Opinion
B229380
08-17-2011
MICHAEL R. SCHWENGLER, JR., Petitioner and Appellant, v. STATE PERSONNEL BOARD, STATE OF CALIFORNIA, Defendant and Respondent, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, PERSONNEL OFFICER, Real Party in Interest.
Michael R. Schwengler, Jr., in pro. per., for Petitioner and Appellant. No appearance for Respondent. Rose E. Mohan, Assistant Chief Counsel and Stephen A. Jennings, Staff Counsel IV, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BS122890)
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert O'Brien, Judge. Affirmed.
Michael R. Schwengler, Jr., in pro. per., for Petitioner and Appellant.
No appearance for Respondent.
Rose E. Mohan, Assistant Chief Counsel and Stephen A. Jennings, Staff Counsel IV, for Real Party in Interest.
Real Party in Interest, the California Department of Corrections and Rehabilitation (the Department) terminated appellant Michael Schwengler, Jr., from his position as Parole Agent One for various acts of misconduct, including improperly supervising a female parolee, V.A. Appellant alleges that he requested a Skelly hearing to challenge the charges but did not receive one. He then appealed to the State Personnel Board (the Board), arguing that the allegations were not supported by substantial evidence and that the Department's failure to grant him a Skelly hearing denied him due process. At a hearing before the administrative law judge (ALJ), appellant raised the Skelly claim. The ALJ declined to rule on the claim until she received evidence to support it. Appellant never produced evidence of the violation and did not raise the matter again during the remainder of the administrative proceeding. The Board sustained the Department's decision, and appellant filed a petition for a writ of mandate, pursuant to Code of Civil Procedure sections 1085 and 1094.5. His petition was denied. On appeal he argues that the Board's decision was not supported by substantial evidence. He also argues that the Department's refusal to grant him a Skelly hearing and the ALJ's failure to rule on his claim of error denied him due process. We do not agree, and affirm.
Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly).
FACTUAL AND PROCEDURAL SUMMARY
Appellant was employed by the Department beginning in 1999. He became a parole agent in 2003, and in 2006, was transferred to the Huntington Park Five Parole Unit. From May to July 2006, appellant was assigned to V.A., a female parolee with substance abuse issues.
On June 18, 2007, the Department notified appellant that it was terminating him, pursuant to Government Code section 19574. Appellant was charged with committing acts of misconduct between March and July 2006, constituting either inexcusable neglect of duty, dishonesty or misuse of state property, in violation of section 19572, subdivisions (d), (f), and (p), respectively. The specific acts of misconduct included, but were not limited to: failing to conduct required face-to-face interviews with parolees in more than 50 cases, failing to conduct or document required drug testing on 50 cases, failing to alert his supervisor of parolee violations on 16 different occasions, falsely documenting drug tests or face-to-face interviews that did not occur, falsely reporting overtime hours, misusing state overnight mail services for personal use, and misusing state issued fuel credit cards for personal use.
Government Code section 19574, subdivision (a), provides: "The appointing power, or its authorized representative, may take adverse action against an employee for one or more of the causes for discipline specified in this article. Adverse action is valid only if a written notice is served on the employee prior to the effective date of the action, as defined by board rule."
All statutory references are to the Government Code, unless otherwise indicated.
Appellant also was charged with "other failure of good behavior . . . of such a nature that it causes discredit to the appointing authority or the person's employment," in violation of section 19572, subdivision (t). It was alleged that he improperly supervised female parolee V.A. by calling her 283 times in a 69-day period of supervision, disclosing personal information, making inappropriate remarks to her and abusing his authority.
The termination was effective as of June 26, 2007. The notice of charges further stated that "[i]n accordance with State Personnel Board Rule 52.3 (Skelly rule) [appellant is] entitled to at least five (5) working days within which to respond to this notice."
Appellant appealed to the Board. Hearings before the ALJ began on December 18, 2007 and ran through January 21, 2009. At the second hearing, appellant's counsel alleged that appellant received the notice of adverse action on June 20, 2007, called the Department requesting a Skelly hearing to challenge the charges, but never received one. The ALJ stated three times that she would need evidence of the violation before she ruled on appellant's motion, and appellant's counsel acknowledged her position.
V.A. testified that in May 2006, she began living at New Way of Life Reentry Project (New Way), a sober living residential facility focused on helping women transition into society when released from prison or jail. Upon arriving, V.A. was assigned to appellant as her new parole agent. She testified that appellant called her regularly, sometimes 15 times in one day. The Department's phone records demonstrated that over a 69-day period, appellant made 283 calls to the resident's telephone number at New Way. Of the 283 calls, 202 were made during off-duty hours. V.A. testified that appellant would comment on her breasts, attempted to solicit sex, offered to take her on trips and support her children, and offered to pay her rent at New Way in exchange for sex.
Respondent denied all of V.A.'s accusations. He testified that he called her often because he could not reach her, and believed that the other residents at New Way who often answered the telephone were purposefully obstructing access to her. He further testified that he called other parolees as often, and that he gave V.A. a great amount of attention because he believed she had potential to turn her life around. Appellant admitted that he did not make any notes of the 283 telephone calls he made to her, and did not document or report V.A.'s failure to return his calls.
On May 28, 2009, the ALJ issued a proposed decision, sustaining the Department's decision to dismiss appellant. The ALJ found "[a]ppellant's explanation for the manner in which he monitored [V.A.] is not credible." In contrast, the ALJ found V.A.'s testimony to be credible, stating: "It is understood that she is a convicted felon, but nothing in her demeanor, or the quality of her testimony warrants discounting it." Accordingly, "[w]hether he was interested in sex, or in managing and controlling [V.A.'s] life, [a]ppellant's behavior was overly familiar, intrusive, and beyond the limits of acceptable behavior from a Parole Agent." The ALJ found that his conduct was "unworthy of the office and brought discredit to the entire parole operation," in violation of section 19572, subdivision (t).
In respect to the other charges, the ALJ found that appellant displayed an inexcusable neglect of duty in violation of section 19572, subdivision (d). The Department did not establish the specific acts of false documentation constituting dishonest conduct. Finally, while the Department established that appellant used the state's overnight mail carrier for personal use in violation of section 19572, subdivision (p), the evidence was insufficient to support the allegation that appellant misused his state issued fuel credit card.
On June 23, 2009, the Board adopted the ALJ's proposed decision. On September 23, 2009, appellant filed a mandate petition, pursuant to Code of Civil Procedure sections 1085 and 1094.5, seeking damages and to have the Board's decision vacated on the grounds that it was not supported by substantial evidence. Appellant also argued that the Department's failure to grant him a Skelly hearing, and the ALJ's failure to rule on the claim of error, denied him due process.
The trial court denied the petition, finding substantial evidence to support the Board's decision. The court agreed with the ALJ that appellant was less credible than V.A., noting that there was no evidence in the record that V.A.'s parolee status necessitated such frequent contact by appellant. Therefore his "stated rationale for contacting [V.A.] as often as he did simply does not hold water." The court also rejected his Skelly argument, finding that he "failed to exhaust his administrative remedies" by not producing any evidence of the alleged violation. This timely appeal followed.
DISCUSSION
I
Appellant argues the ALJ's decision was not supported by substantial evidence. We do not agree.
Appellant does not challenge the specific findings of inexcusable neglect of duty and misuse of state property. Accordingly, we do not discuss the evidence concerning those charges in detail.
As a preliminary matter, appellant's opening brief does not contain a statement of facts. Appellant's failure to include a full statement of facts may be regarded as a forfeiture of his evidentiary claims. (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290-291; Foreman & Clarh Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Nonetheless, we shall discuss these claims on the merits.
Code of Civil Procedure section 1094.5, subdivision (b), provides that the inquiry of the administrative mandamus proceeding is "whether the respondent 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 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."
Specifically, "'[t]he State Personnel Board is an agency with adjudicatory powers created by the California Constitution.' [Citation.] As such the Board acts much as a trial court would in an ordinary judicial proceeding. Thus, the Board makes factual findings and exercises discretion on matters within its jurisdiction. On review the decisions of the Board are entitled to judicial deference. The record must be viewed in a light most favorable to the decision . . . and its factual findings must be upheld if they are supported by substantial evidence. [Citation.]'" (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 823.) Substantial evidence is relevant, reasonable, and credible evidence that a reasonable mind might accept as adequate to support a conclusion. (California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584-585.) "Our scope of review on appeal from such a judgment is identical to that of the trial court." (Id. at p. 584.)
V.A. was a convicted felon with substance abuse issues. She was classified as a control service parolee, an intermediate level between minimum supervision and high control. V.A. was under appellant's supervision for 69 days, between May and July 2006. She testified that appellant called her frequently at New Way, sometimes up to 15 calls in a day. The Department's phone records demonstrated that over the 69-day period, appellant made 283 calls to the resident's telephone number at New Way. Of the 283 calls, 202 were made during off-duty hours. This did not include any calls made from his personal cell phone, which appellant admitted he used to call his parolees. V.A. testified that she visited him in his office roughly three times a month. Appellant visited her three times at New Way, although she was informed by the other residents or staff that he had shown up several times when she was not there.
Appellant's supervisor in 2006, Joseph Martinez, testified that the size of a parole agent's caseload is measured by a point system, in which each parolee is given a classification based upon the degree of supervision required. Different classifications carry different point values. High control cases are generally worth three points, control service cases two points, and minimum supervision cases generally worth one point. Martinez testified that a standard workload for a Parole Agent One was a 154-point caseload.
V.A. testified that throughout her time with appellant he continuously displayed improper behavior, including commenting on her breasts, mentioning sex toys, offering to take her on a trip, offering to provide for her children if she moved closer to him, and offering to pay her rent if she had sex with him. V.A. admitted that she was often notified by staff or other residents that appellant had called her, but she did not return most of the calls because he would talk about her breasts and his sexual fantasies.
V.A. also testified that she began working at a café in June 2006 but was terminated a month later due to tardiness. She held appellant partly responsible for this, stating that appellant would keep her in his office late, causing her to be late for work. She also testified that at one point appellant contacted the social worker on her child custody matter, Noreen Novak, and said that he did not believe she was ready to have her kids back. V.A. became upset and told him she did not want him involved in the custody matter. She testified that appellant came to the custody hearing and attempted to enter the courtroom but was denied entry because it was a closed hearing.
V.A. was transferred to another parole agent on July 28, 2006. Shortly thereafter, appellant telephoned her and asked if "anybody had recorded our conversations because I had a new, I was assigned a new agent. And he still had his same caseload . . . [a]nd . . . that didn't seem kind of normal, or if I told anybody about, you know, his behavior." Subsequently, in August 2006, state internal affairs agents asked her to wear a wire to tape record her communications with appellant. She refused, stating that she felt uncomfortable wearing a wire because she felt appellant already was suspicious that she had reported his behavior. Instead, at the request of internal affairs, she kept a notepad and documented her interactions with him, although she could not remember if she provided those notes to internal affairs. She testified that she never recorded any of the telephone conversations with appellant but that she would put him on speakerphone for other New Way residents to listen. She did not remember whether she disclosed this to internal affairs.
Susan Burton, executive director of New Way, also testified for the Department. Burton described appellant as aggressive and "agitated . . . with the whole relationship with [V.A.] or the agent, parolee relationship." She testified that he would call other residents threatening them in regards to V.A. She and the staff regularly answered calls from appellant, sometimes three times in a day, and the staff became concerned about the number of calls. In response to appellant's actions, Burton sent a complaint letter to the head of women's programming with the Department.
On cross-examination, Burton stated that she was not aware that appellant was having difficulty reaching V.A., and said that he never informed her of his difficulty. She testified that she was interviewed by internal affairs in August 2006 in respect to appellant's alleged behavior, but did not tell internal affairs that the staff was alarmed with appellant's behavior. She acknowledged not confronting appellant about his behavior, explaining that she did not want to "agitate" the person who exerted authority over V.A.
Appellant testified that he was assigned to the Huntington Park Five Parole Unit in 2006. Upon his arrival, he was assigned a 300-point caseload, well above the standard 154-point caseload for a Parole Agent One. The files were very disorganized and he spent a large amount of time trying to put them in order. Some files were impossible to fix. Appellant was overwhelmed by the workload, but was told by his supervisor at the time, Tony Castro, to do as much as he could.
As to his supervision of V.A., appellant denied making sexual advances and discussing their personal relationship. He also denied making comments about her breasts. Rather, he testified that he admonished her for dressing inappropriately during their first meeting in his office, which was corroborated by the stipulated testimony of a parole agent who was appellant's officemate in May 2006. Appellant denied asking V.A. to come to his office after she had been transferred to another agent in late July 2006, and denied asking her if she reported his behavior to anyone. He did not deny calling V.A. over 200 times in the 69-day period, but stated that he has called other parolees hundreds of times over a similar length of time. He testified that he called repeatedly because he believed the other residents at the facility hung up the phone and put him on hold in order to prevent him from reaching V.A. Appellant admitted that he did not make any notes of the 283 phone calls he made to her, and did not document or report V.A.'s failure to return his calls.
Appellant testified that his son was in a bad accident on July 6, and admitted to calling V.A. four times on that day. The ALJ asked him why he would call her four times, including a 38-minute conversation at 11:00 p.m., on the day his son was involved in a serious accident. Appellant responded that he was checking on her whereabouts and that he could only reach her at night. The ALJ then noted that, according to Department records, appellant made three telephone calls to V.A. on June 11, each lasting at least 25 minutes. The ALJ asked whether, given his heavy caseload, "that was an appropriate use of your time on this [control service] case?" Appellant stated it was because he believed V.A. was in danger of relapsing and he thought he could help her.
In regards to V.A.'s child custody matter, appellant testified that he was called by social worker Novak, who asked him if he felt V.A. was ready to regain custody of her children, to which he responded in the negative. On the day of V.A.'s child custody hearing, appellant was scheduled to be at court for another matter. He met social worker Novak who requested that he give a statement about V.A.'s parole progress. He made a statement in an office room, not on the stand, and did not attempt to enter the proceeding or contact a judge. Social worker Novak confirmed that she frequently spoke to appellant over the phone about V.A.'s progress and whether she was ready to reunify with her children. Appellant was professional and did not seem to have an excessive interest in V.A. She testified meeting appellant at a child custody hearing, at which he told her he was there for another matter. She did not witness appellant attempt to interrupt or interfere with the proceeding.
The ALJ found appellant's testimony not credible. In particular, the ALJ noted that V.A.'s "status was not 'High Control' and her behavior, and compliance with the strict rules of her sober-living house, constituted evidence that she did not need to be micromanaged." The judge further found that by his own admission, appellant had insufficient time to manage his heavy caseload, "and yet, he spent an inordinate amount of time calling [V.A.], calling the office at her residence, and calling her social worker. Moreover, he spent additional time with [V.A.], ordering her to the parole office more times than required by her parole status, when he visited her home more times than required by law, when he drove her home, and when he went to her child custody hearing." Noting that appellant claimed he was simply concerned with V.A.'s progress, the ALJ held that "[g]iven [his] need to get [his] files in order, his constant need to stay in contact with [V.A.] cannot be explained away as a Parole Agent concerned about the well-being of his parolee. If the contacts were indeed legitimate, [a]ppellant would have documented them in his record of supervision, something he failed to do." Thus, the ALJ concluded that "[a]ppellant's explanation of his many inconsistent and contradictory actions is not credited."
The ALJ found that V.A.'s testimony was "fundamentally credible," despite her criminal history. She continued: "Appellant's argument that [V.A.] was upset and vindictive, because of [a]ppellant's appearance at her child custody hearing is not supported by the record. [V.A.] was upset, but it was in response to the way in which [a]ppellant was insinuating himself into her life. There is no evidence that she was vindictive or that she was the one who initiated the complaints to [r]espondent about [a]ppellant's intrusive behavior."
Substantial evidence supports the ALJ's conclusion that V.A. was a more credible witness than appellant. Both the ALJ and the trial court emphasized that there was no evidence that V.A. was classified as a "High Control" parolee, which would warrant a greater level of supervision. Nor, as the trial court noted, did she have "any other status necessitating [appellant] contact her as relentlessly as he did." The record demonstrates that V.A. was a control service parolee, an intermediate level between minimum supervision and high control. Appellant argues that V.A. was a "high profile" parolee that required extra attention. He cites CSW Novak's testimony in support of his factual assertion. In respect to V.A.'s child custody matter, appellant's counsel asked CSW Novak whether "[V.A.'s] parole issues and her status on parole [were] part of the reason why it was a high profile case?" CSW Novak responded: "Yes, you could say that. Mostly a case that came to the Department through . . . a meth lab explosion . . . in which [V.A.'s sister's] child died." CSW Novak was speaking in terms of V.A.'s child custody matter, and not testifying as to her parole status level. Nothing else in the record, including appellant's own testimony, demonstrates that V.A. was a high control parolee who required heightened supervision. Accordingly, the record supports the ALJ's conclusion that appellant's explanation for his close monitoring of V.A. was not credible.
The record also supports the ALJ's conclusion that "[i]f the contacts were indeed legitimate, [a]ppellant would have documented them in his record of supervision, something he failed to do." Appellant's acting supervisor in the summer of 2006, Castro, testified that if a parole agent cannot get in touch with a parolee he or she is instructed to file a parolee at large report. Castro never witnessed a parole agent have as much contact with a single parolee over as short a period of time as appellant had with V.A. Appellant admitted that he did not make any notes of the 283 phone calls he made to her, and did not document or report V.A.'s failure to return his calls.
On the other hand, V.A.'s testimony was corroborated by Burton who sent a complaint to the Department concerning appellant's aggressive behavior. V.A.'s account also was confirmed by a worker at New Way, who testified that appellant was aggressive in his monitoring of V.A., would sometimes call 10 times in a day, and came to the residence more frequently than the average parole officer. The worker further testified that she sat in a meeting with internal affairs and V.A. in which V.A. complained of appellant's excessive attention.
Appellant makes several specific arguments as to why the ALJ's credibility determinations were not supported by substantial evidence. He argues that V.A.'s credibility was undermined by her refusal in August 2007 to wear a wire in order to capture his behavior on tape. However, he does not mention that V.A. testified on cross-examination that before she was asked to wear a wire, appellant called her and asked her whether she had recorded their conversations and reported him to his superiors. Appellant then threatened to report she had violated parole violation if she reported him. V.A. believed appellant already suspected that she was disclosing his behavior, and therefore, she felt uncomfortable wearing a wire.
Appellant also asserts that Burton's credibility was undermined by her criminal history. No evidence of her criminal history was presented at the hearing, including her cross-examination by appellant. Appellant's factual accusations are not supported by the record, and we do not consider them. (See Dominguez v. Financial Indeminity Co. (2010) 183 Cal.App.4th 388, 392, fn. 2; see also Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826-827, fn. 1.) Appellant also argues that the ALJ erred in not inquiring into Susan Burton's alleged criminal history when evaluating her credibility. It is not the ALJ's duty to cross-examine witnesses for appellant.
Finally, appellant argues the ALJ erred in not considering the testimony of appellant's former parolee, Regina Granado, who testified that appellant aggressively monitored her and performed random visits and phone calls day and night. She testified that he never said anything inappropriate to her, and she credited him for her sobriety. Although the ALJ does not reference Granado's testimony in her proposed decision, this omission does not warrant a reversal as there is substantial, credible and reliable evidence in support of the ALJ's findings.
In respect to the charges of inexcusable neglect of duty and misuse of state property, appellant does not challenge the evidentiary support for the specific findings of misconduct. Instead, he simply claims there was a conspiracy to terminate him arising out of a dispute with a Department administrator over the issuance of a state vehicle to appellant. He argues that he was given an unmanageable caseload in retaliation, but provides no citation to the record supporting these assertions. Appellant asserts, also without evidentiary support, that the supervisor who ordered the caseload audit targeted employees she wanted removed from the Department. He contends that she was successfully sued for falsely accusing employees of misconduct. He asks us to take judicial notice of that case. We decline to do so, because, as stated above, our review of the ALJ's credibility determination is confined to the record. Nothing in the record discusses the supervisor's credibility. She testified at the hearing but appellant's counsel declined to cross-examine her. Appellant had the opportunity to inquire into her credibility but did not do so.
II
Appellant argues the Department failed to provide him with a Skelly hearing and that the ALJ erred in not ruling on his claim of error, denying him due process. We find that appellant forfeited the issue.
Permanent civil service employees have a property interest in continued employment that is protected by due process. (Skelly, supra, 15 Cal.3d at p. 207; see also Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 131, fn. 2.) Accordingly, before a civil service employee is discharged, the employee is entitled to "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.) However, failure to raise an argument in the administrative proceeding or in the trial court forfeits it on appeal. (Owen v. Sands (2009) 176 Cal.App.4th 985, 995.) This is especially true when the argument contains factual elements which must be both pleaded and proved in the lower court. (See Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 530 [appellant challenging denial of writ forfeited estoppel argument by failing to raise it with trial court].)
In his opening brief to the Board challenging his termination, appellant stated that he received notice of the dismissal on June 20, 2007 and was seeking a "dismissal of all charges for violation of due process pursuant to [Skelly]." At the second hearing in front of the ALJ, counsel for appellant argued that appellant was denied due process because he never received his requested Skelly hearing. Counsel alleged the following: appellant was served with the notice of adverse action on June 20, 2007, which notified him he had at least five working days to respond to the charges. On June 27, the fifth working day after June 20, appellant called the Department and asked to schedule a Skelly hearing. He was notified that he already had been terminated on June 26. He never received a Skelly hearing. The ALJ responded: "Well, that's something I would need evidence, have to take evidence during the course of the hearing with regard to a Skelly violation." Accordingly, the ALJ decided not to rule on the Skelly motion until she received evidence of the violation.
Appellant did not raise the Skelly issue at any other point in the administrative proceeding and did not address the violation in his closing brief to the Board. Outside of the allegations made by appellant's counsel at the second hearing, there is no evidence in the record of appellant's alleged request for a Skelly hearing and the Department's denial. The record shows that the ALJ stated three times that she would need evidence of the violation before ruling on the matter. Appellant's counsel acknowledged this, but failed to produce the evidence. Accordingly, there is no factual finding for us to review for substantial evidence. Even if we were to interpret the ALJ's inaction as a denial on the merits, thus preserving the argument on appeal (see Reid v. Google, Inc. (2010) 50 Cal.4th 512, 522-523), appellant's continued failure to produce any evidence of the Skelly violation precludes review of the ALJ's finding.
DISPOSITION
We affirm the judgment. Real Party in Interest to have its costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J. We concur: MANELLA, J. SUZUKAWA, J.