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Filed 10/24/14 Barber v. The Cal. St ate Personnel Bd. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

PATRICK BARBER, Plaintiff and Appellant,

v. THE CALIF ORNIA STATE PERSONNEL BOARD, Defendant and Respondent;
DEPARTMENT OF CORRECTIONS AND REHABILITATION, Real Party in Interest. E057014 (Super.Ct.No. CIVRS1108683)
OPINION

APPEAL from the Superior Court of San Bernardino County. Joseph R. Br isco, Judge. Reversed with directions. Ferguson Case Orr Paterson, Wendy C. Lascher and John A. Hribar for Plaintiff and Appellant. No appearance for Defendant and Respondent.2

Department of Corrections and Rehabilitation Office of Legal Affairs, Alfred Mondorf, Assistant Chief Counsel, and Stephen A. Jennings, Staff Counsel, for Real Party in Interest. This is an a ppeal by Patrick Barber from a judgment denying his petition for a writ
of administrative mandamus. 1 Barber filed the petition to challenge the decision of the State Personnel Board (SPB) to uphold the decision of the Department of Corrections and Rehabilitation (CDCR) to terminate Barber’s employment as a parole agent assigned to a state youth correctional facility. Barber contends , among ot her things, that the findings at the SPB hearing are different from those alleged in the notice of adverse action (NOAA) and, therefore, termination of his employment violates his due process right to notice of the charges against him and an opportunity to defe nd. We agree and , therefore , will

reverse. FACTUAL AND PROCEDURAL BACKGROUND The pertinent facts are undisputed. Barber started work in 1998 for CDCR at the Heman G. Stark Youth Correctional F acility. In early 2009, CDCR served a NOAA on Barber in which it stated his employment was terminated effective April 10, 2009. The NOAA alleged that on October 31, 2007, Barber “ punched ” Edward Rios , a youth

c orrection c ounselor , in the upper torso , and tried to strike Rios several more times while the two w ere working at the youth facility. The NOAA further alleged “your attack on

1 On April 8, 2013, we reserved ruling on appellant’s request for judicial notice filed March 14, 2 013, for consideration with this appeal. The request is denied.3

[Rios ] was referred to the San Bernardino County District Attorney’s Office , ” and in August 2008, the district attorney acc epted the case for prosecution. The NOAA included four a dditional factual allegations, two of which alleged Barber used profanity at work on November 21, 2007

. The remaining two allegations charge d Barber w ith being dishonest during an internal affairs investigation on October 8, 2008, when h e denied punching Rios and claimed he had only lightly touched him in a joking manner. The NOAA alleged Barber’s conduct constituted cause for discipline
under Government Code 2 section 19572 , subdivisions (d) (inexcusable neglect of duty ), (f) (dishonesty), (m) (discourteo us treatment of the publ ic or other employees), and (t) (beha vior either during or outside duty hours of such a nature to cause discredit to the appointing authority or the person’s employment). Barber appealed his dismissal to the SPB

. Barber, Rios, and various other witnesses testified at the SPB hearing

. In addition to witness testimony, a video recording of the incident between Barber and Rios, captured by a security camera, was introduced into evidence. T he administrative law judge (ALJ) issued a d ecision in which he granted Barber ’ s motion to dismiss the profanity allegations because they were barred by section 3304, which establishes a one year statute of limitations. The ALJ also found Barber had not “ punched ” Rios ; he “poked ” Rios as he passed by him in the hallway, which is what Barber said during the internal affairs interview. Barber stated during the

2 All further statutory references are to the Government Code unless otherwise indicated.4

investigation and in his testimony at the hearing that he h ad rolled up a report he was carrying and used that to poke Rios, but the ALJ found it was unclear from the video recording whether Barber used the rolled up report or his hand to touch Rios. The ALJ ’s factual findings regarding the circumstances that prompted Barber’s action were consistent with Barber’s version of what had occur red.
T he ALJ also found that Rios’s description of the events as recounted in the internal affairs investigation , alleged in the NOAA, and in his testimony at the hearing was not credible. In particular, Rios claimed Barber had punched him, that Rios “swung
a p unch” at Barber, then Barber “ drove ” Rios back into a nearby office where Barber threw 6 to 10 more punches, all of which Rios successfully blocked. Rios then caught Barber by the wrists and forced him to the ground

. A ccordin g to Rios , the incident laste d about a minute, and then he and Barber walked out of the office. The ALJ found Rios’s description of the events was inconsistent, un supported by the video recording of the incident, and in conflict with expert witness testimony regarding physical biomec han i cs and hand

- to

- hand combat. Based on the noted findings, the ALJ found t he evidence did not support the allegation that Barber had been dishonest within the meaning of section 19572, subdivision (f)

. Therefore, the ALJ dismissed that charge. However , the ALJ found that the remaining ground s for termination were supported by the evidence and , therefore , the other c harges were sustained

. T he ALJ sustained the alleg ation of inexcusable neglect of duty (§ 19572, subd. (d)) based on Barber’s unprovoked ac t of poking Rios. The ALJ believed Barber’s5

explanation that his motivation for poking Rios was to teach him a lesson

. The ALJ also

a ccepted Barber’s explanation that his actions were prompted by a conversation about a recent incident, referred to as the Brass assaul t, in which a group of wards had assaulted staff member Patrick Brass , who suffered injuries severe enough to put him in the hospital

. Rios said in that conversation that he would have been able to defend himself against the assault. Ba rber thought Rios was arrogant and naïve, and did not understand how quickly things could get out of control at the facility. S hortly after th at conversation, when Barber saw Rios in a hallway, he decided to de monstrate his point by teaching him a lesson . As they passed in the hallway, Barber reached out and poked Rios. Rios stopped and then walked to a nearby office. Barber followed him. All of this was captured on the security camera video recording. In the office, which was not visible to the security c amera, Barber waived his arms around while asking Rios how he would defend himself if he did not know where the punches were coming from. The ALJ found Barber’s actions were “

. . . both ha rassing and disruptive [and] in viol ation of a clear written policy . . . against any kind of violence in the workplace

. . . .” In the ALJ’s view, Barber was fully aware of the policy and chose to violate it. The ALJ found that Barber’s “ intentional failure to follow a known policy constitutes inexcusable neglect of du ty under Government Code section 19572, subdivision (d).” Therefore, the ALJ sustained that charge. The ALJ also sustained the charge under section 19572, subdivision (m), that Barber had engaged in discourteous treatment of a fellow employee. The ALJ f ound that even accepting Barber’s “explanation that his harassing and disruptive behavior was6

committed so that [he] could teach . . . Rios a lesson, his hostile behavior cannot be excused. It was not [Barb er’s] place to take such action but [he] ignored written policy so he could conduct his abrupt and curt lesson.” Finally, the ALJ found Barber’s actions constitute d an intentional act of misconduct, committed while on duty, and that it c ould have easily resulted in a disruption of public service. Barbe r’s abrupt less on could have caused serious issues dep ending upon the reaction of Rios. Therefore, the ALJ found the penalty of dismissal appropriate. The SPB adopted the ALJ’s decision. Barber filed a petition for rehearing with the SPB on the ground t he evidence did not support the allegations of the NOAA ; th at petition was denied. Barber then filed a petition for writ of mandamus under Code of Civil Procedure sections 1085 and 1094.5 in the superior court

. In t hat p etition , Barber alleged that the
SP B abused its discretion in upholding the decision to terminate Barber’s employment
because the decision was based on facts other than those alleged in the NOAA . As a result, Barber alleged he was not afforded an opportunity to present mitigating factors

a nd argue against the penalty of di scharge from employment. After the SPB and CDCR filed their respective answers and supporting points and authorities , t he trial court conducted a hearing and denied the petition for writ of
mandamus. Barber appeals from t hat order.7 DISCUSSION
Bar ber contends the SPB ’s decision affirming the termination of his employment violates his due process right to notice and an opportunity to defend against the charge s because the ALJ based his decision on facts other than those al leged in the NOAA. We
agree. The issue is this appeal raises only a question of law. Questions of law are subject to our independent review. ( Conlan v. Bonta (2002) 102 Cal.App.4th 745, 753.) The procedures for imposing discipline on a state employee require the employer, in this case CDCR, to determine whether there is cause for discipline and, if so, what discipline to impose. (§ 19574.) T o comply with due process, t he employer must give the employee notice of and reasons for the proposed disciplin ary action and give the employee an opportunity to respond. ( Ibid .; Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215.)
A ccording to the NOAA, CDCR determined Barber “ punched ” Rios and attempted to strike him multiple times thereafter. B ased on th at conduct, CDCR terminated Barber’s employment

. The ALJ found that CDC R did not prove that allegation , and instead found that the evidence show ed Barber “ poked ” Rios with either his hand or a rolled up paper. That act, in the ALJ’s view, was sufficient to warrant termination of Barber’s employment.
T he NOAA did not put Barber on notice that his employment could be terminat ed because he had “ poked ” Rios. CDCR claims that by alleging that Barber violated the8

zero - tolerance violence provision of the Youth Authority Manual, the NOAA did comply with the requirements of due process. We disagree. “Due Process requires that the respondent be given ‘notice . . . of the standards by
which his conduct is to be measured ’ [c itation] and ‘fair notice as to the reac h of the [disciplinary] procedure.’ [Citation.] That requires that the responde nt be given adequate notice both of the claimed legal standard and the events which are alleged to c ontravene it and an opportunity to challenge them. Where the cause alleged has potential application to a broad range of conduct, such as unprofessional conduct, the events alleged to contravene the charge do more than allege what must be proved. Th ey also provide criteria by which the charge is narrowed.” ( Brown v. State Pers onnel Bd. (1985) 166 Cal.App.3d 1151, 1164, fn. 5 , italics added .) According to the above quoted authority, the ALJ was not at liberty to terminate Barber’s employment for reasons other than those alleged in the NOAA. B arber was entitled to notice not onl y of the rules he had violated , but also the manner in which the violation occurred. Without that notice, he was deprived of his due process right to prepare an effective defense against the charge and to ar gue the appropriate punishment. The NOAA charged that Barb er was dishonest when he denied “punching” Rios in
his upper torso and when he misrepresented the physical contact he had with Rio s . Specifically, Barber’s claim , that his “contact with Rios was made in a joking manner by
reachin g out and lightl y touching Rios, ” was dishonest. From t hose factual allegations , it is clear that CDCR relied exclusively on Barber’s alleged act of “ punching ” Rios and then lying about it as the conduct that warranted terminati ng hi s employment. Barber9

was not put on n otice that his act of poking Rios could also support term ination of his employment. Therefore, we will reverse the judgment and remand the matter to the trial

court. DISPOSITION The judgment is reversed. The trial court is directed to issue a peremptory writ of manda te directing the State Personnel Board to set aside its decision sustaining the action of dismissal taken by the Department of Corrections and Rehabilitation against Patrick Barber, and to accord him any other relief to which he is entitled

. Costs on appeal are awarded to appellant

. NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

RICHLI J.

CODRINGTON J.