Judge: James C. Chalfant, Case: 23STCP04128, Date: 2025-02-14 Tentative Ruling

Case Number: 23STCP04128    Hearing Date: February 14, 2025    Dept: 85

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, (“Cadilla”) (1972) 26 Cal.App.3d 961.

C. Statement of Facts

1. Work History

Sahakyan began his employment with the City as an Accountant I on December 10, 2007.  AR 586.  In May 2008, Sahakyan received a promotion to Accountant II and achieved permanent status within LAWA.  AR 586. 

The Job Description for Accountant II provides that the incumbent “[p]erforms entry level professional accounting duties.”  AR 867-69.  Sahakyan’s duties were split between check runs, reviewing procurement card expenditures, and tax and accounting research.  AR 147. 

Sahakyan’s check run duties included preparing proposals, coordinating with managers for accuracy of information in the proposal, making corrections with the assistance of Controller officers and auditors, printing checks, preparing reports, collecting signatures, and notifying which checks needed to be held at will-call.  AR 151.  A check run assignment lasts one week.  AR 44.  Sahakyan acted as a back-up and oversaw check runs on the weeks he was assigned.  AR 67-70.   

In order to get into check rooms, two employees must go into a room, enter a PIN on the access pad, access the check room door, scan a badge to get into the check room, enter another PIN on another access pad, use a key to get the blank checks, and swipe a badge again in order to leave the check printing room.  AR 489-93. 

Sahakyan’s procurement card monitoring duties included reviewing monthly expenditure reports for discrepancies and conducting training with procurement card holders.  AR 151-52. 

Sahakyan’s duties regarding tax and accounting research included researching taxability of transactions, rules relating to taxable and tax-exempt transactions, and reconciliations as requested by his supervisors.  AR 152.

Sahakyan received awards for attendance in 2009 and 2013 and received “Satisfactory” or “Above Satisfactory” on his annual performance evaluations from 2009 through 2012.  AR 586.

Sahakyan two Noticed to Correct Deficiencies (“NTCD”) issued on the same day of June 6, 2016.  AR 670-73.  The first NTCD alleged that Sahakyan was performing below standards because some of his tasks were untimely.  AR 670.  Sahakyan asked for more time to review the issue, which was denied.  He then stated that he was given new duties when an employee left for which he was not trained.  AR 670-71.  The second NTCD alleged that on nine occasions Sahakyan was observed using copy machines for his personal use, which was considered dishonesty.  AR 672-73. 

            2. Sahakyan’s Arrest, Criminal Charges, and Diversion

On March 2, 2017, Sahakyan was arrested on charges of felony robbery and assault after being caught shoplifting DVDs at Target and injuring a security guard while attempting to flee.  AR 774-83. This incident was recorded on surveillance video.  AR 1271-41.  Sahakyan faced criminal charges as a result.  AR 589-605.

On August 31, 2017, Sahakyan entered into the Los Angeles County Deferral of Sentencing Pilot Program pursuant to former Penal Code section 1001.94 et seq., which allowed a first-time offender to defer entry of judgment pending the successful completion of a program.  If the program is successfully completed, there is no entry of judgment and the arrest “shall be deemed to have never occurred.”  AR 843-53. 

On September 8, 2017, Sahakyan notified LAWA that he had entered the diversion program.  AR 741.  After his successful completion of the diversion program, on July 30, 2018 the criminal court entered a finding of factual innocence for Sahakyan and sealed his arrest record, thereby nullifying his arrest.  AR 864-65.

            3. The Termination

On September 20, 2017, Sahakyan received the Notice of Proposed Discipline (Skelly packet), containing the notice of the charges against him, along with a set of exhibits purporting to contain the materials upon which the decision to terminate the Sahakyan was based.  AR 582- 84. 

On December 1, 2017, LAWA served Sahakyan with a Notice of Discharge, effective December 5, 2017.  AR 1057-58. 

On December 4, 2017, Sahakyan filed a timely administrative appeal to the Commission.  AR 1051. 

4. The Administrative Appeal

The Hearing Officer conducted Sahakyan’s administrative appeal hearing on May 1, May 2, and May 22, 2018.  AR 1044.

On September 18, 2018, the Hearing Officer submitted her report.  AR 873-892.  The Hearing Officer issued factual findings and conclusions of law sustaining the allegations that Sahakyan engaged in off duty conduct incompatible with his duties (Charge 1), failed to report outside employment (Charge 2), and falsified City documents (Charge 5).  AR 887-88, 890-91.  The Hearing Officer recommended that the Commission sustain Charges 1, 2, and 5 with discharge as the appropriate penalty.  AR 890-91.  The Hearing also recommended that Sahakyan was entitled to back pay from December 5, 2017 until the Commission filed its decision for a Skelly violation.  AR 891.

On April 25, 2019, the Commission adopted the Hearing Officer’s decision to uphold the termination but rejected the Hearing Officer’s remedy of back pay for the Skelly violation.  AR 578-79.  On May 6, 2019, the Commission sent notification to Sahakyan that his discharge had been upheld and that Skelly due process had been met.  AR 872.

5. The Court’s Mandamus Ruling and Appeal

Sahakyan filed a petition for administrative mandamus in the Prior Case, and the court subsequently ruled: “The Petition is granted in part. The case will be remanded to the Commission for Sahakyan to receive an award of back pay from the date of the Notice until the Commission's previous decision. The remand will include a re-evaluation whether Sahakyan’s discharge must be upheld based on Charge 1’s misconduct involving theft from Target, Charge 2's failure to report outside employment, and two previous NTCDs.”  AR 1406.  A peremptory writ of mandate was entered on September 3, 2020.  AR 1377-78.

On September 22, 2020, the Commission filed a notice of appeal from the trial court’s judgment in the Prior Case.  AR 1409-11.  On September 30, 2020, Sahakyan filed a notice of cross-appeal.  AR 1442.

On January 4, 2023, the Court of Appeal affirmed the trial court’s judgment in the Prior Case.  AR 1850-74.  In relevant part, it found that the trial court did not err in finding Sahakyan’s Skelly due process rights were violated as to Charge 1, the trial court did not err in sustaining Charge 1 based upon Sahakyan’s theft, and the evidence to support Charge 1 was admissible, relevant, and not in violation of Labor Code section 432.7.  AR 1850-74.

6. The Post-Remand Commission Decision

Upon remand, the Commission notified the parties that it would hear the matter on August 10, 2023.  AR 1949.  The parties filed briefs.  AR 1976-87.  Sahakyan argued that the discharge of a long-term employee for petty theft, which was expunged, is not an appropriate penalty.  AR 1976-87.  LAWA argued that Sahakyan had exhibited a pattern of dishonesty and termination was appropriate.  AR 1988-2087.  The Commission decided to uphold the termination based on Sahakyan’s guilt on Charges 1 and 2, and not Charge 5.  AR 1922.  Consistent with the court’s judgment in the Prior Case, the Commission also found that Sahakyan’s Skelly rights had been violated, but it was silent on an award of back pay.  Id.

D. Analysis

Petitioner Sahakyan seeks mandamus directing the Commission to (1) set aside its decision and (2) reinstate his employment with an award all back pay and benefits starting from the date of the termination on December 5, 2017.

1. Labor Code Section 432.7

As a threshold issue, Sahakyan argues that Count 1, which concerned his off-duty theft charge, is preempted by Labor Code section 432.7 (“section 432.7”), and that preemption is an issue of subject matter jurisdiction that is never waived.  Pet. Op. Br. at 10. 

Under section 432.7, it is unlawful for an employer to terminate an employee based on an arrest that did not result in a conviction or any record regarding participation in a diversion program. Central Valley Chap. 7th Step Foundation v. Younger, (“Central Valley”) (1979) 95 Cal.App.3d 212, 224-25.  Sahakyan argues that LAWA’s Administrative Manual Guide to Disciplinary Standards (“Disciplinary Guide”) section 5.020(A) and section 432.7 are in direct conflict as applied to the facts of this case, and that section 432.7 preempts Disciplinary Guide section 5.020(A).  Pet. Op. Br. at 11.

Moreover, California public policy limits public employers from missing arrest information to impose adverse personnel decisions.  “Recent decisions by this court have acknowledged the considerable barriers that an arrest record interposes to employment, educational, and professional licensing opportunities, and the regrettable fact that ‘so long as there exists an employable pool of persons who have not been arrested, employers will find it cheaper to make an arrest an automatic disqualification for employment'; available evidence suggests that 'employers cannot or will not distinguish between arrests resulting in conviction and arrests which do not.’“ Central Valley, supra, 95 Cal.App.3d at 230-31 (citations omitted).

In Central Valley, the Court of Appeal reversed the trial court’s sustaining of a demurrer where the plaintiffs’ complaint alleged they were repeatedly being denied civil service employment in violation of section 432.7 based on the confused, misplaced and unlawful use of arrest information provided by the state’s department of justice.  Id. at 232-34.  The plaintiff alleged that the misinterpretation of arrest records by the city and county defendants and other public employers is a common occurrence and there are few procedural protections to remedy rejection from employment based upon misinterpretation or even illegal consideration of arrest records.  Id. at 221.[1]

Sahakyan concludes that it would be an absurd and unjust result to terminate his employment when he is protected by the remedy in section 432.7, which prevents the Target arrest record and court diversion from being used against him in maintaining gainful employment.  Pet. Op. Br. at 13.

This argument is untenable for two reasons.  First, it is beyond the scope of the remand in the Prior Case, which only was for the Commission to reconsider the penalty of discharge.  Sahakyan’s contentions that section 432.7 preempts Disciplinary Guide section 5.020(A) is a substantive argument not within the scope of the Commission’s determination of appropriate penalty.  The fact that Sahakyan raised the preemption issue for the first time on appeal and the appellate court declined to consider it does not save it for a later challenge.  See Reply at 6.[2]

Second, both the court and the appellate court addressed section 432.7 in the Prior Case.  Sahakyan argued that section 432.7 required dismissal of Charge 1, and the court ruled that Charge 1 was based not on his arrest, but on the underlying misconduct.  The appellate court agreed.  This ruling is final and binding.  Consequently, both Sahakyan’s preemption argument and his public policy argument about enabling second chances through section 432.7’s expungement of arrest records are foreclosed by principles of res judicata and collateral estoppel.[3]  Upon remand, the Commission’s disciplinary decision was whether to terminate Sahakyan based in part on the circumstances of his theft misconduct.  Section 432.7’s purpose of aiding arrestees to seek employment has little or nothing to do with that decision.

2. The Penalty of Discharge

Sahakyan argues that the penalty of discharge is excessive.  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. 

a. Circumstances of the Misconduct

The facts on which the Commission could consider discipline are as follows.

(i). The NTCDs

Sahakyan received two NTCDs in June 2016.  AR 586.  The first was for failure to perform work assignments adequately or promptly.  The second was for unauthorized use of City equipment or material in fabricating articles for private use.  AR 586. 

(ii). Charge 1

On March 2, 2017, Sahakyan committed felony robbery and assault.  AR 774.  Sahakyan was caught on CCTV camera at a Target shoplifting several DVD movies.  AR 775.  When confronted by security personnel, Sahakyan attacked them, engaging in a physical altercation that resulted in him scratching the face of one of the security personnel.  AR 775-76.  Security personnel subdued Sahakyan and Los Angeles Police Department officers arrived to place him under arrest.  AR 775-76.

The Job Class Specification for Accountant provides that the employee “performs professional accounting work in the analysis, preparation, maintenance or evaluation of financial records”, "[p]erforms entry level professional accounting duties", and receives training and work experience in the accounting operations of City departments, where he/she exercises professional judgment.  AR 867-69 (emphasis added).  Thus, Sahakyan performed professional accounting work in which he is expected to exercise professional judgment.

Sahakyan’s duties were split between check runs, reviewing procurement card expenditures, and tax and accounting research.  AR 147.  Vicky Rojas described the check run process, the millions of dollars involved, and the many security measures in place to ensure only authorized personnel can access the supply and printing rooms, including badges and log-in processes.  Sahakyan was one of three accountants handling check run duties.  AR 879-80.

The system is designed to prevent misappropriation by the personnel involved, including Sahakyan.  The fact that some or all of the personnel involved are entry level has no bearing on this issue.  Nor does the fact that Sahakyan does not authorize the millions of dollars of payments that are issued.  The system’s concern is misappropriation through unauthorized payment.

Because of these facts, the court ruled in the Prior Case that there is a nexus between Sahakyan’s theft from Target and his employment as a result of his professional responsibilities and his work in a sensitive financial area.

(iii). Charge 2

Sahakyan was guilty of failing to report outside employment, punishable under Charge 2 (Manual §5.020B(1) (violation of departmental rules) but not Charge 5 (Manual §5.020 G(5) (falsifying city records).  AR 887, 888.  Sahakyan failed to report a teaching assignment at a community college for two years.

The Commission found that Sahakyan’s failure to disclose his outside employment was intentional because LAWA had notified him on numerous occasions of his obligation to do so.  In 2010, Sahakyan expressly acknowledged receipt of the Code of Ethics documents containing this policy.  Otherwise, he received annual emails notifying him of this policy.  AR 888. The evidence was sufficient to show willfulness.  His denial at the Skelly meeting that he did not know the policy was not found credible and the court agreed.  A violation of failure to report outside employment has a maximum five-day suspension for a first offense. 

(iv). Analysis

The City argues that the Commission considered the circumstances of Sahakyan’s misconduct extensively.  Commissioner McClelland spoke extensively about the circumstances surrounding Sahakyan’s misconduct at the August 23, 2023 Commission hearing.  AR 1935-36.  Commissioner McClelland pointed out that Sahakyan’s theft at Target on March 2, 2017 was egregious.  AR 1935-36. Commissioner McClelland noted: “Here he apparently picked up the item, went to another section, pulled out a bag, put it in the bag, walked out. It was certainly not a spontaneous act.”  Id.  In other words, Commissioner McClelland focused on the premeditated nature of the theft; it was not a spontaneous activity reflecting a momentary lapse of judgment.  Opp. at 10.

Sahakyan also exhibited dishonest behavior when he failed to report his outside employment for two years and in his two prior NTCDs, at least the second of which is related to unethical conduct.  Opp. at 9.

Sahakyan argues that the circumstances surrounding his off-duty theft of DVDs are mitigated by his successful completion of the diversion program, which means that his arrest upon which sentencing was deferred shall be deemed to have never occurred and he may answer “any question concerning his … prior criminal record that he … was not arrested or granted deferred entry of judgment for the offense...”  Penal Code §1001.96(b) (repealed January 1, 2018 by Penal Code §1001.99).  Pet. Op. Br. at 8; Reply at 5.

The circumstances also are mitigated by the fact he sought treatment from a mental healthcare professional. On March 28, 2017, Sahakyan sought FMLA leave for the purpose of seeking therapy and to “cope with stress, anxiety and depression.” AR 160-64, 655.[4]  For criminal matters, depression can serve as a mitigating factor in sentencing.  See People v. Ortiz, (2023) 87 Cal.App.5th 1087, 1094.  Sahakyan’s efforts to seek help should be a mitigating factor against termination.  Pet. Op. Br. at 8; Reply at 5.

Sahakyan adds that while LAWA has claimed that the off-duty arrest showed proof of “dishonest behavior incompatible with [Sahakyan’s] role as fiduciary” (AR 885), the California Accountancy Board did not suspend, revoke or otherwise deny Sahakyan’s CPA license after being notified of the Target arrest. AR 508-09.  Pet. Op. Br. at 9; Reply at 6.

The City responds that Sahakyan’s completion of a diversion program is irrelevant.  This court and the Court of Appeal found that the City had committed theft and remanded for the Commission to determine whether discharge was the proper level of discipline, and the Commissioners did just that.  Opp. at 10.

The court does not agree.  The circumstances of the theft (Charge 1), failure to report outside employment (Charge 2), and the two NTCDs have been established.  But Sahakyan can offer facts in mitigation.  His successful completion of the diversion program is a legitimate fact in mitigation.  His FMLA leave for the purpose of therapy to “cope with stress, anxiety and depression” would be a mitigating fact if there was evidence of a positive effect.  As it is, the leave is only minimally mitigating.

Sahakyan’s argument that the Accountancy Board did not suspend, revoke or otherwise deny Sahakyan’s CPA license after being notified of the Target arrest is of little value.  Licensing agencies operate for different purposes than public employers and the fact that a licensing agency has not acted does not mean a public employer should not.  Sahakyan’s employment at LAWA must be evaluated through the connection between his theft and other misconduct with the fact that his job requires his proximity to sensitive financial information.  This connection is something the Accountancy Board does not necessarily face.

The circumstances of misconduct show a pattern (see post) but are mitigated somewhat by Sahakyan’s completion of diversion and, to a minor extent, his therapy.

b. Harm to the Public Service

Sahakyan argues that neither the NTCDs nor the failure to report outside work findings are terminable offenses. Pursuant to the Disciplinary Guide, a first violation for a failure to report outside work (a violation of departmental rules) is an “Oral Warning to 5 day Suspension.” AR 706.  This means that the entire termination turns on the off-duty theft of DVDs.  Pet. Op. Br. at 6-7.

Sahakyan relies on Blake v. State Personnel Board, (“Blake”) (1972) 25 Cal.App.3d 541, where the court reversed a public employee’s discharge as clearly excessive.  Blake had violated Government Code section 19572(m) (discourteous treatment of employees) by pointing a gun at two fellow employees and warning them to stay away from a female employee with whom he had a romantic attachment. The incident occurred during off-duty when the employees were at a work-related convention.  Id. at 546-47.  The Blake court noted that Blake was a long-term employee with no disciplinary action of any kind, had commendations for meritorious service, and had an exemplary employment record.  Id. at 553. The court found that, while a reasonable inference could be drawn of harm to the public service, there was no direct testimony from the two male attorneys that their work relationship with the female attorney had been affected.  Id.  The circumstances of misconduct were not excusable, but they were mitigated by the facts that the misconduct occurred after a social evening during which the group had had several drinks and that the following morning petitioner called and apologized to the two attorneys, also acknowledging that his conduct the night before was inexcusable and would not recur.  Blake also had sold his gun and no longer owned one.  Id. at 553-54.

Sahakyan argues that, like the petitioner in Blake, he is a long-term public employee, his performance evaluations were “satisfactory” or “above satisfactory”, and he had received a promotion and commendations.  AR 586.  Unlike Blake, he received two NTCDs, but they were for actions not related to the charged offenses and apparently did not recur.  It should be incontrovertible that Blake’s pointing a gun and threatening two employees is a higher level of seriousness than Sahakyan’s shoplifting DVDs from Target.  While both cases involve a crime committed off-duty, the difference is that Blake committed the offenses towards co-workers.  Unlike Blake, Sahakyan’s off-duty misconduct did not involve any co-workers or anybody from the City.  Pet. Op. Br. at 7; Reply at 4.[5]

  Sahakyan concludes that evidence of harm to the public service therefore is lacking.  LAWA alludes to a breach of trust, but there was no solid evidence that there has been harm to the public service.  Pet. Op. Br. at 7-8.

The City correctly notes that the law does not require that there be actual harm to the public service.  The overriding consideration is the extent to which the employee's conduct has harmed or could harm the public service if repeated.  County of Los Angeles v. Civil Service Com. of County of Los Angeles, (2019) 40 Cal.App.5th 871.  In the context of public employee discipline, the employer need not wait until actual harm occurs before disciplining the employee, if the misconduct creates potential harm to the public. Visalia Unified School District v. Public Employment Relations Board, (2024) 98 Cal.App.5th 844.  Opp. at 6.

The assessment of whether an employee’s conduct has harmed or could harm the public service includes evaluating the nature of the employee's profession.  Some occupations, such as law enforcement, carry higher responsibilities and limitations on personal freedom.  County of Los Angeles v. Civil Service Com. of County of Los Angeles, (2019) 40 Cal.App.5th 871.  Sahakyan’s employment as an Accountant II did not involve the higher responsibilities of law enforcement, but it did involve special responsibilities.  He was required to perform “professional accounting work in the analysis, preparation, maintenance or evaluation of financial records”, and work in the accounting operations of City departments, where he exercised professional judgment.  AR 867-69 (emphasis added).

His Accountant II job carries higher responsibility and is a position of trust. AR 400 (testimony of then-Human Resources Director, Paula Adams).  He was the most senior Accountant in LAWA’s Accounts Payable, Check Run Section of the Accounting Operations Division, where his duties included disbursing millions of dollars from LAWA accounts to vendors and other payees on a weekly basis. AR 34-35 (testimony of then-chief accountant Vicky Rojas).  He had regular access to blank checks, vendor and LAWA bank account information, wire transfer data, and LAWA’s Automated Clearing House system for very large vendor payments.  AR 370 (testimony of Paula Adams). 

LAWA expected Sahakyan to behave in a way that inspired public confidence.  AR 291-92 (testimony of Senior Personnel Analyst Vickie Cartwright-Adams).  “Those who either retain custody of public funds or are authorized to direct the expenditures of such funds bear a peculiar and very grave public responsibility, and courts and legislatures, mindful of the need to protect the public treasury, have traditionally imposed stringent standards upon such officials.” People v. Groat, (1993) 19 Cal.App.4th 1228, 1232.

Thus, Sahakyan had professional responsibilities in a position of trust and worked in a sensitive financial area where he had important public responsibility.  There is a nexus between his theft from Target and his employment that potentially could result in the impairment or disruption of public service.  See Blake, supra, 25 Cal.App.3d at 550-51.

Sahakyan’s misconduct resulted in actual, not just potential, harm to the public service.  LAWA had to expend resources to investigate his off-duty misconduct.  AR 886.  There was a serious breach of public trust and LAWA’s supervisors lost confidence in his ability to carry out his duties with integrity.  LAWA’s Chief Financial Officer, Ryan Yakubik (“Yakubik”), testified that Sahakyan’s misconduct raised concerns for him if Sahakyan returned to work as he had proved to make poor ethical choices.  AR 543-44.  Yakubik also testified that Sahakyan’s illegal behavior and poor ethical choices weakened internal controls needed to protect LAWA and public assets.  AR 536-37.  He further testified that Sahakyan’s actions and his inability to work put a strain on LAWA’s financial organization and a greater burden on other employees as he “was one of three people with certain responsibilities in and around the check run procedure…” AR 552-53.  See Opp. at 9.

Sahakyan’s misconduct resulted in both potential and actual harm to the public service.

c. Likelihood of Reoccurrence

Sahakyan argues that his completion of the diversion program, and lack of any evidence that he committed any crimes before or after shoplifting at Target, and his immediate treatment from a therapist immediately after his arrest make reoccurrence unlikely.  Pet. Op. Br. at 10; Reply at 6.

Sahakyan wrongly focuses soley on the theft from Target.  The Commission considered Sahakyan’s misconduct as reflective of a pattern of dishonesty, as established by Charges 1 and 2 and the two prior NTCDs.  Despite Sahakyan’s therapy, there is a likelihood of recurrence when an employee exhibits a character flaw of dishonesty.  “Honesty is not considered an isolated or transient behavioral act; it is more of a continuing trait of character.” Gee v. California State Personnel Bd., (1970) 5 Cal.App.3d 713, 719; see Ackerman v. State Personnel Bd., (1983) 145 Cal.App.3d 395, 399.  It is this trait of character that establishes the likelihood of recurrence of misconduct.  A public agency should not be in a position to risk a recurrence of a dishonest employee’s misconduct.  Opp. at 5.

The court accepts that Sahakyan’s theft from Target was not a major criminal event and that his completion of diversion (and perhaps his therapy) works in his favor.  However, his history shows some dishonesty which creates a risk of re-occurrence.

d. Totality of the Circumstances

The penalty imposed by an administrative agency may not be disturbed unless there has been a manifest abuse of discretion.  Lake, supra, 47 Cal.App.3d at 228.  Neither an appellate court nor a trial court is free to substitute its discretion for that of the agency concerning the degree of punishment imposed.  Nightingale, supra, 7 Cal.3d at 515. 

LAWA’s Disciplinary Guide provides the following levels of penalty for the sustained charges in this case.  

Charge 1 (engaging in illegal behavior or conduct in conflict with job duties on or off the job) was a violation of section 5.020(A)(5) for which the suggested penalty range for the first offense is a written notice to discharge.  AR 706.

Charge 2 (failing to report outside employment) was a violation of section 5.020(B)(1) for which the suggested penalty range for the first offense is an oral warning to five-day suspension.  AR 706. 

In addition, the Commission considered Sahakyan’s two previous NTCDs. AR 1922.

As the City argues (Opp. at 12-13), the Commission was not required to focus solely on Charge 1 as Sahakyan has done.  The totality of the circumstances may be considered. While Charge 2 does not carry the same penalty as Charge 1, the Commission was entitled to conclude that the charges together with the two prior NTCDs established a pattern of dishonesty.   “Dishonesty is incompatible with public service.”  Paulino v. Civil Service Commission, (1985) 175 Cal.App.3d 962, 972.  “Dishonesty in matters of public trust is intolerable. . . Dishonesty is not an isolated act; it is more a continuing trait of character. False statements, misrepresentations and omissions of material facts in official reports, if repeated, were likely to result in harm to the public service.”  Ibid. 

Commissioner McClelland evaluated the harm to the public service from Sahakyan’s pattern of dishonesty:

“…[H]ere we have a City Accountant who has the ability to handle excess public funds, and I think that's an important responsibility of an Accountant, even though I know in the record it was suggested that he didn't actually hold money in his hands, but still an Accountant overseeing and helping to monitor City funds is an important position of trust, and I think honesty is a central obligation of someone in that position, and here it's not just a matter of honesty. The law was broken. There are a lot of dishonest things one can do that don't reach illegality, but theft certainly does, and here, according to the record, wasn't just a matter of grabbing a small item and running out. Here he apparently picked up the item, went to another section, pulled out a bag, put it in the bag, walked out. It was certainly not a spontaneous act, and I think that the failure to seek approval for outside employment does carry an aspect of honesty, especially here where they found it was willful to not disclose that activity and also the prior notices to -- that he received one of them involved lying[6] about his behavior. Somewhere it said he had unauthorized copies and lied about it, and also seeking sick leave or vacation nor whatever so he can be off on teaching days.  I think the whole pattern is one of dishonesty culminating with the illegal behavior in charge one, and although there is a wide range of discipline for illegal behavior, here it’s not that he got a speeding ticket and broke the speed law – theft—at least in my mind- and sitting here is much more severe than other acts of illegality… AR 1935-36 (emphasis added).

Other Commissioners relied solely on Charge 1 and its relationship to Sahakyan’s professional duties.

Commissioner Lipa evaluated the issue and understood that the Commission was dealing with an individual who committed theft and who had access to City finances and City funds.  AR 1938. 

Commissioner Gould noted that it “would be very difficult in [her] mind… to justify bringing someone back into an accounting – as an Accountant for the City given charge one and if that charge is sustained, even if it were the only charge in [her] mind it would be very difficult…”  AR 1939. 

Finally, Commissioner Koringa noted that: “…in [her] opinion the discharge is warranted for the crime again because of the relationship between the theft and his duties as a City employee.”  AR 1940.  Opp. at 8-9.

This case turns on the Commission’s conclusion that Sahakyan has demonstrated a pattern of dishonesty and the fact that his job required him to perform professional accounting work in which he exercised professional judgment in a position of higher responsibility and trust and in a way that inspires public confidence.  The court may not substitute its discretion for that of the Commission on these issues.  See Nightingale, supra, 7 Cal.3d at 515.  The policy considerations underlying the significance of Sahakyan’s honesty in his job also are a matter within the expertise of the Commission.  See Cadilla, supra, 26 Cal.App.3d at 961.

Sahakyan argues that the City’s personnel policy requires progressive discipline and, as in Blake, LAWA's decision to bypass the progressive discipline process should be a factor in whether it acted excessively.  Pet. Op. Br. at 9.  True, but the progressive discipline process is overridden by the pattern of dishonesty and LAWA’s need for Sahakyan to act professionally and above financial reproach.

The Commission did not manifestly abuse its discretion in discharging Sahakyan.

E. Conclusion

The Petition is denied.  The court will discuss with counsel whether Sahakyan has received his back pay and benefits starting from LAWA’s December 1, 2017 date of termination to the April 25, 2019 date the Commission upheld the termination.

The City’s counsel is ordered to prepare a proposed judgment, serve it on Sahakyan’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 March 20, 2025.