Appeal of Transfer
Final Decision Adopted July 19, 2022
By: Eraina Ortega, Director
PROPOSED DECISION
On May 12, 2022, this matter was heard before Karla Broussard-Boyd, Sr. Administrative Law Judge (ALJ), Department of Human Resources (CalHR) at 9:00 a.m. The appellant was present and represented by Karly McCrory, Staff Counsel, California Correctional Peace Officers Association. James Curran, Deputy Attorney General III, Department of Justice, represented respondent, the California Department of Corrections and Rehabilitation. All parties appeared telephonically.
I
JURISDICTION
California Government Code section 19994.3 authorizes CalHR to return an employee to his former position if a transfer was made for the purpose of harassment or discipline in violation of Government Code section 19994.3. On November 10, 2021, the California Department of Corrections and Rehabilitation, respondent, issued the appellant, a letter transferring him from its Woodland Parole Unit, to Division Headquarters, effective November 15, 2021. On December 7, 2021, the appellant filed an appeal from Transfer with the Statutory Appeals Unit of CalHR. The appeal complies with the procedural requirements of California Code of Regulations, title 2, section 599.904. CalHR has jurisdiction over the appeal.
II
PROCEDURAL HISTORY
On December 7, 2021, Aaron Cohen, Staff Counsel, California Correctional Peace Officers Association, filed a transfer appeal with the CalHR Statutory Appeals Unit (SAU) on behalf of the appellant. On December 16, 2021, the SAU issued a Notice of Time and Place of telephonic Pre-Hearing Conference for January 10, 2022. At the telephonic Pre-Hearing Conference, the telephonic Evidentiary Hearing was scheduled for March 8, 2022.
On February 22, 2022 respondent's counsel, James Curran, Deputy Attorney General III, Department of Justice, requested a continuance on behalf of respondent, the California Department of Corrections and Rehabilitation (CDCR). The continuance was granted and the hearing rescheduled for March 9, 2022.
On March 2, 2022, respondent's counsel, James Curran, Deputy Attorney General III, Department of Justice, requested a second continuance on behalf of respondent, CDCR. The request was granted on a showing of good cause, and the hearing was rescheduled for May 12, 2022. This telephonic Evidentiary Hearing followed.
III
ISSUE
The appellant argued he was transferred as a punishment because senior management was angry with him for sending an email to law enforcement stakeholders.
The respondent argued the appellant was transferred because his expertise was needed at its Sacramento headquarters.
The issue to be determined is:
- Was the transfer of appellant made for the purpose of harassment or discipline in violation of Government Code section 19994.3?
IV
FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence. The appellant began his career with the State of California on July 23, 2010, as a Parole Agent I for respondent, the California Department of Corrections and Rehabilitation, (CDCR). On January 15, 2018, he was appointed to the Parole Agent II classification; and on September 19, 2018, was appointed to the Parole Agent III (PAIII) classification. Since 2018, the appellant served as the Unit Supervisor in respondent's Woodland Division of Adult Parole Operations (DAPO) field office, supervising a staff of 8-10 parole agents and various clerical staff, in the Sierra Division.
As part of his PAIII responsibilities in the DAPO Woodland field office, the appellant attended meetings with various members of the local law enforcement community. This included members from the Yolo County District Attorney, Sheriff and Superior Court offices, and was called DALP, the District Attorney Liaison Program. At the October 4, 2021 DALP meeting, the appellant advised those in attendance of the high probability the Woodland DAPO field office would be closing by year's end, and relocating to Fairfield, California.
The appellant testified he was never told he could not advise external stakeholders of the closures, and believed it was his duty as the DAPO PAIII to do so. He decided to advise the local law enforcement community in October 2021, because the closures were set to take place before the next scheduled DALP meeting. The appellant was concerned because he did not believe the external stakeholders would be notified any other way, and it was in their best interest to know sooner, rather than later. The Yolo District Attorney's office asked for an email referencing the closure, so it could send a letter to CDCR senior management.
On October 4, 2021, the appellant sent an email to a Yolo County Deputy District Attorney and Chief Investigator, respectively. The appellant believed they would not distribute his email, but the email was eventually forwarded to the office of a California State Senator. The email outlined the issues the appellant believed would impact parolees and external stakeholders in the Sierra Division.
In October 2021, the appellant spoke with a District Administrator, Sierra District, who asked if he would like to move to respondent's Auburn DAPO field office as the Unit Supervisor. The District Administrator also told him to apply for the position, and had several conversations with him about his move to the Auburn DAPO field office. The District Administrator considered the appellant a good Unit Supervisor in Yolo County and thought he would be “a great supervisor in [Auburn]," and drafted a transfer memo to bring him to the Auburn DAPO field office.
On November 5, 2021, a representative from the office of Senator Bill Dodd, Senate District #3, forwarded the appellant's email to respondent's Office of Legislation, requesting an explanation. That same day, the appellant received a phone call from the District Administrator. She told him that respondent's Executive staff had discovered his email and were “pissed off," or words to that effect.
The appellant's October 4, 2021 email to a Yolo County Deputy District Attorney and Chief Investigator, stated in relevant part:
“Good Afternoon,
It has been brought to my attention that plans have been made to close the Woodland Parole Unit and move services to Fairfield in Solano County. This is part of a bigger plan to re-district the Parole Units in Northern California. As it stands the Woodland Parole Unit will close in December and staff will be moved to Fairfield. Parolees in Woodland and Yolo County will now be required to report to Fairfield upon release from prison and jail.
With this move there are variety of issues that are present with a lack of a physical Parole Unit in Woodland. These issues will both impact the parole population and the law enforcement partners we work with. Problems include but are not limited to:
- Parolees will be required to report 40 miles to meet with Parole Agent . . . This will likely increase the number of Parolees that fail to report to Parole resulting in a warrant for his/her arrest.
- Sex Offenders and charging of their GPS devices daily . . . could result in an overall higher risk to public safety . . .
- “Lifers" . . . often have mental health issues, limited life skills and often report to the physical Parole Unit to . . . see a Parole Agent or mental health clinician . . . will negatively impact this lifer population. . . .
- Mental Health Services and Behavior Health Reintegration Program . . . will not be able to receive this level of care, increasing the likelihood of recidivism.
- . . . [p]arolees will fail to report, resulting in additional warrants and increased risk to public safety.
- Decreased response time to community issues. . . Without a physical Parole Unit in Woodland, this population will not be able to avail themselves to (sic) the services that Parole offers in this manner.
The Woodland Parole Unit has proven itself to be a valuable resource to both law enforcement and the Parolees we supervise. A move to the City of Fairfield in Solano County will not serve the interest of these stakeholders as noted above and only increase the risks to public safety. If you have questions in regards to this please don't hesitate to contact me. Thank you for your support.
(The Appellant)
Parole Agent III"
On Monday, November 8, 2021, the appellant was removed from respondent's weekly closure team meetings by respondent's senior management.
On November 9, 2021, at 5:14 p.m. the DAPO Employee Relations Officer for Northern Region-HQ sent the appellant an email. The email advised him to report on November 10, 2021 to Headquarters at 1515 S Street, Sacramento, California, for a meeting with the Chief Deputy Regional Administrator, Division of Adult Parole Operations-Northern Region. At the meeting, the appellant was given a memo titled, “Temporary Redirection of Work Assignment." The memo told him that effective November 15, 2021, he was being temporarily redirected from his assignment at the Woodland DAPO field office, to Sacramento Headquarters (HQ).
The memo also told him he could no longer enter the premises of the Woodland DAPO field office without the express approval of a Chief Deputy Administrator. Any absences from work also required approval from the Chief Deputy Administrator, and had to be made in writing at least 24 hours prior to the date and time requested. The letter was signed by the Regional Parole Administrator, Division of Adult Parole Operations, Northern Region – HQ. The appellant had never been subject to discipline, or denied access to his own Parole Unit, and was not provided a reason for the “temporary redirection."
Upon reporting to Sacramento HQ, the appellant was sent to a conference room, and for approximately four months, was required to find a new location to work each day. He was eventually provided an office and a desk in March 2022. The appellant testified he had no direct experience handling the new HQ desk job assignment, he no longer supervised employees, and his work assignments indicated there was no clear reason why he was at Sacramento HQ. The duties were vastly different and did not take into consideration any of his field office experience.
On December 9, 2021, the appellant received a “Notice of Assignment Change" memorandum. The notice read:
“This correspondence is in regards to the closure of the Woodland Parole Office and the impact it would have on your commute from your residence to the new office location. The relocation of the work site will increase your commute to the office from 43.6 miles to 72.3 miles. You were provided with the following options; remain in the Woodland Parole Office at its new location in Fairfield, CA or to (sic) be relocated to a job assignment that is within 50 driving miles of your residence. You informed a District Administrator that you chose to be redirected to a location within 50 drive miles of your residence.
Effectively immediately you are being permanently reassigned to Division Headquarters, which is approximately 29.5 miles from your residence.
Division of Adult Parole Operations-Headquarters
1515 S Street, 212-N
Sacramento, CA 95814
Parole Administrator will be your immediate supervisor.
Thank you.
Chief Deputy Regional Administrator
Division of Adult Parole Operations-Northern Region
9825 Goethe Road, Suite 200, Sacramento, CA 95827"
The appellant lives in Lincoln, California, and the Auburn Field office is only 16 miles from his home. The Regional Parole Administrator testified the “assignment change" to HQ was so the appellant “would not be over the mileage for transfers."
Upon receipt of the “Notice of Assignment Change," the appellant responded to the Chief Deputy Regional Administrator with an email on December 9, 2021. In the email he explained to him the “Notice of Assignment Change," contained inaccuracies, because the appellant specifically told a District Administrator in an October 18, 2021 email that he, “would elect to stay within the Sierra Division, at the Auburn Parole Unit if this is a viable option." There is no evidence the Chief Deputy Administrator responded.
Respondent's senior management does not deny it was angry when it learned of the appellant's October 4, 2021 email to its external stakeholders. The Regional Parole Administrator, testified the appellant should have “vetted" his email “up the chain of command." After learning of the email, the Regional Parole Administrator determined the appellant could no longer work in the field office; and after receiving the Senator's email, sent the appellant's October 4, 2021 email to its Office of Internal Affairs (OIA) for an investigation to be pursued. She testified she sent the 989 to OIA, “because the appellant violated policies" and for a possible Adverse Action.
After two months, the OIA determined no Adverse Action was warranted, and returned the 989 to DAPO senior management. The Regional Parole Administrator testified, “the transfer was temporary pending the Adverse Action, Skellys are only provided if there is an Adverse Action and nothing had been decided at that point." They further testified, “there was no Adverse Action just a temporary redirection or permanent reassignment, so no need of a Skelly, he had no right to challenge these because there was no Adverse Action."
Respondent then determined a Letter of Instruction (LOI), was appropriate discipline for the appellant's October 4, 2021 email. On December 20, 2021, the Sierra Division District Administrator issued an LOI to the appellant, on instructions from the Chief Deputy Regional Administrator. The LOI claimed his email created a “disharmonious relationship with external stakeholders within Yolo and Solano counties" claiming it, “interfered with DAPO's interest in efficiently fulfilling its public service." The LOI assigned the appellant some additional reading of respondent's DOM (respondent's Operations Manual) and its Vision, Mission and Value Statements.
The appellant testified he does not usually copy his chain of command on the numerous letters or emails he writes to stakeholders, unless specifically requested to do so. He learned of the Woodland DAPO field office closure in a Google Teams notification and believed notification to his collaborative partners to be in the best interests of those affected.
At the hearing, respondent's witnesses admitted the appellant's October 4, 2021 email were grounds for discipline, and immediately barred him from attending closure meetings, reporting to the Woodland DAPO field office, and transferred him to Sacramento HQ. The Regional Parole Administrator testified she, “was reluctant to put [the appellant] in the field based on his actions," “wanted him out of the field," and “based upon his actions I would not put him back in the field."
V
ANALYSIS
CalHR has the authority to revoke a transfer and restore an employee to his original position if it finds the transfer was made for the purpose of harassing or disciplining the employee. (Gov. Code, § 19994.3, subd. (a).) The appellant argued he was transferred to respondent's Sacramento Headquarters for disciplinary reasons. “[E]xcept as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." (Evid. Code, § 500.) The appellant has the burden to prove he was unlawfully transferred by the respondent for disciplinary reasons. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.)
The transfer of the appellant violated Government Code section 19994.3.
“An appointing power may transfer any employee under his or her jurisdiction:
(1) to another position in the same class; or (2) from one location to another whether in the same position, or in a different position as specified in (1) or in Section 19050.5." (Gov. Code, § 19994.1, subd. (a).)
However, Government Code section 19994.3, subdivision (a), prohibits transfers “made for the purpose of harassing or disciplining the employee." Discipline is defined as “correction, chastisement, punishment, penalty." (Black's Law Dict. (6th ed. 1990) p. 464, col. 1.) A transfer is “disciplinary in nature only if imposed for purposes of punishment." (White v. County of Sacramento (1982) 31 Cal.3d 676.) The appellant argued his transfer was disciplinary because senior management was upset with his October 4, 2021 email. His argument has merit.
On Friday, November 5, 2021, when respondent's senior management learned a California Senator had received the appellant's October 4, 2021 email, it took immediate steps to punish him. On Monday, November 8, 2021, respondent removed the appellant from its weekly office closure meetings. That same evening it sent the appellant a memo titled, “Temporary Redirection of Work Assignment' directing him to report to respondent's Sacramento HQ." The respondent's Regional Parole Operations, Northern Region, testified she “was reluctant to put [the appellant] in the field based on his actions."
In Johnston v. Department of Personnel Administration (1987) 191 Cal.App.3d 1218, the court opined, “[t]he clear concern of section 19994.3 is discipline or harassment achieved through a transfer. It is equally apparent the Legislature sought to prevent such abuses." The “Temporary Redirection of Work Assignment" memo directing the appellant to respondent's Sacramento HQ was a pretext. A pretext is an “[o]stensible reason or motive assigned or assumed as a color or cover for the real reason or motive; false appearance, pretense." (Black's Law Dict. (6th ed. 1990) p. 1187, col. 2.)
After it learned of the appellant's October 4, 2021 email, the respondent was intent on transferring the appellant out of its Woodland DAPO field office, and accomplished this by “temporarily redirecting his work assignment." The actual reason for this “redirection" to respondent's Sacramento HQ was to punish him for sending the October 4, 2021 email to external stakeholders. “When direct proof of unlawful motivation is not available the [trier of fact] may review the record as a whole to determine if the inference of unlawful motive should be drawn." (North Sacramento School District (1982) PERB Dec. No. 264.) A strong inference of unlawful motivation is shown through respondent's conduct.
By its own admission, the respondent was “angry," and they “wanted him out of the field." The respondent's intent was to punish him for his October 4, 2021 email to Yolo County external stakeholders of the eminent closure of the Woodland DAPO field office. However, the respondent failed to lawfully punish the appellant through the proper transfer process.
Respondent's Regional Parole Administrator, Division of Adult Parole Operations, Northern Region – HQ, stated unequivocally, “the transfer was temporary pending the Adverse Action, Skellys are only provided if there is an Adverse Action and nothing had been decided at that point." And, “there was no Adverse Action just a temporary redirection or permanent reassignment, so no need of a Skelly, he had no right to challenge these because there was no Adverse Action."
This is not a correct statement of the law regarding employee transfers. To lawfully transfer the appellant, the respondent was required by law to utilize the state's disciplinary system under Government Code section 19570 et seq. Additionally, as a permanent employee of the State of California, the appellant is under the protection of the state constitution.
Specifically, Article VII which outlines the merit-based civil service system. (Cal. Const., art. VII.) This comprehensive system “invests civil service employees with substantive and procedural protections against punitive actions by their superiors." (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 202; also see Gov. Code, §§ 19570 - 19589.) In Skelly, the California Supreme Court held a permanent civil service employee had a right to pre-removal safeguards including hearing and notice. [Emphasis added.] The appellant received no pre-removal safeguards prior to his transfer to Sacramento HQ.
Moreover, the annoyance of senior management, coupled with the Regional Parole Administrator's allegations the appellant breached its DOM by failing to vet his October 4, 2021 email, is sufficient to show the respondent intended to punish the appellant. It is disingenuous for the respondent to claim its “temporary reassignment" was not a transfer designed to punish the appellant for his alleged transgressions. Its immediate response of removing the appellant from the Woodland DAPO field office; prohibiting him from going to the Woodland DAPO office; and transferring him to Sacramento HQ, immediately after learning of the email, was respondent's way of punishing him without procedural safeguards.
Furthermore, respondent's December 9, 2021, “Notice of Assignment Change" was its attempt at ratifying, or somehow validating its unlawful actions of transfer. It is clear from the evidence, that but for respondent's unlawful transfer of the appellant to its Sacramento HQ, he would have been sent to its Auburn DAPO field office with his former employees, upon the closure of the Woodland DAPO field office. The December 20, 2021 Letter of Instruction, is another attempt at validating its actions, after the appellant had already been disciplined through an unlawful transfer.
As noted in Skelly, civil service employees are entitled to procedural and substantive safeguards. Despite these safeguards, the respondent transferred the employee for disciplinary purposes in derogation of the California Constitution and in abrogation of the appellant's due process rights. For reasons not adduced at the hearing, the respondent chose to transfer the appellant rather than proceed with disciplinary action under Government Code section 19570 et seq.
The true reason for the appellant's transfer is clear from Regional Parole Administrator's testimony, “based upon his actions I would not put him back in the field." Whether the resulting transfer was a result of a “temporary redirection" or a “Notice of Assignment Change," the appellant should have been afforded the appropriate due process rights under Skelly, because the respondent sought to discipline him for his actions.
Lastly, the respondent's rationale, as testified to by the Regional Parole Administrator, “there was a critical need" for supervision at HQ, is belied by the evidence. The appellant credibly testified he was no longer supervising after his transfer to HQ; he had little or no administrative parole experience, and he was not even given a permanent workplace for four (4) months after he was transferred. This “critical need" reasoning, and the Regional Parole Administrator's additional testimonial explanation, that the appellant's transfer to Sacramento HQ was made permanent so, “he would not be over the mileage" for transfers, is not credible. If the respondent believed the appellant was subject to discipline, it was incumbent upon the appointing power to provide him with the requisite notice and opportunity to be heard before transferring the appellant in violation of Government Code section 19994.3.
VI
CONCLUSIONS OF LAW
The appellant proved by a preponderance of the evidence his transfer was for the purpose of discipline in violation of Government Code section 19994.3.
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THEREFORE, IT IS DETERMINED, the transfer appeal, effective November 15, 2021, is hereby granted. The appellant shall be reinstated to his former position as Parole Agent III, now located in respondent's Auburn Parole field office.
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