Ackerman v. State Personnel Board

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.

The facts as revealed by the record1 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.

In 1979 Ackerman bought a Kawasaki motorcycle. He decided to modify it and turn it into a showpiece. To assist him in the project he enlisted the [398]aid of Mr. R. Weidling, manager of the Diablo Kawasaki dealership in Walnut Creek, who had sold him the motorcycle. Diablo Kawasaki also had the service and repair contract for the CHP in the Contra Costa area. On one occasion, Weidling permitted Ackerman to deal with his suppliers and order parts for the modification of the show motorcycle; these parts were shipped to Diablo Kawasaki and then charged to Ackerman. Ackerman exceeded this authority by ordering parts in the name of Diablo Kawasaki on another occasion and having them shipped to his home; thus he avoided paying the $25 sales tax or the retail markup.

In June 1980, Ackerman requested that he be issued the front forks2 for a Kawasaki 1000 police special motorcycle from the CHP academy. He indicated that the forks were needed for his CHP motorcycle. The forks were issued to him and he placed them on his privately owned motorcycle. The academy later requested that he turn in the damaged forks from his CHP motorcycle. Ackerman then obtained damaged front forks from a Walnut Creek Police Department motorcycle and returned them to the CHP academy. He was not candid about the situation. The academy used older motorcycles for training purposes, and kept them around to “cannibalize” for spare parts.