Opinion
D070629
07-18-2017
MICHAEL JOHNSON, Plaintiff and Respondent, v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Defendant and Appellant.
California State University, Office of the General Counsel and Taufiki D. Joshua for Defendant and Appellant. Mastagni Holstedt, Sean D. Howell and Jeffrey R. A. Edwards for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00033527-CU-WM-CTL) APPEAL from a judgment of the Superior Court of San Diego County, John Meyer, Judge. Reversed and remanded with directions. California State University, Office of the General Counsel and Taufiki D. Joshua for Defendant and Appellant. Mastagni Holstedt, Sean D. Howell and Jeffrey R. A. Edwards for Plaintiff and Respondent.
The Board of Trustees of the California State University (CSU) appeals from the trial court's judgment granting in part the petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) filed by Michael Johnson to challenge the State Personnel Board's (the Board) decision to terminate his employment as a police sergeant in the San Diego State University Police Department (the Department). The trial court concluded that substantial evidence supported the Board's finding that Johnson engaged in several acts of misconduct, but that the Board abused its discretion in ordering the termination of Johnson's employment as the penalty for that misconduct. In its appeal, CSU contends that the trial court erred in determining that termination was an excessive penalty.
On our de novo review of the trial court's decision, we conclude that the Board did not abuse its discretion in selecting termination of employment as the penalty for Johnson's misconduct. Accordingly, we reverse the judgment and remand to the trial court with directions to enter an order denying the petition for writ of administrative mandate.
FACTUAL AND PROCEDURAL BACKGROUND
A. CSU's Notice of Pending Dismissal of Johnson's Employment With the Department
Johnson began his employment with the Department as a police officer in 1998 and was promoted to sergeant in 2006. In February 2013, the Department hired an independent investigator to conduct an investigation into several incidents involving Johnson during late 2012 and early 2013. Johnson was notified of the investigation and placed on administrative leave.
After reviewing the investigator's report, a CSU administrator issued Johnson a notice of pending dismissal. The notice identified eight separate incidents, which CSU concluded "demonstrate[] poor judgment and call[] into question your ability to safely and efficiently carry out the duties of a police sergeant," and therefore warranted Johnson's dismissal from employment. Specifying four of the statutory bases for demotion, dismissal or suspension of an employee set forth in Education Code section 89535, the notice stated that Johnson's conduct constituted "unprofessional conduct, dishonesty, incompetency, and failure or refusal to perform the normal and reasonable duties of the position."
Education Code section 89535 provides:
"Any permanent or probationary employee may be dismissed, demoted, or suspended for the following causes:
"(a) Immoral conduct.
"(b) Unprofessional conduct.
"(c) Dishonesty.
"(d) Incompetency.
"(e) Addiction to the use of controlled substances.
"(f) Failure or refusal to perform the normal and reasonable duties of the position.
"(g) Conviction of a felony or conviction of any misdemeanor involving moral turpitude.
"(h) Fraud in securing appointment.
"(i) Drunkenness on duty."
The eight incidents identified in the notice of pending dismissal were as follows:
1. On two occasions in September 2012, Johnson escorted a robbery suspect into the communications center while it was occupied by civilian dispatchers.
2. In November 2012 while training a dispatcher, Johnson allowed the dispatcher to drive his patrol vehicle for approximately one hour while responding to three calls for officer backup. The dispatcher drove through campus and on city streets with Johnson in the passenger seat. Johnson then directed the dispatcher to a campus parking lot occupied by cars and pedestrians, where she drove for approximately 15 minutes. The notice of dismissal identified several Department policies that Johnson violated by allowing the dispatcher to drive the patrol vehicle. Among other things, the Department's ride-along policy states that a person engaging in the ride-along shall not handle any police equipment. Other relevant policies require that an officer should not endanger Department property, should not use Department property for an improper purpose, should not contribute to unsafe and improper driving actions, should use sound judgment and care with due regard for life and property when responding to an emergency call, and should avoid conduct that is contrary to the efficiency of the Department and reflects unfavorably on it.
We will refer to this incident as the "Dispatcher Training" incident.
3. Also in November 2012 while Johnson was the sergeant on duty and was assigned watch commander duties, he left a prisoner in a holding cell at the police station for approximately one hour 45 minutes without having an officer assigned to supervise the prisoner. Department policy states that no prisoner will be kept in a holding cell unless there is a designated employee who remains within the building to supervise the holding cell and who can respond to emergencies. Further, Department policy requires that all prisoners be visually checked no less than once every hour.
We will refer to this incident as the "Unattended Prisoner" incident.
Retired police lieutenant Michael Frawley testified at the administrative hearing that the policy requiring a prisoner to be supervised and checked on while in a holding cell exists because a prisoner could have a medical emergency, try to harm himself or attempt to damage the Department's facilities.
4. In January 2013, Johnson directed a junior officer to handle the impounding of a stolen vehicle by towing it to a secure facility with an "evidence hold" placed on it even though evidence had already been collected from the vehicle. Because of the unnecessary use of the evidence hold, the owner of the vehicle was presented with a bill for approximately $900 when she collected the vehicle from storage.
5. In February 2013, Johnson obtained oral permission from the watch commander to perform a strip search on a man who had been arrested for public drunkenness after Johnson had observed the man engaging in a possible drug transaction with another individual. The strip search was performed in a holding cell in view of a surveillance camera, which recorded the strip search, including a view of the subject's bare buttocks. Department policy states that a strip search "shall not be reproduced through a visual or sound recording." Department policy also states that the officer requesting the strip search shall obtain written permission from the watch commander prior to conducting the search, and the primary employee conducting the search shall prepare a written report subsequent to the search explaining the need for conducting it. Johnson did not obtain written permission and did not prepare a written report.
Testimony during the administrative hearing established that the video camera recording the strip search was also streaming the incident to the Department's dispatch center, in view of female dispatchers.
We will refer to this incident as the "Strip Search" incident.
6. Also in February 2013, Johnson and a more junior officer arrested a suspect for a felony drug offense. Because the suspect claimed a preexisting medical condition, he was transported to the hospital. Johnson directed the other officer to release the suspect from custody pursuant to Penal Code section 849, subdivision (b) and to rearrest the suspect after he was discharged from the hospital. The suspect was belligerent throughout the episode, and shortly after being released from custody he fled the hospital. Police officers engaged in a foot chase over trolley tracks to reapprehend the suspect and used a taser to bring him under control. As established at the administrative hearing, a San Diego Police Department helicopter was also used in the chase. Penal Code section 849, subdivision (b) does not authorize a subject to be released from custody with the intent to later rearrest him.
We will refer to this incident as the "Release and Rearrest" incident.
In 2013, when the incident occurred, Penal Code section 849, subdivision (b) provided:
"(b) Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever:
"(1) He or she is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested.
"(2) The person arrested was arrested for intoxication only, and no further proceedings are desirable.
"(3) The person was arrested only for being under the influence of a controlled substance or drug and such person is delivered to a facility or hospital for treatment and no further proceedings are desirable."
7. Johnson did not report for work on February 13, 2013. Although Johnson arranged for two officers to cover his shift, he did not follow the Department policy requiring that an officer contact dispatch or the watch commander to report an absence from work.
8. On the following day, February 14, 2013, Johnson failed to attend a mandatory sergeants' meeting and he did not notify the Department he would not be in attendance.
After receiving the notice of pending dismissal, Johnson requested a review by a Skelly officer. (See Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215 (Skelly).) The Skelly officer sustained the termination recommendation, and CSU then notified Johnson of its final decision to terminate his employment, effective October 14, 2013. B. The Administrative Law Judge's Proposed Decision and the Board's Adoption of It
Johnson filed an administrative appeal with the Board pursuant to Education Code section 89539, subdivision (a)(1). In May 2014, an administrative law judge (ALJ) held a five-day hearing at which several witnesses testified.
Following the hearing, the ALJ issued a lengthy proposed decision, which included findings of fact and legal analysis. As a foundational matter, she rejected CSU's suggestions that Johnson's conduct amounted to dishonesty and/or reflected that he was incapable of performing the duties of a police officer.
Although not relevant to this appeal, the ALJ also disposed of two other issues raised by Johnson at the administrative hearing. First, addressing Johnson's contention that he was being retaliated against for his union-related activities, the ALJ concluded that the Board could not consider the retaliation issue as it was within the exclusive jurisdiction of the Public Employment Relations Board. Second, the ALJ rejected Johnson's contention that CSU failed to follow the required procedures for the Skelly hearing.
With respect to the eight incidents specified in the notice of pending dismissal, the ALJ analyzed whether each incident constituted unprofessional conduct and a failure or refusal to perform normal and reasonable duties of the position of police sergeant. She concluded that the evidence did not support a finding of either type of misconduct as to Incidents 1, 4, and 8: (1) the incident in which Johnson brought suspects into the communications center; (4) the incident in which a stolen car was impounded with an evidence hold; and (8) the incident in which Johnson failed to report to a mandatory sergeant's meeting. However, the ALJ concluded that Johnson did engage in unprofessional conduct and failed or refused to perform the normal and reasonable duties of his position with respect to the following incidents: (2) the Dispatcher Training incident; (3) the Unattended Prisoner incident; (5) the Strip Search incident; and (6) the Release and Rearrest Incident. The ALJ further concluded that Johnson's failure to notify the Department that he would be absent from work on February 13, 2013 (Incident #7) constituted unprofessional conduct.
Our Supreme Court has stated that in the context of the Education Code, unprofessional conduct is conduct " 'which violates the rules or ethical code of a profession or such conduct which is unbecoming a member of a profession in good standing.' " (Board of Education v. Swan (1953) 41 Cal.2d 546, 553.) We are not aware of any case law defining the phrase "[f]ailure or refusal to perform the normal and reasonable duties of the position" as used in Education Code section 89535.
Addressing the penalty for Johnson's misconduct, the ALJ determined that termination of employment was the appropriate penalty. As the basis for her analysis she identified the standard set forth in Skelly, supra, 15 Cal.3d at page 218, which assesses the appropriate level of employee discipline by focusing on " '[h]arm to the public service' " as well as "the circumstances surrounding the misconduct and the likelihood of its recurrence." (Ibid.) With respect to the harm to the public service caused by Johnson, the ALJ explained,
"A police department is entitled to expect its employees to comply with its policies and procedures. As a Sergeant, [CSU] expected [Johnson] to make sound decisions and to serve as a mentor and role model to junior officers. Yet, [Johnson] disregarded policy. Harm to the public service occurs when an employee ignores or refuses to obey a clear department policy. [Citation.] [Johnson's] actions were contrary to [CSU's] primary mission to serve and protect the [CSU] students, staff, and community.
"Indeed, [Johnson's] conduct caused, and could have caused, substantial harm to the public service. [Johnson's] improper release of a belligerent suspect while at a hospital caused officers and resources from another police agency to become involved in the chase and recapture of the suspect. Allowing a dispatcher to drive a police vehicle and answer dispatch calls placed the public in danger. [Johnson's] actions reflected poorly on the [Department]. Furthermore, [Johnson] placed [CSU] in a position of potential liability arising out of [Johnson's] failure to conduct a professional strip search of a suspect, and [Johnson] publicly embarrassed the suspect."
With respect to the likelihood of recurrence, the ALJ explained that recurrence was likely because Johnson had failed to take responsibility for his actions.
"At [the] hearing, [Johnson] failed to accept responsibility for his conduct. Instead he offered unpersuasive explanations for his actions. He claimed he was trying to foster better relationships with dispatchers by allowing [the dispatcher trainee] to drive the police vehicle; was following policy by releasing a suspect at the hospital; and was unsure of the procedures to undertake a strip search because he had not previously performed a strip search. [Johnson] also attempted to place the blame on his subordinates by saying the officer-in-training conducted the strip search. Yet [Johnson] was present the entire time and gave instructions to the prisoner to remove his clothing. [Johnson] also tried to blame someone else for the improper storage of the stolen vehicle, because that person's
signature was on one of the documents. However, throughout the incidents, [Johnson] was the senior and supervising officer. [Johnson's] failure to take accountability for his actions strongly suggests a likelihood of recurrence."
The ALJ concluded that "[a]though this is [Johnson's] first formal discipline, the series of poor decisions made by [Johnson] reveal that [CSU] can no longer rely on [Johnson] to consistently perform his primary responsibility as a supervising peace officer to ensure the safety and welfare of the [CSU] students, staff, and community."
On April 16, 2015, the Board adopted the ALJ's proposed decision. Johnson filed a petition for rehearing with the Board, and on August 17, 2015, the Board denied the petition. C. The Trial Court Proceedings
Johnson sought judicial review of the Board's decision by filing a petition for writ of administrative mandate in the superior court. (Code Civ. Proc., § 1094.5.) The petition alleged (1) the Board improperly concluded that CSU followed the required procedures for the Skelly hearing; (2) the Board's findings regarding Johnson's misconduct were not supported by substantial evidence; and (3) the Board abused its discretion in selecting termination of Johnson's employment as the appropriate penalty. Following briefing and a hearing, the trial court granted in part the petition for writ of mandate.
As initial matter, the court rejected Johnson's contention that CSU did not follow proper procedures during the Skelly hearing.
Next, turning specifically to the evidence supporting the Board's findings on the Dispatcher Training incident, the Unattended Prisoner incident, the Strip Search incident and the Release and Rearrest incident, the court concluded that "[a]ll of the [Board's] factual findings concerning these four incidents are supported by substantial evidence." However, it disagreed with the Board's conclusion as to which subdivision of Education Code section 89535 applied to each of the incidents. Specifically, it concluded that all four incidents constituted a "[f]ailure or refusal to perform the normal and reasonable duties of the position" as identified in Education Code section 89535, subdivision (f), but that only the Dispatcher Training incident constituted unprofessional conduct as identified in violation of Education Code section 89535, subdivision (b). The court also stated that it "disagree[d] with the finding of the [Board] that dismissal was the appropriate penalty." It concluded that "dismissal was excessive in light of the totality of the circumstances, including [Johnson's] long career and the lack of prior discipline."
The trial court did not explain its basis for concluding that some of the incidents did not constitute unprofessional conduct. Because it expressly stated that all of the Board's factual findings were supported by substantial evidence, we infer that the court's conclusion that some of the incidents did not constitute unprofessional conduct but did constitute a failure or refusal to perform the normal and reasonable duties of the position was not based on a concern with the factual support for the finding, but merely reflected a disagreement as to whether Johnson's actions met the definition for the particular category of misconduct.
Although Johnson sought an award of attorney fees under Government Code section 800 in his petition for writ of mandate, the trial court did not address that issue in its ruling.
Based on its ruling, the trial court issued a writ of mandate that granted in part and denied in part Johnson's petition. Specifically, the writ of mandate directed the Board to set aside the decision sustaining Johnson's termination and "to make further determinations consistent with the Court's order and judgment."
CSU filed a notice of appeal from the judgment. Johnson did not appeal.
DISCUSSION
A. The Limited Scope of CSU's Appeal
As we have noted, only CSU has appealed from the trial court's judgment, and its opening brief expressly identifies the limited scope of the appeal. According to CSU, it appeals "from th[e] limited portion of the trial court's ruling, granting in part Johnson's challenge to the level of discipline imposed." Specifically, CSU argues that we should reverse the trial court because Johnson did not establish that the Board abused its discretion in deciding that termination of employment was the appropriate penalty.
In his respondent's brief, Johnson presents a lengthy argument in which he contends that the Board's findings regarding the Dispatcher Training incident, the Unattended Prisoner incident, the Strip Search incident and the Release and Rearrest incident are not supported by substantial evidence. "[I]t is the general rule that a respondent who has not appealed from the judgment may not urge error on appeal." (California State Employees' Assn. v. State Personnel Bd. (1986) 178 Cal.App.3d 372, 382.) "A limited exception to this rule is provided by Code of Civil Procedure section 906, which provides in pertinent part: 'The respondent . . . may, without appealing from the judgment, request the reviewing court to and it may review any of the foregoing [described orders or rulings] for the purpose of determining whether or not the appellant was prejudiced by the error or errors upon which he relies for reversal or modification of the judgment from which the appeal is taken.' (Italics added.) The purpose of the statutory exception is to allow a respondent to assert a legal theory which may result in affirmance of the judgment." (California State Employees' Assn., at p. 382, fn. 7.) This exception does not apply here because in arguing that the Board's findings are not supported by substantial evidence, Johnson does not assert a legal theory that would result in an affirmance of the judgment. The trial court ruled that the Board's findings are supported by substantial evidence, but it disagreed with the penalty selected by the Board. Thus, were Johnson to establish that the Board's findings are not supported by substantial evidence, the result would not be an affirmance of the trial court's judgment.
Accordingly, because Johnson did not file an appeal, we do not consider his argument that the trial court erred in concluding that the Board's findings of fact are supported by substantial evidence.
Further, we need not and do not review the trial court's ruling that the Unattended Prisoner incident, the Strip Search incident and the Release and Rearrest incident constituted failure or refusal to perform the normal and reasonable duties of the position (Ed. Code, § 89535, subd. (f)), but not unprofessional conduct (id., § 89535, subd. (b)). CSU has not challenged that ruling on appeal. Moreover, under Education Code section 89535 either type of misconduct (i.e., unprofessional conduct or failure or refusal to perform the normal and reasonable duties of the position) is an independent and sufficient basis for disciplinary action, including termination. (Cf. Washington v. State Personnel Bd. (1981) 127 Cal.App.3d 636, 641 [stating that it was unnecessary to determine whether the term "unprofessional conduct" could be constitutionally applied to the plaintiff because the Board expressly found that the plaintiff acted in a dishonest manner, and dishonesty is a separate statutory ground for dismissal under Ed. Code, § 89535].) Therefore, Johnson is properly subject to discipline under Education Code section 89535 regardless of whether certain of his misconduct is labeled as unprofessional conduct or failure or refusal to perform the normal and reasonable duties of his position.
Based on the above, the sole issue for us to consider is CSU's challenge to the trial court's ruling that termination was an excessive penalty for Johnson's misconduct. B. Applicable Legal Standards
In considering whether the trial court erred in concluding that termination was an excessive penalty for the Board to impose on Johnson, we first focus on the applicable legal standards.
"The [Board] is an agency of constitutional authority; hence, once the [Board] renders a decision, its determination regarding whether the facts justify discipline and, if so, what the appropriate penalty should be, will not be disturbed in a mandamus proceeding unless the [Board] patently abused its exercise of discretion by acting arbitrarily, capriciously, or beyond the bounds of reason. [Citations.] [¶] . . . ' " '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.' " ' " (County of Siskiyou v. State Personnel Bd. (2010) 188 Cal.App.4th 1606, 1615.) "If reasonable minds may differ as to the propriety of the penalty imposed, there has been no abuse of discretion. [Citation.] It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown." (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 46-47.) Indeed, "[t]he fact that reasonable minds may differ as to the propriety of the penalty imposed fortifies the conclusion that the administrative body acted within the area of its discretion." (Flowers v. State Pers. Bd. (1985) 174 Cal.App.3d 753, 761.)
"This court reviews de novo the administrative agency's determination of penalty, giving no deference to the trial court's decision on the issue." (Cate v. California State Personnel Bd. (2012) 204 Cal.App.4th 270, 284 (Cate).)
As the ALJ recognized, the standards for assessing an appropriate penalty for misconduct by a public employee were set forth by our Supreme Court in Skelly, supra, 15 Cal.3d 194. "In considering whether such abuse occurred in the context of public employee discipline, we note that the overriding consideration in these cases is the extent to which the employee's conduct resulted in, or if repeated is likely to result in, '[h]arm to the public service.' [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence." (Id. at p. 218.) Harm to the public service is the overriding consideration because " '[t]he public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability.' " (Kolender v. San Diego County Civil Service Com. (2007) 149 Cal.App.4th 464, 471.)
Moreover, in selecting an appropriate penalty the Board may properly take into account that " '[t]here are certain professions which impose upon persons attracted to them, responsibilities and limitations on freedom of action which do not exist in other callings. Public officials such as judges, policemen, and school teachers fall into such a category.' " (Ackerman v. State Pers. Bd. (1983) 145 Cal.App.3d 395, 400.) Indeed, "[c]ase law and [Board] decisions establish that peace officers may be held to higher standards of conduct than civilian employees." (Cate, supra, 204 Cal.App.4th at p. 285.) C. The Board Did Not Abuse Its Discretion in Selecting Termination of Employment as the Penalty
As we will explain, having thoroughly reviewed the administrative record we conclude the Board did not abuse its discretion by deciding that termination was the proper penalty to impose upon Johnson.
"The public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability." (Hankla v. Long Beach Civil Service Com. (1995) 34 Cal.App.4th 1216, 1223 (Hankla).) As shown by the ALJ's findings, each incident of Johnson's misconduct could reasonably be viewed by the Board as demonstrating that Johnson lacked the judgment to avoid situations that could have resulted in harm to the public or liability to the Department.
Allowing the dispatcher to drive the patrol vehicle on public streets for an hour without the proper training put the public at risk of harm and would have exposed the Department to liability had an accident occurred. Leaving a prisoner unattended in a jail cell with no one assigned to monitor him for nearly two hours created a risk of harm to the prisoner if he were to have a medical emergency and created a risk of damage to Department facilities had the prisoner attempted to vandalize the jail cell while unattended. Performing a strip search in view of a camera that was streaming video to dispatchers and without following the procedures for memorializing in writing the need for such an intrusive search meaningfully increased the possibility that the Department would incur liability if it were subsequently determined that the circumstances of the search violated the subject's right to privacy. Finally, taking action to release a belligerent arrestee from custody while at the hospital with the intention of rearresting him upon discharge was not only contrary to Penal Code section 849, subdivision (b), but was also ill-advised and showed poor judgment. An officer of Johnson's experience should have recognized the reasonable possibility that the belligerent subject would flee the hospital, requiring other officers to chase after him and creating a risk of harm to those officers, the public, and the suspect during the chase.
Johnson contends that the penalty of termination was excessive because his violation of the Department's policies was not intentional, he did not intend to harm anyone, and he is not likely to engage in any of those behaviors in the future. He argues that although he believed his actions were permissible at the time of incidents, he now understands the Department forbids such conduct. Although we understand Johnson's argument, he misses the point. In light of the fact that Johnson engaged in four instances of questionable conduct in a time period of less than three months involving disparate situations and different Department policies, the Department could reasonably question Johnson's judgment and ability to identify and avoid future situations involving violation of other Department policies of which Johnson may not be aware or other conduct that may pose a risk of harm to the public or liability to the Department.
"[P]olice officers 'are the guardians of the peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintaining law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them.' " (Hankla, supra, 34 Cal.App.4th at p. 1224.) A police officer's job " 'is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer.' " (Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 721.) Based on this principle, numerous authorities establish that an agency may terminate a law enforcement officer's employment when it has lost confidence in his or her good judgment. For instance, the court in Gray v. State Pers. Bd. (1985) 166 Cal.App.3d 1229, 1233 concluded that the Board did not abuse its discretion in terminating a correctional officer whose misuse of his weapon while off duty showed that he lacked self-control and did not possess "the ability to make calm, reasoned judgments under pressure . . . required of correctional officers." Similarly in Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, the city council did not abuse its discretion in deciding to terminate a police officer after he used bad judgment and violated regulations by firing a blank round at a fellow officer during a training session. The incident could reasonably be viewed as "demonstrating a severe lack of good judgment and an indifference to safety and official regulations portending serious future consequences," and there was "no way of telling when [the officer] might experience another lapse of judgment or when his cavalier attitude toward danger and official regulations, evidenced by his conduct in this case, might manifest itself in some other conduct posing a serious danger to the public or police personnel." (Id. at p. 504.) Finally, in Bautista v. County of Los Angeles (2010) 190 Cal.App.4th 869, 879, the court concluded that the county's civil service commission did not abuse its discretion in terminating a deputy sheriff when his actions caused the sheriff's department to lose confidence in his judgment. Specifically, the commission could reasonably conclude that a deputy sheriff who engaged in a "close personal relationship with [a prostitute and heroin user] over a two-year period, while she was engaged in illegal activities, had evidenced his poor judgment and undermined the [d]epartment's trust and confidence in [him] as a law enforcement officer." (Ibid.)
As in these other cases, the Department here is entitled to the services of a police sergeant whose judgment it trusts. While none of the individual incidents may rise to the level of the poor judgment exercised in Gray, Schmitt, or Bautista, Johnson's conduct during the four incidents, when considered together, could reasonably cause the Department to lose confidence in his judgment and ability to function at the levels required of a police sergeant. This lack of confidence in Johnson's judgment reasonably arises regardless of whether he intended to commit misconduct and even if he now understands the policy against the specific misconduct involved in the four incidents. As the ALJ explained, "the series of poor decisions made by [Johnson] reveal that [CSU] can no longer rely on [Johnson] to consistently perform his primary responsibility as a supervising peace officer to ensure the safety and welfare of the [CSU] students, staff, and community." (Compare, e.g., Blake v. State Personnel Board (1972) 25 Cal.App.3d 541, 554 [termination excessive for single off-duty incident of poor judgment not involving a peace officer].) Under these circumstances, the Board was within its discretion to conclude that termination of Johnson's employment was the proper penalty. Neither the trial court nor this court is entitled to second-guess that decision.
Johnson argues that he should be awarded attorney fees pursuant to Government Code section 800. We reject the argument because Johnson is not a prevailing party as required for an award of fees under that provision. --------
DISPOSITION
We reverse the judgment and remand this matter to the trial court with directions to enter a judgment denying Johnson's petition for writ of administrative mandate.
/s/_________
DATO, J. WE CONCUR: /s/_________
HUFFMAN, Acting P. J. /s/_________
O'ROURKE, J.