Opinion
C084089
03-12-2020
OLEG LYASHENKO, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant; CALIFORNIA HIGHWAY PATROL, Real Party in Interest and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 34201580002266CUWMGDS)
Former California Highway Patrol Officer Oleg Lyashenko challenges his termination of employment for dishonesty, inexcusable neglect of duty, and failure of other good behavior causing discredit to the California Highway Patrol (CHP). The State Personnel Board (SPB) found Lyashenko submitted a false report regarding his arrest of Chance Marshall for driving under the influence (DUI), testified falsely in court regarding that DUI arrest, and intentionally concealed the existence of a partial video recording of a DUI arrest of Andrew Rodriguez effected by Lyashenko.
On appeal, Lyashenko contends (1) insufficient evidence supports the SPB's finding of inexcusable neglect of duty by Lyashenko in the Marshall case, (2) the trial court abused its discretion in refusing to take judicial notice of the California State Bar number assigned to one of the deputy district attorneys assigned to the Marshall case, (3) insufficient evidence supports the SPB's finding Lyashenko intentionally concealed the existence of the partial video recording showing the traffic stop of Rodriguez, (4) insufficient evidence supports the SPB's finding of "other failure of good behavior" in both the Marshall and Rodriguez cases, and (5) the evidence did not support the penalty of termination from employment.
We conclude the record supports findings that Lyashenko provided a false report and false testimony resulting in the dismissal of the Marshall case. We deny Lyashenko's request for judicial notice because it seeks the admission of evidence that is irrelevant. We decline to second-guess the credibility determination that Lyashenko was not believable when denying he intentionally concealed the existence of the partial video recording in the Rodriguez case. Having concluded the record supports the SPB's findings of intentional concealment of evidence and inexcusable neglect of his duties, we determine SPB did not abuse its discretion that termination was the appropriate penalty. Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
SPB Administrative Law Judge Jason A. Krestoff conducted a hearing in this matter that spanned two days and involved the introduction of evidence on behalf of the CHP and Lyashenko. At the conclusion of the hearing, the administrative law judge issued a decision in which he made the findings of fact that included the following:
In October 2010, Lyashenko graduated from the CHP Academy. That same month, he was assigned as a patrol officer in the San Francisco Office of the CHP's Golden Gate Division. Lyashenko lived in Sacramento and commuted to San Francisco to work the graveyard shift from 6:00 p.m. to 6:30 a.m. Prior to the DUI arrests in the Marshall and Rodriguez cases, Lyashenko had no prior adverse actions during his work as a patrol officer.
The Marshall Case
On September 5, 2011, Lyashenko responded to a dispatch call regarding a single motor vehicle accident on the southbound Interstate 280 connector ramp to eastbound Interstate 380. Fire/paramedic personnel were already at the scene when Lyashenko arrived. The fire/paramedic personnel identified a female as the vehicle's driver and a male as the passenger. The female identified herself to Lyashenko as Chance Marshall and the male identified himself as Matthew Boatman. Lyashenko conducted a field sobriety test on Marshall and determined she was under the influence of alcohol. Lyashenko arrested her for a misdemeanor violation of Vehicle Code section 23152. That same shift, Lyashenko wrote and submitted a DUI investigation report regarding the arrest.
Marshall's prosecution was initially assigned to San Mateo County Deputy District Attorney Kari Gannam. On June 11, 2012, Deputy District Attorney Gannam issued a memorandum to Lyashenko notifying him Marshall claimed Boatman was the driver of the vehicle. In the same memorandum, Deputy District Attorney Gannam requested that Lyashenko determine Boatman's address and locate him. Deputy District Attorney Gannam also asked Lyashenko to issue a supplemental report that included any other statements not provided in the original investigative report. The memorandum was placed in Lyashenko's CHP mailbox on June 11, 2012. Lyashenko did not respond to the memorandum.
The Marshall prosecution was reassigned to San Mateo County Deputy District Attorney Abby Rutherford. On August 2, 2012, Rutherford issued a memorandum to Lyashenko in which she asked whether he had completed the assignments in Deputy District Attorney Gannam's earlier memorandum. Rutherford additionally requested that Lyashenko provide the names of the fire/paramedic personnel on the scene of Marshall's arrest. Three days after receiving Rutherford's memorandum, Lyashenko wrote a two-page supplemental report relating to his investigation into Boatman's whereabouts. The supplemental report, however, did not provide the names of any fire/paramedic personnel who were present at the scene of Marshall's arrest.
Rutherford issued a follow-up memorandum to Lyashenko that was placed in his CHP mailbox on August 29, 2012. The follow-up memorandum listed 11 names and phone numbers of fire/paramedic personnel who had been present at the scene on September 5, 2011. Rutherford's follow-memorandum requested that Lyashenko contact each of the listed fire/paramedic personnel to obtain statements. The administrative law judge found, however, that Lyashenko never received Rutherford's follow-up memorandum.
On September 10, 2012, Lyashenko appeared at the San Mateo County Superior Court to testify in the Marshall case. Rutherford informed him the case had been continued and asked whether he had contacted the personnel listed in her follow-up memorandum. Lyashenko stated he had not received the follow-up memorandum. Rutherford provided Lyashenko with a copy and asked him to use an empty office at the district attorney's office to call the 11 fire/paramedic personnel present at the scene of Marshall's arrest. Over the course of a half hour, Lyashenko attempted to contact each of the fire/paramedic personnel on the list but was unable to reach any of them. He jotted notes on Rutherford's memorandum and submitted them to Rutherford.
Sometime between August 2, 2012 and April 16, 2013, the Marshall case was reassigned to San Mateo County Deputy District Attorney Paula Vielman-Reeves. On April 16, 2013, Deputy District Attorney Vielman-Reeves issued a memorandum to Lyashenko informing him trial was scheduled for May 6, 2013. Also, in the memorandum Deputy District Attorney Vielman-Reeves asked Lyashenko to contact the 11 witnesses in Rutherford's follow-up memorandum and to submit a supplemental report by April 29, 2013. The memorandum was placed in Lyashenko's CHP mailbox on April 30, 2013.
On May 6, 2013, Lyashenko left his home in Sacramento at 5:30 a.m. and arrived at the San Mateo County Superior Court at 8:00 a.m. There, Deputy District Attorney Vielman-Reeves asked Lyashenko whether he had contacted the 11 witnesses. Lyashenko "stated that he had contacted some of the 11 witnesses back on September 10, 2012." Deputy District Attorney Vielman-Reeves asked Lyashenko to write a supplemental report regarding his contact with the 11 witnesses. Lyashenko remained at the courthouse until 4:00 p.m. He then proceeded to the CHP San Francisco office and completed his regular shift. After his shift and between 6:30 a.m. and 8:00 a.m., Lyashenko wrote a second supplemental report. In that report, he stated in pertinent part: "I performed follow-up[;] I [made] contact with each member of the Fire Department and Paramedic crews who were present at the collision scene and/or evaluated Marshall and Boatman for any injuries. No one had any specific recollection of the subject events or Marshall's and Boatman's statements at the scene." Lyashenko provided this second supplemental report to Deputy District Attorney Vielman-Reeves when he arrived at the courthouse at 8:00 a.m.
On May 7, 2013, Lyashenko testified in the Marshall case. He remained at the courthouse until 4:00 p.m. and then worked his regular shift. When he arrived for his shift, Lyashenko requested and was granted the night off for lack of sleep over the prior two days. Lyashenko then slept in his personal pick-up truck with a camper shell between 6:00 p.m. and 1:00 a.m. Unable to sleep past 1:00 a.m., Lyashenko got up and prepared for the day.
On May 8, 2013, Lyashenko arrived at the courthouse around 8:00 a.m. During his testimony, Lyashenko was cross-examined by Marshall's attorney, Maura Feiger. The administrative law judge found the follow colloquy occurred: "Feiger questioned [Lyashenko] regarding his contact with the 11 witnesses. Feiger asked, 'The list that was provided to you, did you contact each and every one of these individuals on this list?' [Lyashenko] replied, 'Yes, I did.' Feiger then asked 'And did you make a report of the conversations that you had with these individuals' [Lyashenko] replied, 'I got no answer in a positive form from them that they remembered the incident, so I just wrote a short summary that none of them had any recollection of the incident." In response to this testimony, the district attorney's office began an investigation into Lyashenko's claimed contact with the 11 fire/paramedic personnel.
On February 3, 2014, the district attorney's office notified CHP it had concluded its investigation and "based on that investigation, [Lyashenko] would be included on the San Mateo County District Attorney's 'Brady' list." The administrative law judge noted, "Pursuant to the holding in Brady v. Maryland (1963) 373 U.S. 82, an officer on the 'Brady' list is deemed to have sustained a record for knowingly lying in an official capacity."
The Rodriguez Case
Around 3:10 a.m. on October 4, 2012, Lyashenko was on patrol with his partner, CHP Officer Nathan Johnson when they observed a car traveling at approximately 84 miles per hour on Highway 101. Lyashenko and Officer Johnson caught up to the speeding car and Officer Johnson activated the patrol vehicle's overhead emergency lights. Activation of the emergency lights also automatically started the patrol vehicle's Mobile Video/Audio Recording Systems (MVARS). Officer Johnson used the patrol vehicle's public address system to order the car to pull over. The driver of the car, later identified as Andrew Rodriguez, complied.
Lyashenko approached the driver while Officer Johnson provided back-up. Lyashenko asked for identification, and Rodriguez provided his San Francisco County Sheriff's identification card. Lyashenko observed that Rodriguez was under the influence of alcohol.
Lyashenko returned to the patrol vehicle to speak with Officer Johnson. Lyashenko had not previously arrested a law enforcement officer and had questions regarding the proper procedure. Lyashenko turned off the MVARS to conduct a private conversation with Officer Johnson, who was an 11-year veteran. Lyashenko asked Officer Johnson questions including about whether they needed to contact the San Francisco County Sheriff's Department because Rodriguez was a deputy sheriff. After their conversation, Lyashenko returned to Rodriguez and conducted a field sobriety test. However, Lyashenko did not reengage the MVARS. As a result of the field sobriety test, Lyashenko arrested Rodriguez for driving under the influence of alcohol.
That same day, Lyashenko wrote a DUI investigation report after processing Rodriguez's arrest. The report, which was completed on a standard form, contained a section to indicate whether there was a MVARS recording of the incident. Lyashenko checked "no" MVARS recording regarding the arrest of Rodriguez. In this regard, the administrative law judge found: "At the time [Lyashenko] drafted his DUI Investigation Report, [he] was aware that he had forgotten to re-engage the MVARS. Nowhere in his DUI Investigation Report did [Lyashenko] note[] that there was a partial MVARS recording or that [he] had turned off the MVARS prior to conducting the field sobriety test. Further, prior to drafting his DUI Investigation Report, [Lyashenko] failed to notify any supervisor that he had turned off the MVARS prior to conducting the field sobriety test on Rodriguez and that only a partial MVARS recording existed."
At the end of the shift on October 4, 2012, Officer Johnson logged in the patrol vehicle's MVARS DVD pursuant to CHP policy. The Rodriguez arrest was noted in permanent marker on the DVD. During Rodriguez's prosecution, CHP became aware a partial MVARS recording of Rodriguez's incident existed and Lyashenko's DUI investigation report was inaccurate.
Credibility Determinations by the Administrative Law Judge
During the hearing before the SPB's administrative law judge, Lyashenko "testified that he did commit errors" in the Marshall and Rodriguez cases but asserted that "none of his errors were acts of intentional dishonesty." The administrative law judge made credibility determinations regarding Lyashenko's assertions of unintentional errors.
Regarding the second supplemental report in the Marshall case, the administrative law judge found Lyashenko's "lack of sleep could easily explain [his] error" that he had only attempted to contact the 11 fire/paramedic personnel. Noting other syntax and dating errors in the same report, the administrative law judge found Lyashenko's assertion of an unintentional error to be credible.
The administrative law judge similarly found Lyashenko's lack of sleep explained his mistaken response during cross-examination by Marshall's trial attorney. The administrative law judge stated, "Circumstantial evidence supports that [Lyashenko's] faculties were hindered due to his lack of sleep. The evidence supports that [he] misheard Defense Counsel Feiger's question and mistakenly provided a wrong answer."
Nonetheless, the administrative law judge found the errors "established that [Lyashenko] failed in his duties as a CHP Officer. By his own admission, [he] submitted an inaccurate second supplemental DUI Investigation Report in the Marshall investigation and provided incorrect testimony during the Marshall trial. Though [his] actions were not intentional, [Lyashenko] was required to perform his duty competently. [He] should have recognized that, due to lack of sleep, he was unable to competently draft his second supplemental report or provide clear testimony. Further, [he] should have notified his supervisor or [Deputy District Attorney] Vielman-Reeves of his impairment due to his lack of sleep."
With respect to the deactivation of the MVARS during Rodriguez's arrest, the administrative law judge found Lyashenko "did not turn off the MVARS as a benefit to Rodriguez, a fellow peace officer." The administrative law judge credited testimony of Lyashenko and Officer Johnson that the MVARS was turned off without knowing its deactivation violated CHP policy and was done only to determine how to proceed in the arrest of Rodriguez.
The administrative law judge, however, found Lyashenko not credible in his assertion that he failed to report the MVARS recording because it "would not assist in the prosecution of the case." Instead, the administrative law judge found that "when [Lyashenko] completed his DUI Investigative Report, he was fully aware that a partial MVARS recording existed and he made no reference to it in his report. Further, [Lyashenko] did not seek guidance from his supervisors about how to address the limited MVARS recording in his DUI Investigation Report. During the hearing, [Lyashenko] offered no reasonable explanation as to why he failed to mention the partial MVARS recording in his DUI Investigation Report."
The administrative law judge determined that "the evidence established that [Lyashenko] intentionally withheld pertinent information from his DUI Investigation Report in the Rodriguez Investigation. [He] failed to be honest and reliable, to demonstrate good judgment, and to prepare accurate written reports." In making this determination, the administrative law judge rejected Lyashenko's claim that "the recording would not assist in the prosecution of the case." To the contrary, the administrative law judge found Lyashenko "did not review the partial MVARS recording prior to drafting his DUI Investigation Report, nor did [he] check with a supervisor about how to handle this situation. [His] justification is not believable. Instead, the evidence supports that [Lyashenko] knew that he made an error and willfully tried to cover up his error by excluding pertinent information from the DUI Investigation Report."
Termination of Employment
Based on his findings of inexcusable neglect and intentional concealment of evidence, the administrative law judge determined termination of employment was the appropriate sanction. Two months later, the SPB issued a board resolution and order in which it adopted the administrative law judge's decision.
In December 2015, Lyashenko filed a petition for writ of administrative mandate in the Sacramento County Superior Court in which he sought to overturn the SPB decision and reinstatement to his job with the CHP. After conducting a hearing, the trial court denied the petition. From the order denying the writ petition, Lyashenko timely filed a notice of appeal.
DISCUSSION
I
Principles of Review
Code of Civil Procedure section 1094.5 provides for writ review of administrative agency actions. "Subdivision (b) of [Code of Civil Procedure] section 1094.5 limits the extent of the reviewing court's inquiry 'to the questions whether the [administrative tribunal] has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.' In determining whether there was an abuse of discretion, the reviewing court may consider whether the administrative tribunal proceeded in the manner required by law, whether its order or decision is supported by the findings, and whether the findings are supported by the evidence." (Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 742.) "These standards do not change on appellate review from a trial court's denial of a petition for writ of mandate from a decision of the SPB; an appellate court independently determines whether substantial evidence supports the SBP's findings, not the trial court's conclusions." (Ibid.)
We review challenges to the sufficiency of the evidence in support of SPB findings under the substantial evidence test. " 'Substantial evidence' is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. (Hosford v. State Personnel Bd. (1977) 74 Cal.App.3d 302, 307.) Such evidence must be reasonable, credible, and of solid value. (Kuhn v. Dept. of General Services (1994) 22 Cal.App.4th 1627, 1633.)" (California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584-585.) In applying the substantial evidence test, " '[w]e do not reweigh the evidence; we indulge all presumptions and resolve all conflicts in favor of the [B]oard's decision. Its findings come before us 'with a strong presumption as to their correctness and regularity.' [Citation.] We do not substitute our own judgment if [the Board's] decision ' " 'is one which could have been made by reasonable people. . . .' [Citation.]" ' " [Citations.]' " (Palmieri v. State Personnel Bd. (2018) 28 Cal.App.5th 845, 851, quoting California Youth Authority, supra, at p. 584.)
II
Sufficiency of the Evidence for Inexcusable Neglect Finding Relating
to the Marshall Case
In his summary of the arguments, Lyashenko asserts that the "SPB's finding of 'inexcusable neglect of duty' in the Marshall case is not supported by substantial evidence . . . ." In his argument section, Lyashenko elaborates that "[t]he record 'as a whole' demonstrates that the inquiry that ultimately led to Officer Lyashenko's dismissal was initiated by a newly admitted lawyer with minimal prosecutorial experience who had been handed the Marshall file for no more than a month before trial." The argument is devoid of merit.
A.
False Report and False Testimony
At the outset, we note Lyashenko's assumptions are not supported by the record. The administrative law judge found the evidence did not prove when Deputy District Attorney Vielman-Reeves was assigned to the Marshall case - let alone handed the case file. And no finding was made by the administrative law judge regarding when the deputy district attorney was admitted to the bar or the level of her prosecutorial experience when assigned the Marshall case.
Lyashenko now attempts to prove Deputy District Attorney Vielman-Reeves's inexperience by requesting judicial notice of her California state bar number. We decline to take judicial notice of the bar number because Lyashenko did not file a separate motion for judicial notice as required by California Rules of Court, rule 8.252(a). We also deny the request for judicial notice because the matter requested to be noticed is irrelevant to the question of whether substantial evidence supports the SPB's finding that Lyashenko engaged in an inexcusable neglect of duty in the Marshall case. On review, we "may decline to take judicial notice of matters that are not relevant to dispositive issues on appeal." (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)
On the question of inexcusable neglect of duty, Lyashenko does not deny he provided a false second supplemental report and that he testified falsely at trial. Even if the prosecutor in the Marshall case had been inexperienced, that fact would not excuse Lyashenko's false testimony. And Lyashenko does not acknowledge he prepared the second supplemental report in response to a memorandum drafted by Deputy District Attorney Rutherford. Deputy District Attorney Vielman-Reeves merely followed up on the request already made by Deputy District Attorney Rutherford. Lyashenko does not contend Deputy District Attorney Rutherford was inexperienced or that the district attorney's office did not have the prerogative to ask him to contact the witnesses to Marshall's case.
Lyashenko's substantial evidence argument does not contest the findings of fact regarding the Marshall case. He acknowledges that during the hearing he "admitted to errors in the investigations." Instead, Lyashenko's argument is premised on his assertion that his errors were "the type of error [that], while it may serve as a ground of some level of discipline, could not reasonabl[y] be said to support the penalty of dismissal from employment." This is not a challenge to the sufficiency of the evidence. We conclude the evidence was sufficient to support the SPB's finding Lyashenko engaged in an inexcusable neglect of duty in the Marshall matter.
B.
Standard for Determining Inexcusable Neglect
Lyashenko argues the administrative law judge erred by using the ordinary negligence standard for inexcusable neglect. Lyashenko asserts the administrative law judge erred in determining he " 'should have' recognized that his lack of sleep would affect his report and testimony and 'should have' notified [Vielman-Reeves]." We reject the arguments.
The SPB employed the correct standard. The decision of the administrative law judge, which was adopted by the SPB, states: "Inexcusable neglect of duty has been defined to mean an intentional or grossly negligent failure to exercise due diligence in the performance of a known official duty." The SPB defines "inexcusable neglect of duty" under Government Code section 19572, subdivision (d), as "to include 'an intentional or grossly negligent failure to exercise due diligence in the performance of a known official duty.' " (In the Matter of the Appeal by Jack H. Tolchin (1996) SPB Case No. 96-04, April 1-2, 1996, at p. 11 <http://www.spb.ca.gov/content/precedential/tolchin.pdf> [as of March 9, 2020], archived at <https://perma.cc/KE2R-HZS2>; accord Gubser v. Department of Employment (1969) 271 Cal.App.2d 240, 242.)
The SPB also properly recognized CHP officers must prepare accurate reports and testify in court with honesty and credibility. " 'A [law enforcement officer's] job is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper performance of an officer's duties. Dishonesty is incompatible with the public trust.' [Citation.] Dishonesty is not an isolated act; it is more a continuing trait of character. False statements, misrepresentations and omissions of material facts in internal investigations, if repeated, would result in continued harm to the public service." (Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 721.)
Here, Lyashenko provided both a false written report and false in-court testimony. As a consequence, the San Mateo County District Attorney's Office placed him on the Brady list for the false evidence. (Brady v. Maryland (1963) 373 U.S. 82 (Brady).) Lyashenko does not challenge the propriety of his inclusion on the district attorney's Brady list. False reports and false testimony support findings of inexcusable neglect of duty by a law enforcement officer. In Paulino v. Civil Service Com. (1985) 175 Cal.App.3d 962, the Court of Appeal upheld the termination of a law enforcement officer for submitting false reports regarding sick leave usage. (Id. at pp. 969, 972.) As the Paulino court observed, "False statements, misrepresentations and omissions of material facts in official reports, if repeated, were likely to result in harm to the public service." (Id. at p. 972.)
We conclude the SPB did not misapply the standard for inexcusable neglect of duty.
III
Sufficiency of the Evidence for Intentional Concealment of the Traffic Stop Video
in the Rodriguez Case
Lyashenko next argues insufficient evidence supports the SPB's finding that he intentionally concealed the existence of the partial video recording showing the traffic stop of Rodriguez. Specifically, he argues that "[g]iven the extent of the evidence" against Rodriguez without the video recording, "it is more than reasonable to conclude the limited MVARS recording would not be of assistance to prosecutors." He further argues that "he was obviously not trying to hide the fact that MVARS was activated and that a recording existed" because "he knew that it would be booked by Officer Johnson at the end of the shift . . . ." We reject the argument.
When interviewed during the CHP's investigation, Lyashenko acknowledged it was "vitally important" to establish probable cause for the traffic stop of Rodriguez and the MVARS could establish grounds for the stop. When asked if a reasonable officer would have turned off the MVARS in a "normal situation," Lyashenko responded he did not want legal counsel for Rodriguez to hear a conversation with him seeking advice from Officer Johnson.
At the SPB hearing, Lyashenko testified he knew the MVARS recorded the events from the time the emergency lights activated until the time he turned the system off. This included Rodriguez driving at a high rate of speed, Lyashenko effected the traffic stop, and Lyashenko's first contact with Rodriguez. Lyashenko knew Officer Johnson would book the partial recording at the conclusion of their shift. Lyashenko did not indicate anywhere in his report that he had mistakenly turned the MVARS off. Instead, as the administrative law judge noted, "He just checked no and left it that way." Deputy District Attorney Vielman-Reeves learned about the recording only by directly asking Lyashenko whether a MVARS recording existed.
Based on the evidence and testimony at the hearing, the administrative law judge found Lyashenko "knew that he had made an error and willfully tried to cover up his error by excluding pertinent information from the DUI Investigation." In making this finding, the administrative law judge further found Lyashenko's "testimony on this issue [of failure to report the existence of partial MVARS] is deemed not credible." Lyashenko asks us to reverse this credibility determination.
We decline the invitation to second-guess the administrative law judge's credibility determination. "Credibility, or lack thereof, is for the factfinder, not the reviewing court, to determine. . . . 'On the cold record a witness may be clear, concise, direct, unimpeached, uncontradicted - but on a face to face evaluation, so exude insincerity as to render his [or her] credibility factor nil. Another witness may fumble, bumble, be unsure, uncertain, contradict himself [or herself], and on the basis of a written transcript be hardly worthy of belief. But one who sees, hears and observes him [or her] may be convinced of his [or her] honesty, his [or her] integrity, his [or her] reliability.' (Meiner v. Ford Motor Co. (1971) 17 Cal.App.3d 127, 140.)" (Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 877-878.)
The administrative law judge's determination Lyashenko was not credible in his denial of intentionally concealing the existence of the MVARS is entitled to deference. The record does not show the credibility determination is impossible to reconcile with the testimony. To the contrary, the evidence showed Lyashenko knew the MVARS recording would be important in proving probable cause to stop Rodriguez. And Lyashenko admitted he turned off the camera to keep evidence of a conversation with Officer Johnson out of the hands of defense counsel. Although Lyashenko remained aware of the existence of the partial recording, he did not mention it to anyone until he was directly asked about it by the deputy district attorney who was prosecuting Rodriguez. We discern no ground for disturbing the administrative law judge's credibility determination.
We reject Lyashenko's assertion he could not have intentionally concealed the partial recording because he knew Officer Johnson would book the recording at the end of their shift. Lyashenko's intentional concealment of the MVARS recording would not have come to light unless the deputy district attorney prosecuting the Rodriguez case had directly asked about the existence of the recording. By checking, "no" in the box corresponding to the existence of a MVARS recording, Lyashenko made its discovery less likely. Indeed, his concealment almost escaped notice. Moreover, the intent to conceal evidence does not require a perceived probability of success. Instead, the intentional concealment required only action with the purpose to hide. Nothing in the record requires us to reverse the administrative law judge's credibility determination on this issue.
IV
Sufficiency of the Evidence for Other Failure of Good Behavior in Marshall
and Rodriguez
Lyashenko also challenges the sufficiency of the SPB's finding he engaged in "other failure of good behavior" causing discredit to the CHP. He argues that "the finding of other failure of good behavior that could harm the public service is not supported by substantial evidence." We disagree.
The SPB's determination Lyashenko engaged in "other failure of good behavior" related to the same misconduct in the Marshall and Rodriguez cases that served as the basis for the inexcusable neglect and dishonesty charges. The SPB's decision states Lyashenko's "misconduct constitutes other failure of good behavior. [Lyashenko] failed in his duty to prepare accurate written reports; [he] failed in his duty to provide credible testimony in court; and worse, [Lyashenko] willfully omitted pertinent information from a DUI Investigation Report to cover up his own error." As we have explained in parts II and III, above, the SPB's findings regarding Lyashenko's inexcusable neglect of duty in the Marshall case and dishonesty in the Rodriguez case are supported by substantial evidence.
Lyashenko attempts to minimize his false report and false testimony in the Marshall case as consisting of "[one] sentence in a supplemental report and the answer to one question on the stand." We are not persuaded. Lyashenko's report and testimony gave the trier of fact a misleading impression he had been diligent in contacting all of the fire/paramedic witnesses and they could not recall who the driver of the vehicle had been. This false testimony deprived the prosecution of important incriminating evidence: the fire chief's specific recollection that Marshall had been the driver. Conversely, it might have deprived the defense of potentially exculpatory evidence if any of the other fire/paramedic personnel had different recollections. Lyashenko's errors were not trivial.
Lyashenko does not challenge his dishonesty in the Rodriguez case as inconsistent with a finding that he engaged in other failure of good behavior. Intentional dishonesty in filling out a DUI Investigation report amply supports a charge of "[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." (Gov. Code, § 19572, subd. (t).) Consequently, his conduct in the Marshall and Rodriguez cases supports the finding of other failure of good behavior.
V
Termination of Employment
Lyashenko argues his termination of employment from the CHP constituted an unjustifiably harsh penalty for his conduct. The lynchpin of his argument is that termination is not warranted because his dishonesty in the Rodriguez case is both "the sole finding justifying dismissal" and unsupported by substantial evidence. We disagree.
In arguing the inexcusable neglect finding relating to the Marshall case did not by itself merit termination, Lyashenko points out that the SPB recognized: "Peace officers are human and momentary performance deficiencies are bound to happen." However, Lyashenko omits the very next sentence in which the SPB stated: "But [his] deliberate omission of the existence of a partial MVARS in order to cover up his own error is not a momentary performance deficiency; rather, [Lyashenko's] conduct speaks to [his] character." In other words, the SPB's recognition of the fallibilities of humans did not relate to the Marshall case. Instead, it related to the Rodriguez case. And it related to the Rodriguez case to point out that Lyashenko's deliberate dishonesty was very different from the sort of momentary lapse that might be excused.
The SPB's recognition of human shortcomings also did not indicate Lyashenko's inexcusable neglect of duty in the Marshall case alone would have been insufficient to justify termination. We do not need to consider the question of whether his conduct in the Marshall case by itself supported the SPB's penalty because we have concluded substantial evidence supports the finding of Lyashenko's intentional dishonesty in the Rodriguez case.
Lyashenko asserts he would have learned from and not repeated his mistakes. On this point, the administrative law judge who conducted the hearing and was able to observe Lyashenko's demeanor found: "At the hearing, [Lyashenko] never fully acknowledged that his intentional omission of the MVARS recording was a willful exclusion of a pertinent fact. This strongly suggests a significant likelihood of recurrence. His lack of awareness of his own actions weighs in favor of a substantial penalty." This factual finding regarding Lyashenko's lack of acknowledgement of his dishonesty is entitled to deference. (Palmieri v. State Personnel Bd., supra, 28 Cal.App.5th at p. 851.)
In making these arguments, Lyashenko has the burden of demonstrating the SPB abused its discretion in determining termination was the appropriate penalty. "As a general matter, the penalty determination in a disciplinary proceeding will not be disturbed absent a manifest abuse of discretion. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217.) 'The discretion exercised by the administrative body must be an impartial one taking into account all relevant facts, together with legal principles essential to an informed and just decision. However, even were the penalty to appear harsh to us, still we would not be free to substitute our discretion for that of the administrative body. . . . The fact that reasonable minds might differ as to the propriety of the penalty imposed fortifies the conclusion that the administrative body acted within its discretion.' (Shea v. Bd. of Medical Examiners (1978) 81 Cal.App.3d 564, 579, citations omitted.) [¶] In determining the appropriate discipline, 'the overriding consideration . . . 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.' (Skelly v. State Personnel Bd., supra, 15 Cal.3d at p. 218.)" (Gonzalez v. State Personnel Bd. (1995) 33 Cal.App.4th 422, 428-429.)
We conclude the SPB did not abuse it discretion in determining termination was the appropriate penalty. This case involves an intentionally dishonest act by a law enforcement officer on a matter directly related to a core function of the job, namely the accurate recording of potential violations of the law. Dishonesty by a law enforcement officer constitutes sufficient cause to warrant termination of employment. (Cate v. State Personnel Bd. (2012) 204 Cal.App.4th 270, 285 [collecting authority].) Moreover, in this case the administrative law judge found "a significant likelihood of recurrence" because Lyashenko "never fully acknowledged that his intentional omission of the MVARS recording was a willful exclusion of a pertinent fact." The administrative law judge further found Lyashenko failed to correct his inadvertent errors in the Marshall case. Lyashenko's performance caused the CHP to lose confidence in his trustworthiness. As the SPB noted, "[a]ny further recurrence of [Lyashenko's] conduct could result in much graver consequences, as well as further discredit to [him] and to [the CHP]." With these findings, termination of employment was not an abuse of discretion.
Just as we do not substitute our discretion for that of the SPB, we also do not allow the CHP's earlier penalty recommendation to substitute for the SPB's penalty determination. Thus, we reject Lyashenko's argument that the penalty of termination was unduly harsh because the CHP's initial inquiry in this matter recommended only a 30-day suspension. The outcome of CHP's initial investigation is not binding on the SPB. The SPB has broad discretion to select the appropriate remedy for public employee misconduct. (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 230; Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 404.) Based on the record, we determine the SPB acted within its discretion by dismissing Lyashenko from his employment with CHP.
DISPOSITION
The judgment is affirmed. The California Highway Patrol shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/s/_________
HOCH, J. We concur: /s/_________
DUARTE, Acting P.J. /s/_________
RENNER, J.