Opinion
A097419.
10-17-2003
HORACIO CANDIA, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.
Horacio Candia (Candia) appeals from the trial courts denial of his petition for a writ of mandamus against the City and County of San Francisco and the San Francisco Fire Department (fire department) to set aside the decision of the San Francisco Fire Commission (fire commission) terminating his employment. Candia contends, among other things, that the evidence did not support a reasonable suspicion that he was under the influence of narcotics and therefore fire department should not have requested that he submit to a urinalysis. We are unpersuaded by Candias arguments and uphold the trial courts ruling.
BACKGROUND
Candia worked for fire department as a chiefs aide. His duties included driving the battalion chief to required destinations, assisting the battalion chief at fire scenes by going into the burning buildings and reporting information, and providing general administrative assistance to the battalion chief.
Candia had suffered a head injury sometime in 1999 when he rescued a woman and child from a van while he was on vacation. He suffered injuries including migraine headaches and was placed on disability for about 14 months; he returned to work in May 2000.
On May 8, 2000, Candia was scheduled to work at Station 38 at 8:00 a.m., and he called to announce that he would be arriving late. Temporary Chief Aide Roger Donald Verant (Verant), who was scheduled to leave work at 8:00 a.m., agreed to wait for him. Candia arrived at about 8:10 a.m. Verant noted an odor of alcohol emanating from Candias body. He also noticed that his eyes were "reddish." Verant told Chief John Harrington (Harrington) that he should be concerned about Candia.
Harrington immediately headed over to the office to observe Candia, since he was concerned about Candias ability to drive him around, as scheduled, that day. Harrington asked Candia about his tardiness, and Harrington noted an odor of alcohol emanating from Candia. He said that Candia was sitting at the desk, and was simply staring at the wall. He would not talk to Harrington directly. In addition, Harrington observed that Candias speech was slurred, but deliberate. Harrington believed that Candia was under the influence and he completed a document to comply with the substance abuse policy. On the document, he indicated that Candias speech was slurred, that his balance and walking were hesitant, that he had the odor of alcohol, and that his eyes were bloodshot. He also pointed out that another person had reported to him that he believed Candia was under the influence of alcohol. In his report, Harrington stated that he had a reasonable suspicion that Candia "had recently consumed and was under the influence of alcohol . . . ."
When asked at the administrative hearing whether Harrington had made any conclusions regarding Candias alcohol or drug use, Harrington stated: "Yeah. Based on what I saw and a combination of the decision-making that [Candia] was making, I strongly felt that we had alcohol for sure. [¶] Because of his body language and demeanor, there was something else going on. I didnt know what. I didnt know if it was part of his migraine problem or something else, but I definitely felt that there was something else going on. And, to me, like I said earlier, 29-and-a-half years in the business——it might not qualify me as an expert, but I truly feel I can tell when someone is under substance abuse and alcohol for sure. And I thought definitely there was some other problem going on."
Harrington notified Division Chief Richard D. Bracco (Bracco) that his battalion was going out of service because of his concerns that Candia was too impaired to drive. Harrington asked Lieutenant James Michael Vannucchi (Vannucchi) to observe Candia independently and report his observations. Vannucchi stated that he "noticed an extraordinary strong odor of an alcoholic beverage. And I noted that Candia was the only individual in the room." Candia was on the telephone; Vannucchi noted that Candias speech "seemed very confused and slurred. He was also attempting to use the computer keyboard and his motor skills were very impaired. Additionally, his eyes seemed to be bloodshot." He told Harrington that he believed Candia was under the influence of an alcoholic beverage; he also believed there were "outward signs of a controlled substance usage . . . ." On cross-examination, he admitted that there really was not any factor that pointed specifically to drugs.
Harrington also asked Battalion Chief Anthony M. Simi (Simi) to observe Candia. As Simi entered the office, he smelled alcohol. Simi attempted to talk to Candia, but he thought that he "seemed to be avoiding me because he kept looking directly ahead." Finally, Candia told Simi that he had a headache. Simi also noticed that Candias eyes were "bloodshot, very red, very glassy. And his speech during the whole time was somewhat slurred." Simi told Harrington that he agreed with his suspicions.
Vannucchi stated that after he conferred with Harrington, Harrington advised Candia that he was being investigated for using alcohol while on duty. Vannucchi then watched Candia go into the restroom and heard him urinating and drinking large amounts of water. He thought that people often are "under the false assumption that the initial voiding of the bladder will alter the tests . . . ." He commented that some individuals also are "under the false assumption, that [consuming water] would dilute the test that is taken in urinalysis when in essence it doesnt."
Harrington requested Bracco to come to the fire station to complete the additional procedural steps required by the substance policy. Harrington went back to speak to Candia of his suspicions "and that he was being evaluated for consumption and being under the influence of alcohol." As he entered, he noted that Candia was on the telephone and he was asking to be placed off duty by the assignment office. Harrington took the phone and told the assignment office not to take any action at this time because he had instituted the process of evaluating Candias fitness for duty. According to Harringtons report, Candia told him that "he had been drinking the night before[;] he had had a rough night[;] that he wished to go off duty[; and] that his head hurt and he believed it was related to his recent disability injury." Harrington reported: "At no time during this whole process did . . . Candia inform me of any prescription drug or medication he may have taken that may be contributing to his current condition." He said that he did not use the "term drugs" in his report.
Simi contacted Bracco and told him that he was needed immediately as Candia was planning to leave the station. Bracco ordered Candia to have a urine test and then he went to meet with Harrington and to observe Candia. Bracco arrived at approximately 8:40 a.m. Harrington told Bracco the factors that lead him to believe that Candia had consumed and was under the influence of alcohol. Bracco observed Candia and he "immediately smelled a very strong odor of alcohol around him and in the room." He also noted that his eyes were glassy and bloodshot; his pupils were dilated. In addition, he observed that his eyes were puffy and that both the pupils and cornea were extremely dark. He said that Candia was holding a telephone receiver in both of his hands and staring at the wall in front of his desk. He also noted that Candias responses to questions were slow, his speech was slurred, and he had difficulty in expressing a complete and coherent thought.
Candia followed Bracco and Harrington out of the room and headed towards the street. Simi stopped him and asked him where he was going. Candia stated that he was leaving; Simi restrained him and told him that he was not leaving the premises. Bracco told him that he was "under the influence" and he was ordering him to have a urine test.
Bracco and Harrington agreed that testing was necessary and Bracco informed Candia that he would be tested "based on our determination of `reasonable suspicion that he had consumed and was under the influence of alcohol." Candia responded that he would not take the test. Candia requested immediate representation, and Bracco told Candia to contact the union. Candia spoke with Firefighter Union Local 798 President John Hanley (Hanley) by telephone.
Bracco contacted Deputy Chief Paul Tabacco (Tabacco), and Tabacco ordered him to bring Candia to him at headquarters. They took Candia to Tabaccos office at headquarters and Union President Hanley, as well as others, joined them there. Tabacco explained to Candia the reasons for suspecting he was "under the influence." Candia asked several questions and Tabacco, Hanley, and another person attempted to explain the departments substance abuse policy. Hanley read a portion of the memorandum of understanding, which explained that a urine specimen may be ordered when "[t]here is reasonable suspicion that a member is under the influence of drugs or alcohol while on duty." Hanley advised Candia to submit to the urine test to save his job, but Candia refused the test. Tabacco read the following statement to Candia: "`Any refusal to be tested will be considered an admission to the use of an illegal/controlled substance and/or being under the influence of consuming alcohol on duty. Upon refusal the member will be immediately suspended and recommended for termination." Tabacco asked Candia if he understood this statement, and Candia responded that he did. Bracco told him that .02 percent was considered to be the minimum level for impairment. Candia wanted to know if he could take a breathalyzer test and was told that the fire department only used urine tests.
Candia again refused to submit to a urine test and requested representation from the Black Firefighters Association and an attorney. Tabacco told him that Hanley was present, which was all that was required. Tabacco again asked Candia if he were going to submit to a urine test; he responded that he wanted to meet with Hanley. Candia was given two minutes to confer with Hanley in a private conference room. As they returned to the office, Bracco told Candia that he should take the urine test because a refusal was an automatic admission of guilt and his employment could be terminated.
Once they returned to the office, Tabacco again asked Candia if he would submit to a urine test. Candia stated that he would. They proceeded to the department physicians office, and Candia stated that he was now refusing to take the test. Tabacco asked him if he were sure, and he responded that he was not going to take the test. Hanley advised him to take the test. They returned to the office and Tabacco read a number of questions to Candia, including the following: Will you provide a urine and/or breath sample? Candia responded "no."
Candia signed form 3912, entitled "San Francisco Fire Department Order for Urine and/or Breath Sample." The signed form with his answers was in pertinent part: "2. If you refuse to comply with this order to provide a urine and/or breath sample, it will be considered an admission to the use of illegal/controlled substances, or having consumed and/or are under the influence of alcohol while on duty. Upon refusal you will be immediately suspended and recommended for termination. [¶] . . . 4. Do you understand this order and instruction that I have explained to you? Answer: Yes[.] [¶] 5. Will you provide a urine and/or breath sample. Answer: No."
Candia then proceeded to leave work and go home. Under fire departments substance abuse policy, it suspended Candia and filed charges against him for violating the departments rules and regulations. The policy specifies that a supervisor must have a reasonable suspicion that the person is under the influence of an illegal/controlled substance or has either consumed or is under the influence of alcohol while on duty prior to requesting the person to submit to substance testing. "This reasonable suspicion must be based on objective facts of observation that would lead a reasonable person to believe a member is under the influence of a controlled substance or alcohol." " `Reasonable suspicion is that degree of perception that would lead a reasonable person to believe, based on observation, that a member has consumed or is under the influence of an illegal/controlled substance or has consumed and/or is under the influence of alcohol while on duty." The policy states that, if the person agrees to testing, "he/she will be tested via urinalysis and/or by breathalyzer." Further, the policy states: "Any refusal to be tested will be considered an admission to the use of an illegal/controlled substance and/or being under the influence of consuming alcohol on duty. Upon refusal the member will be immediately suspended and recommended for termination." As to requesting the test, the "senior supervisor shall request a urine sample, and/or breathalyzer test . . . ." Finally, the policy provides: "In cases of suspected alcohol abuse, a breathalyzer shall be used as the appropriate testing method."
Fire commission held a hearing on the charge that Candia refused a urinalysis and the recommendation to terminate Candias employment. At the hearing, Candia claimed that he had no objection to a breathalyzer test. He asserted that he objected to a urine test because he had a medical condition and was concerned it could cause him to test positive on the urine test. Candia maintained that he later found out what is disclosed in a urine test and had his own urine test taken from a private company at noon that same day. He tested negative for both alcohol and drugs. The fire commission, however, would not admit evidence of his test results.
Fire commission concluded that the facts supported a reasonable suspicion that Candia was under the influence of drugs and/or alcohol; fire department followed its policy regarding testing; fire department was entitled to require a urine test from Candia; and Candia repeatedly refused to take the test. Fire commission sustained the charge and terminated Candias employment.
Candia filed a petition for writ of mandamus with the superior court, and the court denied the writ. Candia filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
In reviewing an administrative decision involving a vested right, such as the termination of employment, the superior court applies the independent judgment rule. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) The trial court in exercising its independent judgment, "must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; see also Code Civ. Proc., § 1094.5, subd. (c).) The trial court may substitute its own findings after first giving due respect to the agencys findings. (Fukuda v. City of Angels, supra, at p. 818).
Our role in reviewing mandamus proceedings is well-settled. Even where the trial court must exercise independent judgment on the evidence, its findings are sustained on appeal if supported by substantial evidence in light of the whole record. (Bixby v. Pierno, supra, 4 Cal.3d at p. 143, fn. 10; Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301, 308; Lacy v. California Unemployment Ins. Appeals Bd. (1971) 17 Cal.App.3d 1128, 1134.) "`The reviewing court must consider the entire record . . . and may not isolate only the evidence which supports the boards findings [citation] and thus disregard relevant evidence in the record. [Citation.]" (Steve P. Rados, Inc. v. California Occupational Saf. & Health Appeals Bd. (1979) 89 Cal.App.3d 590, 595.) On appeal, we normally presume the trial court made all findings necessary to support the judgment. (Milligan v. Hearing Aid Dispensers Examining Com. (1983) 142 Cal.App.3d 1002, 1004-1005, & fn. 3.)
When there are no disputed facts, the question for the reviewing court is one of law. (Lacy v. California Unemployment Ins. Appeals Bd., supra, 17 Cal.App.3d at p. 1134.) However, "when opposing inferences may reasonably be drawn from nonconflicting evidence[,]" the Court of Appeal reviews the lower courts decision under the deferential substantial evidence rule. (Ibid.) Candia argues that there is no dispute over the "material" facts and only one inference may be drawn from the undisputed facts. The record does not support this argument. Not only are "material" facts in dispute, but different inferences can be drawn from the facts.
II. Reasonable Suspicion and the Urine Test
Candia contends that fire department could not order him to take a urine test because it did not have a reasonable suspicion that he was under the influence of drugs when he arrived at work on May 8, 2000. He concedes that there may have been reasonable suspicion to justify the request that he take a breathalyzer, which was to be used when the department had reasonable suspicion of impairment due to alcohol, but there was no justification for the more intrusive urine test.
A urine test is a search under the Fourth Amendment, but the Constitution permits reasonable searches. (Treasury Employees v. Von Raab (1989) 489 U.S. 656, 665.) What is reasonable "depends upon all of the circumstances surrounding the search . . . and the nature of the search." (United States v. Montoya de Hernandez (1985) 473 U.S. 531, 537.) Courts have held that cities have a compelling interest in having firefighters free from drugs and alcohol (e.g., Lovvorn v. City of Chattanooga, Tenn. (6th Cir. 1988) 846 F.2d 1539, 1544; see also Loder v. City of Glendale (1997) 14 Cal.4th 846, 877 (Loder)), and Candia does not challenge fire departments interest in conducting the search. Furthermore, Candia does not challenge the constitutionality of fire departments testing based on "reasonable suspicion" and numerous courts have held that reasonable suspicion is constitutional (e.g., Kraslawsky v. Upper Deck Co. (1997) 56 Cal.App.4th 179, 187 (Kraslawsky)).
Rather, Candia contends that fire department did not have a reasonable suspicion sufficient to justify its asking him to submit to a urinalysis. "[T]he constitutionality of a drug test under the California Constitution is evaluated by balancing the employees reasonable expectation of privacy against the employers legitimate interests in imposing the test. (Loder, supra, 14 Cal.4th at pp. 889-898.) In the absence of reasonable cause for a particular urinalysis request, the outcome of this balancing test may be different. If a drug test is not triggered by a reasonable belief the employee is intoxicated, the employee may have a stronger reason to expect to maintain his or her privacy and the employer may have less need to demand the test." (Kraslawsky, supra, 56 Cal.App.4th at pp. 187-188.)
Candia contends that a urine test is much more invasive than a breath test, and therefore he should have been permitted to take the breath test rather than the urine test. This argument, however, has little merit. The record establishes that Candia did ask about the breath test, but he never expressly stated that he would take it. Further, his later testimony that he would take a breath test was contradicted by his signature on the form that stated that he was refusing to take a urine and/or breath sample. Candia contends that this was a compound question and therefore his answer cannot be properly interpreted. However, there is no evidence in the record that Candia ever unequivocally stated that he would submit to a breath test.
Further, we conclude fire department had reasonable suspicion that Candia was under the influence of narcotics. Candia contends that fire department only had evidence that he was under the influence of alcohol. He dismisses the testimony of Harrington and others that he also appeared to be under the influence of drugs by alleging that the testimony was fabricated in response to learning later that a breathalyzer was appropriate for suspected alcohol use. At the hearing, Harrington testified that he believed Candia was definitely under the influence of alcohol and that his body language and demeanor indicated that "something else [was also] going on." Candia portrays this testimony as false because Harrington did not make a specific reference to drugs in his report.
At oral argument, counsel for Candia asserted that evidence of Harringtons belief that Candia was under the influence of alcohol and not a controlled substance was that Harrington had crossed out drug use in the checklist attached to his report. This depiction of the record, however, is deceptive. In fact, on the checklist attached to Harringtons report and under the heading of observations was the following statement: "Reports from other members of drug/alcohol use." Harrington put an "x" next to this statement and put a line through the word "drug." This statement merely reflects the fact that Harrington had reports, from Candia, himself, that Candia had been drinking and reports from others that Candia smelled of alcohol. Contrary to Candias argument that there is no mention of drug use in the report is the fact that Harrington referred to the incident in the subject heading of his report as an investigation of "substance abuse."
The record, however, contains ample evidence to support Harringtons testimony. Harrington was certain that Candia was under the influence of alcohol, because he could smell the alcohol. He, however, observed other factors that could be related to alcohol or drug impairment. In his report, Harrington noted that Candias speech was slurred, that his balance and walking were hesitant, and that his eyes were bloodshot. Each of these factors related to being under the influence of alcohol, but they also could be related to being under the influence of drugs. Further, in the subject heading of his report, written on the same day of the incident, Harrington wrote the following: "Investigation of Substance Abuse, Re: Chiefs Aide H. Candia."
Similarly, Vannucchi believed that Candia was under the influence of alcohol because of the alcohol stench emanating from him. However, he also noted that Candias speech was slurred; he seemed very confused; his motor skills were impaired; and his eyes were bloodshot. Again, these symptoms could be a result of being under the influence of alcohol, but they could also be symptomatic of drug impairment. Thus, Vannucchi could not state that any one factor pointed specifically to drugs, but he believed there were "outward signs of a controlled substance usage . . . ."
Finally, Bracco also smelled alcohol emanating from Candia. He also noted that Candias eyes were glassy and bloodshot and that his pupils were dilated. In addition, he observed that his eyes were puffy and that both the pupils and cornea were extremely dark. He also noted that Candias responses to questions were slow, his speech was slurred, and he had difficulty in expressing a complete and coherent thought. All of these factors are indicators of being under the influence of drugs. (See, e.g., People v. Dunkel (1977) 71 Cal.App.3d 928, 932 [manifestations of drug use include dilated pupils, slurred speech, and difficulty in balancing].) In addition, Bracco wrote in the subject heading of his report: "Use of Intoxicants/Drugs[.]"
Candia seems to be arguing that simply because the evidence that he was impaired by alcohol was so strong there was no evidence that he was under the influence of drugs. Alternatively, he seems to be suggesting that, if he were under the influence of alcohol, he could not be under the influence of narcotics. Obviously, neither argument has any merit; he displayed symptoms of being under the influence of either or both. Fire department therefore had a reasonable suspicion that he was under the influence of both alcohol and drugs and it properly requested that he submit to a urine test.
III. The Validity of Candias Refusal to Submit to the Urine Test
Candia concedes that he refused to submit to a urine test, but he maintains that his refusal was ineffective because he was not given the choice of a breathalyzer test; he had been read the policy, which did not state that his employment would be automatically suspended; and he lacked the capacity to refuse. In addition, he claims that he did not actually refuse to take the test until he finally signed the form. He argues that his prior "refusals" could not have been refusals because he was not immediately suspended after these "refusals," which was required under the policy. We need not reach this latter argument, because it is undisputed that he refused to take the urine test when he signed the form and we need not be concerned about his earlier "refusals."
The policy specifies: "Any refusal to be tested will be considered an admission to the use of an illegal/controlled substance and/or being under the influence or consuming alcohol on duty. Upon refusal the member will be immediately suspended and recommended for termination."
In addition, we have already addressed Candias argument that he should have been asked to take the breathalyzer test. As discussed ante, fire department had reasonable suspicion that Candia was under the influence of both alcohol and drugs. The breathalyzer test, which is administered when the suspicion relates solely to alcohol, was not appropriate and therefore fire department properly requested that Candia submit to a urine test.
Candia also argues that he was misled. He analogizes this situation to the one involving a driver of a motor vehicle who refuses to submit to an alcohol test. Courts have held the refusal to be ineffective if the arresting officer provides misleading or confusing statements about the result of the drivers license being suspended. (Joyce v. Department of Motor Vehicles (1979) 90 Cal.App.3d 539, 543; Decker v. Department of Motor Vehicles (1972) 6 Cal.3d 903, 905-907.) Similarly, here, Candia argues he was simply advised that his refusal would result in his immediate suspension and the "recommendation" that his employment would be terminated. He maintains that he was never advised that his employment would automatically be terminated. He asserts that he "may well have submitted" to the test had he been told that his employment would be automatically terminated.
The employment situation differs significantly from the one involving a driver of a motor vehicle. In the latter situation, Vehicle Code section 13353 requires the police officer to tell a driver that his or her license "would be" rather than "could be" revoked for failure to take a drug test. In contrast, fire department could not tell Candia that his employment "would be" terminated, because it did not have the authority to end his employment. Under the San Francisco Charter, only fire commission can terminate the employment of fire department personnel. (S.F. Charter, § 8.343.) Candias employment was terminated only after fire commission held an administrative hearing on departments recommendation. Candia may disagree with the results of the hearing or the weight given to the evidence, but the termination of his employment was not automatic.
Candia maintains that because the argument presented by fire department was that his employment should be terminated simply because he refused the urine test, his refusal resulted in the automatic termination of his employment. However, this does not accurately depict the entire hearing. At the hearing, fire department "recommended" that Candias employment be terminated because he did not submit to the urine test and because there was evidence that he came to work under the influence of alcohol and/or drugs. Candia had the opportunity to explain the reasons for his refusal, which fire commission evidently did not find compelling. Only after fire commission heard all of the evidence did it rule that the request for Candia to submit to a urinalysis was warranted and his refusal, in violation of the policy, should result in the termination of his employment.
Candia also argues his situation resembles that of a motor vehicle driver who cannot give an effective refusal because the persons condition—not caused by the consumption of alcohol—prevented the person from having the capacity to refuse a test. (See Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 754-755, 759 [drivers license may not be suspended if refuses to take test when suffered serious head injury rendering driver incapable of refusing but refusal not excused if incapacity caused by alcohol consumption].) Here, Candia contends that the evidence established that he was suffering from severe headaches, was physically restrained from leaving, was driven to various places, and was denied the opportunity to speak to a member of the Black Firefighters Union or an attorney, rendering his refusal ineffective. The record, however, establishes that Candia discussed his situation and the tests with various people. Further, he discussed the matter with his union representative and his union representative did not indicate that he believed Candia lacked the capacity to make a decision. In Hughey, a neurologist testified that the injury the defendant had suffered to his head—a fractured skull—"would also have made it difficult, if not impossible," for him to have understood the police officers admonition or the significance of his refusal. (Id. at p. 756.) No comparable evidence was introduced by Candia. There is absolutely no evidence in the record that Candias headaches were so severe as to render him mentally incapable of refusing a test.
IV. Terminating Candias Employment
Candia complains that fire commission abused its discretion in imposing the sanction of terminating his employment. "Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record." (Code Civ. Proc., § 1094.5, subd.(c).)
Candias argument is that fire commission essentially refused to exercise its discretion when it terminated his employment, and the trial court upheld this failure to exercise its discretion. When the record establishes that the administrative agency is under an erroneous belief that it cannot exercise discretion, "the exercise of judicial discretion to which appellant is entitled has not yet been exercised." (E.g., In re Michael G. (1977) 76 Cal.App.3d 872, 875.) Candia fails to cite to any place in the record where fire commission indicates that it did not believe it had the discretion to determine the appropriate penalty for refusing to submit to a urinalysis. Rather, Candia simply attacks the commissions factual findings and labels them as "demonstrably false." Specifically, he claims commission erred when it concluded that he had been told that he would lose his job if he refused testing, since he had only been told that termination of his employment would be recommended if he refused testing. Further, he objects to commissions failure to explain its decision not to impose a lesser sanction, especially in light of his record that contains a commendation for heroism for saving two accident victims and the absence of any prior disciplinary problem.
In addition, Candia argues that fire commission incorrectly concluded that he refused a test on more than one occasion, but he only refused testing on one occasion. As discussed ante, this issue is immaterial because it is undisputed that Candia rejected testing when he signed the form stating that he was refusing a urinalysis.
Candia did not argue in the trial court that fire commission refused to exercise its discretion but he maintains that this is an issue of law and therefore can be raised for the first time on appeal. However, the record does not support Candias contention. Candia may believe substantial evidence did not support fire commissions findings or that the findings were not sufficiently explained, but it is clear that fire commission understood that it was to make the final determination regarding the termination of Candias employment. Indeed, commission set forth Candias affirmative defenses and the reasons it was rejecting them, including its conclusion that Candias testimony lacked credibility. Thus, after assessing Candias defenses, it was entirely within commissions discretion to accept the recommendation of fire department that Candias employment should be terminated.
We do not agree with Candia that fire commissions findings were false. His argument that fire commission found that Candia was told that his employment would be terminated when Candia was really told that there would be a recommendation that his employment would be terminated is inconsequential. Fire department, in accordance with the policy, recommended that Candias employment be terminated after he refused to be tested. Fire commission agreed with this recommendation after hearing Candias affirmative defenses and all the evidence. Fire commission, by explaining that it found Candias testimony was not credible and by explaining the reasons for its rejection of Candias affirmative defenses, essentially explained the reasons for imposing the penalty of terminating his employment rather than inflicting a lesser sanction.
V. Refusing to Admit Candias Self-Administered Urine Test
About two hours after leaving the fire station, Candia asserts that he obtained a urinalysis from a private testing facility that established that his urine tested negative for the presence of any alcohol or drugs. Fire commission ruled this evidence inadmissible. It is elementary that we review evidentiary decisions under the abuse of discretion standard. (E.g., Schomaker v. Provoo (1950) 96 Cal.App.2d 738, 740.)
Candia contends that his urine test was relevant to the question of whether he was actually under the influence of alcohol or whether his behavior was due to his medical condition of suffering from migraine headaches. He claims that the erroneous exclusion of an entire category of important evidence resulted in his denial of a fair hearing and supports reversal. (See Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 677; Edgerton v. State Personnel Bd. (2000) 83 Cal.App.4th 1350, 1359.) He claims, without any citation to the record, that this was a close case and therefore the exclusion of this evidence was prejudicial.
It was not improper for fire commission to determine that the urine test that Candia obtained was inadmissible under Evidence Code section 352. Prior to admitting such evidence, it would have been necessary to hold a mini-hearing on the tests reliability and accuracy, as well as the timing of the test. Further, this evidence had little relevance to the question of whether reasonable suspicion justified the request that Candia submit to urinalysis. "The determination of reasonable suspicion, like that of probable cause, necessarily turns upon the information the person making the determination had when that person acted. The facts then before that person either were or were not sufficient to create a reasonable suspicion that a particular individual used drugs. If that information was sufficient, it is immaterial that other information that weakened or undercut that conclusion subsequently was disclosed or could have been discovered by further inquiry." (Garrison v. Department of Justice (Fed. Cir. 1995) 72 F.3d 1566, 1569.) The evidence also had minimal relevance to the question of punishment since it did not vitiate the fact that Candia violated the drug testing policy by refusing to submit to a urinalysis implemented by fire department.
We note that Candia also has completely failed to establish prejudice. Not only does this evidence have little relevance to the issues of reasonable suspicion and his refusal to submit to drug testing, Candia does not cite to any place in the record that explains what test he took, who administered the test, and the results of the test. Our independent review of the record establishes that his test was conducted by Health Care Partners on May 8, 2000, at noon.
VI. Refusing to Permit Candia to Consult with Representative of Black Firefighters Association or Attorney
Candia challenges fire departments refusal to permit him to consult with a representative of the Black Firefighters Association or an attorney prior to making a final decision regarding whether he would submit to a urinalysis. He acknowledges that it did permit him to consult with Hanley, the union representative, but Candia complains he did not trust Hanley. Candia asserts that Vannucchi physically restrained him. Since Vannucchi was shop steward for the union, Candia, presumably, was mistrustful of all union people.
Nothing in the employee agreement, the drug testing policy, or the law required fire department to wait for an additional person to consult with Candia. In fact, the policy permits drug testing without the presence of any representative. The policy provides: "Any bargaining unit member ordered to undergo a mandatory physical examination for reasonable suspicion may request the presence of a Union representative at all times while being examined. However, the inability to secure the presence of a union representative shall not be cause to delay the administration of the mandatory physical examination."
Candia cites NLRB v. Weingarten, Inc. (1975) 420 U.S. 251 (Weingarten). However, Weingarten does not support his position. The Supreme Court in Weingarten held that a union employee has a right to the presence of a union representative at an investigatory interview that may reasonably lead to disciplinary action. (Id. at p. 262.) Here, the union representative was present when Candia was confronted with the request that he submit to a urinalysis. He asserts that, since he belongs to unions, following the "spirit of Weingarten" he should be able to choose the union representative with whom he would like to consult. Candia has not established that the union representative had interests that conflicted with him or undermined him in any fashion. Rather, Candia only objected to Hanley after he advised him to submit to the urinalysis.
We need not address whether a union representative was necessary here since one was present. However, we certainly will not create a rule that would mandate employers to proceed through a list of representatives until the employee consults with someone who provides him or her with information that he or she likes. The possible outcome would be to delay the administration of the test without any concomitant benefit. The presence of a union representative is sufficient to prevent any "`perceived imbalance of economic power between labor and management." (Weingarten, supra, 420 U.S. at p. 262.)
DISPOSITION
The judgment is affirmed. Candia is to pay costs.
We concur: Haerle, Acting P. J. and Ruvolo, J.