Nicolini v. County of Tuolumne

• Decision Date: 23 February 1987
• Citation: 235 Cal.Rptr. 559,190 Cal.App.3d 619
• Court: California Court of Appeals
• Parties: Gregory NICOLINI, Plaintiff and Appellant, v. COUNTY OF TUOLUMNE et al., Defendants and Respondents. F005455.

Page 559

235 Cal.Rptr. 559

190 Cal.App.3d 619

Gregory NICOLINI, Plaintiff and Appellant, v. COUNTY OF TUOLUMNE et al., Defendants and Respondents.

F005455.

Court of Appeal, Fifth District, California.

Feb. 23, 1987.

Carroll, Burdick & McDonough and Gary M. Messing, Sacramento, for plaintiff and appellant.

Stephen Dietrich, Jr., County Counsel, and Leo J. Faulstich, Deputy County Counsel, Sonora, for defendants and respondents.

OPINION

MARTIN, Acting Presiding Justice.

On January 3, 1984, appellant Sergeant Gregory Nicolini filed a petition for writ of administrative mandate pursuant to section 1094.5 of the Code of Civil Procedure ¹ seeking a reversal of the decision of respondents Tuolumne County Sheriff's Department (Department) and the Tuolumne County Board of Supervisors (Board) to terminate appellant for "dishonesty" and a "failure of good behavior that causes discredit to the County." (Tuolumne County Ordinance No. 2.56.269, subsections (f) and (o).)

The peremptory writ of mandate was denied and appellant appeals.

FACTS

When appellant was 21 years of age, he commenced employment as a deputy sheriff of the Department. During his nine years with the Department, appellant was never disciplined nor recommended for discipline. His personnel file contains references to his outstanding job performance, favorable evaluations, regular merit increases and letters of appreciation. Appellant was promoted to the rank of sergeant in 1980 and is a certified paramedic.

Appellant was initially suspended on March 20, 1983, for a violation of Tuolumne County Ordinance No. 2.56.260, subsection (g)(2), to wit: "in possession, in use, under the influence of, or trafficking in habit-forming drugs and/or narcotics while at work or on [Tuolumne] County property. An additional violation of subsection F, dishonesty, [was] also being investigated."

The investigation was initiated due to an incident which occurred on March 17, 1983, when Lieutenant Robert Wolfgang received a telephone call from a Mr. Walt Blade stating Sergeant Nicolini had been at Mr. Blade's place of business and he was concerned about appellant's condition in that appellant appeared to be "under the influence of something." Lieutenant Wolfgang confronted appellant in appellant's office where Lieutenant Wolfgang found three syringes. He noted appellant was very pale and noticed one pupil was dilated while the other pupil was constricted. Appellant appeared very nervous, trembling, and his speech was thick-tongued and his eyelids would close during the conversation. Lieutenant Wolfgang testified appellant was insistent on finishing his shift and explained he had taken a non-narcotic drug called Ergatomine to prevent the onset of a migraine headache. Subsequently, one of the syringes was found to contain Demerol, a narcotic pain killer.

Appellant testified he had given himself two injections of Ergatomine to prevent the onset of a migraine headache but it was not working. He asked the dispatcher to give him a ride home but the dispatcher said appellant would have to wait for a ride until the end of the dispatcher's shift. According to appellant, he took himself off duty, told the dispatcher to hold all calls, went into his office and injected a prescribed dose of Demerol to ease the pain. While he did not clearly recollect the questions asked of him by Lieutenant Wolfgang, he understood Lieutenant Wolfgang to be asking what drugs appellant had taken while on duty.

On April 15, 1983, an amended notice of disciplinary action was sent to appellant adding additional charges that appellant, while in uniform, obtained a prescription for Valium which he altered and then presented the fraudulent prescription to a pharmacist for an excessive amount of Valium.

A hearing was held before Sheriff-Coroner Wallace Beery who reviewed testimony, physical evidence and investigative reports and determined appellant violated Tuolumne County Ordinance No. 2.56.260, subsections (f), dishonesty in regard to both incidents, subsection (g), improper use of drugs in regard to the fraudulent prescription, and subsection (o), discredited the county due to behavior in regard to both incidents.

A hearing was held before the Board on August 31, 1983. The Board rendered a decision finding insufficient evidence to uphold the findings of the Department that appellant was dishonest in his initial conversation with Lieutenant Wolfgang on March 17, 1983. The Board also found there was sufficient evidence to uphold the findings of the Department that on or about July 10, 1980, appellant altered a prescription for Valium while in uniform and filled that prescription at Thrifty Drug Store in Sonora, California. This conduct on July 10, 1980, the Board found, constituted dishonesty within the meaning of subsection (f) of Tuolumne County Ordinance No. 2.56.260, and that appellant's conduct in altering and filling the fraudulent prescription, was a failure of good behavior that caused discredit to the county within the meaning of subsection (o) of Tuolumne County Ordinance No. 2.56.260. The Board affirmed the decision of the Department to terminate appellant's employment.

Appellant filed a petition for a peremptory writ of administrative mandate pursuant to section 1094.5 on January 3, 1984. The lower court entered a judgment denying the peremptory writ on January 24, 1985. This appeal follows.

I.

Appellant contends the trial court erred in upholding appellant's termination by the Board due to the transient and isolated nature of the alleged misconduct.

In Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29, the California Supreme Court held, that

... in all such cases [review of local agencies], if the order or decision of the agency substantially affects a fundamental vested right, the court, in determining under section 1094.5 of the Code of Civil Procedure 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." (Id. at pp. 44-45, 112 Cal.Rptr. 805, 520 P.2d 29.)

As a member of the Department, appellant had a vested right to continued employment absent the existence of a legal cause for termination. (Quintana v. Board of Administration (1976) 54 Cal.App.3d 1018, 1021, 127 Cal.Rptr. 11; Brush v. City of Los Angeles (1975) 45 Cal.App.3d 120, 123, 119 Cal.Rptr. 366.)

The lower court reviewed the proceedings before the Board and properly acknowledged its review was governed by the independent judgment rule. ² The court determined the weight of the evidence, together with appellant's admission of wrongdoing, supported the findings of the Board. The court then stated:

"The remaining issue concerns the severity of the penalty imposed by the Board.

"The independent judgment rule has no application in the determination of this issue. The Board alone is vested with the duty and responsibility of imposing the penalty and its ruling can only be vacated upon a showing that there was an abuse of its discretion in establishing the penalty. The Court's decision cannot be substituted for that of the Board.

"The measure of the penalty in this instance cannot be determined apart from the responsibilities and role of a law enforcement officer. The credibility of such an official must always be above challenge to perform effectively. Cadilla v. Board of Medical Examiners [ (1972) 26 Cal.App.3d 961, 103 Cal.Rptr. 455;] Ackerman v. State Personn[e]l Board [ (1983) 145 Cal.App.3d 395, 193 Cal.Rptr. 190.]

"The Court finds no abuse of discretion on the part of the Board in terminating the employment of Petitioner. The Writ is denied."

Generally, in reviewing an administrative mandamus order, the determination of the penalty by the administrative body will not be disturbed unless there has been an abuse of discretion. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217, 124 Cal.Rptr. 14, 539 P.2d 774.) The overriding consideration in determining whether an abuse of discretion occurred in the context of public employee discipline 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.' " (Id. at p. 218, 124 Cal.Rptr. 14, 539 P.2d 774.) The court may also consider the circumstances surrounding the misconduct and the likelihood of its recurrence. (Ibid.)

Appellant contends the trial court and the Board refused to consider evidence that the alteration of the Valium prescription was unlikely to recur, was stress related and, therefore, of a transitory, medical nature which would not affect appellant's future job performance. ³ To support this argument, appellant relies on the testimony presented below of Robert Flint, Ph.D., a clinical psychologist specializing in police stress who examined appellant and presented the opinion that the Valium prescription alteration was a "lapse of judgment" that "sounds like a once-in-a-lifetime event up to that time." Dr. Flint testified that when people experience a serious life-threatening event or a major loss, it is common for the individual to experience the same emotions or become "a little crazy" on or about the anniversary of the event. Dr. Flint then hypothesized the altered Valium prescription was part of this "anniversary reaction" due to an incident which occurred in July of 1979 in which an unknown assailant repeatedly shot at appellant but was never apprehended. Appellant relies on Blake v. State Personnel Board (1972) 25 Cal.App.3d 541, 102 Cal.Rptr. 50; Yancey v. State Personnel Bd. (1985) 167 Cal.App.3d 478, 213 Cal.Rptr. 634 and Johnstone v. City of Daly City (1958) 156 Cal.App.2d 506, 319 P.2d 756.

In Blake v. State Personnel Board, supra, 25 Cal.App.3d 541, 102 Cal.Rptr. 50, a supervising deputy labor commissioner was...