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McSwain v. State Personnel Board1/31/2002
was not credible. He cites to various aspects of their testimony and argues it is inconsistent with other evidence and should be discredited.
Specifically, McSwain contends there is no evidence that he abandoned his post and failed to respond to the alarms. He notes there was conflicting evidence as to the number and duration of the alarms and contends the only credible testimony was that of the electrician, who testified there were two alarms that sounded for only a few seconds as he began his maintenance. McSwain contends this evidence is credible because it is corroborated by the sequential events recorder that prints out when alarms are sounded. McSwain argues his failure to respond to the alarms is explained by their short duration.
"The Board is a statewide administrative agency which is created by, and derives its adjudicatory power from, the state Constitution. [Citations.] Under that constitutional grant, the Board is empowered to `review disciplinary actions.' In undertaking that review, the Board acts in an adjudicatory capacity. . . . he Board acts much as a trial court would in an ordinary judicial proceeding. Thus, the Board makes factual findings and exercises discretion on matters within its jurisdiction. On review the decisions of the Board are entitled to judicial deference. The record must be viewed in a light most favorable to the decision of the Board and its factual findings must be upheld if they are supported by substantial evidence. [Citation.] In addition, the Board's exercise of discretion must be upheld unless it abuses that discretion." (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 823.)
Like the trial court, our review is limited to whether the Board exceeded its jurisdiction, committed errors of law, abused its discretion, or made findings that are not supported by the evidence. (Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 870.) Where the evidence is conflicting, the credibility of witnesses and the proper weight to be given to their testimony are matters within the exclusive province of the Board. (Lorimore v. State Personnel Board (1965) 232 Cal.App.2d 183, 189.) We defer to the Board as to the inferences to be drawn from the evidence, provided the Board's inferences are not arbitrary and have reasonable foundation. (Larson v. State Personnel Bd. (1994) 28 Cal.App.4th 265, 273.)
The Board properly made credibility determinations as to the conflicting testimony. Several witnesses testified McSwain could not be found when the shift relief arrived. While they were looking for him, an alarm sounded and he did not respond. Lawrence then had Giraldin sound a signal alarm twice; this alarm was not recorded by the sequential event recorder. When McSwain was found in the women's restroom, he appeared groggy, said he had been caught, and mentioned he forgot to set his wrist alarm. This evidence supports the Board's finding that McSwain secreted himself in the restroom and failed to respond to the alarm.
In his reply brief, McSwain challenges the sufficiency of the evidence to support the Board's finding as to his sexual remarks about Blood's wife. An argument raised for the first time in a reply brief is deemed waived unless good cause is shown for failure to present it before. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) In any event, defendant's contentions regarding the sexual comments are meritless. He faults the Board's decision for failing to identify the employees to whom he made the remarks. At the hearing Scoles, Allen and Compton testified to the remarks and McSwain denied making them. The Board was free to accept their testimony over his.
McSwain f
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