Judge James C. Chalfant, Case Number: 23STCP02481, Date: 2024-05-07 Tentative Ruling

Petitioner Los Angeles County Museum of Art (“LACMA”)[1] seeks a writ of mandate compelling Respondent Los Angeles County Civil Service Commission (“Commission”) to set aside its decision reducing its discharge of Real Party-in-Interest Manuel Scagliotti (“Scagliotti”) to a 30-day suspension.

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

Petitioner LACMA filed the Petition against Respondent Commission on July 17, 2023, alleging one cause of action for administrative mandamus. The Petition alleges in pertinent part as follows.

Petitioner County is a public entity and legal subdivision of the State of California under Article XI of the California Constitution. Pet., ¶1. LACMA is an administrative sub-unit of the County. Pet., ¶2.

Respondent Commission is created by Article IX of the County Charter and is responsible for administering the merit-based civil service system for County personnel, including Scagliotti. The Commission is the appellate body authorized to hear and resolve appeals for employment-related issues. County Civil Service Rule (“CSR”) 4.01. Pet., ¶4.

Real Party-in-Interest Scagliotti was formerly employed by LACMA as a Refrigerator Technician. Pet. ¶3. He was discharged from County service after he was charged with felony possession of illegal assault weapons. Pet., ¶5.

Scagliotti petitioned the Commission for a hearing. The Commission appointed a hearing officer to hear the evidence. After a full hearing on the merits, the hearing officer recommended upholding the discharge. The hearing officer found Scagliotti’s claims that he committed the crimes out of ignorance not credible and the fact that the felonies were retroactively determined to be misdemeanors insufficient to overcome the disciplinary decision. The hearing officer found Scagliotti’s discharge was appropriate, particularly as LACMA could not continue to employ someone who was found to have acted in such a reckless manner and charged with felony counts of illegal possession of firearms, larceny and a misdemeanor count for marijuana. Pet., ¶6.

Scagliotti objected to the Commission’s adoption of the hearing officer’s report. The Commission then overturned the discharge and reinstated Scagliotti to his position after serving a 30-day suspension. LACMA objected to the new proposed decision, but the Commission overruled those objections. Pet., ¶7.

LACMA maintains that the Commission’s reinstatement of Scagliotti as a Refrigeration Technician was an abuse of discretion. Pet., ¶7. The Commission abused its discretion by imposing a 30-day suspension and not upholding a discharge. In determining there was no job nexus, the Commission ignored personnel-related issues, dealing with supervisors, clients, co-workers, and the public, all of which require professional behavior. By compelling LACMA to keep Scagliotti as an employee, the Commission is exposing LACMA and the County to potential liability. Pet., ¶21.

Petitioner LACMA seeks a writ of administrative mandamus commanding the Commission to set aside its decision and enter an order restoring the discharge of Scagliotti.

A proof of service on file shows that the Commission was served on August 2, 2023. The Commission filed a notice of no beneficial interest in the outcome on October 16, 2023.

Real Party Scagliotti accepted service by notice and acknowledgement on August 15, 2023. He filed an Answer on September 13, 2023.

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 exercise its independent judgment on the evidence. County of Los Angeles v. Civil Service Commission, (1995) 39 Cal.App.4th 620, 633. Therefore, the substantial evidence test applies to the court’s review of the County’s mandamus claim concerning Scagliotti’s discipline.

“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 You 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 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 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 515.

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, (“Lake”) (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.

An employer (including a public employer) shall not use as a factor in terminating an employee a record of arrest that does not result in a conviction. Labor Code §432.7(a).

A felony conviction involving moral turpitude constitutes cause for discipline of a public agency employee. Govt. Code §19572(k). “A plea or verdict of guilty, or a conviction following a plea of nolo contendere, to a charge of a felony or any offense involving moral turpitude is deemed to be a conviction within the meaning of this section”. Id. “Other failure of good behavior either during or outside of duty hours, which is of such a nature that it causes discredit to the appointing authority or the person's employment” is also cause for discipline. Govt. Code §19572(t).

CSR 18.031 provides grounds for disciplining a County employee: “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….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….” AR 333 (emphasis added).

County Department of Human Resources Guidelines (“Guidelines”) Rule VI authorizes discipline for criminal or unbecoming conduct on or off-duty. AR 343.

Rule VI.A provides that conviction of any crime with a job nexus to county employment warrants a 15-30-day suspension for a first offense and discharge for a second offense. Id.

Rule VI.B provides that criminal or unbecoming conduct while performing duties, on County remises, or during work hours or when such conduct is related to the employee’s duties or departmental interest warrants a 30-day suspension or discharge for a first offense. Id.

Rule VI.B cites County Policy 514, which in pertinent part states: “Departments shall not place a person in a sensitive position if the person has been convicted of a felony or a misdemeanor, except that such conviction may be disregarded and if, after conducting individualized assessment, it is determined that there are mitigating circumstances or the conviction is not related to the position and poses no threat or risk to the County or public. Further, departments shall consider as sensitive any position involving duties which pose a potential threat or risk to the County or to the public when performed by persons who have a conviction history incompatible with those duties whether those persons are employees of the County employees, volunteers, or perform those services pursuant to contract.” AR 288 (emphasis added).[2]

Rule VI.C provides that conviction of crimes (whether felony, misdemeanor, or infraction) or unbecoming conduct that may include, but are not limited to, illegal drugs, theft, inappropriate sexual behavior, crimes against persons or property, human trafficking, etc., warrant a 30-day suspension or discharge for a first offense. Id.

Scagliotti was employed with LACMA as a Refrigeration Mechanic (HVAC Technician) commencing in 1997. He held this position until his termination in August 2018. AR 69. Scagliotti’s job duties included maintaining the heating and air conditioning systems at the museum. AR 348-49. He was not a sworn officer and did not carry a firearm. See id.

During his 21 years with LACMA, Scagliotti was never disciplined and mostly received “very good” and “outstanding” ratings on his performance evaluations. AR 70, 250, 252, 255. In the comments attached to his evaluations, there is no suggestion that he lacked judgment in performing his job duties or that he exhibited any unusual or threatening behavior toward colleagues or members of the public. AR 251, 254, 256.

On April 14, 2016, the Los Angeles Police Department (“LAPD”) searched Scagliotti’s residence following a complaint from a neighbor.[3] AR 442. LAPD confiscated 26 firearms from Scagliotti’s house and placed him under arrest. The 26 firearms consisted of 19 firearms lawfully registered to Scagliotti, four firearms registered to a friend who had temporarily left them with him after a day at the shooting range, and three unregistered firearms. AR 433-34.

On February 1, 2017, the District Attorney filed nine felony charges and one misdemeanor charge against Scagliotti. Seven of the felony charges were for unlawful possession of an assault weapon (Penal Code §30605(A), one felony was for manufacturing and possessing a short-barreled rifle (Penal Code §33215), and the ninth felony was for larceny (Penal Code §487(A)). AR 70. The misdemeanor charge was for cultivating marijuana (Health & Safety Code §11358). AR 70, 351.

On November 27, 2017, Scagliotti pled nolo contendere to three felony firearm charges: two charges for unlawful possession of an assault weapon in violation of Penal Code section 30605(a) and one charge for possessing a short-barreled rifle in violation of Penal Code section 33215. AR 70, 363. The District Attorney dismissed the remaining charges pursuant to a plea agreement, including five of the firearm charges, the larceny charge, and the marijuana charge. AR 366. Scagliotti was convicted and received a suspended sentence with three years’ formal probation on condition that he serve six days in jail with credit for time served, perform 60 days of community labor/Caltrans, and pay various fees and restitution. AR 364.

The charges on which Scagliotti was convicted were “wobblers” which could be reduced to misdemeanors upon successful completion of probation. Scagliotti met the conditions of his probation and, on June 16, 2020, his convictions were reduced to misdemeanors and dismissed pursuant to Penal Code section 1203.4. AR 70, 305-06.

On July 30, 2018, LACMA issued a Letter of Intent to Discharge (“Letter of Intent”) to Scagliotti based on his three firearm convictions. AR 319-24. The Letter of Intent relied on his violation of CSR 18.031 and Guideline Rule VI.B and VI.C as the policies violated. AR 319.

Scagliotti failed to appear at his Skelly hearing and presented no evidence for LACMA to consider. AR 67, 404-05.

On August 20, 2018, LACMA issued a Notice of Discharge to Scagliotti based on the three firearm convictions, again relying on CSR 18.031 and Guideline Rule VI.B and VI.C. AR 3-8.

On July 23, 2018, the City, through the Department of Water and Power (“DWP”), filed a civil action (BC714718) against Scagliotti for diverting power during the period of 2000-2016 by means of a wiring bypass. AR 155-56. DWP sustained damages of $173,328.07 for both metered and unmetered consumption. AR 156. On December 10, 2018, a default judgment was entered against Scagliotti in the amount of $551,888.57, including treble damages and interest. AR 160-61.

On September 6, 2018, Scagliotti appealed his discharge to the Commission. On May 20, 2021, a hearing was held in front of Hearing Officer Richard Terzian (“Hearing Officer”). AR 66. LACMA’s sole witness was its Chief Deputy Director Ann Rowland (“Rowland”). Scagliotti testified in his defense.

Rowland testified in pertinent part as follows. LACMA’s biggest asset is its art, which is valued at billions of dollars. AR 419. Due to the nature of his position, Scagliotti had unfettered access to all parts of the buildings including art storage rooms, staff offices, the galleries, and other storage areas of the Museum. AR 396-97.

The felony charges against Scagliotti were serious and “they” did not feel it appropriate for a convicted felon to work there. AR 402. He might be a danger to the staff and public and his bad judgment was not consistent with the sort of employee they want. AR 402. They discussed the issue with Human Resources and looked at the Guidelines and were advised that discharging Scagliotti was consistent with the rules and regulations. AR 403. They considered his lack of prior discipline, but the level of criminal behavior and lack of judgment superseded his record. AR 405. Discharge is permissible under the Guidelines for criminal or unbecoming conduct. AR 406.

Scagliotti’s bad judgment in possessing illegal firearms made him unfit for service with the County. AR 408. “[H]aving a convicted felon in an art museum doesn’t sit well.” AR 408. His “bad judgment” was engaging in criminal activity that resulted in a conviction and that is what she relied on in making the decision to discharge him. AR 423-24.

Scagliotti testified in pertinent part as follows. His main priority in his job was maintaining the temperature and humidity for the proper preservation and presentation of the artwork. AR 430. He mainly dealt with equipment and had little interaction with the public during the workday. AR 432.

He is a firearm collector. AR 434. He uses his guns on the shooting range to target shoot. AR 434. When LAPD executed a search warrant at his home, he had 26 weapons, 19 of which were in his name. AR 433. Of the seven unregistered weapons, four were registered in the name of his friends. AR 433. He brought them home to clean after they were used at the shooting range. AR 434.

He pled no contest to three felony charges. AR 445. Two of the unregistered firearms for which he pled no contest were given to him in 1992 by the family of a close friend who passed away. AR 436-38. Scagliotti did not register these firearms because he was unaware of the procedures for registering guns inherited from others. AR 437-38. The third unregistered firearm for which he was convicted was an 80% pistol platform that he custom built in 2002. AR 438-39. He was not aware that it was considered an illegal short-barrel rifle until the criminal proceedings against him. AR 438-39.

On cross-examination, LACMA attempted to ask Scagliotti about the DWP default judgment. AR 457. The Hearing Officer sustained the objection of Scagliotti’s counsel on relevance grounds. AR 457. LACMA’s counsel argued that the evidence went to Scagliotti’s credibility but the Hearing Officer reiterated that the objection was sustained and told LACMA’s counsel to move on. AR 457.

On July 2, 2021, the Hearing Officer issued a Proposed Decision recommending that Scagliotti’s discharge be upheld based on his three firearm convictions. AR 67-76. The Hearing Officer stated that the Commission defined the issues as: (1) Are the allegations contained in the Department’s letter of August 20, 2018 true? and (2) If any or all of the allegations are true, is the discipline appropriate? AR 67.

The Hearing Officer found there was no factual dispute. AR 68. Scagliotti admitted to, and was convicted of, three felonies. AR 68. That the felonies were retroactively reduced to misdemeanors was of no consequence. AR 69. Rowland testified that she could not have an employee who exercised such poor judgment in proximity to other employees, in light of the value of LACMA’s collection and the safety of other employees. AR 69. Scagliotti’s claim that he committed the crimes out of ignorance was not credible. AR 69, 70.

Scagliotti’s job gave him unlimited and unsupervised access to LACMA’s art collection both on display and in storage worth billions of dollars and “arguably priceless”. AR 69. His conviction for three felonies relating to guns -- two for possession of unregistered assault rifles and the third for manufacture and possession of a short-barreled rifle -- was conduct unbecoming of a County employee. AR 70. Scagliotti’s conviction of the crimes represents extremely bad judgment on his part, which had a significant adverse effect on other LACMA employees and its relations with the public, and which endangered its priceless assets in the form of its art collections. AR 70.

The Hearing Officer concluded that LACMA met its burden in proving the allegation and that the discharge was appropriate. He recommended that the discharge be sustained. AR 71.

On October 6, 2021, Scagliotti filed objections to the Proposed Decision. AR 80. At the ensuing Commission hearings, a Commissioner observed that she “did not see any support for” the implication in Rowland’s testimony that Scagliotti would use the firearms to “rob or bring harm to the museum.” CSCHT-20. Another Commissioner stated that there was no “job nexus” and that “discharge [was not] supported by the facts found.” CSCHT-61. A third Commissioner noted that “there had been no evidence in this case that any weapons had been brought to work.” CSCHT-64-65.

On a 3-2 vote, the Commission issued a new Proposed Decision reducing Scagliotti’s termination to a 30-day suspension on the grounds that LACMA “did not prove a nexus between [Scagliotti’s] off duty conduct and [his] job duties.” AR 117-18.

LACMA filed objections to the New Proposed Decision in which it, inter alia, submitted records related to the DWP default judgment. AR 119-29, 155-61.

On April 19, 2023, the Commission overruled LACMA’s objections and issued a final order reducing Scagliotti’s discharge to a 30-day suspension. AR 168-69, 227.

Petitioner LACMA seeks a writ of mandate compelling the Commission to set aside its decision. LACMA argues that (1) the Hearing Officer wrongly sustained the objection to a question on cross-examination of Scagliotti concerning the DWP default judgment and (2) the Commission erred in reducing the penalty to a 30-day suspension.

LACMA’s arguments are disposed of by the fact that the standard of review in this case is substantial evidence. County of Los Angeles v. Civil Service Commission, supra, 39 Cal.App.4th at 633. Scagliotti stands convicted of three weapons charges and the Commission’s decision that there is no nexus between his possession of illegal assault weapons at his home and his job at LACMA is supported by substantial evidence.

1. LACMA Improperly Relies on Facts Not in the Record and Inferences That Are Impermissible

As a threshold matter, Scagliotti correctly argues that LACMA’s briefs improperly rely on facts not in the administrative record and an inference that may not lawfully be drawn. Opp. at 12, 14-15.

First, LACMA relies on the fact that Scagliotti was charged with ten criminal offenses, and not just his conviction for three offenses, to argue that the nature and quantity of the entire charges shows that he poses a threat to the County. Pet. Op. Br. at 7, 14, 17. The existence of unproven charges cannot be relied upon by an employer in discharging an employee. See Labor Code §432.7(a). Moreover, LACMA’s Notice of Discharge only relied on the three charges for which Scagliotti was convicted, not the seven other charges which were dismissed. AR 3-8. LACMA may not properly rely on the dismissed charges to reach any conclusions.

Second, LACMA argues that the Scagliotti “illegally planted, cultivated and processed marijuana” using the electricity he “diverted” from DWP. Pet. Op. Br. at 16, 19. While the default judgment in DWP’s favor is in the record, there is no evidence that Scagliotti stole power from DWP to cultivate marijuana. See AR 155-61.

Third, LACMA argues that Scagliotti’s criminal case was “highly publicized through major media outlets” and that there was “media interest in the case”. Pet. Op. Br. at 14, 19. In reply, LACMA argues that there was “high publicity of [Scagliotti’s] arrest” and devotes an entire paragraph to an ABC7 report of the search and arrest on April 15, 2016. Reply at 4, 8. LACMA fails to cite any evidence in the administrative record of publicity surrounding Scagliotti’s arrest.

Fourth, LACMA argues that Scagliotti was convicted of owning a “sawed-off shotgun”, which is the weapon of choice for robberies and heists because they are easy to conceal. Pet. Op. Br. at 10, 16. The Hearing Officer found that Scagliotti possessed a “short-barrel rifle,” not a “sawed-off shotgun.” AR 70.[4]

LACMA argues that the Hearing Officer excluded evidence of the default judgment entered against Scagliotti for stealing hundreds of thousands of dollars’ worth of power. AR 155-61, 457. The City filed a lawsuit against Scagliotti for unmetered consumption of water and power worth $173,328.07 from 2000 to 2016 by diverting electricity from DWP by means of a wiring bypass. AR 155-61. A default judgment totaling $551,888.57, which included treble damages, was entered against Scagliotti. Id. LACMA contends that the default judgment is concrete proof that Scagliotti stole public property for over a decade. The default judgment also proves Scagliotti is untrustworthy, lacks truthfulness, and is a dishonest person, thereby showing a nexus to his job. AR 294. The Commission abused its discretion by excluding the default judgment. Pet. Op. Br. at 19-20.

LACMA contends that the default judgment was significantly relevant because Scagliotti stole hundreds of thousands of dollars’ worth of power from DWP. Theft is a crime of moral turpitude, and it goes to Scagliotti’s truthfulness and honesty and proves a nexus to his job. The excluded evidence would further reflect upon Scagliotti’s history of using public property for his financial gain and further demonstrate that the conduct that gave rise to the dismissal was egregious and inconsistent with the LACMA’s mission and the requisite professionalism, integrity and sound judgment required from a County employee. Further, Scagliotti stole power by means of a wiring bypass, showing that he has the skill to compromise sophisticated security undetected. Pet. Op. Br. at 1; Reply at 8.

LACMA mischaracterizes the evidence excluded by the Hearing Officer and the reasons why its counsel offered it. The Hearing Officer did not exclude evidence of the default judgment; LACMA only added that evidence when it filed objections to the Commission’s Proposed Decision. AR 119-29, 155-61. Rather, the Hearing Officer sustained a relevance objection when LACMA’s counsel attempted to ask Scagliotti about the DWP default judgment. AR 457. LACMA’s counsel argued that the question was relevant for Scagliotti’s credibility but the Hearing Officer reiterated that the objection was sustained and told LACMA’s counsel to move on. AR 457. This evidentiary ruling is reviewed for an abuse of discretion. See CCP §1094.5.

Scagliotti argues that the Hearing Officer properly excluded this question because it would have violated CSR 4.03(C), which requires the Commission to issue a Notice of Hearing advising the parties of “the specific issue(s) . . . to be heard” and that “no other issues shall be heard” at the hearing. The Commission only identified two issues in the Notice of Hearing: (1) whether the allegations contained in Scagliotti’s Notice of Discharge were true; and (2) if so, whether discipline is appropriate. AR 329. The allegations contained in the Notice of Discharge did not mention the DWP judgment; only the firearm convictions were mentioned. AR 3-8. Opp. at 12-13.

Due process also requires that the affected employee be provided with the “grounds for discipline” and the “charges and materials on which the action is based.” Skelly, supra, 15 Cal.3d at 736. Likewise, the agency must inform the employee of the “substance of the charge” before the hearing commences. Smith v. State Bd. of Pharmacy, (1995) 47 Cal.App.4th 229, 241-42 (due process violation where charges pursued at the hearing differed from the charging document). Opp. at 13.

This is true but not controlling. There is nothing in Skelly or CSR 4.03(C) that limits the quantity of evidence an agency can submit at a disciplinary appeal hearing in connection with the charged matters. Questions of Scagliotti by LACMA’s counsel designed to impeach his credibility are permissible. Evid. Code §785. However, specific instances of conduct generally are inadmissible to show a character trait. Evid. Code §787.

The court need not decide whether the Hearing Officer committed an abuse of discretion in excluding questions about Scagliotti’s default judgment for theft of power from DMV because any abuse of discretion was harmless error. Even due process violations are subject to a harmless error analysis. Hinrichs v. County of Orange, (2004) 125 Cal.App.4th 921, 928. The Hearing Officer explained that he did not find Scagliotti’s explanation credible that he committed his weapon possession crimes out of ignorance. AR 69. LACMA points to no other aspect of Scagliotti’s testimony that could bear on the proper penalty, and any error in not permitting the question to be answered was harmless.[5]

LACMA argues[6] that the Commission abused its discretion by reducing the discharge to a slap on the wrist 30-day suspension despite the “weight of the evidence”[7] and the harm to the public. Considering the nature of the crimes, the circumstances surrounding their commission, and Scagliotti’s access to LACMA’s billions of dollars’ worth of art located in various art storage rooms and galleries, employees, and patrons, it is undeniable that the Commission exceeded all bounds of reason and abused its discretion by reducing the discharge to a 30-day suspension. A 30-day suspension sends a wrong message to County employees that the illegal possession of dangerous weapons has no negative consequence to their employment. A discharge reassures the public that they are safe at LACMA, and artists and generous donors will rest assured that their priceless art and contributions to the County are not threatened by dangerous felons like Scagliotti. A mere slap on the wrist of a 30-day suspension does not protect the public from the harm of heist and robbery. Pet. Op. Br. at 12-13, 15, 20.

In seeking to set aside the Commission’s penalty determination, LACMA faces a steep burden. 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, supra, 47 Cal.App.3d 224, 228. 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. The court may not substitute its own judgment for that of the Commission and court must uphold the penalty if there is any reasonable basis to sustain it. Id. at 46. It is only in an exceptional case that an abuse of discretion is shown because reasonable minds cannot differ on the appropriate penalty. Deegan, supra, 72 Cal.App.4^th at 45.

Thus, the issue is whether the Commission’s decision to reduce Scagliotti’s penalty to a 30-day suspension was a clear abuse of discretion. See Cate v. State Personnel Bd., (“Cate”) (2012) 204 Cal.App.4th 270, 285. The agency’s discretion is not unfettered, and the court may find an abuse of discretion where the decision exceeds the bounds of reason. Kolender v. San Diego County Civil Service Commission, (“Kolender”) (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, supra, 204 Cal.App.4th at 284.

Harm to the public service is the most important consideration. County of Los Angeles v. Civil Service Commission of County of Los Angeles, (2019) 40 Cal. App. 5th 871, 878 (citation omitted). The pu0blic is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability. Kolender, supra, 149 Cal. App. 4th at 471 (citations omitted).

LACMA argues that Scagliotti’s conviction has tarnished LACMA’s reputation. LACMA is a reputable museum and should not be employing a convicted felon who had access to over 26 guns, some of which are unregistered and illegal to possess, including an illegal short-barrel rifle. Reputable artists will think twice or even look for other museums either to donate or even exhibit their rare art because of the risk Scagliotti poses to these unique treasures. Scagliotti’s employment is a significant risk to LACMA’s reputation and his employment has a negative impact on public trust. Pet. Op. Br. at 13-14.[8]

Scagliotti’s employment also exposes LACMA to financial and legal responsibility. Scagliotti is no ordinary employee who missed one day’s work or came to work a few hours late. His felony conviction of Scagliotti was for possessing multiple unregistered guns and manufacturing and possessing a short-barrel rifle. It is common knowledge that such guns are a choice of weapon for criminals engaged in robberies and heists because they are easy to conceal and cause significant damage. Still, the Commission failed to consider the weight and the nature of the felony conviction and the significance of owning a short-barreled rifle by a person who has access to billions of dollars’ worth of art and history. Pet. Op. Br. at 15.

A 30-day suspension for such an egregious crime sends a wrong message to other County employees that illegal possession of dangerous weapons is acceptable. Discharge sends the correct message to County employees that the County does not condone crime, and that felons like Scagliotti have no place in the County for employment. A discharge also reassures the public that they are safe at LACMA, and artists and generous donors who donate millions of dollars to LACMA will rest assured that their priceless arts and contributions are not threatened by dangerous felons like Scagliotti. Pet. Op. Br. at 20.

LACMA further argues that the circumstances of Scagliotti’s misconduct are egregious. He possessed 26 guns, some of which were unregistered, and pled no contest to three felony charges. During the hearing, Scagliotti argued that the felonies he was convicted of were regulatory violations. AR 326. This argument is meritless because one of those felonies was for manufacturing and possession of a short-barreled rifle, a choice of weapon for heists, burglaries, and robberies. The fact that Scagliotti evaded detection while working under the nose of the County is proof that Scagliotti could hide in plain sight waiting for the perfect moment to do harm to the public and LACMA employees. Pet. Op. Br. at 17-18.

The Commission’s conclusion that the public harm from Scagliotti’s misconduct is modest because it is not connected to his work is supported by substantial evidence. AR 117-18.

As Scagliotti argues, there is no connection between Scagliotti’s weapons convictions and the workplace. The only place he ever took his firearms was the shooting range. AR 434-35. He did not bring the weapons to work, was never seen with them outside work while in a County uniform, and did not engage in any public behavior that attracted the attention of the police. When LAPD seized the firearms, they were stored safely in his home. Opp at 8.

There also is no nexus between Scagliotti’s convictions and his job duties as a Refrigeration Mechanic. As a civilian employee, Scagliotti is not subject to the “higher standards of conduct” that apply to law enforcement personnel. His job as a Refrigeration Mechanic is to maintain LACMA’s heating and refrigeration systems. He does not carry a weapon and is not responsible for enforcing firearm regulations. As such, there is no connection between Scagliotti’s possession of unregistered firearms and his job duties. Opp. at 8-9.[9]

Nor are the circumstances of his misconduct egregious. Despite LACMA’s arguments about danger to the public, its employees, and its artwork, there is no evidence that Scagliotti’s weapons convictions show him to be a threat. Scagliotti has been a gun collector for decades. He acquired two of the guns in question before he began working at LACMA and acquired the third in 2002, 16 years before his termination. AR 436-38.[10] Scagliotti never exhibited any behavior suggesting that he would use his firearms to carry out a heist of LACMA’s art collection. As the Commission recognized, Scagliotti’s possession of the three illegal firearms does not call into question his ability to perform his job duties. The convictions were not crimes of violence or moral turpitude that would create concerns over whether he could be trusted around LACMA’s property. Whether or not one agrees with him that his convictions stemmed from a misunderstanding of California’s complex gun regulations, he lawfully owned a number of firearms and never used them in an illegal or irresponsible fashion. Opp at 9.[11]

Finally, Scagliotti correctly criticizes LACMA’s assertion that there is a straight line from possessing unregistered firearms to orchestrating an armed heist of its art collection. The notion that Scagliotti has been waiting 21 years for the perfect moment to rob LACMA’s art collection at gunpoint is rooted more in the world of Hollywood fantasy than anything resembling reality. Opp at 9.

The harm to public service and circumstances of Scagliotti’s misconduct are modest.

LACMA argues that it is a miracle that a life has not been taken so far. It should not be forced to retain a convicted felon who is most likely to commit other similar and more dangerous crimes against the patrons of LACMA and its billions of dollars of art. It is undeniably certain that Scagliotti will venture towards this unreplaceable art, to which he has easy access. Pet. Op. Br. at 18-19.

Aside from the fact that LAMCA’s argument is wholly speculative, it focuses on the wrong likelihood. The reoccurrence at issue is whether Scagliotti is likely to again possess illegal weapons in the future, not whether he is likely to rob LACMA.

Scagliotti argues that two of his firearm convictions stemmed from the unique circumstances in which he acquired the guns through inheritance from a deceased friend followed by a change in the law and the third conviction stemmed from his misunderstanding of the regulatory regime governing custom built firearms. These are not offenses that reveal a persistent character defect or predisposition toward criminality. Now that Scagliotti is aware of the regulatory framework, it is highly unlikely he will re-offend. Opp at 11.

This may or may not be true. Contrary to Scagliotti’s argument, his admitted status as a gun enthusiast would suggest that he may want to possess the same types of illegal weapons in the future. The court cannot reach any clear conclusion about the likelihood of reoccurrence.

In addition to the modest public harm and circumstances of misconduct, and unknown likelihood of reoccurrence, there are mitigating factors. Scagliotti is a 21-year employee with a stellar work record and no history of discipline. He has never exhibited any violent or threatening behavior. His felonies have been reduced to misdemeanors and expunged from his record. These factors weigh in his favor. Opp at 11.

Scagliotti was charged with violating Guidelines Rule VI.B and Rule IV.C. Rule VI authorizes discipline for criminal or unbecoming conduct on or off-duty. AR 343. Rule VI.B provides that criminal or unbecoming conduct while performing duties, on County premises, or during work hours or when such conduct is related to the employee’s duties or departmental interest, warrants a 30-day suspension or discharge for a first offense. Id. Rule VI.C provides that conviction of crimes (whether felony, misdemeanor, or infraction) or unbecoming conduct that may include, but are not limited to, illegal drugs, theft, inappropriate sexual behavior, crimes against persons or property, human trafficking, etc., warrant a 30-day suspension or discharge for a first offense. Id.

Scagliotti’s offenses are not expressly enumerated in Rules VI.B or VI.C and are not analogous to the enumerated offenses, which are crimes of violence or moral turpitude. Scagliotti’s offenses fit within the scope of Rule VI.C, for which the Commission had discretion to impose a 30-day suspension for a first offense. There is substantial evidence from which the Commission may properly conclude that a 3-day suspension is appropriate, and this is not the rare case where the court should overturn the penalty. See Deegan, supra, 72 Cal.App.4^th at 45.

The Petition is denied. Scagliotti’s counsel is ordered to prepare a proposed judgment and a writ, serve it on Merritt’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 June 6, 2024 at 9:30 a.m.

[1] Los Angeles County (“County”) is the Petitioner, but LACMA, a department of the County, refers to itself as the Petitioner.

[2] Policy 514 is framed in terms of disqualification at the hiring or transfer stage (AR 287), but Scagliotti argues that it is relevant to discipline of a current employee. See Opp. at 10.

[3] The nature of the neighbor’s complaint is not in the administrative record.

[4] While not impermissible, LACMA also makes hyperbolic arguments that are not persuasive, including that Scagliotti is “a ticking time bomb waiting to explode” (Reply at 7) and that he is a “criminal mastermind” living a “double life as a law-abiding citizen by day and a felon by night”. Pet. Op. Br. at 17.

[5] LACMA correctly notes that the remedy for improperly excluded evidence under CCP section 1094.5(e) in a case where the standard of review is substantial evidence is a judgment of remand for the agency to reconsider the case in the light of that evidence. However, LACMA incorrectly argues that the court should consider the default judgment and that the weight of the evidence supports discharge. See Pet. Op. Br. at 19.

This case is governed by the substantial evidence standard and the court weighs evidence only when the independent judgment standard of review applies. Thus, LACMA’s remedy for improperly excluded evidence could only be a remand.

[6] The court has deleted LACMA’s unsupported facts and inferences from its penalty argument.

[7] Again, LACMA incorrectly refers to the weight of the evidence.

[8] LACMA disputes the relevance of Policy 514, which applies to applicants “applying for employment with the County and current employees applying for a different position”. AR 287. Scagliotti was neither a new applicant nor did he apply for a different position. Pet. Op. Br. at 14-15. The court need not address the relevance of Policy 514.

[9] Scagliotti points out that, to sustain discipline for failure of good behavior based on off-duty misconduct, there must be a rational relationship between the conduct and the employee’s job duties. Vielehr v. State Personnel Board, (“Vielehr”)(1973) 32 Cal. App. 3d 187, 194 (overturning discharge of a tax representative trainee for marijuana possession because there was no “relationship between possessing marijuana off the job and the duties of a tax representative trainee.”).

LACMA replies that Scagliotti could be terminated even if there is no nexus to his job duties. Under CSR 18.031, an employee can be discharged if his felony conviction exhibits a failure to perform assigned duties so as to meet explicitly stated or implied standards of performance, including failure to exercise sound judgment. Grounds for discharge may also include any behavior or pattern of behavior which is unbecoming a County employee. AR 333. Accordingly, Scagliotti would have been discharged only for being a convicted felon without the need to prove a nexus between Scagliotti’s off-duty conduct and his job duties. Reply at 4-5.

LACMA is incorrect. CSR 18.031 permits a discharge for failure to perform assigned duties, but Scagliotti was not charged with a failure to perform his duties. He was only charged with behavior unbecoming a County employee. CSR 18.031 permits discharge for behavior unbecoming of a County employee, but Vielehr explained that this vague standard cannot pass constitutional muster without a nexus to employment. 32 Cal.App.3d at 191.

[10] Scagliotti contends that, in 1992, these weapons could be owned without having to register them. They were re-classified as “assault weapons” in 2000 and became subject to registration at that time. See former Penal Code §12276.1 (West 2000) (stats.1999, c. 29, §7) (classifying certain firearms as assault weapons); former Penal Code §12285 (West 2000) (stats.1999, c. 29, §9) (allowing existing owners of reclassified firearms to register and keep them). Opp. at 3. LACMA does not dispute this contention.

[11] Scagliotti argues that, by lumping lawful weapons possession together with unlawful possession, LACMA has laid bare its view that any gun ownership is a threat. Opp at 9. LACMA disagrees. Reply at 3. It is fair to say, however, that LACMA views ownership of illegal weapons as a threat because that is the only charge in this case.