Thursday, March 12, 215
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C.A. Upholds Firing of DOJ Agent Based on Secretly Taped Calls
By KENNETH OFGANG, Staff Writer
A secret recording of a telephone call is admissible in a proceeding before the State Personnel Board if the call was taped at the direction of law enforcement as part of a criminal investigation, including an investigation of one of the agency’s own employees, the Court of Appeal for this district has ruled.
Div. Three yesterday affirmed the denial of William Telish’s writ petition, challenging his dismissal as a special agent for the state Department of Justice. The department fired Telish in July 2010, after concluding he attempted to conceal his relationship with a subordinate by threatening to release sexually explicit photos he had taken of her, and that he physically assaulted her because he believed she was having sex with other men.
The woman had worked under Telish when he was senior special agent in charge of the interagency drug task force known as LA IMPACT. The relationship continued on and off from 2006 to 2009, although the woman left LA IMPACT in 2008 to take a job at the Placentia Police Department.
In 2009, the woman informed Placentia’s police chief that she had been recently assaulted by Telish, and told him about the affair and the fact that Telish had told her not to discuss the affair and to lie if asked about it, and had threatened to put the photos online or send them to the woman’s son.
The chief informed DOJ, which opened a criminal investigation.
Department Request
As part of its probe, the department asked the woman to surreptitiously record several phone calls to Telish, which she did. When it completed the investigation, DOJ submitted a report to Orange County prosecutors, who decided not to press criminal charges.
The department fired Telish after concluding that he had engaged in assault, intimidation, and extortion in his dealings with the woman; lied to investigators; destroyed evidence; and otherwise violated DOJ policies.
In the ensuing administrative appeal, Telish moved to suppress the phone recordings. The ALJ, however, ruled they were admissible under Penal Code §633, which creates an exception to the state’s general ban—contained in §632—on recording phone conversations without the consent of both parties.
The section allows one party to record a conversation at the direction, and under the supervision, of law enforcement as part of a criminal investigation.
Telish argued that the department had no intent of charging him with a crime, and that the investigation was a “sham” designed solely to produce evidence to support his termination. The ALJ disagreed, and found that there was sufficient evidence, including the recordings, to justify the firing.
The board rejected the ALJ’s ruling on the admissibility of the phone calls, but concluded that there was enough other evidence of wrongdoing to sustain the decision.
Trial Court Ruling
Los Angeles Superior Court Judge James Chalfant said the ALJ was right, and the board was wrong, about the telephone calls.
“There is nothing in section 633 which limits use of the telephone call recorded pursuant to the law enforcement exception in a criminal case,” he wrote. “Rather, if the conversation is recorded in the course of a criminal investigation, the exception applies and the recording is admissible in any proceeding—criminal, civil, or administrative.”
He did agree with the board that there was sufficient evidence, independent of the recordings, to sustain Telish’s termination.
Presiding Justice Lee Edmon, writing for the Court of Appeal, agreed the recordings were admissible, explaining:
“The exclusionary rule set forth in subdivision (d) of section 632 provides for the exclusion only of evidence obtained ‘in violation of this section . . . in any judicial, administrative, legislative, or other proceeding.’…Thus, the exclusionary rule is not as broad as Telish would like. It does not restrict the use of evidence which was properly obtained in accordance with section 633. The Legislature certainly could have specified that evidence lawfully obtained pursuant to section 633, at the direction of law enforcement, may only be used in a criminal proceeding. It did not do so. This court cannot, under the guise of interpretation…expand the exclusionary rule of section 632, subdivision (d), or insert a limitation in section 633, by adding terms which the Legislature chose not to include.”
Edmon also concluded that there was substantial evidence supporting the board’s conclusion that the phone calls were taped as part of a legitimate criminal investigation.
She cited testimony from the director of the DOJ’s Division of Law Enforcement, saying he authorized the investigation based on information received from the Placentia police chief, and confirmed by interviewing the woman, that Telish had apparently committed misconduct that “we had to investigate…criminally” because it involved “domestic violence, dissuading a witness, perhaps perjury.”
That investigation, she noted, took place before, and was separate from, the administrative investigation.
The case is Telish v. California State Personnel Board (California State Department of Justice), 15 S.O.S. 1388.
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