By Stewart Weinberg & Kerianne Steele
Stewart Weinberg, a 1960 graduate of Boalt Hall, is a shareholder of Weinberg, Roger & Rosenfeld in Alameda, a union-side labor law firm. Mr. Weinberg specializes in the representation of unions and employees in the public sector. Kerianne Steele also is a shareholder of the firm. She provides general representation to labor unions, primarily in the public sector.
Telish v. State Personnel Bd., 234 Cal. App. 4th 1479 (2015)
The plaintiff was employed by the California Department of Justice (DOJ) as a Senior Special Agent In Charge at the Bureau of Narcotics Enforcement's Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force. While employed by the DOJ, plaintiff had engaged in a consensual sexual relationship with a subordinate employee. The subordinate employee revealed their relationship to coworkers. The plaintiff ordered her to deny the rumors that began to circulate. He threatened to post over 100 sexually explicit photographs of her online, or possibly email them to her son, if she did not recant the stories about their relationship. Later, he looked through her phone and held her down on a couch to keep her from reaching her phone. The (now former) subordinate employee reported the incidents to her current employer, who in turn reported them to the DOJ and the Orange County District Attorney. The DOJ initiated a criminal investigation. At the direction of the DOJ, she then surreptitiously recorded multiple telephone conversations with the plaintiff without his knowledge. The DOJ subsequently terminated the plaintiff, for a number of reasons. The plaintiff appealed his dismissal to the State Personnel Board (SPB) which, by statute, had jurisdiction to conduct a hearing on plaintiff's appeal.
The Administrative Law Judge (ALJ) denied the plaintiff's motion to exclude the evidence of the telephone recordings, concluding 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 Cal. Penal Code section 633. The ALJ then issued a proposed decision recommending that the termination be upheld. However, the SPB rejected the ALJ's proposed decision and heard the case itself. The SPB reversed the ALJ's evidentiary ruling, holding that the recordings could have only been used in a criminal proceeding and should have been excluded from the administrative proceeding. The SPB concluded that, although the recordings should have been excluded, the ALJ's receipt of the recordings into evidence was harmless error, and sustained the termination.
The plaintiff filed a petition for writ of administrative mandate. In his petition, he argued that the recordings were inadmissible and that, without the recordings, there was insufficient evidence to sustain his dismissal. The DOJ filed a cross-petition arguing that the recordings should not have been excluded and that the SPB's decision should be upheld as supported by the recordings. The trial court agreed with the DOJ that the tapes had been improperly excluded because they were recorded at the direction of the DOJ as part of a criminal investigation and could be used in any proceeding-criminal, civil...
