The court said Johnstone supported its position because the court "based its reversal of the trial court judgment denying a writ of mandate upon the conclusion there was no ‘substantial evidence to support the order of the city council,’ thereby applying upon review a standard of proof even lower than that of ‘preponderance of the evidence.’ " ( Chamberlain , at p. 370, 138 Cal.Rptr. 155, citing Johnstone v. City of Daly City (1958) 156 Cal.App.2d 506, 319 P.2d 756.)

Dr. Flint then hypothesized the altered Valium prescription was part of this "anniversary reaction" due to an incident which occurred in July of 1979 in which an unknown assailant repeatedly shot at appellant but was never apprehended. Appellant relies on Blake v. State Personnel Board (1972) 25 Cal.App.3d 541 [ 102 Cal.Rptr. 50]; Yancey v. State Personnel Bd. (1985) 167 Cal.App.3d 478 [ 213 Cal.Rptr. 634] and Johnstone v. City of Daly City (1958) 156 Cal.App.2d 506 [ 319 P.2d 756]. There is no basis in the record to support appellant's contention that the triers of fact in this case "refused to consider" this evidence, only that it was not persuasive.

In support of his claim of a higher standard of proof, petitioner cites Court of Appeal decisions stating that in administrative proceedings to discipline public employees, "the burden of proof is upon the party asserting the affirmative . . . and that guilt must be established to a reasonable certainty." ( Cornell v. Reilly, 127 Cal.App.2d 178, 184 [ 273 P.2d 572]; see also Johnstone v. City of Daly City, 156 Cal.App.2d 506, 515 [ 319 P.2d 756].) These authorities, which rely upon the rule relating to charges of unprofessional conduct on the part of attorneys (see Skelly v. State Bar, 9 Cal.3d 502, 508 [ 108 Cal.Rptr. 6, 509 P.2d 950]), appear to conflict with the statement of our Supreme Court in Skelly v. State Personnel Bd., supra, 15 Cal.3d at page 204, footnote 19, that "[a]t such hearing, the appointing power has the burden of proving by a preponderance of the evidence the acts or omissions of the employee upon which the charges are based and of establishing that these acts constitute cause for discipline under the relevant statutes.

( Skelley v. State Personnel Board, supra, 15 Cal.3d at p. 204, fn. 19.)Johnstone v. Daly City (1958) 156 Cal.App.2d 506 [ 319 P.2d 756], relied on by Gardner conflicts with the standard of proof enunciated more recently by the Supreme Court in Skelley. ( Chamberlain v. Ventura County Civil Service Commission, supra, 69 Cal.App.3d 362, 370.)

Thus, unlike the bylaw in Anton, section 1124 violates the axiom that, "in disciplinary administrative proceedings, the burden of proving the charges rests upon the party making the charges." ( Martin v. State Personnel Bd. (1972) 26 Cal.App.3d 573, 582 [ 103 Cal.Rptr. 306]; Johnstone v. City of Daly City (1958) 156 Cal.App.2d 506, 515 [ 319 P.2d 756].) The regulation, on its face, appears to violate due process.

It is axiomatic that, in disciplinary administrative proceedings, the burden of proving the charges rests upon the party making the charges. ( Steen v. City of Los Angeles (1948) 31 Cal.2d 542, 547 [ 190 P.2d 937]; La Prade v. Department of Water Power (1945) 27 Cal.2d 47, 51 [ 162 P.2d 13]; Sunseri v. Board of Medical Examiners, supra, 224 Cal.App. 2 d at p. 317; Johnston v. City of Daly City (1958) 156 Cal.App.2d 506, 515 [ 319 P.2d 756].) Where such proceedings are commenced under the Administrative Procedure Act or pursuant to the statutes governing civil service separations, the Legislature has declared that all allegations of the accusation or notice of punitive action are deemed denied by a notice of defense or answer which does not expressly admit them.

In this respect, our function is the same as that of the court below ( DeMartini v. Department of Alcoholic Beverage Control, 215 Cal.App.2d 787, 799 [ 30 Cal.Rptr. 668]). [3] The evidence in the administrative record must not only be substantial but competent and material ( Takata v. City of Los Angeles, 184 Cal.App.2d 154, 159 [ 7 Cal.Rptr. 516]; Estate of Teed, 112 Cal.App.2d 638 [ 247 P.2d 54]). Guilt must be established to a reasonable certainty and cannot be based on surmise or conjecture, suspicion or theoretical conclusion or uncorroborated hearsay ( Johnstone v. City of Daly City, 156 Cal.App.2d 506, 515 [ 319 P.2d 756]; Cornell v. Reilly, 127 Cal.App.2d 178 [ 273 P.2d 572]). [4] The burden of proof in a mandamus proceeding to review the validity of an order revoking a liquor license is upon the party asserting the affirmative. As to the sufficiency of the evidence, DeMartini held that the admission of the duly filed fair trade contracts and schedules invoked three statutory presumptions (Code Civ. Proc., § 1963, subds.

Therefore, Graham's conduct could reasonably be found to have caused discredit to Sheriff (as well as Graham's employment with Sheriff). (Gov. Code, § 19572, subd. (t).) Johnstone v. City of Daly City (1958) 156 Cal.App.2d 506 and the other cases cited by Graham are factually inapposite and do not persuade U.S. to conclude otherwise. Finally, we are not persuaded by Graham's argument that there was insufficient evidence to support a finding that her relationship did not qualify for the exception for "unavoidable" associations.

Gilmore v. United States, 131 F. Supp. 581 (N.D.Cal. 1955); Brown v. Macy, 340 F.2d 115 (5th Cir. 1965); Mackatunas v. Finch, 301 F. Supp. 1289 (E.D.Pa. 1969); Jacobowitz v. United States, 424 F.2d 555, 191 Ct.Cl. 444 (1970). On the other hand, hearsay at civil service hearings has been held to be inadmissible. Fantozzi v. Board of Fire and Police Commissioners, 1962, 35 Ill. App.2d 248, 182 N.E.2d 577; Johnstone v. Daly City, 1958, 156 Cal.App.2d 506, 319 P.2d 756; see also, McQuillen, Municipal Corporations, Vol. 4, § 12.260(f); Busking v. Kronimus, 41 Misc.2d 985, 247 N.Y.S.2d 149 (Sup.Ct. 1963), aff'd 22 A.D.2d 888, 255 N.Y.S.2d 312. In some other jurisdictions the rule pertaining to hearsay at administrative hearings applies just as it does in court, albeit liberal exceptions to the hearsay rule apply to the former.

It is axiomatic that, in disciplinary administrative proceedings, the burden of proving the charges rests upon the party making the charges. (Steen v. City of Los Angeles (1948) 31 Cal.2d 542, 547, 190 P.2d 937; La Prade v. Department of Water & Power (1945) 27 Cal.2d 47, 51, 162 P.2d 13; Sunseri v. Board of Medical Examiners, supra, 224 Cal.App.2d at p. 317, 36 Cal.Rptr. 553; Johnstone v. City of Daly City (1958) 156 Cal.App.2d 506, 515, 319 P.2d 756.) Where such proceedings are commenced under the Administrative Procedure Act or pursuant to the statutes governing civil service separations, the Legislature has declared that all allegations of the accusation or notice of punitive action are deemed denied by a notice of defense or answer which does not expressly admit them.