Fisher v. State Personnel Bd.

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While serving as an administrative law judge for the State Personnel Board (SPB), Richard Fisher joined the law firm of Simas & Associates as “of counsel.” Simas & Associates specialized in representing clients facing administrative actions, including those heard by the SPB. The Simas law firm represented a CalTrans employee in a high-profile case that was being heard before the SPB while Fisher was serving his dual roles. Unaware Fisher was working for the law firm representing the CalTrans employee, the SPB administrative law judge hearing the high-profile case discussed the matter in a meeting attended by Fisher and even sent a draft opinion to her SPB colleagues, including Fisher. Fisher, however, never informed anyone at the SPB of his connection with the Simas law firm. Fisher’s connection with the law firm came to light only when another administrative law judge was asked about the matter during a local bar function. The SPB dismissed Fisher from his position as an administrative law judge. Fisher challenged the dismissal, which was affirmed after a hearing before the Office of Administrative Hearings. After a petition for mandamus relief was denied by the superior court, Fisher timely filed this appeal, arguing he should have been reinstated to his position because he was never personally served with notice that working for a law firm specializing in administrative matters constituted an impermissible activity for an SPB administrative law judge. Fisher additionally argued: (1) the 2013 incompatible activities statement adopted by the SPB was “an invalid ‘underground regulation;’ ” (2) conflicting evidence “fairly detracts from the findings” that he engaged in neglect of duty and other failures of good behavior; (3) the SPB’s decision “failed to address the Skelly[2] violation” of a missing document that was not disclosed to him prior to his hearing; and (4) his termination from employment at the SPB was not a just and proper penalty. The Court of Appeal rejected Fisher’s arguments that an SPB administrative law judge must expressly be informed it was impermissible to work for a law firm actively litigating cases before the SPB; Fisher’s conduct violated Government Code section 199903 and the SPB’s incompatibility activities statements that were in effect throughout his tenure as an SPB administrative law judge. The Court determined substantial evidence supported the findings of the administrative law judge who heard Fisher’s case that Fisher “displayed an appalling lack of judgment when he became of counsel with Simas & Associates” and “continued to demonstrate poor judgment when he failed to disclose his of counsel relationship to SPB.” The SPB did not abuse its discretion by dismissing Fisher. Accordingly, the Court affirmed the judgment. View "Fisher v. State Personnel Bd." on Justia Law