Friday, September 25, 2020
By SANDRA HONG, Staff Writer
State agencies cannot withdraw final disciplinary actions against employees and then replace them with harsher penalties, the First District Court of Appeal has held.
Three firefighters who argue they are being demoted twice for the same conduct of cheating to get job promotions appealed a San Francisco Superior Court’s order denying their petition for a writ of mandate. The State Personnel Board found the disciplinary actions issued by their employer, the California Department of Forestry and Fire Protection (“Cal Fire”), were warranted and denied the firefighters’ motions to dismiss.
The Div. One opinion by Presiding Justice Jim Hume, filed Wednesday, reversed the Superior Court order with respect to two of the firefighters, Justin Chaplin and James Michels, on the ground that because they did not appeal, their discipline was final, under Government Code §19575, after 30 days. It affirmed the order as to Frank Schonig, who had been given permission to file a late appeal, which was pending before the board.
Wording of Statute
Sec. 19575 provides:
“The employee has 30 calendar days after the effective date of the adverse action to file with the board a written answer to the notice of adverse action….If the employee fails to answer within the time specified or after answer withdraws his or her appeal the adverse action taken by the appointing power shall be final…..”
“On the merits, we agree with the firefighters that once a disciplinary action becomes final, the employer is prohibited from withdrawing it and initiating a new adverse action. The plain language of section 19575 could not be clearer: an appointing power’s discipline is final where no appeal is taken within 30 calendar days.”
Cal Fire Scandal
All three plaintiffs were working for Cal Fire when they applied for three open positions for fire captain in April 2014. A battalion chief at the time, Orville Fleming, secretly sent them text messages of interview questions and answers in advance of their interviews.
All three became fire captains among a pool of seven candidates.
About a year later, Fleming was arrested and charged with the murder of his girlfriend. He was also accused of wrongdoing at Cal Fire, prompting an investigation that led to the discovery of cheating by Chaplin, Michels, and Schonig.
In January 2015, Chaplin and Schonig were told they would no longer be fire captains after their assignments expired, and Michels was advised that he failed his probation. Their pay was reduced 5 percent for a year.
Weeks after the hearing, Schonig and Chaplin were interviewed for new positions and promoted. Cal Fire was criticized for what was denominated by the Sacramento Bee as “boomerang promotions.”
Cal Fire then-Director Ken Pimlott publicly lambasted Schonig’s and Chaplin’s promotions.
A short time later, Cal Fire told Schonig, Chaplin, and Michels that the disciplinary actions were being withdrawn and they were placed on administrative leave. They were then told they were being demoted to a firefighter II position.
The board argued that its actions were supported by previous decisions regarding employee discipline and that its “specialized administrative expertise” in deciding such matters should be given substantial deference.
“We are not persuaded the circumstances here warrant a similar high degree of deference,” Hume said, adding:
“[W]e are skeptical that the Board relied on any ‘specialized administrative expertise’ in resolving the issue here.…Whatever merit there may be to having a uniform discipline policy as expressed in precedential decisions, the Board was in no better position than the courts to determine in the first instance whether revoking a prior final discipline was barred by statute.”
The Board argued §19575 does not specifically limit an employer’s right to withdraw a disciplinary action. Hume responded that “nothing can be read into the absence of such a limitation.”
Hume said the order denying Schonig’s petition was appropriate, as his appeal entitled Cal Fire to withdraw and replace its original disciplinary notice. He cited §19575.5, which says:
“At any time before an employee’s appeal is submitted to the board or its authorized representative for decision, the appointing power may with the consent of the board or its authorized representative serve on the employee and file with the board an amended or supplemental notice of adverse action.”
The case is Chaplin v. State Personnel Board, 2020 S.O.S. 4517.
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