Opinion
E051103 Super.Ct.No. RIC530901
02-07-2012
PETER HERRERA, Plaintiff and Appellant, v. COUNTY OF RIVERSIDE et al., Defendants and Appellants.
Ferguson, Praet & Sherman and Bruce D. Praet for Defendants and Appellants. Lackie, Dammeier & McGill, Michael A. McGill and Chris Gaspard, for Plaintiff and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed in part; reversed in part.
Ferguson, Praet & Sherman and Bruce D. Praet for Defendants and Appellants.
Lackie, Dammeier & McGill, Michael A. McGill and Chris Gaspard, for Plaintiff and Appellant.
I. INTRODUCTION
Defendants County of Riverside (County) and Riverside County Sheriff's Department (Department) appeal from a judgment on a petition for writ of administrative mandamus that upheld the decision of the Department to terminate plaintiff Peter Herrera from his employment as a sheriff's lieutenant but nonetheless awarded Herrera over two years of back pay. Defendants contend: (1) the trial court exceeded its authority when it attempted to fashion a remedy under the Memorandum of Understanding (MOU) that governed relations between defendants and Herrera; (2) the remedy of back pay may not be awarded in the absence of a Skelly violation; and (3) Herrera waived his procedural objections and did not enter the proceedings with clean hands.
Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly).
Herrera appeals from his termination from employment. Herrera contends: (1) the trial court erred in denying his petition for reinstatement because the due process error in failing to provide a clear statement of reasons in the Notice of Intent (NOI) was never cured by the administrative hearing; (2) the NOI requirement in the MOU is more stringent than the statutory NOI requirement, and relevant decisions of the State Personnel Board uniformly order reinstatement as the remedy for a defective NOI; (3) the remedy the trial court provided is deficient as a matter of law; and (4) the trial court erred in finding that the factual determinations of the Administrative Hearing Officer warranted termination.
We conclude the trial court erred in awarding Herrera back pay. We therefore affirm the trial court's denial of Herrera's petition for reinstatement, but we reverse the award of back pay.
II. FACTS AND PROCEDURAL BACKGROUND
Herrera had been employed with the Department since 1982 and had been a lieutenant since 2002. In November 2006, he was placed on administrative leave pending an internal affairs investigation. On March 27, 2007, the Department issued a NOI to terminate his employment under Article XIV, Section 2 of the County's MOU with the Law Enforcement Management Unit. The NOI stated that the bases for the discharge were "Dishonesty"; "Inefficiency or negligence in performance of duties"; "Willful violation of an employee regulation . . . ."; "Discourteous treatment of the public or other employees;" and "Conduct either during or outside of duty hours, which adversely affect[ed] the employee's job performance or operation of the [D]epartment . . . ." The NOI continued: "The above causes, and each of them are based upon information set forth in your entire personnel file and the attached materials, including but not limited to, the following acts or omissions: [¶] During 2000-2006, you engaged in a practice of sexual harassment/hostile work environmental harassment that spanned the course of several years, and involved many Department employees as victims. Those employees subjected to your sexual/hostile environment harassment were determined to be subordinates under your supervision. In addition, you engaged in rude and discourteous behavior, conduct which caused embarrassment to the Department with job nexus, unauthorized use of your work computer and you provided dishonest responses during your administrative interview." The NOI listed the Department's general orders that Herrera's conduct allegedly violated.
Before issuing the NOI, the Department had conducted an internal investigation that generated about 1,000 pages of documents and 75 recorded interviews. Those materials were attached to the NOI and incorporated into it by reference. The Department included in those materials a 19-page conclusion that summarized the allegations and outlined the evidence supporting each charge.
In the conclusion, the Department discussed the allegations that Herrera had subjected various subordinates, to "sexual/hostile work environment harassment." During a private bus trip in December 2004 returning from a football game, Herrera mentioned playing "Gay Chicken" and then placed his hand on Investigator Clinton Gilbert's thigh until Gilbert knocked the hand away. Between January 2005 and October 2005, Herrera asked Gilbert 20 to 30 times, in front of other witnesses, whether Gilbert would have sex with a man for money.
In December 2001, while attending a conference, Herrera mentioned the game "Gay Chicken" to Deputy Bruce Pierson and grabbed Pierson's knee. Later the same day, Herrera grabbed Pierson's inner thigh; Pierson jumped up and brushed Herrera's hand away. During the same conference, Herrera entered the room Pierson was sharing with another staff member, lifted Pierson's bedclothes, and said, '"Hey, what are you wearing under there.'" In his internal affairs interview, Herrera denied or claimed not to recall the incidents.
In April 2006, Herrera and Sergeant Jon Anderson were sharing a hotel room in Las Vegas; Herrera repeatedly entered the bathroom when Anderson was showering. The next morning, Herrera awakened Anderson. Herrera, who was wearing only boxer shorts, yanked Anderson's bed sheet and said he wanted to get in bed with Anderson. Anderson told Herrera to leave him alone. During his internal affairs interview, Herrera admitted he had lifted Anderson's bed sheet but denied he had made any sexual references or attempted to climb into the bed.
In 2004, Herrera asked his subordinate Sergeant Pat Chavez if he knew what "G.C." was, while simultaneously putting his hand on Chavez's thigh. Chavez told Herrera not to touch him, but Herrera continued to move his hand until Chavez stopped him.
In May 2001, while on a trip to the Netherlands sponsored by the City of Temecula, Herrera suggested to his subordinate Investigator Holder, with whom he was sharing a room, that they push their beds together. Herrera later asked Holder to leave the bathroom door open while taking a shower.
While attending a conference in 2001, Herrera asked colleagues whether they would have sex with other men for $5,000.
In 2000, Herrera described the game "Gay Chicken" to Sergeant Earl Quinata and then grabbed Quinata's knee until Quinata brushed Herrera's hand away. During his internal affairs interview, Herrera claimed not to remember the incident.
The conclusions also discussed allegations of dishonesty. During his internal affairs interview, Herrera denied touching Gilbert inappropriately and claimed not to remember making statements about Gilbert having sex with a man for money. Several witnesses corroborated Gilbert's version. Defendant similarly denied touching Pierson, but several witnesses corroborated Pierson's version.
The NOI allowed Herrera through April 5, 2007, to respond to "the facts contained in this letter," and stated that a failure to timely respond would constitute a waiver. Herrera did not respond before that date, and his termination became effective by letter dated April 11. The letter notified him of his right to request within 10 days a review of the disciplinary action.
On April 20, 2007, Herrera's attorney sent a termination appeal letter to the County's Employee Relations Manager. The letter stated that Herrera "denies the charges set forth in [the NOI] to the extent they are understandable. Lt. Herrera alleges the charging document is too vague, ambiguous and fails to plainly set forth the specific acts and omissions, and the dates of occurrences of each fact of misconduct and, therefore, is unlawfully vague and non-specific."
Herrera and the Department selected Michael Prihar as the neutral hearing officer for the appeal, and an evidentiary hearing began on May 27, 2008. When the hearing began, Herrera's attorney moved to dismiss on the ground that the Department had failed to provide him with adequate notice of the charges in its March 27, 2007, notice. He contended the MOU required a "clear and concise statement of the specific grounds, the particular facts upon which the discipline action is based."
Prihar is often referred to in the record as the arbitrator and the administrative proceeding is often referred to as arbitration. At the beginning of the hearing, Prihar clarified that the proceeding was an administrative hearing subject to review under Code of Civil Procedure section 1094.5 rather than an arbitration reviewable under Code of Civil Procedure section 1280 et seq. We will therefore refer to Prihar as the hearing officer.
The hearing officer concluded that the NOI did not violate Skelly, and the adoption of the Internal Affairs report cured the notice issue. The hearing officer denied Herrera's motion to dismiss. However, the hearing officer limited the Department to only those charges and evidence contained within the 19-page conclusions. The Department's evidence at the hearing generally tracked the charges set forth in the conclusions. Herrera presented the testimony of a former supervisor and a former colleague, and he testified in his own behalf.
The hearing officer issued a decision on April 12, 2009. The hearing officer found that the notice given did not violate Skelly but did violate Herrera's rights under the MOU. The hearing officer stated, "Like Skelly, MOU Article XIV also lists components of a notice of intent. Unlike Skelly, Article XIV, Section 7.A.2 specifies that a notice of intent shall include '[a] clear and concise statement of the specific grounds and particular facts upon which the disciplinary action is based.' The word 'shall' is obligatory, as opposed to permissive. It reflects a requirement or an obligation, as opposed to a suggestion or discretion. Additionally, the Article talks about the 'letter of intent' and not the accompanying documents or enclosures. Thus, the intent is for [the Department] to state in the body of the letter of intent a 'clear and concise statement of the specific grounds and particular facts upon which the disciplinary action is based.'"
The hearing officer next addressed the appropriate remedy for the violation: "Respondent's NOI violated the MOU letter of intent requirements. But the Hearing Officer finds that the violation stemmed from an administrative oversight, as opposed to any intent to confuse or deny [Herrera] his MOU due-process rights, especially since [the Department] included the investigatory files. Moreover, there is no evidence that this is a practice of the [Department] that has been addressed before, and no evidence demonstrates that this oversight is one which [the Department] has been cautioned to correct in prior appeals. While this is the type of oversight that is to be avoided in the future, the nature of this violation is not one which calls for any contractual remedy other than this cautionary note."
With respect to the merits, the hearing officer found that the Department had met its burden of proving Herrera had been dishonest on several occasions, and the dishonesty warranted his termination. Because the hearing officer found that dishonesty alone was a sufficient basis for termination, the hearing officer did not decide the sexual harassment issues.
For that reason, we do not include an extensive summary of the evidence relating to the sexual harassment issues in our statement of facts.
Herrera filed a petition for writ of mandate in the trial court under Code of Civil Procedure section 1094.5. Following briefing by the parties, the trial court upheld the hearing officer's findings that Herrera had been dishonest and that his termination was proper. The trial court agreed with the hearing officer's determination that the NOI violated the specificity requirement in the MOU. In response to the Department's argument that Herrera had waived the issue of the specificity requirement, the trial court found that Herrera had not waited until the first day of the administrative hearing to object, but rather had raised the issue in his April 20, 2007, letter.
However, the trial court rejected the hearing officer's determination that the summary included in the record provided to Herrera was sufficient notice: "The notice of intent did not provide any specifics of the alleged misconduct but rather incorporated by reference certain documents. Those documents included over 1,000 pages that were attached to the notice of intent to terminate and buried within those documents was a 19-page summary of the Department's internal investigation. [¶] The notice of intent, however, did not specifically identify the summary as one of those documents incorporated by reference. There is no way the petitioner could have reasonably been expected to locate and identify this document as the real basis for his termination." The trial court further found that the violation was prejudicial to Herrera in his ability to defend against the charges, and as a remedy, the trial court awarded Herrera back pay from the date of his termination to the date of the hearing officer's decision.
Additional facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Standard of Review
We review the decision of the hearing officer under the same standard of abuse of discretion the trial court applied in ruling on the petition for writ of administrative mandamus under section 1094.5 (County of Santa Cruz v. Civil Service Commission of Santa Cruz (2009) 171 Cal.App.4th 1577, 1581.) We reverse only when the officer abused his discretion or exceeded the bounds of reason. "'In considering whether [abuse of discretion] occurred in the context of public employee discipline, we note that the overriding consideration in these cases 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." [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.' [Citation.] The public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability. [Citation.]" (Id. at pp. 1581-1582.)
In reviewing the agency's decision, we presume that decision is supported by substantial evidence. We examine the entire record and consider all relevant evidence, but we do not substitute our own findings and inferences for those of the hearing officer, whose decision we reverse "'only if, based on the evidence before it, a reasonable person could not have reached the conclusion reached by [the hearing officer].' [Citations.]" However, we exercise our independent judgment on questions of law, such as the interpretation of statutes and judicial precedent. (McAllister v. California Coastal Com. (2008) 169 Cal.App.4th 912, 921-922.)
B. Waiver of Procedural Objections
Defendants contend Herrera waived his procedural objections and came to the proceedings with unclean hands, and the award of back pay was thus improper.
1. Additional Background
On April 20, 2007, Herrera sent the Department a letter appealing his termination and requesting a hearing before a neutral arbitrator. The letter stated that "[t]he penalty of termination is excessive and unwarranted," and that Herrera "denies the charges set forth in Exhibit 'A' to the extent they are understandable. Lt. Herrera alleges the charging document is vague, ambiguous and fails to plainly set forth the specific acts and omissions, and the dates of occurrences of each fact of misconduct and, therefore, is unlawfully vague and non-specific."
The MOU includes specific requirements for the NOI. Article XIV, Section 7 of the MOU provides:
"Section 7. NOTICE OF DISCIPLINARY ACTION.
"A. Intent Letter. For permanent employees written notice of intent to take disciplinary action shall be served on the affected employee . . . at least seven (7) working days prior to the effective date of the action and shall include:
"1. A description of the action(s) to be taken and the expected effective date(s);
"2. A clear and concise statement of the specific grounds and particular facts upon which the disciplinary action is based;
"3. A statement that a copy of the materials upon which the action is based is attached or available for inspection upon request; and
"4. A statement informing the employee of the right to respond either verbally or in writing, to the Department Head prior to the effective date of the disciplinary action(s)."
When the hearing commenced, Herrera's counsel moved to dismiss on the grounds the NOI failed to provide the required clear and concise statement of the specific grounds on which the disciplinary action was based. The Department's counsel argued that Herrera had waived the argument by failing to raise it "at the Skelly." The hearing officer addressed the motion to dismiss on the merits and determined that the information in the 19-page summary, which was part of the materials provided to Herrera with the NOI, gave adequate notice of the specific allegations against him and the facts on which they were based. The arbitrator therefore denied the motion to dismiss, but limited the Department's presentation of evidence "only to those elements that are in that [summary]."
The Department raised the waiver argument again in the trial court, but the trial court found that Herrera had raised a timely objection in his April 20, 2007, letter to the lack of specificity in the MOU.
2. Analysis
An available defense should be asserted at the first opportunity. (Moore v. City of Los Angeles (2007) 156 Cal.App.4th 373, 382.) In the absence of a valid reason for failing to promptly assert such a defense, an individual may forfeit the right to do so later. (Flippin v. Los Angeles City Bd. of Civil Service Commissioners (2007) 148 Cal.App.4th 272, 281.)
Here, however, we agree with the trial court that Herrera's April 20, 2007, letter was sufficient to put the Department on notice that he was challenging the NOI on the ground of lack of specificity. Under the MOU, the Department could have filed an amended or supplementary NOI, but the Department failed to do so in the year that intervened before the hearing began. We will therefore address the issue on the merits.
Article XIV, section 10 of the MOU provides: "At any time before an employee's appeal is submitted to the Hearing Officer for decision, the Department Head may, with the consent of the Employee Relations Manager, serve on the employee and file with the Employee Relations Manager an amended or supplemental notice of disciplinary action."
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C. Trial Court's Authority to Award Back Pay
Defendants contend the trial court exceeded its authority when it attempted to fashion a remedy (back pay) under the MOU, and the remedy of back pay is not available in the absence of a Skelly violation.
1. Additional Background
The hearing officer found that the Department had violated Article XIV, section 7.2.A of the MOU by failing to provide a clear statement of reasons in the NOI but further found that the 19-page conclusions provided "very clear information as to what the basis for those allegations are." The hearing officer determined that the appropriate remedy for the violation was a cautionary note.
In reviewing the hearing officer's decision, the trial court observed that "[t]he MOU is silent as to what the remedy would be for a notice of intent or an MOU violation . . . ." The trial court expressly found that the NOI issue was "not a Skelly violation" but then stated it intended to treat the issue as a "Skelly-like violation." The trial court ordered back pay for Herrera from his termination to the date of the hearing officer's decision.
2. Analysis
In Skelly, the California Supreme Court held that permanent civil service employees are entitled to procedural due process before discipline may be imposed, and "[a]s a minimum, these preremoval safeguards must include notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline." (Skelly, supra, 15 Cal.3d at p. 215.) Courts have held that an appropriate remedy for a Skelly violation is an award of back pay for the period during which the employee was wrongfully disciplined. (E.g., Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 402.)
In Webster v. Trustees of Cal. State University (1993) 19 Cal.App.4th 1456, 1465, a tenured state university professor appealed from the trial court's denial of his petition for administrative mandamus contesting the denial of certification to continue teaching after the age of 70. He argued that because the trustees of the university had refused his request for an administrative appeal of the denial, he was entitled to back pay. The court stated that "only when the Skelly . . . minimal pretermination due process requirements have been violated may backpay be awarded from the time discipline is actually imposed to the date the administrative board files its decision. [Citations.]" (Ibid.)Because the professor did not contend his Skelly rights were violated, there was no basis for an award of back pay. (Webster v. Trustees of Cal. State University, supra, at p. 1465.)
In this case, both the hearing officer and the trial court held that there had been no Skelly violation. The trial court further held, however, that there had been a "Skelly-like" violation for which the appropriate remedy was an award of back pay. We disagree that the record before us supports any finding of a due process violation that would support the remedy of back pay. While the investigative record incorporated into the NOI was indeed extensive, it was organized logically. First, the record contained a list of the names, positions, and telephone numbers of the administrative investigative team and witnesses and a list of all the attachments. The next 150 pages or so detailed the interviews of the principal witnesses. Those interviews were summarized in the 19-page conclusions that immediately followed. The remainder of the report consisted of tabbed attachments. Even a cursory review of the record would be sufficient to identify the incidents that formed the basis of the charges.
In Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931, a psychologist brought a mandamus action following disciplinary proceedings before the psychological examining committee, contending "the accusation was so vague as to give him inadequate notice of the charges against him, precluding him from preparing a defense." (Id. at p. 941.) The notice of charges the court stated that he had subjected three named patients to "'improper and unethical psychological services including but not limited to the following . . . .'" The notice further alleged specific conduct, but the psychologist argued that the inclusion of the italicized language "fail[ed] to comport with due process." (Ibid.) The appellate court rejected the argument on the grounds that due process required only notice of the substance of the charge, and evidence at the hearing was limited to that relevant to the charges specifically pleaded. (Id. at p. 942.) The court explained, "'A variance between the allegations of a pleading [(NOI)] and the proof will not be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense on the merits, and a variance may be disregarded when the action has been fully and fairly tried on the merits as though the variance had not existed.' [Citations.]" (Ibid.) Although the procedural posture of this case is somewhat different, we agree with the Cooper court's statement that actual prejudice is required when notice is technically defective.
Here, the hearing officer impliedly found Herrera had not been prejudiced. The trial court, in contrast, found actual prejudice. In our de novo review, we concur with the conclusion of the hearing officer. The hearing officer limited the presentation of evidence to the incidents described in the 19-page summary. Herrera and his counsel had a full year to prepare for the hearing. When the hearing officer denied the motion to dismiss, Herrera's counsel never requested a continuance to allow further preparation. Herrera's counsel vigorously cross-examined witnesses, presented the evidence of Herrera's former supervisor and a colleague to testify as to Herrera's good character and as to their own observations of his conduct over the years. In addition, Herrera testified in his own behalf. Even now, Herrera has not pointed to any evidence he could have presented or argument he could have made if the clear and concise statement of the charges had been made in the NOI instead of in the summary. We conclude the hearing officer did not abuse his discretion in determining that an admonition was the appropriate penalty for the technical violation of the NOI requirement in the MOU.
D. Due Process Error
In his appeal, Herrera contends (1) the trial court erred in denying his petition for reinstatement because the due process error in the defective NOI was never cured by the administrative hearing. Because, as discussed above, we have determined that any error in the NOI did not amount to a deprivation of due process, we reject Herrera's argument that he was entitled to reinstatement.
E. Remedy for Defective NOI
Herrera contends the NOI requirement in the MOU is more stringent than the statutory NOI requirement, and State Personnel Board (SPB) decisions grant reinstatement as the remedy for a defective NOI. Herrera cites In re Richins (State Personnel Bd. 1994) SPB Precedential Dec. No. 94-09; In re Donald (State Personnel Bd. 2002) SPB Precedential Dec. No. 02-10; In re Korman (State Personnel Bd. 1991) SPB Precedential Dec. No. 91-04; and In re Kinoshita (State Personnel Bd. 1998) SPB Precedential Dec. No. 98-05, to support his point.
Administrative agency decisions are not controlling precedent in California courts, although we accord deference to such decisions. (See, e.g., Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 6-11; California Dept. of Corrections v. State Personnel Bd. (2004) 121 Cal.App.4th 1601, 1618 ["Of course, the SPB precedents are not binding on this court. [Citation.]"].) As we discuss below, the decisions on which Herrera relies are distinguishable on their facts.
In In re Richins, supra, SPB Dec. No. 94-09, the administrative law judge (ALJ) sustained allegations that an employee had used state time for personal activities and had performed his work poorly. (Id. at p. 1.) The ALJ proposed a remedy of an official reprimand, but the SPB reversed on the ground that the employee had failed to provide adequate notice of the specific charges against the employee. (Id. at p. 5.) However, a close reading of the case reveals that the SPB's reversal was based not only on the inadequacy of notice, but also on the inadequacy of proof at the hearing. (Id. at pp. 3-5, 7.) Thus, the case does not stand for the proposition that an inadequate notice automatically entitles the employee to reinstatement.
In In re Donald, supra, SPB Dec. No. 02-10, the SPB revoked the rejection of an employee during her probationary period on the ground the employee was not provided adequate notice of the reasons for her rejection. (Id. at p. 1.) The employer had served various materials on the employee with her notice; however, the SPB observed: "A review [of] those materials reveals that they do not contain any more specific details as to places, names and dates than does the Notice. While the First and Second Probationary Reports describe appellant's deficiencies with some specificity, they do not set forth any particular instances when those deficiencies were exhibited. The other documents that were included with the Notice did not provide any more details as to the specific reasons underlying the rejection." (Id. at p. 11.) Thus, neither the notice itself nor the attached materials provided sufficient information. The SPB further stated: "[T]he Department could not satisfy its obligation to set forth in the Notice the reasons for appellant's rejection by mailing with the Notice additional documents that may have included further support for the rejection. Appellant could not be expected to wade through additional documents to discern the reasons for her rejection if those reasons were not specifically set forth in the Notice. Instead, the Department had to include the reasons for appellant's rejection in the Notice itself." (Id. at p. 11.) However, those comments were merely dicta, because the SPB had already concluded that the other documents provided did not include adequate details explaining the employer's decision.
In In re Korman, supra, SPB Dec. No. 91-04, the SPB revoked an employee's suspension because the employer had failed to specify the acts on which the action was based in the notice given to the employee or in the other documents provided. Here, in contrast, the documents provided Herrera did specify the details of the alleged actions.
In In re Kinoshita, supra, SPB Dec. No. 98-05, the SPB found the administrative hearing officer had properly dismissed allegations against an employee when the notice provided him did not state explicitly which provisions of the employer's manual had been violated, and the employer did not provide him with a copy of the manuals when he was served with his notice. (Id. at pp. 5, 11-12.) Thus, the decision is distinguishable—the SPB's decision was based not only on a defective notice but also on failure to provide supporting materials.
We conclude that the hearing officer did not err in declining to grant reinstatement as a remedy for the technically defective NOI.
F. Sufficiency of Trial Court's Remedy
Herrera contends that the Public Safety Officers Procedural Bill of Rights Act (the Act) (Gov. Code, 3300 et seq.) not only supports the trial court's award of back pay but also requires his reinstatement. He argues the Department could not terminate his employment without providing him an opportunity for administrative appeal, and "[i]n any case where the superior court finds that a public safety department has violated any of the provisions of [this chapter], the court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including, but not limited to, the granting of a temporary restraining order, preliminary injunction, or permanent injunction prohibiting the public safety department from taking any punitive action against the public safety officer. ([Gov. Code,] § 3309.5, [subd.] (d)(1).)"
Defendants point out that Herrera never requested a remedy under Government Code section 3309.5 at the administrative hearing or in the trial court. We decline to consider the issue for the first time in this appeal. (See Giraldo v. Calif. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 251.)
G. Termination
The hearing officer found that the Department had sustained the allegation of dishonesty against Herrera. Herrera contends, however, that the trial court erred in concluding that the hearing officer's factual determinations warranted the penalty of termination.
Article XIV, Section 2(A) of the MOU includes "[d]ishonesty" among "acts of an employee who has permanent status [that] shall be good cause for dismissal, demotion, reduction in compensation, suspension, or any other action taken for disciplinary reasons . . . ." Moreover, courts have consistently held that law enforcement officers must be held to the highest standards of public trust, and even a single act of dishonesty by a peace officer warrants termination. (See, e.g., Paulino v. Civil Service Com. (1985) 175 Cal.App.3d 962, 972 (Paulino) [termination upheld for deputy who lied about use of sick leave]; Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 723 (Kolender)[termination upheld for deputy who lied to cover up another deputy's abuse of an inmate].)
Herrera attempts to distinguish Paulino and Kolender on the ground that the nature of the dishonesty in those cases differed from his own dishonesty, which, he argues, "resulted from [his] denials to he-said, she-said allegations made during a compelled Internal Affairs interview," and "the hearing officer found contradictory accounts of witnesses more persuasive than those given by Herrera." Herrera relies on Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46 (Alameida),in which the court held that the denial of misconduct during an investigation "[did] not constitute separate actionable misconduct but in effect merge[d] with or [wa]s derivative of the alleged underlying misconduct" for purposes of that statute of limitations. (Id. at p. 62.)
In Department of Corrections & Rehabilitation v. California State Personnel Bd. (2007) 147 Cal.App.4th 797, the court disagreed with Alameida, stating that nothing "in the purposes of statutes of limitations . . . supports a finding that extensive lying during investigatory interviews merges with the underlying misconduct . . . ." (Department of Corrections & Rehabilitation v. California State Personnel Bd., supra, at pp. 804-805.) Thus, when former correctional officers had been served with notices containing charges of dishonesty within the limitations period applicable to "their dishonest denials at investigatory interviews," they "could be disciplined for their lies." (Id. at p. 806.) The court explained that "[l]ying is a separate and distinct offense from the underlying offense," and "the lying here involved repeated dishonest denials of allegations relating to the underlying misconduct." (Id. at pp. 806-807.) The court also noted the "'strong public policy against having dishonest employees in the state service,'" and held that "[t]o permit appellants who lied during investigatory interviews . . . to escape unscathed would be contrary to [that] strong public policy . . . ." (Id. at p. 808.) We find that reasoning compelling. The record in the present case amply supports the hearing officer's finding of dishonesty; the fact that the dishonesty stemmed from statements during investigatory interviews is of no consequence.
Herrera further attempts to distinguish Paulino and Kolender on the ground that the officers in those cases had short terms of employment (Paulino, supra, 175 Cal.App.3d at p. 965 [officer had two years on the force]); Kolender, supra, 132 Cal.App.4th at p. 719 [officer was a probationer]) whereas he himself was "an accomplished 25-year law enforcement veteran, lieutenant with a stellar employment record . . . ." Other cases, however, have recognized no exception on the basis of the length of employment. (See, e.g., Ackerman v. State Personnel Bd. (1983) 145 Cal.App.3d 395, 397[termination on grounds of dishonesty and misuse of state property upheld for highway patrol officer with over 15 years of service]; Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 882 [termination upheld for fish and game officer with 21 years of service who falsely reported overtime].) We find no abuse of discretion in the hearing officer's conclusion that Herrera's dishonesty warranted termination.
IV. DISPOSITION
We reverse the award of back pay. In all other respects, the judgment is affirmed. Costs on appeal are awarded to defendants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
MILLER
J.