A Case Number 02-D-0119, 02-C-0120, 02-G-0121, 02-Y-0123, 02-I-0124, 02-R-0125, 02-B-0126, and 02-U-0122 - Appeal from Layoff

Final Non-Precedential Decision Adopted: August 28, 2003

By: Howard Schwartz, DPA Chief Counsel

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m., on March 26, 2003 and May 14, 2003, at Riverside, California. Prehearing conferences were held on November 27, 2002 and on January 30, 2003. The first day of hearing was originally scheduled for February 7, 2003 but was continued for good cause. Final closing briefs were filed on July 14, 2003.

Appellants were present at the hearings and represented themselves. One appellant was not present at the hearings but was represented by another appellant.1

Respondent was represented by Anthony Lewis, Chief Counsel, Office of the Inspector General (OIG).

Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

Appellants received formal notice on October 1, 2002, that they were being laid off effective December 31, 2002. Appellants' filed grievances (appeals) contesting the layoff on October 30, 2002. All appellants were excluded employees pursuant to Government Code sections 3513 and 3527.2 The appeals comply with the procedural requirements of Sections 19997, 19997.14, and DPA Rules 599.845 and 599.859 regarding layoff appeals.

On January 31, 2003, respondent filed a Motion to Dismiss Appeals on Grounds of Lack of Jurisdiction and Absence of Good Faith. Respondent argued DPA had no jurisdiction to hear the appeals because the only remedy provided by Section 19997.14 is reinstatement of the employee with or without pay and none of the appellants requested this remedy. Respondent's argument regarding absence of good faith rested on respondent's belief that none of the appellants wanted reinstatement. DPA denied respondent's motion on February 25, 2003.

Respondent renewed its motion at hearing on May 14, 2003. The motion was denied.

In their grievances and at hearing, appellants claimed the required procedures had not been complied with; the layoff was not made in good faith; and the action was otherwise improper. Appellants specifically alleged as follows:

1. Prior to layoff, respondent did not provide appellants with requested information and did not allow appellants to participate in planning and implementation meetings regarding the layoff.

2. Respondent failed to consider alternate methods of staffing reduction as outlined in the "Staffing Reductions Policy and Procedure Manual, October 1994" (SRPPM).

3. Respondent improperly implemented a geographic layoff.

4. Respondent acted in bad faith by implementing a geographic layoff instead of a statewide layoff so that it could retain employees with less seniority who had previously worked with the Chief Deputy Inspector General.

5. Respondent improperly promoted two Associate Deputy Inspector Generals (ADIGs) to DIGS after it decided to affect the instant layoff.

Appellants also alleged that respondent engaged in a wide range of improper examination, recruiting, hiring, and promotion practices since 1999 and that appellants detrimentally relied on "fraudulent representations" regarding certification, training, salaries and benefits they would receive. At the November 27, 2002 pre-hearing conference appellants were advised the scope of the hearing included only the validity of the layoff.

The OIG is charged with investigative oversight of CDC, CYA, the Youthful Offenders Parole Board, and the Board of Prison Terms. It conducts audits and investigations of these operations throughout the State. Prior to January 31, 2002, the OIG had field offices in San Diego, Chino, Visalia, and Sacramento. A headquarters office was also located in Sacramento.

Based on declining State revenues and in response to Executive Orders mandating cost cutting measures, respondent closed the San Diego Office effective January 31, 2002. San Diego staff were offered involuntary transfers to the Chino, Visalia, or Sacramento offices. Two appellants accepted involuntary transfers to Chino.

On April 15, 2002, the OIG relocated the Chino office to Rancho Cucamonga. OIG employees who had previously been assigned to the Chino Office now reported to the Rancho Cucamonga location.

In the fiscal year budget 2002/2003, the OIG's funding was initially proposed at $9,985,000, a reduction of approximately $1,155,000.

By June 2002, respondent was notified that its budget was in the process of being reduced an additional $1,000,000 to $8,985,000, and to 93 personnel positions. The Budget Act of 2002 reflects this reduction.3

The Inspector General, Chief Deputy Inspector General, Assistant Inspector General, Assistant Chief Deputy Inspector, and Chief Counsel met on several occasions to discuss ways to meet the reduced funding level. The Chief Deputy Inspector General conferred with the head of OIG's Administrative Division and with other members of the OIG's Human Resources section. He also consulted with Cooperative Personnel Services (CPS) advisors.

On or about July 1, 2002, the Assistant Chief Deputy Inspector General advised the staff in the Rancho Cucamonga office that respondent was considering a geographic layoff which would include closing either the Rancho Cucamonga or Visalia office. He also began a major push to cut overtime.

In early July 2002, OIG management met with California Department of Corrections and CYA officials to discuss availability of alternative employment for staff located in Southern California. They also met with DOJ representatives.

On July 15, 2002, the Chief Deputy Inspector General requested approval from DPA to proceed with a geographic layoff of staff in the Rancho Cucamonga Office.

On July 18, 2002, respondent released an announcement for a Departmental Promotional Examination for Deputy Inspector General, Senior. This examination bulletin was subsequently cancelled.

On July 23, 2002, DPA placed the Rancho Cucamonga staff on official surplus status. DPA approved the geographic layoff on July 23, 2002.

On August 2, 2002, the Assistant Chief Deputy Inspector General met with the staff in the Rancho Cucamonga Office and notified them that the office was being closed. He also informed them the layoff was geographic and they would not be able to transfer to any other OIG location. Each appellant was given a Prior Exempt Service Form, Military Service Information Form, Affected Work Force Census Questionnaire, State Restrictions of Appointments Program (SROA) Form; Surplus Employee Certification Form, a "State Civil Service Employees Facing Layoff" pamphlet, "A Guide for State Employees Facing Layoff" pamphlet, and a memorandum addressed to Hiring Departments identifying the employee as a surplus employee. Appellants questioned the Assistant Chief Deputy Inspector General about the decision to close Rancho Cucamonga instead of Visalia. Appellants asked for copies of respondent's "implementation plan." Appellants also requested another appellant be allowed to represent them and attend all meetings involving the geographic layoff. During this August 2, 2002 meeting, the Assistant Chief Deputy Inspector General informed appellants the OIG would assist them in locating positions with other agencies.

On October 1, 2002, appellants were officially noticed they were being laid off effective December 31, 2002. They received a DPA Form DPA-015, Notice of Involuntary Transfer, Demotion, or Termination. They were not given the options of involuntary transfer or demotion within the OIG.

The Chief Deputy Inspector General sent out a memorandum advising Rancho Cucamonga staff that respondent would assist them in finding alternative employment. All impacted employees found other State employment without a break in service.

Appellants allege the layoff was illegal because respondent did not comply with their request to be involved in the layoff process. Appellants requested that another appellant be allowed to represent them and attend all meetings regarding the layoff. Appellant's requests are at least tantamount to requesting the employer meet and confer over both the decision to layoff and the impact of the layoff.

Appellants were excluded employees. (Sections 3513(c) and 3527(b).) The Excluded Employees Bill of Rights Act (EEBRA) section 3533 provides limited meet and confer rights for employee organizations representing supervisory employees. Organizations that represent excluded employees must register with DPA. (Section 3537.)

Appellants had no individual or organizational rights to meet and confer with the employer over either the decision to layoff or the impact of such layoff. They were not a registered organization representing supervisory employees. The employer had no duty under EEBRA to include appellants or any representative in its meetings regarding the layoff. Therefore, respondent did not act unlawfully by not discussing its decision or implementation of the layoff with appellants.

During the layoff process, appellants requested copies of a "layoff implementation plan;" any and all correspondence the OIG submitted to DPA and the State Personnel Board (SPB); and, any and all responses the OIG received from DPA/SPB pertaining to the layoffs, staff reductions and alternative means for reducing operating expenses other than a geographic layoff. Appellants also requested a copy of DPA's Staffing Reduction Policy and Procedure Manual (SRPPM).4

Appellants' grievances indicate the OIG provided some of the requested information. The nature of all the information respondent provided is unknown. Respondent did not provide an "implementation plan." Respondents did not create a document it referred to as an "implementation plan."

Appellants make much of the fact respondent did not have such a written document and that there were only two documents exchanged between the OIG and DPA in connection with approval of the geographic layoff. Appellants allege the lack of documentation indicates appellant did not make an informed, unbiased decision and resulted in a flawed process.

The Chief Deputy Inspector General was the person who made the recommendation that the Rancho Cucamonga Office be closed. One of his primary responsibilities at the OIG was monitoring the budget. At the time of layoff, he had been performing this duty for approximately three years. He had an accounting background. He had just overseen the closing of a similarly-sized Southern California Office less than a year before. He had previous experience with a layoff in his previous position with the State Controller. He did not make his decision in a vacuum. There were multiple discussions with his Human Resources staff, other OIG management staff and consultants.

It is not unreasonable to conclude that the Chief Deputy Inspector General's discussions, working knowledge of the OIG budget and past experience allowed him to determine the approximate cost savings and reductions necessary to meet the mid-year $1,000,000 funding cut without committing his calculations to paper. There is no requirement that respondent prepare a specific "layoff plan."

While there was no document called "an implementation plan," the layoff was not conducted without guidelines or documentation. Although the Chief Deputy Inspector General did not personally read DPA's SRPPM, he credibly testified he was generally familiar with it and that relied upon his Human Resource Staff and past experience to guide him in the layoff process. There was no evidence that contradicted this.

Respondent outlined the area of layoff, the affected employees, the class of employees impacted by the layoff, the area of recruitment, and the method of recruitment for the impacted employees in a July 15, 2002, memo to DPA asking for approval of the geographic layoff. Appellants alleged this document was inadequate because it does not list seniority scores of the affected employees and because it contains inaccurate or at least ambiguous information. An appellant testified that the comments in the memorandum referencing "DOJ Los Angeles County" were incorrect because she never worked with the DOJ in Los Angeles County. In their brief, appellants allege, for the first time, that the clerical staff did not "transfer" as indicated in the memorandum. However, neither in her hearing testimony nor in any other evidence did the clerical staff dispute that her employment with the OIG in Rancho Cucamonga was not a result of a voluntarily transfer from DOT in San Diego.

Appellants also allege the July 15 memorandum misled DPA by stating that recruitment and hiring for the Rancho Cucamonga Office was done locally and that the employees who transferred from San Diego after the office closure maintained their residences in the San Diego area. Examination of the July 15, 2002 memorandum indicates respondent explained that "residents of Southern California were recruited for positions in ... Rancho Cucamonga and San Diego offices" and that a table summarizing the specific areas from which the Rancho Cucamonga employees were recruited was attached. The evidence shows that at the time the memorandum was submitted, the two employees who involuntarily transferred from the San Diego Office had not changed their residences. Respondent allowed one appellant to telecommute and it facilitated another's desire to maintain his permanent residence in San Diego. There was no evidence that at the time of the July 15, 2002 memorandum, respondent had any reason to believe appellant intended to permanently relocate to Rancho Cucamonga. There was no evidence respondent purposely provided inaccurate information or attempted to mislead or deceive DPA in order to obtain approval of a geographic layoff.

In addition, the errors in the July 15, 2002 memorandum were harmless. DPA approved the area of layoff because of economic efficiencies and because there was no evidence that any employees at the Rancho Cucamonga Office were hired for a location outside of Southern California and then transferred into Southern California offices. DPA recognized that appellants were hired locally "in the Southern California area" even though they were "tested and recruited on a servicewide basis."

The lack of an "implementation plan" or other written estimates of cost savings and errors in respondent's request for approval of a geographic layoff did not result an illegal layoff action.

Appellants argue the layoff was flawed because respondent failed to consider alternatives to layoff suggested in DPA's October 1994 SRPPM.5

The SRPPM offers guidance to State Departments conducting staffing reductions. (SRPPM at p. 1.) It is not codified and does not have the same binding authority of statutes or regulations. Nonetheless, it provides an unofficial resource for recommended practices and processes consistent with layoff statutes and regulations and it provides an initial basis for inquiry. Each case, however, must be viewed in the totality of the circumstances surrounding it and its individual facts.

The SRPPM recommends state agencies "explore" voluntary and involuntary alternatives to layoff to reduce staff size. There is no violation for failing to explore or implement any or all of these recommended alternatives. While a complete disregard for the process may be suspect, failure to explore each and every alternative does not automatically give rise to a flawed process.

In this case, the OIG considered and implemented some of the alternatives in the SRPPM. The Assistant Chief Deputy Inspector General began to monitor and cutback on overtime. Temporary help was cut. The respondent's three retired annuitants were given notice and released prior to November 2002. Student assistants were contracted and therefore remained. They were not, however, replaced if they otherwise left the OIG. Reduced worktime was considered but rejected because the number of approved positions had been cut.

Eliminating limited term positions was not an alternative to layoff in December, 2002. In or about October 2001, the Department of Finance refused to extend the OIG's ten limited-term positions. Limited-term employees were put into existing vacant positions. There was no evidence that any additional limited term positions existed anywhere in the OIG at the time of layoff.

Placing appellants in OIG vacancies outside the area of layoff or not filling vacancies to meet funding reductions were also not alternatives to layoff. The budget reduced the number of positions. No existing vacant positions in Southern California offices had been filled since October 2001. The Assistant Chief Deputy Inspector General testified that after the $1,000,000 mid-year reduction in 2002, any existing vacant positions were lost. Appellants presented no evidence that refuted this.

Respondent adequately explored and implemented potential alternatives to layoff.

On August 2, 2002, respondent supplied appellants with all the necessary documents to gather information to calculate seniority scores. Respondent's Associate Personnel Analyst testified she received seniority scores from DPA for Rancho Cucamonga employees impacted by the geographic layoff. Seniority scores were not computed for other OIG employees. There is no statutory or regulatory authority requiring statewide calculation of seniority scores when a geographic layoff has been approved.

Section 19997.11 (a)(1) states: "The names of employees to be laid off or demoted shall be placed upon the reemployment list for the subdivision, if such a subdivision was designated, upon the departmental reemployment list and upon the general reemployment list, for the class from which the employees were laid off or demoted. The department may also place these names upon the general reemployment list for any other appropriate classes as the department determines."

On October 1, 2002, respondent provided appellants with DPA form DPA-015 which informed appellants they would be granted reemployment list eligibility when they "transferred to a different geographic area or different class; voluntarily demoted; voluntarily resigned or reduced their time base." This is consistent with the SRPPM. (Id at Annex "O") Appellants were asked to provide specific information and indicate their preference in being included on such reemployment lists.

There was no dispute during the evidentiary portion of the hearing regarding appellant's placement on reemployment lists. Documents submitted after the evidentiary portion of the hearing closed and arguments unsupported by evidence at hearing are rejected as substantive evidence.

Claims regarding the SPB's involvement in appellant's placement on unemployment lists lies with the SPB (see Sections 19816.2 and 19997). There was no substantive evidence that either DPA or respondent acted illegally in regard to appellant's placement on reemployment lists.

The SRPPM provides criteria for determining whether a geographic or statewide layoff is most appropriate. In making this determination, the manual provides the employer must weigh the disruptiveness and cost of a statewide layoff against the employees' opportunities to exercise their seniority rights in a layoff of lesser scope. It also suggests the employer consider affected work force groups in relation to the relevant labor force. (SRPPM at p. 10.) Respondent did this. Both the Assistant Chief Deputy Inspector General and the Chief Deputy Inspector General testified the decision to conduct a geographic layoff instead of a statewide layoff was based on economics, efficiency, and the probability that the majority of the staff would be able to find alternative positions because of their many years of experience.

Respondent estimated that the $1,000,000 mid-year funding and position reductions could be balanced by closing the Rancho Cucamonga Office thus isolating the impact on state operations and achieving the required reductions with minimum disruption. Based on his past experience at the State Controller's Office and on his discussions with his staff and consultants, the Chief Deputy Inspector General and his Human Resources personnel believed that a statewide layoff would result in a prolonged process of up to nine months. He believed the potential nine-month delay would ultimately require that additional staff be laid off in order to achieve the required cost savings. Respondent also considered the cost associated with potentially relocating employees. It estimated that such costs could eliminate any savings made by closing the office. Although appellants argue that respondent's estimates were incorrect and that the closing of the Rancho Cucamonga Office did not ultimately result in the anticipated savings, they offered no proof in this regard. They also failed to prove that any potential miscalculation was made knowingly, purposefully, and in bad faith. Respondent's estimates of anticipated savings were not unlawful.

An additional factor respondent considered regarding the disruptiveness of a force reduction was workload. The Rancho Cucamonga office had a lower caseload than respondent's other two field offices. The Assistant Chief Deputy Inspector General testified that the Southern California CDC and CYA facilities generated fewer acceptable investigation cases. This is consistent with appellants' testimonies that they were consistently assigned work in areas outside of Southern California. At least one appellant testified that at the time of layoff he was investigating cases from the Visalia/Central California area because Visalia's DIG either had conflicts or were overloaded with specialized, Rapid Response cases.6 Respondent's assessment of the workload is also consistent with the lack of evidence showing that DIGs from other offices were assigned to investigate Southern California cases and with its prior decision to close the San Diego office.

In deciding to implement a geographic layoff, respondents also weighed the impacted employee's employability in the Southern California workforce. Respondent knew the investigators in the Rancho Cucamonga office had many years of experience. Although it did not know the employees' exact seniority, respondent believed these experienced employees could find alternate positions in southern California. In July 2002, the Chief Deputy Inspector General and Assistant Chief Deputy Inspector General met with CDC and CYA representatives to discuss alternative positions potentially available for the Rancho Cucamonga staff. Respondent also contacted the DOJ. During the layoff process, various OIG management personnel made personal contacts on behalf of several of the appellants. Some appellants found alternate employment without the OIG's assistance. Some appellants accepted assistance from the OIG, but ultimately determined they did not want the available position. Nonetheless, all of the Rancho Cucamonga employees found employment with other state agencies by the time the Rancho Cucamonga office closed in December 2002. This supports respondent's initial assessment of their employability and the weight respondent gave displacing appellants through a geographic layoff.

Appellants argue the geographic layoff of employees assigned to the Rancho Cucamonga Office was unlawful because that office was not a functional or organizational subdivision; respondents violated the SRPPM criteria for identifying a geographic subdivision; and, respondent is prohibited from closing the office because it previously transferred people to the office.

Appellants correctly assert the Rancho Cucamonga Office was not a functional or organizational subdivision. Although they submitted an organization chart that showed staff assignments as of December 2000, this chart was not applicable to the OIG's organization or appellants' work assignments at the time of layoff.

By the time of layoff, respondent had already begun to consolidate its offices in Southern California. When the San Diego Office closed in January 2002, its responsibilities shifted to the Rancho Cucamonga Office. The Rancho Cucamonga Office became the headquarters for the Southern Region; Visalia was the headquarters for the Central Region; and, the Sacramento field office was the headquarters for the Northern Region. The layoff of employees assigned to the Rancho Cucamonga Office was a geographic layoff of employees in what was respondent's Southern Region. Section 19997.2 permits the State employer to layoff by geographic location rather than by functional or organizational subdivision. Respondent requested and obtained approval for layoff in a geographic subdivision.

"A geographic layoff is appropriate if recruitment and hiring are done locally (persons don't change residences to accept appointments), and if employees typically spend their entire careers in the one location. Consideration may also be given to whether past practice has been to restrict layoffs to geographic subdivisions in the class or classes of layoff." (SRPPM at pp. 10-11.) The SRPPM does not define "recruitment" or "geographic subdivisions." Each layoff must be premised on the specific facts and circumstances existing at the time of that layoff.

Appellants' argue recruitment for the Rancho Cucamonga Office was not local because some employees were appointed from an employment list that identified eligible candidates willing to accept appointments anywhere in the state. While eligibility on and appointment from such a statewide list is one indicator of statewide recruitment, it is not, in itself, definitive or conclusive of how a state employer recruited or hired personnel for a specific location. The examination list is merely a tool identifying eligible candidates for further consideration in the ongoing recruitment process.

In this case, there was no evidence that respondent attempted to interview, contact, or hire personnel outside the Southern California area for employment at the Rancho Cucamonga office. There was no evidence respondent used the statewide eligibility list for anything other than identifying eligible candidates who lived in Southern California.

There was also no evidence that Southern California employees were frequently and routinely rotated into positions assigned to other OIG locations or that they routinely moved their permanent residences to accept employment within the OIG. In this case, the clerical staff voluntarily transferred from San Diego to Rancho Cucamonga to accept employment with respondent as an Office Technician. She was hired from a Southern California area for the only office appellant had in Southern California at the time she was hired. There was no evidence appellant's move was anything other than a voluntary act on her part.

The fact that appellants were involuntarily transferred from the San Diego Office to respondent's only remaining Southern California office does not change the analysis. Both were hired in Southern California and both held positions in respondent's Southern California region. Absent extraordinary circumstances, i.e. multiple budget and position reductions and office closure, there is no evidence that either would have moved from the San Diego office. Indeed even with the closure of the San Diego Office, respondent accommodated one appellant by allowing her to telecommute and by allowing another to maintain his permanent residence in San Diego. Appellant's decision to relocate came only after he was notified the Rancho Cucamonga office was closing.

Appellant argues her work assignment insulated her from layoff because she was a member of the Rapid Response Team and her supervisor and an office was in Visalia. Appellant also had an office in Rancho Cucamonga. She worked on Rapid Response cases in Southern California and telecommuted from her home in San Diego. Her position was assigned to the Rancho Cucamonga Office. The SRPPM provides that employees on assignment to an area outside the area of layoff must be included in the seniority computations for the layoff and must be included in the layoff. (SRPPM at p. 22.)

Working on assignments throughout the State is not a criteria identified by statute, rule, or the SRPPM for determining the legality or propriety of a geographic layoff. Indeed, willingness to work and travel throughout the state is a requirement for many positions. Strict application and adoption of this criteria would automatically eliminate or make suspect any geographic layoffs that required the incumbents to travel as part of his/her job duties. This is contrary to the authorization in Section 19997.2 and to the criteria in the SPRRM.

Appellants also allege respondent was estopped from conducting a geographic layoff because it had previously offered involuntary transfers in lieu of layoff when it closed the San Diego Office. When the San Diego Office was closed, appellants did not "bump" less senior employees. Respondent's economic and position restrictions were not the same in December 2001 as they were in December 2002. At the time the San Diego office closed, there were vacant positions available. The closure of the San Diego office indicates respondent typically viewed the field offices as separate reporting entities. Estopping respondent from invoking section 19997.2 based on a successful practice of avoiding layoff by involuntarily transferring employees would have a chilling affect on the employer's willingness to implement alternatives to layoff. Respondent's past practice does not estop it from implementing a geographic layoff.

Appellants allege that the entire geographic layoff was done in bad faith. They specifically alleged respondent's failure to allow them to exercise their seniority and "bump" other employees in other offices was motivated by the Chief Deputy Inspector General's desire to retain employees in Sacramento with whom he had previously worked at the State Controller's Office. They also alleged that two of these employees were illegally promoted to Deputy Inspector General from Assistant Deputy Inspector General after respondent notified appellants they were going to be laid off. They also argue that respondent's July 18, 2002 notice of DIG promotional examination was to be given with the sole intent to benefit these employees.

In interpreting the good faith criteria necessary in a layoff, the courts have held that "the [layoff] action will be upheld if taken in good faith, but invalidated if it is a subterfuge for the piecemeal dissolution of the civil service system [citation] or a sham method of ousting an unwanted employee. [Citations.] Reorganization of governmental offices promulgated in good faith and for reasons of efficiency or economy does not 'nullify the basic principle' of civil service even though it results in abolition of one or several civil service positions." (Placer County Employees Association v. Board of Supervisors (1965) 233 Cal.App.2d 555, 559.) The court has upheld a layoff even though at the same time the department was laying off employees, it employed others in new positions. (Peradotto v. State Personnel Board (1972) 25 Cal.App.3d 30.)

Appellants failed to provide any evidence to support their general allegation that they were laid off without being allowed to exercise their seniority based on the Chief Deputy Inspector General's desire to subvert the civil service system and save his friends and acquaintances from layoff. Appellants ignore the fact that the promotional examination for the DIG was cancelled at approximately the same time respondent learned its funding was being cut and it was losing positions. Appellants failed to prove the two promotions in place would not have occurred in the normal course of events and that they were designed to circumvent the layoff process.

Furthermore, appellants' argument regarding unlawful promotion of two Associate Deputy Inspector Generals to DIG's is outside the scope of this hearing and DPA's jurisdiction. This appeal is limited to the validity of the layoff. If another employee was hired or promoted unlawfully, remedies exist. Section 19257.5 vests the SPB with authority to declare an appointment void. (See also California Code of Regulations sections 8, 266, et seq.)

There was no evidence that respondent's closure and geographic layoff of appellants was subterfuge and an attempt to subvert the civil service system.

Section 19997.14 provides reinstatement with or without back pay as a remedy for a layoff. The Government Code provides no remedy for transfer in lieu of layoff. The employment histories show that five of the appellant's transferred prior to the effective date of layoff.

All appellants transferred to positions in new departments.

The three remaining appellant's transferred effective immediately after the layoff date. Therefore, these three employees may have been deemed to have been laid off from their positions with respondent as of December 31, 2002, giving them a potential reinstatement remedy under Section 19997.14.

None of the appellants specifically requested reinstatement as a remedy. When questioned about potential reinstatement at hearing, most appellants stated they wanted their due process rights and wanted to have the option of returning to work with respondent. Several conditioned their return to work for appellant on guarantees of being able to return under the same working conditions, i.e. telecommuting, receiving the same salary, being guaranteed they would not be laid off or relocated in the future, and being guaranteed their would be no reprisal. Appellants have no statutory or regulatory basis on which to condition a potential return to work. There are remedies for respondent's illegal conduct when and if it occurs. Respondent has no statutory or regulatory basis on which to guarantee appellants they will be employed regardless of changing economics. In fact such a guarantee would be a potential violation of the civil service system.

Appellants were obviously frustrated, upset, and angry. They are professional employees with many years of State service. They, and a significant number of other hard-working and dedicated civil servants, have been required to bear unusually adverse economic and professional set backs for the good of the State service and the economy. As indicated at hearing and specifically pointed out to appellants by respondent's January 24, 2003, letter to them, continuing economic and position reductions at the OIG are likely. Appellant's failure to specifically request reinstatement and their general reluctance to commit to unconditional return to work for respondent is understandable. It does not represent bad faith on their part in this situation.

However, even generally applying the principle, criteria, and remedy of Section 19997.14 to all appellants, the layoff cannot be reversed because the evidence presented does not show it was unlawful.

In lieu of reinstatement, appellants sought a variety of remedies. Some sought a red circle salary rate because their new positions under new appointing authorities were at a lower salary rate than their positions with the OIG. Section 19837 (a) provides in pertinent part:

"When an employee is moved to a position in a lower class because of reduction in force ..., the Department of Personnel Administration may, when recommended by the appointing power, authorize payment of rate above the maximum of the class ...."

This language is clearly permissive. Appellants were not demoted in lieu of layoff. There was no evidence appellant's new appointing power recommended appellants receive a red circle salary rate. This remedy is denied.

Some appellants requested a guarantee of salary and benefit parity with Bargaining Unit 6 or with the Deputy Inspector General classification or "like series" until retirement. There is no statutory or regulatory basis on which to provide such a remedy. This remedy is denied.

Some appellants requested a transfer to a specific department or assignment within a new department. There is no statutory or regulatory basis on which to provide such a remedy. This remedy is denied.

Some appellants also requested "an immediate, thorough, impartial and public investigation of the personnel practices and actions of the Office of the Inspector General since January 1, 1998." DPA's jurisdiction is limited to determining the validity of the layoff. This remedy is denied.

At least two appellants requested "other remedies as may be subsequently deemed appropriate through the investigation, appeal, and review of this excluded employee grievance." No other remedies are appropriate or within DPA's jurisdiction.

There was no evidence presented at hearing to indicate unlawful conduct by respondent in regard to appellant's placement on reemployment lists. If the SPB does not approve placement of appellants' names on such reemployment lists, appellants' remedy lies with the SPB. (See Sections 19816.2 and 19997.)

Appellant requested a remedy as follows:

"As an alternative to layoff, I am considering a transfer as a special agent with the California Youth Authority in Sacramento. I am requesting that the OIG accept my request to ship my furniture from Rancho Cucamonga to Sacramento which is approximately $1,100. In consideration, I agree to waive my right to claim reimbursement for the sale of my personal residence resulting from my involuntary transfer from San Diego to Rancho Cucamonga on 1/31/02. This is a financially responsible decision which represents a $60,000 cost saving to the OIG."

DPA has no authority to order the OIG to accept appellant's settlement offer. Any remedy appellant seeks or unresolved grievance he may have relating to the January 31, 2002, closure of the San Diego Office and his involuntary transfer as a result of that closure is an issue separate and apart from the validity of the December 31, 2002 layoff in the instant case.

 

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Whenever it is necessary because of lack of work or funds, or whenever it is advisable in the interests of economy, to reduce the staff of any State agency, the appointing power may lay off employees pursuant to this article and department rule. (Section 19997 (a).)

Section 19997.2 allows a department to conduct a geographic layoff with the approval of DPA.

Section 19997.14 allows employees to appeal a layoff on the grounds the required procedure has not been complied with the layoff has not been made in good faith or was otherwise improper.

Viewed in its totality, the evidence supports respondent's reasonable belief that closing the Rancho Cucamonga Office and laying-off its staff was the most efficient means to achieve its required funding and position reductions. Respondent did not act improperly and unlawfully in its decision to proceed with a geographic layoff or its implementation of such a layoff. The required procedure was complied with, the layoff was not done in bad faith and it was not otherwise improper.

 

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that the appeals from layoff effective December 31, 2002, are denied.

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1. On May 14, 2003, appellant testified at the hearing by telephone.

2. All references are to the Government Code unless otherwise indicated.

3. The parties stipulated at hearing that respondent received these budget and position reductions.

4. Appellants were granted pre-hearing discovery as part of the statutory appeals process.

5. This is the version in effect at the time of appellant's layoff. It has since been revised.

6. Rapid Response cases were cases that required rapid investigation. At the time of layoff, the Visalia field office was the headquarters for the majority of investigators on the Rapid Response team.