Stanton v. State Personnel Board

Opinion

Appellant appeals from an order denying a peremptory writ of mandamus to compel respondent to set aside a decision in which it imposed a 5 percent reduction in salary against appellant for a period of three months.

Appellant has been employed as a state psychiatric technician continuously from sometime in 1960. Prior to the punitive action taken by respondent, he had served in the position of senior psychiatric technician II for ward No. 22 at the Atascadero State Hospital. On April 12,

A trial judge is not required to make findings of fact when it is not acting de novo under the independent judgment standard; where the substantial evidence rule applies, the trial judge does not independently weigh evidence and make his own findings but merely determines a question of law—i.e., whether the evidence is legally sufficient. (Savelli v. Board of Medical Examiners (1964) 229 Cal.App.2d 124 , 131 [ 40 Cal.Rptr. 171 ], cert. den. (1965) 380 U.S. 934 [ 13 L.Ed.2d 821 , 85 S.Ct. 940 ] (criticized on other grounds in Martin v. State Personnel Bd., supra, 26 Cal.App.3d at pp. 580-583).) So long as the Board made adequate findings, there is no need for development of a further record by the reviewing court. (See Robinson v. State Personnel Bd. (1979) 97 Cal.App.3d 994 , 1003-1004 [ 159 Cal.Rptr. 222 ].) Even if appellant was entitled to a fair disclosure of the superior court’s determination (see Cal. Rules of Court, rule 232(e)), we are satisfied that the order denying the petition in the present case adequately set forth the rationale of the trial court in sustaining the Board’s findings.

Appellant then contends that the Board’s decision is not supported by substantial evidence. We are not persuaded.

When reviewing the evidence placed before the Board, the superior court exercises the same function as this court. Neither court may reweigh the evidence, and we are bound to consider the evidence in the light most favorable to the Board, giving it every reasonable inference and resolving all conflicts in its favor. (See Maynard v. State Personnel Bd. (1977) 67 Cal.App.3d 233 , 237 [ 136 Cal.Rptr. 503 ].)

The record shows that Psychiatric Technician Trainee Gerald Hendrix observed appellant applying pressure with his hand on the throat of a patient named “Larry” on March 29, 1977. Both appellant and Hendrix were employees at the Atascadero State Hospital, with appellant occu

Beaton and Sullivan also described appellant’s conduct during the meeting. Beaton testified that appellant told Hendrix, “‘If you insist on making a formal complaint and it comes down to you losing your job, or I losing my job, you’ll lose yours.’” Beaton further opined that the remark was inappropriate for a man in appellant’s position and that Hendrix, in his estimation, took the comment as a threat. In his testimony about the meeting, Sullivan offered the following scenario of events: “The discussion started as an information-giving, fact-finding, trying to understand where each person was in reference to observing the situation. The interview was approximately 20 minutes long, of which the first 15 minutes was positive. At the point that Mr. Hendrix began to do some soul searching, or thinking about the total situation, he made the comment of, T don’t know what to do. If I turn you in—’ referring to Mr. Stanton—‘and it is an abuse and it’s thought to be abuse, then you may lose your job. If I don’t turn it in, then I can be held as an accomplice to the abuse, and I can lose my job.’” At that point, Mr. Stanton said: “‘If it comes to your losing your job or my losing mine, it’s not going to be mine.’

Stanton offered his own independent version of the circumstances underlying the alleged threatening remark. Stanton noted that he initially made out a special incident report to Sullivan, informing him about Hendrix’ displeasure with the way he handled a certain patient. During the progress of the meeting with the supervisors, Stanton indicated that he attempted to explain his actions to Hendrix, who responded by acting as if “‘I’m right and you’re wrong.’” Stanton said he uttered the comment because he was frustrated about Hendrix’ unyielding attitude. Furthermore, he indicated that he did not intend to threaten Hendrix in any fashion. Appellant conceded that he told Hendrix that there was a possibility he would be working under appellant’s direction. Nonetheless, appellant related that he said: “... if I have to defend myself to save my job that I would try to get his... ” and “I would do my best to see that that [that he got fired] happened,...” Appellant stated that he did not feel his response was improper because “Everything was going very quickly at the time,” “Adrenalin [was] flowing,” and “Things [were] happening very fast.” Appellant also stated that Hendrix apparently interpreted his comment as a threat because of what he said at the time.

Carl Ricard, a nursing coordinator, testified that appellant told him that he “didn’t feel that he had intimidated the employee [Hendrix], ...” Two other employees at the scene of the alleged patient’s abuse expressed the opinion that appellant’s actions established a potentially dangerous situation in light of the angry responses from spectator patients. Employee George Wall opined that the situation could have escalated into a riot due to the number of hostile patients observing the incident.

By analogy to cases involving criminal or contractual duress, appellant contends that proof of a threat requires intentional conduct and a reasonable likelihood that an objective person would interpret it as an adverse comment. We disagree.

Government Code section 19572, subdivision (t), demands only that there be a failure of good behavior adversely reflecting upon the employee’s job; the statutory provision does not require that the conduct amount to the equivalent of a threat under duress law. The critical questions under subdivision (t) are whether (1) there is a connection between the offensive conduct and the employee’s duties, and (2) whether the uttered threats would risk impairment or disruption of public services in the state hospital. Having determined the relevant inquiries, we now address these issues.

We are of the opinion that discipline pursuant to subdivision (t) must be based on more than failure of good behavior; it must be of such a nature as to reflect upon the employee’s job. This subdivision has been interpreted as meaning that the misconduct must bear some rational re

Although appellant’s comments may have been uttered without scienter, they are nonetheless punishable under subdivision (t). There is a sufficient nexus between the threatening comments and appellant’s duties at the state hospital. The evidence sufficiently established that appellant’s misconduct resulted in harm to the public service in that it would either deter an investigation into patient abuse (a critical function of the state hospital) or that it would make Hendrix apprehensive of his job security (thereby lowering his potential work performance). As a senior employee, appellant was to establish confidence in his supervisorial actions; his threats to Hendrix in the meeting undercut the confidence which could be placed upon his authority. As noted by the superior court in its order denying the writ petition, such a threat “if permitted would detract from the level of administrative discipline which the hospital setting requires.”

Given the importance of appellant’s supervisorial status and the necessity for investigation of complaints about patient abuse, there was a sufficient connection between the failure of appellant’s good behavior and the potential discredit to his employment so as to justify the punitive action imposed. Furthermore, disciplinary action was proper under subdivision (t) in light of the potential impact of appellant’s conduct upon the state service.

Appellant next contends that the Board was impermissibly disciplining comments arising out of a meeting which was called for the purpose of airing views on a work-related incident. Essentially, his contention is based on two arguments: (1) the Board was disciplining the constitutionally protected activity of free speech; and, assuming that

At the outset, we are of the opinion that the Board has authority to discipline certain types of protected behavior, including speech, under subdivision (t). This point was recognized by the court in Blake v. State Personnel Board (1972) 25 Cal.App.3d 541 [ 102 Cal.Rptr. 50 ]. In Blake, the petitioner urged that his dismissal for pointing a gun at another state employee constituted an infringement of his constitutional right of privacy. The court noted that even constitutionally sanctioned behavior could be disciplined when it had egregious effects: “It is true that a public employee, even one serving at the pleasure of the appointing authority, may not be dismissed from his employment for the exercise of his constitutional rights absent a showing that the restraint which the appointing authority would impose on the exercise of those rights is justified by compelling public necessity. [Citations.]. . .But as our Supreme Court stressed in Board of Education v. Swan, 41 Cal.2d 546 , 556 [ 261 P.2d 261 ], and iterated as recently in Morrison v. State Board of Education,. . . 1 Cal.3d 214 , 222 [ 82 Cal.Rptr. 175 , 461 P.2d 375 ]: ‘“One employed in public service does not have a constitutional right to such employment and is subject to reasonable supervision and restriction by the authorized governmental body or officer to the end that proper discipline may be maintained, and that activities among the empolyees [sic] may not be allowed to disrupt or impair the public service(Blake v. State Personnel Board, supra, 25 Cal.App.3d at p. 552.)

Respondent aptly points out that threatening forms of conduct can be punished by the Board. In Blake v. State Personnel Board, supra, 25 Cal.App.3d 541 , the court recognized that an incident in which a petitioner pointed a gun and uttered threatening words constituted a cause for discipline under Government Code section 19572, subdivision (m). The court, in dicta, indicated that “a superior [who] unjustifiably abuse[s] a subordinate concerning the manner in which he performs his work and [who] threatens his job” could be subject to disciplinary action under section 19572. (Blake, supra, at p. 550.) A similar decision was reached in Maynard v. State Personnel Bd., supra, 67 Cal.App.3d 233 . Maynard involved a state employee who directed a series of threats to her ex-husband’s present girl friend and the woman’s children. The state employee threatened to harm the woman through the Mexican Mafia; in addition, she threatened to have acid thrown in the

Having determined that some forms of speech can be disciplined under subdivision (t), appellant presents the alternative argument that the threat did not risk impairment or disruption of the public service. As noted earlier, this prerequisite has prevented subdivision (t) from being declared unconstitutionally vague. (See Nightingale v. State Personnel Board, supra, 7 Cal.3d at pp. 511-513.)

Appellant primarily relies upon Adcock v. Board of Education (1973) 10 Cal.3d 60 [ 109 Cal.Rptr. 676 , 513 P.2d 900 ] for the proposition that his speech cannot be disciplined by the Board. Adcock was a case in which a high school teacher was transferred to another school because of his open and persistent criticisms of rules and policies in his original school. Most of his criticisms were made at convocations of parents, teachers and students, sponsored by the school, which were called “open forums” and existed for the purpose of openly discussing subjects of “pressing interest” to the school community. A trial court issued a writ on the basis that the transfer effectively denied Adcock his First Amendment freedoms, and the Supreme Court affirmed this determination. (Id., at pp. 65, 68-69.) Our high court stated: “It is settled that a teacher’s right to speak is constitutionally protected as long as it does not result in any disruption, or impairment of discipline or materially interfere with school activities.” (Id., at p. 65.) Appellant seizes upon this passage as support for his position. However, a careful reading of the Adcock case shows that freedom of speech is not constitutionally protected if it results in disruption or impairment of public or school activities. Since this same caveat attaches to disciplinary action under subdivision (t), we do not believe Adcock compels a different result in the case at bar.

Although appellant’s words may have been uttered in a milieu of frustration and pressure, they could have easily resulted in impairment of public service at the state hospital. Since the threats were tied to appellant’s prior statements about potential supervision over Hendrix, the abusive comments had the potential to stifle a subsequent investiga

A hindrance to investigatory activities has been recognized as disruptive of public service in the case of Warren v. State Personnel Board, supra, 94 Cal.App.3d 95 . In that case, the Board dismissed a highway patrolman who had attended and participated in a sexual act in an advertised commercially sponsored transvestite party for which he paid an attendance fee. (Id., at pp. 99, 102-103.) In gauging whether the patrolman’s conduct was potentially disruptive, the court affirmatively reasoned: “The harm to the public service is evident. Appellant’s actions would tend to reflect adversely concerning him and his agency, hinder the legitimate law enforcement activities of another police agency, and hinder his own agency’s investigation of the incident. Appellant’s conduct could create barriers to the cooperation necessary among different law enforcement agencies, and could hamper his ability to work effectively within his own agency.” (Warren v. State Personnel Board, supra, 94 Cal.App.3d at p. 108.) Given the fact that the activities by appellant in the case at bar could similarly chill the operational efficiency of the state hospital, we are of the opinion it was proper to impose disciplinary action under Government Code section 19572, subdivision (t).

In summary, we hold the threats by appellant were properly punished under Government Code section 19572, even though they were within the range of behavior protected by the First Amendment. Therefore, since speech which impairs or disrupts the public service can be disciplined by the Board, we find there was no infringement of appellant’s constitutional right of free speech.

Appellant finally contends that the penalty imposed by the Board was excessive as a matter of law in light of the isolated nature of the threat and his outstanding work record. (Cf. Board of Education v. Jack M. (1977) 19 Cal.3d 691 , 700 [ 139 Cal.Rptr. 700 , 566 P.2d 602 ].) We disagree.