James Selvitella v. City of South San Francisco, C , 425 F. App'x 544 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES SELVITELLA, No. 10-15151
Plaintiff - Appellant, D.C. No. 4:08-cv-04388-CW
v.
MEMORANDUM *
CITY OF SOUTH SAN FRANCISCO,
CALIFORNIA, a Municipal Corporation;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Submitted March 16, 2011 **
San Francisco, California
Before: NOONAN, FERNANDEZ, and CLIFTON, Circuit Judges.
James Selvitella appeals the district court’s order denying his petition for a
writ of mandamus under California Code of Civil Procedure § 1094.5. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court correctly concluded that the city of South San Francisco
complied with its Personnel Rule § 13.02(B), which requires that the subject of
disciplinary action be allowed “to inspect copies of all materials upon which the
disciplinary action is based.” In Selvitella’s hearing before the Personnel Board,
the Board accepted testimony that the city produced all of the materials it relied on
in deciding to terminate Selvitella. The materials provided Selvitella with his
notice of termination were more than sufficient to prove the factual allegations
underlying his dismissal–indeed, Selvitella’s termination could have been
supported by his admissions alone–which constitutes substantial evidence
supporting the Board’s conclusion that Selvitella was allowed to inspect all
materials on which the decision to terminate him was based. See Rosenblit v.
Superior Court, 282 Cal. Rptr. 819, 824 (1991) (holding that foundational factual
findings material to whether an agency proceeded in the manner required by law
are reviewed for substantial evidence).
The Personnel Board did not abuse its discretion by denying Selvitella’s
discovery requests. See Cimarusti v. Superior Ct., 94 Cal. Rptr. 2d 336, 342-43
(Cal. Ct. App. 2000) (holding that agency evidentiary and discovery decisions are
reviewed for abuse of discretion). Selvitella’s reliance on Shiveley v. Stewart, 55
Cal. Rptr. 217 (Cal. 1966) is misplaced for two reasons. First, Shiveley dealt with
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the right to practice one’s profession, not to retain a particular job. Second, even in
Shively, the doctors challenging the agency decision were denied discovery with
respect to “reports and documents gathered by investigators and employees of the
board.” Shiveley, 55 Cal. Rptr. at 69. The court held that “to secure discovery, there
must be a showing of more than a wish for the benefit of all the information in the
adversary’s files,” and that “some additional showing of need and specificity” was
required. Id. Selvitella has been incapable of even theorizing as to what types of
documents or other materials the criminal investigation may have produced that
could overcome the clearly established facts of his misconduct. Because the Board
properly found that Selvitella had been provided all the materials to which he was
entitled under local rules, the district court was correct to conclude that it did not
abuse its discretion in refusing to order additional discovery.
Selvitella’s complaint that the Board’s decision was not supported by
findings related to the charges against him is without merit. In its decision, the
Board noted that it “voted, unanimously, to uphold the City’s decision.” The Board
also referenced the factual conclusions that underlay the City’s decision:
The City terminated Mr. Selvitella’s employment after
determining that Mr. Selvitella had engaged in repeated
instances of illegal gambling while on duty, used City
facilities to conduct illegal gambling activities and
facilitated on-duty illegal gambling by a subordinate.
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Far from leaving any “analytic gap,” as Selvitella suggests, the links between the
factual allegations against Selvitella and the rule violations that resulted in his
termination were made abundantly clear in the several notices he received
regarding the disciplinary action against him, and did not require much explanation
in the first place. Cf. Topanga Ass’n for A Scenic Community v. County of Los
Angeles, 113 Cal. Rptr. 836, 841 (1974) (“[I]mplicit in section 1094.5 is a
requirement that the agency which renders the challenged decision must set forth
findings to bridge the analytic gap between the raw evidence and ultimate decision
or order.”) That the Personnel Board decision was brief and incorporated the City’s
decision by reference is inconsequential, for the communication of the charges to
Selvitella certainly satisfied “the liberal rules of administrative pleading,” which
“require only that the respondent . . . be informed of the substance of the charge
and afforded the basic, appropriate elements of procedural due process.” Cooper v.
Bd. of Med Examiners, 123 Cal. Rptr. 563, 570 (Cal. Ct. App. 1975); see also
Burako v. Munro, 345 P.2d 124, 126 (Cal. Ct. App. 1959) (“[C]ourts are more
interested in fair notice to the accused than in adherence to technical rules of
pleading.”).
Selvitella’s emphasis on the Board’s statement that it “also note[d] that the
termination is warranted based on Mr. Selvitella’s acknowledged repeated
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instances of illegal conduct while on duty” is a red herring. That statement merely
indicates that, in addition to the several rule violations cited by the City, Selvitella
also deserved to be terminated based on the simple fact that his actions were
illegal. See South San Francisco Personnel Rule 13 (“The City may take
disciplinary action against any employee for misconduct of any violation of
. . . any laws.”).
The Board did not abuse its discretion by terminating Selvitella for his
misconduct. Courts review agency penalties “with great deference to the
administrative agency.” Deegan v. Mountain View, 84 Cal. Rptr. 2d 690, 695 (Cal
Ct. App. 1999). “The appellate court reviews the agency’s selection of penalty and,
if reasonable minds can differ with regard to the propriety of the disciplinary
action, it finds no abuse of discretion.” Id. Every City official that reviewed
Selvitella’s case, including the Fire Chief, the City Manager, the Assistant City
Manager, and each member of the unanimous Board, determined that Selvitella
should be terminated. Their determination was based on the fact that Selvitella
violated City rules by engaging in conduct that he knew was illegal, by
encouraging at least one subordinate employee to do the same, and by using City
property and equipment to engage in that illegal activity. That is not an
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unreasonable basis. See Deegan, 84 Cal. Rptr. 2d at 695. The Board therefore did
not abuse its discretion in upholding Selvitella’s termination.
AFFIRMED.
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