NIGHTINGALE v. STATE PERSONNEL BOARD

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Court of Appeal, Second District, Division 4, California.

Pauline NIGHTINGALE, Petitioner and Appellant, v. STATE PERSONNEL BOARD et al., Defendants and Respondents.

Civ. 34574.

Decided: November 03, 1971

Hochman, Salkin & DeRoy, and George DeRoy, Los Angeles, for petitioner and appellant. Evelle J. Younger, Atty. Gen., and Lynn Henry Johnson, Asst. Atty. Gen., for defendants and respondents.

Petitioner appeals from a judgment denying her petition for a writ of mandate to vacate a disciplinary action taken against her by respondents. For the reasons set forth below, we reverse the judgment.

Petitioner is a referee of the Workmen's Compensation Appeals Board. A friend of petitioner was employed by the Department of Employment and had suffered an injury to her arm for which she had filed a claim for workmen's compensation. Because, at the time of the friend's employment, she had already suffered the amputation of the other arm, the claim necessarily involved the Subsequent Injuries Fund. Due to certain activities of petitioner in connection with the processing of the friend's claim, she was charged with violations of subdivisions (d), (l) and (t) of section 19572 of the Government Code.1 The administrative hearings resulted in findings that petitioner had been guilty of a violation of subdivision (t). The specific conduct which was found to have occurred was: (1) a request to another referee, in charge of calendaring cases, that the friend's case be expedited for hearing; and (2) a request of an old friend in the Attorney General's office that he personally handle the Subsequent Injuries phase of the hearing on her friend's claim. Charges that she sought to have a particular referee assigned to hear the case, or that she was guilty of violations of subdivisions (d) and (l) of section 19572 were expressly found to be untrue. The administrative agency also found that petitioner had no intent to secure for her friend any favorable result in her claim proceedings.

We need not pass on the various contentions made by the parties since we conclude that, as a matter of law, the factual findings of the administrative agency do not support its conclusion that petitioner's conduct violated the subdivision relied on to support the action taken.

As view the case, the determination turns on whether a ‘failure of good behavior’ in order to fall within subdivision (t), must be known to at least some portion of the public in order to cause ‘discredit to his agency or his employment.’ Respondents rely on dicta in Orlandi v. State Personnel Board (1968) 263 Cal.App.2d 32, 35–38, 69 Cal.Rptr. 177, 180. That case involved an attempt by a state traffic officer to ‘fix’ a traffic ticket for a friend. The attempt was, necessarily, known to the intended beneficiary and to various court officials. The actual holding was that the knowledge by those persons was public knowledge. We cannot agree with the dicta relied on. In every large agency there will, of human necessity, be almost daily conduct—ranging from tardiness and sloppy work up to actual malfeasance—which, if known to the public, could cause the agency to lose face. Section 19572 lists a variety of such conduct which, in and of itself, is ground for disciplinary action; we cannot regard subdivision (t) as intended to cover anything other than conduct which, publicly known, brings the agency into disrepute. The word ‘discredit’ used in the statute means a loss of reputation or confidence (see: Webster's Seventh Collegiate Dictionary) and, thus necessarily involves knowledge by others. As we point out, governed by the standard expressed, the record does not sustain the findings adverse to petitioner.

(1) Assuming, without deciding, that petitioner's action in seeking an early hearing on her friend's claim was wrong,2 we find nothing in the record to show that that action, in the statutory terms, ‘caused discredit to’ the agency by which petitioner was employed. The request was made by one employee to a co-employee, who rejected it. Had the second referee not made the action a matter of coffee-hour gossip,3 no one else ever would have known of it. We see nothing that petitioner did that had any effect on the public standing of the agency or that, in the language of the disciplinary order, created a risk that the ‘appearance of impartiality’ of the Appeals Board might be damaged.

(2) The approach to the deputy attorney general was susceptible of the implication that the deputy might present the Subsequent Injuries Fund case in a manner more favorable to the claimant than would another deputy.4 But the approach was by one old friend to another; there is nothing to suggest that the deputy would, or could, assume that this telephone call between friends represented any agency action, or that it represented a characteristic of petitioner's official actions in cases before her. The deputy did not think the matter serious enough to report it to anyone until the other charge came to his attention in connection with the administrative hearing herein. His immediate reaction to petitioner's request indicates that he did not regard it as casting any discredit on petitioner or her agency. Assuming that the deputy, being an employee of another agency, was a member of the public and comparable to the court officials in Orlandi, the record, thus, fails to support a finding that the incident caused discredit to ‘petitioner's agency or to her employment.’

(3) Assuming that under Orlandi, knowledge of petitioner's conduct by the intended beneficiary would suffice to meet the statutory test, the record does not show that the friend knew of petitioner's efforts on her behalf.

It follows that, as a matter of law, the facts found do not support the legal conclusion drawn from them.

The judgment is reversed.

FOOTNOTES

1.  Section 19572 of the Government Code reads in part:‘Each of the following constitutes cause for discipline of an employee, or person whose name appears on any employment list:‘* * *‘(d) Inexcusable neglect of duty.

FOOTNOTE.  ‘* * *‘(l) Immorality.‘(t) Other failure of good behavior either during or outside of duty hours which is of such a nature that it causes discredit to his agency or his employment.’

2.  The administrative hearing expressly found that petitioner did not seek, and did not intend to seek, any particular ruling. Petitioner was not in a grade superior to the other referee and there is nothing to show that her request carried with it any implication of ‘pressure.’

3.  The record indicates that the other referee, without need or excuse, disclosed the episode to other, unconcerned, employees, including statements which the hearings found to be untrue.

4.  The actual request was merely that the deputy handle the case so that the claimant not be subject to unnecessarily harsh cross-examination. It is clear that petitioner did not seek anything less than a full presentation of the Fund's case.

KINGSLEY, Associate Justice.