Ackerman v. State Personnel Bd.

145 Cal.App.3d 395 (1983) 193 Cal. Rptr. 190 E. DANIEL ACKERMAN, Plaintiff and Respondent,

v.

STATE PERSONNEL BOARD, Defendant and Appellant; DEPARTMENT OF CALIFORNIA HIGHWAY PATROL, Real Party in Interest and Appellant.

Docket No. AO21059. Court of Appeals of California, First District, Division Three.

June 27, 1983. [397] COUNSEL

John K. Van de Kamp, Attorney General, Andrea S. Ordin, Chief Assistant Attorney General, and Marian M. Johnston, Deputy Attorney General, for Defendant and Appellant and for Real Party in Interest and Appellant.

Richard J. Romanski and Hession, Creedon, Hamlin, Kelly, Hanson & Brown for Plaintiff and Respondent.

OPINION

FEINBERG, J.

On this appeal by the California Highway Patrol (CHP) and the State Personnel Board (Board) from a judgment granting a peremptory writ of mandamus (Code Civ. Proc., § 1094.5) to compel the Board to reconsider the dismissal of respondent Ackerman, the only question is whether the penalty imposed constituted an abuse of discretion. The Board and CHP contend that the trial court erred by substituting its discretion for that of the employer and the Board. We agree and reverse.

In October 1981, Ackerman was served with a notice of punitive action charging that the alleged acts of misconduct described below, constituted grounds for dismissal under Government Code section 19572, subdivision (f) dishonesty and subdivision (p) misuse of state property.

(1) (See fn. 1.) The facts as revealed by the record[1] are as follows:

Ackerman worked as a state traffic officer for 15 years and 10 months, and a motorcycle officer for 9 of these. He had one prior adverse action of a two days' suspension in 1973 for claiming sick leave for a day he participated in a trap shoot. His on the job performance was very good.

As cause for dismissal it was alleged that Ackerman: 1) misappropriated state-owned motorcycle parts and installed them on his privately owned motorcycle; 2) later denied that he had done so; and 3) used a dealer's name to order wholesale motorcycle parts without the dealer's consent.