Yancey v. State Personnel Bd.

• Decision Date: 29 April 1985
• Citation: 213 Cal.Rptr. 634,167 Cal.App.3d 478
• Court: California Court of Appeals Court of Appeals
• Parties: Robert YANCEY, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendants and Respondents. AO26713.

Page 634

213 Cal.Rptr. 634

167 Cal.App.3d 478

Robert YANCEY, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendants and Respondents.

AO26713.

Court of Appeal, First District, Division 5, California.

April 29, 1985.

As Modified May 3, and May 29, 1985.

Douglas N. Smith, Worthington, Smith, Marshall & Schotte, Napa, for plaintiff and appellant.

John K. Van De Kamp, State Atty. Gen., N. Eugene Hill, Asst. State Atty. Gen., Talmadge R. Jones, Deputy State Atty. Gen., San Francisco, for defendants and respondents.

HANING, Associate Justice.

Appellant Robert Yancey appeals from a judgment denying his petition for writ of mandate to compel respondent State Personnel Board (Board) to vacate its decision to terminate Yancey's employment as a correctional officer at the California Medical Facility at Vacaville (CMF) after he was found off duty wearing female underclothing. We conclude the findings of the Board are legally inadequate to support a dismissal and reverse.

Lanny Vance and Len Cimino, City of Fairfield police officers, were on special duty to make security checks in residential and school areas where there had been incidents of burglary. As they pulled into the parking lot of an elementary school at approximately 10:00 p.m., they saw a figure running westerly in the yard area. Officer Vance accelerated the patrol car, and the figure ran into the bushes in front of a fence separating the school grounds from the residential area. The officers apprehended appellant wearing thongs, female undergarments and an unbuttoned white cotton shirt. No other persons were in the area. Appellant identified himself; his residence was adjacent to the west school fence. The officers detained appellant for questioning, determined he had committed no crime, and released him.

Officer Vance made a report of the incident and referred a copy to CMF. He felt "the capacity that [appellant] was working in that it should be brought to the attention of the [sic] superiors ...." Vance also felt that appellant had at all times been completely truthful and straightforward with the officers, and that he did not conceal any information. Vance testified at the subsequent hearing he "really didn't think [the report] would go this far."

As a result of this incident, appellant was dismissed pursuant to Government Code section 19572 subdivision (t), ¹ which permits discipline of an employee for "failure of good behavior either during or outside of duty hours which is of such a nature that it causes discredit to the appointing authority or the person's employment." The matter was heard before a Board hearing officer, who made the following pertinent findings: "[Appellant] was considered a good Officer and had no blemishes on his prior seven-year employment record. However, it must be found that the dismissal action was warranted. [par.] [Appellant] has attributed his wearing of female clothing to job-related stress which he now feels he can handle. But it must be recognized that this incident is widely known at the institution and would as a practical matter cause [appellant] to have great difficulty in working with other Correctional Officers and inmates. This in itself would create a difficult if not impossible situation and in addition would place [appellant] in an atmosphere far more stressful than the normal job circumstances which existed at the time of the ... episode. [par.] The Department [of Corrections] just cannot be required to run the risk of employing [appellant] in a stressful security position when his reaction to stress is so unusual."

The Board adopted the hearing officer's findings and decision. Appellant's petition for rehearing was denied, whereupon he filed his petition under Code of Civil Procedure section 1094.5, seeking a writ of mandate restoring his job. The trial court correctly determined it was obligated to apply the substantial evidence test in reviewing the Board's decision; it found the evidence supported the Board's decision and denied relief.

Appellant's contention that the independent judgment test is the basis for review of the Board's action cannot be sustained. "It is firmly established that the Board is a statewide administrative agency deriving its adjudicative powers from the California Constitution; accordingly, its factual determinations must be upheld by a reviewing court if they are supported by substantial evidence, with all legitimate and reasonable inferences drawn in support of such findings." (Stanton v. State Personnel Bd. (1980) 105 Cal.App.3d 729, 734, 164 Cal.Rptr. 557 and citations therein.) This is true even if a vested right is affected by the Board's decision. (Id., at p. 735, 164 Cal.Rptr. 557; see also Goggin v. State Personnel Bd. (1984) 156 Cal.App.3d 96, 202 Cal.Rptr. 587.) We therefore consider whether there was legally substantial evidence to support appellant's dismissal.

"Substantial evidence " 'must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with 'any' evidence. It must be reasonable in nature, credible, and of solid value; it must actually be 'substantial' proof of the essentials which the law requires in a particular case." ' [Citations.]" (Lucas v. Southern Pacific Co. (1971) 19 Cal.App.3d 124, 136, 96 Cal.Rptr. 356.)

There must be more than a failure of good behavior before the Board may discipline an employee under section 19572, subdivision (t). The misconduct must be of such a nature as to reflect upon the employee's job. In other words, the "misconduct must bear some rational relationship to his employment and must be of such character that it can easily result in the impairment or disruption of the public service. [Citations.] The legislative purpose behind subdivision (t) was to discipline conduct which can be detrimental to state service. [Citations.] It is apparent that the Legislature was concerned with punishing behavior which had potentially destructive consequences." (Stanton v. State Personnel Bd., supra, 105 Cal.App.3d at pp. 739-740, 164 Cal.Rptr. 557, emphasis in original.) The Legislature did not intend " '... to endow the employing agency with the power to dismiss any employee whose personal, private conduct incurred its disapproval.' " (Warren v. State Personnel Bd. (1979) 94 Cal.App.3d 95, 104, 156 Cal.Rptr. 351, citing Morrison v. State Board of Education (1969) 1 Cal.3d 214, 225, 82 Cal.Rptr. 175, 461 P.2d 375.)

Alvin Groupe, retired psychiatrist at Vacaville, who interviewed appellant once several weeks after the incident, and Brian Gunn, a 14-year veteran correctional officer with the Department of Corrections with the rank of captain, testified on behalf of the Board at the hearing. They both concluded the incident would make appellant a likely target for blackmail by the inmates and distrust by the officers, thereby creating dangerous situations for himself and other officers. On cross-examination they readily conceded that since the incident in question was known, the blackmail theory was unrealistic.

Groupe testified that appellant's problem was medical in nature--related to stress, and that he would be subject to manipulation by the inmates if the incident received notoriety within the institution because many inmates have the ability to "pick up a weakness or indiscretion to develop situations that could be--that are advantageous for them but could be dangerous to others." However, Groupe did not consider appellant to be homosexual, and he knew of nothing in appellant's character to indicate he was the sort to be blackmailed or otherwise manipulated. He believed the "big point" in deciding whether or not appellant could presently function as a corrections officer was how the other employees would respond to him. If appellant's fellow officers were willing to accept him "as he is, there would be no problem" of dangerous situations developing. Groupe had not interviewed or spoken with any of the correctional officers with whom appellant worked. He did not testify to any problems appellant had ever had on the job, and stated that a seven year unblemished record would indicate a correctional officer's ability to control his stress on the job.

As the Board found, appellant had worked successfully as a correctional officer for 7 years prior to the incident with no negative reports in his service record.

Captain Gunn also offered his opinion that some inmates "might" assault appellant or attempt to manipulate him, and that other officers would resent working with him. However, like Doctor Groupe, Gunn had not discussed the case with any other officers with whom appellant worked. Appellant had maintained social contact with 20 to 30 of his former colleagues and testified that they all asked him when he was returning to work. He said none of them expressed any concern about his ability to function as a correctional officer.

Thus, although both Groupe and Gunn offered opinions about how this incident would affect appellant's job performance, neither of them presented any substantial factual evidence upon which their opinion was based. Appellant himself offered the only evidence about his relationship with his fellow officers. Groupe admitted that appellant's prior record was solid evidence of his ability to control stress on the job. Gunn's opinion about how other officers would react to appellant's return, if relevant, was wholly unsupported, since he had never discussed the situation with any other officers. ² The thrust of Gunn's testimony was his opposition to what he considered to be the general perception of appellant's lifestyle, which he variously characterized as "strange" or "weird." "The notion that a [correctional officer] may be dismissed on the sole basis that his lifestyle (sexual preference) is offensive to his fellow officers has no basis in law." (Warren v. State Personnel Bd., supra, 94 Cal.App.3d 95, 104, 156 Cal.Rptr. 351.)

The case before the Board was...