Kelly v. State Personnel Bd.

• Court: California Court of Appeals
• Writing for the Court: REYNOSO; PUGLIA, P. J., and PARAS
• Citation: Kelly v. State Personnel Bd., 156 Cal.Rptr. 795, 94 Cal.App.3d 905 (Cal. App. 1979)
• Decision Date: 28 June 1979
• Parties: Stephen W. KELLY, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent. Civ. 18061.

Page 795

156 Cal.Rptr. 795

94 Cal.App.3d 905

Stephen W. KELLY, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent.

Civ. 18061.

Court of Appeal, Third District, California.

June 28, 1979.

Rehearing Denied July 24, 1979.

Loren E. McMaster, Sacramento, California State Employees' Association, for plaintiff and appellant.

George Deukmejian, Atty. Gen., Jeffrey L. Gunther, Deputy Atty. Gen., for defendant and respondent.

REYNOSO, Associate Justice.

Plaintiff Stephen W. Kelly appeals from a judgment of the Sacramento County Superior Court denying his petition for a peremptory writ of mandate ordering his reinstatement to the position of Criminalist I with the California Department of Justice. Plaintiff contends that the imposition of discipline against him violated his right to freedom of association and his right to privacy, that the hearing officer of the State Personnel Board admitted irrelevant and prejudicial evidence against him, that the decision was not supported by the findings, that the findings were not supported by the evidence, and that the penalty was excessive. We affirm the judgment.

I

Agents with the Department of Justice conducted an interview with an informant who purported to be acquainted with plaintiff. She stated that plaintiff was employed by the State of California in a laboratory, and that in the past he had supplied her with drugs, some allegedly coming from evidence and some from an unknown source. An investigation was initiated. An interview was conducted with plaintiff. At that time plaintiff was informed that he was being questioned as part of an official internal investigation and that questions would be asked concerning his official duties. He was further advised that refusal to answer or evasion and deception could be cause for disciplinary proceedings and that none of the information or evidence gained from his answers could be used against him in a criminal proceeding.

Plaintiff was advised of the charges made by the informant. It was then explained to him that in order to make the investigation it would be necessary to contact some of his acquaintances, and he was requested to provide a list of some friends that might shed light on the charges. Plaintiff initially agreed to submit a list of five friends. However, he later changed his mind and refused to comply with the request. A written notice was sent, but plaintiff again refused to provide the names.

A month after the initial interview plaintiff was informed that punitive action (dismissal) would be taken against him unless he complied with the request to supply names of five or more acquaintances that might have knowledge of facts concerning the investigation. Plaintiff still refused. Consequently, on January 18, 1977, a written notice of punitive action was served upon him. The notice informed him that his refusal to supply the names constituted insubordination and willful disobedience; he was dismissed from his position at the close of business on January 24, 1977.

On March 24, 1977, an amended notice of punitive action was served. The amended notice added charges of inexcusable neglect of duty, dishonesty, and other failure of good behavior of such a nature that it causes discredit to his agency and his employment. The additional charges arose out of an incident in which plaintiff was alleged to have taken parcels of hashish scheduled for destruction from an inventory; he allegedly stated at that time that he intended to use the hashish for a laboratory standard. Plaintiff was alleged to have failed to log the hashish into the laboratory log book; a search of the laboratory failed to reveal the hashish. It was further alleged that plaintiff had been unable or unwilling to provide any information on the whereabouts of the hashish.

At plaintiff's administrative hearing he admitted that he had, in the course of his employment, participated in an inventory of drugs scheduled for destruction. He admitted removing a small portion of hashish from the inventory, but contended that he intended to use the hashish for a laboratory comparison. Plaintiff stated that the amount he took was about one gram and that he subsequently processed it into hash oil in the laboratory for use as a standard. He stated that the hash oil would still be found in the refrigerator at the laboratory.

Plaintiff's fellow criminalist in the laboratory testified that standards are unavailable for marijuana and hashish, and that criminalists must obtain such standards elsewhere. He further testified that after the charges were brought against plaintiff he had found hash oil in the laboratory refrigerator reduced to liquid form. Plaintiff's supervisor, however, testified that he had checked the laboratory log books and was unable to find the hashish logged in, and that plaintiff's fellow criminalist had told him that the hash oil found in the refrigerator had been there for a long period of time.

The hearing officer found that plaintiff was not justified in refusing to supply the requested information concerning his acquaintances. He further found that plaintiff violated the court order directing destruction of the drugs by removing them from the inventory, and that he had violated other laws and regulations in failing to properly register the hashish in the laboratory log book. The hearing officer's proposed decision upheld the dismissal without modification. The State Personnel Board adopted the proposed decision as its decision in the matter. On petition for a writ of mandate the trial court upheld the action of the Board and plaintiff appeals.

II

Plaintiff contends that the imposition of discipline for his refusal to supply a list of some of his acquaintances violated his right of freedom of association and his right of privacy. Initially, we note that we are not concerned with plaintiff's right against self-incrimination. It is settled that a public employee may be required to answer questions relative to his fitness for his employment if his answers cannot be used against him in a subsequent criminal proceeding. (See Lefkowitz v. Turley (1973) 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274, 283.) If the employee still refuses to answer questions relevant to his official duties then he may be dismissed. (Szmaciarz v. State Personnel Bd. (1978) 79 Cal.App.3d 904, 918, 145 Cal.Rptr. 396.)

In fact, plaintiff was properly informed that any information he gave during the course of the investigation would not be used against him in a criminal proceeding and that his refusal to provide the information would result in disciplinary action. Nor was plaintiff's dismissal based upon adverse inferences from his refusal to supply the information; rather, it was based upon insubordination and willful disobedience in refusing to cooperate in the investigation. The dismissal did not violate plaintiff's right against self-incrimination; however, we must consider whether the request for information impermissibly infringed upon plaintiff's rights of association and privacy.

Plaintiff's statement that the rights he asserts are absolute is erroneous. They are not. (See Konigsberg v. State Bar of California (1961) 366 U.S. 36, 49-50, 81 S.Ct. 997, 1006, 6 L.Ed.2d 105, 116.) By engaging in public employment as a criminalist plaintiff did not give up his constitutional rights, "(h)e did, however, undertake obligations of frankness, candor, and cooperation in answering inquiries made of him by his employing Board examining into his fitness to serve it . . . ." (Beilan v. Board of Ed. of Phila. (1958) 357 U.S. 399, 405, 78 S.Ct. 1317, 1321, 2 L.Ed.2d 1414, 1419.) Although the rights plaintiff asserts are not absolute they nevertheless occupy a preferred position and even a legitimate and substantial government purpose may not be allowed to broadly stifle these fundamental personal liberties when the end can be more narrowly achieved. (Shelton v. Tucker (1960) 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231, 237.)

It cannot be denied that the Department of Justice had a substantial and legitimate purpose in inquiring into plaintiff's activities. The informant had been arrested on narcotics charges and had told agents of the department that plaintiff had supplied her with drugs and that some of the drugs had been taken from the laboratory. In the position of criminalist plaintiff was responsible for the analysis of physical evidence, including narcotics, and for testifying in court as to his results. If plaintiff were found to be involved in narcotic trafficking it would invalidate the results of his laboratory analysis in all of his cases and would cast doubt upon the work of the other criminalists in the laboratory. In addition, it would be self-defeating for the department to employ a person who was redistributing seized contraband. In view of the sensitive nature of plaintiff's position as a criminalist the department had the duty to investigate the serious charges made by the informant.

Plaintiff cites National Asso. For the A.C.P. v. Alabama (1958) 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 in support of his contention that he could not be requested to provide the names of some of his acquaintances. The Supreme Court was "unable to perceive that the disclosure of the names of plaintiff's rank-and-file members has a substantial bearing on either (of the state's alleged purposes)." (357 U.S. at p. 464, 78 S.Ct. at p. 1173, 2 L.Ed.2d at p. 1501.) It was the broad, indiscriminate requirement that the identity of all of the rank-and-file members be disclosed where such disclosure would subject the members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility, that the court found to be invalid. (Ibid.) We deal with a narrowly drawn order tied to a proper governmental purpose. That is, we deal with the type of order which the National Asso. For the A. C. P. v....