An appointing power may transfer any employee under its 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 19050.0. (Government Code section 19994.1(a).) Government Code section 19050.5 states: "notwithstanding Section 3517.6, an appointing power may transfer any employee under his or her jurisdiction to another position in a different class designated as appropriate by the board."
"When a transfer under this section or Section 19050.5 reasonably requires an employee to change his or her place of residence, the appointing power shall give the employee, unless the employee waives this right, a written notice of transfer 60 days in advance of the effective date of the transfer. Unless the employee waives this right, the appointing power shall provide to the employee 60 days prior to the effective date of the transfer a written notice setting forth in clear and concise language the reason why the employee is being transferred." [Emphasis added.] (Government Code section 19994.1(b).)
Government Code section 19994.3 prohibits transfers "made for the purpose of harassing or disciplining the employee." DPA 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. In Johnston v. Department of Personnel Administration (1987) 191 Cal.App.3d 1218, the court found that the right to file an appeal from involuntary transfer extends to an employee whose transfer does not reasonably require the employee to change residence.
The Johnston 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 Johnston court concluded: "the Legislature intended that transfers made for the purpose of harassing or disciplining an employee be subject to review." Discipline is defined as correction, chastisement, punishment, penalty. To bring order upon or bring under control. (Black's Law Dict. (6th ed. 1990) p. 464.)
Section 19994.3 of the Government Code allows the transferred employee to protest to DPA a transfer made for the purpose of harassment or discipline. If DPA finds the transfer was made for the purpose of disciplining or harassing the employee, DPA has the authority to disapprove the transfer and return the employee to his or her former position. A transfer is disciplinary in nature only if imposed for purposes of punishment. (White v. County of Sacramento (1982) 31 Cal.3d 676.)
Respondent was within its statutory right to transfer appellant; however, it failed to do so in accordance with the transfer statutory scheme. The statute providing for transfer of employees requires the appointing power to provide a 60-day written notice. Respondent advised appellant a mere 10 days before the transfer as evidenced by the memorandum signed by the Correctional Captain "re-assigning" appellant to CIW effective August 31, 2009. This 10-day notice does not comport with the transfer statutory scheme and is therefore not proper notice.
Moreover the statute requires respondent to set forth in clear language the reasons for the transfer. The only reason provided to appellant in the notice of August 21, 2009, was: "[t]his re-assignment is consistent with management's right." Despite the requirements of the statute governing transfers, respondent failed to provide a clear, concise reason for the transfer of appellant.
Additionally, respondent called no witnesses to explain the meaning of the statement: "[t]his re-assignment is consistent with management's right." The only evidence provided by respondent was the Chief Deputy Warden's declaration. The Chief Deputy Warden's declaration stated he could not trust appellant, even though he was not appellant's supervisor. The Chief Deputy Warden's declaration is a clear indication respondent was still punishing appellant for his alleged bad behavior by re-assigning him so he could be more closely supervised. Discipline at its empirical base is to bring under control, which is clearly reflected in respondent's intent to more closely supervise appellant.
Transfers for reasons of punishment or harassment are prohibited under the statutory scheme governing transfers. Respondent refers to its actions against appellant as a "re-assignment." However, respondent failed to present evidence of its right to "re-assign." Conversely, appellant presented evidence the transfer was filed contemporaneous with the filing of a NOAA. Even though later withdrawn and re-filed with a lesser penalty, the NOAA and simultaneous transfer of appellant are indicative of what the statutory scheme seeks to avoid - transferring appellant for the singular purpose of discipline.