Final Non-Precedential Decision Adopted: May 9, 2001
By: Howard Schwartz, DPA Chief Counsel
DECISION
This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on January 9, 2001, and at 9:00 a.m. on April 11, 2001, at Sacramento, California.
Appellant, was present and was represented by Richard J. Burton, his attorney.
Respondent, Department of the Youth Authority (CYA), was represented by the Bill Lockyer, Attorney General, by Martin H. Milas, Deputy Attorney General. Also present was Patricia Ostini, Chief Counsel, CYA.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
I - JURISDICTION
On July 20, 2000, respondent served appellant with notice that he was being transferred from his position as a Lieutenant in the Internal Affairs Unit (IAU), Southern Field Office, at Covina, California, to a position as Lieutenant at Heman G. Stark Youth Correctional Facility at Chino, California. On August 14, 2000, appellant protested the transfer to DPA. The matter was set for hearing on September 26, 2000. At the hearing on September 26, the respondent withdrew the notice of transfer.
On October 5, 2000, respondent served appellant with a second notice of transfer. It advised him that he was being transferred to a position as a Lieutenant at the Southern Youth Correctional Reception Center (Reception Center) at Norwalk, California. The transfer did not require appellant to change his residence.1
On October 25, 2000, appellant filed a protest (appeal) from transfer with DPA. The transfer and appeal comply with the procedural requirements of Government Code section 19994.3 and with Johnson v. DPA (1987) 191 Cal.App.3d 1218.
II - CAUSE FOR APPEAL
On October 25, 2000, appellant filed his appeal from transfer to the Reception Center. In his written appeal and on the record, appellant claimed the transfer constituted harassment because it was retaliatory in motive. He also claimed it violated Government Code section 19994.3, because he was being removed from a permanent position in IAU.
More specifically, appellant claimed respondent was retaliating for several prior conflicts, which arose between appellant and certain managers and supervisors and for his reporting perceived problems to the Office of the Inspector General (OIG). The problems included (1) management’s change in policy regarding criminal investigations and criminal prosecution;
(2) the Chief’s directive to polygraph a victim; (3) alleged insulting remarks made by a Deputy Director during an investigation at the Ventura School; (4) attempts to cap overtime in the IAU; and (5) alleged indirect threats made by the Acting Superintendent at the El Paso de Robles Youth Correctional Facility.
Also more specifically, appellant claimed that respondent acted illegally in transferring him out of IAU because when he assumed his position on April 19, 1993, respondent designated it as a “permanent full-time position” and not a “rotational position.”
III - STATEMENT OF FACTS
On or about May 1, 2000, the Governor of the State of California appointed [name omitted] to the position of Director of the CYA. Prior to coming to CYA, the Director was with the County of Los Angeles Police Department for a number of years.
On or about May 7, 2000, the Director met with a Captain with the Stockton Police Department. The purpose of the meeting was for the Director to interview the Captain of the Stockton Police Department for the position of Chief, IAU. The position of Chief, IAU was open because the former Chief, was ill and stepping down.
Also present at the meeting on May 7, 2000, was a retired Sheriff for Los Angeles County who was a transitional Deputy Director.
During the course of the interview, the Director and the Captain of the Stockton Police Department discussed two policy issues affecting the IAU investigators. The first issue was whether to arm the investigators. The other was whether to adopt a rotational policy for assigning staff to investigations positions in the IAU. The Director asked the Captain what the policy of the Stockton Police Department was regarding internal affairs staff. The Captain responded that Stockton had a rotational policy, which he favored. The Director noted that the County of Los Angeles also had a rotational policy. He told the Captain he also favored a rotational policy for investigators. The Director testified the reason he was in favor of such a policy was that rotation of staff in and out of an internal affairs unit provides flexibility for managers to train and develop a cadre of employees throughout an organization who are competent to conduct investigations.
Harper also testified that they discussed a four-year rotation policy because a four-year time frame would allow employees one year to learn how to handle investigations and three years to develop their skills. At the conclusion of the assignment, the employees would be transferred to other positions at CYA, without loss of pay or benefits.
From July 1 through July 3, 2000, the Director conferenced with his Assistant Directors at San Ramon, California. At the conclusion of the conference, action points were distributed to the attendees. One of the action points for IAU was a policy of four-year rotations for peace officers assigned to IAU. The proposed policy was discussed at the conference, but the discussion was not person specific.
Following the conference and prior to appointing the Captain to the position as Chief of Internal Affairs, the Director implemented a new four-year rotational policy on July 20, 2000. The Director did not advise the Captain that a rotational policy had been implemented prior to the Captain coming on board on or about August 8, 2000. The Director testified he believed it was his prerogative to adopt such a policy.
Also on July 20, 2000, appellant was served with a notice of transfer consistent with the new policy, since he had been in the IAU over seven years. The notice was signed by a Captain of the IAU, Southern Field Office Assistant Director. It was served on appellant because appellant’s assignment to the IAU far exceeded the new four-year policy implemented by the Director. The notice was later withdrawn for technical deficiency, because the parties agreed appellant should not be assigned to Chino.2
On or about August 8, 2000, the Captain was appointed to the position of Chief, IAU. On the second day of work, he was advised that appellant had been served with a notice of transfer and he was unhappy that he had been transferred out of IAU. Also, at the time he came on board, the Captain was advised that the Director had, in fact, instituted a four-year rotational policy with respect to the peace officers assigned to the IAU.
The second notice of transfer was served on appellant on October 5, 2000. The Captain was responsible for signing and approving that notice.
The Director testified that he made the decision to institute a rotational policy for investigators after discussing it with the retired Sheriff for Los Angeles County and the Captain on or about May 7, 2000. All three agreed that law enforcement rotation is a good policy. All were familiar with it from their prior law enforcement departments. Basically, the Director favored a rotational policy to allow good high quality people to go into investigations and to allow those leaving, new opportunities for promotion, teaching and mentoring others.
The Director and the Captain both testified that they were aware that several of the investigators in IAU were unhappy with the new policy. After the Captain became Chief, the Director met with the investigators and explained to them his reasons for instituting the new policy. He talked about rotational policies throughout law enforcement and expressed his opinion that rotation provided them with the opportunity to gain knowledge and take it “back into the main stream of the organization.” (Appellant was on vacation when the Director met with the investigators.)
The Director testified he had not even heard of appellant until after appellant was transferred and appealed. Further, no one on his staff ever told him anything negative about appellant or his performance prior to his determination to adopt a rotational policy. In fact, appellant was given a performance evaluation on July 20, 2000, rating him outstanding by a Captain of the IAU, Southern Field Office Assistant Director.
The Captain similarly testified that he did not know appellant prior to coming to CYA. When he provided input to the Director at his oral interview in May 2000, he was merely advising him as to the policy at Stockton and the reasons he favored rotation.
In summary, after the determination to rotate investigators was made by the Director, appellant was transferred because he was the senior investigator with seven years of service in IAU. The transfer notice was sent before the Captain was hired. Both the Captain and Director testified that after the transfer was initiated, they were advised that appellant was an excellent investigator. Both denied being influenced in their support of rotation by any other staff at CYA.
IV - CLAIM OF HARASSMENT
Appellant rejects the Director’s testimony that he exercised independent authority to adopt a rotational policy, which required employees to be transferred out of the IAU after four years. Appellant claims the new rotational policy in IAU was orchestrated solely to remove him from the unit in retaliation for reporting what he perceived to be problems at CYA to the OIG, and such retaliation constituted harassment. Further, appellant hypothecates that since he got an outstanding performance evaluation from the Captain of the IAU, Southern Field Office Assistant Director on at the same time that he was transferred (and he was clearly not transferred for being a poorly performing employee), he must have been transferred in retaliation for the reporting to OIG, and such retaliation constituted additional harassment.
Appellant, in fact, did report several perceived problems to OIG between 1999 and the time of his transfer and did go head to head with management on certain issues during that same period, as will be briefly set forth below. The matters were made part of the record solely for the purpose of demonstrating that appellant frequently reported what he considered problems to the OIG and he frequently went head to head with managers and supervisors during 1999 and 2000.3 No determination has been made by DPA that the matters reported actually constituted inappropriate action on respondent’s part.
Change in Policy Regarding Criminal Investigations (April through December 1999)
In April and May 1999, appellant verbally challenged the former Chief of IAU, when the former Chief issued a temporary directive that the investigators at CYA would no longer conduct criminal investigations against CYA staff members.4 Also, on December 14, 1999, appellant spoke with Chief Counsel, regarding a felony sexual assault case. During the conversation Chief Counsel advised him that the former Director was considering discontinuing criminal investigations of staff at CYA by the investigators because of their limited status as peace officers under Penal Code section 830.5. Appellant responded that failure to perform criminal investigations was illegal and accused management of unethical practices. He reported the conversations and management’s intentions to the OIG by facsimile dated December 14, 1999.
Ordering a Polygraph for a Victim (May 1999)
Appellant claimed that on May 17, 1999, during a sexual assault investigation, the former Chief ordered an investigator to polygraph the victim to determine whether to file charges. Appellant further claimed that he told the former Chief that they could not force the victim to take a polygraph. Subsequently, on May 18, appellant also reported this matter to the OIG.
Insulting Remarks at the Ventura School (April 1999)
Appellant and a former investigator, testified that in April 1999, they were assigned to an investigation of staff at the Ventura School. During the investigation, a Deputy Director, came down from Sacramento and relieved then Chief of IAU of his post. The former Chief of IAU left CYA shortly after the incident. While briefing the investigative staff the Deputy Director made remarks which appellant and former investigator considered insulting towards the former Chief of IAU and themselves. Those remarks were something to the effect that, “They [Sacramento’s management] were putting a stop to aggressive actions taken by the former Chief of IAU and the investigators,” and that the investigators were not to have any future contact with the former Chief. Both appellant and the former investigator challenged the Deputy Director’s denial of their “freedom of association” when directed to avoid contact or communication with the former Chief of IAU.
Capping Overtime in IAU (May 1, 2000)
Appellant claimed that on May 1, 2000, Captain of the IAU, Southern Field Office Assistant Director, acting under the direction of the former Chief and Acting Chief Deputy Director, attempted to place a cap on overtime usage in IAU. Appellant testified that he heard information that the former Chief and Acting Chief Deputy Director were “furious” that they had to pay him overtime of 422 hours. Appellant considered the actions of the former Chief, Acting Chief Deputy Director and Captain of the IAU, Southern Field Office Assistant Director to be in violation of the Fair Labor Standards Act. It is not known if this incident was reported to the OIG.
Indirect Threats regarding OIG Reporting (April or May 2000)
Appellant testified that other investigators advised him that in April or May 2000, they heard Acting Superintendent of the El Paso de Robles Youth Correctional Facility, remark something to the effect of “we know who’s talking to the IG and we are going to take care of him.” Appellant considered the alleged remark to be a threat against his person. Another employee named [name omitted] reported it to the Health and Safety Officer.
Appellant is of the opinion that all or some of the managers/supervisors identified above influenced the incoming Director to adopted a rotational policy for IAU in order to remove appellant from IAU by transfer, which constituted harassment.
V - LACK OF CAUSAL LINK
Chief Counsel testified that CYA management engaged in discussions “going back a number of years” and “across several administrations” regarding a rotational policy for IAU. However, she never met or had discussions with either the Captain or the Director regarding rotation. She stated “I haven’t ever discussed rotation with the Director.” Both the Captain and the Director testified to the same effect. The Director said that he had “no conversation” with Chief Counsel and “no input at all from her” regarding his decision to institute a rotational policy.
The former Chief of IAU was Chief from the time that the previous Chief of IAU left the position in April 1999 until July 2000. Harper testified that the former Chief came to him and told him he needed to step down and could not work full time because of illness. He stated he did not recall ever talking to the former Chief about a rotational policy.
There was no evidence that the Deputy Director ever talked with the Director or the Captain about appellant or the rotational policy prior to its implementation. In fact, the Director denied he spoke with the Deputy Director; and the Director and the Captain both testified they were unaware of who appellant was until the policy was instituted and he was issued a notice of transfer.
The Director said that he became aware of appellant when appellant sent a letter of appeal. Thereafter, he called appellant and assured him that the decision was not directed personally at him or any other investigator, but rather an exercise of his prerogative based upon existing law enforcement policies.
The Captain testified he was not advised of appellant’s situation until the day after he began work on or about August 8, 2000. He said that on that date, another Captain who was in the IAU in Northern California, told him appellant was not pleased with being transferred. He also stated that to his knowledge appellant was an excellent investigator who could be depended on and is a credit to CYA.
Any assumptions that the Director’s decision to adopt a rotational policy when he took over administration of CYA were influenced or provoked by management’s determination to remove appellant from the IAU, were repudiated by the record. There was no causal link between the appellant’s conflicts with management or his frequent reports to the OIG and the decision of the Director to rotate staff. Appellant’s transfer was merely the logical consequence of the four-year rotational policy the Director effectuated.
VI - CLAIM OF ILLEGALITY
Appellant’s second claim was that the transfer was illegal and violated the statute regarding transfer. Government Code section 19994.1 provides in part that an appointing power may transfer any employee under its jurisdiction to “another position” in the same class or “from one location to another whether in the same position or in a different position” so long as the transfer is not made to harass or discipline the employee.
Appellant claimed that he was hired in a “permanent full-time position,” not a “rotational position.” He introduced copies of his original appointment papers and duty statements to establish that the position was advertised as “permanent full-time,” but not advertised or established as “rotational.” He also introduced copies of a number of job announcements from “Staff News,” the official newspaper of the CYA for the period January 1993 and August 1995, which contained job and exam information of a similar nature.
Respondent did not dispute that appellant’s status has been and remains “permanent full-time.” However, respondent contends that appellant is mixing apples and oranges when he claims an actual position is “permanent.”
A Staff Service Manager I in the Personnel Management Services Division of CYA testified regarding this issue. Sims clarified the difference between “class,” “position,” and an employee’s “status” in State service. She stated that an employee may have permanent status in a classification. (Other types of status include limited term, temporary and emergency.) Appellant’s classification is Lieutenant. An employee may be assigned to a position (which is a set of duties consistent with the employee’s classification). Appellant’s former position was as an investigator in the IAU. His current position is as a First Watch Lieutenant at a facility.
Further, she testified DPA has granted CYA permission to fill certain positions on a rotational basis. And, no employee has a permanent right to a particular position, because positions are assigned to fit the business needs of the particular appointing authority. Therefore, consistent with Government Code section 19994.1, the appointing authority can transfer or rotate an employee from one position to another or transfer a position from one location to another based upon the authority’s needs.
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PURSUANT TO THE FOREGOING FINDINGS OF FACT, THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:
Government Code sections 19994.1through 19994.3 clearly give an appointing power authority to transfer an employee to another position in the same class, regardless of whether the new position is within the same geographical area. Those sections are consistent with the courts’ finding in Dobbins v. San Diego County Civil Service Commission (1999) 75 Cal App.4th 125, and Howell v. County of San Bernardino (1983) 149 Cal.App.3d 200. As the court stated in Dobbins at 75 Cal.App. 4th 131, “[a]n appointing authority must have flexibility to utilize its personnel in a manner appropriate for the overall needs of the agency, as well as its employees.” The court also stated, “an employee enjoys no fundamental or vested right to continuance in a particular job assignment.” Therefore, it is concluded appellant is without justification in his claim that respondent lacked authority or acted contrary to statute by transferring him to another position in the same class.
DPA has authority to determine whether or not a transfer executed pursuant to Government Code sections 19994.1 through 19994.3 is made for the purpose of harassing or disciplining the employee. See Government Code section 19994.1 and Johnston v. Department of Personnel Administration (1987) 191 Cal.App.3d 1218.
Harassment is generally defined as “a course of conduct directed at a specific person that causes substantial emotional distress in such persons and serves no legitimate purpose”
18 USCA section 1514(c)(1). In order to prevail on a claim of harassment, appellant must establish by the preponderance of the evidence that the transfer was directed specifically at his person and caused emotional distress and that respondent did not have a legitimate business purpose for executing the transfer. Appellant has not met this burden. In this regard appellant contends that the conclusion should be drawn that respondent engaged in a course of conduct which was specifically directed at removing him from the IAU as a punishment for reporting to the OIG and otherwise confronting management. The facts which appellant would have the trier-of- fact rely on in reaching that conclusion are as follows: (1) he had numerous confrontations with certain managers/supervisors at CYA; (2) he reported those confrontations and the issues causing them to the OIG; and (3) those managers/supervisors had the ability to influence the decision to transfer him.
However, the weight of the evidence is against finding any causal link between appellant’s encounters with management and supervision and the new Director’s decision to adopt the rotational policy leading to his transfer. In fact, there was no evidence that the Director spoke with or otherwise communicated with the supervisors and managers named regarding his intention to adopt a rotational policy. Also, when the new policy was adopted, neither the new Director nor the new Chief even knew who appellant was, much less what he had reported to OIG. Finally, the evidence proved that the primary (if not sole) influences leading to the adoption of the rotational policy were the new Director’s and the new Chief’s prior law enforcement experiences in Los Angeles and Stockton.
Further, the evidence clearly establishes the Director adoption of a four-year rotational policy for peace officers in the IAU met a legitimate management objective and business need, which was to improve the overall experience level of staff statewide by moving trained investigators back out into the field.
For the reasons set forth above, it is concluded that respondent acted within its statutory authority in transferring appellant from the IAU to a field position; that respondent had a legitimate business reason for transferring appellant; and that appellant failed to establish that the transfer was made for the purpose of harassing or disciplining him. According, the transfer should be sustained and the appeal denied.
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WHEREFORE IT IS DETERMINED
that the protest from involuntary transfer effective October 10, 2001 is hereby denied.
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FOOTNOTES
1. The parties stipulated that the distance between the old and new facility was not great enough to require him to change his residence. Therefore, this matter is considered an appeal of a “nongeographical” transfer.
2. An agreement had been executed 17 years previously that appellant would not be required to work under a particular individual who was employed at Chino.
3. To the extent an employee believes there are problems to be addressed by the OIG, the employee’s right to notify OIG is protected at law; and an employee so engaged should not suffer retaliation or harassment for the reporting.
4. During the period May 1998 to April 1999 while Stresak ran the IAU, criminal investigations were conducted. The current policy is for IAU staff not to conduct felony investigations of CYA staff and not to make referrals regarding staff to local prosecutors.
