Friday, July 23, 2004
Discharged Deputy A.G. Wins Back Pay, New Hearing
By DAVID WATSON, Staff Writer
A deputy attorney general fired for improperly removing two computer printers from state offices in the wake of the 1989 Loma Prieta earthquake won more than six years of back pay and a new hearing on the merits of his dismissal yesterday from the First District Court of Appeal.
The lawyer was identified in the court’s opinion as Robert Roe, which his appellate attorney said is not his real name. He was fired in 1992 after the Department of Justice claimed he took the equipment without authorization.
Sacramento lawyer Steven B. Bassoff, who represented Roe on appeal, declined to reveal Roe’s identity but said his client had a supervisor’s permission to take the equipment after the building in which he worked was damaged. Like many other state employees, Roe was forced to work from home after the disaster, Bassoff said.
In an opinion certified for partial publication yesterday, Justice Linda M. Gemello of Div. Five rejected the department’s contention that Roe was entitled to back pay only from the date he was terminated in August of 1992 to Sept. 24 of that year, when he submitted a resignation on the eve of a hearing. The department, she noted, conceded that the original termination was invalid, since Roe was not provided with the notice and an opportunity to be heard required by Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, but argued that his eligibility for back pay ended when he resigned.
Gemello said Alameda Superior Court Judge James A. Richman properly ruled that Roe’s eligibility for back pay ended only in May of 1999, when the State Personnel Board adopted an administrative law judge’s proposed decision invalidating the August firing. That decision came after a 1998 ruling by the Court of Appeal which reversed a trial court order calling for Roe’s reinstatement.
The 1998 appellate ruling required the matter to be remanded to the Personnel Board.
“Although the August 31 termination was not legally valid, it was in effect at the time Roe submitted his resignation. Indeed, the termination was in effect until May 1999, when the Personnel Board set aside the dismissal due to the Skelly violation.”
The resignation, which Roe submitted only because the department indicated it would be accepted and terminate disciplinary proceedings, affected neither his right to back pay nor his right to reinstatement, Gemello said.
An earlier Personnel Board hearing did not cut off Roe’s right to back pay, since it addressed only jurisdictional issues, the justice reasoned.
While the second board hearing also failed to reach the merits of Roe’s contention his dismissal was unjustified, since the board adopted the ALJ’s conclusion that Roe’s resignation barred further relief, Gemello conceded, she rejected Roe’s argument that he was therefore entitled to back pay through the present moment.
“In the second hearing in this case, the Board did not need to reach the merits because it concluded that Roe had resigned,” she explained. “Nevertheless, once the Board issued that decision, Roe was no longer subject to dismissal without due process. Instead, he was subject to a Board decision rendered after a full and fair hearing on the merits. The conclusion that Roe effectively resigned was in error, but it was not in violation of Roe’s Skelly rights.”
In an unpublished portion of the opinion, Gemello said the board would have to address the merits of Roe’s contention his dismissal was unjustified on remand.
Bassoff said Roe continued to practice law after leaving the Department of Justice, and is now “closing in on retirement.” But he would still like to be cleared of wrongdoing and reinstated in his old job, the lawyer said.
The case is Roe v. State Personnel Board (Department of Justice), A098067.
Copyright 2004, Metropolitan News Company