Opinion
D071693
02-27-2018
ERIK FLEET, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent; DEPARTMENT OF FISH AND WILDLIFE, Real Party in Interest.
CASTILLO HARPER and Michael A. Morguess for Plaintiff and Appellant. No appearance for Defendant and Respondent. Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Christine Mersten and Elizabeth Vann, Deputy Attorneys General, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2015-00037608-CU-WM-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Richard E. L. Strauss, Judge. Affirmed. CASTILLO HARPER and Michael A. Morguess for Plaintiff and Appellant. No appearance for Defendant and Respondent. Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Christine Mersten and Elizabeth Vann, Deputy Attorneys General, for Real Party in Interest.
I.
INTRODUCTION
Real Party in Interest Department of Fish and Wildlife (the Department) found that plaintiff Erik Fleet engaged in misconduct while working as a Fish and Game warden during three incidents involving hunters allegedly trespassing on the same landowner's property. The Department also found that Fleet had been dishonest during an administrative investigation into the misconduct. The Department terminated Fleet's employment. After an evidentiary hearing before an administrative law judge, the State Personnel Board (the SPB) sustained the termination. Fleet filed a petition for writ of mandate in the trial court seeking to overturn the termination. The trial court entered a judgment denying the petition.
On appeal, Fleet claims that this court should reverse the judgment denying the writ petition for several reasons. To begin with, Fleet argues that the Department failed to prove what Fleet contends was the "overriding allegation" supporting his termination, namely, that he "conspired" with the landowner "to extort . . . hunters." We reject this argument because the Department did not base its termination of Fleet's employment on this ground. Fleet also contends that there is not substantial evidence in the record that Fleet was present at one of the incidents. We reject this argument because there is ample evidence in the record to support a finding that Fleet was present.
Fleet also contends that there is not substantial evidence in the record that, during another incident, he failed to prevent an unlawful transfer of firearms from two hunters to the landowner or that he "coerced or threatened" the two hunters. This argument fails because the record contains evidence upon which a reasonable fact finder could find both that Fleet failed to prevent the illegal transfer of firearms and that he improperly threatened the hunters. Finally, Fleet contends that the Department's decision to terminate his employment constitutes an abuse of discretion. We conclude that the Department did not abuse its discretion in determining that Fleet's repeated acts of misconduct and his dishonesty during the investigation into such misconduct warranted termination. Accordingly, we affirm the judgment.
Penal Code section 27545 restricts the transfer of firearms and provides in relevant part, "Where neither party to the transaction holds a dealer's license issued pursuant to Sections 26700 to 26915, inclusive, the parties to the transaction shall complete the sale, loan, or transfer of that firearm through a licensed firearms dealer . . . ."
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The incidents upon which the Department terminated Fleet's employment
1. The Avanessian incident
On August 31, 2013, Joseph Avanessian was hunting in the Cleveland National Forest. Avanessian was accompanied by his friend, Andre Zaghean. While walking on a path, Avanessian and Zaghean heard a vehicle approaching. Fearful that they had inadvertently walked onto private property, Avanessian hid his hunting rifle. Zaghean did not have a firearm.
Frank Martinez, the owner of the property on which Avanessian and Zaghean were walking, stopped his vehicle near the pair. Martinez got out of the vehicle holding a firearm. Martinez detained Avanessian and Zaghean and angrily told them that he was calling "Fish and Game."
Approximately 20 to 30 minutes later, Fleet arrived in uniform and in an official vehicle. Fleet asked Avanessian whether he had a gun. Avanessian pointed out the location where he had hidden his rifle. Martinez retrieved the gun.
Fleet told Avanessian that he would have to go to jail because he had trespassed. Fleet also told Avanessian that, because of the Labor Day holiday, the jail stay would be for two days. According to Avanessian, Fleet stated, "You have to go to the jail and after two days you're going to see the judge and most likely they're going to cut your rifle and you're going to pay the fine."
Pursuant to Department policy, wardens are to handle hunter trespass violations by citing and releasing the violator. Fleet acknowledged that he understood that it would be inappropriate to tell a hunter suspected of trespassing that the hunter had the option of being arrested or reaching a civil settlement with the landowner.
Fleet told Avanessian that he could avoid this result by making a deal with Martinez and asked Avanessian whether he was willing to pay a fee to Martinez. Avanessian responded that he would be amenable to such an arrangement. Fleet then spoke with Martinez.
Martinez demanded either $1,000 or Avanessian's rifle. Since Avanessian did not have $1,000, he felt pressured to surrender his rifle. Eventually, after negotiations between Martinez and Avanessian during which Fleet was present, Avanessian agreed to give Martinez his rifle. After Martinez took Avanessian's rifle, Avanessian asked Fleet for his business card. Fleet gave Avanessian a business card with Fleet's name on it.
Avanessian had paid approximately $2,000 for the rifle and scope.
2. The Riches incident
Near the end of October 2013, brothers Ryan Riches (Ryan) and Kamron Riches (Kamron) were hunting when a man, later determined to be Martinez, yelled at them from a distance. The Riches began to hike away from Martinez. Martinez asked a woman who he was with to call the Department because he believed that the Riches were trespassing on Martinez's property. The woman, or someone on her behalf, called the Department.
Fleet received the report of the alleged trespassing, responded to the scene, and found the Riches on a road near Martinez's property. Fleet asked Kamron where he had been hunting and whether he had had any contact with Martinez. Kamron initially lied, but eventually the brothers admitted that they had been on Martinez's property.
Martinez approached Fleet and indicated that he wanted $1,000 from the Riches as a fee for the trespass. The Riches protested to Fleet. According to Kamron, Fleet responded by telling the Riches, "You can handle this civilly or I can take you to jail." Ryan testified that Fleet also stated, " [A]re you going to settle it civilly or am I going to take you in; if I take you in, you're looking at a thousand-dollar fine, up to six months in prison; if I take you in, I'm going to have to take you before the judge and I might not be able to find a judge this weekend."
The Riches continued to negotiate with Martinez for approximately 15 to 20 minutes. Fleet was present the entire time. According to Kamron, when the negotiations would stall, Fleet would interject and say something to the effect of, "Hey, are you guys going to handle this civilly or do I need to take you to jail?" The brothers eventually agreed that they would give Martinez both of their rifles as payment for trespassing. The brothers gave Martinez both of their guns.
3. The Paulson incident
On November 17, 2013, Martinez heard a gunshot and suspected that someone was hunting on his property. He called the Department. Fleet responded to the scene. That same day, Patrick Paulson (Patrick) and his wife, Jennifer Paulson (Jennifer), had been hunting near Martinez's property. Martinez accused Patrick of hunting on his land, which Patrick denied.
According to Patrick, in Fleet's presence, Martinez said, "When I catch people on my property I charge them 1000 bucks. If they don't pay me, I press charges." Jennifer interjected, "[W]e don't have $1,000.00 to give you." Patrick continued to deny having been on Martinez's property.
After Fleet investigated the matter for approximately a half-hour, Patrick asked, "What happens from here?" Fleet responded that if he determined that there was a violation, Patrick would either be cited or he could "take care of it" with Martinez. Patrick stated that he was "appalled" by Fleet's suggestion that he pay Martinez. Patrick asked Fleet whether he could leave. Fleet responded affirmatively. Fleet never issued a citation to Patrick. B. The Department's investigation and its termination of Fleet's employment
After receiving a complaint from Kamron concerning Fleet's actions, the Department initiated an investigation that led it to examine Fleet's conduct during all three incidents. During an interview, Fleet denied having been present during the Avanessian incident. Although Fleet admitted having been present at the incident involving the Riches brothers, he denied having told the Riches that they would be taken to jail if they did not reach an agreement with Martinez. Fleet also denied having been present when Martinez demanded payment from the Paulsons.
The Department ultimately concluded that Fleet had committed misconduct and that he had been dishonest during the investigation. The Department terminated Fleet's employment.
III.
DISCUSSION
A. The Department did not terminate Fleet's employment on the ground that he had engaged in a conspiracy with Martinez to extort hunters
Fleet contends that his termination should be set aside because "the overriding allegation that [he] conspired with Martinez to extort hunters is not supported by substantial evidence."
1. Factual and procedural background
a. The Department's Amended Notice of Adverse Action
The operative Amended Notice of Adverse Action (Amended Notice) states in relevant part in the Statement of Causes section (Statement of Causes):
"This action [Fleet's termination] is being taken against you for causes specified in the following [subdivisions] of Government Code section 19572:[]
"(d) Inexcusable neglect of duty,
"(f) Dishonesty,
"(m) Discourteous treatment of the public or other employees,
"(o) Willful disobedience,
"(t) Other failure of good behavior, either during or outside of duty hours, which is of such a nature that it causes discredit to the appointing authority or the person's employment."
Government Code section 19572 contains a list of causes for which an employee may be disciplined.
The Amended Notice contains a detailed "Statement of Charged Acts or Omissions and Relevant Information" (Statement of Charged Acts), which summarizes the three incidents upon which the Department based Fleet's termination. The Statement of Charged Acts states that Fleet told the Riches brothers that Fleet "could either take them to jail or they could work out a civil solution with [Martinez]." The Statement of Charged Acts also states that Fleet told Avanessian that he "had to take him to jail where he would stay for 2 to 3 days," and that Fleet asked Avanessian whether "he was willing to pay [a] fee," to Martinez. With respect to the third incident, the Statement of Charged Acts states that Fleet was present when Martinez demanded $1,000 as a "trespassing fee" from Patrick.
The Amended Notice also summarizes several interviews that investigators conducted with Fleet and other witnesses, which suggested that Fleet had not been honest about the incidents. For example, the Amended Notice indicates that, while witnesses stated that Fleet was present during the Avanessian incident, Fleet denied having been present. Fleet also denied having been present when Martinez demanded the $1,000 trespassing fee during the incident with the Paulsons.
The Amended Notice also states the following:
"Your actions and poor judgment during the Riches', Avanessian['s]/Zaghean['s], and Paulsons' contact were unacceptable and a nexus to your peace officer status which reflect poorly on the [D]epartment. You conspired with Mr. Martinez to obtain money or guns from three separate hunting parties that were trespassing or suspected of trespassing. Your actions were not only in violation of Government Code [section] 19572, they were illegal and in violation of [the Department's] Law Enforcement Division (LED) Policy Manual Sections 340.3.2, 340.3.5, 410.3.
"Both Riches brothers stated that you were present during 'civil' negotiations between [Martinez] and them and you were actively participating in these negotiations by giving them the option of going to jail in lieu of settling the trespassing issue civilly with Mr. Martinez. By your own admission, you were present when negotiations for a civil solution (payment of guns or money) for hunting on the Martinez Ranch [sic].
"You denied being involved in a civil solution to a hunter trespassing issue with Mr. Martinez on his ranch on August 31, 2013. On three separate occasions . . . you were given an opportunity to tell the truth about the incident and being involved in any additional civil solutions in other cases. You chose not to take responsibility for your actions." (Italics added.)
b. The SPB's findings
The SPB's order upholding Fleet's termination has a section entitled "Statement of the Case" that states in relevant part:
"[The Department] alleged in the [Amended Notice] that on three occasions, [Fleet] conspired with [Martinez] to extort weapons or money from hunters who had allegedly trespassed on [Martinez's] property. [The Department] further alleged that [Fleet] was dishonest during an interview with a San Diego [County] Sheriff's Department (SDSD) Detective, and that [Fleet] was dishonest during the internal investigative interviews regarding the allegations.' " (Italics added.)
The SPB's order contains numerous findings of fact as well as specific findings related to each of the charges listed in the Statement of Causes. For example, the order states in relevant part:
"Principles of Law and Analysis
"Disciplinary Charges [¶] . . . [¶]
"Dishonesty
"[Fleet] made untruthful statements regarding his contacts with Avanessian, the Riches brothers, and the Pauls[o]ns. . . . "
"Discourteous Treatment
". . . [Fleet]'s statements to Avanessian and the Riches brothers that he would take them to jail if they did not resolve their issues with Martinez were demeaning and threatening."
The order also contains specific findings with respect to the charges of inexcusable neglect, willful disobedience, and "other failure of good behavior."
2. Governing law
a. Principles of due process applicable in the discipline of state employees
In Brown v. State Personnel Bd. (1985) 166 Cal.App.3d 1151 (Brown), the Court of Appeal outlined the following principles of due process applicable to the discipline of state employees:
"Due process requires that the respondent be given 'notice . . . of the standards by which his conduct is to be measured' [citation] and 'fair notice as to the reach of the [disciplinary] procedure.' [Citation.] That requires that the respondent be given adequate notice both of the claimed legal standard and the events which are alleged to contravene it and an opportunity to challenge them. Where the cause alleged has potential application to a broad range of conduct . . . the events alleged to contravene the charge do more than allege what must be proved. They also provide criteria by which the charge is narrowed." (Id. at p. 1164, fn. 5.)
Brown is the sole case on which Fleet relies in presenting this argument. We assume, strictly for purposes of this decision, that Brown's summary of the applicable principles of due process applies in this case.
b. Conspiracy
In the criminal context, "[a] conspiracy is an agreement between two or more persons, with specific intent, to achieve an unlawful objective, coupled with an overt act by one of the conspirators to further the conspiracy." (People v. Gann (2011) 193 Cal.App.4th 994, 1005.) "Civil conspiracy is 'a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.' " (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1473.)
c. Extortion
Former Penal Code section 518, subdivision (a) provides:
Penal Code section 518 was recently amended to expand the definition of extortion in a manner not material to this case. (Stats. 2017, ch. 518, § 1.)
"Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right."
In the civil context, extortion is a "cause of action for moneys obtained by duress, a form of fraud," that seeks the "recovery of money obtained by the wrongful threat of criminal or civil prosecution." (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 426.)
3. Application
A fair reading of the entire Amended Notice does not suggest that the Department sought to prove that Fleet engaged in either a criminal or civil conspiracy with Martinez to extort money or weapons. Rather, as described ante, the Amended Notice states that Fleet was terminated for inexcusable neglect of duty, dishonesty, discourteous treatment of the public or other employees, willful disobedience, and the catchall, "[o]ther failure of good behavior, either during or outside of duty hours, which is of such a nature that it causes discredit to the appointing authority or the person's employment." Further, the Amended Notice states the specific facts serving as the basis for Fleet's termination included Fleet's threats to take Avanessian and the Riches brothers to jail unless they settled their disputes with Martinez, and his dishonesty in the ensuing investigation, including his statements that he was not present during the Avanessian incident and that he was not present when Martinez demanded $1,000 from the Paulsons. (See pt. III.A.1.a, ante.) Thus, the Amended Notice provided "adequate notice both of the claimed legal standard and the events which are alleged to contravene it . . . ." (Brown, supra, 166 Cal.App.3d at p. 1164, fn. 5.)
In addition, neither the Amended Notice's Statement of Causes, nor the SPB's findings on the "Disciplinary Charges," contain any reference to either conspiracy or extortion. We acknowledge that there is a single line in the 10-page Amended Notice that does state that Fleet "conspired" with Martinez "to obtain money or guns." However, Fleet does not present any argument with respect to how this single sentence in the Amended Notice prejudiced him in the proceedings related to his termination. For example, Fleet does not argue that he altered his defense in any way in order to defend against a charge of conspiracy. Fleet merely notes that a criminal investigation did not result in a search warrant being issued for Fleet's property and suggests that his termination was related to a former Department employee having an "ax to grind with Fleet." Neither argument demonstrates that Fleet suffered any procedural due process violation from the conspiracy reference in the Amended Notice. In short, far from being the Department's "overriding allegation" of Fleet's misconduct, the Amended Notice's statement that Fleet "conspired" with Martinez "to obtain money or guns" is best characterized as an imprecise shorthand summary of the incidents that did not serve as the basis for Fleet's termination.
There also is a sentence in the Statement of the Case section of the Board's order sustaining the termination that states that the Department alleged that Fleet "conspired" with Martinez to "extort weapons or money" from hunters.
Even assuming that the Amended Notice could be construed as alleging a specific charge that Fleet engaged in a criminal or civil conspiracy with Martinez to commit extortion, and assuming further that this charge was not adequately established, the Amended Notice also clearly alleged that Fleet was being terminated for his threats to take hunters to jail and his dishonesty in the investigation. Aside from the arguments that we reject post (see pts. III.B.-D, post), Fleet fails to present any argument to defeat these independent bases for his termination.
Accordingly, we conclude that Fleet is not entitled to reversal of the judgment on the ground that the Department failed to prove that he engaged in a conspiracy with Martinez to extort hunters. B. There is substantial evidence in the record that Fleet was present at the Avanessian incident
Fleet contends that there is not substantial evidence in the record that he was present at the Avanessian incident.
1. Governing law and standard of review
In Thaxton v. State Personnel Bd. (2016) 5 Cal.App.5th 681, 691-692, this court outlined the relevant law governing review of the factual determinations of the SPB:
"The SPB is a 'statewide administrative agency which is created by, and derives its adjudicatory power from, the state Constitution. [Citation.] Under that constitutional grant, the [SPB] is empowered to "review disciplinary actions." In undertaking that review, the [SPB] acts in an adjudicatory capacity. "The State Personnel Board is an agency with adjudicatory powers created by the California
Constitution." [Citation.] As such the [SPB] acts much as a trial court would in an ordinary judicial proceeding. Thus, the [SPB] makes factual findings and exercises discretion on matters within its jurisdiction. On review the decisions of the [SPB] are entitled to judicial deference. The record must be viewed in a light most favorable to the decision of the [SPB] and its factual findings must be upheld if they are supported by substantial evidence.' "
"In reviewing an SPB decision on a petition for administrative mandamus, we stand in the same shoes as the trial court, applying the substantial evidence rule. [Citations.] We do not reweigh the evidence but instead indulge all presumptions and resolve all conflicts in favor of the decision of SPB . . . ." (Department of Corrections and Rehabilitation v. State Personnel Board (2016) 247 Cal.App.4th 700, 707.)
2. Application
The record clearly contains substantial evidence that Fleet was present at the Avanessian incident. Avanessian testified at the SPB hearing that a Fish and Game warden was present during the incident, and that the warden handed Avanessian his business card. Avanessian authenticated the business card during the hearing, which the Department introduced in evidence. The business card states, "E. Fleet Warden."
Avanessian's testimony on this point was corroborated by eyewitness Dario Crippen's statement to investigators, which was introduced in evidence at the SPB hearing. Crippen stated that he was present during the incident and that he opened Martinez's gate to allow Fleet to come on to Martinez's property. Crippen stated that Fleet was present during the encounter.
Avanessian's testimony was also corroborated by Zaghean's statement to investigators, which was introduced in evidence at the SPB hearing. Zaghean also stated that a warden was present during the incident.
Zaghean was assisted in the interview by an interpreter, who sometimes referred to the warden as a park ranger.
In addition, the Department presented a dispatch log demonstrating that, on the day in question, Fleet ran a check on Avanessian's license plate. The dispatch log also indicated that Fleet's location at the time that he ran the check was at the entrance to Martinez's property, and that Fleet was present at that location for 45 minutes.
The Department also provided evidence that Martinez told two different investigators that Fleet responded to the Avanessian incident.
Fleet's arguments to the contrary are not persuasive. Fleet notes that Avanessian was not able to identify him during a photo lineup or at the hearing, and that Avanessian was mistaken about both the type of truck that Fleet was driving and the type of uniform Fleet was wearing. Fleet also notes that Zaghean was unable to identify Fleet from a photo lineup, and that Zaghean did not testify at the hearing. The fact that Avanessian and Zaghean were not able to positively identify Fleet does not detract from other evidence of Fleet's presence, discussed ante. Nor does the fact that Avanessian was mistaken with respect to minor details demonstrate that his testimony that a warden was present during the encounter was unreliable.
Fleet also contends that Crippen's statement to investigators that Fleet was present during the Avanessian incident was not reliable because it is "clear" from Crippen's interview that he was describing the incident with the Riches rather than the incident involving Avanessian. We have carefully reviewed Crippen's statement and it is far from "clear" that he was describing the incident with the Riches brothers. Crippen stated that the "[guy] did hide the gun at first," and that Fleet's wife was with him. Both statements are consistent with a description of the Avanessian incident, and not with the Riches incident.
Fleet also argues that Martinez's statement to an investigator that Fleet was present at the Avanessian incident, which was inconsistent with Martinez's testimony at the Board's hearing that neither Fleet, nor any other warden, was present at the incident, cannot be the basis for a finding that Fleet was present because "[h]earsay alone cannot support a finding." Even assuming that Fleet were correct that Martinez's statement to an investigator could not provide the sole basis for the Board's finding that Fleet was present at the incident, Martinez's statement was far from the only evidence of Fleet's presence at the Avanessian incident.
In support of this argument, Fleet cites Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1572, which, in turn, relies on Government Code section 11513, subdivision (d) pertaining to the admissibility of hearsay evidence in administrative hearings. That statute provides:
"Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. An objection is timely if made before submission of the case or on reconsideration."
Accordingly, we conclude that there is substantial evidence that Fleet was present at the Avanessian incident. C. There is substantial evidence that Fleet failed to prevent an unlawful transfer of firearms during the incident with the Riches and that he improperly threatened the Riches
Fleet contends that there is not substantial evidence in the record to support the SPB's findings that he failed to prevent an unlawful transfer of firearms during the incident with the Riches and that he threatened the Riches.
1. Governing law and standard of review
We apply the governing law and standard of review outlined in part III.B.1, ante.
2. Relevant findings
The SBP's order states in relevant part:
"[Fleet] had a duty as a law enforcement officer to prevent the transfer of guns without the use of a licensed firearms dealer. [Fleet] allowed the transfer of the guns in the . . . Riches brothers' incident[ ]. Under these circumstances, [Fleet]'s conduct constitutes inexcusable neglect of duty in violation of Government Code section 19572, subdivision (d)."
"[Fleet]'s statements to . . . the Riches brothers that he would take them to jail if they did not resolve their issues with Martinez were demeaning and threatening. Under these circumstances, [Fleet]'s conduct constitutes a violation of Government Code section 19572, subdivision (m) [discourteous treatment of the public]."
3. Application
With respect to the SPB's finding that Fleet failed to prevent an illegal transfer of the Riches' firearms, Fleet notes that the SPB found that Fleet left the scene of the incident involving the Riches brothers before the actual transfer took place. Fleet argues that because, under Penal Code section 27545, parties seeking to transfer firearms must merely " 'complete the . . . transfer' " (italics added in Fleet's brief), of firearms through a licensed dealer, "[n]othing prevents the parties from "reaching [an] agreement regarding the . . . transfer of a firearm outside the presence of a licensed firearms dealer."
Even assuming, strictly for purposes of this opinion, that Fleet is correct with respect to his narrow interpretation of Penal Code section 27545, the SBP found that Fleet neglected his duties by failing to prevent an illegal transfer. The SPB could reasonably find, based on Kamron's testimony, that the transfer of the Riches' firearms to Martinez was going to be completed at the location of the incident, outside the presence of a licensed firearms dealer. Even assuming that the violation of Penal Code section 27545 had not been completed by the time Fleet left the scene, there is substantial evidence to support a finding that Fleet neglected his duties by failing to prevent a violation of the statute.
An alternative interpretation would be that the Legislature intended for the word "complete" in section 27545 to mean that the entire transaction for a transfer of firearms be conducted through a licensed firearms dealer. We need not resolve that issue in this case.
With respect to the SPB's finding that Fleet threatened the Riches brothers with jail unless they settled the matter with Martinez, Kamron and Ryan both testified at the SPB hearing that Fleet made this threat. Kamron's and Ryan's testimony constitutes substantial evidence that Fleet made such a threat, since their statements describe acts that are neither physically impossible nor inherently improbable. (See, e.g., People v. Elliott (2012) 53 Cal.4th 535, 586 ["[Witness's] testimony, which was not physically impossible or inherently improbable, provided substantial evidence of defendant's identity as the perpetrator."].) Further, the fact that the SPB credited the Riches brothers' version of events over that of other witnesses does not demonstrate a lack of substantial evidence to support the SPB's findings. (See, e.g., In re Marriage of Berman (2017) 15 Cal.App.5th 914, 920 ["When reviewing for substantial evidence, 'all conflicts must be resolved in favor of the prevailing party . . . .' "].)
Ryan testified remotely via video conferencing.
Fleet's reliance on the interview statements of his son, James Fleet, who was riding along with him during the encounter with the Riches and those of Ernest and Kelly Marugg, who were present for part of the encounter with the Riches, but whose statements were "not credited [by the SPB hearing officer] due to the Maruggs' close friendship with Martinez," does not demonstrate a lack of substantial evidence to support the SPB's finding that Fleet had improperly threatened the Riches.
Accordingly, we conclude that there is substantial evidence that Fleet failed to prevent an unlawful transfer of firearms during the incident with the Riches and that he improperly threatened the Riches. D. The Department did not abuse its discretion in terminating Fleet's employment
Fleet claims that the Department abused its discretion in selecting termination as the appropriate penalty for his misconduct.
In Cate v. State Personnel Bd. (2012) 204 Cal.App.4th 270 (Cate) the court outlined the law governing review of an administrative agency's selection of the appropriate penalty for an employee's misconduct:
" 'While an administrative agency has broad discretion in the imposition of penalty or discipline, that discretion is not unlimited. In considering whether an abuse of discretion occurred in the
discipline of a public employee, the overriding consideration is the extent to which the employee's conduct resulted in, or if repeated is likely to result in, harm to the public service. Other factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.' [Citation.] In weighing such factors, the court considers the nature of the employee's profession, 'since some occupations such as law enforcement, carry responsibilities and limitations on personal freedom not imposed on those in other fields.' " (Id. at pp. 284-285.)
In reviewing a disciplinary action taken against a peace officer, the Cate court added, "Case law and SPB decisions establish that peace officers may be held to higher standards of conduct than civilian employees. [Citation.] More specifically, dishonesty by law enforcement personnel is treated harshly." (Cate, supra, 204 Cal.App.4th at p. 285.)
Fleet's improper acts in threatening members of the public with incarceration clearly resulted in a " 'harm to the public service.' " (Cate, supra, 204 Cal.App.4th at p. 285.) Moreover, the Department could have reasonably determined that there was a significant " 'likelihood of . . . recurrence' " (ibid.), given that Fleet engaged in this type of misconduct on two occasions and denied ever having issued such threats. The Department could also have reasonably determined that Fleet's dishonesty during the investigation warranted termination, particularly in light of the fact that he was a peace officer. (Ibid.)
As discussed previously (see fn. 2, ante), pursuant to Departmental policy, wardens are to handle hunter trespass violations by citing and releasing the violator.
Fleet acknowledged at the SPB hearing that he was a peace officer. --------
Fleet's arguments to the contrary do not establish an abuse of discretion. Fleet notes that he had an exemplary work history and suggests that it is "difficult to reconcile the charges, let alone the findings," with that history. To the extent that Fleet intends to argue that the Department's discipline was too harsh in light of his work history, we disagree. In light of the seriousness of Fleet's acts of misconduct and his dishonesty, the Department did not abuse its discretion in selecting termination as the appropriate punishment.
Fleet also contends that he "did the best he could under the circumstances," given his lack of training concerning a warden's role in mediating disputes between alleged trespassers and landowners. At the SPB hearing, while Fleet denied having told the Riches and Avanessian that they had the choice of either going to jail or paying Martinez, he acknowledged that he understood that it would be improper for him to have done so. Thus, Fleet's alleged lack of training is not a basis for concluding that the Department abused its discretion in selecting termination as the appropriate penalty for Fleet's misconduct. Further, notwithstanding clear evidence upon which the Department could have found that Fleet was present at the Avanessian incident (see pt. III.B, ante), Fleet denied to investigators that he was present during that incident. Fleet then repeated his denial at the SPB hearing. In light of this evidence of dishonesty, any purported lack of training concerning the mediation of disputes with alleged trespassers does not demonstrate that the Department abused its discretion in terminating Fleet's employment.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.
Fleet fails to establish that the statement would not be admissible as a prior inconsistent statement in a civil action. (Evid. Code, §§ 770, 1235.)