Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CV050808
Mihara, Acting P.J.
Plaintiffs Service Employees International Union, Local 715 (SEIU) and Shara Sedaghatpour brought a petition for writ of administrative mandate following Sedaghatpour’s termination as an employee of the City of Mountain View (City). The trial court did not set aside the termination, but ordered defendants City and Kevin Duggan, the City manager, to restore back pay to Sedaghatpour from November 3, 2004 to August 30, 2005, on the ground that the predisciplinary or Skelly hearing violated due process. On appeal, defendants contend that there was no violation of due process. Following supplemental briefing, we conclude that Sedaghatpour’s failure to exhaust her administrative remedies deprived the trial court of jurisdiction to decide this issue. We therefore reverse the judgment. Plaintiffs have filed a cross-appeal in which they argue that there was insufficient evidence to support the trial court’s findings regarding job-related misconduct. We find no merit to this argument.
Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly).
I. Statement of Facts
Sedaghatpour worked as a water environmental specialist for the City for 14 years. In this position, Sedaghatpour was responsible for inspecting industrial and commercial facilities for wastewater discharge code and ordinance compliance. Her duties included enforcement of these codes and ordinances by issuing notices of violation, administering fines and penalties, and testifying at enforcement hearings. She was also required to work cooperatively with treatment plant and hazardous materials employees in Palo Alto. Sedaghatpour’s position was assigned to the fire department. Sedaghatpour’s supervisor was the Fire Marshal, Gary Leinweber. Leinweber evaluated Sedaghatpour’s performance as “very good” and “excellent” in all areas.
On March 28, 2003, a code enforcement officer for the City of Palo Alto (Palo Alto) issued a stop work order to Sedaghatpour, because she was illegally constructing an addition to her home without a permit. Despite the stop work order, Sedaghatpour continued construction on her home. On June 5, 2003, Sedaghatpour was criminally charged in two counts with violations of the Palo Alto Municipal Code. On June 28, 2004, Sedaghatpour pleaded no contest to remodeling her home without a permit. (Palo Alto Municipal Code, § 16.04.060.) The other count was dismissed pursuant to the terms of the negotiated agreement.
On September 27, 2004, Fire Chief Marc Revere was the department head for the fire department. In that capacity, he sent Sedaghatpour a written notice of intent to terminate her employment based on the criminal code violations and other misconduct, including abuse of sick leave, unsafe driving in a City vehicle, personal use of a City vehicle, and inappropriate customer interactions. The notice of intent also advised her of her rights to a predisciplinary hearing and representation by counsel.
On October 12, 2004, Revere conducted the Skelly hearing. Sedaghatpour, her attorney, and her union representative attended the hearing. Though section 7.05, subdivision (b) of the City’s Personnel Rules and Regulations allowed an employee to request that the personnel officer or his or her designee serve as the Skelly hearing officer rather than the department head, Sedaghatpour did not make this request. After considering the documents submitted by Sedaghatpour and argument on her behalf, Revere decided to terminate her employment. On October 27, 2004, Revere issued a final notice of termination. Sedaghatpour’s employment was terminated effective November 3, 2004.
Pursuant to the memorandum of understanding between the City and SEIU, Sedaghatpour filed a grievance in which she requested a review by Kathy Farrar, Employee Services Director. On November 23, 2004, a grievance hearing was held. Sedaghatpour and two union representatives were present. There is no indication in the record that Sedaghatpour argued that Revere had not been an impartial Skelly hearing officer. Farrar upheld Revere’s decision, and advised her of her right to a hearing before an Appeals Board.
On April 25 and 26, 2005, an administrative appeal hearing was held before an Appeals Board. One of the members of the Appeals Board was a mediator from the State Mediation and Conciliation Service, two members were selected by Sedaghatpour, and two members were selected by the City. Both parties were represented by counsel. Sedaghatpour argued that her dispute with Palo Alto had no relationship to her employment as a water environmental specialist, that the other charges had no merit and, alternatively, were “nonterminable offenses,” and that she had been deprived of due process, because Revere was not an impartial Skelly hearing officer. The City’s position was that Sedaghatpour had violated the personnel rules, termination was appropriate, and Sedaghatpour had failed to request a different hearing officer.
On April 30, 2005, the Appeals Board issued a letter, stating that it was “unable to reach consensus on the appropriate penalty to be applied.” The Appeals Board also stated that its “inability to reach a consensus on the proper penalty in this case is no indication of the belief that the Appellant should not be discharged or given a lengthy suspension for her actions.” Thus, though it did not specify the penalty, the Appeals Board stated that “a significant penalty was justified.” The Appeals Board made no factual findings as to the charges against Sedaghatpour and did not address the Skelly issue.
Sedaghatpour has misrepresented the record in stating that the Appeals Board recommended reduction in pay rather than termination of employment. This recommendation was proposed by Peter Lujan, the chair of the Appeals Board, but it was not adopted by the other members. Sedaghatpour also quotes other language in the letter that was adopted by Lujan, but not other Appeals Board members.
On May 27, 2005, Kevin Duggan, the City Manager, requested that the Appeals Board reconvene and make factual findings on each of the charges alleged by Revere. On June 11, 2005, the Appeals Board then reconvened and issued factual findings. The Appeals Board found that the evidence supported the charges outlined by Revere in the notice of intent to terminate with the exception of the unsafe driving charge. The Appeals Board also stated that these findings were intended to supplement, not revoke or modify, the prior recommendations. The Appeals Board did not address the Skelly issue.
On August 3, 2005, Duggan issued a decision that upheld the termination. He did not address the Skelly issue.
Duggan’s letter is dated August 3, 2005, and states that his decision is final “on the date of mailing of this letter.” Both parties refer to this date as August 30, 2005.
On October 17, 2005, plaintiffs filed a petition for writ of administrative mandate in which they alleged that the Appeals Board findings or the weight of the evidence did not support the City Manager’s decision to uphold the termination. Plaintiffs also alleged that Sedaghatpour’s due process rights were violated, because the same person who initiated the termination action acted as the Skelly hearing officer. On January 18, 2006, defendants filed an answer in which they alleged, among other things, that plaintiffs failed to object to Revere as the hearing officer and, if Sedaghatpour had requested an alternative hearing officer, defendants would have acted upon this request.
Following a hearing, the trial court denied plaintiffs’ petition. The trial court found that the Appeals Board findings regarding the code enforcement matter, the misuse of sick leave, and the unsafe driving were supported by the weight of the evidence. It also found that the City provided due process in its pre-termination hearing. On June 2, 2006, plaintiffs filed a motion for reconsideration. The trial court then issued an order in which it invited further argument on three issues: (1) whether Sedaghatpour was “entitled to both a reasonably impartial non-involved reviewer at the ‘Skelly hearing’ and at the final stage of administrative appeal”; (2) whether the record supported the conclusion that Revere was “a reasonably impartial non-involved reviewer”; and (3) whether “the disability caused by the violation terminate[d] when [Sedaghatpour] had administrative appellate hearings which afforded her due process.”
Following argument, the trial court issued an order in which it stated that the City must pay Sedaghatpour “loss of pay and benefits with interest, less unemployment benefits, from the time of termination, November 3, 2004 to August 3, 2005 . . . for the reasons indicated on the record by the Court on September 1, 2006.” At that time, the trial court stated: “My final conclusion is that he was not a reasonably impartial person by virtue of the fact not only that he initiated the termination, but there was evidence to suggest that [Sedaghatpour’s] supervisor did not at least initially recommend or initiate the termination procedure. [¶] Because of those conclusions, I believe that [Sedaghatpour] is entitled to lost pay and lost benefits and interest from the time of termination less credit for any unemployment benefits received from the City.”
On November 8, 2006, the trial court entered judgment granting the writ of administrative mandate and remanding the matter to defendants to partially set aside the city manager’s decision as follows: “The decision to uphold the discharge is not set aside; however, the City shall pay . . . Sedaghatpour loss of pay and benefits with interest, less unemployment benefits, from time of termination on November 3, 2004 to August 30, 2005.”
II. Discussion
A. Standard of Review
Code of Civil Procedure section 1094.5 governs any inquiry “into the validity of any final administrative order or decision made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer . . . .” (Code Civ. Proc., § 1094.5, sub. (a).) When a fundamental right is at issue, such as the right of an employee to continued employment (Bixby v. Pierno (1971) 4 Cal.3d 130, 143), then the trial court exercises its independent judgment to determine whether the employee’s due process rights were violated and whether the agency’s findings are supported by the weight of the evidence. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32.) However, a reviewing court applies the substantial evidence test and must sustain every finding of fact that is supported by substantial evidence. (See Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.) Under the substantial evidence test, “ ‘ “[w]e must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.] Where the evidence supports more than one inference, we may not substitute our deductions for the trial court’s. [Citation.] We may overturn the trial court’s factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings. [Citation.]” ’ ” (Lake v. Reed (1997) 16 Cal.4th 448, 457.)
B. The Skelly Hearing
In Skelly, supra, 15 Cal.3d 194, the California Supreme Court held that an agency which is considering disciplinary action against a public employee must provide the employee with procedural due process, including “notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Id. at p. 215.) The employee’s right to respond to the agency’s proposed action implies “‘the right to respond’ before a reasonably impartial, noninvolved reviewer.” (Williams v. County of Los Angeles (1978) 22 Cal.3d 731, 736-737.)
Defendants argue that Sedaghatpour failed to exhaust her administrative remedies, thus precluding consideration of the due process issue on appeal.
Section 7.05, subdivision (b) of the City Personnel Rules and Regulations provides: “If the Personnel Officer determines that the Department Head is so involved in the disciplinary proceedings that s/he cannot be impartial, or upon timely written request made by the employee, the Personnel Officer or his/her designee may, in his/her discretion, hear the employee’s response.”
The long-standing rule is that “where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292 (Abelleira).) As our Supreme Court has observed, one of the benefits of this requirement is the elimination or mitigation of damages. “If an organization is given the opportunity quickly to determine through the operation of its internal procedures that it has committed error, it may be able to minimize, and sometimes eliminate, any monetary injury to the plaintiff by immediately reversing its initial decision and affording the aggrieved party all membership rights; an individual should not be permitted to increase damages by foregoing available internal remedies. [Citation.]” (Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 476.) “ ‘Before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.’ ” (Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520, quoting Bleeck v. State Board of Optometry (1971) 18 Cal.App.3d 415, 432, italics added.) The exhaustion of administrative remedies is a jurisdictional prerequisite to suit. (Abelleira, at p. 293.) However, “[t]he doctrine is inapplicable where the administrative remedy is inadequate; where it is unavailable; or where it would be futile to pursue such remedy. A remedy is not adequate if it does not square with the requirements of due process.” (Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 620, internal citations and quotation marks omitted.)
Plaintiffs contend that it would have been futile for Sedaghatpour to assert her right to request a different hearing officer. They rely on Farrar’s testimony that Farrar had already decided that Revere was “fair and impartial.” However, Farrar did not testify as to what action she would have taken if Sedaghatpour had requested another hearing officer. If Sedaghatpour had done so, Farrar may well have investigated further and concluded that Revere was not impartial. Based on this record, we cannot assume that Sedaghatpour’s request would have been futile.
Farrar testified: “Q. Okay. And for purposes of determining who can act as a reasonably impartial Skelly officer, do you find out -- let’s see -- who recommended the Notice of Intent for Dismissal? Is that part of your process? [¶] A. I am seeking a party -- a hearing officer that can be objective and impartial in the process. [¶] Q. And how do you determine who can be reasonably impartial in the process? [¶] A. I look at the facts of the case, I look at who has been involved in review of facts and information in the case, and if I have any information from the department head that leads me to believe he or she can’t be impartial, I would take that I into consideration. [¶] I felt in this case the Fire Chief could be impartial and objective.”
Plaintiffs also contend that the doctrine of administrative remedies does not apply to a Skelly hearing, because Sedaghatpour did not have the opportunity to present evidence on her behalf. We disagree. There is no dispute that Sedaghatpour was entitled to procedural due process prior to her termination, including “a reasonably impartial, non-involved reviewer.” It is also undisputed that Sedaghatpour, who attended the Skelly hearing with her attorney and her union representative, had the opportunity to request a different hearing officer. Sedaghatpour’s inability to present evidence on her behalf had no bearing on her right to assert other due process rights at the hearing. Since Sedaghatpour never made a timely request, she failed to exhaust her administrative remedy. Thus, the trial court was without jurisdiction to rule on the issue of whether her due process rights were violated, because the same person who initiated the termination action acted as the Skelly hearing officer.
Plaintiffs correctly note that the issue of Revere’s impartiality was raised at the Appeals Board hearing. However, any alleged violation of Sedaghatpour’s due process rights had already occurred, and thus the City could not provide an adequate remedy.
C. Sufficiency of the Evidence
Plaintiffs contend that there was insufficient evidence to support the trial court’s findings regarding job-related misconduct.
1. Code Enforcement
The trial court made the following findings regarding the code enforcement matter. Palo Alto issued a stop work order to Sedaghatpour, because she was illegally constructing an addition to her garage. Despite this order, Sedaghatpour continued the construction. After Palo Alto issued a criminal complaint that charged her with municipal code violations, Sedaghatpour pleaded no contest to a single charge. The trial court concluded that Sedaghatpour violated the type of law that she enforced in her employment by ignoring the stop work order and continuing to commit code violations.
Plaintiffs contend that there was insufficient evidence of a nexus between Sedaghatpour’s misdemeanor conviction and her employment to warrant a finding of job-related misconduct.
“There must be a sufficient probative nexus between the failure of good behavior and a finding of discredit to the agency or employment to justify disciplinary action. [Citation.] Whether the conduct occurs on duty or off duty, whether the actor is a state employee or another public employee, the essential test is whether the conduct harms the public service. [Citation.]” (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 50 (Deegan).)
For example, in Parker v. State Personnel Bd. (1981) 120 Cal.App.3d 84, an employee was terminated from his employment with the California Youth Authority after he was found in possession of a large quantity of marijuana at his home. (Id. at p. 86.) His position required that he have credibility with the wards under his supervision, some of whom had been incarcerated for marijuana-related charges. (Id. at p. 88.) Thus, the reviewing court held that there was substantial evidence to support a finding that the employee’s off duty behavior rendered him unfit for his employment. (Id. at p. 89.)
Similarly, here Sedaghatpour’s off duty criminal conduct constituted discredit to the City. Sedaghatpour was employed as a water environmental specialist, who was responsible for the inspection of industrial and commercial facilities for wastewater discharge code and ordinance compliance. Her duties included the enforcement of these codes and ordinances by issuing notices of violation, administering fines and penalties, and testifying at enforcement hearings. She was also required to work cooperatively with treatment plant and hazardous materials employees in Palo Alto. Despite her own role in enforcement of municipal codes and ordinances, Sedaghatpour ignored those of a neighboring jurisdiction. After receiving a stop work notice, Sedaghatpour continued construction on her home in Palo Alto. Sedaghatpour was then prosecuted for criminal violations, because the city attorney concluded that it was the only way that she would bring her property into compliance. Thus, Sedaghatpour’s conduct demonstrated to the community that she believed that compliance with a provision of the municipal code applied to others, but not to her. In our view, her refusal to comply with the Palo Alto building code rendered her unfit to investigate and enforce the City’s wastewater discharge code and ordinances.
Plaintiffs argue, however, that Sedaghatpour’s employment did not involve the enforcement of building code violations and she did not work with Palo Alto building enforcement staff. There is no case authority that the off duty conduct must mirror the employee’s job duties. As previously discussed, the City was required to show that Sedaghatpour’s off duty “conduct harms the public service.” (Deegan, supra, 72 Cal.App.4th at p. 50.)
Plaintiffs also point out that Sedaghatpour “did not say or do anything offensive that would affect her reputation in the community” when she pleaded no contest at the Palo Alto hearing. In our view, Sedaghatpour’s conduct at the hearing was very damaging to her reputation as a City employee, whose primary responsibility was to enforce the municipal code. Her comments indicated that she was unwilling to take responsibility for her actions. Sedaghatpour blamed others, and even told the trial court, “I do the same kind of stuff, and this thing has been blown out of proportion.” Moreover, after listening to her arguments, the trial court stated: “I can’t get a straight answer to a question from you. I see why the city is so exasperated with you. You’re a difficult person to deal with.”
Plaintiffs’ reliance on Vielehr v. State Personnel Bd. (1973) 32 Cal.App.3d 187, is misplaced. In Vielehr, a state tax representative trainee was dismissed from his employment after he was convicted of possession of marijuana while off duty. (Id. at p. 189.) The issue was whether the conviction constituted “substantial evidence of a failure of good behavior outside duty hours which is of such a nature that it causes discredit to the agency or to appellant’s employment” within the meaning of Government Code, section 19572. (Id. at p. 191.) The reviewing court concluded that evidence of the conviction, standing alone, was insufficient, and remanded the matter to allow the state to present additional evidence on the issue. (Id. at pp. 194-195.) Vielehr is distinguishable from the present case, because Sedaghatpour’s conviction was related to the type of law that she must enforce as a water environmental specialist.
Similarly, the case of Yancey v. State Personnel Bd. (1985) 167 Cal.App.3d 478, does not compel a different result. In Yancey, a correctional officer was terminated from his employment pursuant to Government Code section 19572 after he wore female underclothing while off duty. (Id. at p. 481.) The reviewing court held that there was insufficient evidence that the officer was unfit for his employment and that the penalty of termination was an abuse of discretion. (Id. at p. 487.) In contrast to the present case, the officer’s conduct was not illegal and had no relationship to the type of duties that his employment required.
2. Abuse of Sick Leave
Plaintiffs next contend that there was insufficient evidence that Sedaghatpour abused sick leave or falsified a timecard.
The trial court found that Sedaghatpour recorded four hours of sick leave for the time she spent in court on the Palo Alto matter.
Section 8.02.3 of the City Personnel Rules and Regulations provides: “Sick leave shall be granted only by reason of necessity in actual sickness or injury of the employee . . . .” “Abuse of sick leave will be grounds for dismissal or disciplinary action.” (Personnel Rules and Regulations, § 8.02.)
Sedaghatpour testified that she was in court for two hours on June 28, 2004. Following the hearing, she felt sick and called Leinweber to tell him that she would not be coming to work. At the end of the pay period, however, she reported on her timecard that she had worked 10 hours on that date. When Leinweber later asked her whether she had been sick, she stated that she “came in the afternoon [and] worked till after 7 p.m.” Sedaghatpour then changed her timecard and reported four hours of sick time and six hours of work. Since Sedaghatpour was not sick during the two hours that she was in court, she abused her sick leave and falsified her timecard. Thus, there was substantial evidence to support the trial court’s finding.
3. Unsafe Driving
Plaintiffs also argue that there was insufficient evidence that Sedaghatpour engaged in unsafe driving.
The trial court found that Sedaghatpour engaged in unsafe driving by failing to stop at several stop signs and by making an unsafe turn on July 13, 2004.
On July 13, 2004, Don Kensil wrote a letter to the fire department after he observed that fire department van No. 161 ran four consecutive stop signs and made a right turn without signaling at the last stop sign. Sergeant Derek Sousa interviewed Kensil, who stated that the driver of the van was a woman. Kensil was unable to identify the driver based on two photographs that were presented to him.
Sousa also interviewed Sedaghatpour. She stated that she used van No. 161, and that she did not think that any other women drove this van. She frequently took the route that Kensil described to Sousa, but she did not remember driving there on July 13. However, she remembered that she drove the van to physical therapy that day and this was the route she usually took from the physical therapist’s office.
Here, Kensil observed unsafe driving by the female driver of van No. 161 on July 13. On the same day, Sedaghatpour drove this van to her physical therapy appointment and took the route described by Kensil. Based on this record, there was sufficient evidence to support the trial court’s finding of unsafe driving.
III. Disposition
The judgment is reversed. The case is remanded to the trial court, and the trial court is directed to deny plaintiffs’ petition for writ of administrative mandate and to enter a new judgment in favor of defendants. Costs are awarded to defendants.
WE CONCUR: McAdams, J., Duffy, J.