SACRAMENTO, Calif. (Legal Newsline) – The California State Personnel Board could not - and did not - forfeit its authority in its review of discipline against a former corrections attorney when it initially referred the matter to an administrative law judge, a state appeals court recently ruled.
The board's decision to refer review of the attorney's dismissal to the Office of Administrative Hearings did not preclude the board taking any further action, California's 3rd District Court of Appeal said in its 17-page decision handed down Oct. 31.
"As we have described, it is the board that must render the decision that in its judgment is just and proper," Justice Elena J. Duarte wrote in the decision. "This is not merely a statutory requirement (although it is that), it is a constitutional requirement that no other body can act in lieu of the Board."
California Third District Court of Appeal Justice Elena J. Duarte
The court affirmed the Sacramento County Superior Court's decision to deny the attorney's writ of administrative mandamus, finding that the relevant evidence code that bars and administrative law judge's testimony in a civil proceeding doesn't preclude the judge's testimony during an administrative proceeding.
The plaintiff in the case, Auburn, California, attorney Pamela J. Palmieri, had been hired by the California Department of Corrections and Rehabilitation to investigate disciplinary cases against prison guards but then was herself terminated in late 2010 for misconduct, according to the background portion of the appeals court's decision. The department is named in the litigation as a real party in interest.
Palmieri was found culpable of four counts of misconduct, including discourtesy and dishonesty to an administrative law judge who had chastised her for tardiness and a co-worker she allegedly "severely abused" over a payroll withholding error. In the latter case, Palmieri allegedly yelled at the co-worker, "she swore, she pounded her fist and called the employees 'terrible,'" reducing the co-worker to tears, the appeals court's decision said.
The California State Personnel Board ultimately upheld her termination and a Sacramento County Superior Court Judge in May 2016 denied her mandamus petition to overturn her dismissal.
Palmieri also objected to the testimony against her by two administrative law judges but the appeals court agreed that Palmieri forfeited her right to object when she didn't object as soon as she knew the judges were going to testify.
"We agree with the Department [of Corrections and Rehabilitation] that Palmieri engaged in 'a naked attempt to game the hearing process' by waiting to see if the evidence was favorable before interposing her objection," the appeals court's decision said. "Waiting to see how the evidence turned out and then objecting or moving to strike was not sufficient."
Duarte wrote the appeals court's decision in which Justice Andrea Lynn Hoch and Justice Jonathan K. Renner concurred.