Kazensky v. City of Merced

• Decision Date: 24 June 1998
• Docket Number: No. F028725,F028725
• Citation: 76 Cal.Rptr.2d 356,65 Cal.App.4th 44
• Parties: , 98 Cal. Daily Op. Serv. 4987, 98 Daily Journal D.A.R. 7127 Eugene KAZENSKY et al., Plaintiffs and Appellants, v. CITY OF MERCED, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 356

76 Cal.Rptr.2d 356

65 Cal.App.4th 44, 98 Cal. Daily Op. Serv. 4987,

98 Daily Journal D.A.R. 7127

Eugene KAZENSKY et al., Plaintiffs and Appellants, v. CITY OF MERCED, Defendant and Appellant.

No. F028725.

Court of Appeal, Fifth District, California.

June 24, 1998.

[65 Cal.App.4th 48] Beeson, Tayer & Bodine, Robert Bonsall, Sacramento, and Jason Rabinowitz, for Plaintiffs and Appellants.

Steven F. Nord, City Attorney, for Defendant and Appellant.

OPINION

ARDAIZ, Presiding Justice.

INTRODUCTION

It has long been the rule that "[t]he penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated" and that "[n]either 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 v. State Personnel Bd. (1976) 18 Cal.3d 395, 404, 134 Cal.Rptr. 206, 556 P.2d 306.) In part II of this opinion we apply this well-established rule, and we conclude that the City of Merced did not abuse its discretion in terminating the employment of two City mechanics who committed numerous and repeated violations of the City's personnel rules.

Eugene Kazensky and Rusty Mileur (thereafter sometimes respondents) were mechanics employed by the City of Merced. The City attempted to discover a possible cause of vandalism to City vehicles by installing a hidden video surveillance camera at the City shop where the vehicles were repaired. The hidden camera did not film any incidents of vandalism, but did capture respondents taking grossly excessive breaks. It also captured respondent Mileur engaging in other inappropriate behavior. The City's Director of Public Works Operations gave respondents notice that their employment would be terminated and, after a so-called "Skelly hearing," ¹ did terminate their employment. Respondents challenged their dismissals. The City of Merced Personnel Board held an evidentiary hearing which spanned parts of five days in March and April of 1995. The Personnel Board unanimously recommended that the City Manager uphold the termination of respondent Mileur. It recommended, by a vote of three to two, that respondent Kazensky be reinstated without back pay and with a two-step demotion. The two dissenters voted to recommend termination of respondent Kazensky also.

Pursuant to the City Charter and the City's personnel rules, the City Manager listened to a tape recording of the Personnel Board hearing and considered the evidence offered at the hearing and the recommendation of the Personnel Board. The City Manager upheld the termination of Mileur. He rejected the Board's recommendation that Kazensky be reinstated, and upheld the decision of the Director of Public Works Operations to terminate Kazensky also. Respondents then petitioned the superior court for a writ of mandate. The court exercised its independent judgment on the evidence. The court found, among other things, that respondents did indeed take excessive breaks and that respondent Mileur did engage in other inappropriate behaviors. But the court concluded that the City's termination of respondents' employment was "excessive as a matter of law" and that "[u]nder the circumstances, the City was required to use progressive discipline, to advise, consult and admonish them, and give them an opportunity to correct their behavior." The court entered its judgment commanding the reinstatement of both respondents. The City has appealed and contends that the court erred in ordering reinstatement. Respondents have cross-appealed and contend that the court erred in denying their requests for attorney fees and for an award of backpay. As we shall explain, we conclude that the superior court erred in directing the City to reinstate the two respondents.

We will begin with a brief factual overview. Then we will restate the legal principles applicable to judicial review of administrative proceedings such as this one. Finally we will list the legal issues raised by the parties and will address each of those issues.

FACTS

The City's mechanics traditionally worked from 7:00 a.m. to 3:30 p.m. Monday through Friday. In 1994 the City decided to attempt to provide better and more efficient service to City vehicles and their users by instituting a "swing shift." The swing shift mechanics would work from 2:30 p.m. to 11:00 p.m. One of the objectives sought to be achieved by establishment of a swing shift was to provide a time during which "preventive maintenance" could be performed on the vehicles with the least possible inconvenience to the users. Also, using the same work area at two different times was deemed to be more cost efficient than the alternative of constructing a new repair shop to create more work space. Respondents Kazensky and Mileur were two of the three employees selected to work the swing shift. Although they received a small increase in pay for working the swing shift, both were unhappy about having been selected to work the new shift. During the first month of the new shift, all three swing shift employees used considerable amounts of sick leave. Incidents of vandalism to city vehicles increased considerably. These incidents were reported to the police. The police suggested instituting electronic surveillance of the City's shop area.

The City placed a hidden video camera in the shop. It ran from about 4:30 p.m. through the end of the swing shift on each of 21 days between September 14 and October 14, 1994 inclusive. It did not capture any incident of an employee vandalizing a City vehicle. It did, however, capture the three employees routinely taking breaks which were longer than, and indeed sometimes multiples of, their authorized two 15-minute breaks and one 30-minute "lunch" break. ² It also captured respondent Mileur engaging in other acts of misconduct. These included working on his lawn mower at the City's shop on City time, taking papers out of other employees' mail slots and making copies of those papers, taking a sealed envelope out of another employees' mail slot and unsealing the envelope and looking at its contents, and taking a can of oil from another employee's tool box. On October 7 respondent Mileur simply left and went home two and a half hours early, but reported that he had worked a full 8-hour day and got paid for an 8-hour day. Both Kazensky and Mileur attended a union meeting held at the shop from approximately 4:30 p.m. to 6:00 p.m. on October 6. The significance of it was not that it was a union meeting, but rather that it was part of the more than 2 hours and 20 minutes of break time taken by each of the two men on that date. When respondents' boss, Internal Services Manager David Morgan, noticed that items on his desk were not as he had left them in his locked office at the end of the day shift, he had the hidden camera installed in his office. It captured respondent Mileur entering Morgan's office on two separate dates in November. On each of those two occasions Mileur looked at various papers on Morgan's desk for a few minutes. Mileur did not force his way into Morgan's office. A custodian came by to clean Morgan's office between 6:00 and 7:00 p.m., and Mileur entered after the custodian unlocked the door to enter and clean the office.

We will address other substantive and procedural facts pertinent to this appeal in our subsequent discussions of the issues to which those facts pertain.

JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS

Superior court review of administrative decisions is governed by Code of Civil Procedure section 1094.5, which states in relevant part:

"(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent 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.

"(c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence."

The statute distinguishes between "cases in which the court is authorized by law to exercise its independent judgment on the evidence" (Code Civ. Proc., § 1094.5, subd. (c)) and cases in which the court is not so authorized. Sometimes a statute will expressly direct the superior court to exercise its independent judgment in cases in which it reviews the findings of a particular agency. For example, Education Code section 44945 provides that in certain cases heard by the Commission on Professional Competence involving teacher dismissals, "[t]he court, on review, shall exercise its independent judgment on the evidence." Even if there is no statute expressly directing the superior court to exercise its independent judgment on the evidence, the California Supreme Court has held that in certain types of cases the court must nevertheless exercise independent review. "If the order or decision of the agency substantially affects a fundamental vested right, the trial court, in determining under section 1094.5 whether there has been an abuse of discretion because the findings are not supported by the evidence, must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence." (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32, 112 Cal.Rptr. 805, 520 P.2d 29; Halaco Engineering Co. v. South Coast Regional Com. (1986) 42 Cal.3d 52, 64, fn. 10, 227 Cal.Rptr. 667, 720 P.2d 15; see also Bixby v. Pierno (1971) 4 Cal.3d 130, 93 Cal.Rptr. 234, ...