Metropolitan News-Enterprise


Tuesday, October 12, 2010


Page 1


C.A. Orders Rehiring of Woman Fired Over Misleading Court Filing




A Siskiyou Superior Court judge exceeded her authority by allowing the county to fire an employee, in the face of State Personnel Board findings that the worker was not deliberately dishonest and that there were mitigating factors justifying a lesser penalty, the Third District Court of Appeal has ruled.

“[I]t is immaterial how a superior court judge or we would have ruled if serving as a member of the State Personnel Board,” retired Presiding Justice Arthur Scotland, sitting on assignment, wrote for the court Thursday.

“In reviewing the Board’s determination of the proper penalty to be imposed for misconduct of a public employee, a judge’s role is simply to decide whether the Board abused its discretion, i.e., acted arbitrarily, capriciously, or beyond the bounds of reason,” the jurist explained. “If reasonable minds might differ on the appropriate degree of the penalty, a judge cannot substitute his or her judgment for that of the Board.”

Two-Month Suspension

The ruling reinstates the board’s determination that a two-month suspension is adequate punishment for Raegan Duncan, whom the board found abused her position as a social service employee by filing a declaration on behalf of a friend involved in a child custody dispute. Although Duncan did not use agency stationery and did not expressly state that she was acting in an official capacity, the text of the declaration could have misled the court into believing that her opinion represented an official conclusion, the board found.

The county Department of Human Services fired Duncan from her job assessing the eligibility of applicants for public assistance, after learning that she had submitted a declaration in connection with the custody dispute before the Shasta Superior Court.

She declared that the father “unquestionably should have sole custody of his children with supervised visits to the mother,” referred to him as her “client,” explained that she had been in contact with him due to her employment, and had made “home visits” to her residence.

Her superiors became aware of the declaration when the mother filed a formal complaint. When confronted about the declaration, she responded that that she did not believe she had done anything wrong, but the department determined she had dishonestly misrepresented herself and caused “discredit to the agency” and terminated her.

‘Professional Assessment’

On appeal to the SPB, the board found that Duncan, who had visited the father’s home while dropping off eligibility forms for a friend, who shared the residence, had wrongly implied in the declaration that she “was rendering a professional assessment in her capacity as a [DHS] employee.” The board found that she exposed the department to potential civil liability, although the mother did not sue, but concluded there were several mitigating circumstances.

Duncan, the board found, did not expressly claim to be acting in an official capacity and had no prior record of discipline, and the agency had no policy prohibiting employees from filing declarations in court cases.

The county petitioned for a writ of mandate, arguing that the SPB abused its discretion. Judge Laura Masunaga granted the writ, saying a finding of willful dishonesty was compelled by the evidence and that the mitigating factors cited by the board were legally insufficient.

Duncan’s dishonesty in connection with “the public trust” was “intolerable,” the judge said.

Scotland, however, agreed with Duncan that the board’s decision was not arbitrary and capricious or otherwise contrary to law, and that the trial judge failed to show the proper deference and to evaluate the evidence in the light most favorable to the board.

Duncan, the presiding justice reasoned, sincerely believed that the father was a good parent and that submitting a declaration on his behalf was the right thing to do and not in violation of any county policy. Thus, Scotland said, it was not unreasonable for the board to conclude that Duncan was merely expressing a personal opinion, although she exercised poor judgment in failing to make clear that she was doing so, and that termination was too harsh a penalty.

Scotland distinguished cases in which the court overturned civil service orders reinstating dishonest public employees. Those cases “do not compel discharge from employment as a penalty for dishonesty in every circumstance,” the recently retired jurist wrote.

Duncan’s misstatements, he said, did not have the same grave impacts as a deputy sheriff’s lies to cover up a fellow deputy’s abuse of an inmate or an officer’s false statements to a supervisor in which he denied having contacted a female co-worker in violation of a departmental order after she complained he had harassed her.

“Here, in contrast, Duncan’s indiscretion was starkly different than the blatant dishonesty, insubordination, and interference with internal investigations” in those cases, Scotland wrote. “The SPB did not find Duncan was dishonest, instead relying on mitigating factors that help to explain why it implicitly found that Duncan was not intentionally deceitful. And she did not attempt to cover up her misconduct. In the SPB’s view, she simply failed to understand how her declaration could be misconstrued, and she was obtuse about the nature of what she had done wrong.”

The case is Siskiyou v. State Personnel Board (Duncan), 10 S.O.S. 5832.


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