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Bellizzi v. San Diego County Civil Service Commission

Court of Appeal of California
Sep 29, 2008
No. D052021 (Cal. Ct. App. Sep. 29, 2008)

Opinion

D052021

9-29-2008

STEVEN BELLIZZI, Plaintiff and Appellant, v. SAN DIEGO COUNTY CIVIL SERVICE COMMISSION, Defendant and Respondent. SAN DIEGO COUNTY, Real Party in Interest and Respondent.

Not to be Published


Steven Bellizzi appeals a judgment upholding his termination from employment as an investigator with the office of the San Diego County District Attorney (the District Attorney). He contends the San Diego County Civil Service Commission (the Commission) abused its discretion by upholding the decision of the District Attorney to terminate his employment; the Commission acted without or in excess of its jurisdiction by amending the statutory violations supporting the causes against him after the administrative hearing; and the Commission improperly gave substantial deference to the District Attorneys decision. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Bellizzi was employed as a supervising investigator at the office of the District Attorney. In the summer of 2005, retired San Diego County Superior Court Judge Vincent DiFiglia asked Bellizzi, as a personal favor, to run a license plate check through the California Law Enforcement Telecommunications System (CLETS) via the California Department of Motor Vehicles (DMV) data base. Bellizzi did so and communicated the information gained from the search to DiFiglia.

In 2002 and in 2004 Bellizzi had signed acknowledgments attesting to the fact that he had read and understood that misuse of CLETS information was against the policy of the office of the District Attorney, and any employee responsible for such misuse would be subject to discipline up to and including termination. Bellizzi admits that his conduct violated department policy and state law.

On March 15, 2006, the District Attorneys office served notice on Bellizzi of the intention to recommend he be terminated from employment, notice that a Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly) conference had been scheduled for him that would be conducted by the District Attorney, and a proposed order of dismissal and removal from county employment.

At Bellizzis request, the District Attorney, Bonnie Dumanis, met informally with him. Dumanis said Bellizzi acknowledged responsibility, but did not show remorse and indicated he would have done the same thing for her if she had asked.

On April 18, 2006, the District Attorney offered to allow Bellizzi to retire effective March 29, 2007, in lieu of immediate termination, if he agreed to certain conditions, including that he serve a two-week suspension, waive his right to a Skelly conference and his right to appeal the order of discipline, and sign a "Last Chance Agreement," which provided that any violations of rules or policy would result in termination. Bellizzi rejected the offer and waived his right to a Skelly conference.

The District Attorney served Bellizzi with a final order of dismissal on the basis of (1) conduct unbecoming a San Diego County employee under the Civil Service Rules of the County of San Diego, rule 7.2(m); (2) guilt of committing acts that are incompatible with or inimical to being a peace officer employed in the offices of the District Attorney under rule 7.2(s); and (3) failure of good behavior under rule 7.2(r). Bellizzi appealed the decision to the Commission. The hearing officer upheld the termination and the Commission adopted and approved the hearing officers recommendation. Bellizzi filed a petition in the superior court contesting the dismissal. The court denied the petition.

Rule references are to the Civil Service Rules of the County of San Diego.

DISCUSSION

I

Bellizzi contends the Commission abused its discretion by upholding the District Attorneys decision to terminate his employment. He argues there was no evidence the public was harmed by this single incident or that it was likely to happen again, and the Commission did not consider mitigating factors, including his lifetime career in law enforcement, his exemplary personnel history and his lack of adequate training as to CLETS confidentiality requirements.

"`When review of an administrative determination by administrative mandamus is sought and the trial court has applied an abuse of discretion standard, the scope of review is the same in the appellate court as it was in the superior court. The appellate court must determine whether the administrative agency exercised its discretion to an end or purpose not justified by all the facts and circumstances being considered. " (Talmo v. Civil Service Commission (1991) 231 Cal.App.3d 210, 227.)

"The agencys discretion is not unfettered, and reversal is warranted when the administrative agency abuses its discretion, or exceeds the bounds of reason." (Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 721.)

In Skelly v. State Personnel Bd., supra, 15 Cal.3d at p. 218, the California Supreme Court noted that in determining whether there has been an abuse of discretion in disciplining a public employee, the overriding consideration is the extent to which the employees conduct resulted in or if repeated is likely to result in "harm to the public service." Other considerations are the circumstances surrounding the misconduct and the likelihood it will occur again. (Ibid.)

There is substantial evidence in the record that Bellizzis breach of CLETS confidentiality rules were likely to result in harm to the public service. The employees of the office of the District Attorney must abide by CLETS rules of confidentiality as agreed to by the District Attorney in the Subscriber Agreement with the State Department of Justice in order for the District Attorney not to lose access to CLETS. Under the CLETS Subscriber Agreement, the District Attorney agrees violation of CLETS rules, policies, practices and procedures may result in suspension of services or other appropriate disciplinary actions. The agreement states the CLETS Advisory Committee reserves the right to immediately suspend furnishing criminal history data if security or dissemination requirements are violated. The loss of access to criminal history data through CLETS would greatly hamper the work of the District Attorney in protecting the public.

Bellizzi knew DiFiglia was no longer a judge, wanted the information for personal reasons and was not entitled to it. Bellizzi acknowledged he knew the records were confidential and that he had violated state law and department policy by his actions. However, according to Dumanis, he said he did not believe his offense was of great concern. This attitude and lack of remorse was troubling to Dumanis and to the Commission. Bellizzi was a peace officer charged with upholding the law, and, as a peace officer, he was held to the highest standard. What is more, he was employed as a supervisor, making his breach of confidentiality rules and lack of remorse even more egregious. As Dumanis stated, "[W]hen somebody violates the law, I draw the line there, and I told him that, and he is a supervisor which, to me, makes it that much more important."

Bellizzis argument that he did not receive adequate training on the proper use of CLETS is without merit. He signed forms attesting to the fact that he had received training in the proper use of CLETS information. Dumanis commented that "the use of CLETS is something that everybody talks about in every kind of investigative training . . . Its a common thing that peace officers and Deputy DA[]s are aware of, that its a violation of the law, that its a misuse for personal reasons. . . . I dont know that a supervisor would need additional training in that area." Bellizzi knew his unauthorized use of CLETS was wrong, used it anyway and did not appear to believe that his wrongdoing was very important. Bellizzi has not shown the Commissions decision to terminate him was an abuse of discretion.

II

Bellizzi asserts that by amending the statutory violations supporting the causes of his termination, the Commission proceeded without or in excess of its jurisdiction. He argues by amending the charging documents after the hearing, the Commission violated the rules, the Public Safety Officers Bill of Rights, Government Code section 3300 and his due process rights.

Bellizzis argument is unfounded. Although the hearing officer concluded some of the statutory provisions supporting the causes against Bellizzi were inapplicable, the charges never changed. The causes of action for Bellizzis dismissal were (1) conduct unbecoming an employee of San Diego County under rule 7.2(m) and violation of Section 2.1 (II) of the District Attorneys office policy and regulation manual; (2) acts that are incompatible with or inimical to being a peace officer employed in the District Attorneys office under rule 7.2(s) and violation of section 2.3(I) of the District Attorneys office policy and regulation manual; and (3) failure of good behavior in violation of rule 7.2(r). These causes remained essentially the same from the time Bellizzi was first notified of the investigation through the time of the Commissions final decision and the final order. They are the same three causes he responded to when he filed his appeal to the commission. As the superior court stated in its ruling:

The hearing officer observed the order of dismissal cites Penal Code sections 502, subdivision (c), 11142, 13302 and 13303, but sections 11142, 13302 and 13303 were inapplicable to Bellizzis case because these sections apply to criminal history information, and the records at issue here were DMV records. He noted section 502 is a broad statute regarding unauthorized use of computer data. The hearing officer stated Bellizzi had instead violated Vehicle Code section 1808.45, which prohibits "the willful, unauthorized disclosure of information from any department record to any person, or the use of any false representation to obtain information from a department record or any use of information obtained from a department record for a purpose other than the one stated in the request or the sale or other distribution of the information to a person or organization for purposes not disclosed in the request . . . ." (Veh. Code § 1808.45.) The hearing officer also noted Bellizzi had signed a DMV Employee Security Statement that admonished him of the confidentiality of DMV records and cited Vehicle Code section 1808.21, which prohibits unauthorized disclosure of residence addresses.

". . . Civil Service Rule 7.7 only requires an amended charge when new causes are alleged. In this case, the causes are the same causes which form the basis for the Order of Dismissal and Termination. . . . In addition, the factual allegations underlying the causes did not change and Petitioner was fully apprised of the acts underlying the causes."

The causes against Bellizzi alleged violations of the rules. The factual allegations, including his unauthorized access to DMV records and the sharing of the information gained with a person who was not authorized to receive it, were clearly set out from the beginning of the investigation and never changed. Bellizzi was apprised of the charges against him and their factual basis. It was legally irrelevant that the original charges referred to sections of the Penal Code that were inapplicable.

Bellizzis reliance on language in the final decision that reminded the District Attorneys office to use proper terminology and processes in all interactions with employees does not support his argument. This admonishment appears to refer to use by the District Attorneys office of terminology that is not expressly used in the rules. It does not support his argument that the Commission acted outside of its jurisdiction by amending the statutory violations supporting the causes of his termination.

Bellizzi was provided with proper notice of the charges against him and a fair hearing. The Commission did not act without or in excess of its jurisdiction. Bellizzi has not shown a violation of his due process rights.

III

Bellizzi maintains the Commission failed to provide an independent review by improperly giving substantial deference to the Distinct Attorneys decision to terminate him. He notes the hearing officer stated that the discipline was "surprisingly severe," but then concluded it was within the range of the District Attorneys reasonable exercise of discretion.

The Commission is required to independently review the facts and the law and not to afford substantial deference to the District Attorney. (Kolender v. San Diego Civil Service Com., supra, 132 Cal.App.4th at p. 1157.) Bellizzi has not shown the Commission gave improper deference to the District Attorneys decision.

The Commission noted Bellizzi did not dispute that his conduct was improper and subject to disciple, but he disputed the propriety of termination as the selected level of discipline. The Commission stated the District Attorneys testimony "revealed genuine concern with [Bellizzis] breach of integrity and minimization of the gravity of his conduct." It stated the office of the District Attorney had proved by a preponderance of the evidence that the discipline was in the appropriate range for the conduct charged. The hearing officer provided a detained statement explaining his findings as to Bellizzis guilt of each of the charges against him and conclusion that the discipline was within the range of the District Attorneys reasonable exercise of discretion. The Commission adopted and approved the findings, conclusions and proposed decision. Bellizzi has not shown the Commission did not adequately fulfill its role of independent review by deciding the discipline decided upon was within the range of appropriate disciple for the charged conduct.

DISPOSITION

The judgment is affirmed.

We Concur:

BENKE, Acting P. J.

McINTYRE, J.


Summaries of

Bellizzi v. San Diego County Civil Service Commission

Court of Appeal of California
Sep 29, 2008
No. D052021 (Cal. Ct. App. Sep. 29, 2008)
Case details for

Bellizzi v. San Diego County Civil Service Commission

Case Details

Full title:STEVEN BELLIZZI, Plaintiff and Appellant, v. SAN DIEGO COUNTY CIVIL…

Court:Court of Appeal of California

Date published: Sep 29, 2008

Citations

No. D052021 (Cal. Ct. App. Sep. 29, 2008)