California State Employees & Criminal Convictions

If you work in the California civil service system, what happens to your job if you suffer a criminal arrest or conviction?  Can you lose your job because of the conviction?

If you're a state peace officer, are you held to a different standard?

In California, certain criminal convictions can trigger administrative discipline of state employees.  Peace officers are held to an even higher standard than other employees, given the officers' duty to uphold the law.

If you're a state civil service employee and face possible adverse action because of a criminal charge, our California Criminal Defense Lawyers might be able to help.1 We represent people accused of crimes, including state employees, and also help them resolve (and avoid) disciplinary actions.

This article discusses the impact of criminal convictions on civil service employment.  If you have questions after reading it, we invite you to call us for a consultation.

This article covers:

1. Who regulates state civil service
employees?
2. Is a criminal conviction a cause for
discipline?
3. Are there special rules for California
state peace officers?
4. Can I fight to keep my job?

(Click on a title to proceed directly to that section)

1. Who regulates state civil service employees?

When it comes to matters of discipline, including sanctions for suffering a criminal arrest or conviction, the California State Personnel Board regulates civil service employees.  The SPB enforces civil service statutes in accordance with the California Constitution.2

Disciplinary "adverse actions" include dismissals, suspensions, demotions and salary reductions.3

Factors to be assessed in connection with a disciplinary penalty are

  • the actual or potential harm to public service,
  • the circumstances of misconduct, and
  • the likelihood of reoccurrence.4
2. Is a criminal conviction a cause for discipline?

One of the 24 grounds for California civil service discipline of a state employee is conviction of a felony crime or a misdemeanor offense involving "moral turpitude."5

A felony is generally defined as an offense punishable by state prison or death.6

Other offenses (which are not infractions) are misdemeanors. California law defines crimes of moral turpitude as ones involves fraud or dishonesty, the corruption of others, or particularly egregious acts.

As examples, the State Personnel Board has found moral turpitude to exist in cases involving:

A conviction includes a guilty plea or guilty verdict as well as a conviction following a plea of nolo contendere (or "no contest" plea).

In addition, a conviction for certain California crimes means that you will become ineligible to hold any public office in the state of California. A prominent example is Penal Code 424 PC misappropriation of public funds, which carries this penalty on top of a potential state prison sentence of up to four (4) years.

3. Are there special rules for California
state peace officers?

Yes. Additional considerations come into play with respect to criminal convictions for state employees who are peace officers.  This includes officers with the California Highway Patrol, correctional officers employed by the Department of Corrections and Rehabilitation and special agents with the Department of Justice.

Gov. Code - 1029 - felony convictions

Under California law, a felony conviction disqualifies a person from being a peace officer.10 The disqualification extends to out-of-state felony convictions and expunged criminal convictions.11

There are a few exceptions to the rule, which relate to California Drug Diversion (i.e. PC 1000, or Deferred Entry of Judgment) programs, alternate felony-misdemeanor possession offenses and parole/probation officer jobs.12

A peace officer's Commission on Peace Officer Standards and Training certificate will be cancelled upon a Gov. Code - 1029 disqualification.13

Misconduct causing discredit to the appointing authority

We've already discussed Gov. Code - 19572, which sets out the causes for state civil service employee discipline.  As we've seen, subdivision (k) deals with criminal convictions.

But subdivision (t) also is implicated by potentially criminal run-ins by employees, as it relates to "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."

"Discredit to the appointing authority" discipline is not limited to peace officers, but peace officers are held to a higher standard of conduct than other employees.

Peace officers can be disciplined under Gov. Code - 19572 (t) in cases where they were convicted of misdemeanors not involving moral turpitude, and in cases where they weren't convicted of a crime at all but engaged in possibly criminal conduct.14

Let's look at an example:

Example:  A peace officer employed with Division of Juvenile Justice leaves work one morning after a night shift, goes to a bar and gets intoxicated.  He meets up with another man and a fight ensues.  The peace officer brandishes his gun and fires shots.  Thankfully nobody is hurt, but the officer is convicted of willful discharge of a firearm in a grossly negligent manner.

The Board decides that a Penal Code Section 246.3 violation does not involve moral turpitude, but that the man deserves to lose his job anyway because it caused "discredit" to the employing agency."15

Change the facts:  A supervising cook at a correctional facility is disciplined with a salary reduction after sustaining a California DUI.  The State Personnel Board reverses the disciplinary measure because of a lack of nexus between the off-duty misconduct and the job at issue.  The cook works at a prison, but he is not a peace officer and is not held to peace officer high standards.16

Non-punitive termination based on inability to carry a gun

Because peace officers are required to carry a gun, certain kinds of convictions can cause the collateral problem of preventing an officer from complying with a job requirement - possibly leading to "non-punitive" termination. Penal Code 29800 (California's "felon with a firearm" law) makes it a crime to own, possess or use a gun if you've been convicted of a felony or certain enumerated misdemeanors.17

Successful completion of a diversion program can be helpful in misdemeanor cases involving the disqualification to carry a gun, as this can avoid entry of  "judgment" of conviction.18

4. Can I fight to keep my job?

As a permanent civil service employee, you have a legally protected interest in continued employment.  You are entitled to procedural safeguards in connection with disciplinary actions, including the right to receive notice of the adverse action.

The first stage in the discipline process is the pre-termination Skelly hearing.19 Here you will have the chance to orally plead your case and try to work something out.

The next stop is the SPB Appeals Division.  You (or you and your attorney) will have a more formal hearing with evidence and witnesses.  The hearing will take place before a hearing officer or an administrative law judge.

After the Board issues a decision, you can file a petition for rehearing.  You can also file a writ of administrative mandamus with the trial court.

Our California Criminal Defense Lawyers Can Help.
Img-call-for-help

If you or loved one is charged with a crime and is a state employee and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

You might also be interested in reading our other articles in the professional discipline arena, including Administrative Hearings, Doctor License Revocation, Nurse License Revocation, Dentist License Revocation, Attorney License Revocation, Teacher License Revocation, Social Worker License Revocation, and Real Estate Agent License Revocation.

We have a wide array of articles on pertinent criminal law topics such as Common California Crimes A to Z, Legal Defenses, Penal Code 424 PC Misappropriation of Public Funds, Police Misconduct and Police Officer Defense.

Our help center has contact information for organizations that can assist with substance abuse or anger management issues.

References:

1Our California Criminal Defense Lawyers have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

2California Constitution, Article VII, Section 3 provides:  "(a) The board shall enforce the civil service statutes and, by majority vote of all its members, shall prescribe probationary periods and classifications, adopt other rules authorized by statute, and review disciplinary actions.  (b) The executive officer shall administer the civil service statutes under rules of the board."  See also California Government Code Section 18500, et seq., and California Code of Regulations, Title 2, Div. 1, Ch. 1 (State Personnel Board).   In addition to statutes and regulations, collective bargaining agreements may impact terms and conditions of employment.

3California Government Code Section 19570 provides:  "As used in this article 'adverse action' means dismissal, demotion, suspension, or other disciplinary action.  This article shall not apply to any adverse action affecting managerial employees subject to Article 2 (commencing with Section 19590), except as provided in Sections 19590.5, 19592, and 19592.2."  See also Administrative Appeals, prepared by the State Personnel Board Appeals Division (Feb. 2001), p. 10, and State of California Supervisor's Handbook:  A Guide to Employee Conduct and Discipline, prepared by Department of Personnel Administration (June 2004).

4Skelly v. State Personnel Board, 15 Cal.3d 194, 217 (1975) [state high court reversed civil service doctor's dismissal for taking excessive lunch breaks, etc., and confirmed doctor's right to pre-termination hearing and other due process protections] ("In considering whether such abuse 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, harm to the public service.  Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence."  Internal citations and quotations omitted)

5California Government Code Section 19572 provides:  "Each of the following constitutes cause for discipline of an employee, or of a person whose name appears on any employment list:  (a) Fraud in securing appointment.  (b) Incompetency.  (c) Inefficiency.  (d) Inexcusable neglect of duty.  (e)  Insubordination.  (f) Dishonesty.  (g) Drunkenness on duty.  (h) Intemperance.  (i) Addiction to the use of controlled substances.  (j) Inexcusable absence without leave.  (k) Conviction of a felony or conviction of a misdemeanor involving moral turpitude.  A plea or verdict of guilty, or a conviction following a plea of nolo contendere, to a charge of a felony or any offense involving moral turpitude is deemed to be a conviction within the meaning of this section.  (l) Immorality.  (m) Discourteous treatment of the public or other employees.  (n) Improper political activity.  (o) Willful disobedience.  (p) Misuse of state property.  (q) Violation of this part or of a board rule.  (r) Violation of the prohibitions set forth in accordance with Section 19990.  (s) Refusal to take and subscribe any oath or affirmation that is required by law in connection with the employment.  (t) Other 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.  (u) Any negligence, recklessness, or intentional act that results in the death of a patient of a state hospital serving the mentally disabled or the developmentally disabled.  (v) The use during duty hours, for training or target practice, of any material that is not authorized for that use by the appointing power.  (w) Unlawful discrimination, including harassment, on any basis listed in subdivision (a) of Section 12940, as those bases are defined in Sections 12926 and 12926.1, except as otherwise provided in Section 12940, against the public or other employees while acting in the capacity of a state employee.  (x) Unlawful retaliation against any other state officer or employee or member of the public who in good faith reports, discloses, divulges, or otherwise brings to the attention of, the Attorney General or any other appropriate authority, any facts or information relative to actual or suspected violation of any law of this state or the United States occurring on the job or directly related to the job."

6California Penal Code Section 17 provides:  "(a) A felony is a crime which is punishable with death or by imprisonment in the state prison.  Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.  (b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:  (1) After a judgment imposing a punishment other than imprisonment in the state prison.  (2) When the court, upon committing the defendant to the Youth Authority, designates the offense to be a misdemeanor.  (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.  (4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.  (5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.  (c) When a defendant is committed to the Youth Authority for a crime punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, the offense shall, upon the discharge of the defendant from the Youth Authority, thereafter be deemed a misdemeanor for all purposes.  (d) A violation of any code section listed in Section 19.8 is an infraction subject to the procedures described in Sections 19.6 and 19.7 when:  (1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or; (2) The court, with the consent of the defendant, determines that the offense is an infraction in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint.  (e) Nothing in this section authorizes a judge to relieve a defendant of the duty to register as a sex offender pursuant to Section 290 if the defendant is charged with an offense for which registration as a sex offender is required pursuant to Section 290, and for which the trier of fact has found the defendant guilty."

7In the Matter of the Appeal by Douglas Durham, SPB Case No. 36133, 1995 (Precedential Decision) [Pelican State Bay Prison Food Manager demoted to Supervising Cook II after conviction of crimes of moral turpitude involving fraudulent vehicle registration] ("Appellant in this instance engaged in repeated instances of fraud against his own employer, the State of California.  The ALJ found that, during the period 1992-1993, appellant willfully and unlawfully registered a 1975 Ford van in Oregon, without paying California vehicle registration fees.  During this time period, appellant owned a home in Smith River, California, which was undergoing extensive repairs, although he frequently spent nights at a rented residence in Brookings, Oregon, when it was impossible for him to sleep in his Smith River home.  At all relevant times, appellant held a California driver's license, never held an Oregon driver's license, and intended to return to his home in California once the repairs were completed..Moreover, he plead nolo contendere to knowingly making false statements to the DMV, falsifying a certificate of ownership, and registering a vehicle in a foreign jurisdiction without the payment of appropriate fees and taxes to the State of California, in violation of Vehicle Code sections 20, 4463, and 8804, respectively.  Accordingly, because the facts upon which the convictions under the Vehicle Code were based involved dishonesty and intentional action to defraud the State of California, we conclude that appellant's convictions were for crimes involving moral turpitude.  Furthermore, regardless of whether a separate nexus is required, appellant's convictions based upon intentional fraud against the State of California constitute cause for discipline under section 19572, subdivision (k).")

8Wilson v. State Personnel Board, 39 Cal.App.3d 218, 221 (1974) [civil service employee with Department of Human Resources Development dismissed after being convicted for misdemeanor in connection with collecting unemployment benefits while having part-time work] ("Punitive action, including dismissal, may be taken against state employees for any cause specified in Government Code section 19572; conviction of a misdemeanor involving moral turpitude is among the specified causes. Whether a crime involves moral turpitude is a question of law.  Moral turpitude includes fraud; a crime in which an intent to defraud is an element is a crime involving moral turpitude.  Violation of section 2101 of the Unemployment Insurance Code involves both intent to defraud and a false statement made for the purpose of perpetrating the fraud.  Therefore, section 2101 defines a crime involving moral turpitude." Internal citations omitted)

9Padilla v. State Personnel Board, 8 Cal.App.4th 1136, 1140 (1992) [California Highway Patrol motor carrier specialist dismissed after pleading guilty to battery for fondling breasts of minor daughter] ("The question is one of statutory construction. The statutory phrase 'conviction of a misdemeanor involving moral turpitude' is ambiguous.  It might mean conviction of a misdemeanor whose elements constitute moral turpitude or a misdemeanor that by the manner of its commission involves moral turpitude. The latter is the correct reading.")

10California Government Code Section 1029 provides:  "(a) Except as provided in subdivision (b), (c), or (d), each of the following persons is disqualified from holding office as a peace officer or being employed as a peace officer of the state, county, city, city and county or other political subdivision, whether with or without compensation, and is disqualified from any office or employment by the state, county, city, city and county or other political subdivision, whether with or without compensation, which confers upon the holder or employee the powers and duties of a peace officer:  (1) Any person who has been convicted of a felony.  (2) Any person who has been convicted of any offense in any other jurisdiction which would have been a felony if committed in this state.  (3) Any person who, after January 1, 2004, has been convicted of a crime based upon a verdict or finding of guilt of a felony by the trier of fact, or upon the entry of a plea of guilty or nolo contendere to a felony.  This paragraph shall apply regardless of whether, pursuant to subdivision (b) of Section 17 of the Penal Code, the court declares the offense to be a misdemeanor or the offense becomes a misdemeanor by operation of law.  (4) Any person who has been charged with a felony and adjudged by a superior court to be mentally incompetent under Chapter 6 (commencing with Section 1367) of Title 10 of Part 2 of the Penal Code.  (5) Any person who has been found not guilty by reason of insanity of any felony.  (6) Any person who has been determined to be a mentally disordered sex offender pursuant to Article 1 (commencing with Section 6300) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.  (7) Any person adjudged addicted or in danger of becoming addicted to narcotics, convicted, and committed to a state institution as provided in Section 3051 of the Welfare and Institutions Code.  (b) (1) A plea of guilty to a felony pursuant to a deferred entry of judgment program as set forth in Sections 1000 to 1000.4, inclusive, of the Penal Code shall not alone disqualify a person from being a peace officer unless a judgment of guilty is entered pursuant to Section 1000.3 of the Penal Code.  (2) A person who pleads guilty or nolo contendere to, or who is found guilty by a trier of fact of, an alternate felony-misdemeanor drug possession offense and successfully completes a program of probation pursuant to Section 1210.1 of the Penal Code shall not be disqualified from being a peace officer solely on the basis of the plea or finding if the court deems the offense to be a misdemeanor or reduces the offense to a misdemeanor.  (c) Any person who has been convicted of a felony, other than a felony punishable by death, in this state or any other state, or who has been convicted of any offense in any other state which would have been a felony, other than a felony punishable by death, if committed in this state, and who demonstrates the ability to assist persons in programs of rehabilitation may hold office and be employed as a parole officer of the Department of Corrections or the Department of the Youth Authority, or as a probation officer in a county probation department, if he or she has been granted a full and unconditional pardon for the felony or offense of which he or she was convicted.  Notwithstanding any other provision of law, the Department of Corrections or the Department of the Youth Authority, or a county probation department, may refuse to employ that person regardless of his or her qualifications.  (d) Nothing in this section shall be construed to limit or curtail the power or authority of any board of police commissioners, chief of police, sheriff, mayor, or other appointing authority to appoint, employ, or deputize any person as a peace officer in time of disaster caused by flood, fire, pestilence or similar public calamity, or to exercise any power conferred by law to summon assistance in making arrests or preventing the commission of any criminal offense.  (e) Nothing in this section shall be construed to prohibit any person from holding office or being employed as a superintendent, supervisor, or employee having custodial responsibilities in an institution operated by a probation department, if at the time of the person's hire a prior conviction of a felony was known to the person's employer, and the class of office for which the person was hired was not declared by law to be a class prohibited to persons convicted of a felony, but as a result of a change in classification, as provided by law, the new classification would prohibit employment ofa person convicted of a felony."

11Adams v. County of Sacramento, 235 Cal.App.3d 872, 883 (1991) [deputy sheriff with expunged Kansas conviction for burglary and larceny disqualified from position] ("Plaintiff misunderstands the purpose behind section 1029.  It is not a concern that the public will learn a convicted felon is working as a peace officer, but an assurance to the public that this will never occur.  By virtue of section 1029, no governmental entity can knowingly employ as a peace officer a convicted felon.  This includes a felon whose conviction has been expunged.  If an exception were permitted for plaintiff, citizens could no longer be certain peace officers with whom they come in contact were not previously convicted of a felony.")

12Boyll v. State Personnel Board, 146 Cal.App.3d 1070, 1075 (1983) [applicant not barred from being a corrections officer by Section 1029, even though she pled guilty to a narcotics offense, because no "judgment" entered on the plea] ("In the case at bench, the facts are undisputed that after appellant had pleaded guilty to a felony charge, the court suspended the further criminal proceedings against her without rendition of judgment or imposition of a sentence and committed appellant to the custody of the Department of Corrections for the purpose of participating in a narcotics rehabilitation program pursuant to Welfare and Institutions Code section 3051.  It is likewise without dispute that after a successful completion of the narcotics rehabilitation program the trial court dismissed the criminal charge pursuant to Welfare and Institutions Code section 3200 and thereby released her from all penalties and liabilities, resulting from the offense under Penal Code section 1203.4.  The conclusion is thus inescapable that appellant falls squarely within the cases cited above and that in the absence of a judgment of conviction or imposition of sentence she cannot be deemed to be 'convicted' under section 1029 and cannot be deprived of her fundamental civil right to obtain a public employment as a peace officer.")

13California Government Code Section 13510.7 provides:  "(a) Whenever any person holding a certificate issued pursuant to Section 13510.1 is determined to be disqualified from holding office or being employed as a peace officer for the reasons set forth in subdivision (a) of Section 1029 of the Government Code, and the person has exhausted or waived his or her appeal, pursuant to Section 1237 or Section 1237.5, from the conviction or finding that forms the basis for or accompanies his or her disqualification, the commission shall cause the following to be entered in the commission's training record for that person: "THIS PERSON IS INELIGIBLE TO BE A PEACE OFFICER IN CALIFORNIA PURSUANT TO GOVERNMENT CODE SECTION 1029 (a)."  (b) Whenever any person who is required to possess a basic certificate issued by the commission pursuant to Section 832.4 or who is subject to subdivision (a) of Section 13510.1 is determined to be disqualified from holding office or being employed as a peace officer for the reasons set forth in subdivision (a) of Section 1029 of the Government Code, the commission shall notify the law enforcement agency that employs the person that the person is ineligible to be a peace officer in California pursuant to subdivision (a) of Section 1029 of the Government Code.  The person's basic certificate shall be null and void and the commission shall enter this information in the commission's training record for that person.  (c) After the time for filing a notice of appeal has passed, or where the remittitur has been issued following the filing of a notice of appeal, in a criminal case establishing the ineligibility of a person to be a peace officer as specified in subdivision (c), the commission shall reinstate a person's basic certificate in the event a conviction of the offense requiring or accompanying ineligibility is subsequently overturned or reversed by the action of a court of competent jurisdiction.  (d) Upon request of a person who is eligible for reinstatement pursuant to paragraph (2) of subdivision (b) of Section 1029 of the Government Code because of successful completion of probation pursuant to Section 1210.1 of the Penal Code, the court having jurisdiction over the matter in which probation was ordered pursuant to Section 1210.1 shall notify the commission of the successful completion and the misdemeanor nature of the person's conviction.  The commission shall thereupon reinstate the person's eligibility.  Reinstatement of eligibility in the person's training record shall not create a mandate that the person be hired by any agency."

14On the "harm to public service" concept applied in other contexts, such as with regard to city police officers and county deputies, see Ray Jurado, The Harm to Public Service Standard in Police Misconduct Cases, Los Angeles lawyer, July-August 2005.

15In the Matter of the Appeal by Albert Stephens, SPB Case No. 31760, 1994 (Precedential Decision)  ("In the instant case, appellant's conduct not only constituted an embarrassment to his position and his employer, but that conduct had the potential to seriously harm the public service.  Appellant acted in an extremely irresponsible manner when he became so intoxicated he was completely unaware of his surroundings and then proceeded to joke around and ultimately discharge the semi-automatic weapon he carried only by virtue of his position as a peace officer.  Someone could have been hurt or even killed as a result of appellant's reckless behavior.")  See also In the Matter of the Appeal by Monserrat Miranda, SPB Case No. 28269, 1993 (Precedential Decision) [Youth Authority Group Supervisor suspended under "discredit to agency" grounds for driving while intoxicated even though no arrest made]  ("As a Group Supervisor, appellant is certified as a peace officer under the laws of the State of California.  Peace officers may be held to a higher standard of conduct than non-peace officers merely by virtue of their position.  The courts have specifically addressed the issue of nexus in connection with unlawful conduct committed off-duty by peace officer employees of the Department of Youth Authority..   Similarly, in Ramirez v. State Personnel Board. the dismissal of a Youth Counselor was upheld on the basis that there was a nexus between the off-duty misconduct of masturbating in a public restroom and the job of Youth Counselor for the Department of Youth Authority.While appellant is not assigned the specific duty of arresting persons for drunk driving, he is nevertheless a peace officer sworn to uphold the law.  A peace officer's credibility is bound to suffer when he or she commits a serious violation of the law while off-duty.  Driving under the influence of alcohol constitutes serious misconduct.  The state has a right to expect more from persons charged with duties which include law enforcement.  Appellant's peace officer status weighs in favor of finding a nexus." Internal citations omitted)

16In the Matter of the Appeal by Daniel J. Kominsky, SPB Case No. 28961, 1992 (Precedential Decision) ("Similarly, we find insufficient evidence of a nexus between appellant's off-duty conduct in this case and his job.  Nor do we find that the conduct was of such character that it could easily result in impairment or disruption to the public service.  This case is distinguishable from the cases cited by the Department in its brief.  Most notably, the cases cited by the Department deal with situations involving peace officers, where the rule of law has long been established that peace officers are held to a higher standard of behavior than non-peace officers..In Parker, a youth guidance counselor at the California Youth Authority was disciplined for off-duty possession of marijuana.  The Department's analogy is amiss.  The Parker Court found that the employee had limited peace officer status and, therefore, he could be disciplined for violating laws he was employed to enforce..While there is clearly a nexus between a person whose job it is to counsel and guide young people convicted for crimes and that employee's possession of illegal drugs, we are not convinced that a similar connection exists between the job of a non-peace officer Supervising Cook I and an arrest for drunk driving.")

17Penal Code 29800 is commonly known in California as the crime of "felon with a firearm." It makes it a crime to own, possess or use a firearm if you've been convicted of a felony or certain misdemeanors, or you are a narcotics addict.

18In the Matter of the Appeal by Michael Sanchez, SPB Case No. 99-1194, 2000 (Precedential Decision) [SPB reversed non-punitive termination of correctional officer for failing to meet job requirements of carrying a firearm in connection with a no contest plea to California Penal Code 243(e)(1)--domestic battery in context of deferred entry of judgment program] ("It is apparent, therefore, that the term "conviction" should be given a broad scope so as to include actual entry of judgment against the individual, at least in those cases where the individual is permitted to participate in a pre-trial diversion program concerning the charged offense.  Since as of March 27, 1999 - the date appellant was dismissed from his position as a correctional officer - appellant had not been convicted of a violation of Penal Code section 243(e)(1), he was not precluded from possessing a firearm pursuant to the provisions of Penal Code section 29800.  As a result, it was improper for the Department to cite that section as providing justification for appellant's termination under Government Code section 19585.")

19Skelly v. State Personnel Board, 15 Cal.3d 194, 215, supra ("It is clear that due process does not require the state to provide the employee with a full trial-type evidentiary hearing prior to the initial taking of punitive action.  However, at least six justices on the high court agree that due process does mandate that the employee be accorded certain procedural rights before the discipline becomes effective.  As a minimum, these preremoval safeguards must include notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.")  See also California Code of Regulations Section 52.6 provides:  "(a) At least five working days before the effective date of a proposed adverse action, rejection during the probationary period, or non-punitive termination, demotion, or transfer under Government Code section 19585, the appointing power, as defined in Government Code section 18524, or an authorized representative of the appointing power shall give the employee written notice of the proposed action.  At least 15 calendar days before the effective date of a medical termination, demotion, or transfer under Government Code section 19253.5 or an application for disability retirement filed pursuant to Government Code section 19253.5(i)(1), the appointing power or an authorized representative of the appointing power shall give the employee written notice of the proposed action.  The notice shall include:  (1) The reasons for such action;  (2) A copy of the charges for adverse action;  (3) A copy of all materials upon which the action is based;  (4) Notice of the employee's right to be represented in proceedings under this section;  (5) Notice of the employee's right to respond to the person specified in subsection (b);  and (6) A statement advising the employee of the time within which to file an appeal with the SPB."  (b) The person whom the employee is to respond to in subsection (a)(5) shall be above the organizational level of the employee's supervisor who initiated the action unless that person is the employee's appointing power in which case the appointing power may respond to the employee or designate another person to respond.  (c) The procedure specified in this section shall apply only to the final notice of proposed action."

Save

Free attorney consultations...

Our attorneys want to hear your side of the story. Contact us 24/7 to schedule a FREE consultation with a criminal defense lawyer. We may be able to get your charges reduced or even dismissed altogether. And if necessary, we will champion your case all the way to trial.

Office Locations

Shouse Law Group has multiple locations all across California, Nevada, and Colorado. Click Office Locations to find out which office is right for you.

Regain peace of mind...

Our defense attorneys understand that being accused of a crime is one of the most difficult times of your life. Rely on us to zealously and discreetly protect your rights and to fight for the most favorable resolution possible.

To contact us, please select your state:

Call us 24/7 (855) 396-0370