AR 989-91. For Findings 23, 24, and 28, Carter mispresented her education and her POST certification. AR 1828, 1823, 1812. Thus, the Commission made several errors that were not supported by the findings and therefore prejudicially abused its discretion. Pet. Op. Br. at 10; Reply at 5.

On October 28, 2014, Carter was issued a Letter of Reprimand based in part on poor judgment. The Letter of Reprimand specified that, as a high-level manager, it is critical Cater possess and maintain the highest professional standards of all times. Carter’s behavior in 2014 and the behavior enumerated in the Notice of Discharge exhibit a pattern of improper judgment. The Disciplinary Guidelines provide that discharge is proper for a second offense failing to exercise sound judgment, violation of the departmental or externally recognized code of ethics of a professional group of employees, abuse of supervisory or management authority or conduct unbecoming a position of authority, failure to follow established rules or regulations, and providing false information during an administrative investigation. The Commission abused its discretion in overturning the discharge. Pet. Op. Br. at 11; Reply at 5-6.

The County’s argument is based on its position that the hearing officer’s findings for Allegations 3, 4, and 6 are in error. They are not. Additionally, the hearing officer was rightly concerned about Mann’s motive in complaining about her, Mullings’ sloppy investigation, the voluminous charges against Carter, the short time span in 2018 on which the charges were based, and the Department’s abandonment of charges at trial. The hearing officer’s conclusion about upper management’s motive is unsupported and none of these facts excuse Carter’s wrongdoing. However, Carter’s wrongdoing was minor, as should be her discipline. The Commission’s decision is not a manifest abuse of discretion.

The Petition is denied. Carter’s counsel is ordered to prepare a proposed judgment, serve it on the County’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for October 26, 2023 at 9:30 a.m.

[1] The parties cite AR 1112, 1122, 1127, 1359, 1573, and 1750-52 but these pages were not included in the Joint Appendix. The court also has found uncited AR 709, 719, 761, 1418, 1608, 1663, and 1685 to be relevant.

[2] The Department asserts that Carter testified that she had written a thesis on the polygraph, citing AR 536-38. Pet. Op. Br. at 5. The cited pages do not include this assertion.

[3] Carter cites AR 698-705 as evidence that Call alleged Carter made unprofessional statements on May 10, 2018. Opp. at 9. Call’s interview does not mention May 10, 2018 activities.

[4] Carter cites AR 469-78 to show that the Department spoke to AZPOST about Carter’s peace officer status. Opp. at 11. The cited pages are not relevant to peace officer training.

[5] Carter cites to these pages to assert that an IA investigator determined that the allegations about the April 10, 2018 meeting “did not rise to the level of an Internal Affairs investigation.” Opp. at 6. This quote is not on those pages.

[6] Carter cites AR 682-691 to assert that the evidence showed she was professional and collegial. Opp. at 13. None of the statements speaks to Carter’s general conduct.

[7] Carter misstates her date of discharge as June 30, 2019. Opp. at 3.

[8] When Carter raised a hearsay objection as to this part of Murillo’s testimony, the hearing officer allowed it as foundational, but not for the truth. AR 1172. Carter’s opposition cites AR 1171-74 as testimony about the May 10, 2018 Aguilar hearing. Opp. at 8-9. These pages discuss the employee contact information issue.

[9] The hearing officer made no express Finding for Allegation 2.

[10] For convenience, the court will refer to the hearing officer’s findings and proposed decision, not the Commission’s decision which adopted it.

[11] The County does not attack the findings supporting the hearing officer’s conclusions about Allegations 1, 2, 4, 5, and 7 and any argument concerning them is waived.