Hooks v. State Personnel Bd.

• Decision Date: 10 October 1980
• Citation: Hooks v. State Personnel Bd., 168 Cal.Rptr. 822, 111 Cal.App.3d 572 (Cal. App. 1980)
• Court: California Court of Appeals
• Parties: Willie Z. HOOKS, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, etc., et al., Defendants and Respondents. Civ. 3988.
• Writing for the Court: HOPPER

Page 822

168 Cal.Rptr. 822

111 Cal.App.3d 572

Willie Z. HOOKS, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, etc., et al., Defendants and Respondents.

Civ. 3988.

Court of Appeal, Fifth District, California.

Oct. 10, 1980.

Roger C. Donahue, Bakersfield, for plaintiff and appellant.

Evelle J. Younger, Atty. Gen., and Richard M. Radosh, Deputy Atty. Gen., Los Angeles, for defendants and respondents.

OPINION

HOPPER, Acting Presiding Justice.

Hooks appeals from a judgment denying the issuance of a writ of mandate re his dismissal as a correctional officer for possession of marijuana and hashish.

The facts are these:

Hooks was first employed as a correctional officer at the California Mens Colony at San Luis Obispo in May of 1972. In December 1974 he was dismissed for alleged discourteous conduct toward individuals and law enforcement officers in the community. His appeal from this dismissal was denied by the State Personnel Board in February 1975 and a writ of mandate was denied by the superior court in September of that year. In June of 1976, the Court of Appeal, Second Appellate District, reversed the judgment of the superior court and remanded the matter for further proceedings. In October 1976, the parties entered into a stipulation in which the dismissal action was withdrawn and Hooks was restored to his position with back pay to December 11, 1974. The stipulation stated in relevant part:

"3. Petitioner is hereby reinstated to the position of Correctional Officer effective the start of business on December 11, 1974.

"4. Petitioner will receive back pay as provided in Government Code section 19584 for the period December 11, 1974 through August 25, 1976. Petitioner was reinstated to his position by the Department of Corrections on August 25, 1976, and placed on administrative leave. In the event of a dispute regarding the amount of back pay either party may request a hearing before a hearing officer of the State Personnel Board."

The purpose of the administrative time off was for investigation of disciplinary proceedings being instituted simultaneously with Hooks' reinstatement to service. The disciplinary proceedings were pursuant to an arrest and conviction by guilty plea for possession of less than an ounce of marijuana in violation of Health and Safety Code, section 11357. Upon conviction, Hooks was fined $100 plus the penalty assessment. Hooks never returned to work after the reinstatement.

For the purposes of the administrative hearing the parties stipulated to the allegations against Hooks contained in paragraph IV of the Notice of Punitive Action.

"On or about December 6, 1975, you were arrested in possession of about nine grams of marijuana and about ten grams of hashish, a violation of Health and Safety Code section 11357.

"On or about March 18, 1976, you were convicted on your plea of guilty of violating Health and Safety Code section 11357 as a misdemeanor in the case of People vs. Willy Z. Hooks, Bakersfield Municipal Court Case No. 195350."

After an administrative hearing Hooks' dismissal resulting from the possession conviction was affirmed by the hearing officer. The decision of the hearing officer was adopted by the State Personnel Board. Hooks' petition for reconsideration was denied and he sought mandate in the superior court. This appeal is from the judgment denying the petition for mandate.

First, Hooks contends that he was not an employee, or a person whose name appears on an employment list, so as to bring him within the provisions of Government Code section 19572, subdivision (t), on December 6, 1975 (the date of his arrest). We disagree.

Government Code section 19572, subdivision (t), states in relevant part:

"Each of the following constitutes cause for discipline of an employee, or person whose name appears on any employment list:

"...

"(t) Other failure of good behavior either during or outside of duty hours which is of such a nature that it causes discredit to his agency or his employment."

That subdivision has withstood attacks asserting it to be unconstitutional as void for uncertainty. (Nightingale v. State Personnel Bd. (1972) 7 Cal.3d 507, 102 Cal.Rptr. 758, 498 P.2d 1006.)

We conclude and hold that subdivision (t) applied to Hooks. We reject the assertion by Hooks that any reference to reinstatement was solely and only for the purpose of computing pay which might be due. ¹

Hooks was a State employee subject to disciplinary action under subdivision (t). He received pay for the period including his arrest and conviction. To hold that Hooks was not a person (i. e., "an employee or a person whose name appears on an employment list") subject to subd. (t), would in effect place Hooks in the position of being better off by reason of the erroneous first dismissal than he would have been had he not been first improperly dismissed. Such a result, in our opinion, was not intended by the statute. Under all of the circumstances the reinstatement resulted in a relation back in time and made Hooks an employee throughout the period (see Crowley v. City and County of San Francisco (1978) 83 Cal.App.3d 776, 146 Cal.Rptr. 264 (police officer on leave of absence)).

Next, Hooks contends that his possession of marijuana did not rationally relate to his work as a correctional officer. Not so. As the trial judge stated in the conclusions of law: "There is a rational relationship between (Hooks') possessing marijuana and hashish, his conviction, and his employment as a Correctional Officer. Peace officers may be disciplined, including termination of employment for violating laws they are employed to enforce." (See Szmaciarz v. State Personnel Bd. (1978) 79 Cal.App.3d 904, 145 Cal.Rptr. 396 (a San Quentin Correctional Officer) and Vielehr v. State Personnel Bd. (1973) 32 Cal.App.3d 187, 194, 107 Cal.Rptr. 852 ("... if the appellant had been an officer with the Bureau of Narcotic Enforcement, there could be little question that the conviction of possession of marijuana alone would justify disciplinary action"); see also Gillies v. Civil Service Board (1979) 99 Cal.App.3d 417, 160 Cal.Rptr. 278, and Kelly v. State Personnel Bd. (1979) 94 Cal.App.3d 905, 156 Cal.Rptr. 795.) The rational relationship is obvious in this factual context.

Hooks argues that the termination procedure did not comport with the due process employee safeguards outlined in Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774. At the hearing Hooks raised no issues other than those relating to his employment status and the lack of relevancy of the violation of the law to his employment. He raises the due process argument for the first time on appeal. Accordingly, the issue is waived. (Harris v. Alcoholic Beverage Control Appeals Board (1961) 197 Cal.App.2d 182, 187, 17 Cal.Rptr. 167.)

Furthermore, even if the issue had been preserved, Hooks would fail. A post-termination hearing as provided for in Government Code section 19574 satisfies due process requirements if certain pre-removal safeguards are provided. They are, (1) notice of the proposed action, (2) the reasons therefor, (3) a copy of the charges and materials upon which the action is based, and (4) the right to respond, either orally or in writing, to the authority initially imposing discipline. (Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 215, 124 Cal.Rptr. 14, 539 P.2d 774.)

The Notice of Punitive Action which was served upon Hooks states in paragraph VI entitled Statement as to Right to Respond to Your Appointing Power, that Hooks had each of the enumerated safeguards required under Skelly v. State Personnel Bd. The document also made clear that these rights were separate and distinct from those provided under section 19575 of the Government Code. Hooks expressly declined the procedures...