Ackerman v. State Personnel Bd.

• Decision Date: 27 June 1983
• Citation: 145 Cal.App.3d 395,193 Cal.Rptr. 190
• Court: California Court of Appeals Court of Appeals
• Parties: E. Daniel ACKERMAN, Petitioner and Respondent, v. CALIFORNIA STATE PERSONNEL BOARD, Respondent and Appellant; DEPARTMENT OF CALIFORNIA HIGHWAY PATROL, Real Party in Interest. AO21059.

Page 190

193 Cal.Rptr. 190

145 Cal.App.3d 395

E. Daniel ACKERMAN, Petitioner and Respondent, v. CALIFORNIA STATE PERSONNEL BOARD, Respondent and Appellant DEPARTMENT OF CALIFORNIA HIGHWAY PATROL, Real Party in Interest.

AO21059.

Court of Appeal, First District, Division 3, California.

June 27, 1983.

John K. Van De Kamp, Atty. Gen., Andrea S. Ordin, Chief Asst. Atty. Gen., Marian M. Johnston, Deputy Atty. Gen., San Francisco, for respondent and appellant.

Richard J. Romanshi, Hession, Creedon, Hamlin, Kelly, Hanson & Brown, San Mateo, for petitioner and respondent.

FEINBERG, Associate Justice.

On this appeal by the California Highway Patrol (CHP) and the State Personnel Board (Board) from a judgment granting a peremptory writ of mandamus (Code Civ.Proc., § 1094.5) to compel the Board to reconsider the dismissal of respondent Ackerman, the only question is whether the penalty imposed constituted an abuse of discretion. The Board and CHP contend that the trial court erred by substituting its discretion for that of the employer and the Board. We agree and reverse.

In October 1981, Ackerman was served with a notice of punitive action charging that the alleged acts of misconduct described below, constituted grounds for dismissal under Government Code section 19572, subdivision (f) dishonesty and subdivision (p) misuse of state property.

The facts as revealed by the record ¹ are as follows:

Ackerman worked as a State Traffic Officer for 15 years and 10 months, and a motorcycle officer for nine of these. He had one prior adverse action of a 2 days' suspension in 1973 for claiming sick leave for a day he participated in a trap shoot. His on the job performance was very good.

As cause for dismissal it was alleged that Ackerman: 1) misappropriated State-owned motorcycle parts and installed them on his privately owned motorcycle; 2) later denied that he had done so; and 3) used a dealer's name to order wholesale motorcycle parts without the dealer's consent.

In 1979 Ackerman bought a Kawasaki motorcycle. He decided to modify it and turn it into a show piece. To assist him in the project he enlisted the aid of Mr. R. Weidling, Manager of the Diablo Kawasaki dealership in Walnut Creek, who had sold him the motorcycle. Diablo Kawasaki also had the service and repair contract for the CHP in the Contra Costa Area. On one occasion, Weidling permitted Ackerman to deal with his suppliers and order parts for the modification of the show motorcycle; these parts were shipped to Diablo Kawasaki and then charged to Ackerman. Ackerman exceeded this authority by ordering parts in the name of Diablo Kawasaki on another occasion and having them shipped to his home; thus he avoided paying the $25.00 sales tax or the retail markup.

In June 1980 Ackerman requested that he be issued the front forks ² for a Kawasaki 1000 police special motorcycle from the CHP Academy. He indicated that the forks were needed for his CHP motorcycle. The forks were issued to him and he placed them on his privately owned motorcycle. The Academy later requested that he turn in the damaged forks from his CHP motorcycle. Ackerman then obtained damaged front forks from a Walnut Creek Police Department motorcycle and returned them to the CHP Academy. He was not candid about the situation. The Academy used older motorcycles for training purposes, and kept them around to "cannibalize" for spare parts.

On July 15, 1981 Ackerman, after returning from a fishing trip to Alaska, learned that the Walnut Creek Police Department had used a search warrant to pick up his private motorcycle. Ackerman called the Walnut Creek police and asked to talk about the matter. He then told the Walnut Creek Police Investigator that he had a minor collision with his CHP motorcycle and got replacement front forks for it from Sacramento. Ackerman stated that he put a used set of forks from a Walnut Creek Police Department motorcycle on his private motorcycle and that Mr. Weidling of Diablo Kawasaki had given him the used forks. On July 16, 1981, Ackerman again talked to the same Walnut Creek Police Department Investigator and told him the truth. He stated that he got the forks from a wrecked motorcycle at the CHP Academy and that he put the forks on his privately owned motorcycle. On the advice of counsel, after his dismissal, Ackerman gave the CHP $225.00 as payment for the front forks he obtained from the CHP Academy.

The Board made the following pertinent determination:

Ackerman's actions would probably warrant some form of punishment less than dismissal if he was not a police officer. However, a police officer must be held to a higher standard than other employees. A police officer is expected to tell the truth. He obtained the forks from the CHP by stating that they were for his issued motorcycle; that was not true. He again made a false statement when he told the Walnut Creek police officer investigating the case that he had not placed the CHP forks on his private motorcycle. His dismissal is warranted.

The court below found that as a matter of law, the penalty of dismissal constituted an abuse of discretion under the standard of Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 218, 124 Cal.Rptr. 14, 539 P.2d 774. "The penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated. [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. [Citation.]" (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 404 [134 Cal.Rptr. 206, 556 P.2d 306].) "In considering whether such abuse occurred in the context of public employee discipline, we note that the overriding consideration in these cases is the extent to which the employee's conduct resulted in, or if repeated is likely to result in '[h]arm to the public service ' [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence. [Citation.]" (Skelly v. State Personnel Bd., supra.) (Emphasis added.)

While the Board's findings could be more felicitously phrased to conform to the precise language of Skelly, quoted above, we think the standards were met here.

Ackerman's admitted theft and subsequent lie ³ not only discredited him but the entire agency. Ackerman deceived CHP Academy personnel as to his intentions in taking the parts as well as to the parts he returned; his misuse of the dealer's name to obtain parts wholesale and escape state sales tax occurred around the same time. Unlawful activity by a police officer warrants dismissal. (Parker v. State Personnel Bd. (1981) 120 Cal.App.3d 84, 88, 174 Cal.Rptr. 333; Hooks v. State Personnel Bd. (1980) 111 Cal.App.3d 572, 577, 168 Cal.Rptr. 822.) Further, "honesty is not considered an isolated or transient behavioral act; it is more of a continuing trait of character." (Gee v. State Personnel Bd. (1970) 5 Cal.App.3d 713, 719, 85 Cal.Rptr. 762.) "The CHP as a law enforcement agency charged with the public safety and welfare must be above reproach." (Fout v. State Personnel Bd. (1982) 136 Cal.App.3d 817, 821, 186 Cal.Rptr. 452.) Ackerman's refusal to cooperate with the initial investigation could only result in serious harm to his public service. (See Kelly v. State Personnel Bd. (1979) 94 Cal.App.3d 905, 917, 156...