The opinion
Filed 3/10/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
WILLIAM TELISH, B250856
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS139506)
v.
CALIFORNIA STATE PERSONNEL
BOARD, et al.,
Defendants and Respondents;
CALIFORNIA DEPARTMENT OF
JUSTICE, et al.,
Real Parties in Interest and
Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County,
James C. Chalfant, Judge. Affirmed.
DesJardins & Panitz, LLP and Eric A. Panitz for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Assistant Attorney
General, Christine B. Mersten and Chris A. Knudsen, Deputy Attorneys General for Real
Parties in Interest and Respondents.
_________________________
Plaintiff and appellant William Telish (Telish) appeals a judgment denying his
petition for writ of administrative mandate (Code Civ. Proc., § 1094.5)1 wherein he
sought to set aside a decision by defendant and respondent California State Personnel
Board (SPB or Board) upholding his dismissal from his position with the California
Department of Justice (DOJ).
The essential issue presented is the admissibility of recorded telephone
conversations between Telish and his former girlfriend, L.D., which evidence was
received at the administrative hearing in this matter.
A participant may properly record a telephone conversation at the direction of a
law enforcement officer, acting within the course of his or her authority, in the course of
a criminal investigation. (Pen. Code, § 633.)2 Further, section 633 does not limit the use
of duly recorded communications to criminal proceedings.
Although Telish contends the criminal investigation was a “sham,” the Board
determined L.D. duly recorded the telephone conversations pursuant to the direction of
DOJ in connection with a criminal investigation, and the Board’s finding is supported by
substantial evidence. Therefore, the recorded telephone conversations were admissible at
the administrative hearing. We also reject Telish’s other arguments and affirm the
judgment.
1
The judgment denying the petition for writ of mandate is appealable. (Code Civ.
Proc., §§ 904.1, subd. (a)(1), 1110; Catalina Investments, Inc. v. Jones (2002)
98 Cal.App.4th 1, 5, fn. 3; International Film Investors v. Arbitration Tribunal of
Directors Guild (1984) 152 Cal.App.3d 699, 703.)
2
All further statutory references are to the Penal Code, unless otherwise specified.
2
FACTUAL AND PROCEDURAL BACKGROUND3
In June of 2006, while working as Senior Special Agent in Charge at the Bureau of
Narcotics Enforcement’s (BNE) LA Interagency Metropolitan Police Apprehension
Crime Task Force (LA IMPACT), Telish began a consensual sexual relationship with a
subordinate employee, L.D., who worked as an administrative assistant and financial
analyst. Their relationship continued on and off until the end of 2009. L.D. was one of
approximately 100 employees supervised by Telish. He supervised L.D. from 2005 until
2008. On March 20, 2008, L.D. left LA IMPACT and accepted a position with the
Placentia Police Department.
In October of 2007, rumors of Telish’s relationship with L.D. surfaced at work.
Jerry Hunter (Hunter), Assistant Chief at BNE, inquired about the rumors. Telish denied
the relationship and admitted only to having gone to dinner with L.D. By the end of the
conversation, Hunter believed Telish’s account of his platonic work relationship with
L.D. Telish then confronted L.D. about the rumors, upon which she explained that she
had revealed their relationship to several co-workers. Telish was upset and instructed
L.D. to deny their relationship and tell the co-workers that she had exaggerated it. Telish
also directed L.D. to tell Douglas Law, Deputy Director of LA IMPACT, that she had
made up or embellished their relationship. Telish had taken over 100 sexually explicit
photographs of L.D. and he threatened to post them online or email them to her son if she
did not recant her statements about being in a relationship with him.
3
The Board acts as an adjudicatory body, weighing the evidence to determine the
facts (Pollak v. State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1403-1404), and as an
agency of constitutional authority, the Board’s decisions “are reviewed only to determine
whether substantial evidence supports the determination, even when vested rights are
involved. [Citations.]” (Coleman v. Department of Personnel Administration (1991)
52 Cal.3d 1102, 1125.) Any factual finding by the Board “which is not specifically
attacked is to be accepted as true.” (Black v. State Personnel Board (1955) 136
Cal.App.2d 904, 909.) The bulk of the findings here are not attacked. Accordingly, this
summary is based in large part on the SPB’s decision, adopted on June 21, 2012, and
included in the record on appeal, as part of the administrative record. (State Trial
Attorneys’ Assn. v. State of California (1976) 63 Cal.App.3d 298, 302, fn. 4.)
3
On October 27, 2009, while at L.D.’s home, Telish inquired about a risque text he
saw on L.D.’s cell phone. He kept looking through the phone after being asked to stop
and he accused L.D. of sleeping with other men. A struggle for the phone ensued. Telish
held L.D.’s arm down to keep her from reaching the phone.
On December 9, 2009, L.D. reported to her current boss, Placentia Chief of Police
James Anderson (Chief Anderson), that she had been assaulted by Telish and that in 2007
he threatened to release nude photographs of her if she failed to recant statements she had
made about their affair. Believing that Telish had committed assault and battery as well
as extortion, Chief Anderson reported L.D.’s allegations to DOJ Deputy Director Rick
Lopes and to the Orange County District Attorney.
In January 2010, DOJ began a criminal investigation regarding L.D.’s allegations
against Telish. As part of the investigation, at the direction of DOJ, L.D. surreptitiously
recorded multiple telephone conversations she had with Telish. After being provided
with a report from DOJ, the Orange County District Attorney’s office declined to
prosecute.
DOJ dismissed Telish from his position as a Senior Special Agent in Charge,
effective July 19, 2010, alleging he intimidated, threatened to release sexually explicit
photographs of, and physically assaulted a subordinate employee with whom he had a
consensual relationship. DOJ also alleged Telish misused his State-issued vehicle, made
derogatory racial comments about a supervisor, discussed the physical attributes of
candidates for a position on a task force, falsely claimed to have an informant who
provided him with confidential information, was dishonest during an investigatory
interview, and destroyed evidence.
1. Administrative proceedings.
a. The proposed decision of the administrative law judge (ALJ) denying
Telish’s motion to exclude evidence of the recordings and sustaining his dismissal.
Telish appealed his dismissal to the SPB. The hearing was conducted on February
28, and March 1 - 4, 2011. At the commencement of the hearing, Telish moved to
exclude evidence of the surreptitious recordings between him and L.D. contending that,
4
among other legal theories, the recordings were made in violation of section 632. He
argued the recordings were made without his consent, were not recorded as part of a
pending criminal investigation with probable cause, were not recorded with the
supervision of a law enforcement agency, and were inadmissible during an administrative
hearing.
On March 17, 2011, the ALJ issued an order, separate from her proposed decision,
denying Telish’s motion to exclude evidence of the recordings. The ALJ ruled that
because the recordings were performed at the direction of the DOJ and related to a
criminal investigation of serious crimes, they were admissible pursuant to section 633.
With respect to the merits, the ALJ found Telish’s behavior constituted cause for
discipline under various subdivisions of Government Code section 19572 and that the
appropriate penalty was dismissal.
b. The Board’s decision, ruling the recordings were inadmissible but the
remaining evidence was sufficient to uphold the dismissal.
The Board rejected the ALJ’s proposed decision and decided to hear the case
itself. The parties appeared and presented oral arguments to the Board on December 13,
2011.
The Board adopted all of the ALJ’s findings of fact. However, it reversed the
ALJ’s evidentiary ruling and held the evidence obtained from the surreptitious recordings
was inadmissible. Citing Rattray v. City of National City (9th Cir. 1994) 51 F.3d 793
(Rattray), discussed infra, the Board held that although the recordings properly were
made by L.D. acting pursuant to the direction of law enforcement in connection with a
criminal investigation (§ 633), the recordings could only be utilized in a criminal
proceeding, and therefore should have been excluded by the ALJ at the administrative
hearing.
The Board concluded that although the recordings should have been excluded,
their admission by the ALJ was harmless error and therefore Telish’s dismissal remained
intact. “Independent of the recordings, sufficient evidence exists in support of each cause
of action for discipline found by the ALJ. . . . Notwithstanding the recordings, each
5
factual basis in support of each sustained charge is corroborated by live testimony and/or
other evidence admitted at [the] hearing.”
2. Superior court proceedings.
Telish filed a petition for writ of administrative mandate (Code Civ. Proc.,
§ 1094.5), seeking to set aside the Board’s decision upholding his dismissal. Telish
contended the recorded phone conversations were inadmissible, and absent the recordings
and their progeny, there was insufficient evidence to sustain the dismissal.
DOJ filed a cross-petition for writ of administrative mandate. DOJ’s petition
sought to overturn the Board’s decision insofar as it excluded evidence of the recordings.
DOJ requested that in all other respects the Board’s decision be upheld.
After considering the papers and hearing argument, the trial court concluded the
Board erroneously excluded the recorded phone calls because they were duly recorded by
L.D., at the direction of the DOJ, as part of a criminal investigation. (§ 633.) Further,
“[t]here is nothing in section 633 which limits use of the telephone call recorded pursuant
to the law enforcement exception in a criminal case. Rather, if the conversation is
recorded in the course of a criminal investigation, the exception applies and the recording
is admissible in any proceeding -- criminal, civil, or administrative.” The trial court
further ruled that even assuming the recordings were inadmissible, there was sufficient
remaining evidence to uphold the dismissal and that the penalty of dismissal was not an
abuse of discretion.
The trial court entered judgment denying Telish’s petition and granting DOJ’s
cross-petition. It directed the Board to set aside the portion of its decision that held the
recorded phone conversations were inadmissible.
Telish appealed.
CONTENTIONS
We summarize Telish’s contentions as follows: (1) the recordings and their
progeny were inadmissible because they were obtained in a sham criminal investigation
for use in administrative proceedings against him; (2) the DOJ violated his rights under
the Public Safety Officers Procedural Bill of Rights Act (POBRA) (Gov. Code, § 3300 et
6
seq.); (3) the recordings were inadmissible in any proceeding because they were
confidential communications obtained in violation of section 632; (4) L.D.’s credibility
as a victim should be reevaluated; (5) if the recordings and their progeny are disregarded,
the adverse decision cannot be upheld.4
DISCUSSION
1. Standards applicable to judicial review of an SPB decision.
Trial court review of an administrative decision is governed by Code of Civil
Procedure section 1094.5. Subdivision (b) thereof limits the court’s inquiry “to the
questions whether the [administrative tribunal] has proceeded without, or in excess of
jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of
discretion.” In determining whether there was an abuse of discretion, the reviewing court
considers whether the administrative tribunal proceeded in the manner required by law,
whether its order or decision is supported by the findings, and whether the findings are
supported by the evidence. (Ibid.)
Because the SPB is vested with quasi-judicial powers, the trial court may not
exercise its independent judgment, but must uphold the Board’s findings if they are
supported by substantial evidence. In applying the substantial evidence test, the trial
court must examine all relevant evidence in the entire record, considering both the
evidence that supports the Board’s decision and the evidence against it, in order to
determine whether that decision is supported by substantial evidence. (Coleman v.
Department of Personnel Administration, supra, 52 Cal.3d at p. 1125; Furtado v. State
Personnel Bd. (2013) 212 Cal.App.4th 729, 742 (Furtado). This does not mean,
4
Telish’s reply brief on appeal belatedly raises various new arguments. In the reply
brief, Telish contends, inter alia, the recordings of his private conversations denied him
equal protection, and that the penalty of dismissal was an abuse of discretion. An
appellant’s failure to raise an argument in the opening brief waives the issue on appeal.
(Tisher v. California Horse Racing Bd. (1991) 231 Cal.App.3d 349, 361; Dieckmeyer v.
Redevelopment Agency of Huntington Beach (2005) 127 Cal.App.4th 248, 260.)
Therefore, points which Telish raises for the first time in his reply brief have been
waived.
7
however, that a court is to reweigh the evidence; rather, all presumptions are indulged
and conflicts resolved in favor of the Board’s decision. (Furtado, at p. 742.)
These standards “do not change on appellate review from a trial court’s denial of a
petition for writ of mandate from a decision of the SPB; an appellate court independently
determines whether substantial evidence supports the SPB’s findings, not the trial court's
conclusions.” (Furtado, supra, 212 Cal.App.4th at p. 742.) However, insofar as an
appeal from an administrative mandamus proceeding presents questions of law, our
review is de novo. (Ibid.)
2. Trial court properly held the recorded phone calls were admissible because
L.D. recorded them at the direction of law enforcement.
a. Statutory scheme.
The Invasion of Privacy Act (§ 630 et seq.) prohibits one party to a conversation
from recording it without the other’s consent. (Ribas v. Clark (1985) 38 Cal.3d 355,
360.) While one “who imparts private information risks the betrayal of his confidence by
the other party, a substantial distinction has been recognized between the secondhand
repetition of the contents of a conversation and its simultaneous dissemination to an
unannounced second auditor, whether that auditor be a person or mechanical device.
[Citation.]” (Id. at pp. 360-361.)
Section 632 states in relevant part: “(a) Every person who, intentionally and
without the consent of all parties to a confidential communication, by means of any
electronic amplifying or recording device, eavesdrops upon or records the confidential
communication, whether the communication is carried on among the parties in the
presence of one another or by means of a telegraph, telephone, or other device, except a
radio, shall be punished by a fine not exceeding two thousand five hundred dollars
($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison,
or by both that fine and imprisonment.” (Italics added.)
The term “confidential communication” is defined as including “any
communication carried on in circumstances as may reasonably indicate that any party to
8
the communication desires it to be confined to the parties thereto . . . .” (§ 632,
subd. (c).)
Subdivision (d) of section 632 provides for the exclusion of evidence obtained in
violation of the statute. It states: “Except as proof in an action or prosecution for
violation of this section, no evidence obtained as a result of eavesdropping upon or
recording a confidential communication in violation of this section shall be admissible in
any judicial, administrative, legislative, or other proceeding.” (Italics added.)
Section 633, which is the key provision for our purposes, creates an exception for
recorded communications by an individual acting at the direction of law enforcement.
“Nothing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits the Attorney General, any
district attorney, or any assistant, deputy, or investigator of the Attorney General or any
district attorney, any officer of the California Highway Patrol, any chief of police,
assistant chief of police, or police officer of a city or city and county, any sheriff,
undersheriff, or deputy sheriff regularly employed and paid in that capacity by a county,
police officer of the County of Los Angeles, or any person acting pursuant to the
direction of one of these law enforcement officers acting within the scope of his or her
authority, from overhearing or recording any communication that they could lawfully
overhear or record prior to the effective date of this chapter.” (§ 633, italics added.)5 6
5
Said chapter, the Invasion of Privacy Act, was added by Statutes 1967, chapter
1509, section 1. Under prior law, recording of telephone conversations was “not illegal if
consent of one party to the communication [was] obtained.” (Sen. Com. on Judiciary,
analysis of Assem. Bill No. No. 860 (1967-1968 Reg. Sess.) as amended June 5, 1967,
p. 1, italics added.)
6
Similarly, the federal Omnibus Crime Control and Safe Streets Act of 1968, 18
U.S.C. § 2510 et seq., provides in relevant part at section 2511(2)(c): “It shall not be
unlawful under this chapter for a person acting under color of law to intercept a wire,
oral, or electronic communication, where such person is a party to the communication or
one of the parties to the communication has given prior consent to such interception.”
(Italics added.) In “assessing whether someone acted under ‘color of law’ for the wiretap
statute, the question is whether the witness was acting under the government’s direction
when making the recording.” (U.S. v. Andreas (7th Cir. 2000) 216 F.3d 645, 660.)
9
b. Duly recorded phone calls are admissible in administrative proceedings.
As set forth above, notwithstanding section 632, an individual acting at the
direction of a law enforcement officer may record a confidential communication.
(§ 633.) That is what occurred here. As the Board found, L.D. surreptitiously recorded
multiple telephone conversations between herself and Telish, under the direction of
Special Agent Stauts (Stauts), who was conducting a criminal investigation of Telish on
behalf of the DOJ.
The Board found the exception of section 633 “allowed [L.D.] to record her
telephone conversations with [Telish] at the direction of the DOJ.”
Although the Board found L.D. made the recordings at the direction of law
enforcement, it ruled the recordings could not be admitted into evidence at the
administrative hearing before the ALJ. Its rationale was that “section 633 is intended
solely to permit law enforcement officers to continue to use electronic devices in criminal
investigations, necessary in the performance of their duties in detecting crimes and
apprehending criminals. . . . [I]n this case, even though the recording was performed
pursuant to the direction of the DOJ in connection with a criminal investigation, the use
of the recording was to discipline a DOJ employee in an administrative hearing, betraying
the very purpose of the legislation, which is to detect crimes and apprehend criminals.
Simply because DOJ obtained the recordings as part of a criminal investigation, does not
mean that it has free rein to use the recordings at its own volition.”
We, like the trial court, conclude the Board misread the statute. Section 632,
subdivision (d) precludes the admission of evidence obtained “in violation of this
section,” i.e., section 632, “in any judicial, administrative, legislative, or other
proceeding.” (§ 632, subd. (d), italics added.) Thus, the subdivision only excludes
evidence which was obtained in violation of section 632. Evidence which was obtained
without violating section 632 is not made inadmissible by subdivision (d) thereof.
Further, nothing in section 632, subdivision (d) limits the use of duly recorded
communications to criminal proceedings or precludes their use in administrative
10
proceedings. If evidence is obtained without running afoul of section 632, nothing in
subdivision (d) limits the manner in which such evidence may be used.7 8
The maxim expressio unius est exclusio alterius, which means “ ‘the expression of
certain things in a statute necessarily involves exclusion of other things not expressed’ ”
(Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391,
fn. 13), is applicable here. The exclusionary rule set forth in subdivision (d) of section
632 provides for the exclusion only of evidence obtained “in violation of this
section . . . in any judicial, administrative, legislative, or other proceeding.” (Ibid., italics
added.) Thus, the exclusionary rule is not as broad as Telish would like. It does not
restrict the use of evidence which was properly obtained in accordance with section 633.
The Legislature certainly could have specified that evidence lawfully obtained pursuant
to section 633, at the direction of law enforcement, may only be used in a criminal
proceeding. It did not do so. This court cannot, under the guise of interpretation
(California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342,
7
Federal law is in accord. In Resha v. U.S. (6th Cir. 1985) 767 F.2d 285 (cert.
den.), the issue presented was whether evidence derived from a lawful wiretap during an
investigation of criminal activities and later disclosed to revenue agents who used it for
the purpose of making civil tax assessments was subject to suppression in an action to
recover taxes paid pursuant to such assessments. Resha “construe[d] [18 U.S.C.] § 2515
to permit suppression of evidence only if that evidence was derived from unlawful,
improper or unauthorized interceptions of wire or oral communications.” (767 F.2d at
p. 288, italics omitted.) Resha concluded “the legislative history and authoritative
construction of the statute lead to the conclusion that the extreme remedy of suppression
is authorized only when the interception itself was unlawful for one or more of the
reasons set forth in [18 U.S.C.] § 2518(10)(a).” (767 F.2d at p. 289.)
8
The trial court reached the identical conclusion. It reasoned: “There is nothing in
section 633 which limits use of the telephone call recorded pursuant to the law
enforcement exception in a criminal case. Rather, if the conversation is recorded in the
course of a criminal investigation, the exception applies and the recording is admissible
in any proceeding -- criminal, civil, or administrative. Indeed, section [632(d)] only
excludes evidence obtained in violation of section [632]; evidence obtained pursuant to
section 633’s law enforcement exception is not evidence obtained in violation of section
[632’s] proscription.”
11
349), expand the exclusionary rule of section 632, subdivision (d), or insert a limitation in
section 633, by adding terms which the Legislature chose not to include. “[W]e must
limit ourselves to interpreting the law as written and leave for the People and the
Legislature the task of revising it as they deem wise.” (People v. Garcia (1999)
21 Cal.4th 1, 15.) “A court may not rewrite a statute, either by inserting or omitting
language, to make it conform to a presumed intent that is not expressed. [Citations.]”
(Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 73-74.)
c. Telish’s authorities are inapposite.
Telish’s, and the Board’s, reliance on Rattray, supra, 51 F.3d 793 to disallow the
recordings is misplaced. There, Officer Rattray was accused of sexually harassing a
female coworker, Figueroa. In the course of investigating this complaint, the police
captain directed “that Figueroa attempt to engage Rattray in a flirtatious conversation,
and that she secretly record the incident. Figueroa subsequently taped a conversation
between herself and Rattray.” (Id. at pp. 795-796.) Rattray sued, alleging inter alia, a
claim of invasion of privacy based on the secret recording of his conversation with
Figueroa. (Id. at p. 796.)
The district court relied upon the section 633 exception to dismiss plaintiff’s
claim, “ruling that because police captains could secretly record the private conversations
of their employees by ‘wiring’ one party to the conversation prior to the enactment of
§ 633, the actions of Rattray’s supervisors did not run afoul of § 632 in this case.”
(Rattray, supra, 51 F.3d at p. 797, fn. omitted.) The Ninth Circuit reversed, stating “[t]he
legislative history of § 633 and the dictates of the California Constitution, however,
compel a conclusion that § 633 protects only electronic recording and eavesdropping in
the course of criminal investigations, and not police recordings of their own employees as
a matter of internal discipline.” (Rattray, supra, at p. 797, italics added.)
Thus, in Rattray, the section 633 exception did not apply because the recording
was not obtained in the course of a criminal investigation. Rather, there was merely an
internal investigation into Figueroa’s accusation that co-worker Rattray had sexually
harassed her.
12
Here, unlike Rattray, the recordings occurred in the context of a criminal
investigation, so as to bring this fact situation within the section 633 exception for a
recording made at the direction of law enforcement. Rattray stands for the proposition
that section 633 only protects recordings which were made in the course of a criminal
investigation. As the trial court observed herein, “Rattray has nothing to do with the use
of a recorded telephone call, properly recorded in a criminal investigation, in a civil or
administrative case.” (Emphasis added.)
Telish also relies heavily on Dyson v. State Personnel Bd. (1989) 213 Cal.App.3d
711 (Dyson). There, the Department of Youth Authority conducted a search of a youth
counselor’s home for evidence that the counselor had committed the crime of theft.
(Id. at p. 714.) A criminal prosecution was dismissed on the ground the search violated
the employee’s constitutional right to privacy. (Ibid.) However, over the employee’s
objection, the unconstitutionally seized evidence was admitted in a subsequent
administrative disciplinary proceeding which resulted in the employee’s dismissal. (Id. at
pp. 714-715.) The issue presented on appeal was whether said evidence should have
been excluded from the administrative proceedings. Dyson concluded the Board was
collaterally estopped to deny the constitutional invalidity of the search, as determined in
the criminal proceeding, and the unconstitutionally seized evidence should have been
excluded in the administrative proceeding. (Id. at p. 715.)
Dyson does not assist Telish. Unlike Dyson, where the evidence was seized
unlawfully, L.D. duly recorded her conversations with Telish pursuant to the direction of
law enforcement, in connection with an active criminal investigation. (§ 633.)
Therefore, Dyson’s exclusionary rule has no application here. (See California Science
Center v. State Personnel Bd. (2013) 218 Cal.App.4th 1302, 1308-1309 [distinguishing
Dyson; exclusionary rule did not apply because evidence leading to employee’s
termination was not obtained via an unconstitutional search or seizure].)
Likewise, In re M.B. (State Personnel Bd. 1996) SPB Precedential Decision
No. 96-08, cited by Telish, is inapposite. There, evidence was excluded in an
administrative proceeding because it was obtained in violation of the federal wiretapping
13
law. (18 U.S.C. §§ 2510-2521). Here, the recordings were obtained lawfully (§ 633) and
therefore were admissible in the administrative proceeding.
d. No merit to Telish’s contention the criminal investigation was a sham;
the Board properly determined L.D. duly recorded the conversations at the direction of
law enforcement.
In an attempt to avoid section 633’s allowance of recordings at the direction of law
enforcement, Telish contends the criminal investigation was a “sham” to enable DOJ to
invoke section 633, which authorizes recording of conversations at the direction of law
enforcement.
Whether a criminal investigation is a sham is a factual issue. (Van Winkle v.
County of Ventura (2007) 158 Cal.App.4th 492, 498 (Van Winkle) [former deputy sheriff
contended sheriff’s departments often initiate criminal investigations as shams to conduct
disciplinary investigations without affording POBRA protections].) Here, the Board
found L.D. duly recorded the telephone conversations in accordance with section 633
“pursuant to the direction of the DOJ in connection with a criminal investigation.” That
finding, which is supported by substantial evidence, must be upheld. The evidence
showed:
In 2009, L.D. was working for the City of Placentia as the administrative assistant
to its police chief, Chief Anderson. In late 2009, L.D. told Chief Anderson that (1) Telish
had assaulted her in her home by holding her down on a couch while he examined her
cell phone history, and (2) Telish had threatened to show L.D.’s son nude photographs of
her if she failed to recant statements she had made about their affair.
Based on L.D.’s report, Chief Anderson felt that Telish had potentially committed
crimes of domestic violence and extortion. Chief Anderson was extremely upset and felt
that Telish should not be in law enforcement. Chief Anderson reported L.D.’s statements
to Director George Anderson and Deputy Director Rick Lopes of DOJ’s Division of Law
Enforcement which oversees the Bureau of Narcotics Enforcement, which is where
Telish worked.
14
DOJ commenced a preliminary investigation by having L.D. interviewed by two
investigators from its Professional Standards Group. L.D. told them that she was
involved in a sexual relationship with Telish, he had physically assaulted her, and he had
threatened to release nude photographs of her if she did not cooperate in concealing their
affair. The interviewers found L.D. spoke candidly and was credible.
Based on the report from the interviewers, Director Anderson opined “it appeared
that we had criminal violations in the area with domestic violence, dissuading a witness,
perhaps perjury. . . . [¶] So at that point on, we had to investigate it criminally.”
The criminal investigation was first in time, and was separate from the
administrative investigation, which was conducted by DOJ’s employment law office,
outside the Division of Law Enforcement.
Director Anderson met with a criminal supervising deputy attorney general,
Canzoneri, to obtain an independent evaluation of possible criminal charges and to
discuss how to proceed. It was determined the potential charges against Telish consisted
of witness intimidation and false imprisonment.
Director Anderson decided “we needed to go ahead and make surreptitious
telephone recording conversations so we could establish whether in fact there was
criminal culpability.” Director Anderson gave the approval to proceed with the telephone
recordings.
The criminal investigation was conducted by Special Agent Stauts. He advised
L.D. that it was legal for her to surreptitiously record the conversations as an agent of a
peace officer. Stauts instructed L.D. to record her telephone conversations with Telish,
and to discuss that he had held her down on the couch and had threatened to expose her
nude photographs if she did not cooperate in concealing their relationship. L.D.
expressed concern that this discussion would cause Telish to know that she was recording
the conversations, but Stauts assured her that based on his experience, Telish would not
react that way. After each telephone call, L.D. contacted Stauts and gave him a synopsis.
Stauts then would meet with L.D., obtain the recorder, and download the recording to his
computer. L.D. recorded eight telephone conversations with Telish.
15
In the final taped conversation on February 23, 2010, Telish acknowledged he had
held L.D. down on the couch while he looked through her phone. That was sufficient
because Canzoneri had advised Stauts that false imprisonment was the stronger of the
two charges. Stauts then prepared a report on the criminal investigation and submitted it
to the Orange County District Attorney’s office, which declined to prosecute.
In sum, substantial evidence supports the Board’s conclusion that section 633
applied insofar as “[L.D.] . . . record[ed] her telephone conversations with [Telish] at the
direction of the DOJ.” The evidence showed the DOJ criminal investigation was
prompted by a report from Chief Anderson, at an outside law enforcement agency, that
Telish had engaged in domestic violence against L.D. and had threatened her if she
refused to recant the affair. It was Chief Anderson who contacted DOJ because he
believed Telish “had committed a crime against her.” Stauts directed L.D. to record the
conversations because he “didn’t think there was any other way we were going to prove
or disprove her allegations.” The record supports the Board’s determination that L.D.
duly recorded the conversations, at DOJ’s direction, in its criminal investigation of
Telish. Accordingly, we reject Telish’s contention the criminal investigation was a sham
to circumvent section 633.
3. Telish’s POBRA arguments.
a. The protections of POBRA do not apply to an officer subject to an
independent criminal investigation conducted by his or her employer.
POBRA (Gov. Code, § 3300 et seq.) provides procedural rights for a law
enforcement officer who is the subject of an administrative investigation. Government
Code section 3303 specifies the protections that apply when a peace officer is
interrogated in the course of an administrative investigation that might subject the officer
to punitive action, such as “ ‘dismissal, demotion, suspension, reduction in salary, written
reprimand, or transfer for purposes of punishment.’ ” (Pasadena Police Officers Assn. v.
City of Pasadena (1990) 51 Cal.3d 564, 574.) Telish contends POBRA’s protections
were applicable because he was under an “administrative investigation” while he engaged
in private telephone conversations with L.D. The argument fails.
16
Government Code section 3303, subdivision (i), states in relevant part, “This
section shall not apply to any interrogation of a public safety officer in the normal course
of duty, counseling, instruction, or informal verbal admonishment by, or other routine or
unplanned contact with, a supervisor or any other public safety officer, nor shall this
section apply to an investigation concerned solely and directly with alleged criminal
activities.” (Italics added.) Thus, the protections of POBRA do not apply to an officer
who is subject to an independent criminal investigation conducted by the employer (Van
Winkle, supra, 158 Cal.App.4th at pp. 494, 498), which is what occurred here.9
b. Statute of limitations.
Telish also contends this matter is time-barred because, pursuant to POBRA, the
DOJ had one year from the time of an earlier investigative report, dated March 28, 2008,
to proceed against him.10
“The date upon which an administrative agency discovers misconduct is a
question of fact, as is the reasonable diligence with which the person authorized to
initiate an investigation into misconduct acted.” (Haney v. City of Los Angeles (2003)
109 Cal.App.4th 1, 8.)
On June 29, 2010, Telish was served with a Notice of Adverse Action (NOAA) of
Dismissal. The NOAA alleged that in 2007 it was reported to management that he and
9
Telish relies on language in California Correctional Peace Officers Assn. v. State
of California (2000) 82 Cal.App.4th 294 “that the criminal investigations referred to in
subdivision (i) of section 3303 . . . must be ones conducted primarily by outside agencies
without significant active involvement or assistance by the employer.” (82 Cal.App.4th
at pp. 308-309.) However, Van Winkle noted “there is no language in [POBRA] which
supports this interpretation.” (Van Winkle, supra, 158 Cal.App.4th at p. 499; accord
Department of Corrections & Rehabilitation v. State Personnel Bd. (2013)
215 Cal.App.4th 1101, 1109.)
10
Government Code section 3304 states in relevant part at subdivision (d), “no
punitive action, nor denial of promotion on grounds other than merit, shall be undertaken
for any act, omission, or other allegation of misconduct if the investigation of the
allegation is not completed within one year of the public agency’s discovery by a person
authorized to initiate an investigation of the allegation of an act, omission, or other
misconduct.”
17
L.D. were having an affair, and that he coerced L.D. to recant her statement that they
were having an affair. “However, it was not until December 2009 that DOJ learned that
the reason [L.D.] recanted the story of the affair . . . in 2007 was that you threatened to
release the nude pictures that you had of her to her son and others, if she did not do so. In
other words, you coerced her to lie.” (Italics added.)
In ruling the action was timely, the Board determined, “There is no evidence that
anyone meeting the definition of a ‘person authorized to initiate an investigation’ [(Gov.
Code, § 3304, subd. (d)(1))] had knowledge of [Telish] allegedly threatening to release
the photographs until L.D. reported the threat in December 2009. Accordingly, the
charge is not barred by the [statute of limitations].” (Italics added.)
We perceive no error. We are mindful it was not until late 2009 that L.D.
disclosed Telish’s threats to Chief Anderson. Therefore, substantial evidence supports
the Board’s determination that the DOJ did not discover this misconduct until December
2009. We conclude Telish’s contention the DOJ should have discovered the threats in
2007 or 2008 is meritless.
4. Telish’s contentions with respect to the merits of the Board’s decision.
a. No merit to Telish’s contention that L.D.’s credibility should be
reevaluated and that her testimony should be given no weight.
Telish contends L.D.’s credibility should be reevaluated and that her testimony
should be given no weight. We summarily reject Telish’s argument that the Board
should have disbelieved L.D.’s testimony. “[C]redibility of witnesses and the proper
weight to be given to their testimony were matters within the exclusive province of the
[B]oard.” (Lorimore v. State Personnel Board (1965) 232 Cal.App.2d 183, 189; accord
Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 877; Flowers v. State Personnel
Bd. (1985) 174 Cal.App.3d 753, 759; Larson v. State Personnel Bd. (1994)
28 Cal.App.4th 265, 273.)
18
b. No challenge to sufficiency of the evidence to support Board’s decision.
Apart from attacking L.D.’s credibility and contending the criminal investigation
was a sham, Telish does not challenge the sufficiency of the evidence to support the
Board’s adverse decision on the various charges against him.
Further, Telish’s opening brief, which sets forth the evidence in the light most
favorable to him, cannot be construed as presenting such a contention. “ ‘When an
appellant challenges an administrative decision as unsupported by substantial evidence in
light of the record as a whole, it is [the] appellant’s burden to demonstrate that the
administrative record does not contain sufficient evidence to support the agency’s
decision.’ [Citation.] A recitation of only the part of the evidence that supports the
appellant’s position ‘is not the “demonstration” contemplated under the above rule.
[Citation.] Accordingly, if [appellants] contend “some particular issue of fact is not
sustained, they are required to set forth in their brief all the material evidence on the point
and not merely their own evidence. Unless this is done the error is deemed to be
waived.” ’ [Citations.]” (State Water Resources Control Bd. Cases (2006)
136 Cal.App.4th 674, 749.)11
c. Unncecessary to address whether the Board’s decision can be sustained
if the recordings and their progeny were disregarded.
Finally, Telish contends that absent the recordings and their progeny, the Board’s
adverse decision cannot be upheld. In view of our conclusion that L.D. duly made the
recordings at the direction of law enforcement in the course of a criminal investigation
(§ 633), it is unnecessary to discuss whether the Board’s decision would be sustainable if
the challenged evidence were excluded.
11
We note the trial court similarly found, “Telish’s moving papers contain only
snippets of the relevant facts. For each charge, the papers cite only to testimony and
evidence which Telish contends supports his position without any reference to the other
facts and evidence. [¶] . . . [¶] Telish’s opening brief is procedurally defective because
he did not present all of the pertinent evidence on any issue; the court cannot evaluate
from the facts he presents whether substantial evidence exists to support the SPB’s
decision. Telish’s petition is denied for this reason alone.”
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DISPOSITION
The judgment is affirmed. The Board shall recover its costs on appeal.
CERTIFIED FOR PUBLICATION
EDMON, P. J.
We concur:
KITCHING, J.
ALDRICH, J.
20