Opinion
No. B161049.
10-30-2003
LAURIAN FRANKLIN, Plaintiff and Appellant, v. CALIFORNIA STATE PERSONNEL BOARD, Defendant. STATE OF CALIFORNIA, DEPARTMENT OF THE YOUTH AUTHORITY, Real Party in Interest.
Benton, Orr, Duval & Buckingham and Mark S. Borrell for Plaintiff and Appellant. Bill Lockyer, Attorney General, Jacob A. Appelsmith, Senior Assistant Attorney General, Silvia M. Diaz, Lead Supervising Deputy Attorney General, for California Youth Authority, Real Party in Interest. No appearance by Respondent California State Personnel Board.
The Department of Youth Authority appeals a judgment granting a peremptory writ of mandate that directs the State Personnel Board (Board) to set aside the dismissal of Laurian Franklin from state employment. (Code Civ. Proc., § 1094.5, subd. (c).) We reverse and order the trial court to enter judgment denying the petition for writ of mandate.
FACTS
On July 7, 1995, Franklin commenced employment with the California Youth Authority as a correctional counselor. She was assigned to ward housing at the youth authority facility in Ventura County. Franklins duties concerned the custody, care, and treatment of wards assigned to her care.
In December 1997, the Board upheld disciplinary action against Franklin that involved a reduction in salary for six months. The Board found that Franklin had not documented ward misconduct, left wards unsupervised, retaliated against a ward, improperly confronted a ward using the telephone, and made false statements to an investigating officer. The Board concluded that these acts and omissions constituted inexcusable neglect of duty, willful disobedience, discourteous treatment of the public, and dishonesty, pursuant to Government Code section 19572.
Thereafter, from December 1997 until September 17, 1998, Franklin served as a counselor at the Mira Loma cottage for female wards. During that time, Franklin allegedly brought scissors, a screwdriver, and tin snips to work and lost track of them; moved herself and wards throughout the cottage without informing coworkers; behaved unprofessionally with coworkers and wards; abandoned security oversight to argue with a ward; removed her security belt while on duty; violated employer policy regarding ward movement during medication rounds; and failed to follow the chain of command, among other things.
The Youth Authority dismissed Franklin from employment. She appealed to the Board. In a hearing before an administrative law judge, Franklin, her coworkers, and her supervisors testified. The administrative law judge specifically found that the Youth Authoritys witnesses were "more credible" than Franklin. The judge then determined that the factual allegations were true and that Franklin had committed inexcusable neglect of duty, discourteous treatment of the public and coworkers, willful disobedience, insubordination, and dishonesty. (§ 19572, subds. (d), (e), (f), (m), (o) & (t).) The administrative law judge concluded that dismissal from employment was appropriate given Franklins "interpersonal problems with staff" and her disregard for security procedures. The Board adopted the findings of fact, conclusions of law, and decision of the administrative law judge.
On October 13, 1999, Franklin filed a petition for writ of mandate in the trial court. (Code Civ. Proc., § 1094.5, subd. (c).) After a hearing, argument, and review of the administrative record, the trial court found sufficient evidence of only three allegations: violation of Youth Authority policy regarding ward movement during medication rounds, leaving a security post to argue with a ward, and discourtesy to a coworker. The trial court concluded that the evidence did not support inexcusable neglect of duty concerning two of its three sustained allegations. It relied upon Rapaport v. Civil Service Commission (1933) 134 Cal.App. 319, 323-324 [neglect of duty requires evidence of willfulness, intention, design, or inexcusableness].) The trial court then granted the peremptory writ of mandate. It directed the State Personnel Board to set aside its affirmance of Franklins dismissal and to redetermine punishment.
The Youth Authority appeals and contends that sufficient evidence supports: 1) the factual allegations against Franklin and 2) the legal conclusion of cause for discipline pursuant to section 19572. (I., II., & III., post.)
Franklin responds that: 1) the reviewing court determines witness credibility de novo unless the trier of fact complies with section 11425.50 (I., post); 2) inexcusable neglect of duty requires an intentional act (§ 19572, subd. (d))(III., post); 3) she cannot be dismissed for failing to communicate with coworkers because she already received informal discipline for this (IV., post); and 4) her coworkers and supervisors manufactured grounds for her dismissal in retaliation for her whistleblowing activities (II., sufficiency of evidence, post).
Franklin also cross-appeals and requests that we remand the matter to the State Personnel Board for consideration of the report of the Office of Inspector General.
DISCUSSION
I.
The Board is an adjudicatory agency that derives its powers from the state Constitution. (California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584; Flowers v. State Personnel Bd. (1985) 174 Cal.App.3d 753, 758.) The trial court and the reviewing court review the factual findings of the Board for sufficient evidence. (Newman v. State Personnel Bd. (1992) 10 Cal.App.4th 41, 46.) In this task, the court must consider the entire record to determine if reasonable and credible evidence supports the Boards determinations. (California Youth Authority v. State Personnel Bd., supra, 104 Cal.App.4th 575, 586.) We draw all reasonable inferences in favor of the Boards findings and do not substitute our decision for that of the Board. (Ibid.) The findings and determination of the Board come before the reviewing court " with a strong presumption as to their correctness and regularity." (Ibid.) Neither the trial court nor the reviewing court may reweigh the evidence or redetermine witness credibility. (Flowers v. State Personnel Bd., supra, 174 Cal.App.3d 753, 758-759 ["Credibility, or lack thereof, is for the factfinder, not the reviewing court, to determine. . . ."].)
Section 11425.50 permits the trial court and the reviewing court to accord "great weight" to a credibility determination based upon the witnesss "observed demeanor, manner, or attitude." (California Youth Authority v. State Personnel Bd., supra, 104 Cal.App.4th 575, 595-596 [rule applies to determinations of administrative law judge in Board hearings].) Section 11425.50, subdivision (b), provides: "If the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review, the court shall give great weight to the determination to the extent the determination identifies the observed demeanor, manner, or attitude of the witness that supports it." Here the administrative law judge stated: "Based on the character of [Franklins] testimony, her attitude toward the action, her interest in the outcome, and considering the guidelines in Evidence Code section 780, the testimony of [Youth Authority] witnesses is more credible than that of [Franklin]. . . . [¶] . . . [¶] [Franklin] resents suggestions and lacks good judgment. . . . [Franklin] does not admit any wrongdoing and shows no remorse" This sufficiently indicates an assessment of Franklins "demeanor, manner, or attitude" in the administrative hearing. Elaborate concrete descriptions of the testimony would be cumbersome and of no assistance.
We have reviewed the administrative record, the decision of the administrative law judge, and the trial courts decision granting the peremptory writ of mandate. We conclude that sufficient evidence supports the five most serious allegations, and warrants the punishment of dismissal. (II., & III., post.) For reasons of judicial economy, we do not consider and discuss the important but less serious allegations of misconduct. We note that the administrative law judge focused upon Franklins "interpersonal problems with staff," her disregard for safety procedures, unprofessional behavior toward wards, and the contraband tools incident in determining the appropriate penalty of dismissal.
II.
Misplacement of contraband tools in the cottage
In December 1997, the staff and wards of Mira Loma cottage made holiday decorations from paper and wood. On December 5, 1997, a ward gave a shopping bag containing tissue paper, pointed metal scissors, tin snips, and a screwdriver to counselor Robert Boysen. Boysen secured the bag in a locked closet. Later that day, Franklin asked Boysen if he had seen a shopping bag. Boysen gave her the bag and "requested that she get that bag out of the institution now." Franklin stated that the bag was hers and she was happy that it had been found.
Franklin testified at the personnel hearing that on December 4, 1997, she brought into the cottage a bag containing holiday wrap and tissue paper but not contraband tools. She stated that she used the materials to construct holiday decorations. Coworker Melinda Lyttle testified that on December 5, 1997, she found an open shopping bag containing holiday wrap near the control desk. She moved it to an area not accessible to wards.
Sufficient evidence and reasonable inferences therefrom support the finding that Franklin brought tools into the cottage to create holiday decorations and a nativity scene, but she thereafter failed to secure the tools. The administrative law judge specifically decided that Franklins testimony was not credible. The judge also decided the conflict in the evidence adversely to Franklin.
Failing to communicate with coworkers
Discourtesy to coworkers
On December 14, 1997, without informing her coworkers, Franklin walked down the hallway, opened the door to a wards room, and spoke with the ward. Counselor Sheila Garcia angrily warned Franklin that she was out of sight of the control desk. Franklin later stated to coworkers Garcia and Boysen that she did not have to "tell [them] everything." Franklin was agitated and angry and stated loudly: "Youre not my bosses" and "I dont have to talk to you." Boysen testified that Franklin endangered her safety by "open[ing] up a door like that" because a ward could pull her into the room and assault her.
Approximately five times that day, Franklin unlocked doors and requested that wards accompany her down the hallway. Coworker Felicia Morgan testified that Franklin did not call out the names of the wards prior to walking down the hallway nor did she state her mission to coworkers.
Later that evening, Franklin took several wards into the day room without conferring with Boysen or Garcia. At the time, Boysen and Garcia were permitting wards to shower. A coworker requested that Franklin return her wards to their rooms. She refused. Lieutenant Antonio Walker then entered the cottage and saw Franklin moving wards from the day room to their rooms without informing coworkers. Concerned about security, he ordered all wards returned to their rooms and the cottage temporarily locked down to protect ward and staff safety.
Franklin testified that she followed the common and usual practice of calling out the wards name before she walked down the hallway to the wards room. She stated: "[T]hats the practice of most staff and thats the practice that I personally used."
The testimony of Lieutenant Walker and counselors Morgan, Garcia, and Boysen support the finding that Franklin moved wards without first personally informing coworkers or calling out a wards name. There is also sufficient evidence that she displayed a lack of courtesy to Garcia.
Removal of security belt
Youth Authority policy requires that counselors wear a security belt while on duty. The belt contains a personal alarm, mace, pepper spray, handcuffs, gloves, and a CPR mask. Counselor Garcia described the belt as a "lifeline." ~(p. 81)~ On January 9, 1998, Franklin removed her belt before the end of her work shift and walked down the hallway. Garcia requested that she replace the security belt before she locked a ward in her room. Franklin then replaced the belt.
Franklin testified that she removed the belt to replace the supply of rubber gloves on the belt. She denied that she walked down the hallway without the belt.
Sufficient evidence supports this finding. The administrative law judge resolved the conflicting testimony against Franklin.
Abandoning security duties
Discourtesy to ward
During the evening of April 12, 1998, Franklin and counselor Hector Zamora permitted wards to shower. The wards were given razors for use in the showers. Instead of monitoring the shower activities, Franklin left the control desk and entered the laundry room, where she argued with ward Andrea R. Zamora "waved and yelled" to Franklin to obtain her attention so that she would return to the control desk. Franklin eventually returned. Wards were then waiting in the hallway to return to their rooms. Zamora testified that it was not possible to view the shower area from the laundry room. During the personnel hearing, the administrative law judge, counsel, and the parties toured the Mira Loma cottage, including the control desk, hallways, and laundry room.
A similar incident occurred on July 12, 1998, when Franklin and counselor Rosalee Hernandez were supervising ward showers. Again, Franklin left the control desk to argue with Andrea R. in the laundry room. Hernandez called and motioned for Franklin to return to the desk. By the time Franklin returned, the wards who had showered were awaiting return to their rooms and were "upset and bickering." Andrea R. was upset and protested to Hernandez that Franklin "wont leave [her] alone."
Sufficient evidence supports the finding that Franklin temporarily abandoned her security duties to argue with Andrea R. in the laundry room and that she was discourteous to her.
Directing a ward to end telephone conversation during
medication rounds and discourtesy to ward
In June 1998, supervisor Glenn Fout established a policy concerning ward telephone calls during medication rounds. Specifically, Fout decided that if a ward were using the telephone when the medication nurse arrived, the ward was to remain on the telephone and not move. On July 4, 1998, Franklin sent Fout a memorandum critical of the policy. She stated in part: "I feel that it is a safety and security risk to allow wards on the phone during [medication rounds]."
On July 11, 1998, Franklin ordered ward Debra G. to end a telephone conversation because medication rounds were occurring. Debra G. became angry and upset and went to her room. Franklin and Debra G. later had an angry exchange that was heard by wards and staff.
Sufficient evidence also supports this finding. The administrative law judge received evidence of Franklins July 4, 1998 memorandum critical of the medication rounds policy. The incident with Debra G. occurred one week later.
III.
Section 19572 provides that "[e]ach of the following constitutes cause for discipline of an employee . . . . (d) Inexcusable neglect of duty. (e) Insubordination. . . . (m) Discourteous treatment of the public or other employees. . . . (o) Willful disobedience. . . (t) Other failure of good behavior . . . which is of such a nature that it causes discredit to . . . the persons employment."
"Inexcusable" neglect means neglect that is "without excuse or justification." (Websters 10th New Collegiate Dict. (1998) p. 597 .) "Insubordination" and "willful disobedience" within the meaning of section 19572 require evidence of intentional or knowing conduct. (Coomes v. State Personnel Board (1963) 215 Cal.App.2d 770, 775.) "Discourteous treatment of the public or other employees" may involve the use of vulgar language or shouting in unprovoked anger at another. (§ 19572, subd. (m); Walker v. State Personnel Board (1971) 16 Cal.App.3d 550, 553.) "Other failure of good behavior" that causes discredit to the employment "must bear some rational relationship to the employment and must be of such character that it can easily result in the impairment or disruption of the public service." (§ 19572, subd. (t); Warren v. State Personnel Bd. (1979) 94 Cal.App.3d 95, 104.)
The factual findings discussed in II., ante, constitute neglect of duty without excuse or justification. Bringing contraband tools into Mira Loma cottage and misplacing them, moving wards throughout the cottage without informing coworkers, removing the security belt and walking down the hallway, abandoning a security post to argue with a ward in the laundry room, and disregarding Youth Authority policy concerning telephone use and medication rounds, constitute inexcusable neglect of duty. (People v. McCaughan (1957) 49 Cal.2d 409, 414 superseded by statute on other grounds, as stated in People v. Anderson (2001) 25 Cal.4th 543, 572 ["neglect of duty" means an intentional or grossly negligent failure to exercise due diligence in the performance of a known official duty].) Such neglect compromised the safety of the facility and could have resulted in physical danger to the Mira Loma wards or Franklins coworkers. (Martin v. State Personnel Bd. (1982) 132 Cal.App.3d 460, 465 [safety of inmates and personnel requires adherence to rules and orders; breach of the policies or refusal to carry out an order creates the potential for harm].)
The factual findings of discourtesy also fall within section 19572, subdivision (m). Franklin displayed discourteous behavior to coworker Garcia and to wards Andrea R. and Debra G. The discourteous treatment occurred in an institutional environment that demands professional and calm behavior by correctional employees.
Franklins actions regarding medication rounds and telephone use by wards constitute insubordination and willful disobedience. (§ 19572, subds. (e) & (o).) Franklin knew the official policy and disagreed with it in writing. She thereafter instructed a ward to end a telephone conversation, in violation of the official policy. (Coomes v. State Personnel Board, supra, 215 Cal.App.2d 770, 775 [insubordination and willful disobedience require that the employee "knows what he is doing and intends to do what he is doing"].)
The contraband tools incident also constitutes a failure of good behavior that causes discredit to the employer. (§ 19572, subd. (t).) The incident was of such nature that "it can easily result in the impairment or disruption of the public service." (Warren v. State Personnel Bd., supra, 94 Cal.App.3d 95, 104.)
Given the substantial evidence of Franklins misconduct, we cannot say the Board abused its discretion in dismissing her from employment. (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831-832 [standard of review of penalty imposed].)
IV.
Franklin argues that the informal counseling that she received for failing to communicate with coworkers precludes a later punishment.
Franklins supervisor, Glenn Fout, described the meeting with Franklin, Garcia, and other supervisors as "an instructional meeting." He stated that it "wasnt a counseling session or a discussion." We have reviewed the December 22, 1997 letter to Franklin discussing the meeting and conclude it is not a disciplinary action. (In the Matter of Carla Bazemore (1996) State Personnel Bd. Dec. No. 96-02.) Franklin may be disciplined now for failing to communicate with her coworkers.
Cross-Appeal
By cross-appeal, Franklin requests that we remand the matter to the Board for reconsideration in light of the report of the Inspector General. (Code Civ. Proc., § 1094.5, subd. (e).) That report criticizes the investigation regarding Franklin and states that it did not produce sufficient evidence to establish the allegations. Evidence of the report was not available at the hearing before the administrative law judge.
Sufficient evidence supports the factual findings and legal conclusion of the Board. The administrative law judge received written evidence and the testimony of sworn witnesses, who were subject to cross-examination. Franklin testified and presented evidence in defense. The administrative law judge assessed the credibility of witnesses and resolved conflicts in the evidence. The inadequacies of the Youth Authoritys investigation is not relevant.
Moreover, according to a letter written by the Director of the Youth Authority to the Inspector General, Franklin filed a whistleblower retaliation complaint with the Board. The Board accepted jurisdiction. Franklin received an opportunity to present the report of the Inspector General in the later hearing.
The judgment is reversed. The trial court is directed to enter judgment denying the petition for writ of mandate. Department of Youth Authority to recover costs.
We concur: COFFEE, J. and PERREN, J. --------------- Notes: All further statutory references are to the Government Code unless stated otherwise.