Metropolitan News-Enterprise


Friday, November 2, 2018


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C.A. Limits Bar on Later Testimony by Judges On Proceedings That Were Before Them

There’s No Applicability, Opinion Says, to Acting as a Witness in Administrative Hearing


By a MetNews Staff Writer


The Evidence Code section that bars a judicial officer from testifying in a subsequent “civil proceeding” as to what was said or done in a matter before him or her does not preclude testimony in a later administrative proceeding, the Third District Court of Appeal has declared.

Wednesday’s decision came in the case of attorney Pamela J. Palmieri who was fired on Dec. 13, 2010, by the California Department of Corrections and Rehabilitation. Palmieri—who, among other things, handled disciplinary cases against prison guards—was accused of being sassy to administrative law judges (“ALJ”s), habitually tardy—arriving at a hearing one day two hours late—as well as lying to an ALJ in one instance, being abusive toward a coworker on another occasion, and other misconduct.

She appealed to the State Personnel Board. Given that its own administrative law judges were potential witnesses, an ALJ with the Office of Administrative Hearings conducted the evidentiary hearing, which stretched over 21 days.

Testimony against Palmieri included that of two Department of Corrections ALJs.

ALJ’s Findings

The ALJ who conducted the hearing on the discharge from employment sustained four of the 12 counts but slashed the discipline to a 30-day suspension.

The four counts entailed belligerence toward an ALJ when he took her to task for arriving late for an afternoon session and her fabrication that a supervisor told her she could take an hour for lunch no matter what time limit an ALJ imposed; a pattern of tardiness; a proclivity for wandering off from the office during the work day and taking the stance that, as an attorney, she could make her own hours; and her offensive conduct toward the co-worker, a woman in the Personnel Office.

As to the latter episode, the hearing officer found that Palmieri’s “screaming, demanding, and profanity laced tirade at the personnel staff was outrageous and cruel.” 

‘Seamless Excuses’

The State Personnel Board ultimately decided that termination of employment was warranted, finding that Palmieri’s “seamless excuses do not portray a person who recognizes that her actions are unacceptable.”

Sacramento Superior Court Judge Christopher E. Krueger denied a petition for a writ of administrative mandamus and the Court of Appeal affirmed, in an opinion by Acting Presiding Justice Elana Duarte.

Palmieri maintained on appeal that the board erred in admitting testimony of two ALJs in light of Evidence Code §703.5, which says, in part:

“No person presiding at any judicial or quasi-judicial proceeding...shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding….”

Not ‘Civil Proceeding’

An administrative hearing, Duarte said, is not a “civil proceeding.” She explained:

“The administrative state as we now know it did not begin to rise in full flow until the New Deal….It operates distinctly apart from ordinary civil law principles. An administrative hearing before the Board is neither a civil action nor a special proceeding because it is not a judicial hearing….

“We have repeatedly rejected the view that an administrative proceeding is a form of civil action.”

The jurist added:

“If the Legislature wanted to encompass subsequent administrative proceedings within the evidentiary limitations provided by section 703.5, it would expressly so have provided, because we presume the Legislature is aware of the decisions…holding that administrative proceedings are not civil actions.”

The opinion also says that “there was ample evidence of Palmieri’s dishonesty.”

State Bar’s Jurisdiction

The lawyer noted that some of the charges entailed unprofessional conduct and argued that these matters are within the purview of the State Bar. Duarte responded:

“Her view is that the existence of the State Bar disciplinary system precludes her employer from disciplining her for actions while practicing law. But under her theory, no employer of an attorney could ever impose discipline for ethical lapses occurring during the practice of law. We reject this view.”

Duarte said that “some of her conduct, such as misleading a quasi-judicial officer, may well present grounds for the State Bar to investigate her,” adding in a footnote:

“The record does not show whether such an investigation has yet taken place.”

The State Bar website reveals no pending disciplinary charges but does reflect a private reproval in 1992 and an 11 month suspension in 2005 for failing to pay State Bar dues.

The case is Palmieri v. California State Personnel Board, 18 S.O.S. 5229.


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