Pereyda v. State Personnel Board

• Decision Date: 04 February 1971
• Citation: 15 Cal.App.3d 47,92 Cal.Rptr. 746
• Court: California Court of Appeals Court of Appeals
• Parties: Reginald O. PEREYDA, Plaintiff and Appellant, v. STATE of California, State PERSONNEL BOARD, Defendant and Appellant. Civ. 12556.

Page 746

92 Cal.Rptr. 746

15 Cal.App.3d 47

Reginald O. PEREYDA, Plaintiff and Appellant, v. STATE of California, State PERSONNEL BOARD, Defendant and Appellant.

Civ. 12556.

Court of Appeal, Third District, California.

Feb. 4, 1971.

Hearing Denied March 31, 1971.

Van Dyke & Shaw, Stockton, for petitioner-respondent-appellant.

Thomas C. Lynch, Atty. Gen., by Anthony S. DaVigo, Deputy Atty. Gen., Sacramento, for appellant-respondent.

BRAY, Associate Justice (Assigned).

Defendant-appellant State Personnel Board appeals from that portion of an amended judgment granting a writ of mandate ordering the 'Board' to vacate its dismissal of plaintiff-appellant Pereyda and to restore him to his employment as a correctional officer. Pereyda appeals from that portion of said amended judgment denying his request for back pay.

QUESTION PRESENTED

Is the mere presence and possession of empty alcoholic containers, with no trace of alcoholic beverages, in view of Pereyda's explanation of their presence, sufficient to justify the hearing officer's finding that Pereyda did bring alcoholic beverages into the restricted area?

RECORD

At the time crucial herein, Pereyda held the position of correctional officer, Deuel Vocational Institution. On September 12, 1968, the Director of the Department of Corrections caused to be filed with the State Personnel Board and served upon Pereyda its notice of punitive action of dismissal effective September 16. Pereyda appealed from that notice and requested a hearing thereon. The matter was heard before Robert L. Hill, Hearing Officer, State Personnel Board, and evidence was taken. The hearing officer sustained without modification the punitive action of dismissal. Thereafter the State Personnel Board approved and adopted the findings of fact and proposed decision of the hearing officer.

Pereyda then filed in the San Joaquin County Superior Court a petition for writ of mandate seeking reversal of the action of the State Personnel Board and his restoration to his position as correctional officer. At the hearing thereon, the administrative record was received in evidence. Thereafter the court entered judgment in favor of Pereyda's petition, followed by an amended judgment. This judgment ordered the State Personnel Board to restore Pereyda to his former position but denied his request for accrued back pay. The State Personnel Board appealed from that portion of the amended judgment restoring respondent to his position, and Pereyda appealed from that portion denying him back pay.

THE LAW

It is important to consider the rules applicable to an appeal to the courts from an administrative determination of the kind involved here.

Since the State Personnel Board is a constitutional agency for all its adjudicatory activities (Cal.Const. art. XXIV; Boren v. State Personnel Board (1951) 37 Cal.2d 634, 234 P.2d 981), its decision, which is the subject of this review, may be set aside only if it is found to be unsupported by any substantial evidence. All reasonable inferences must be drawn in support of the findings of the Board (Hingsbergen v. State Personnel Board (1966) 240 Cal.App.2d 914, 50 Cal.Rptr. 59; Neely v. California State Personnel Board (1965) 237 Cal.App.2d 487, 47 Cal.Rptr. 64). The findings and determination of the Board come before the reviewing court with a strong presumption as to their correctness and regularity. (Faulkner v. Cal. Toll Bridge Authority (1953) 40 Cal.2d 317, 330--331, 253 P.2d 659; Gong v. City of Fremont (1967) 250 Cal.App.2d 568, 573--574, 58 Cal.Rptr. 664.) The court may not take into account whatever evidence detracts from the weight of other evidence. (Neely v. State Personnel Board, supra, 237 Cal.App.2d at p. 489, 47 Cal.Rptr. 64.)

'The court may not substitute a decision contrary to that made by the Department, even though such decision is equally or more reasonable, if the determination by the Department is one which could have been made by reasonable people. * * *' (Kirby v. Alcoholic Bev. Etc. Appeal Bd. (1968) 261 Cal.App.2d 119, 122, 67 Cal.Rptr. 628, 630.)

Inferences based upon circumstantial evidence are sufficient to support a finding. (People v. Goldstein (1956) 139 Cal.App.2d 146, 155, 293 P.2d 495.)

With these rules in mind, we examine the charge against Pereyda and the evidence to support it. Incidentally, there is no conflict in the evidence, unless it be in the inferences to be drawn from it.

DID RESPONDENT BRING ALCOHOLIC BEVERAGES INTO THE RESTRICTED AREA?

The charge against Pereyda which the State Personnel Board found was substantiated was that he was guilty of willful disobedience within the meaning of section 19572, subdivision (o), Government Code, in that in violation of section D5225 of the Rules for Personnel of the Department of corrections he brought alcoholic beverages on the grounds of Deuel Vocational Institution.

In pertinent part that rule provides 'No employee shall bring any kind of liquors of whatever alcoholic content * * * upon the grounds of any correctional institution * * *.' Pereyda admitted he understood this rule.

He admitted that on or about August 30, 1968, he had in his quarters on the institution grounds six empty wine bottles and about 20 empty beer cans. The containers contained no alcohol. He denied that he had consumed the alcohol which had at one time been in the containers or that at any time while the containers were in his premises they had contained alcohol. His story of how they came to be in his quarters seems somewhat bizarre and justified the Board's disbelief in its veracity. Pereyda said he had a lady friend who told him that her landlord was religious. She asked Pereyda to take the containers plus two boxes of trash for disposal. He placed these articles in the trunk of his car. Pereyda refused to identify the woman because 'she is recently married.' At various points in his testimony Pereyda related that some of the beer cans were in paper bags while others were loose; that the containers were brought onto the premises in paper bags, that 'most of it' was in paper bags; that 'some of them must have been in * * * six pack containers' and that 'two empty six packs was in two bags and I think there were three or four scattered ones.'

Although Pereyda had intended to take the items to the dump, they remained in his possession for 'several days or a week or two'; that he had obtained them 'just a few days' prior to their discovery by the institution authorities; that they had been in his room for a 'good number of days.' Just how much of the time the containers were in his possession they were in the trunk of his car does not appear, but they were there until he needed the space to pack some clothes that his exwife had told him to pick up. He then placed them in his closet 'to keep them out of sight until * * * (he) could get them back to the dump.' Pereyda had had difficulty in getting these clothes so he was in a hurry to obtain them when his exwife told him to come and get them. He did not replace the containers in the trunk because it was full of clothes, and he did not like the idea of open containers in his auto. Pereyda did not drink wine but occasionally drank beer.

It was while Pereyda was on a two-day leave from the institution that the containers were discovered in his closet. Pereyda gave no explanation of why during all the period the containers remained in his possession he did not take them to the dump.

When found the containers contained no vestige of alcohol. They had been washed clean of their former contents. There was no evidence...