Opinion
A155953
05-28-2020
ELIZABETH TUCKWELL, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent; STATE DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest and Respondent.
ORDER MODIFYING OPINION, DENYING REHEARING, AND DENYING REQUESTS FOR PUBLICATION [NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on May 28, 2020, be modified as follows:
1. On page 11, top of the page, at the end of the carryover sentence that ends, "we cannot conclude the lapses in her memory rendered Tuckwell's administrative hearing unfair," add as footnote 5 the following footnote, which will require renumbering of all subsequent
5 Tuckwell filed a petition for rehearing in which she argues this court failed to consider whether the 2013 portion of Tuckwell's administrative hearing was unfair and, separately, whether the 2017 hearing provided her a
meaningful opportunity to be heard, including the opportunity to call witnesses with knowledge of the events, and to cross-examine and impeach the credibility of the witnesses against her. As Tuckwell acknowledges, however, the 2013 and 2017 proceedings were part of one administrative hearing that took place over ten days and "[t]he threshold question . . . is whether she received due process over those ten days." Although Tuckwell contends generally that "none of the key witnesses could remember the events in question" in 2017 and she was prevented from "effectively cross-examining or impeaching any DSS witnesses during 2013," she offers only one specific example from the 2013 hearing (in a footnote) regarding her attempt to impeach Darryl East with some documents from the Contreras matter. She does not explain why she did not attempt to examine him about the documents in 2017.
2. On page 12, in the last sentence of the first paragraph, the word "substantial" is to be inserted between the words "any" and "delay" so that the sentence reads:
While we agree with Tuckwell that the continuances sought after remand were relatively minor, the relevant consideration is that there is no evidence in the record that the SPB caused or contributed to any substantial delay in the proceedings.
Appellant's petition for rehearing is denied.
The request for publication filed by respondent State Department of Social Services is denied. The request for partial publication contained in the partial opposition to request for publication filed by appellant Elizabeth Tuckwell is denied.
There is no change in the judgment. Dated:
/s/_________
Margulies, Acting P. J.
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. (Alameda County Super. Ct. No. RG18888250)
Plaintiff Elizabeth Tuckwell appeals from a judgment denying her petition for writ of mandate after the State Personnel Board (SPB) upheld Tuckwell's dismissal from her employment as a staff attorney with the State Department of Social Services (DSS). Tuckwell asserts the hearing was unfair, the SPB decision is not supported by its findings, and its findings are not supported by substantial evidence. We affirm.
I. PROCEDURAL AND FACTUAL BACKGROUND
We summarize only those facts necessary to our decision on appeal. Additional facts are discussed in relevant sections of the analysis. A. Tuckwell's Position at the DSS
Tuckwell worked as a staff attorney for the DSS from 2003 until her termination in 2012. The DSS is charged with protecting vulnerable residents and clients of community care facilities, including children, teenagers, the elderly, and disabled adults by ensuring community care facilities are safe and comply with existing law. As a staff attorney, Tuckwell was responsible for enforcing DSS statutes and regulations and prosecuting cases involving the health and safety of children, the elderly, and dependent adults in community care facilities. Tuckwell represented the DSS at the Office of Administrative Hearings (OAH) and was required to competently prepare and present cases before administrative law judges. Her duties also included providing legal advice and recommendations to the Community Care Licensing Division (CCLD), a client of the DSS which oversees regulatory compliance and licensing of community care facilities; cooperating with the Attorney General's office, prosecutors, and law enforcement personnel; and occasionally responding to public inquiries. B. Notice of Adverse Action
Community care facilities include family day care homes, day care centers, foster and group homes, adult day care centers, and residential care facilities for disabled adults and the elderly.
In June 2012, the DSS filed a notice of adverse action (NOAA) with the SPB, dismissing Tuckwell from her position as staff counsel with the DSS. The NOAA alleged Tuckwell violated 10 "subsections" of Government Code section 19572, including: "(b) Incompetency; [¶] (c) Inefficiency; [¶] (d) Inexcusable neglect of duty; [¶] (e) Insubordination; [¶] (f) Dishonesty; [¶] (m) Discourteous treatment of the public or other employees; [¶] (o) Willful disobedience; [¶] (p) Misuse of state property; [¶] (r) Incompatible activity; and [¶] (t) Other 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." The charges of the NOAA were based primarily on allegations that Tuckwell (1) made "inappropriate, unethical, and unprofessional" comments to witnesses and DSS staff about testimony by DSS staff members in a pending adverse disciplinary action against her with the purpose to intimidate and chill their possible future testimony; (2) refused to answer certain questions, made discourteous comments, and gave evasive, dishonest responses to Charles de Cuir, an administrative law judge who was charged with investigating her conduct; (3) inappropriately directed an applicant for a family child care home license (Ms. Al-Bakari) to speak directly with the regional manager for the CCLD (Barbara Bobincheck) while her application was pending, insulted Bobincheck, inappropriately told the court the DSS was going to amend the accusation without having consulted with the CCLD (the client), and subsequently denied wanting to amend the accusation (hereafter the Al-Bakari matter); (4) directed a paralegal (Susanna Lacayo) to order an expensive transcript and subpoena a witness regarding an exemption matter that could have been proven with certified records of arrests and convictions (hereafter the Lopez matter); (5) sought direction from her supervisor (Darryl East) on a menial case management decision (hereafter the Shearer matter); and (6) made unprofessional comments to DSS staff and East. C. Administrative Hearing , Petition for Writ of Mandamus , and Appeal
Tuckwell appealed the decision of the DSS to terminate her employment and the case was set for hearing before the SPB in March 2013. Before the hearing, Tuckwell brought a petition to compel discovery from the DSS. On March 21, 2013, an administrative law judge (ALJ) issued an order denying Tuckwell's motion to compel discovery and limiting her presentation of evidence at the evidentiary hearing based on her failure to identify with sufficient specificity the documents she intended to offer in evidence.
The evidentiary hearing commenced on March 25, 2013. The next day, Tuckwell brought a petition for writ of mandamus in the trial court, challenging the ALJ's March 21, 2013 order denying her motion to compel discovery and limiting the evidence she could present at the hearing. Tuckwell also sought a stay of the discovery order. On March 29, the trial court stayed the administrative proceeding during the pendency of the court proceedings on the petition for writ of mandate. By that time, the DSS had presented its case-in-chief.
In September 2013, the trial court granted the petition for writ of mandamus in part, reversing the ALJ's decision on the limitation of evidence, but denying the petition as to the discovery ruling. A writ issued December 13, 2013, and the trial court remanded the case to the SPB. The SPB vacated its ruling limiting the evidence Tuckwell could present and referred the matter to the ALJ to conduct further proceedings.
Before the hearing could recommence, however, Tuckwell appealed the trial court's decision denying her discovery motion. Two years later, on January 13, 2016, Division Four of this court dismissed her appeal because it was from a nonappealable order and was untimely if construed as a writ. (Tuckwell v. State Personnel Board (Jan. 13, 2016, A140815) [nonpub. opn.].) D. Further Proceedings at the SPB and Decision
Following issuance of the remittitur, the SPB issued a resolution directing the ALJ to proceed in July 2016. In March 2016, Tuckwell filed a motion for delay in the SPB proceedings due to health concerns related to an injury. On August 2, 2016, the SPB set a case status conference for August 11, 2016. On August 5, 2016, Tuckwell filed a motion to continue the case status conference due to her counsel's vacation. The ALJ granted that request and rescheduled the case status conference for August 19, 2016. Tuckwell filed another request to continue the case status conference from the August 19 date, but the conference was instead rescheduled for from 9:00 a.m. to 1:00 p.m. on August 19, 2016, without objection from the DSS.
In January 2017, the evidentiary hearing recommenced. Over the course of five days, Tuckwell presented her defense and the parties gave their closing arguments.
The ALJ issued a 48-page proposed decision that included 56 specific findings of fact and seven and a half pages of credibility findings. The ALJ concluded the DSS had met its burden of proof as to all but one of the legal charges against Tuckwell and sustained the charges of incompetency, inefficiency, inexcusable neglect of duty, insubordination, dishonesty, discourteous treatment of the public or other employees, willful disobedience, incompatible activity, and other failure of good behavior either during or outside of duty hours, and upheld the decision to dismiss Tuckwell from her employment with the DSS. The SPB upheld the decision in its entirety in a resolution and order issued July 6, 2017. E. Petition for Writ of Mandate
The charge unsupported by the findings was misuse of state property.
Tuckwell filed a petition for writ of administrative mandate in the trial court, challenging the SPB decision. The trial court denied the petition.
The trial court first addressed Tuckwell's argument that the SPB proceedings denied her due process of law because of the lengthy delay between the ALJ's March 2013 and January 2017 hearings. The court found that "the mid-hearing delay was uncommonly long" but found "Tuckwell was more to blame for the delay," citing Tuckwell's initiation of the superior court case and subsequent appeal, as well as delays Tuckwell requested in 2016. The court noted the SPB was not responsible for any substantial delay. While acknowledging that Tuckwell "suffered some prejudice as a result of the delay" because "some witnesses could not remember some things when the SPB proceeding re-commenced," the court concluded the delay was not a denial of due process because ultimately Tuckwell "made strategic litigation decisions and is responsible for the indirect effects of her decisions."
The trial court further found the SPB credibility determinations and findings of fact were supported by substantial evidence, and its conclusions were supported by the factual findings. Finally, the trial court concluded the SPB did not abuse its discretion in upholding the penalty of dismissal.
Tuckwell timely appealed.
II. DISCUSSION
A. Standard of Review
On a petition for administrative mandamus, we determine whether the agency has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion by the agency. (Code Civ. Proc., § 1094.5, subd. (b); City of Hesperia v. Lake Arrowhead Community Services Dist. (2019) 37 Cal.App.5th 734, 748.) Abuse of discretion "is established if the respondent [agency] 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." (Code Civ. Proc., § 1094.5, subd. (b).)
The SPB is an agency of constitutional authority vested with quasi-judicial powers. (Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1125; Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487 (Telish).) As such, its decisions are reviewed only to determine whether substantial evidence supports its findings. (Coleman, at p. 1125; Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 742.)
The role of an appellate court in reviewing an SPB decision on a petition for writ of administrative mandamus is the same role as that of the trial court. (Department of Corrections & Rehabilitation v. State Personnel Bd. (2016) 247 Cal.App.4th 700, 707.) We apply the substantial evidence rule, examining "all relevant evidence in the entire record, considering both the evidence that supports the Board's decision and the evidence against it, in order to determine whether that decision is supported by substantial evidence." (Telish, supra, 234 Cal.App.4th at p. 1487.) "This does not mean, however, that a court is to reweigh the evidence; rather, all presumptions are indulged and conflicts resolved in favor of the Board's decision." (Ibid.) "Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, will a court conclude that the agency's findings are not supported by substantial evidence." (Do v. Regents of University of California (2013) 216 Cal.App.4th 1474, 1490.)
To the extent the appeal presents questions of law, our review is de novo. (Pollak v. State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1404.) B. Due Process
Tuckwell claims the ALJ made three procedural errors that made a fair hearing impossible. She also contends she was denied due process because the 46-month delay in the proceedings during her appeal of the March 21, 2013 discovery order caused witnesses' memories to fade, making cross-examination impossible. Tuckwell further asserts the superior court erred by "blaming" her for the delay between the 2013 hearing at which the DSS presented its case-in-chief, and the 2017 hearing at which Tuckwell presented her defense.
Throughout her opening brief, Tuckwell discusses the errors made by the ALJ in the decision. Because the SPB adopted the ALJ's decision in its entirety and it is the SPB with the constitutional authority to make the decision, our opinion generally references the actions of the SPB. On occasion, we refer to the ALJ/SPB in recognition of the fact that the ALJ conducted the administrative hearing and the SPB adopted the ALJ's decision.
" 'A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.' " (Palmieri v. State Personnel Bd. (2018) 28 Cal.App.5th 845, 852; see Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169.)
We first address Tuckwell's claim that three procedural errors by the ALJ/SPB made it impossible for her to obtain a fair hearing. First, Tuckwell claims the ALJ/SPB erred by excluding exhibits that were not specified on her prehearing conference statement. She argues "[i]t was the ALJ's improper exclusionary sanction that prevented the hearing from concluding on schedule in 2013." Second, Tuckwell argues the ALJ/SPB compounded the exclusion of her evidence by preventing her from using documents produced in discovery by the DSS to impeach a DSS employee.
These first two errors identified by Tuckwell occurred in March 2013. As Tuckwell explains, she petitioned the trial court for a writ of mandate, directing the SPB to allow further evidence. She won on that issue when, on September 5, 2013, the trial court issued an order granting in part and denying in part her petition for writ of mandate. Judgment followed, and a writ issued on December 13, 2013. At that point, Tuckwell could have proceeded with her impeachment and cross-examination, but she chose to appeal the trial court's denial of her discovery challenge. We fail to see how Tuckwell's success on one issue and her subsequent choice to appeal on the other made it "impossible" for her to obtain a fair hearing. To the contrary, the procedural process worked precisely as it is supposed to in that Tuckwell filed a petition for writ of mandate, prevailed, and obtained an order from the trial court requiring the SPB to vacate the ruling limiting her presentation of evidence. (See, e.g., Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 190 [rejecting a "due process" challenge to Gov. Code, § 11517, subd. (c) because the licensee was accorded judicial review of the administrative decision].)
The third error, Tuckwell contends, was the ALJ/SPB's reliance, in 2017, on the testimony of Leslie Evans, senior staff counsel at the DSS, who had not been subject to impeachment in 2013, and who could no longer remember the relevant events. Tuckwell asserts the ALJ should have called a mistrial or stricken Evans's testimony, because "effective cross examination had become impossible." After review of the record, we disagree the failure to strike Evans's testimony made the hearing unfair.
First, Tuckwell fails to explain why she was unable to use the DSS documents to impeach Evans's testimony. Her prior testimony was already in the record, and Tuckwell did not need her to recall her prior testimony to impeach with the DSS documents. Indeed, Tuckwell's counsel used at least some portions of the transcript from the prior hearing to attempt to refresh Evans's recollection regarding her prior testimony and then questioned her with the previously excluded documents. Moreover, the ALJ invited Tuckwell to read Evans's prior testimony directly into the record and make credibility arguments during her closing argument.
At oral argument, Tuckwell's counsel asserted that the impeachment of Evans was important because the DSS accused Tuckwell of improperly handling the Contreras case. In fact, the record shows the impeachment was on a collateral matter. The only accusation related to the Contreras matter in the NOAA was that Tuckwell made an unprofessional comment about East in an e-mail she sent to Evans. In 2013, Tuckwell's counsel sought to impeach Evans regarding her testimony that the Contreras matter was set for hearing on a short-cause calendar when in fact it was set on a long-cause calendar, apparently as part of an effort to prove Tuckwell did not mishandle the Contreras matter. But as noted, the NOAA did not allege Tuckwell's performance on the Contreras matter was incompetent; it alleged her comments about East in an e-mail were unprofessional.
Second, Tuckwell fails to demonstrate prejudice from the reliance on Evans's testimony. Evans was only one of seven different agency witnesses who testified, all of whom the SPB found credible. Further, in its 46-page decision the SPB described only two minor incidents involving Evans: (1) Tuckwell made an inappropriate comment about her supervisor, East, in an e-mail sent to East, Evans, and others on the Contreras matter; and (2) Tuckwell called Evans to discuss a question she had about obtaining criminal conviction records, Tuckwell and Evans disagreed, Evans suggested they elevate the issue to East, and Tuckwell told Evans she would not bring the matter to East and hung up abruptly. Evans was "astonished and offended" by Tuckwell's conduct in the second incident and memorialized the incident in an e-mail to East later that day. The SPB found these incidents were two of six that established "discourteous treatment." It also found Tuckwell "insulted Bobincheck and Evans" as one of four acts that demonstrated "willful disobedience" under Government Code section 19572. Given the relatively minimal impact Evans's testimony appears to have had on the decision, we cannot conclude the lapses in her memory rendered Tuckwell's administrative hearing unfair.
As Tuckwell states in her opening brief, the SPB apparently inaccurately described this incident as relating to the Contreras matter and "conflated" this incident with a prior e-mail about the Contreras matter.
Tuckwell also contends the trial court erred in blaming her for the delay.
As an initial matter, we categorically reject Tuckwell's argument that the trial court "forced Tuckwell to choose between her right to appeal or endure a speedy but unfair trial." The trial court rendered its decision on her second petition for writ of mandate long after she had already chosen to pursue her appeal. Moreover, the trial court expressly stated it "[did] not make a finding or suggest that Tuckwell's decision to seek relief at the Superior Court and the Court of [Appeal] was improper." Rather, it concluded, "Tuckwell made strategic litigation decisions. Having made those decisions that delayed the SPB proceeding, she cannot now complain that she was prejudiced by the delay." We agree entirely with the superior court's analysis on this point.
We also note the issue Tuckwell appealed was the denial of further discovery from the SPB. Tuckwell did not prevail on the merits in her appeal, nor does she raise any issues related to denial of that discovery motion in this appeal.
Tuckwell's argument also fails because she focuses on the wrong concept. She argues she is not blameworthy for protecting her rights, but that distorts the trial court's analysis. As the trial court noted, it is immaterial that she had good cause for the delay, the point is she caused the delay by initiating the petition for writ of mandate and the appeal. Having made strategic litigation decisions that resulted in a delay, she cannot now complain that delay alone prejudiced her.
Moreover, as the trial court noted, Tuckwell never asked for a speedier process. Indeed, the only party that sought continuances was Tuckwell. While we agree with Tuckwell that the continuances sought after remand were relatively minor, the relevant consideration is that there is no evidence in the record that the SPB caused or contributed to any delay in the proceedings.
Tuckwell also contends the lower court wrongly analyzed the issue of delay using a Sixth Amendment analysis for the right to a speedy trial under People v. Williams (2013) 58 Cal.4th 197, 233. We reject this contention because Tuckwell does not present any legal authority supporting what she contends is the correct due process analysis. In any event, whether the trial court employed the correct legal framework is irrelevant, because we review the procedural fairness de novo and will affirm a correct judgment regardless of the trial court's reasoning. (Pollak v. State Personnel Bd., supra, 88 Cal.App.4th at pp. 1404, 1408.)
Finally, Tuckwell's reliance on Gates v. Department of Motor Vehicles (1979) 94 Cal.App.3d 921 (Gates) is misplaced. In Gates, an automobile dismantler sought a petition for writ of mandate to set aside the decision of the Department of Motor Vehicles (DMV) to revoke his license for alleged violations of the Vehicle Code. (Gates, at p. 923.) Though the DMV sent investigators in July 1974 to inspect the dismantler's office and records, and had completed its report the following month, the DMV did not file an action to revoke his license until December 1975. (Ibid.) The trial court found that " '[t]he delay from investigation to accusation to hearing was such that the DMV witnesses had no recollection of many of the events they testified to . . . . [and] made effective cross-examination of the DMV investigators impossible.' " (Id. at p. 924.)
The Court of Appeal found no abuse of discretion, holding that "the trial court has the inherent power to dismiss administrative proceedings brought to revoke a state-issued license where there has been an unreasonable delay between the discovery of the facts constituting the reason for the revocation and the commencement of revocation proceedings, and where the licensee has been prejudiced by the delay." (Gates, supra, 94 Cal.App.3d at p. 925.) Here, by contrast, it was Tuckwell, not the agency, who was responsible for the delay. Moreover, there is no evidence of any delay between the events at issue and the commencement of the proceedings, and agency witnesses, unlike those in Gates, had testified in 2013, before the delay in proceedings.
On this record, Tuckwell was not denied her due process right to a fair hearing. C. Substantial Evidence Supports the Findings of Fact
Next, Tuckwell contends the ALJ relied on findings of fact that are not supported by the evidence. Tuckwell describes two purported findings of fact: (1) The SPB incorrectly found that Tuckwell misrepresented facts and was dishonest by denying she requested a continuance of the Al-Bakari matter from February 3 to February 8, 2011; and (2) the SPB found Tuckwell was incompetent for asking basic questions about the Shearer matter, which was a simple case.
In the Al-Bakari matter, a husband and wife, Mr. and Ms. Al-Bakari, had applied jointly for a community care facility license to operate a family childcare home. The application was denied because Mr. Al-Bakari had a criminal record. He sought an exemption, but it was also denied. Tuckwell was assigned the handle the Al-Bakaris' case.
In early 2011, Ms. Al-Bakari informed Tuckwell she had obtained a restraining order against her husband and stated she wished to withdraw her joint application and apply for a license without her husband. Tuckwell advised Ms. Al-Bakari to contact Barbara Bobincheck directly to discuss the issue.
The SPB found Tuckwell had also asked the OAH to continue the Al-Bakari matter so Tuckwell could amend the accusation to reflect that Mr. Al-Bakari no longer lived in the home. The SPB also found that Tuckwell did not discuss amending the accusation with Bobincheck, as required by DSS protocols, before requesting the continuance.
Tuckwell argues the SPB's finding regarding the continuance is not supported by substantial evidence because she did not request a continuance and the record is devoid of evidence that the Al-Bakari case was continued from February 3 to February 8, 2011; rather, she argues, it was originally set for February 8, 2011.
But Tuckwell cannot avoid the substantial evidence rule by mischaracterizing the SPB findings. The SPB did not conclude the hearing had been continued from February 3 to February 8, as Tuckwell argues. It found she requested a continuance so she could amend the accusation. The only evidence Tuckwell cites in support of her argument is evidence showing the hearing started on February 8 and her own testimony she did not request a continuance, but the SPB found Tuckwell not credible.
More fundamentally, Tuckwell contends the SPB was wrong to discredit Tuckwell's testimony because the hearing was not continued from February 3 to February 8, but the focus of the SPB findings was Tuckwell's inconsistent statements to Bobincheck and East about whether she requested a continuance to amend the accusation. Bobincheck testified Tuckwell asked for a continuance to amend the accusation without asking for Bobincheck's consent to amend. When Bobincheck met with Tuckwell and questioned whether Tuckwell had investigated the facts supporting the amendment, Tuckwell said, " 'I'm sure that you are bright, but we would look like idiots if we did not amend that accusation.' " Bobincheck was insulted; she was also "very surprised" because Tuckwell was an attorney representing the CCLD but "was making decisions on a case without consulting [Bobincheck]." When Bobincheck told Tuckwell they should talk to her boss, Darryl East, Tuckwell again said the accusation should be amended.
When Bobincheck and Tuckwell met with East four days later, Tuckwell denied saying she was going to amend the accusation. Bobincheck testified she was confused because Tuckwell was saying something different than what she had said when Bobincheck met with her previously. Bobincheck told Tuckwell, " 'Beth, . . . you told me that you wanted to amend the accusation. That's why the hearing was continued in the first place . . . .' " Bobincheck was concerned about Tuckwell's integrity because, as she testified, "She was lying to me. I mean she—she was in my office telling me something to my face that I knew wasn't true, and this was the attorney that's supposed to be representing the Department, so I was very concerned." Darryl East also testified that Tuckwell sought a continuance to amend the accusation without contacting her client.
The SPB's findings of fact credited Bobincheck's and East's testimony on the matter, and disregarded Tuckwell's version of events, consistent with the credibility findings. On substantial evidence review, Tuckwell's failure to acknowledge or address Bobincheck's and East's testimony is fatal to her claim. (Telish, supra, 234 Cal.App.4th at p. 1497.)
Next, Tuckwell contends the ALJ incorrectly concluded she asked "simple questions" about the Shearer matter, because the record reflects instead that Tuckwell asked nuanced questions about a complicated case.
We disagree. The SPB made detailed findings about the Shearer matter. In that matter, Shearer had been convicted of a crime that was normally a "non-exemptible offense" and the CCLD had denied his request for a criminal exemption. After the CCLD denied his request for exemption, however, the superior court reduced his felony conviction to a misdemeanor. After much discussion among East, Evans, and Tuckwell, it was determined that Shearer's request for exemption would be resubmitted to the CCLD for reevaluation. After his request was resubmitted, the CCLD requested additional information from Shearer, but he never responded. CBCB policy states that when an applicant fails to provide requested follow-up information, the CBCB case is closed. When Tuckwell became aware Shearer failed to respond to the CCLD's request for additional information, however, she sent an e-mail to East, asking for direction and positing three potential outcomes. East became concerned when he received the e-mail because Tuckwell was a seasoned attorney asking basic questions about a simple case that should have been summarily closed under clearly stated CBCB policy.
The Shearer matter, like the Al-Bakari and Lopez matters, was a Caregiver Background Check Bureau (CBCB) appeal assigned to Tuckwell. As the SPB decision explained: "Among other things, applicants for a CC [(community care)] Facility license must undergo a criminal background check through CCL's Caregiver Background Check Bureau (CBCB). As a general rule, Applicants with a criminal history may not be licensed to run a CC Facility; however, CCL can grant a criminal exemption under certain circumstances. If CCL denies an application for criminal exemption, the applicant can file an appeal with the [OAH]. These appeals, commonly called CBCB cases[,] are normally set on the short cause calendar with OAH[,] meaning the hearing is set for two hours, and no more than two witnesses may be called." At all times relevant to these proceedings, Tuckwell's duties were limited to CBCB cases, which were the simplest cases DSS legal staff handle.
On appeal, Tuckwell cites to her own legal analysis, shared with East and Evans, that the trial court had authority to reduce Shearer's conviction from a felony to a misdemeanor pursuant to a plea agreement, and argues her analysis demonstrated "thoughtfulness, legal sophistication and fairness." But Tuckwell's analysis of the merits of the Shearer case as to whether he was eligible for an exemption had nothing to do with whether the matter should have been closed when Shearer failed to respond to a request from the CCLD for more information, consistent with department policy. The SPB's finding is supported by substantial evidence. D. The Findings of Fact Support the Decision
Tuckwell next asserts that the SPB's decision is not supported by the findings, because the "legal conclusions are arbitrary and capricious and unsupported by any logical reasoning that could bridge the gap from the findings." In Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, our Supreme Court held that in administrative mandamus proceedings, "the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order." (Id. at p. 515.) The Topanga court reasoned that the requirement that the agency provide such findings serves several purposes, including: "facilitat[ing] orderly analysis" by the agency; enabling a "reviewing court to trace and examine the agency's mode of analysis"; enabling the parties to determine whether and on what basis to seek judicial review; and "serv[ing] a public relations function by helping to persuade the parties that administrative decision-making is careful, reasoned, and equitable." (Id. at pp. 516-517.) Although an agency's findings " 'need not be stated with the formality required in judicial proceedings' [citation], they nevertheless must expose the [agency's] mode of analysis to an extent sufficient to serve the[se] purposes . . . ." (Id. at p. 517, fn. 16.)
As we will explain further below, we conclude the majority of Tuckwell's arguments amount to disagreements with the decision of the SPB rather than a showing that the factual findings do not support the legal conclusions. In some cases, though framed as an attack on the decision, Tuckwell's arguments also appear to challenge the sufficiency of the evidence supporting the factual findings and, in those instances, we also address why substantial evidence supports the SPB's findings of fact.
1. Incompetence
The SPB determined Tuckwell was incompetent based on five findings of fact: (1) Tuckwell advised Ms. Al-Bakari to speak directly with Barbara Bobincheck at the CCLD while litigation was pending on the Al-Bakari appeal; (2) Tuckwell failed to investigate whether Mr. Al-Bakari was living in the couple's home before amending the Al-Bakari accusation to reflect that he was no longer living in the home; (3) Tuckwell asked a paralegal to inquire about the cost of obtaining an entire criminal trial transcript in the Lopez matter; and (4) Tuckwell failed to note Ms. Lopez's probation violation and recommend the DSS amend the Lopez accusation; and (5) Tuckwell asked several basic questions of her supervisor, East, after Shearer failed to provide necessary follow-up information requested by the CCLD.
As to the first three facts, Tuckwell contends they "fail to support the legal conclusion of incompetence as a matter of law because they establish reasonable decisions within the direction of a competent attorney, and there is no evidence that Tuckwell's judgment was wrong." But Tuckwell fails to cite any legal authority or evidence in support of her argument that her actions were reasonable as a matter of law. Nor does she argue the SPB's findings of facts were unsupported by substantial evidence.
Moreover, the SPB clearly explained the rationale for its decision. As to the Al-Bakari matter, the SPB stated that Tuckwell should have been aware "as a seasoned [DSS] attorney" that "[CCLD] staff are instructed not to communicate directly with licensees or applicants after an enforcement action, or CBCB appeal has been initiated. [Tuckwell] failed to perform her duties within an acceptable range of performance when she advised Mrs. Al- Bakari to personally contact Bobincheck while litigation was pending on the Al-Bakari appeal. [Tuckwell's] performance also fell below acceptable standards when she failed to investigate whether Mr. Al-Bakari was living in the home before deciding to amend the Al-Bakari accusation to reflect that he was no longer living in the home." Regarding the Lopez matter, the SPB explained that Tuckwell's request to a paralegal to determine the cost of the trial transcript was incompetent because there "was no conceivable need to enquire about the entire trial transcript because [Tuckwell] testified she merely wanted the transcript of [one witness] to refresh his recollection." Further, the SPB observed there was no need to call the witness because the case could be proven based on Lopez's criminal conviction and certified police reports. The SPB thus clearly explained how the factual findings supported the charge of incompetence.
As to the fourth fact, Tuckwell's opening brief on appeal misrepresents the SPB factual finding. Tuckwell contends the SPB's fourth finding "establishes that Tuckwell acted competently to note Ms. Lopez' violation of criminal probation in the file so that another attorney could take over the file and amend the accusation." To the contrary, however, the SPB concluded Tuckwell "fail[ed] to note Ms. Lopez's probation violation" and specifically observed that "[a]lthough the evidence did not establish when the probation violation occurred, [Tuckwell] did not deny that the probation violation was documented in the Lopez file at the time that [Tuckwell] was assigned to handle the Lopez matter." (Italics added.) Finally, Tuckwell does not address the SPB's fifth factual finding regarding the Shearer case and, as explained above, that finding is supported by substantial evidence.
2. Inefficiency
The SPB found Tuckwell was inefficient because she (1) failed to note Lopez's probation violation; (2) sought to subpoena an unnecessary witness to testify during the Lopez hearing; (3) inquired regarding the cost of the Lopez criminal trial transcripts when there was no conceivable need for the transcripts; (4) unnecessarily involved her supervisor, East, in the matter, causing him to waste time and effort to determine whether she had any legitimate reasons for the requests; (5) handled the Al-Bakari matter inefficiently by improperly asking Ms. Al-Bakari to contact Bobincheck, which required Bobincheck to take time to deal with Ms. Al-Bakari and required both Bobincheck and East to take time to meet with Tuckwell; (6) was dishonest and duplicitous in her meeting with East and Bobincheck about the Al-Bakari matter; and (7) was evasive, uncooperative, circuitous, intentionally flippant, and nonresponsive in her investigative interview with Charles de Cuir, the ALJ charged with investigating her misconduct.
The SPB also found Tuckwell failed to meet productivity levels set by other DSS attorneys based on her failure to note Ms. Lopez's probation violation and attempt to subpoena a witness to testify in the matter, while the attorney who took over the case from Tuckwell noticed the probation violation and immediately recommended amending the accusation, and prevailed at the OAH hearing without trial transcripts or witnesses. Tuckwell argues these facts are insufficient because the DSS failed to present evidence as to the level of productivity set by other employees in the same position or compare Tuckwell's case volume and success rate to similarly situated attorneys. Because the SPB also concluded Tuckwell failed to complete her work with a minimum of waste and unnecessary effort, however, based on facts (2) through (7), we need not consider this argument.
Tuckwell argues the SPB's decision regarding the trial transcripts in the Lopez matter is in error because she "demonstrated prudence by balancing the cost of the transcript against its value to the case." But Tuckwell does not explain what she means. In any event, we can reasonably infer the SPB determined the transcript had no value to the case because the SPB found Tuckwell wanted it only to refresh a witness's recollection, but the witness did not need his recollection refreshed since as Tuckwell noted, his memory was " 'excellent.' " Moreover, the case could be proven based on certified records.
Tuckwell also argues the SPB's finding that her instruction to Ms. Al-Bakari to speak directly with Bobincheck was inefficient is not logical, because "informal resolution is always more efficient than litigation," and asserts her responses during de Cuir's interview show that she was attempting "to avoid inefficiency because she did not want to waste time answering absurdly broad and demeaning questions about the duties of a state lawyer by someone who had held the same position." But as the SPB explained, Tuckwell's improper direction to Ms. Al-Bakari to speak with Bobincheck caused Bobincheck to interrupt her workday to deal with the litigant, then required "two busy [DSS] managers," East and Bobincheck, "to expend needleless time and effort to address a problem that never would have occurred, but for [Tuckwell's] poor judgment." Regarding de Cuir, Tuckwell's evasive and flippant answers during their interview required him to repeat basic questions, only to receive circular responses "which required DeCuir to needlessly waste significant time and effort simply to get a straight answer."
De Cuir had worked as staff counsel at the DSS from 2001 to 2009. Thereafter, he took a position with the OAH as an ALJ.
In her reply brief, Tuckwell contends a case cited by the DSS, Paulino v. Civil Service Com. (1985) 175 Cal.App.3d 962, "explains inefficiency," citing to the court's statement that an employee's excessive absences from work may support a finding of inefficiency. (Id. at pp. 966-967.) Tuckwell apparently contends because the facts of this case are different from the facts in Paulino, "Tuckwell engaged in no conduct that can justify the ALJ's legal conclusion of inefficiency." The Paulino case, however, did not attempt to define inefficiency or address the sum total of conduct that could support a finding of inefficiency, and Tuckwell does not substantively address the ALJ's findings here. In short, Tuckwell's conclusory criticisms based on her disagreement with the ALJ's decision do not show the inefficiency charge is unsupported by the ALJ's findings of fact.
3. Inexcusable Neglect
The SPB sustained charges of inexcusable neglect of duty based on the fact Tuckwell had been practicing law for the State of California for 18 years and was reasonably expected to competently handle CBCB cases—the simplest cases in the DSS legal department—but "[i]nexplicably . . . struggled with basic case strategy, repeatedly demonstrated poor judgment in preparing her cases, and failed to note significant case factors." The SPB based this determination on (1) Tuckwell's direction to Ms. Al-Bakari to contact Bobincheck during pending litigation; (2) Tuckwell's decision to amend the accusation in the Al-Bakari matter without consulting with her client or investigating the basis for amendment; (3) asking a paralegal about the cost of trial transcripts and to subpoena a witness when both were unnecessary; and (4) failing to note Ms. Lopez's probation violation and recommend amendment of the Lopez accusation. The SPB also found Tuckwell was negligent in performing her duty to be truthful and answer all questions during her investigative interview and to be honest and forthright with Bobincheck and East regarding the continuance in the Al-Bakari matter.
Tuckwell argues the first four findings do not support the decision for the reasons stated in parts II.D.1. and 2., ante, "Incompetence" and "Inefficiency." For the reasons stated above, we disagree. Tuckwell also makes the conclusory argument that "[t]he fifth finding does not support the decision because the finding fails to establish intentional or grossly negligent failure to perform an official duty." Because Tuckwell cites no authority or evidence, and provides no discussion of this point, we will not address it. (People v. Stanley (1995) 10 Cal.4th 764, 793; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
4. Insubordination
In considering the charge of insubordination, the SPB noted the DSS "must show mutinous, disrespectful, or contumacious conduct by an employee, under circumstances where the employee has intentionally and willfully refused to obey an order a supervisor is entitled to give and entitled to have obeyed." The SPB found Tuckwell's conduct met this standard based on de Cuir's direction to Tuckwell at the outset of her investigative interview that she was required to be truthful and answer all questions, and that failure to comply with these directives would be considered insubordination. He also informed Tuckwell if she were intentionally evasive or untruthful, she would be subject to disciplinary action. Nonetheless, the SPB concluded, Tuckwell was intentionally evasive and refused to answer numerous questions throughout her interview.
Tuckwell contends the SPB's findings do not support the decision because there was no evidence de Cuir was Tuckwell's supervisor, Tuckwell refused to obey an order, or that Tuckwell was mutinous, disrespectful, or contumacious in intentionally and willfully refusing to obey an order.
The SPB specifically found the DSS requested de Cuir to conduct the internal investigation of Tuckwell. De Cuir testified that counsel for the DSS asked him to conduct the investigative interview and approval "came between the chief counsel of Legal and the Chief Administrative Law Judge for State Hearings." He also testified he offered Tuckwell immunity from criminal prosecution "on behalf of the Department." De Cuir testified at length about the content of Tuckwell's answers, her failure to answer questions, her demeanor during the investigative interview, and disrespectful comments she made to him. Thus, the record fairly supports an inference de Cuir was acting on behalf of DSS management, was giving Tuckwell orders her supervisor would be entitled to give and have obeyed, and that Tuckwell disobeyed them. Because we must draw all legitimate and reasonable inferences in support of the SPB's factual findings, we conclude substantial evidence supports the findings and the findings support the charge of insubordination.
5. Dishonesty
The SPB based its dishonesty findings of fact in part on the Al-Bakari case, and in part on facts related to Tuckwell's contact with witnesses and other staff members during a prior disciplinary proceeding against her and her responses to investigator de Cuir about her conduct. We discussed the relevant facts related to the Al-Bakari matter above, and discuss the SPB's findings of fact related to witness intimidation here.
In 2011, Tuckwell received a notice of adverse action which she appealed to the SPB (prior disciplinary proceeding). A hearing was held in March and April 2012. On the fifth day of testimony (a Friday), a paralegal with the DSS, Trish DeBaun, testified that Tuckwell " 'dropped the ball' " in failing to prepare a trial binder in one of her cases, creating extra work for DeBaun and others in the office. Susanna Lacayo, another paralegal, was the final witness of the day. She testified, among other things, that Tuckwell had destroyed evidence pertaining to one of her assigned cases.
The SPB found Lacayo's testimony was "explosive" and "contested." The hearing adjourned at approximately 4:40 p.m., but Lacayo had not finished testifying. Before the hearing adjourned, counsel for the DSS stated his intention to call rebuttal witnesses, but he did not name them at the time.
Tuckwell left the hearing room and headed directly to the DSS legal office, located in the same building. The SPB found Tuckwell was highly concerned at that time that Lacayo's testimony might subject Tuckwell to further disciplinary action, both by the DSS and the California State Bar, and possibly criminal charges. In the hallway outside the legal office, Tuckwell encountered DeBaun and stated "accusingly": " 'Your friend Susanna [Lacayo] testified in court that I had gone into her [computer] and erased her subpoena files.' " Tuckwell's demeanor and tone were "animated and agitated." The exchange upset DeBaun because she knew that she could be called as a rebuttal witness, and she understood it was inappropriate to discuss the testimony of other witnesses while the hearing was ongoing.
After speaking to DeBaun, Tuckwell went to the office of Clair Ervin-Lee, who was a state attorney union representative. On her way to Ervin-Lee's office, Tuckwell approached another witness in the hearing, Mary Ann David, and asked her whether she had heard about Lacayo's testimony. Tuckwell told David that Lacayo had lied on the witness stand and Lacayo accused Tuckwell of destroying evidence. Like DeBaun, David was disturbed because she knew witnesses should not discuss testimony while the hearing was pending.
Tuckwell then entered Ervin-Lee's office and began to discuss Lacayo's testimony. While Tuckwell was in the office, a senior legal typist, Eva Rafol, entered Ervin-Lee's office to deliver a file. Tuckwell asked her, " 'Have you heard Susanna [Lacayo] testified against me, and she lied?' "
After Tuckwell entered Ervin-Lee's office, David sent Lacayo a text message informing her of Tuckwell's comments. When Lacayo received the text message, she became extremely upset. Lacayo felt Tuckwell was trying to turn others in the office against her, and was concerned because the ALJ had instructed her not to discuss the case with other witnesses. Lacayo felt intimidated by Tuckwell's comments and, for several months thereafter, felt nervous, had trouble sleeping, and dreaded seeing Tuckwell at work.
DeBaun was not in the office the following Monday, but on Tuesday, she was sitting in her cubicle at approximately 7:35 a.m., when she heard someone in the next cubicle say, " 'Oh, you're here.' " When DeBaun pushed her chair back to see who was talking, Tuckwell was standing there and said, " 'Oh, it's me, Beth. Remember? The coworker you testified against. Did you forget already?' " (Fn. omitted.) Tuckwell then walked away.
The SPB found Tuckwell's tone was agitated, angry, and accusatory. DeBaun felt unnerved and threatened by Tuckwell's comment. She was uncomfortable because she might be called to testify as a rebuttal witness and was upset that a lawyer in the DSS office would behave so inappropriately. DeBaun and Lacayo both reported Tuckwell's conduct to East, which led the DSS to initiate the internal investigation by de Cuir.
The SPB found Tuckwell was dishonest when she intentionally misrepresented known facts in the following instances: (1) she denied requesting a continuance to amend the Al-Bakari accusation; (2) she told de Cuir during her investigative interview that she discussed "union business" with Ervin-Lee, following Lacayo's testimony against her, but Ervin-Lee testified Tuckwell had talked about Lacayo's testimony and not union business; (3) she was dishonest during her investigative interview when she repeatedly claimed inability to recall whether she told other colleagues (DeBaun, David, Rafol, and Ervin-Lee) that Lacayo had lied on the witness stand; (4) she was dishonest during her investigative interview when she could not recall commenting to DeBaun: " '[I]t's me, Beth. . . . The coworker you testified against. Did you forget already?' " (Fn. omitted.)
Tuckwell argues these findings do not support the decision because they "establish inconsistencies in minor or collateral matters rather than intentional misrepresentation of known facts." Tuckwell then argues alternative interpretations of the instances of dishonesty based on her own testimony. Again, however, we are not entitled to reweigh the evidence or disturb the SPB's credibility findings. And though Tuckwell contends the instances of dishonesty are on "minor or collateral matters," we consider the totality of the circumstances in determining whether substantial evidence supports the SPB's findings. (See Walker v. State Personnel Board (1971) 16 Cal.App.3d 550, 553 ["Although each particular act of discourtesy might be characterized as minor, we must consider them in the light of the record as a whole."].)
Here, the SPB explained that the events Tuckwell claimed not to recall occurred only 17 days before Tuckwell's investigative interview with de Cuir, and the "suggestion that [Tuckwell] had no memory of anything she said just 17 days prior is disingenuous." Moreover, Tuckwell repeatedly told de Cuir she could not remember whether she talked with four different employees (DeBaun, David, Rafol, and Ervin-Lee) about Lacayo's testimony on the witness stand. Tuckwell also could not remember her comment to DeBaun about DeBaun testifying against her. The SPB found DeBaun's, David's, Rafol's, and Ervin-Lee's testimony credible, and disbelieved Tuckwell. Moreover, that the SPB found Tuckwell was dishonest in the course of an investigative interview about some of the most serious allegations of misconduct alleged in the NOAA rebuts her argument the instances of dishonesty were about minor or collateral matters. (See Department of Corrections & Rehabilitation v. California State Personnel Bd. (2007) 147 Cal.App.4th 797, 806-808 [lying during investigatory interviews has significant public policy ramifications and supports a finding of dishonesty separate from the underlying offense].)
Considering the multiple instances of dishonest conduct, the seriousness of making misrepresentations during the investigative interview, the SPB's findings that Tuckwell was not credible in her explanations, the findings that DeBaun, David, Rafol, and Ervin-Lee were credible, and the rule that we must consider facts in the light most favorable to the SPB decision, we conclude substantial evidence supports the SPB's factual findings and the findings support the decision.
Tuckwell also argues that the SPB's decision relates to the time period before the NOAA, but the ALJ improperly relied on Tuckwell's credibility at the administrative hearing in finding Tuckwell was dishonest. The ALJ wrote that Tuckwell "demonstrated a striking pattern of selective memory throughout the hearing" and that her "inability during the investigative interview to recall any of the disturbing comments she made to her coworkers just 17 days prior was, more likely than not, a similar episode of selective memory." But Tuckwell cites no legal authority that the trier of fact may not consider dishonesty during the hearing as relevant to the charge. To the contrary, we are required to give special weight to credibility findings by the ALJ and SPB when based on the ALJ's personal observation at the hearing. (See Gov. Code, § 11425.50, subd. (b) ["If the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement [of the factual basis for the decision] shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review the court shall give great weight to the determination to the extent the determination identifies the observed demeanor, manner, or attitude of the witness that supports it."].) Regardless, even if the SPB improperly relied in part on Tuckwell's conduct at the hearing, the other cited factual findings discussed above amply supported the dishonesty charge.
Indeed, it is notable that on reply, Tuckwell argues that cases cited by the DSS show the distinguishing characteristic of dishonesty is that it "is not an isolated act; it is more a continuing trait of character." (Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 721, citing Paulino v. Civil Service Com., supra, 175 Cal.App.3d at p. 972.) Tuckwell argues there is no evidence that she "has ever demonstrated such a continuing trait of character," but the SPB implicitly found otherwise in discussing her "selective memory throughout" the administrative hearing.
6. Discourteous Treatment
The SPB sustained the charge of discourteous treatment based on multiple specific instances of Tuckwell's discourteous treatment of others, including the regional manager for a client agency (Bobincheck), colleagues, her supervisor, and the ALJ retained to investigate her misconduct (de Cuir). As the SPB summarized, Tuckwell "insulted her [DSS] client; repeatedly accused her supervisor of being unfair, calculating, and punitive in front of her coworkers; intimidated witnesses/coworkers called to testify in the [prior disciplinary proceeding] while the hearing was pending; and was intentionally rude and uncooperative with an internal investigator retained by [the DSS] to investigate allegations of [Tuckwell's] own misconduct. The totality of [Tuckwell's] discourteous conduct unquestionably brought discredit to [the DSS] and [Tuckwell's] classification as a [DSS] attorney, and thereby disrupted the public service."
Tuckwell contends these findings do not support the decision because they do not "prove discourtesy 'of a character that can reasonably result in the impairment or disruption of public service . . .' and 'such that it brings discredit to the agency . . . .' " Once again, Tuckwell does not challenge the factual findings as unsupported by substantial evidence, and offers no legal authority or analysis in support of her argument. The ALJ's well-reasoned decision is well supported by its factual findings.
7. Willful Disobedience
Tuckwell argues the SPB erred because willful disobedience "requires proof that an employee knowingly and intentionally violated a direct command or prohibition" and the SPB sustained this charge "without identifying a command." Tuckwell contends the SPB merely "recycled the discourteous treatment allegations and concluded that discourtesy equals a violation of a workplace policy, and a violation of a workplace policy equals disobedience . . . . rel[ying] on the transitive property of equality to equate discourtesy to disobedience."
Once again, Tuckwell misrepresents the SPB's decision, which specifically cited the DSS's professional conduct policy that "requires all employees to treat each other with courtesy, consideration, respect, and professionalism." The SPB also cited the DSS's workplace violence policy, which "prohibits acts of intimidation, harassment, and/or coercion in the workplace." Citing the dates these policies were distributed to Tuckwell, the SPB concluded "[a]t all relevant times" Tuckwell "knew she that was expected to be courteous, considerate, and respectful to her clients and coworkers and that threatening or intimidating conduct toward others at work was unacceptable." The SPB found she knowingly violated those workplace policies when she insulted Bobincheck and Evans, disparaged East in front of coworkers, intimidated witnesses who testified in the prior disciplinary proceeding, and was rude, evasive, uncooperative, and refused to answer questions during the investigative interview. The fact that the same instances of misconduct support charges of both discourteous treatment and willful disobedience is not a reason to invalidate the SPB's decision. (See, e.g., Hosford v. State Personnel Bd. (1977) 74 Cal.App.3d 302, 312 [finding misconduct could be appropriately characterized as " 'inefficiency,' 'inexcusable neglect of duty,' 'insubordination,' or 'willful disobedience' "].)
8. Incompatible Activity
The SPB determined Tuckwell violated Government Code section 19572, subdivision (r), which provides that an employee may be disciplined for violating the prohibitions against incompatible activities set forth in Government Code section 19990, which states, in part, "[a] state officer or employee shall not engage in any employment, activity, or enterprise which is clearly inconsistent, incompatible, in conflict with, or inimical to his or her duties . . . ." The SPB found Tuckwell's conduct in approaching DeBaun and David and making loud, disparaging comments about Lacayo's testimony was incompatible activity because the witnesses felt threatened by Tuckwell's inappropriate comments and Tuckwell arguably discouraged them from offering robust testimony if called back to testify. The SPB reasoned, "As a seasoned attorney, [Tuckwell] should have known that speaking to witnesses in threatening, accusatory tones during the pendency of an administrative hearing was not only unprofessional and inappropriate but also entirely incompatible with her duties as an officer of the court."
Tuckwell contends the finding does not support the decision "as a matter of law" because it "does not indicate that Tuckwell held any outside employment or engaged in any outside activities" and argues Government Code section 19990 is "completely inapplicable to this case." We again reject Tuckwell's conclusory argument because she fails to provide reasoned analysis to support her point. Further, incompatible activities are not limited to outside employment and Tuckwell's threatening witnesses on the job was arguably an incompatible activity within the meaning of the statute. (See, e.g., Byrne v. State Personnel Board (1960) 179 Cal.App.2d 576, 582 [Dept. of Alcoholic Beverage Control agent's false statement to police officer in performance of official duty was an act incompatible with public service].) In any event, even if Tuckwell's threatening of witnesses failed to constitute incompatible activity as a matter of law, the SPB relied on the same facts to support the charges of willful disobedience, discourteous treatment, and other failure of good behavior.
On reply, Tuckwell asserts Fisher v. State Personnel Bd. (2018) 25 Cal.App.5th 1, "explained" Government Code section 19990, but rather than discuss how the legal principles discussed in that case apply to the SPB decision, Tuckwell discusses how the facts of Fisher are distinguishable and offers the conclusory argument that "[t]here is simply no finding or credible evidence that can support a legal conclusion that Tuckwell violated [Government Code section] 19990."
9. Other Failure of Good Behavior
The SPB also concluded Tuckwell's "misconduct unquestionably discredited [the DSS] as well as [Tuckwell's] employment as Staff Counsel." The SPB based its determination on the facts that Tuckwell "mismanaged her caseload; insulted her client; disrupted the workplace by telling the legal staff that East was unfair[,] punitive, and out to get her; wasted valuable staff time chasing down an unnecessary witness and trial transcripts; threatened witnesses; and, was duplicitous and dishonest with East, Bobincheck, and DeCuir." Among the "potentially destructive consequences" of Tuckwell's misconduct, the SPB listed: "(1) mishandling licensing concerns pertaining to CC Facilities that care for those most vulnerable in our communities; (2) disrupting workflow in the [DSS] legal department; (3) undermining the reputation of the [DSS] legal department by causing [DSS] clients to question the judgment of [DSS] attorneys; and (4) undermining the integrity of the administrative hearing process by threatening witnesses. Because [Tuckwell's] misconduct easily could and did impair the public service, the charge of other failure of good behavior is, sustained."
Tuckwell contends the legal conclusion that she threatened witnesses is "so far from reality that it raises questions about the ALJ's credibility as an unbiased trier of fact" and claims the "other findings are conclusory, speculative and do not establish misconduct of such a nature and of such character so as to impair or disrupt public service." To the contrary, it is Tuckwell's arguments that are conclusory. Because she does not challenge the evidence supporting the findings she threatened witnesses and the SPB clearly articulated the basis for concluding Tuckwell's misconduct constituted other failure of good behavior, she has failed to demonstrate any abuse of discretion.
In sum, the SPB's thorough and detailed legal analysis reflects that the decision sustaining 9 of the 10 charges outlined in the NOAA was supported by the factual findings which in turn are supported by substantial evidence. "To determine whether a decision is supported, we require the findings to 'bridge the analytic gap between the raw evidence and ultimate decision or order' so that we need not 'speculate as to the administrative agency's basis for decision.' " (Oduyale v. California State Bd. of Pharmacy (2019) 41 Cal.App.5th 101, 115.) Here, there is no question about the basis for the ALJ's decision, because as to each of the charges, the SPB clearly articulated why the cited factual findings supported the disciplinary charge. Because Tuckwell has not shown any of these conclusions were arbitrary, capricious, or unreasonable, we affirm. E. Purged Letter of Discipline
At oral argument, Tuckwell's counsel suggested the ALJ's statement of decision raised serious questions about the fairness of the hearing because the ALJ sustained almost every one of the allegations in the NOAA, which counsel called unusual. Counsel further argued the record was tainted by the ALJ's findings and rulings and said the ALJ's decision is not credible or trustworthy. We find the generic and unsupported attack on the "credibility" of the ALJ's decision inappropriate and deeply troubling. Counsel also made reference to unfounded allegations of sexual harassment and stated the ALJ found that Tuckwell used her position for private gain. We located no reference to allegations of sexual harassment in the NOAA and none were sustained by the SPB. Nor did we find allegations regarding "personal gain," charges apparently often brought in connection with "misuse of state property." Misuse of state property was the only charge against Tuckwell the SPB did not sustain.
Next, Tuckwell asserts the SPB improperly weighed a 2012 letter of reprimand issued to Tuckwell as evidence of prior discipline supporting termination. Government Code section 19589 requires letters of reprimand be "removed from the personnel file of the state employee and destroyed not later than three years from the date the letters were issued." Tuckwell contends the letter of reprimand was effective August 21, 2012, and thus deemed destroyed on August 21, 2015. Because the ALJ issued her decision on March 29, 2017, Tuckwell contends, it was too late to consider the letter of reprimand as prior discipline.
We disagree. Assuming, without deciding, that the ALJ was not allowed to consider the 2012 letter of reprimand as evidence of prior discipline, Tuckwell does not show she was prejudiced. (See Code Civ. Proc., § 1094.5, subd. (b) [review of agency's decision is for prejudicial abuse of discretion].) The SPB noted Tuckwell received "one prior adverse action [(the letter of reprimand)] . . . and two prior corrective memoranda counseling her on proper hearing preparation and unprofessional conduct." (Italics added.) Tuckwell does not argue the reliance on two corrective memoranda was legally impermissible, and the only point of mentioning the prior discipline and corrective memoranda appears to have been that Tuckwell was previously counseled regarding inappropriate behavior. Moreover, the passing reference to the letter of reprimand was made in the context of describing Tuckwell's poor judgment—observing that her "conduct ha[d] not improved" since that time.
In finding her misconduct merited termination, the ALJ specifically found Tuckwell "mishandled several of her cases . . . potentially compromis[ing] the important interests of her client . . . . [and] undermin[ing] the reputation of the [DSS] legal department"; repeatedly offended colleagues, her superiors, and the legal staff; had been "duplicitous, evasive and dishonest with East, Bobincheck, and DeCuir"; and "demonstrated stunningly poor judgment by threatening witnesses who gave adverse testimony" in the prior disciplinary proceeding. None of those facts stemmed from the 2012 letter of reprimand. The ALJ also gave great weight to the fact that Tuckwell "took no responsibility or showed any remorse for her pervasive misconduct," "blamed others," "repeatedly feigned selective memory both at the hearing and during her investigative interview when questioned about the details of her misconduct." The ALJ found Tuckwell's "utter failure to take responsibility for her actions suggests a high likelihood of recurrence," and determined her "lack of remorse or appreciation for her actions weighs in favor of a harsh penalty." Given the very minimal impact the letter of reprimand appears to have had on the ALJ's decision, any error in relying on it was harmless. F. Termination of Employment
Finally, Tuckwell contends that even if cause for discipline existed, the ALJ's decision affirming the termination of her employment was an abuse of discretion.
" '[O]nce the SPB renders a decision, its determination regarding whether the facts justify discipline and, if so, what the appropriate penalty should be, will not be disturbed in a mandamus proceeding unless the SPB patently abused its exercise of discretion by acting arbitrarily, capricious[ly], or beyond the bounds of reason. [Citations.] [¶] . . . " ' "Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed." [Citations.]" [Citation.]' [Citation.] Thus, if reasonable minds may differ as to the propriety of the penalty, there is no abuse of discretion.' " (Fisher v. State Personnel Bd., supra, 25 Cal.App.5th at p. 21.)
The "overriding consideration" in SPB cases "is the extent to which the employee's conduct resulted in, or if repeated is likely to result in, '[harm] to the public service.' " (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 218.) "Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence." (Ibid.) The SPB's factual findings in this case are supported by substantial evidence, and they are consistent with the penalty imposed. The SPB determined Tuckwell's misconduct as described above "significantly harmed the public service," finding the seriousness of her conduct, her selective memory, her "utter failure" to take responsibility for her actions, and her lack of remorse all weighed in favor of a harsh penalty, and that dismissal was just and proper. On this record, that determination was not arbitrary, irrational, or capricious. In light of our limited authority to interfere with the discretion of the SPB in its assessment of the appropriate penalty, we find no abuse of discretion.
III. DISPOSITION
The judgment is affirmed. The DSS and the SPB shall each recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
/s/_________
Margulies, Acting P. J. We concur: /s/_________
Banke, J. /s/_________
Sanchez, J.