I dissent.
I agree with the majority that the misconduct involved was¡ a valid cause for disciplinary action under subdivison (m) of section 19572 of the Government Code, and that the use of this incident as a basis for disciplinary action was no infringement on petitioner’s constitutional right of privacy. However, I dissent from the holding of the majority that the penalty of dismissal from the service is excessive as a matter of law.
The propriety of a penalty imposed by an administrative agency is a matter resting in the sound discretion of that agency and its decision will ' not be disturbed unless there has been an abuse of discretion.
I am not impressed by the fact that there is no “direct testimony” from the two male attorneys that their work relationship with the female attorney was or would be affected. An inference to that effect is a reasonable one. As the referee said, “Appellant’s [petitioner’s] conduct would cause Gianini and Phillips to fear their lives could be in jeopardy should appellant misinterpret any future contacts they might have in the course of their work with their fellow Labor Law Enforcement Attorney, [Miss X]. Such a situation is intolerable in public or private employment.”
Nor am I particularly impressed by the fact that the petitioner said that his relationship with the female attorney had been terminated, that he had sold his gun and that the incident would not recur. I would hardly expect him to testify to the contrary. However, were I attorney Gianini or attorney Phillips, I am not sure that I would share the majority’s faith in petitioner’s representation.
Further, I think that in assessing the penalty, the Board was entitled to take into: consideration all three of the incidents described in, the majority opinion. It is true that the first two standing alone were not considered sufficient cause for dismissal. Nevertheless, having found grounds for discipline under the last incident, it appears to me that the Board was entitled to take into consideration petitioner’s whole record—good and bad— when assessing the penalty.
When I add up the three incidents, I find no abuse of discretion in the action of the Board.
I would affirm the judgment of the trial court.
A petition for a rehearing was denied May 15, 1972, and respondents’ petition for a hearing by the Supreme Court was: denied June 22, 1972. Burke, J., was of the opinion that the petition should be granted.