Mabry-Height v. Cal. State Personnel Bd. CA2/7 ( 2015 )

Filed 10/19/15 Mabry-Height v. Cal. State Personnel Bd. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
VICKIE MABRY-HEIGHT, B253269
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS139300)
v.
CALIFORNIA STATE PERSONNEL
BOARD,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Joanne
B. O’Donnell and Robert H. O’Brien, Judges. Affirmed.
Wilton & Associates and Ronald D. Wilton for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Senior Assistant
Attorney General, Kenneth C. Jones and Kevin K. Hosn, Deputy Attorneys General, for
Defendant, Cross-complainant and Respondent.
_______________________
INTRODUCTION
Vickie Mabry-Height, M.D., appeals from a judgment denying her petition for
writ of administrative mandamus. By her petition, Dr. Height sought to compel the State
Personnel Board to set aside its resolution finding her conduct violated Government Code
section 19572 and upholding her dismissal from employment with the California
Department of Social Services (CDSS). On appeal, Dr. Height contends the trial court
erred in denying her petition because the board’s findings are not supported by
substantial evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. CDSS Disclosure Requirements, Dr. Height’s Employment and Her Initial
Disclosure of Outside Employment
The CDSS adopted an Incompatible Activities Statement for its employees
pursuant to Government Code section 19990. This section provides in part: “A state
officer or employee shall not engage in any employment, activity, or enterprise which is
clearly inconsistent, incompatible, in conflict with, or inimical to his or her duties as a
state officer or employee.” The Incompatible Activities Statement provides employees
are responsible for submitting, in writing, a description of all outside employment or
activities. It also provides, based on Public Contract Code section 10410, an employee is
prohibited from contracting on his or her own behalf with a state agency to provide goods
or services.
The CDSS’s Disability Determination Services Division (DDSD), Los Angeles
West Branch,1 hired Dr. Height as a Medical Consultant I in 2004. Her position required
1 Throughout this opinion, relevant branch offices of the DDSD are referred to by
their branch name alone, e.g., Los Angeles West Branch, La Jolla Branch, Stockton
Branch.
2
her to review and interpret medical evidence submitted by physicians to assist the DDSD
in determining claimants’ eligibility for disability benefits under several government
programs, including Social Security.
At the commencement of her employment, Dr. Height was provided with CDSS
Publication 228, which sets forth the CDSS’ Incompatible Activities Statement and
provides instructions for completing a required certification form regarding an
employee’s outside activities. Publication 228 defines outside employment and activities
as services performed by a CDSS employee on the employee’s own time for which the
employee may or may not receive compensation.
The Publication 228 Certification form requires an employee to check one of three
boxes regarding the employee’s outside employment and/or activities: Category A if the
employee has “no outside employment and/or activities”; Category B if the employee has
“employment and/or activities that do not deal with CDSS such as” retail, restaurant,
crafts, or ranching; or Category C if the employee has “employment and/or activities that
may be related to CDSS such as” working in a group home, counseling, contracting with
the state, day care, or medical examinations/reviews. The Certification form also states:
“I understand that by signing this certification I declare that I shall submit, in writing, a
description of any and all outside activities and/or outside employment as referenced in
Category B or C . . . within thirty (30) calendar days and, further declare that I will
submit, in writing, any and all changes relative to Category B or C . . . within thirty (30)
calendar days. [¶] I understand that failure to abide by this policy statement may result
in disciplinary action.”
At the time Dr. Height started working for the DDSD, she was a part-time
employee and she had her own private practice in internal medicine. In March 2005, she
completed a Publication 228 Certification form in which she disclosed the existence of
her private practice. She checked Category B and wrote on the form that she had outside
employment as a physician, which involved “examination & treatment of my private
patients in my office—20+ hours per week—patients have nothing to do with [C]DSS.”
Dr. Height never received any response to this form from CDSS.
3
B. Dr. Height’s Subsequent Disclosures of Outside Employment
Three years later, on February 26, 2008, after Dr. Height had become a full-time
employee of the DDSD, Dr. Height signed a second Publication 228 Certification form.
On the form, Dr. Height checked Category A indicating she had “no outside employment
and/or activities.”
On March 13, 2008, Dr. Height completed an annual California Form 700
Statement of Economic Interests (Form 700) covering calendar year 2007. Form 700
requires disclosure of earned income from business entities other than the CDSS.
Prior to filling out the Form 700, Dr. Height asked her immediate supervisor about
it. Dr. Height’s supervisor instructed Dr. Height she would “just have to read the form.”
Dr. Height turned to other medical consultants and inquired of them how they were
filling out the form. According to Dr. Height, those doctors indicated to her they had
nothing to report because none of their outside clinical work “had anything to do with
CDSS.”2 Dr. Height stated through the Form 700 she had “[n]o reportable interests on
any schedule.”
Dr. Height next completed and signed a Form 700 for calendar year 2009 on
April 13, 2010.3 Again, Dr. Height indicated on the form she had “[n]o reportable
interests on any schedule.”
For calendar year 2010, Dr. Height disclosed her private medical practice with
income “not from CDSS” of $10,001 to $100,000 per year on a Form 700 she signed
March 30, 2011. On an attachment to the form4 Dr. Height indicated she did “not feel
2 Dr. Height identified a number of physicians with whom she spoke. Two of the
physicians were called to testify during the hearing. Both physicians denied they had any
conversation with Dr. Height about Form 700s.
3 There is no Form 700 for calendar year 2008 in the record before us.
4 The attachment appears to have been created by CDSS and intended for its records
as it references the Incompatible Activities Statement and the Publication 228
Certification form.
4
[her] disclosures [were] a conflict of interest” because “[t]he business entity disclosed has
not provided any services to any State of California agency on a regular basis and was not
paid any money from the State of California from 01/01/2010 to 12/31/2010.”
(Capitalization omitted.)
Dr. Height also completed a Publication 228 Certification form on March 30,
2011. On the form, she selected Category B reflecting she had outside employment that
does not involve the CDSS. Dr. Height disclosed she was the sole proprietor of Vickie
Mabry Height, M.D. She explained in the form she “evaluate[s] and/or treat[s]
individuals.”5
C. Dr. Height’s Outside Employment While Employed by DDSD
Throughout her employment with DDSD, Dr. Height maintained her private
medical practice. She also worked for a number of other entities.
Dr. Height had active outside employment in 2008 with the California Medical
Board and the Registry of Physician Specialists. Dr. Height reviewed medical records
and rendered opinions for the California Medical Board. Through the registry, Dr.
Height was assigned to the California Department of Corrections and Rehabilitation to
provide medical services to 51 inmates over the course of a three-day period in June and
July.
During part of 2009 and 2010, Dr. Height was employed by Kaiser Permanente.
She worked in its hospital and as an on-call physician. Dr. Height could not recall but
did not think she did any work for the California Medical Board or the Registry of
Physician Specialists in 2009.
In December 2010, Dr. Height completed one medical evaluation for the Stockton
Branch. Dr. Height received this assignment through the La Jolla Branch. Dr. Height
5 Both 2011 forms were completed and signed after the DDSD conducted an
investigative interview of Dr. Height concerning her outside employment on February 24,
2011.
5
applied to be on the panel of physicians to whom the La Jolla Branch referred cases for
consultative evaluations in 2008.6 Dr. Height received $153 for the evaluation in January
2011.
Dr. Height also completed two consultative evaluations for the La Jolla Branch in
December 2010. Dr. Height received $291 for the evaluations in January 2011.
In January 2011, Dr. Height performed another consultative evaluation for the
Stockton Branch and two for the La Jolla Branch. Dr. Height received $424 for her
services.
D. The Investigative Interview
In late 2010, Dr. Height’s medical office received an appointment to perform a
consultative examination for the Los Angeles North Branch and attempted to reschedule
it. One of the staff members of that branch recognized Dr. Height as an employee of the
Los Angeles West Branch and reported the situation to her supervisor. As a result, the
DDSD conducted an investigative interview of Dr. Height on February 24, 2011.
In the interview, Dr. Height was asked about any outside employment she had
engaged in since 2008. Dr. Height stated that she had worked at her own office, Kaiser
Permanente, and possibly for the medical board. She did not disclose that she had
worked for the Department of Corrections and Rehabilitation through the Registry of
Physician Specialists. She denied that she had done any work for state agencies. She did
not acknowledge having performed consultative examinations for the CDSS until after
she was directly asked about such work.
E. The Notice of Adverse Action
On May 18, 2011, the CDSS served Dr. Height with a Notice of Adverse Action
(NOAA). The DDSD immediately placed Dr. Height on administrative time off from her
6 Consultative examinations are performed by private doctors who independently
contract with the CDSS to provide medical examinations.
6
position as a Medical Consultant I, and she was dismissed from her position effective
May 31.
According to the NOAA, the CDSS took the action against Dr. Height for
insubordination, willful disobedience, dishonesty, and other failure of good behavior all
in violation of Government Code section 19572, subdivisions (e), (f), (o) and (t). The
NOAA alleged Dr. Height had engaged in outside employment without reporting it or
seeking permission to do so,7 provided “vague, incomplete and non-responsive” answers
when questioned about the matter in the investigatory interview, climbed up on the
furniture to remove a fluorescent light bulb after being instructed to wait for the safety
coordinator, and failed to log into the office computer system for an average of 40 hours
per week.8
F. Appeal to the Board
Dr. Height filed her appeal to the board on June 5, 2011. She stated she disagreed
with the decision to dismiss her because: “The charges against me are fabricated, without
foundation, and defamatory.” In addition, she claimed she was terminated in retaliation
for prior protected activities, including a whistle-blowing complaint; complaints of race,
gender, and age discrimination; complaints about retaliation; questioning why some
employees were treated differently; a work-related injury; a complaint about refusal to
accommodate a medical condition under the Americans with Disabilities Act; and a
current discrimination claim against the California Department of Corrections and
Rehabilitation.
7 The NOAA specifically referred to Dr. Height’s February 26, 2008 Publication
228 Certification form and her Form 700s dated March 13, 2008 and April 13, 2010.
8 Ultimately, charges of insubordination for climbing on the desk were found
unsupported as was the claim Dr. Height was not working sufficient hours. These claims
are not otherwise discussed.
7
G. The Administrative Hearing
The board’s administrative law judge (ALJ) heard Dr. Height’s appeal over the
course of six days in January, February and March 2012. On May 9, 2012, the ALJ
issued a proposed decision upholding Dr. Height’s dismissal.
1. Supervisor Awareness of Outside Employment
Dr. Height testified her supervisors were aware of her private medical practice
even without the required written disclosures. According to Dr. Height, in 2006, she
discussed her private practice with Rosie Montoto, the Los Angeles West Branch Chief,
in the process of becoming a full-time employee. Dr. Height testified she told Montoto
she would need to work four 10-hour days because she still had her own practice in
which she saw patients on Fridays and Saturdays.
Montoto, however, testified otherwise. According to Montoto, she did not know
of Dr. Height’s private practice until 2010. At that time, Montoto learned of Dr. Height’s
consultative examination activities (when Dr. Height’s office attempted to reschedule the
Los Angeles North Branch examination) and found Dr. Height’s website. Montoto
testified when she had the discussion with Dr. Height about becoming a full-time
employee in 2006, she recalled Dr. Height’s reason for wanting Fridays off had
something to do with her commute.9
Montoto testified she was aware that other medical consultants had private
practices. She testified Publication 228 Certification forms and Form 700s are placed in
the employees’ personnel files and forms are reviewed later “[o]nly if there is an issue
with it. It’s an honor system.”
9 An email communication from Dr. Height to Montoto memorialized the
conversation. The email, however, did not refer to Dr. Height’s medical practice.
Instead, the email referenced Dr. Height’s need for a certain schedule due to “other
commitments.”
8
Dr. Height’s immediate supervisor in January 2008, Mimi Allas testified that she
never had a conversation with Dr. Height regarding outside employment and conducting
consultative examinations outside of Los Angeles. Allas acknowledged, at some point,
she thought Dr. Height “had a medical practice elsewhere” because “she always [seemed
to] have commitments on Fridays afternoons.” Additionally, one of Allas’ staff members
reported to her that when he was in a state office, he saw Dr. Height’s name “on the
board, which gave him the impression that she was employed there.” Allas believed she
reported this to her supervisor. Allas did not recall whether there was any investigation
of the issue.10
2. Dr. Height’s Contract With the La Jolla Branch
Dr. Height testified she was on the panel of physicians performing consultative
examinations for the Los Angeles West Branch when she was first hired as a Medical
Consultant I in 2004. She had been on the panel for the Los Angeles West Branch since
1988. Dr. Height stopped conducting consultative examinations after she was hired in
2004, because the examination work was in Los Angeles County.
10 In January 2008, Allas wrote to Personnel Analyst Sharry Covington regarding
problems she was having with Dr. Height. These included “ongoing problems with her
Production/work and her attendance,” and using up her Family Medical Leave Act time
for “a medical condition.” In addition, Allas reported, “Whenever she is in the office, she
is seen making calls from her cell phone, faxing some documents which may not be work
related . . . and she usually steps out of the office for an hour to several hours at a time
. . . lending some suspicions that she is attending to some personal business. In May
2007, I found a certification (not work related) that she had faxed in our fax machine
which states that she is a ‘Medical Director, Medical and Compensation Consultant[].’”
Allas asked, “Is there a way by which the State can find out whether she is
engaged in another work—especially while claiming sick time? Apparently, she has a
consultancy service that is taking so much time from her job with our Department. She
also has ‘commitments’ on Friday afternoons . . . looks like she has a medical practice
elsewhere.”
Allas did not recall any response to her communication to Covington.
9
Dr. Height testified after she was working for the DDSD, in 2008, “What I did was
my [Culver City] office had been moved and I was going into Riverside County, so it
was—in my mind, it was outside of the jurisdiction of Social Services. And my team
manager had confirmed that for me.” Dr. Height reasoned she was already on the
physician panel for performing consultative examinations, so she asked if she could
update her address for purposes of serving on the panel. She provided her updated
information to the La Jolla Branch.11
Dr. Height testified, “It was my understanding that if I submitted the information
. . . to update my address and I was outside of Los Angeles County, and what I was doing
had nothing to do with LA West, that there was no problem with that.” Dr. Height stated
she did not “know at that time that I was—doing all this that I had to get permission from
anyone to do that. Because, again, I had always been on this panel. I was just updating
my information. And actually, in my mind, I was outside of LA County, and LA West
had nothing to do with what I would be doing in my private practice and in another
county.”
Dr. Height also explained she did not disclose to the Los Angeles West Branch she
was performing consultative examinations “[p]rimarily because it was on the resume that
I sent to [the La Jolla Branch office] . . . . And unfortunately, at that time I didn’t
remember some statement that I had signed that’s been shown to me repeatedly from
February of 2008 that said I was supposed to get permission. I didn’t have any thoughts
of that. And I didn’t feel like I was hiding or not disclosing anything, because it’s the
same agency.” She later added, “I also wasn’t approving my own contract. So in my
mind, if there was any problem, the person approving the contract would have said, you
know, Dr. Height, you work for CDSS in LA. We can’t approve your contract. And that
didn’t happen.”
11 The form Dr. Height submitted to update her address was a physician panel
application.
10
Dr. Height believed she disclosed her employment with the DDSD to the La Jolla
Branch by attaching her curriculum vitae to her panel application. Dr. Height testified
she told Donna Shoots of the La Jolla Branch she was primarily interested in working in
her area of Rancho Mirage in Riverside County.
Shoots, however, disputed knowing Dr. Height was employed by the Los Angeles
West Branch. Shoots testified Dr. Height contacted her and filled out an application to be
on the panel for the La Jolla Branch. Shoots spoke to Dr. Height on the telephone and
Dr. Height told Shoots she was a consultant in Los Angeles. According to Shoots, Dr.
Height never mentioned the Los Angeles West Branch. To Shoots, working for the Los
Angeles West Branch and performing consultative examinations for the La Jolla Branch
was a conflict of interest and unethical. In such a situation, Shoots would have inquired
of Dr. Height whether she had upper management’s permission to conduct the
consultative examinations for the La Jolla Branch. Shoots also would have spoken to
others in her office about Dr. Height’s circumstances and consultative examination
assignments for the La Jolla Branch.
3. Credibility Determination
The ALJ made credibility findings because Dr. Height’s testimony on certain
issues conflicted with that of other witnesses. The ALJ found Dr. Height’s testimony
overall was not credible and in some respects fabricated. The ALJ noted Dr. Height “was
often evasive in her testimony” and described Dr. Height’s testimony on certain issues as
attempting to “split hairs” instead of answering questions directly and honestly.
The ALJ did not believe Dr. Height’s assertion she had no conflicts of interest
with her outside employment. Dr. Height alleged because each office worked only on
cases from its own geographic region, and she had not performed any consultative
examinations for the Los Angeles West Branch or the Los Angeles North Branch, there
was no conflict of interest. The ALJ found Dr. Height’s own experience belied such a
claim. Dr. Height had performed consultative examinations on Stockton Branch cases
assigned to her by the La Jolla Branch. Dr. Height also had some of her cases transferred
11
to New York, and she knew that cases were transferred among the DDSD branch offices
to even out the workload.
The ALJ also did not believe Dr. Height’s claim she did not understand some of
the questions at her investigative interview or did not have the opportunity to explain her
answers. She had a friend and her union representative with her; the interview lasted two
hours and two breaks were taken; and Dr. Height “demonstrated that she is a highly
intelligent, capable, and knowledgeable person. [Her] claimed misunderstanding of the
conflict of interest forms and the 700 forms was a fabrication.”
4. Findings of Dishonesty, Willful Disobedience, and Failure of Good Behavior
The ALJ found Dr. Height guilty of dishonesty in failing to report her outside
employment in violation of Government Code section 19572, subdivision (f). First, she
“willfully omitted the fact that she had maintained a medical practice in 2007” when she
signed the Publication 228 Certification form on February 26, 2008, and she “willfully
omitted that she maintained a business position or earned income from her medical
practice” on her March 13, 2008 and April 13, 2010 Form 700s.
Second, Dr. Height “willfully omitted that she was employed as a Medical
Consultant for [C]DSS when she applied to the La Jolla [B]ranch . . . of DDSD because
she knew that [C]DSS’s Incompatible Activities Statement prohibited such work.” She
also failed to inform her supervisors she was doing consultative examinations although
she knew by virtue of the Publication 228 Certification form she had an affirmative duty
to make such disclosure.
Third, Dr. Height’s statement on her March 30, 2011 Form 700 that she did not
have a conflict of interest because she had not provided services to a state agency on a
regular basis “conveniently ignored the fact that in December 2010 she entered into five
contracts with [C]DSS to conduct consultative examinations, and her husband/office
12
manager had solicited additional work on her behalf.” Her statement on the form was
“just a blatant example of sophistry.”12
The ALJ also found Dr. Height’s actions constituted willful disobedience in
violation of Government Code section 19572, subdivision (o), and other failure of good
behavior in violation of subdivision (t) of that section.
The ALJ concluded dismissal was an appropriate penalty for Dr. Height’s actions.
Dr. Height actively sought outside work knowing, at a minimum, it had to be disclosed,
and it likely constituted a conflict of interest. She “demonstrated no understanding” of
the policies behind the Incompatible Activities Statement “and evaded taking any
responsibility for her actions.” Such factors made it likely her dishonesty would recur
and made dismissal an appropriate penalty.
H. The Board’s Resolution
On June 5, 2012, the board considered the ALJ’s findings of fact, determination of
issues, and proposed decision. It adopted these as its decision.
I. The Petition for Writ of Administrative Mandate
Dr. Height filed a petition for writ of administrative mandamus (Code Civ. Proc.,
§ 1094.5)13 on September 4, 2012. Dr. Height claimed the board abused its discretion in
upholding her dismissal because neither the findings nor the decision was supported by
substantial evidence. She also claimed the board ignored the evidence she was the victim
of discrimination.
12 As noted earlier, the ALJ rejected a charge of dishonesty based on the falsification
of time sheets. The ALJ also rejected a charge of insubordination based on the incident
in which Dr. Height stood on her desk to try to remove the light.
13 All further statutory references are to the Code of Civil Procedure unless otherwise
noted.
13
On September 20, 2013, the trial court denied the petition and entered judgment in
favor of the CDSS. The court rejected Dr. Height’s argument there was no evidence “she
affirmatively knew she was improperly concealing various outside employment” from the
CDSS. It noted she did not challenge the findings she had been trained as to the
disclosure requirements, her outside employment constituted a conflicting activity, and
she failed to report her outside employment. The court also rejected her claim of an
“honestly-held but mistaken subjective belief” in light of the ALJ’s determination she
was not a credible witness. The court found the credibility determination was supported
by substantial evidence in light of Dr. Height’s “high level of education,” “the fairly non-
complex nature” of the Incompatible Activities Statement, Dr. Height’s training on ethics
issues, “and the relatively self-explanatory nature of the forms.” The court concluded,
“In the absence of a finding of mistake, there is substantial evidence that supports the
determination of willfulness. Therefore, there are no grounds to issue a writ with respect
to the first two causes of discipline,” dishonesty and willful disobedience.
The court also rejected Dr. Height’s challenges to the finding of failure of good
behavior based on the evidence of her willful concealment of her outside employment. It
rejected as well her challenges to the penalty imposed, noting her attack on the penalty
was primarily a reiteration of her attack on the findings regarding her conduct. The court
therefore found no basis to issue a writ.
DISCUSSION
A. Standard of Review
“Trial court review of an administrative decision is governed by . . . 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
14
its order or decision is supported by the findings, and whether the findings are supported
by the evidence. [Citation.]
“Because the [State Personnel Board] is vested with quasi-judicial powers, the
trial court may not exercise its independent judgment, but must uphold the [b]oard’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 [b]oard’s decision and the evidence
against it, in order to determine whether that decision is supported by substantial
evidence. [Citations.] This does not mean, however, that a court is to reweigh the
evidence; rather, all presumptions are indulged and conflicts resolved in favor of the
[b]oard’s decision. [Citation.]
“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 [State Personnel Board]; an
appellate court independently determines whether substantial evidence supports the
[State Personnel Board’s] findings, not the trial court’s conclusions.’ [Citation.]
However, insofar as an appeal from an administrative mandamus proceeding presents
questions of law, our review is de novo. [Citation.]” (Telish v. State Personnel Bd.
(2015) 234 Cal. App. 4th 1479, 1487, italics omitted; see also Furtado v. State Personnel
Bd. (2013) 212 Cal. App. 4th 729, 742.)
B. There Is Substantial Evidence of Dishonesty
Dr. Height’s contention substantial evidence does not support the finding of
dishonesty amounts to little more than an invitation to reweigh the evidence and make a
finding contrary to that of the ALJ. This we cannot do. (Telish v. State Personnel Bd.,
supra, 234 Cal.App.4th at p. 1487; Natalie D. v. State Dept. of Health Care Services
(2013) 217 Cal. App. 4th 1449, 1455; Habitat Trust for Wildlife, Inc. v. City of Rancho
Cucamonga (2009) 175 Cal. App. 4th 1306, 1328-1329.)
Dishonesty under Government Code section 19572, subdivision (f), “connotes a
disposition to deceive.” (Gee v. Cal. State Personnel Bd. (1970) 5 Cal. App. 3d 713,
15
718.) “It ‘“denotes an absence of integrity; a disposition to cheat, deceive, or
defraud . . . .”’” (Id. at p. 719, quoting Hogg v. Real Estate Comr. (1942) 54
Cal. App. 2d 712, 717.) The board has further clarified dishonesty as “an intentional
misrepresentation of known facts, or a willful omission of pertinent facts . . . .” (Haji
Jameel (2005) SPB Dec. No. 05-02 at p. 17, fn. 23.)
It is undisputed Dr. Height engaged in outside employment throughout her tenure
with the CDSS. Dr. Height maintained her private medical practice during all of her
years with the CDSS. In 2008, she reviewed medical records and rendered opinions for
the California Medical Board. She also conducted 51 examinations of inmates over the
course of three days for the state’s Department of Corrections and Rehabilitation
through the Registry of Physician Specialists. In 2009, Dr. Height worked for Kaiser
Permanente. In late 2010 and early 2011, Dr. Height contracted with the La Jolla
Branch and performed six consultative examinations.
It is also undisputed after Dr. Height’s initial disclosure of her private practice in
her March 2005 Publication 228 Certification form (the first form she signed), Dr.
Height did not again disclose the private medical practice until 2011 after the
investigative interview. Dr. Height did not disclose any of her outside employment,
including her practice, in her February 2008 Publication 228 Certification form, her
March 2008 Form 700 or her April 2010 Form 700. In fact, Dr. Height affirmatively
represented on those forms she had “no outside employment and/or activities” or “[n]o
reportable interests on any schedule.” She made such representations even though she
had an ongoing practice she previously disclosed to the CDSS in 2005.
Dr. Height contends she was not dishonest because she did not have the requisite
intent to deceive and points to evidence she argues shows she “did not attempt to hide
her part-time work from the CDSS.” Dr. Height relies on her March 2005 Publication
228 Certification form disclosing her private practice, her website, Allas’ belief Dr.
Height was working outside the office, Allas’ internal inquiry whether an investigation
of Dr. Height’s outside activities could be undertaken, Allas’ receipt of information Dr.
16
Height was employed at another state office and Kaiser Permanente’s request for
information from the CDSS regarding Dr. Height’s work application in 2009.
The evidence Dr. Height relies on, however, does not show any affirmative and
open acts taken by Dr. Height disclosing her outside employment to the CDSS from
2008 to 2011. Substantial evidence supports a finding from February 28, 2008, when
Dr. Height represented she had no outside employment, until the investigative interview
on February 24, 2011, Dr. Height did not reveal to the CDSS through her actions she
was engaged in outside employment. Dr. Height’s after-the-fact reliance on her
supervisor’s suspicions does not support the notion Dr. Height “did not attempt to hide
her part-time work from the CDSS.” Dr. Height’s supervisor’s beliefs have little, if
anything, to do with what Dr. Height intended.
The ALJ had evidence before her contrary to Dr. Height’s assertion she “did not
attempt to hide” her outside employment. Allas had her suspicions about Dr. Height’s
outside employment based on Dr. Height’s in-office behavior which Allas believed was
inconsistent with her work at the DDSD. Allas reported Dr. Height was making calls
from her cell phone and faxing documents while at the office. She also reported that Dr.
Height would step out of the office for up to several hours at a time. The ALJ could
have reasonably concluded the actions described by Allas were, in fact, acts designed to
conceal Dr. Height’s outside employment while at work at the Los Angeles West
Branch.
Moreover, there is no evidence Dr. Height knew Allas had suspicions Dr. Height
had outside employment or had asked for an internal investigation into it. Allas testified
she never had a conversation with Dr. Height regarding outside employment including
conducting consultative examinations outside of Los Angeles. There is no evidence Dr.
Height knew Kaiser Permanente had actually contacted the CDSS about her.
CDSS Publication 228 required Dr. Height to disclose all outside employment
and activities whether Dr. Height believed such employment or activities were related to
the CDSS. That her supervisors at the Los Angeles West Branch could have discerned
17
Dr. Height had outside employment does not negate the existence of substantial
evidence Dr. Height knew she was required to make the disclosures and failed to do so.
Dr. Height also challenges the ALJ’s finding the required disclosure paperwork
provided clear instructions to the employees. She asserts “the paperwork simply does not
support this conclusion.”
Dr. Height’s claim there is ambiguity in the forms14 does not negate the ALJ’s
finding Dr. Height was “a highly intelligent, capable, and knowledgeable person,” and
her “claimed misunderstanding of the conflict of interest forms and the 700 forms was a
fabrication.” Facts before the ALJ supported this conclusion. Dr. Height reported her
business on her initial Publication 228 Certification form in 2005 and thereafter
affirmatively represented in February 2008 she had no outside employment.
Throughout 2008, 2009 and 2010, Dr. Height did not comply with clear instructions on
the certification form to advise in writing of any change in her outside employment
status within 30 days. After the investigative interview in 2011 when Dr. Height
learned her certification forms were being examined, Dr. Height then completed a
certification form reflecting her private practice.
With regard to the Form 700s, Dr. Height contends an ambiguity in the
instructions led to a misunderstanding and a mistake. The evidence reveals the
allegedly misleading written instructions were not provided to Dr. Height until March 7,
14 Assuming the CDSS instruction form provided to Dr. Height to assist her in filling
out the Form 700 was ambiguous, Publication 228 and the certification form do not
appear to suffer from a similar ambiguity. Publication 228 clearly defines outside
employment as “any partnership, ownership or services performed by a department
employee on his/her own time, during other than normal working hours, for which he/she
may or may not receive any form of compensation.” Category A on the corresponding
certification form states, “I have no outside employment and/or activities.” Thus,
Category A employees are those who engage in no work outside of the CDSS. If an
employee believes his/her outside employment is not related to the CDSS, the employee
would select Category B declaring that he/she has “employment and/or activities that do
not deal with CDSS.” An employee who has outside employment must disclose it either
through Category B or C.
18
2011. Thus, any ambiguity could not have affected Dr. Height’s 2008 or 2009 Form
700. Moreover, despite the claimed ambiguity and no assistance from the CDSS other
than the instructions given by it, Dr. Height reported her private practice on the March
30, 2011 Form 700. Again, this disclosure occurred after the investigative interview in
February 2011 when Dr. Height learned the CDSS was investigating her outside
employment.15
Dr. Height also complains the ALJ and the board held her to a higher standard, a
“knowledgeable doctor,” in finding intent to deceive and willful disobedience. She is
incorrect. She was not held to a higher standard; the ALJ and the board did not make
the determination “whether a ‘knowledgeable and intelligent doctor’ would be able to
navigate the labyrinth of the various instructions and fine print on the subject forms
when requested assistance from her superiors is denied.” Rather, the ALJ and the board
considered Dr. Height’s intelligence and education in determining whether, in fact, she
misunderstood the forms she filled out or whether, in fact, she willfully failed to
disclose information she knew had to be disclosed in order to deceive her employer as
to her outside employment and contracts with the state. She cites no authority
supporting a conclusion the ALJ and the board erred in relying on such factors.
Dr. Height argues it is “important to note that any perceived dishonesty on [her]
part must be viewed in the context of the fact that CDSS never even read or reviewed
the forms it claims were dishonestly completed” until after the NOAA. She does not
explain how the fact her dishonesty was not discovered earlier has any effect on the
determination that she was, in fact, dishonest in filling out the forms and her lack of
compliance with the CDSS’ Incompatible Activities Statement.
15 In addition, the ALJ reasonably could find Dr. Height’s question and request for
a list of business entities of the type that must be reported, made after the investigative
interview and Dr. Height’s awareness that her reporting was being investigated, was an
attempt to avoid liability for her failure to report rather than reflective of honest
confusion about how to fill out the form.
19
Dr. Height also suggests we should reject the ALJ’s credibility determination as
arbitrary and lacking a rational basis. She argues “there is nothing in the record to
contradict [her] explanations concerning completion of the disclosure forms.” Further,
“[t]he mere fact that multiple other Medical Consultants employed by CDSS acted in
the same fashion as [Dr. Height] and apparently interpreted the disclosure forms the
same way atomizes any claim that [she] acted with an intent to deceive. Otherwise,
nearly every Medical Consultant at CDSS is a liar, but only [Dr. Height] was singled
out for dismissal.”
First, the trier of fact “may reject any evidence as unworthy of credence, even
uncontradicted testimony.” (In re Marriage of Falcone & Fyke (2012) 203 Cal. App. 4th
964, 979; accord, Hicks v. Reis (1943) 21 Cal. 2d 654, 659-660; Shaw v. County of Santa
Cruz (2008) 170 Cal. App. 4th 229, 279.) “‘A witness may be contradicted by the facts he
states as completely as by direct adverse testimony, and there may be so many omissions
in his account of particular transactions or of his own conduct as to discredit his whole
story.’ [Citation.]” (Bassett Unified School Dist. v. Commission on Professional
Competence (1988) 201 Cal. App. 3d 1444, 1451.) We cannot overturn the trier of fact’s
determination unless “the appellant’s evidence was (1) ‘uncontradicted and
unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.’” (Shaw, supra, at p. 279,
quoting Roesch v. De Mota (1944) 24 Cal. 2d 563, 571.)
The contradiction of Dr. Height’s testimony by other witnesses and her demeanor
while testifying provided the ALJ with a rational basis for rejecting her testimony. (See,
e.g., Loeffler v. Medina (2009) 174 Cal. App. 4th 1495, 1502 [rejecting challenge to trial
court’s credibility determination based on witness’s misstatements and changing
testimony when confronted with contrary facts]; Fuller v. Fuller (1979) 89 Cal. App. 3d
405, 410 [refusing to overturn finding on credibility where other evidence supported a
conclusion witness was untruthful].) The ALJ could also disbelieve her testimony on the
20
ground it was “inherently improbable.”16 (Bassett Unified School Dist. v. Commission on
Professional Competence, supra, 201 Cal.App.3d at p. 1452.) Because Dr. Height’s
testimony was not uncontradicted and unimpeached, and there was a basis for finding her
not to be a credible witness, we will not overturn the ALJ’s credibility determination.
(Shaw v. County of Santa Cruz, supra, 170 Cal.App.4th at p. 279.)
Second, there is no evidence regarding the extent of the medical practices of the
other Medical Consultants whose Form 700s Dr. Height submitted as evidence. Thus,
we have no basis for determining whether they interpreted the forms in the same manner
she did, or whether “nearly every Medical Consultant at CDSS is a liar.”17
Finally, Dr. Height notes that in 2011 she was paid $848 for the six consultative
examinations she performed. She claims “[i]t defies logic to conclude, as the ALJ did,
that [she] would intentionally risk her $12,000 per month salary, plus benefits and
pension, for $848.00.” Dr. Height could not have known, however, when she applied to
be on the physician panel of the La Jolla Branch she would receive only $848 for six
consultative examinations. In fact, after she was placed on the physician panel, her
husband/office manager contacted the La Jolla Branch requesting she receive more
referrals. Dr. Height also changed her specialty on the panel from nephrology to
internist in an effort to generate more work.
Substantial evidence supports the ALJ’s finding Dr. Height was not a credible
witness and the board’s determination she was guilty of dishonesty.
16 For example, the ALJ could have reasonably concluded it was inherently
improbable Dr. Height was confused when she indicated on her Publication 228
Certification form in 2008 she had no outside employment.
17 We similarly have no evidence as to the ethnicity of the other Medical Consultants
and so cannot consider their Form 700s “as evidence of disparate treatment because [Dr.
Height] was treated differently than other Medical Consultants similarly situated who
were not African-American and were not disciplined.”
21
C. There Is Substantial Evidence of Willful Disobedience
Dr. Height argues the finding of willful disobedience “suffers from the same fatal
defects as the conclusion she was dishonest.” Willful disobedience within the meaning of
Government Code section 19572, subdivision (o), “connotes a specific violation of [a]
command or prohibition.” (Coomes v. State Personnel Board (1963) 215 Cal. App. 2d
770, 775.) “Thus, in order to justify disciplinary action under . . . subdivision [(o)] of
section 19572, [the board] findings must rest upon evidence of intentional or knowing
conduct. Evidence which fails to establish willfulness, knowledge or intent lacks an
indispensable element for proof of guilt and is not substantial.” (Ibid.) Dr. Height claims
“there is no substantial evidence that [she] willfully violated any specific command or
prohibition.”
Dr. Height complains the obligation to report her outside activities was found “in
the small print on the Publication 228 Certification form,” and her supervisors never
discussed with her how to fill out the form. She challenges the CDSS’ “position that
[she] was required to remember the 30-day requirement from a single small-print
sentence contained on a form she signed on February 26, 2008, and that she ‘knew’ of
the obligation because she took the Public Service Ethics Education course on March
13, 2008.”18 She claims “this scant evidence hardly constitutes a specific violation of a
command or prohibition or willfulness, knowledge, or intent. It would be absurd to
interpret the small print language on the Certification and attendance at the Public
Service Ethics Education as constituting the type of ‘command’ described in
Government Code [section] 19572[, subdivision (o),] to justify discipline, let alone
dismissal.” (Italics omitted.)
18 On March 13, 2008, Dr. Height completed an online Public Service Ethics
Education course. The course included information regarding “[l]aws relating to personal
financial gain by public servants,” conflict of interest laws, and general principles of
ethics for public employees. Dr. Height signed a Proof of Participation Certificate
certifying she “fully reviewed the content of the entire online . . . course approved by the
Attorney General and Fair Political Practices Commission . . . .”
22
Dr. Height is incorrect the certification form was the only location where CDSS
employees were advised of their ongoing disclosure obligations. Publication 228
expressly sets forth the requirement for employees “who are engaged in or wish to
engage in any employment or activity that falls into ‘Category B or C’ as indicated on
the certification . . . [to] submit a written description of the specifics . . . .” Publication
228 further instructs CDSS notification is required prior to engaging the outside
activity: “This notification shall be made prior to engaging in the outside employment
and/or activity so that a determination can be made by the Personnel Officer with
review by legal staff as to the permissibility of the employment and/or activity.”
Moreover, in connection with her claim there was no substantial evidence of
dishonesty, Dr. Height relied upon evidence she disclosed her private practice in her
March 2005 Publication 228 Certification form. That she understood the instructions
for filling out the form perfectly well in 2005 supports a finding of willful disobedience
in filling out the form in 2008, when she omitted any reference to her private practice.
Dr. Height also argues the ALJ could not rely on evidence she lied in her
investigative interview, because “there was no accurate evidence in the record of what
actually occurred during the Interview.” Dennis Campos, Team Manager for the Los
Angeles North Branch of the DDSD, who conducted the February 24, 2011
investigative interview, testified either he or his supervisor, Cynthia Herrera, refused to
allow the interview to be recorded. He received the questions he was to ask Dr. Height
in advance of the interview, and after the interview he placed the list of questions in a
container for shredding.
Herrera’s notes of what transpired during the investigative interview were
introduced into evidence at the hearing before the ALJ, as were Dr. Height’s notes as to
her recollection of the interview. Campos and Dr. Height also testified concerning the
interview.
Dr. Height cites no authority for the proposition that notes and recollection of an
interview do not constitute substantial evidence of what was said during the interview.
To the extent there were discrepancies between Dr. Height’s recollection and that of
23
Campos and Herrera, the ALJ could consider the refusal to allow recording of the
interview and the shredding of the questions as affecting the credibility and the weight
of the testimony of Campos and Herrera. (Cf. People v. Fauber (1992) 2 Cal. 4th 792,
828-830 [prosecution’s failure to record interview with witness did not require
suppression of the interview, and evidence of what occurred “was available through the
testimony of persons present during the interview”].)
Dr. Height further relies on the fact “multiple CDSS Medical Consultants
maintained outside practices or employment and did not disclose those activities on the
Form 700 . . . , [and] none of them were disciplined.” She asserts that “[e]ither all of
them were recalcitrant or [Dr. Height’s] apparently erroneous reading of the
requirements is one shared by many and therefore not willful disobedience.” Again, we
have no information concerning their practices, so we cannot determine from their
forms whether Dr. Height was one of many who were misled by the language of the
forms or whether she was singled out for punishment. It is significant to note Dr.
Height did not include in the record their Publication 228 Certification forms, on which
they were required to indicate outside employment whether it was a reportable interest
on the Form 700. Neither is there testimony by any of these other medical consultants
that he or she was misled by the language of Form 700.
We conclude there is substantial evidence of Dr. Height’s willful disobedience.
D. There Is Substantial Evidence of Other Failure of Good Behavior
Under subdivision (t) of Government Code section 19572, a person may be
punished for “[o]ther failure of good behavior either during or outside of duty hours,
which is of such a nature that it causes discredit to the appointing authority or the
person’s employment.” “There must be more than a failure of good behavior before the
board may discipline an employee under [Government Code] section 19572, subdivision
(t). The misconduct must be of such a nature as to reflect upon the employee’s job. In
other words, the ‘misconduct must bear some rational relationship to his employment and
must be of such character that it can easily result in the impairment or disruption of the
24
public service. [Citations.] The legislative purpose behind subdivision (t) was to
discipline conduct which can be detrimental to state service. [Citations.] It is apparent
the Legislature was concerned with punishing behavior which had potentially destructive
consequences.’ [Citation.] The Legislature did not intend ‘“. . . to endow the employing
agency with the power to dismiss any employee whose personal, private conduct incurred
its disapproval.”’ [Citation.]” (Yancey v. Sate Personnel Bd. (1985) 167 Cal. App. 3d
478, 483.)
Dr. Height contends the conduct she “was accused of committing, failing to have
properly completed the disclosure forms, falls well below the type of misconduct
required to substantiate a violation of this subsection.” Again, she is improperly viewing
the evidence in the light most favorable to her own position, not in the light most
favorable to the board’s determination, as we are required to do.
Dr. Height was not accused of failing to complete disclosure forms properly. She
was accused and found guilty of dishonesty and willful disobedience in failing to disclose
outside employment and potential conflicts of interest when she knew she had an
affirmative duty to make such disclosures. She failed to comply with the CDSS’
Incompatible Activities Statement. Moreover, she “willfully omitted that she was
employed as a Medical Consultant for [C]DSS when she applied to the La Jolla [B]ranch
. . . of DDSD because she knew that [C]DSS’s Incompatible Activities Statement
prohibited such work.” In other words, she took actions designed to conceal her activities
and potential conflicts of interest from her employer and the state in order to be able to
get additional money from the state by contracting with it, in clear violation of the
Incompatible Activities Statement adopted pursuant to Government Code section 19990
and disclosure requirements.
As explained by the ALJ, Dr. Height’s actions undermined the Incompatible
Activities Statement and impaired public service. The ALJ noted the policy underlying
the disclosure requirements “is to protect the public from state employees who may have
a conflict of interest because of their need to serve two masters, i.e., their state employer
and their private business interests. The proscription against conflicts of interest
25
recognizes the fact that an impairment of impartial judgment can occur in even the most
well-meaning person when his or her personal economic interests are affected by the
business they transact on behalf of the government. (Stigall v. City of Taft (1962) 58
Cal. 2d 565, 569.) When a state department is prevented from determining if an
employee’s activities are incompatible with his or her duties as a state employee because
the employee has not made truthful disclosures, there is an impairment of the public
service.”
Also, the record indicates the Los Angeles West Branch already had other
concerns about impairment of public service due to Dr. Height’s outside employment. In
2008, Allas expressed concern over “ongoing problems with [Dr. Height’s]
Production/work and her attendance,” using work time and state resources for her
personal business, and using sick time for outside employment. Later, when her
supervisors continued to have concerns over the amount of time Dr. Height seemed to
disappear during the work day, they checked their computer system records which
showed that from December 2010 through March 2011, there were significant periods of
time in which she was supposed to be working but was not logged on to her computer.
We conclude there is substantial evidence of “[o]ther failure of good behavior . . .
which is of such a nature that it causes discredit to” CDSS. (Gov. Code, § 19572,
subd. (t).) Substantial evidence also supports a determination that Dr. Height’s conduct
resulted in an impairment to public service.
E. Dismissal Was an Appropriate Penalty
Dr. Height in essence contends because the board’s findings are not supported by
substantial evidence and because she was guilty, at most, of filling out the disclosure
forms improperly, dismissal was not the appropriate penalty for her. Rather, less severe
penalties would be sufficient to prevent the recurrence of her improper conduct. As
explained, her contention rests on a faulty premise that the board’s findings are not
supported by substantial evidence.
26
We review the determination as to the appropriate penalty for abuse of discretion.
(County of Santa Cruz v. Civil Service Commission of Santa Cruz (2009) 171
Cal. App. 4th 1577, 1581-1582; Deegan v. City of Mountain View (1999) 72 Cal. App. 4th
37, 46-47.) “‘In considering whether [abuse of discretion] occurred in the context of
public employee discipline, we note that the overriding consideration in these cases is the
extent to which the employee’s conduct resulted in, or if repeated is likely to result in,
“[h]arm to the public service.” [Citations.] Other relevant factors include the
circumstances surrounding the misconduct and the likelihood of its recurrence.’
[Citation.] The public is entitled to protection from unprofessional employees whose
conduct places people at risk of injury and the government at risk of incurring liability.
[Citation.]” (County of Santa Cruz, supra, at p. 1582.) Discretion is abused if the
findings made are inconsistent with the penalty imposed. (Id. at p. 1584.)
However, so long as there is a reasonable basis for the penalty imposed, then we
will not disturb the board’s determination. (Deegan v. City of Mountain View, supra, 72
Cal.App.4th at pp. 46-47.) “‘“Neither an appellate court nor a trial court is free to
substitute its discretion for that of the administrative agency concerning the degree of
punishment imposed.”’ [Citation.]” (Id. at p. 47.)
The findings made here are supported by substantial evidence, and they are
consistent with the penalty imposed. Dr. Height deliberately violated the policies behind
the Incompatible Activities Statement “and evaded taking any responsibility for her
actions,” even at the hearing on the NOAA. As the ALJ concluded, this made it likely
her dishonesty would recur and made dismissal an appropriate penalty. Accordingly, we
find no abuse of discretion.
27
DISPOSITION
The judgment is affirmed. The board is awarded its costs on appeal.
BECKLOFF, J.*
We concur:
PERLUSS, P. J.
SEGAL, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
28