Opinion
C098936
10-30-2024
TAREK GRAVES, Plaintiff and Respondent, v. STATE PERSONNEL BOARD, Defendant and Respondent; DEPARTMENT OF THE CALIFORNIA HIGHWAY PATROL, Real Party in Interest and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 34-2022-80003818-CU-WM-GDS)
BOULWARE EURIE, J.
In roughly one year as an officer of the Department of the California Highway Patrol (CHP) working out of the East Los Angeles office, Tarek Graves claimed and received more than $6,000 in overtime compensation for time he knew he did not work. When CHP dismissed him for that misconduct, he appealed to the State Personnel Board (the Board), arguing he acted in accordance with local overtime procedures and training. The Board sustained the dismissal, reasoning in part that Graves's conduct was so clearly wrong it was unnecessary to establish he knew he was violating policy. The trial court granted Graves's petition for writ of administrative mandate and ordered his reinstatement. We find the Board did not abuse its discretion and reverse.
BACKGROUND
I Factual Background
A. Unearned Overtime Compensation
Graves started working as a CHP officer in 2002, transferred to the East Los Angeles office in 2015, and left that office in 2017. While at the East Los Angeles office, Graves submitted official forms indicating he worked about 85 hours of overtime that he did not work, resulting in over $6,000 of unearned compensation.
This conduct arose out of overtime shifts that Graves volunteered for in the context of an interagency agreement between CHP and the Department of Transportation (Caltrans) for the provision of traffic safety services during highway maintenance activities. Relevant here, that agreement provided that each CHP officer working an overtime shift at a particular site had to check in with the Caltrans site supervisor upon arrival, check out with them upon departure, and have them approve and sign a paper form indicating the start and end times of the officer's overtime shift. Opportunities for these Caltrans overtime shifts appeared on a bulletin board in the East Los Angeles office.
Though these overtime shifts typically were scheduled to last six to eight hours, Caltrans site supervisors sometimes dismissed CHP officers early due to bad weather, equipment failure, or other unforeseen reasons. Caltrans site supervisors were the only people authorized to end these shifts early and dismiss officers, and when they did so, they customarily advised East Los Angeles CHP officers to claim the full scheduled shift.
Between January 2016 and March 2017, Graves recorded a full overtime shift despite an early dismissal on 31 occasions. He did so on both the paper form signed by Caltrans site supervisors and on a CHP digital timesheet he was required to complete, certify, digitally sign, and submit for supervisory approval within 24 hours of the end of each work shift. Graves returned to the East Los Angeles office on 22 of those 31 occasions but not on 9 of them.
This digital timesheet is called a "Daily Field Record" or a CHP "Form 415." Officers are trained on how to complete that form at the CHP academy.
B. CHP Values, Policies, and East Los Angeles Office Procedures
Graves knew he was expected to act in accordance with the "CHP Professional Values," commonly referred to by the acronym "CHP PRIDE," which are taught at the CHP academy. These values include courage, honesty, professionalism, principles, respect, integrity, dedication, and esprit de corps. He also knew he was expected to follow a code of honor that demands officers be above reproach and never knowingly do anything to discredit CHP. Finally, he knew he was expected to follow a code of ethics that requires honesty in thought and deed.
Officers are expected to be familiar with the CHP manual (the manual), and at all relevant times, the applicable CHP overtime policy was articulated in section 40.71 of the manual, which required recording only actual overtime hours worked in digital timesheets.
A memorandum of understanding between the State of California and the collective bargaining unit that includes CHP officers provided that officers were entitled to a minimum of four hours of overtime compensation if a voluntary overtime shift was canceled after they reported for duty.
Each CHP area office develops its own standard operating procedure to govern daily operations, which must remain consistent with the manual, and requires clearance from CHP headquarters for any changes. Years before Graves arrived at the East Los Angeles office, a lieutenant there approved a local overtime procedure that was displayed on a bulletin board near the Caltrans overtime postings, which stated in relevant part that officers who volunteered for Caltrans overtime shifts that ended early due to unforeseen circumstances had to "remain available during the duration" of their shift "by standing by at the office" if Caltrans still paid the officer for the entire shift. This local overtime procedure violated section 40.71 of the manual by permitting officers to record more than actual overtime hours worked and it was not properly vetted through CHP headquarters. But no officers were disciplined for following it until after Graves left the East Los Angeles office. Furthermore, Graves testified he was not aware of the posted local procedure, but was trained and observed that East Los Angeles CHP officers who worked Caltrans overtime shifts that ended early were allowed to claim a full shift even if they did not return to the office.
II
Procedural Background
CHP dismissed Graves and 41 other officers and sergeants for violating overtime protocols related to the Caltrans shifts. Graves's misconduct implicated five distinct statutory causes for discipline, CHP determined: inexcusable neglect of duty, dishonesty, misuse of state property, engaging in activity clearly inconsistent with his duties as a state employee, and other failure of good behavior. (See Gov. Code, § 19572, subds. (d), (f), (p), (r), (t).)
Undesignated statutory references are to the Government Code.
In an April 2021 proposed decision, the Board's administrative law judge (ALJ) who heard Graves's appeal concluded his dismissal was unjust and ordered Graves be reinstated because CHP had "endorsed and ratified a long-standing past practice" in the East Los Angeles office that openly permitted officers to claim and accept overtime payment for a full Caltrans shift even when they did not return to the office after being dismissed early. The ALJ based that determination in part on findings that Graves and two CHP sergeants testified credibly that officers were allowed to claim a full shift if dismissed when training classes ended early.
The ALJ explained that Graves "was at all times forthcoming and frank." She credited his testimony and that of the two sergeants over the testimony of a witness who served as an assistant chief, overseeing multiple commands, including the East Los Angeles office when Graves was there, and who testified that the historic practice of permitting officers to leave and claim a full shift when mandatory training classes ended early had not been employed in the last 10 years. The ALJ explained that it was "reasonable to assume" that the former assistant chief was not involved in daily field operations and therefore "would not be apprised if Officers were dismissed to go home after routine training classes ended early."
The Board rejected the ALJ's proposed decision, reasoning that CHP's failure to discover and discipline employees for past inaccurate reporting of overtime hours worked did not foreclose Graves's dismissal. Peace officers are held to high standards of behavior, the Board observed. Therefore, Graves knew or should have known it was wrong to submit inaccurate digital timesheets for overtime he did not work. Furthermore, the Board continued, his decision to claim pay for Caltrans overtime work he ostensibly performed when he was not even at the East Los Angeles office was "so clearly wrong that proof [he] knew that he was violating policy" was not required to dismiss him. The Board sustained CHP's charges of misconduct and found dismissal of Graves was an appropriate penalty.
In February 2022, Graves filed a petition for writ of administrative mandate in the trial court, seeking to overturn the Board's decision. CHP opposed the petition, but the trial court granted it in May 2023, and directed the Board to reinstate Graves to his former position. CHP timely appealed in June 2023, and this case became fully briefed on August 1, 2024.
DISCUSSION
I
Standard of Review
Under Code of Civil Procedure section 1094.5 judicial review of a final administrative decision "shall extend to the questions whether the respondent [agency] has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent [agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b).)
The Board is a creature of the California Constitution, empowered to enforce the civil service statutes and review disciplinary actions against state employees as an adjudicatory body. The Board acts much as a trial court would in an ordinary judicial proceeding, making factual findings and exercising discretion on matters within its jurisdiction. Accordingly, we view the record in the light most favorable to the Board's decision and uphold its factual findings if supported by substantial evidence. (Fisher v. State Personnel Bd. (2018) 25 Cal.App.5th 1, 13-14 (Fisher).)
In this case, where the material facts are undisputed, our focus is on the Board's reasoning, not the ALJ's proposed decision that the Board disagreed with. (See California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 593 [the Board's decision is not an administrative review of an ALJ's decision; it is "the only decision"].) We stand in the same shoes as the trial court that granted Graves's petition, applying the substantial evidence test to the administrative record and considering legal questions de novo. We respect but do not necessarily defer to the Board's interpretations of the governing statutes. (California Dept. of Corrections v. State Personnel Bd. (2004) 121 Cal.App.4th 1601, 1611.)
But when, as here, the Board elects to decide the case strictly upon the record developed before the ALJ, the ALJ's credibility findings-to the extent they identify the "observed demeanor, manner, or attitude of the witness" in support of those findings (§ 11425.50, subd. (b))-are entitled to great weight on judicial review, even if the Board disagrees. (California Youth Authority v. State Personnel Bd., supra, 104 Cal.App.4th at pp. 592-595.)
The parties agree that the trial court applied the wrong standard of review below and thereby gave less deference to the Board's determinations than it should have. CHP argues the trial court's judgment should be reversed for this reason alone. We disagree. As explained above, our task here is to review the Board's decision, not the trial court's or the ALJ's. But if we were to conclude under the proper standard of review that the Board's decision was an abuse of discretion, our ruling technically would be to affirm the trial court's judgment.
II
Board's Decision Was Not an Abuse of Discretion
Graves contends the Board abused its discretion. We disagree. For our purposes, the material facts of Graves's conduct are not contested. The overarching question is whether his conduct was clearly wrong. The Board did not abuse its discretion in ruling that it was.
A. Inexcusable Neglect of Duty
As the Board stated in its decision, inexcusable neglect of duty under section 19572, subdivision (d), means an intentional or grossly negligent failure to exercise due diligence in the performance of a known official duty (see Gubser v. Department of Employment (1969) 271 Cal.App.2d 240, 242). To be subject to discipline for inexcusable neglect of duty, an employee must have actual or constructive notice of expected standards of conduct, unless the conduct is so clearly wrong that notice is not necessary. (See K.S. (2017) SPB Dec. No. 17-02, p. 17.)
In framing its findings on this topic, the Board cited Ackerman v. State Personnel Board (1983) 145 Cal.App.3d 395, 399, in asserting that "[p]eace officers are held to high standards of behavior." The Board determined that CHP's policy related to certified digital timesheets was clear and that Graves had notice of this conspicuous policy to "[r]ecord the start and finish time of actual overtime worked." Despite this actual notice, the undisputed evidence demonstrates that Graves submitted timesheets certifying that he "worked overtime despite the fact that he was out of uniform and not at the [East Los Angeles office]." He knew of CHP's policy related to the submission of his Form 415s, including that on each form he was certifying the start and finish time of the actual overtime he was claiming he worked. There is substantial evidence supporting the Board's finding that Graves's submissions were so clearly wrong that he thereby inexcusably neglected his duties.
The trial court rejected the Board's "so clearly wrong" principle as "not persua[sive]." We agree here with the Board's commonsense interpretation of section 19572, subdivision (d): an inexcusable neglect of duty occurs when a state employee engages in conduct "so clearly wrong" that official notice the conduct falls short of expected standards is not necessary. (Cf. Walker v. New York (2nd Cir. 1992) 974 F.2d 293, 299300 [where a law enforcement officer's duty is clear, the need for training or supervision regarding that duty is not obvious].) We also note the parties did not discuss in their briefing the issue whether this determination, or any other determination by the Board, presents a mixed question of law and fact. (See Thaxton v. State Personnel Bd. (2016) 5 Cal.App.5th 681, 691-692 [because mixed questions of law and fact concern the application of a rule to the facts and the determination whether the rule is satisfied, if the inquiry requires"' "application of experience with human affairs, the question is predominantly factual and its determination is reviewed under the substantial-evidence test," '" but if the inquiry requires"' "consideration, in a factual context, of legal principles and their underlying values, the question is predominantly legal and its determination is reviewed independently"' "].) To the extent there are mixed questions of law and fact in this case, we think answers to those questions require application of experience with human affairs, and therefore should be reviewed under the substantial evidence test. (Cf. California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 343-344 [a civil service administrative tribunal considering employee misconduct has broad discretion in making its decisions that often involve" 'complex facts'" and a" 'sensitive evaluation of the nature and seriousness of the misconduct,'" in part because" '[e]ven where the facts are clear, the appropriate[ ]'" discipline, if any, may not be].)
Graves devotes only two sentences of his briefing to the issue of behavior being "so clearly wrong," arguing that the Board "ignore[d] its own precedent" in invoking this principle that can be found in two precedential decisions predating his conduct. Graves's argument is unpersuasive, and there is substantial evidence supporting the Board's reasoning. Accordingly, the Board did not abuse its discretion.
B. Dishonesty
Dishonesty under section 19572, subdivision (f), requires a showing that the employee intentionally misrepresented known facts. (Catricala v. State Personnel Bd. (1974) 43 Cal.App.3d 642, 648; M.S. (1994) SPB Dec. No. 94-19, p. 20.) The Board determined Graves's submission of overtime claims for time he did not actually work and was not even at the East Los Angeles office constituted dishonesty. More specifically, the Board found that Graves (1) deliberately falsified his digital timesheets (Form 415), (2) deliberately falsified his paper forms regarding overtime duty (forms signed off by Caltrans supervisors), and (3) even when he knew his overtime detail ended early, Graves "submitted overtime claims for time he had not actually worked." We find there is substantial evidence supportive of the Board's determination that Graves was dishonest.
To the contrary, Graves contends there is not substantial evidence he was dishonest. Disagreeing with the Board's determination that he knew or should have known that his conduct was improper, he poses the following questions: "How can one 'know' anything unless he is taught, admonished, or corrected? By what process 'should' [he] have known that his conduct was improper . . . ?"
One should know that which is obvious. It is obviously dishonest and improper to knowingly certify that one has worked overtime hours not worked, and to assert that doing so was permissible because everyone else was doing it or no one told him not to falsely claim hours not worked falls short. The Board did not abuse its discretion.
CHP contends without citation to the record that Graves fraudulently certified under penalty of perjury that he worked overtime.
C. Misuse of State Property
The misuse of state property under section 19572, subdivision (p), generally implies either the theft of state property or the intentional use of state property or state time for an improper or non-state purpose often, but not always, involving personal gain. (R.B. (1993) SPB Dec. No. 93-21, p. 11.) The Board determined that Graves's timekeeping submissions, intended to receive compensation from the state for hours not worked or for leaving the East Los Angeles office early after overtime shifts, constituted a misuse of state property.
Graves contends the Board abused its discretion in finding he misused state property because there is no evidence he ever tried to hide what he was doing. This argument is unpersuasive not only because deception is not a necessary element of misuse of state property but also because there is substantial evidence in the record supporting the Board's decision. The Board found that Graves's filing of false timesheets was done "in order to receive compensation from the state for time he did not work or remain at the [East Los Angeles office] following overtime shifts that ended early" thereby acquiring "state property (state funds) for personal gain." The fact that Graves openly falsified his timesheets does not equate to a lack of sufficient evidence that he was misusing state property. One who improperly uses state time for personal gain, and is candid about it, is still improperly using state time. Accordingly, the Board did not abuse it discretion in sustaining this charge of misconduct.
We recognize the Board described Graves's conduct as "deceptive" when analyzing this misconduct, citing an SPB precedential decision (Nhut Minh Nguyen (1991) SPB Dec. No. 99-01, p. 9) in support.
D. Activity Clearly Inconsistent with His Duties as a State Employee
Section 19572, subdivision (r) prohibits state civil service employees from committing a violation of the prohibitions set forth in accordance with section 19990. Section 19990 provides in relevant part: "A state officer or employee shall not engage in any employment, activity, or enterprise which is clearly inconsistent, incompatible, in conflict with, or inimical to his or her duties as a state officer or employee. [¶] Each appointing power shall determine, subject to approval of the department, those activities which, for employees under its jurisdiction, are inconsistent, incompatible or in conflict with their duties as state officers or employees. Activities and enterprises deemed to fall in these categories shall include, but not be limited to, all of the following: [¶] . . . [¶] (b) Using state time . . . for private gain or advantage." The Board determined Graves's conduct of claiming time for hours he had not actually worked or remained at the East Los Angeles office was inimical to his duties as a peace officer.
Graves argues the Board erred in sustaining this charge of misconduct because in doing so it invoked a section of the manual that prohibits officers from using or attempting to use the badge, uniform, prestige, or influence of a state position for private gain and the undisputed facts do not indicate he ever did anything implicating that provision. This argument is unpersuasive because section 19990 both sets a floor of prohibited conduct that all state employees must avoid and allows an individual agency to determine additional "activities which, for employees under its jurisdiction, are inconsistent, incompatible or in conflict with their duties as state officers or employees." (§ 19990; see Fisher, supra, 25 Cal.App.5th at p. 15 ["subdivisions (a) through (g) of section 19990 specifically articulate activities that are deemed incompatible as a matter of law"].) Thus, regardless of whether Graves violated CHP-specific prohibitions, he violated section 19990, subdivision (b) (and therefore also violated section 19572, subdivision (r)) by using state time for private gain, as recounted above. The Board did not abuse its discretion.
E. Other Failure of Good Behavior
"Other failure of good behavior" is conduct that "is of such a nature that it causes discredit to the appointing authority or the person's employment." (§ 19572, subd. (t).) The misconduct must bear some rational relationship to the employee's employment and must be of such character that it can easily result in the impairment or disruption of the public service. (Stanton v. State Personnel Bd. (1980) 105 Cal.App.3d 729, 739-740.)
Here, the Board reasoned that by "requesting and receiving taxpayer money without providing services," Graves (1) "wasted state resources"; (2) engaged in conduct that "had the potential to jeopardize civil or criminal cases in which his falsified records or credibility might be at issue"; and (3) engaged in actions that "could easily cause members of the public to question whether their taxpayer dollars are being spent wisely, and to question the integrity of" Graves, the East Los Angeles office, and CHP as a whole.
The Board did not abuse its discretion in ruling that Graves engaged in conduct that was not only directly related to his job but also reflected discredit on his employment and CHP as a whole. We agree that taxpayers easily could question Graves's integrity after learning that he claimed over $6,000 in unearned compensation for time he did not work. And by association, taxpayers easily could question the integrity of the East Los Angeles office and CHP as a whole. (See Orlandi v. State Personnel Bd. (1968) 263 Cal.App.2d 32, 37 [" 'fixing' a ticket" "clearly is the sort of behavior which would cause discredit to" CHP, constituting other failure of good behavior under § 19572, subd. (t)].)
Graves challenges the Board's reasoning as to this charge of misconduct, contending it is based largely on speculation about how taxpayers might view his Caltrans overtime compensation. This argument is not persuasive because determining whether an employee's conduct may discredit a public agency inevitably involves conjecture if the misconduct is not widely known to the public. (Cf. Orlandi v. State Personnel Bd., supra, 263 Cal.App.2d at pp. 36-38 [rejecting the argument that conduct must be publicized and known, resulting in actual damage to the reputation of the employing agency, because such an interpretation would lead to absurd results and is contrary to the purpose of § 19572, subd. (t)].) Thus, based on undisputed facts, the Board did not abuse its discretion in sustaining this charge of misconduct.
F. Penalty of Dismissal
A determination of the proper discipline should not be disturbed unless the Board abused its discretion by acting arbitrarily or beyond the bounds of reason. If reasonable minds may differ as to the propriety of dismissal, there is no abuse of discretion. (Fisher, supra, 25 Cal.App.5th at p. 21.) Here, the Board determined dismissal was proper considering the "significant harm to the public service from [Graves's] wrongful acts" and the "potential for recurrence of such misconduct." That determination does not exceed the bounds of reason.
Relying principally on a case involving discipline imposed on an employee of what was then known as the Office of State Printing, Graves argues dismissal is disproportionate to any misconduct he committed because he had a right to progressive discipline. We disagree. Peace officers are held to a higher standard than other state employees. (Ackerman v. State Personnel Board, supra, 145 Cal.App.3d at pp. 398-401 [upholding police officer's dismissal for conduct that "probably" would have warranted "some form of punishment less than dismissal if he was not a police officer," because police officers should be held to a higher standard;" 'honesty is not considered an isolated or transient behavioral act; it is more of a continuing trait of character' "].) The question whether progressive discipline was appropriate in this case was for the Board to decide in the first instance. (See California Teachers Assn. v. State of California, supra, 20 Cal.4th 327, 343-344 [a civil service administrative tribunal has broad discretion in determining whether dismissal is an appropriate sanction because that decision often involves complex facts and a sensitive evaluation of the nature and seriousness of the employee misconduct]; Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 230 [explaining that the" 'overriding consideration' in cases of public employee discipline 'is the extent to which the employee's conduct resulted in, or if repeated is likely to result in, "[h]arm to the public service"' "].)
If, as here, a peace officer engages in conduct that is clearly wrong and dishonest, reasonable minds can conclude that dismissal is appropriate. Thus, this is not an "exceptional case" where "reasonable minds cannot differ on the appropriate penalty." (County of Los Angeles v. Civil Service Com. of County of Los Angeles (2019) 40 Cal.App.5th 871, 877.)
DISPOSITION
The judgment is reversed. CHP shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) &(2).)
We concur: EARL, P. J., WISEMAN, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.