Thursday, November 3, 2016
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Teacher Who Possessed Child Pornography Won’t Get Unemployment Pay—C.A.
By a MetNews Staff Writer
The Court of Appeal for this district has affirmed a decision that an elementary school teacher who pled no contest to possession of child pornography and was fired by the Los Angeles Unified School District is not entitled to unemployment benefits.
The teacher, Silvestre Ela, now contends that notwithstanding his plea, he is factually not guilty, insisting that he unwittingly opened an “ambush” attachment to an email sent by a “hacker”; the attachment contained child pornography; his opening of it triggered an alert to authorities resulting in his arrest. His plea, he maintains, was the result of his notion that he could best prove his innocence through an appeal or habeas corpus proceeding.
Affirming the trial court’s denial of his writ of administrative mandamus, challenging an adverse decision of the California Unemployment Insurance Appeals Board, the appeals court said in its unpublished opinion on Tuesday that substantial evidence supported the denial.
Writing for Div. One, Acting Presiding Justice Victoria Chaney noted that Ela had abandoned his initial contention that a conviction for possession of child pornography was not work-related and that benefits could not be denied based on conduct not connected with the job. His present stance, she recited, is that he was unlawfully forced to testify at the hearing before an administrative law judge and that, with his testimony disregarded, there was no evidence, given the school district’s failure to appear.
She said:
“Assuming for the sake of argument that Ela was compelled to testify at the administrative hearing, he was subjected to no prosecution, penalty or forfeiture as a result. His criminal prosecution occurred in 2011, long before he testified before the ALJ. And the ALJ imposed no penalty and required no forfeiture. Although the ALJ found Ela did not qualify for unemployment benefits, a disqualification is neither a forfeiture—the relinquishment of a right—nor a penalty, i.e., a ‘[p]unishment imposed on a wrongdoer.’ (Black’s Law Dict. (7th ed. 1999) p. 1153.) In any event, before invoking his Fifth Amendment right Ela voluntarily admitted, both at the administrative hearing and in an interview with the Unemployment Development Department, that he had pleaded no contest to possession of child pornography. Under both the Fifth Amendment and Unemployment Insurance Code section 1955, a voluntary statement made before the speaker invokes his or her right against self-incrimination may be used against the speaker.”
Chaney dismissed Ela’s insistence that he possessed the child pornography innocently, declaring:
“By pleading no contest to felony possession of child pornography, Ela admitted he knowingly possessed matter that he knew depicted a person under 18 years of age engaging in or simulating sexual conduct. This admission could be considered in later administrative proceedings as nonconclusive evidence of the truth of the criminal allegations…At the administrative hearing, Ela was free to contest the truth of the matters he previously admitted through his plea and to explain why he had entered it….He could also have introduced the criminal hearing transcript to establish his understanding that the plea was not an admission of factual guilt. But the ALJ was entitled to credit the earlier admission over any later denial, and the trial court’s review was only to determine whether the former outweighed the latter. On appeal, we may inquire only as to whether the trial court’s affirmance of the ALJ’s findings is supported by substantial, credible, and competent evidence. Ela’s admission during the criminal proceedings that he knowingly possessed child pornography is substantial, credible, and competent. Therefore, the trial court was within its discretion to find the prior admission outweighed Ela’s denial at the administrative hearing.”
The case is Ela v. California Unemployment Insurance Appeals Board, B259497.
Ela represented himself and David V. Greco, assistant general counsel for the Los Angeles Unified School District acted for the employer.
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