Judge James C. Chalfant, Case Number: 23STCP00618, Date: 2024-04-11 Tentative Ruling

Petitioner Christopher Joy (“Joy”) seeks a writ of mandate compelling Civil Service Commission (“Commission”) of the County of Los Angeles (“County”) to set aside its decision upholding his termination as Deputy Probation Officer II and restore all back pay and benefits from the date of his discharge until he is reinstated.

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

Petitioner Joy commenced this proceeding on February 28, 2023 against Respondent Commission, naming the County’s Probation Department (“Department”) as Real Party-in-Interest. The Petition alleges in pertinent part as follows.

The Commission is authorized and required by the County Charter, Article IX, and Los Angeles County Code (“LACC”) Title 5, Appendix 1, to conduct evidentiary hearings and to render final decisions in appeals brought by County employees contesting disciplinary action imposed on them by their employer. Pet., ¶2.

Joy was an employee of the Department. Pet., ¶1. On or about December 4, 2018, the Department mailed Joy a Notice of Discharge, alleging that he had violated Department policies which warranted his discharge from County service. Pet., ¶4.

Joy appealed his discharge to the Commission. Pet., ¶¶ 1-2. A five-day hearing was held on September 13, 2019, June 28-29, 2021, August 9, 2021, and February 14, 2022, after which the Hearing Officer rendered a proposed decision recommending that the Commission uphold Joy’s discharge. Pet., ¶4.

On July 13, 2022, the Commission announced its proposed decision to accept the findings and recommendation of the Hearing Officer. Pet., ¶4. Joy filed written objections to the proposed decision. Pet., ¶4. On November 30, 2022, the Commission overruled Joy’s objections and adopted as its final decision the findings and recommendation of the Hearing Officer to sustain Joy’s discharge. Pet., ¶ 4. On January 30, 2023, the Commission emailed its final decision to Joy. Pet., ¶4.

Joy seeks administrative mandamus to compel the Commission to (1) set aside its decision upholding his termination from the position of Deputy Probation Officer, (2) restore all back pay and benefits from the date of the discharge until the date he is reinstated, (3) pay interest on the back pay at the full legal rate, and (4) remove from his personnel file all documentation relating to the incident adjudicated in this Petition. Joy also seeks his costs in this action, including attorney’s fees under Government Code section 800(a).

On March 16, 2023, the Commission filed a Notice of No Beneficial Interest in the Outcome.

On May 25, 2023, Joy filed a proof of service of the Petition on the Commission. On July 10, 2023, Joy filed a proof of service of the Petition on the Department.

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 on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (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, (“Bixby”) (1971) 4 Cal.3d 130, 143; see CCP §1094.5(c). The independent judgment standard of review applies to administrative findings in cases involving a law enforcement officer’s vested property interest in his employment. Barber v. Long Beach Civil Service Comm’n, (1996) 45 Cal.App.4th 652, 658.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Bixby, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“In exercising its independent judgment, the trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

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 propriety of a penalty imposed 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, (1975) 47 Cal.App.3d 224, 228. 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, 217-218. 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, (1972) 26 Cal.App.3d 961.

“Hearsay evidence may be admitted for any purpose, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The rules of privilege and of official or judicial notice shall be effective to the same extent as in civil actions. Irrelevant and repetitious evidence shall be excluded. Oral evidence shall be taken only under oath or affirmation.” County Civil Service Rule (“CSR”) 4.10(B).

Failure of an employee to perform his or her assigned duties so as to meet fully explicitly stated or implied standards of performance may constitute adequate grounds for discharge, reduction or suspension. Where appropriate, such grounds may include, but are not limited to, qualitative as well as quantitative elements of performance, such as failure to exercise sound judgment, failure to report information accurately and completely, failure to deal effectively with the public, and failure to make productive use of human, financial and other assigned resources. Grounds for discharge, reduction or suspension may also include any behavior or pattern of behavior which negatively affects an employee’s productivity or which is unbecoming a county employee; Or any behavior or condition which impairs an employee's qualifications for his or her position or for continued county employment. CSR 18.031 (AR 128).

Joy was hired on February 31, 1994 and was a Deputy Probation Officer II (“DPO”) at all relevant times. AR 11. He had a history of positive performance reviews and a disciplinary history consisting only of a February 12, 2010 written reprimand. AR 11-12, 248-313.

On May 30, 2014, Joy was working as a DPO at the Department’s Antelope Valley Juvenile Supervision Office. During this time, Anna Flores (“Flores”) held a clerical position with Apple One, an outside company supplying clerical workers to the County, and worked at the same office. AR 14.

On May 30, 2014, an incident occurred between Flores, Joy, and a co-worker, DPO Cedric White (“White”). AR 1203. Flores apparently filed a CPOE complaint.[2]

Joy was interviewed by a County Department of Human Resources Deputy Compliance Officer Patrick Koressel (“Koressel”) on December 5, 2014. AR 381. Joy stated that Flores was a friend, but their relationship was strictly professional. AR 381. They occasionally do things outside of work. AR 381. They did not have a dating relationship “at the time” (meaning on May 30, 2014 when they were at a restaurant and White showed up). AR 383. Joy stated that he did not know White. AR 383.

On July 1, 2016, Flores filed a civil sexual harassment and discrimination lawsuit against the Department and DPO White, alleging that the Department abuse culminated on May 30, 2014 when White confronted Flores and Joy, accusing them of an inappropriate relationship and making violent threats against them. AR 425-35.

On August 7, 2017, Joy’s deposition was taken in the Flores lawsuit. AR 512. Joy testified that he and Flores “got together” around November or December of 2014. AR 577. He knew it was around Thanksgiving, and that is when they started seeing each other. AR 577. Joy testified that he and Flores were friends with a professional working relationship a couple years ago. AR 588-89. At no time were they dating or having a sexual relationship while Flores was at the office. AR 595.

The Department’s counsel retained Gailey Associates to investigate the Flores claim. AR 1227. On August 21, 2017, Gailey Associates provided a report of interviews of Michele Parsons (“Parsons”) and Arnulfo Arana (“Arana”). AR 1227.

Parsons was interviewed on July 31, 2017. AR 1228. In June 2014, she and her then-spouse, Joy, went to see her father in Arizona. AR 1228. Joy was acting weird, and she confronted him about having an affair, which he denied. AR 1228. A week after they returned home, she went downstairs at 4:00 a.m. and found Joy sleeping next to a phone that she had never seen before. AR 1228. She was about to unlock it and read several text messages from Flores which clearly indicated they were romantically involved. AR 1228. There were many loving comments using the words “honey” and “baby”. AR 1229. There also were text messages “I can’t talk” because she (Parsons) had entered the room. AR 1229. She confronted Joy with the evidence, and he initially denied the affair. AR 1228. Later that morning, he admitted the affair. She made him pack his bags and leave that day. AR 1228. She did not know when the affair began. AR 1228.

In June or July 2014, Joy moved into the Provenance Apartments. AR 1229. Joy wanted to see his children and therefore Parsons went to the apartment to inspect it. AR 1229. She observed Flores’ clothes and a room set up for Flores’ children. AR 1229. Joy claimed that Flores and her children only stayed at the apartment sometimes. AR 1229. Parsons filed for divorce in July 2014. AR 1229.

Arana was married to Flores. They divorced mainly because of Joy. AR 1231. He had suspicions that Flores was cheating on him for many months. AR 1231. He “probably” found text messages but would not provide details. AR 1231.

He confronted Joy about the affair in May 2013, and Joy denied it, saying that Arana was delusional. AR 1231. Flores also initially denied the affair but admitted it in June or July 2013. AR 1231. Approximately a month later, Flores moved into an apartment in Santa Clarita. AR 1231. When questioned about his timeline because he appeared to be a year off, Arana stated he was sure that Flores moved out in 2013 and they divorced in 2014. AR 1231.

On August 29, 2017, at 1:30 p.m., Joy’s second deposition was taken in the Flores lawsuit. AR 626. At the outset, Joy was asked to explain why he was unable to be present for the deposition’s scheduled 10:00 a.m. start time. AR 630. Joy testified that he had to do a probation violation report for a case. AR 631. He did not find out until that morning from his supervisor, Connie Moro (“Moro”), that the probation violation report was due that day. AR 631. Moro required him to complete the report that morning. AR 631. He had a miscommunication with Moro; he thought Moro believed the deposition was the next day (August 30). AR 631.

Joy refused to identify the Department officers whom he claimed had badmouthed him about his relationship with Flores. AR 714. He also refused to identify the employees who told him about the rumors of White badmouthing him and Flores. AR 714. He testified that he was uncomfortable dragging these co-workers into the matter. AR 715. He then stated that he was told by some officers out of courtesy that White was badmouthing himself and Flores. AR 718-19. He claimed that he feared retaliation from the Department based on what was going on with the Flores lawsuit. AR 719. He did not feel comfortable or safe name-dropping these people. AR 720. He added that these other individuals work with White and he was afraid of what the other officers would do to him. AR 721. He just saw White leaving court in Lancaster and he feared for his safety. AR 727-28. He was afraid of White and what he was capable of doing. AR 729-30.

On October 3, 2017, Joy testified for Flores in the Flores lawsuit. AR 950. He testified that “at that point in time” -- meaning on May 30, 2014 -- he was not having an affair, sex, or sexual contact with Flores either in or outside the workplace. AR 954.

Heather Urkel (“Urkel”) testified that “very soon after [Joy] started in the office they were dating or flirting or texting. I don’t know what you would call it. But she [Flores] was sharing that with me.” AR 1075. Flores did not use the term “dating”, but she would usually come into Urkel’s office because it was private and shut the door. AR 1975. She would share with Urkel text messages and pictures that she (Flores and Joy had sent to each other. She was very excited about seeing him. AR 1075-76. She would make a lot of hand gestures and had body language about their being with him. AR 1076. Flores showed her “racy pictures that she had sent him of herself in lingerie, a picture that he had sent to her of his genitalia, looking down at himself.” AR 1076.

All the texts Flores showed her between Joy and herself were non-business related but rather of a sexual nature. AR 1077-78. She called him “Daddy” and texted “I can’t wait to F. you.” AR 1078. These events probably would have been in May 2014. AR 1077. When asked if it was before May 30, 2014, Urkel responded “I believe so.” AR 1077.

White testified that on May 30, 2014, he slowly drove around. AR 1203. He parked his car, got out of his vehicle, and walked up to the other car. AR 1203. As he walked up, he realized it was Joy and Flores. AR 1203. He sat there and watched for a little while. AR 1203. They were kissing and grinding, and he watched out of curiosity. AR 1203.

On or around October 6, 2017, the jury found against the County (but not White) on one of Flores’ claims, awarding her approximately $62,000 in damages. The trial court granted a post-trial motion for attorney fees in the amount of approximately $687,000.

On January 26, 2018, Donna Koch, Esq., an attorney representing the Department in the Flores lawsuit, emailed the Department and alleged that Joy testified falsely. AR 228. She stated in her email that it had been nearly four months since the trial and that POBRA applied. AR 228.

On December 13, 2019, the appellate court reversed the judgment against the County, concluding that Flores did not prevail on any of her causes of action. AR 230.

On August 30, 2017, Risk Manager Vicky Santana contacted the Department’s Internal Affairs Bureau (“IA”) and alleged that Joy made false and misleading statements during the administrative investigation, his depositions under oath, and the Flores lawsuit regarding his relationship with Flores. AR 334.

IA Investigator Daniel Rivera (“Rivera”) was assigned to conduct an investigation. See AR 1267. On July 26, 2018, Investigator Rivera issued a report of investigative findings which substantiated Joy’s violations of policy concerning employee conduct, employee honesty, and employee cooperation, and policy against rumors and slanderous remarks in the workplace. See AR 114.

Investigator Rivera interviewed Joy, who denied that he and Flores had anything beyond a professional work relationship until the end of December 2014. AR 1267.

Investigator Rivera interviewed Moro. AR 1333. She stated that she was first made aware that Joy was required to appear for deposition on August 29, 2017. AR 1333. She received a text from Joy on August 29 at 7:06 a.m. stating that he had bad news; he thought his deposition was set for August 30 but instead it was set for August 29 at 10:00 a.m. AR 1333, 1335.

Joy was required to notify Moro before the day he missed work that he would be out and the reason why. AR 1335. He never provided her with a copy of the deposition subpoena or order before August 29. AR 1335. If he had told her at 7:06 a.m. on August 29 that he had a probation violation report due, she would have had someone else do it or else contact the court to see if they could get it in the next day. AR 1341. The normal procedure would not be for him to come to the office and prepare the report. AR 1341. She never ordered him to come in and thought that he was at the “court” on August 29 waiting for them to call him in [for the deposition]. AR 1342.

On August 23, 2018, Joy was personally served with a Notice of Intent to Discharge within the one-year requirement as required under POBRA. AR 317; see AR 114. The proof of service acknowledging receipt was signed by Joy on the same day. AR 114.

On October 4, 2018, Joy and his representative had a Skelly meeting with Senior Director Patrick Lemaire. AR 8.

On November 30, 2018, Joy received a Notice of Discharge from his position of DPO based on violations of multiple department policies. AR 8-14.

The Notice of Discharge was based on Joy’s failure to cooperate in an administrative investigation, providing false information in an investigation, violation of a Departmental or externally recognized code of ethics, unbecoming conduct, discourtesy, failure to exercise sound judgment, and failure to follow established rules or regulations. AR 8-9. The discharge was also based on violations of Probation Department Policy Manual Nos. 601, 701, and 706, and Probation Department Directives 1182, 1316, and 1335. AR 9. The discharge further was consistent with CSR 18.031. AR 9.

The facts supporting discharge included Joy’s false statements and testimony from December 4, 2014 through August 29, 2017 in the Flores lawsuit. AR 9. Joy lied under oath during his administrative interviews about his intimate relationship with Flores as of May 30, 2014, made unfounded accusations against Supervising DPO (“SDPO”) Johnny Randall (“Randall”) and SDPO Urkel, made false statements against SPDO Moro, failed to provide honest and accurate responses in his testimony at the Flores lawsuit trial, and made evasive and misleading statements in his IA interview regarding his attendance at two depositions in the Flores lawsuit. AR 9-11. His dishonesty discredited and embarrassed the Department and fell far below the expectation for a peace officer. AR 12. Therefore, he was discharged. AR 13.

Joy appealed. A five-day hearing was held on September 13, 2019, June 28-29, 2021, August 9, 2021, and February 14, 2022. AR 108. The witnesses testifying at the appeal hearing were Rivera, Moro, Urkel, Joy, and Flores. AR 110. The portions of their testimony cited in the parties’ briefs are as follows.

Rivera testified that, as part of his investigation, he interviews possible witnesses and subjects of the investigation. AR 1420. He made findings that Joy violated various policies supported by substantiated evidence. AR 1448.

As an investigator, he can compel someone working for the Department to submit to an interview but cannot compel someone who does not work for the County to do so. AR 1439. Flores was never a Department employee. AR 1439.

He interviewed Joy and did not find him to be forthright in his answers. AR 1466. He was evasive, which was concerning. AR 1466. He read Joy’s depositions and found his answers to be long-winded and evasive. AR 1467. Joy refused to give direct answers to direct questions. AR 1467.

At his August 29 deposition, Joy testified that he was late because he received a work instruction from Moro that he had to complete a court report prior to attending his court-ordered testimony. AR 1471. Rivera provided Moro with Joy’s testimony and she was shocked. AR 1471-72. She said that she never told him not to appear for “a court report” because a report that he was responsible to prepare had not been done. AR 1472. She explained what protocol she would have followed if he had to be somewhere other than work. AR 1472.

Moro testified as follows. When she was asked whether Joy’s text message explained why his deposition was not going forward at 10:00 a.m., Moro testified that Joy’s text stated that the attorneys were having a discussion about possibly continuing the matter and he was waiting to hear. AR 1639. Joy did not tell her that the reason the deposition did not go forward at 10:00 a.m. was because he had to write a report. AR 1639. Either you are in court because you have been given something that says you are going to be in court, or you are at work. AR 1639. You can’t just be at home. AR 1639. She reviewed court reports authored by Joy. AR 1645.

Urkel testified in Joy’s appeal that Flores came to her office and told her that she and Joy were having a sexual relationship, gave her details of that, and showed her texts in April or beginning of May 2014. AR 1662-63. Flores showed her the texts on her phone. AR 1664. Urkel could not remember the texts verbatim. AR 1664. They were very sexual and flirtatious texts. AR 1663. She called him “Daddy”. AR 1664. She showed Urkel a picture of herself in lingerie and a picture of Joy’s penis that he had sent to her. AR 1664. They had a full blown sexual relationship and were in love. AR 1664.

Urkel and DPO Randall were friends. AR 1677. They became friends outside of work, but at the pertinent time they were not. AR 1677. She has left her position with the County. AR 1682.

LaCarla Williams (“Williams”) testified that she reviewed transcripts from Urkel where she talked about the relationship of Flores and Joy. AR 1731. For the Skelly package, she reviewed transcripts, statements, the equity panel’s recommendation, the IA investigation, and the packet of information. AR 1732.

Williams was unaware if White received a three-day suspension for inappropriate conduct in the incident. AR 1735-36.

Flores testified that, on the pertinent date of May 30, 2014, she wanted to sell property. AR 1784. Everybody in the office knew that Joy did real estate on the side, and she wanted to ask him about zoning. AR 1784. At the time they were at the Mi Ranchito restaurant, she and Joy were not romantically involved. AR 1784. They discussed zoning issues in the parking lot of the restaurant. AR 1784. They did not engage in sexual activity, her legs were not sticking out the window, and they were not grinding each other. AR 1784.

She talked to Urkel at the office but never discussed her sex life with Urkel. AR 1786. She never showed Urkel any racy photos of herself or Joy and never showed her any text messages from men. AR 186.

Joy testified that he never worked with DPO White. AR 1836. He was not in an intimate relationship with Flores on May 30, 2014, did not grind on her, hug or kiss her, and there were no legs sticking out a window of a vehicle. AR 1836-37. He began dating Flores in December 2014. AR 1837. Prior to then, he did not send text messages of a sexual manner and no photos were exchanged. AR 1837-38.

The Hearing Officer issued a proposed decision on May 17, 2022. AR 108-38. At the outset of the proposed decision, the Hearing Officer addressed a concerning the reopening of evidence to receive the Department’s 32 exhibits. AR 111-13. The Hearing Officer also addressed a POBRA issue not relevant herein. AR 114, 123-24, 124-25.

The Department alleged that Joy was a DPO in a position of trust and integrity. AR 120. Joy falsely denied ever being in an intimate relationship with Flores, made discrediting and unfounded allegations against his co-workers, testified falsely that he was required to file a court report before attending a deposition, and failed to cooperate and gave misleading and evasive responses in an investigation. AR 121-22.

On May 30, 2014, White found Joy and Flores in the parking lot of the restaurant “Mi Ranchito”. AR 121. According to White, Joy and Flores were kissing and grinding on each other in Joy’s car, with their feet dangling out of the car. AR 121. White approached Flores, asked to talk to her, and then left after a brief conversation. AR 122. The next day Flores filed a CPOE complaint in which she claimed to have been harassed by White. AR 122. She filed the Flores lawsuit on July 1, 2016. AR 122. The relationship between Flores and Joy was a critical issue in the Flores lawsuit because Joy was the only witness to the May 30 incident. AR 122.

During the investigation, Joy provided deceitful and misleading statements about his relationship with Flores, his co-workers, and supervisors. AR 122. He provided slanderous statements that White was badmouthing him. AR 122. Not only were his statements untruthful, he misled the investigation in answering questions. AR 122. He refused to identify the person who heard White spread lies about him, then vaguely identified Leonice Brown as one of the people informing him that White was talking about him. AR 122. He refused to provide other names out of a professed fear of retaliation. AR 122. When he was ordered to answer the question, he testified that he could not recall anyone else. AR 122. It became evidence that no person said anything about White badmouthing Joy. AR 122.

On August 29, 2017, Joy was deposed. He was supposed to appear at 10:00 a.m. but the deposition did not start until l:30 p.m. AR 123. Joy testified that he was late because Moro made him prepare a probation violation report. AR 123. He gave multiple inconsistent statements about his relationship with Flores, as well as about his inability to show up on time for his deposition that day. AR 121. He also gave dishonest testimony about his co-workers. AR 121.

On June 29, 2021, during his appeal hearing, Joy testified that he knew the probation violation report was due on the day of his deposition without Moro reminding him. AR 123. This testimony was contrary to his deposition testimony on August 29. 2017. AR 123.

On October 3, 2017, the second day of the Flores lawsuit trial, he made false and conflicting statements about his relationship with Flores. This was extremely important for Flores’ civil case, which was built on lies against White. AR 121. Joy gave repeatedly false testimony about whether he had a sexual relationship with Flores prior to the May 30, 2014 incident. AR 121. One of the main issues litigated in the Flores lawsuit was the harassment claim by Flores against White. Joy’s testimony supported Flores’ claims and impugned White, who was a colleague. AR 121.

Given that the jury verdict was overturned, the County has no motive to retaliate against Joy for testifying in the Flores lawsuit. AR 123.[3]

The Hearing Officer found the allegations in the Notice of Discharge to be true. AR 126-27. The investigation, deposition, and Flores trial transcripts show that Joy gave untrue and conflicting statements and testimony during the period of December 4, 2014 through April 29, 2017. AR 127. He repeatedly stated that he could not recall dates for the beginning of his relationship with, and subsequent marriage to, Flores but he could recall the commendations he received over his career. AR 127. Flores also could not recall information, including her address in Valencia. AR 127. The Hearing Officer found neither of Joy and Flores to be credible. AR 127.

On May 30, 2014, Joy and Flores were involved in an off-duty incident that resulted in Flores’ CEOP complaint against White and the Flores lawsuit. AR 131. On December 5, 2014, Joy told Deputy Compliance Officer Koressel that his relationship with Flores was “strictly professional”. AR 131. However, Joy testified during the Flores trial that their relationship began in December 2014. AR 131. On October 3, 2017, he testified during the Flores trial that the relationship began around November/December 2014. AR 131-32. Joy and Flores both divorced their spouses and married on December 17, 2016. AR 131.

The testimony of Erkel, the investigative findings of Galley Associates, the sworn statements of Randall[4] and White, and the evasive testimony by Joy and Flores at Joy’s administrative appeal hearing established that the two had an intimate relationship prior to May 30, 2014. AR 132.

Flores recalled that she worked in the AB 109 program [where Joy worked] in 2013-14 but could not remember when she met Joy, provided conflicting testimony regarding the beginning of their relationship, and could not recall the date of her divorce, her address in 2014, of if she was divorced when she began dating Joy. AR 132. She was evasive about when she moved in with Joy. AR 132.

Joy lied when he denied telling SDPO Randall that he was involved with Flores. AR 132. Joy lied at trial and made unfounded accusations against White. AR 133. He lied under oath that SDPO Moro required him to report to the office and complete a probation violation report before attending his deposition set for 10:00 a.m. on August 29, 201. AR 133. He was aware of the due date per the Department’s PEDUMS System, which notifies DPOs three days before reports are due. AR 133. Joy’s statement to Moro on August 29 that the attorneys were talking about rescheduling his deposition that morning is unsupported by his deposition testimony that Moro required him to come to the office and complete the report. AR 133.

Joy failed to provide credible testimony during the CEOP investigation regarding the May 30, 2014 incident, during the IA investigation, and throughout the Flores lawsuit trial. AR 133-34. Joy engaged in a pattern of evasiveness and dishonesty. AR 134. The Department met its burden proving that the allegations contained in the Notice of Discharge dated March 16, 2018 were true. AR 134.

Decision-maker Williams testified that DPOs must be honest and accurate. AR 127. Joy lied under oath, accused co-workers, and lied to supervisors. AR 127. There is no tolerance for dishonesty. AR 127. Williams did not recommend a lesser discipline because, when an officer has a track record of lying, it creates a credibility issue for their reports and testimony in court. AR 127. Joy had no prior history of lying, but Williams made the decision to discharge based on the totality of the case. AR 127.

Joy was a DPO with at least 25 years of experience and violated Department policies. AR 129-30. The Department’s investigation was fair and substantial evidence demonstrates his dishonesty. Joy failed to present mitigating factors that would warrant reversal of the discharge decision. AR 130. The Hearing Officer recommended that the imposed discharge be sustained. AR 135.

Joy objected to the Hearing Officer’s proposed decision. AR 141. On January 30, 2023, the Commission, on a 3-2 vote, approved the Hearing Officer’s findings, overruled Joy’s objections, and adopted the Hearing Officer’s recommendation sustaining discharge. AR 185-86.

Petitioner Joy challenges the Hearing Officer’s decision[5] on the grounds that (1) IA’s investigation was inadequate, (2) there is insufficient evidence that Joy and Flores were in an intimate relationship on May 30, 2014, (3) the decision failed to show the analytic route required by Topanga for the discipline, and (4) the penalty of discharge is excessive.

Joy notes that IA Officer Rivera was assigned the investigation into the allegations against Joy. Rivera testified that an investigation into peace officer misconduct requires that the investigator engage in fact finding and conduct interviews with relevant witnesses. AR 1420. When asked if he conducts interviews, Rivera responded: “Yes. With all persons involved.” AR 1420. However, Rivera only interviewed a single witness, SDPO Moro, in his investigation. AR 353. Rivera neglected to interview Flores, White, Randall, Parsons, and Urkel. All these witnesses were available to the Department as they were either employed by the County or named witnesses in the Flores lawsuit. Pet. Op. Br. at 9-10.

Additionally, the Department’s evidence consisted of selected trial and deposition transcripts from the Flores lawsuit. The testimony in each of these transcripts was made in contemplation of civil litigation. They were not investigative interviews conducted to determine if allegations of Joy’s misconduct were true. The Department simply pulled selected information from these transcripts and used them to summarily conclude that Joy had committed misconduct. Pet. Op. Br. at 10.

Real Party explains that Rivera testified that he cannot compel someone who does not work for the County to be interviewed. AR 1439. Flores was not an employee of the County at the time of the IA investigation and Parsons was never an employee of the County. The testimony transcripts of Randall, Flores, and White made during the Flores lawsuit trial was available for Rivera to review and incorporate into his investigation. The core of the investigation was the false statements Joy made under oath, and the evidence to prove those false statements occurred in the depositions and at the Flores trial. There was no need for interviews of these witnesses. Rivera interviewed Moro because her statement was needed to prove Joy’s lies at the August 29, 2017, deposition when he testified that Moro instructed him to finish the report that morning. Opp. at 14.

It is not clear what point Joy is making. The Hearing Officer specifically found Rivera’s investigation to be fair. AR 130. Joy points to no law that an agency’s investigation must thorough and complete. If it is not, that is an issue of unreliability that the accused may raise at the administrative hearing or in court. To the extent that Rivera’s investigation was incomplete because he did not interview pertinent witnesses, Joy points to no unreliability and therefore no prejudice. Presumably, he had the ability to subpoena witnesses to testify at his appeal hearing, and he makes no showing that any witnesses only were available to the Department. Joy also knew what these prospective witnesses would say because he had prior testimony or witness statements from all of them.

As for the allegedly misleading nature of the deposition and trial transcripts from the Flores lawsuit, that is something Joy could have argued at his administrative appeal. Yet, he provides no citation in the administrative record that he did so. Joy cannot make a blanket objection that the Department used the Flores lawsuit deposition and trial transcripts to pull out selective, but incomplete, information. He is required to make specific rule of completeness objections and has not done so.[6]

2. The Sufficiency of the Evidence Concerning the Relationship of Joy and Flores on May 30, 2014

Joy is correct (Pet. Op. Br. at 12) that the Hearing Officer’s decision – indeed, almost the Department’s entire case -- relies on the finding that he was involved in an intimate relationship with Flores as of May 30, 2014. This intimate relationship was a key fact in the Flores lawsuit in which Flores claimed that the culmination of harassment by the Department and White occurred on that date. If there was a sexual relationship on May 30, 2014, then Joy lied repeatedly in his interviews, deposition, and testimony at the Flores lawsuit trial, and also at his administrative hearing. If he did not, it seems likely that his remaining lies and evasiveness probably would not have led to his discharge.

Joy contends that the Department failed to establish that intimate relationship as of May 30, 2014. Both he and Flores testified that they were not in a romantic relationship on that date. AR1784-85, 1836-37. No other witnesses could provide testimony to credibly refute this fact. The Hearing Officer’s decision relied on circumstantial hearsay evidence to conclude that Joy’s denial of an intimate relationship with Flores was dishonest. Her decision also unfairly placed the burden on Joy to establish by preponderance of evidence that he was not in an intimate relationship with Flores as of May 30, 2014. See AR 119 (finding that Joy’s testimony was unsupported by any type of definitive evidence). Pet. Op. Br. at 10.

Joy correctly notes that CSR 4.10(B) permits hearsay evidence, but it is not sufficient alone to support a finding unless it would be admissible over objection in civil actions. In other words, the Department could rely on hearsay evidence, but only when it is corroborated by other evidence. Pet. Op. Br. at 11. Joy essentially argues that all the Department’s evidence of his intimate relationship with Flores was uncorroborated hearsay. He is incorrect.

Urkel testified at the Flores trial that “very soon after [Joy] started in the office they were dating or flirting or texting. I don’t know what you would call it. But she [Flores] was sharing that with me.” AR 1075. Flores did not use the term “dating”, but she would usually come into Urkel’s office because it was private and shut the door. AR 1075. She would share with Urkel text messages and pictures that she (Flores and Joy had sent to each other. She was very excited about seeing him. AR 1075-76. She would make a lot of hand gestures and had body language about their being with him. AR 1076. Flores showed her “racy pictures that she had sent him of herself in lingerie, a picture that he had sent to her of his genitalia, looking down at himself.” AR 1076.

Urkel testified at Joy’s appeal hearing that Flores came to her office and told her that she and Joy were having a sexual relationship, gave her details of that, and showed her texts in April or beginning of May 2014. AR 1662-63. Flores showed her the texts on her phone. AR 1664. Urkel could not remember the texts verbatim. AR 1664. They were very sexual and flirtatious texts. AR 1663. She called him “Daddy”. AR 1664. She showed Urkel a picture of herself in lingerie and a picture of Joy’s penis that he had sent to her. AR 1664. They had a full-blown sexual relationship and were in love. AR 1664.

Joy argues that no witness corroborated Urkel’s hearsay testimony that Flores disclosed her sexual relationship with Joy, including showing Urkel a picture of Joy’s unclothed genitals on her cell phone. Flores also testified that she never disclosed intimate details about Officer Joy to Urkel. AR 1786. Pet. Op. Br. at 11.

Joy is incorrect. Urkel’s testimony about what Flores told her arguably is a declaration against interest and separately admissible in a civil action. Evid. Code §1230. Even if it is inadmissible hearsay, it may be used to corroborate other evidence. More important, the texts from Joy that Flores showed to Urkel are Joy’s party admissions and admissible in a civil action. Evid. Code §1220. The racy pictures between Flores and Joy are not hearsay at all and also are admissible. Thus, Urkel’s testimony provided significant evidence of a sexual relationship between Joy and Flores in April or early May 2014.

Joy notes that Urkel testified at the administrative hearing that she spoke to SDPO Johnny Randall about Joy’s sexual relationship with Flores. Joy contends that this statement is hearsay as Randall did not testify to corroborate the statements Urkel attributed to him. In fact, it was discovered during the hearing that Urkel had an outside relationship with Randall. AR 1677. Joy told IA investigators that he believed Urkel and Randall had a relationship that transcended a work relationship and Urkel admitted in her testimony that she had a friendship with Randall, including Randall visiting her at her home. Urkel further testified that she considers Randall a friend, has maintained a relationship with him even after she left County employment, they have “got together” a few times, and Randall lives close to her home. AR 1682. Pet. Op. Br. at 11-12.

Joy argues that the Department failed to call Randall as a witness. As a result, Randall could not authenticate his IA transcript, nor corroborate any of the statements in it. The Hearing Officer abused her discretion by relying on Randall’s transcript for Finding of Fact #15, which relied solely on the hearsay statements of Randall. AR 132. Pet. Op. Br. at 12.

Joy is correct that, since Randall did not testify, his IA interview transcript is hearsay that could be used only to corroborate other evidence. Unfortunately, neither party’s brief cites the transcript, and the court does not know precisely what Randall said in his interview. Apparently, Randall provided a sworn statement that Joy admitted he had an intimate relationship with Flores. AR 132 (Finding 15). If so, Joy’s statement to Randall would be a party admission but Randall’s statement to Rivera would be hearsay that can be used only corroborate others. Randall need not authenticate his interview because Rivera testified and presumably did so.

White testified at the Flores trial that on May 30, 2014, he slowly drove around. AR 1203. The car was parked, and he got out of his vehicle and walked up to the other car. AR 1203. As he walked up, he realized it was Joy and Flores. AR 1203. He sat there and watched for a little while. AR 1203. They were kissing and grinding, and he watched out of curiosity. AR 1203.

Joy argues that the Department failed to call White as a witness at the administrative hearing. As a result, White could not authenticate his IA transcript, nor corroborate any of the statements in it. The Hearing Officer abused her discretion by relying on hearsay statements in White’s transcript. See AR 132. Pet. Op. Br. at 12.

White’s trial testimony in the Flores lawsuit was not an IA interview. (There may have been an IA interview but the parties do not cite to one.) White was not required to authenticate his trial testimony if someone else did so. (It is not clear who did so or whether it was received without objection.) Once received into evidence, White’s trial testimony was not hearsay.

Joy argues that White’s credibility was impeached at the administrative hearing when evidence was presented that White was dishonest about his involvement in the Mi Ranchito incident. White’s statements should be wholly disregarded as lacking all credibility as he was disciplined for misconduct stemming from the very same incident at the heart of the instant matter. AR 232. Yet, decisionmaker Williams testified that she was unaware that White was disciplined for his role in the Mi Ranchito incident when she made her decision to discharge. AR 1735–36. Pet. Op. Br. at 12-13.

There is no admissible evidence that White was disciplined as a result of the May 30, 2014 incident. Facts set forth in an appellate decision are not admissible as evidence. See Sosinsky v. Grant, (1992) 6 Cal.App.4th 1548, 1551. Even if the facts from the appellate decision were admissible, the decision states only that White was assigned to another office during the investigation and instructed not to discuss Flores’ complaint with other employees. RJN Ex. A, p. 21. That is not discipline. Moreover, the jury verdict in White’s favor, the appellate reversal of the judgment against the County, and the facts of this case indicate that any discipline for White was wrongly imposed.

The Department’s Exhibit 18 was Gailey Associates’ report of interviews of Parsons and Arana. Parsons was interviewed on July 31, 2017. AR 1228. She stated that Joy was acting weird in June 2014 when they went to see her father in Arizona. AR 1228. She confronted him about having an affair, which he denied. AR 1228. A week after they returned home, she went downstairs at 4:00 a.m. and found Joy sleeping next to a phone that she had never seen before. AR 1228. She was about to unlock it and read several text messages from Flores which clearly indicated they were romantically involved. AR 1228. There were many loving comments using the words “honey” and “baby”. AR 1229. There were also messages “I can’t talk” because she (Parsons) had entered the room. AR 1229. She confronted Joy and he initially denied the affair. AR 1228. Later that morning, he admitted the affair and she made him pack his bags and leave that day. AR 1228. She did not know when the affair began. AR 1228.

In June or July 2014, Joy moved into the Provenance Apartments. AR 1229. Joy wanted to see his children and Parsons went to the apartment to inspect it. AR 1229. She observed Flores clothes and a room set up for Flores’ children. AR 1229. Joy claimed that Flores and her children only stayed at the apartment sometimes. AR 1229. Parsons filed for divorce in July 2014. AR 1229.

Arana was interviewed and stated that he was married to Flores, and they divorced mainly because of Joy. AR 1231. He had suspicions that Flores was cheating on him for many months. AR 1231. He “probably” found text messages but would not provide details. AR 1231. He confronted Joy about the affair in May 2013, and Joy denied it, saying that Arana was delusional. AR 1231. Flores also initially denied the affair but admitted it in June or July 2013. AR 1231. Approximately a month later, Flores moved into an apartment in Santa Clarita. AR 1231.[7]

Joy argues that the Hearing Officer erred in relying on Exhibit 18. AR 132, 1227. The Parsons interview, conducted with Joy’s ex-wife after they divorced, was conducted in contemplation of the Flores lawsuit, not Joy’s disciplinary case. It was not a regularly kept business record of the Department. The author, Nicole Tahmasian, did not testify at the hearing. Thus, the document lacked authentication and constituted inadmissible hearsay. The report also contained double hearsay as to the statements attributed to Parsons or Arana (Flores’ ex-husband). Joy objected to the Hearing Officer’s use of the document as inadmissible hearsay. AR 161. Yet, the Hearing Officer relied upon it to conclude that Joy and Flores were in a relationship prior to May 30, 2014. AR 132. She abused her discretion in doing so. Pet. Op. Br. at 13-14.

Joy fails to show that he objected to the authenticity of Exhibit 18. The court agrees, however, that Exhibit 18 contains Gailey Associates’ hearsay interviews of Parsons and Arana. AR 1227. These interviews are admissible to corroborate other evidence that Joy and Flores were romantically involved no later than June or July 2014.

The testimony of Erkel and White, corroborated by the hearsay evidence in the Galley Associates interviews of Parsons and Arana, and the apparent sworn statement of Johnny Randall, established that Joy and Flores had an intimate relationship prior to May 30, 2014. AR 132. Therefore, Joy repeatedly lied to the contrary in interviews and while under oath.

Topanga requires the hearing officer to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. 11 Cal.3d at 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.

Joy argues that the Hearing Officer’s findings fail to provide the parties with sufficient grounds to conclude that the discharge was appropriate. They Hearing Officer provided nothing more than a cursory analysis that essentially copied and pasted the language found in the Notice of Discharge and the parties’ briefs.

Joy contends that the Hearing Officer wrote a mere three sentences of analysis as to the appropriateness of the discipline. AR 129-30. The Hearing Officer failed to meet the Topanga standard, depriving the court and Joy of the ability to determine how she decided the appropriateness of the discipline. Commissioner Segal stated: “I'm also, [voting] no, I'm really troubled by this case and I don't know what the right outcome is, but I do know that I agree with counsel when he talks about the lack of analysis applied here with regard to the discipline. And I'm just troubled with some of the other points that have been raised.” AR 2052. Pet. Op. Br. at 14, 18.

While Topanga requires adequate findings for an administrative decision, they need not be stated with formality. It is sufficient that the findings enable the court to determine that the agency found the necessary facts to support its determination. Kateen v. Department of Real Estate, (1985) 169 Cal.App.3d 481, 485. In state agency disciplinary matters, Topanga does not require penalty findings. Williamson v. Board of Medical Quality Assurance, (1990) 217 Cal.App.3d 1343, 1346. Under Govt. Code section 11518, the agency is only required to justify the penalty actually imposed, including a statement of the factual and legal basis for the decision, and there is no legal obligation to outline the reasons for rejecting a less form of discipline. Oduyale v. California State Board of Pharmacy, (2019) 41 Cal.App.5^th 101, 113. Joy points to nothing in the CSR 18 or County ordinances that requires penalty findings.

In any event, the Hearing Officer expressly found that Joy failed to provide credible testimony during the CEOP investigation regarding the May 30, 2014 incident, during the IA investigation, and in the depositions and trial of the Flores lawsuit. AR 133-34. Joy lied when he denied telling SDPO Randall that he was involved with Flores. AR 132. Joy lied at trial and made unfounded accusations against White. AR 133. He lied under oath that SDPO Moro required him to report to the office and complete a probation violation report before attending his deposition set for 10:00 a.m. on August 29, 201. AR 133. Joy engaged in a pattern of evasiveness and dishonesty. AR 134.

Decision-maker Williams testified that DPOs must be honest and accurate. AR 127. Joy lied under oath, accused co-workers, and lied to supervisors. AR 127. There is no tolerance for dishonesty. AR 127. Williams did not recommend a lesser discipline for Joy because, when an officer has a track record of lying, it creates a credibility issue for their reports and testimony in court. AR 127. Joy had no prior history of lying, but Williams made the decision to discharge him based on the totality of the case. AR 127.

The Hearing Officer found that Joy was a DPO with at least 25 years of experience and violated Department policies. AR 129-30. Joy failed to present mitigating factors that would warrant reversal of the discharge decision. AR 130. The Hearing Officer recommended that the discharge be sustained. AR 135. These findings are sufficient to meet any Topanga requirement for public employee discharge from a local agency.

Joy disputes his discharge as an appropriate penalty. He argues that the Department developed an animus towards Joy when he testified as Flores’ witness in her lawsuit. Joy’s testimony was crucial as he was the sole witness to the encounter between White and Flores at the Mi Ranchito restaurant in Lancaster. Joy’s testimony assisted the jury in understanding the level of mistreatment White directed at Flores. Pet. Op. Br. at 14.

Ultimately, the jury found in Flores’ favor leading to a large monetary verdict against the County. Flores and her attorneys were awarded over $700,000 in damages and attorney fees. After the trial, an attorney representing the Department, Donna Koch, Esq., emailed the Department and summarily alleged that Joy was untruthful in his testimony without any supporting facts. She reminded the Department to be mindful of the POBRA statute of limitations within Govt. Code section 3300. AR 227-28. As a result of the email, the Department conducted a cursory investigation and unjustly discharged Joy from his permanent position in bad faith and without just cause. Pet. Op. Br. at 15.

Joy had never been suspended during his lengthy career. He had no previous discipline other than a letter of reprimand in 2010. AR 12. He also had no history of dishonesty despite nearly 25 years of service to the Department. Pet. Op. Br. at 18.

No evidence established that he had any propensity to lie while employed by the Department. His credibility was never impeached at the Flores trial. The Department simply found his testimony to be unfavorable and imposed the highest level of discipline as a result. As often occurs, the Department stacked multiple bases for discipline to substantiate an unreasonably high level of discipline. Many of these bases rely on the same underlying allegations. Once the overlapping bases are removed, the Hearing Officer should have concluded that, even if some allegations were true, discharge was not warranted under the disciplinary guidelines. Pet. Op. Br. at 15-17.

Joy demonstrated no willful disregard for his duties or the safety of those around him and merely made good faith statements about what he had witnessed. None of his testimony had a direct nexus to the services he provided to probationers as a public employee. The Hearing Officer heard lengthy testimony from both Joy and Moro regarding his application to duties and his impressive service history with the Department. Moro testified about her interactions with Joy and that she reviewed his reports and found them to be honest and accurate as well as always timely submitted. AR 1645. Despite this evidence, the Hearing Officer provided no discussion about the impact of his positive service history. Pet. Op. Br. at 17.

Joy received more than 37 written letters of appreciation and commendation from a variety of individuals over his nearly 25-year career with the Department. AR 248-313. These letters of appreciation and commendation are objective proof that he spent nearly 25 years serving both the Department and the clients entrusted to its care. The Hearing Officer failed to give weight to this evidence in determining whether discharge was the appropriate level of discipline. Pet. Op. Br. at 16.

The purpose of public employee discipline is to correct behavior, and when necessary, remove those employees who hinder the Department’s successful operation. Joy did not hinder the operation of the Department and his contributions in his nearly 25-year career were immensely valuable to the Department. The Hearing Officer had insufficient evidence to sustain a discharge. Pet. Op. Br. at 17-18.

The court’s powers are limited and exercised with great deference to the Commission’s decision on the question of penalty. See Deegan v. City of Mountain View, (“Deegan”) (1999) 72 Cal.App.4^th 37, 45. 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, supra, 7 Cal.3d at 515. It is only in an exceptional case that an abuse of discretion is shown because reasonable minds cannot differ on the propriety of penalty. Deegan, supra, 72 Cal.App.4^th at 45. The agency’s discretion is not unfettered, however, and the court may find an abuse where the decision exceeds the bounds of reason. Kolender v. San Diego Civil Service Commission, (2007) 149 Cal.App.4^th 464, 471.

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, supra, 15 Cal.3d at 217-18. In weighing these factors, the court considers the nature of the employee's profession, “since some occupations such as law enforcement, carry responsibilities and limitations on personal freedom not imposed on those in other fields.” Cate v. State Personnel Board, (“Cate”) (2012) 204 Cal.App.4^th 270, 284

The harm to public service is by far the most important consideration. Joy is correct that his testimony in the Flores lawsuit was crucial because he was the sole witness to the encounter between White and Flores at the Mi Ranchito restaurant in Lancaster. He is incorrect, however, that the jury rendered a large monetary verdict. It found against Flores with respect to White and against the County for only approximately $62,000 in damages. The trial judge then awarded approximately $687,000 in attorney fees.

Joy also probably is correct that the Department developed an animus towards him because of his testimony in Flores’ lawsuit. Joy is wrong, however, that the investigation was triggered by the January 26, 2018 email from attorney Donna Koch, Esq. AR 227-28. The IA investigation was triggered months earlier, on August 30, 2017, when Risk Manager Vicky Santana contacted the IA and alleged that Joy made false and misleading statements during his deposition. AR 334.

In any event, there is no question that Joy’s misconduct caused harm to the public service. His repeated lies cost the County the expense of defending the Flores lawsuit through trial and on appeal, as well as the expense of Rivera’s IA investigation. Joy’s lies violated the Department tenants of honor, dignity, and wisdom, and put the Department’s reputation at risk, exposing it to ridicule by other Department employees and members of the public.

Joy’s false statements have a significant impact on his ability to perform the duties of a probation officer because he is expected to be able to function as law enforcement investigators and testify in criminal cases. Should Joy have to testify in a criminal prosecution, his credibility would be impacted. He could be examined on his false statements, both in his interviews, depositions, and under oath. This information would be discoverable by a defense attorney through a Brady or Pitchess motion. The public is not required to pay the salary of a peace officer who cannot perform one of his/her essential duties.

Honesty, credibility, and temperament are crucial to the proper performance of an officer's duties, and dishonesty is incompatible with public trust. Kolender v. San Diego Civil Service Commission, (“Kolender”) (2005) 132 Cal.App.4th 716, 721. It is true that not every Department employee must be discharged when guilty of dishonesty. But it is also true that peace officers are held to higher standards, honesty is crucial to the proper performance of an officer’s duties, and dishonesty by law enforcement is treated harshly. Cate, supra, 204 Cal.App.4th at 285. “[W]e know of no rule of law holding every deputy sheriff is entitled to [tell one lie] before he or she can be discharged.” Kolender, supra, 132 Cal.App.4^th at 723.

Joy continued to provide false statements for several years. It may be unlikely that he would have to support Flores again with false testimony. Nonetheless, he clearly would do so if the occasion arose. In any event, repeated acts of intentional dishonesty are grounds to dismiss a peace officer. See Kolender, supra, 132 Cal.App.4th at 721 (discharge appropriate when peace officer made false statements during investigation into inmate abuse despite later telling the truth); Paulino v. Civil Serv. Com., (1985) 175 Cal.App.3d 962, 972 (upholding discharge of peace officer who repeatedly made false statements about being sick); Cate, supra, 204 Cal.App.4^th at 285 (discharge appropriate when peace officer made false statements during investigation into inmate’s suicide attempt).

This is not the exceptional case that an abuse of discretion is shown because reasonable minds cannot differ on the propriety of penalty. Joy’s repeated acts of dishonesty caused serious harm to the County and justify his discharge.

The petition for writ of mandate is denied. Real Party Department’s counsel is ordered to prepare a proposed judgment, serve it on Joy’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 May 16, 2024 at 9:30 a.m.

[1] Real Party Department requests the court to judicially notice the unpublished appellate decision in Flores v. County of Los Angeles, Case No. B287382, December 13, 2019. The request is granted. Evid. Code §452(d).

[2] Flores contends that White was disciplined as a result of the May 30, 2014 incident, but he cites to the appellate decision in Flores v. County of Los Angeles. The facts set forth in an appellate decision are not admissible as evidence. See Sosinsky v. Grant, (1992) 6 Cal.App.4th 1548, 1551.

[3] The Hearing Officer also set forth Joy’s position. AR 124-26. The court has not included it because the Hearing Officer did not adopt it.

[4] Apparently, SDPO Randall provided a sworn statement that Joy admitted having a sexual relationship with Flores. This statement was not cited by either party and is not in the Joint Appendix.

[5] For convenience, the court will refer to the Hearing Officer’s proposed decision that was adopted by the Commission as the “decision”.

[6] Joy makes no argument that the transcripts from the Flores lawsuit depositions and trial were inadmissible at his administrative hearing.

[7] When questioned about his timeline because he appeared to be a year off, Arana stated he was sure Flores moved out in 2013 and they divorced in 2014. AR 1231. Based on the other evidence, Arana clearly was wrong. The year of described events was 2014.