Fout v. State Personnel Bd.

• Court: California Court of Appeals
• Writing for the Court: HASTINGS; FEINERMAN, P. J., and ASHBY
• Citation: Fout v. State Personnel Bd., 186 Cal.Rptr. 452, 136 Cal.App.3d 817 (Cal. App. 1982)
• Decision Date: 21 October 1982
• Parties: Louis M. FOUT, Plaintiff and Respondent, v. CALIFORNIA STATE PERSONNEL BOARD, California Highway Patrol, Defendants and Appellants. Civ. 63219.

Page 452

186 Cal.Rptr. 452

136 Cal.App.3d 817

Louis M. FOUT, Plaintiff and Respondent, v. CALIFORNIA STATE PERSONNEL BOARD, California Highway Patrol, Defendants and Appellants.

Civ. 63219.

Court of Appeal, Second District, Division 5, California.

Oct. 21, 1982.

George Deukmejian, Atty. Gen., and Martin H. Milas, Deputy Atty. Gen., for defendants and appellants.

Irving S. Feffer, Beverly Hills, for plaintiff and respondent.

HASTINGS, Associate Justice.

Respondents, State Personnel Board and California Highway Patrol (CHP), appeal from a judgment ordering the issuance of a peremptory writ of mandate and remanding the case back to the State Personnel Board for the sole purpose of reconsidering the penalty of dismissal.

Plaintiff Louis Fout has been employed by the California Highway Patrol as a State Traffic Officer since 1966. In December 1979, he was served with a notice of punitive action charging that the alleged acts of misconduct hereafter described constituted grounds for dismissal under the following subdivisions of Government Code section 19572: ¹ insubordination (e), immorality (l ), and failure of good behavior either during or outside of duty hours of such a nature that it caused discredit to his agency (t).

Plaintiff was terminated from his employment on December 27, 1979. He appealed to the State Personnel Board, which, after a hearing, denied the appeal.

The hearing officer made written findings among which the following are relevant:

"III [p] [Fout] was dismissed from his position as a State Traffic Officer upon allegations that he had inappropriate contact of a sexual nature with two girls and that he had, thereafter, refused to answer questions placed to him by his commanding officer about the allegations made.

"IV [p] During the period of some seven or eight years prior to November of 1978 [Fout] had had a close and intimate relationship with a divorced lady. The lady had a daughter, who had been born on October 21, 1961.

"V [p] During the Easter period in April 1978 [Fout] was in the lady's home at the time when only he and the lady's daughter were there. [Fout] approached the daughter and asked, 'May I please have a feel.' The daughter refused and went to her bedroom where [Fout] again appeared and apologized but replaced the original question. [Fout] then touched the daughter's breasts through her clothing with a very quick touch. This conduct was neither invited nor permitted by the young lady.

"VI [p] In February of 1979 [Fout] again came to the lady's home at a time when she was not present and the daughter was alone in the house. At that time [Fout] placed his hands on the young lady's breasts and opened a wrap-around skirt and placed his mouth on the young lady's vagina. This conduct was neither invited nor permitted by the young lady.

"VII [p] In March of 1977 one of the daughter's girlfriends, who had been born on October 5, 1962 approached [Fout] seeking a loan. The negotiations took place in the home of the lady when only the girlfriend and [Fout] were present. After the business transaction had been completed [Fout] asked the young lady if she would go upstairs and 'feel him'. [Fout] touched her breast at this time with his hand. This conduct was neither invited nor permitted.

"IX [p] ... On November 2, 1979 after having given appropriate notices and information to [Fout], the captain asked a series of questions about the alleged events. [Fout] refused to respond to the questions and based his refusal upon constitutional safe guards.

"A second interrogation was conducted on November 7, 1979 in the presence of [Fout's] attorney. After the appropriate information and advice had been communicated or its repetition had been waived the same series of questions was asked and [Fout] again refused to respond. [Fout's] refusal was based upon constitutional protections."

Based upon the foregoing findings, the hearing officer concluded that plaintiff's conduct with the two girls constituted immorality and a failure of good behavior of such a nature as to cause discredit to his agency and his employment within the meaning of Government Code section 19572, subdivisions (l ) and (t); and his refusal to answer the questions of his commanding officer constituted insubordination within the meaning of subdivision (e). Accordingly, the hearing officer determined that the punitive action of dismissal be sustained. The Board adopted the hearing officer's findings and decision and upheld the dismissal of plaintiff Fout.

Plaintiff then filed the petition for writ of mandate to compel the Board and CHP to set aside their decisions terminating his employment. The superior court thereafter ordered the issuance of a peremptory writ of mandate and remanded the case back to the Board for the sole purpose of reconsidering the penalty.

The Board and CHP now contend that the trial court erred by substituting its discretion for that of the employer and the State Personnel Board. We agree.

It is well settled that the propriety of a penalty imposed by an administrative agency is a matter resting in the sound discretion of the agency and that its decision will not be disturbed unless there has been an abuse of discretion. (Barber v. State Personnel Bd., 18 Cal.3d 395, 404, 134 Cal.Rptr. 206, 556 P.2d 306; Blake v. State Personnel Board, 25 Cal.App.3d 541, 553, 102 Cal.Rptr. 50.) 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. (Barber...