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McSwain v. State Personnel Board1/31/2002
rt nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. [Citation.]" (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 404.) "The fact that reasonable minds may differ as to the propriety of the penalty imposed will fortify the conclusion that the administrative body acted within the area of its discretion. [Citation.]" (Blake v. State Personnel Board (1972) 25 Cal.App.3d 541, 553.)
When reviewing disciplinary actions, the Board is charged with rendering a decision that is "just and proper" under the circumstances. (Gov. Code, ยง 19582, subd. (a).) The overriding consideration in public employee discipline cases "is the extent to which the employee's conduct resulted in, or if repeated is likely to result in, ` arm to the public service.' [Citations.]" (Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 218.) The circumstances surrounding the misconduct and the likelihood of its recurrence are also relevant factors. (Ibid.)
The Board concluded that dismissal was appropriate for McSwain's intentional misconduct in secreting himself in the women's restroom, coupled with his other acts of misconduct. The Board was concerned that if the alarms had been an actual emergency rather than maintenance, McSwain's failure to respond could have resulted in serious damage. The Board thus properly focused on the potential harm to the public service posed by McSwain's misconduct.
McSwain's contentions that others were only reprimanded for similar misconduct and that he did not receive progressive discipline do not show an abuse of discretion in the penalty selected by the Board. The record does not demonstrate that Scoles's acts of leaving the plant were comparable to McSwain's misconduct. Even if it did, a public agency is not required to impose identical penalties for the charges similar in nature. (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 230.) Finally, the decision whether progressive discipline was appropriate is within the agency's discretion. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 76; Talmo v. Civil Service Com., supra, at p. 230.) Progressive discipline is not required in cases of serious willful misconduct. (Rita T. Nelson (1992) SPB Dec. 92-07 )
DISPOSITION
The judgment is affirmed.
We concur:
SCOTLAND, P.J.
CALLAHAN, J.
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