This court is considering this matter for the second time. We first considered it in Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027 (Seibert I). In Seibert I, this court reversed the first judgment of the trial court and remanded for further proceedings.
Time limits are usually deemed discretionary, not mandatory, unless the Legislature clearly expresses a contrary intent. (Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027, 1039.) Time limits are deemed mandatory when the statute prescribes a consequence or penalty for the failure to act within the prescribed time. (California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th at p. 1143.)
That Hill never intended for the relationship to become public is beside the point. (See Orlandi v. State Personnel Board (1968) 263 Cal.App.2d 32, 37 [traffic officer dismissed for “ ‘fixing' ” ticket; discipline could be imposed for “conduct which would reflect discredit on the employing agency or the position held by the person engaging in such conduct, regardless of whether publicized or not”]; cf. Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027, 1029, 1050 (Seibert) [reversing dismissal of firefighter-paramedic and remanding on several grounds, including that the department's disciplinary policies were not sufficiently specific to include sexting, but observing “[i]t may well be that indiscriminate exchanges of salacious messages with relative strangers on company time creates an undue risk of embarrassment or even scandal” to a department].) Finally, Hill asserts the trial court errored in ruling the city manager's final decision-the operative administrative decision-comported with the requirements of a Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506 (Topanga).
For essentially the same reason, PERS cannot show that the trial court failed to give the deference due to the Board's decision even on independent review. (See Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027, 1042-1043 (Seibert).) This also answers PERS's evident view that it is entitled to a reversal if it can demonstrate that any one of the trial court's written findings is infirm.
(People v. Sigal (1963) 221 Cal.App.2d 684, 704.) In Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027, 1064-1065, the appellate court noted sufficient foundation for accuracy of a transcript of an interview was laid pursuant to section 1237 when the declarant testified she believed the transcript was accurate and that “‘I have no reason to say why they wouldn't report it the way it was ... I don't remember the conversation, so this is all I have to go on.
First, she did not object to Lee's declaration in the trial court. (Evid. Code, § 353, subd. (a) ; Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027, 1057, 202 Cal.Rptr.3d 890.) Second, the argument consists of a conclusory assertion with no citation to legal authority and no identification of which statements amounted to improper legal conclusions.
In his appellate briefing, Onwuka identifies the general rule of independent judgment review that applies when a fundamental vested right is at issue, such as a petitioner's status as a public employee. (Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027, 1042 ["interest in . . . public employment status implicated a 'fundamental vested right.' "].) However, Onwuka fails to acknowledge that a different rule applies to a review of the SPB's decisions.
"'Discipline imposed on public employees affects their fundamental vested right in employment.'" (Ochoa v. County of Kern (2018) 22 Cal.App.5th 235, 245; accord, Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027, 1042 [an individual's "interest in his public employment status implicate[s] a 'fundamental vested right'"].) Accordingly, "the trial court was required to exercise its independent judgment in reviewing the Commission's findings.
Bush's interest in his public employment status implicated a fundamental vested right. (See, e.g., Melkonians v. Los Angeles County Civil Service Com. (2009) 174 Cal.App.4th 1159, 1167 (Melkonians) ["Discipline imposed on public employees affects their fundamental vested right in employment."]; Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027, 1042; Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658; Davis v. Los Angeles Unified School District Personnel Com. (2007) 152 Cal.App.4th 1122, 1130.) Therefore, had Bush been aggrieved by the administrative hearing officer's decision and filed a petition for a writ of mandate under section 1094.5, the trial court would have been required to exercise its independent judgment in reviewing the hearing officer's findings.
(People v. Sigal (1963) 221 Cal.App.2d 684, 704.) In Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027, 1064-1065, the appellate court noted sufficient foundation for accuracy of a transcript of an interview was laid pursuant to section 1237 when the declarant testified she believed the transcript was accurate and that " 'I have no reason to say why they wouldn't report it the way it was . . . I don't remember the conversation, so this is all I have to go on. Yes.