O'ROURKE, J.
Plaintiff Jason Lamboy, a Correctional Lieutenant employed by the Department of Corrections and Rehabilitation (the Department), petitioned for administrative mandamus, seeking review of the California State Personnel Board's (the Board) decision disciplining him for violating the Department's use of force policy. The superior court denied his petition and affirmed the administrative decision. Lamboy contends (1) there was insufficient evidence to support the finding he violated the use of force policy; specifically, his conduct was justified as an immediate use of force, and thus it did not violate the controlled use of force protocol and (2) the penalty of a 10 percent pay cut for 24 months was excessive. We reject those contentions and affirm.
In 2002, Lamboy was hired as a correctional officer. In 2012, he was transferred to the California Institute for Men, where the incident at issue occurred. He received annual training regarding the Department's use of force policy and on various occasions he taught courses regarding that policy.
In 2014, the Department sent Lamboy a notice of adverse action, stating he had committed acts and omissions constituting cause for his salary reduction; specifically, inexcusable neglect of duty (Gov. Code, § 19572, subd. (d)); willful disobedience (Gov. Code, § 19572, subd. (o)); and other failure of good behavior during or outside of duty hours of such a nature that it caused discredit to the hiring authority. (Gov. Code, § 19572, subd. (t).)
The notice stated that on February 14, 2013, Lamboy was responsible for overseeing all facility operations, including its housing unit. Correctional Sergeant L. telephoned Lamboy, who was in a separate building, and informed him that "Inmate F." was acting bizarrely and appeared to be under the influence of a controlled substance. The inmate had covered his cell window and refused the correctional guards' orders to exit his cell. Lamboy instructed Sergeant L. to ready a cell extraction team to accompany Lamboy to the inmate's cell. When Lamboy reached the facility where the inmate was housed, he instructed the team to stand nearby as a precautionary measure while he contacted the inmate. He told them if the inmate refused Lamboy's orders to remove the window covering and be handcuffed, the team would enter the inmate's cell. When they arrived at the cell, Lamboy several times ordered the inmate to remove the window covering before he finally complied. However, the inmate refused to be handcuffed. The inmate fell to the ground and became unresponsive to Lamboy's commands. Lamboy ordered the extraction team, headed by Correctional Officer R., to enter the cell. Officer R. entered first and used a shield to restrain the inmate, who struck him in the face. Eventually, the extraction team subdued the inmate, who was injured in the incident.
The Department alleged this cell extraction violated its policy regarding a "controlled use of force" because despite having sufficient time to comply with the policy, Lamboy ordered the cell extraction without giving the team the opportunity to make all required preparations. The Department further alleged no justification existed for an "immediate use of force," particularly because Lamboy had assembled what he called an "emergency cell extraction team." In fact, Lamboy had previously informed the team that he "had every intent of entering the inmate's cell if he would not voluntarily cuff up." The Department alleged Lamboy admitted to Department investigators that his extraction team did not comply with the controlled use of force policy.
The Department alleged Lamboy (1) put the staff at risk of significant injury because the team members were not wearing all of the required protective equipment; (2) put the Department at risk by not having the incident videotaped; and (3) failed to include medical personnel in the extraction team despite finding out the inmate might have been under the influence of a controlled substance.
Lamboy described the incident in a February 14, 2013 crime/incident report as involving "disobeying orders resulting in the use of force." Lamboy said that after the inmate fell face down, he was unresponsive to Lamboy's calls. Lamboy also filled out a "Incident Commander's Review" form but he did not state the inmate was unconscious, had stopped breathing, or had experienced a medical emergency. A question on the form specifically asked, "Why was force needed? Describe the threat that required force to be used. When the threat no longer existed, was the force discontinued?" Lamboy replied: "Force was required to gain compliance from [the inmate]. Continued noncompliance despite verbal commands to come to the cell door and cuff up. Once compliance was gained, the application of force was ceased."
Following a hearing, the Department sustained the notice of adverse action and disciplined Lamboy for this incident. The hearing officer found that when Lamboy instructed Sergeant L. to have staff ready in the event cell extraction became necessary, Lamboy "described the term `have staff ready' to mean helmets, a shield, baton and restraint team. [Lamboy was] aware at all times this was not a fully outfitted cell extraction team." The hearing officer found Lamboy had conducted a "controlled use of force" extraction that violated Department policy. He concluded no justification existed for an immediate use of force, particularly when Lamboy had assembled what he had termed an "emergency cell extraction team." The hearing officer concluded: "As a result of [Lamboy's] actions the inmate was injured and Officer [R. was] hit in the face. [Lamboy] placed [his] staff at risk of significant injury because they were not outfitted with all of the protective equipment that is required in a controlled use of force. [Lamboy] exposed the [D]epartment to risk of a claim by this inmate when [Lamboy] ordered staff to enter this cell without having this incident videotaped. Furthermore, when [Lamboy] spoke with [Sergeant L.], [Lamboy was advised] that he suspected that the inmate was under the influence of a controlled substance, yet [Lamboy] failed to have any medical professional present."
Lamboy appealed to the Board, and a hearing was held before Administrative Law Judge (ALJ) James Sobolewski. Acting Captain P. testified that her job included supervising lieutenants. She was working on the day of the incident, but she did not approve Lamboy's cell extraction order.
A custody captain who was responsible for total security of the institution at the time of the incident also routinely reviewed use of force actions. He testified that ultimately the captain or associate warden makes the decision about the appropriateness of carrying out a cell extraction in a controlled use of force setting. Captain J. testified that in reviewing the cell extraction incident here, he determined Lamboy had violated the policy regarding "controlled use of force," which applied because the inmate who was failing to comply with a lawful order was isolated and contained and thus lacked the ability to injure anyone while alone in his cell. Moreover, there was enough time for the extraction team to be properly outfitted to carry out the extraction. Captain J. concluded: "They didn't have the proper gear to go in there, which put themselves at risk . . . [¶] I'm looking at where was the captain on scene. Where was the video? Where was . . . the medical and the mental health staff that should have been there? Because you had time. There was time to have dialog."
Captain J. pointed out that despite Lamboy having identified the problem as the inmate acting bizarrely, Lamboy did not call medical staff to evaluate the inmate. Captain J. concluded, "[T]here was no imminent threat to that inmate at that time where he was having issues which would warrant an immediate entry into the cell to—keep the inmate from harming himself. But they didn't put anybody there to watch that inmate to—to see if his behavior escalated."
Captain J. testified that Lamboy had the ability to check if the inmate had lost consciousness: "I would have . . . tried to open the food port. Get a better angle in. Since the[y] had the staff there with the shield, you could have possibly breached the cell one or two inches to get a better vantage point, a view in there. I'd look for breathing. I would look for blood, any kind of stuff there."
Lamboy testified that after the inmate had removed the window covering, he saw the inmate's cell "look[ed] destroyed," and his property was strewn about. The inmate refused to be handcuffed. Suddenly, the inmate fell to the ground face down and became unresponsive to Lamboy's commands. The inmate's body made "erratic" movements; therefore, Lamboy believed the inmate was under the influence of a controlled substance. Lamboy did not call his supervisor or any medical or mental health personnel. Lamboy testified he believed a medical emergency had arisen. He briefed the extraction team about the inmate's condition, and signaled for the team to enter the cell. Lamboy did not instruct any member of the team to immediately administer medical aid to the inmate. Instead, the team restrained and removed him from the cell and took him to a different place, where he received medical assistance.
Officers R. and T. L. testified that as members of the extraction team they and other team members did not have an opportunity to wear all of the required protective clothing and gear before entering the inmate's cell. Officer R. explained that while the team members were checking their gear in preparation for the extraction, Sergeant L. interrupted their preparations and told them that they were needed immediately. Sergeant G. witnessed part of the extraction team's preparations, and testified about the team's lack of protective gear. Various officers testified that the extraction team did not include medical personnel, a videographer or a scribe for taking notes.
Officers R. and T. L. testified that when they entered Inmate F.'s cell, he was the only inmate in the cell, and he was lying face up. There was no blood on the floor. Officer R. specified: "[The inmate's] arms were on his side, his eyes were closed, but the minute I actually got on top of him using his [sic] body weight, he immediately opened his eyes. To me, my opinion is that it's almost like he was faking it." Officer R. also described the struggle he had with the inmate: "I got on top of him, and then the other cell extraction team was on top of him so we had a lot of weight on him. He started squirming, fighting, and he was able, with all that weight, he was able to actually push up on us and actually scoot out from under the shield. He actually got his arm out." Officer R. testified the inmate got his head from under the shield, and "was able to spit;" also, the inmate "actually took a swung [sic] and actually hit me in the helmet and actually knocked the shield up," leaving Officer R.'s face exposed.
The ALJ's proposed decision sustained the Department's disciplinary action and Lamboy's salary reduction. The ALJ pointed out that under the Department's regulations, "An extraction team is used to remove an inmate from a controlled or isolated setting, typically a cell, when the inmate is uncooperative and poses a threat to the safety or security of the institution. Team members are outfitted with protective equipment, and are assigned specific roles during the extraction process, namely shield, baton, handcuffs, and leg restraints." He found the protective equipment includes helmets with face shields, chest protectors, elbow pads, knee pads, and shin guards. He further found one officer is provided with a protective shield that can be used to pin down the inmate. The ALJ found that the extraction team members lacked sufficient time to inventory and wear all of their protective equipment.
The ALJ determined Lamboy was not credible when he testified that the inmate was "prone and lying face down on the cell floor with his head near the cell door." Rather, the ALJ believed the "credible testimony of [Officers R. and T.L.], the first two [correctional officers] in the cell, [which] placed [the inmate] on his back, face up, with his arms at his side. It is unlikely that an inmate who suddenly fell unconscious would land so neatly." The ALJ believed those officers had no reason to report this matter falsely; by contrast, "[Lamboy] had a strong incentive to describe [the inmate] falling to the cell floor in a manner that supports [Lamboy's] medical emergency defense."
The ALJ concluded Lamboy acted with inexcusable neglect as his immediate use of force was not justified. The ALJ explained that when the inmate ignored Lamboy's orders to be handcuffed, "[Lamboy's] proper course of conduct was to withdraw and implement the controlled use of force procedures to extract [the inmate] from his cell. Instead, [Lamboy] staged the extraction team next to [the inmate's] cell door for possible removal of [the inmate]." The ALJ concluded that some members of the extraction team were not properly equipped with protective gear to enter the inmate's cell. Moreover, the team lacked a videographer and medical personnel.
The ALJ explained: "[Lamboy] defended his staging of the extraction team next to [the inmate's cell] by referring to the team as a `precautionary team.' However, [California Institute of Men] has no policy provisions for the use of a `precautionary team,' and since [the inmate] was isolated in his cell from staff and other inmates, there was no need for a precautionary team . . . . The facts support the conclusion that custody staff . . . was an extraction team, and that [Lamboy] intended to use the extraction team to remove [the inmate] without complying with the controlled use of force protocol as it relates to protective gear, video recording, and medical staff."
The ALJ concluded Lamboy had engaged in willful disobedience because despite his familiarity with the Department's controlled use of force policy, he had intentionally directed extraction team members into Inmate F.'s cell without complete protective equipment and without including a videographer or medical staff. Finally, for the same reasons, the ALJ found Lamboy had engaged in other "failure[s] of good behavior." The ALJ elaborated on the egregiousness of Lamboy's misconduct: "A video record serves to protect [the Department] from any potential claims by inmates of excessive force, and the availability of medical staff would facilitate immediate medical assistance by trained medical personnel if an inmate or member of the extraction team was injured during the incident. Again, [Lamboy's] failure to comply with the [] use of force protocol had the potential to result in impairment of the public service."
The ALJ was unpersuaded by Lamboy's claim that the inmate's collapse and failure to respond to Lamboy's shouts constituted a medical emergency, thereby permitting the extraction team's immediate entry into the cell and its use of force, and excusing Lamboy's failure to comply with the controlled use of force protocol: "[Lamboy] did not know if [the inmate] was actually unconscious or just feigning unconsciousness. . . . Further, there were no signs of a medical emergency—no blood was present, and careful observation of the rise and fall of [the inmate's] chest would have permitted [Lamboy] to confirm that [the inmate] was breathing. Finally, the extraction team entered the cell in a manner consistent with subduing an unruly inmate rather than rendering emergency medical aid. The evidence does not support the conclusion that [the inmate] was in a life-threatening situation that would justify immediate entry into the cell and use of force."
The ALJ concluded that a "strong penalty is warranted" and therefore Lamboy's penalty was "just and proper." He reasoned: "By failing to follow [the Department's] use of force protocol and ensure staff was fully outfitted with protective equipment beforehand, [Lamboy] increased the risk of injury to staff should [the inmate] fight back or possess an inmate-manufactured weapon. Additionally, [Lamboy's] failure to ensure that the cell extraction was videotaped impaired [the Department's] ability to respond to and defend against any potential excessive use of force claims, and his failure to have medical staff nearby delayed the ability to provide medical care to custody staff or [the inmate] for any potential injuries. [Lamboy's] actions had the potential to cause significant harm to the public service." The ALJ pointed out that Lamboy also had received a prior discipline for violating the Department's use of force policy, thus raising a significant concern Lamboy would attempt to violate the Department's controlled use of force policy in the future: "The likelihood of recurrence is high. [¶] . . . [Lamboy] is a high-ranking member of custody staff who was charged with overseeing the operation of a detention facility. In this capacity, [he] is expected to set a good example for custody staff by complying with all policies. [He] did not meet these expectations when he knowingly ignored [the Department's] use of force policy and directed an ill-equipped team of custody staff to enter the cell of an inmate acting in a bizarre manner."
The Board adopted the ALJ's proposed decision as its own. Lamboy filed a writ of administrative mandate in the superior court, which denied it. The court concluded sufficient evidence, in the form of Lamboy's own statements during the investigation, supported the administrative decision. Specifically, Lamboy did not mention medical emergency in his report of the incident; moreover, Lamboy had instructed Sergeant L. to ready an extraction team "before anything happened that could have been construed as a medical emergency."
Review of disciplinary action by an appointing authority is directed in the first instance to the Board, which acts as an adjudicatory body, weighing the evidence to determine the facts and exercising discretion to ascertain whether the charges sustained are sufficient for the discipline imposed. (Gonzalez v. State Personnel Bd. (1995) 33 Cal.App.4th 422, 428.) The trial court reviews decisions of the Board for substantial evidence, considering "'"all relevant evidence in the administrative record including evidence that fairly detracts from the evidence supporting the agency's decision."'" (California Youth Auth. v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 585.) "On appeal, `[w]e apply the substantial evidence test in reviewing a decision of the [B]oard. [Citation.] We do not reweigh the evidence; we indulge all presumptions and resolve all conflicts in favor of the [B]oard's decision. Its findings come before us "with a strong presumption as to their correctness and regularity." [Citation.] We do not substitute our own judgment if the [B]oard's decision "'"is one which could have been made by reasonable people. . . ." [Citation.]'"' [Citations.] [¶] `Substantial evidence' is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. [Citation.] Such evidence must be reasonable, credible, and of solid value." (Id. at p. 584; Code Civ. Proc., § 1094.5, subd. (c).)
The California Code of Regulations defines "immediate use of force" as "[t]he force used to respond without delay to a situation or circumstance that constitutes an imminent threat to institution/facility security or the safety of persons. Immediate force may be necessary to subdue an attacker, overcome resistance, or effect custody. If it is necessary to use force solely to gain compliance with a lawful order, controlled force shall be used." (Cal. Code Regs., tit. 15, § 3268, subd. (a)(4).)
The Code of Regulations defines "controlled use of force" as: "[t]he force used in an institution/facility setting, when an inmate's presence or conduct poses a threat to safety or security and the inmate is located in an area that can be controlled or isolated." (Cal. Code Regs., tit. 15, § 3268, subd. (a)(6).) "[C]ontrolled use of force may be used when time and circumstances permit advance planning, staffing and organization. A controlled use of force requires authorization and the presence of a First or Second Level Manager." (Cal. Code Regs., tit. 15, § 3268, subd. (i).) The Code of Regulations specifies that a video recording is required for all controlled use of force occurrences. (Cal. Code Regs., tit. 15, § 3268, subd. (d).) The Department's Operations Manual (Manual) Supplement 51020.4 is in accord. The Manual supplement also requires that each member of the extraction team be issued specified protective gear, including protective shields, video cameras, handcuffs, leg irons and protective vests. The Manual supplement mandates that a videographer, a scribe officer and medical personnel accompany the extraction team.
Substantial evidence supports a finding that the situation here did not call for the use of immediate force but rather a controlled use of force, which the Manual supplement says applies "when an inmate's presence or conduct poses a threat to the safety or security and the inmate is located in an area that can be controlled or isolated." As Captain J. testified, the inmate was isolated and contained and thus lacked the ability to injure anyone while alone in his cell. Captain J. also testified that Lamboy claimed the extraction was necessitated by the inmate's failure to comply with a lawful order; therefore, the time and circumstances permitted advance planning, staffing and organization as required by the controlled use of force protocol. Officers R., G. and T.L. testified Lamboy did not permit the team sufficient time to be properly outfitted for carrying out the extraction. Captain J. testified that the officers were thus put at risk by the lack of adequate gear.
We therefore reject Lamboy's contention that the evidence shows an immediate use of force was required. As Captain J. testified, the inmate's health condition did not warrant immediate entry, as shown by the fact Lamboy failed to place someone to keep watch over the inmate to ensure he would not harm himself or to monitor if his behavior would escalate. Moreover, as the ALJ found, Lamboy did not ask any member of the extraction team to administer medical aid to the inmate on the spot, nor did Lamboy include medical personnel in the extraction team. Finally, Lamboy's contemporaneous reports did not mention any medical emergency.
Lamboy contends the court abused its discretion in imposing the 10 percent pay cut for 24 months, arguing he "made a judgment call in the moment regarding [Inmate F.'s] immediate need for medical attention. In so doing, he exhibited a desire to ensure the health of an inmate, not a nefarious intent to violate policy."
The penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. (Pollak v. State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1404.)
The Board is an agency of constitutional authority; therefore, its determination regarding whether the facts justify discipline and, if so, what the appropriate penalty should be, will not be disturbed in a mandamus proceeding unless the Board patently abused its discretion by acting arbitrarily, capriciously, or beyond the bounds of reason. (County of Siskiyou v. State Personnel Bd. (2010) 188 Cal.App.4th 1606, 1615.) "The fact that reasonable minds may differ as to the propriety of the penalty imposed fortifies the conclusion that the administrative body acted within the area of its discretion." (Flowers v. State Personnel Bd. (1985) 174 Cal.App.3d 753, 761.) However, the Board abuses its discretion if it "'has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.'" (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 832.)
"While an administrative agency has broad discretion in the imposition of penalty or discipline, that discretion is not unlimited. In considering whether an abuse of discretion occurred in the discipline of a public employee, the overriding consideration 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 factors include the circumstances surrounding the misconduct and the likelihood of its recurrence." (Warren v. State Personnel Bd. (1979) 94 Cal.App.3d 95, 107-108.) In weighing such factors, the court considers the nature of the employee's profession, "since some occupations such as law enforcement, carry responsibilities and limitations on personal freedom not imposed on those in other fields." (Thompson v. State Personnel Bd. (1988) 201 Cal.App.3d 423, 429-430; Cate v. California State Pers. Bd. (2012) 204 Cal.App.4th 270, 283-284.) We will not disturb the penalty imposed by the Board unless we find it was "clearly excessive." (Constancio v. State Personnel Bd. (1986) 179 Cal.App.3d 980, 991.)
The Board could reasonably conclude that as a peace officer, Lamboy was in a position of trust and held to the highest standards of behavior. Further, it observed this was not the first disciplinary action taken against Lamboy for his decisions regarding use of force. Lamboy's conduct of sending in the extraction team without adequate protective gear, and without a videographer or medical personnel, exposed the staff and inmate to injury and the Department to lawsuits. In light of the gravity of Lamboy's violation, we cannot say the Board's penalty was excessive as a matter of law. Rather, Lamboy's punishment was appropriate in light of his substantial familiarity with the use of force policy. Thus, he has not shown the Board manifestly abused its discretion.
The judgment is affirmed.
HUFFMAN, Acting P. J. and GUERRERO, J., concurs.
