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DPA Case Number 97-4105 - Protest of Involuntary Transfer

Final Non-Precedential Decision Adopted: June 22, 1998
By: K. William Curtis, DPA Chief Counsel

DECISION

This matter came on regularly for hearing before Byron Berry, Administrative Law Judge, State Personnel Board, on February 2, 1998, at Los Angeles, California. This matter was initially scheduled to be heard on November 26, 1997 and was continued to February 2, 1998 because respondent's counsel had a pre-scheduled vacation for November 26, 1997.
Appellant was present and was represented by Bill A. Montgomery, Labor Relations Representative, Association of California State Supervisors (ACSS).
Stella Owens-Murrell, Staff Attorney, represented the Department of Industrial Relations (DIR), respondent.
Evidence having been received and duly considered, the Administrative Law Judge makes the following findings of fact and Proposed Decision.

I

The above involuntary transfer effective October 1, 1997, and appellant's appeal therefrom, comply with the procedural requirements of the Department of Personnel Administration.

II

Appellant was appointed as a Field Representative, Self-Insurance Plans (SIP) on August 2, 1976. He promoted to the position of Consultant (SIP), Workers' Compensation on March 1, 1979. On October 30, 1980, he obtained the position of Supervising Workers' Compensation Consultant. He has no prior adverse actions.

III

In a memorandum (memo) dated July 31, 1997, appellant was informed that he was being transferred to the Sacramento SIP Office, effective October 1, 1997. The memo indicated that the closures of the Los Angeles and San Francisco Field Offices of the SIPs would allow SIP to consolidate administrative functions in Sacramento and make more efficient use of program resources. In lieu of transferring to the Sacramento SIP office, appellant was given the option of voluntarily demoting to the position of Workers' Compensation Consultant. He was informed that a Workers' Compensation Consultant position would be made available to him if he voluntarily demoted to that position prior to the October 1, 1997 effective date of his transfer to Sacramento.
Appellant did not accept the transfer to the Sacramento SIP office and he did not voluntarily demote to the position of Workers' Compensation Consultant. He appealed his transfer to the Sacramento SIP office to the Department of Personnel Administration and his appeal was heard on February 2, 1998.

IV

Appellant was informed on September 23, 1996 and April 23, 1997 that he was under investigation because of allegations that he engaged in inappropriate activities during an audit. There was an investigatory meeting about the audit in May 1997.
On June 1, 1997, appellant took a disability leave.
On July 1, 1997, appellant was informed that the Los Angeles SIP office would be closing and he could transfer to the Sacramento office, or take a demotion and work in the Los Angeles area. Appellant never responded to this memorandum because he was advised not to respond by his workers compensation attorney.
As of the date of this hearing on February 2, 1998, appellant never gave a response to the memorandum that informed him that the Los Angeles office would be closing. On the day of the hearing on February 2, 1998, appellant was given the option of transferring to the Sacramento SIP office or accepting a demotion to work in the Los Angeles area. Appellant did not accept either of those options.

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PURSUANT TO THE FOREGOING FINDINGS OF FACT, THE ADMINISTRATIVE LAW JUDGE MAKES THE FOLLOWING DETERMINATION OF ISSUES:

Government Code section 19994.3 prohibits transfers based on harassment or discipline. Appellant did not establish that his transfer was based on discipline or harassment. Appellant had the option of accepting the transfer to Sacramento, or taking a voluntary demotion to remain working for the Department in Los Angeles. He did not exercise either of those options. The Department followed the proper procedures for the involuntary transfer of appellant.

* * * * *

WHEREFORE IT IS DETERMINED

that the involuntary transfer effective October 1, 1997, is affirmed and appellant's appeal is denied.

* * * * *

I hereby certify that the foregoing constitutes my Proposed Decision in the above-entitled matter and I recommend its adoption by the Department of Personnel Administration as its decision in the case.
DATED: May 13, 1998
 
  Updated: 5/22/2012
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