It has long been the rule that "[t]he penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated" and that "[n]either 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.
State Personnel Bd. In part II of this opinion we apply this well-established rule, and we conclude that the City of Merced did not abuse its discretion in terminating the employment of two city mechanics who committed numerous and repeated violations of the city's personnel rules. Eugene Kazensky and Rusty Mileur hereafter sometimes respondents were mechanics employed by the City of Merced.
The city attempted to discover a possible cause of vandalism to city vehicles by installing a hidden video surveillance camera at the city shop where the vehicles were repaired. The hidden camera did not film any incidents of vandalism, but did capture respondents taking grossly excessive breaks. It also captured respondent Mileur engaging in other inappropriate behavior. The city's director of [65 Cal. Respondents challenged their dismissals.
The City of Merced Personnel Board held an evidentiary hearing which spanned parts of five days in March and April of The personnel board unanimously recommended that the city manager uphold the termination of respondent Mileur. It recommended, by a vote of three to two, that respondent Kazensky be reinstated without backpay and with a two-step demotion.
The two dissenters voted to recommend termination of respondent Kazensky also. Pursuant to the city charter and the city's personnel rules, the city manager listened to a tape recording of the personnel board hearing and considered the evidence offered at the hearing and the recommendation of the personnel board.
