Final Non-Precedential Decision Adopted: October 4, 2002
By: Fred Buenrostro, Deputy Director
DECISION
This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on July 23, 2002, at Susanville, California.
Appellant was present and was represented by Janice R. Shaw, Legal Counsel, California Correctional Peace Officers Association (CCPOA).
Wesley M. Travis, Senior Staff Counsel, represented the Department of Corrections (CDC), respondent.
The record remained open until close of business August 14, 2002, to allow the parties to file closing briefs.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
I - JURISDICTION
Respondent transferred appellant effective January 21, 2002. CCPOA filed a request (appeal) from involuntary transfer on December 4, 2001. DPA denied jurisdiction on December 6, 2001, on the basis that involuntary transfers of correctional officers were covered by the relevant collective bargaining agreement and were to be arbitrated. CCPOA appealed that decision. On April 9, 2002, the Sacramento Superior Court ruled the language in the collective bargaining agreement did not preclude DPA’s jurisdiction and ordered DPA to hold a hearing pursuant to Government Code section 19994.3 and California Code of Regulations section 599.859 (g).
Pursuant to the court order, the hearing was set for May 15, 2002. At the request of appellant, the hearing was continued. The matter was heard on July 23, 2002.
II - CAUSE FOR APPEAL
By letter dated November 19, 2001, respondent notified appellant that effective January 21, 2002, he would be transferred to CCC. Thereafter, CCPOA filed his appeal with DPA alleging that the transfer was for disciplinary purposes.
III - ALLEGED IMPROPER MOTIVES
Through a letter dated November 19, 2001, the CCC Warden notified appellant that his mandatory transfer was being “initiated in order to address operational needs of the Department, this institution, and improve the efficiency of its services.” He noted significant deficiencies in overall job performance as outlined in appellant’s November 30, 2000 and November 12, 2001, annual performance appraisals and Letters of Instruction dated January 12, 2000, November 27, 2000, and April 25, 2001. The CCC Warden notified appellant that his work performance required him to be placed in a position which would provide him with greater supervision and which would enhance his job performance.
Respondent contends that placing appellant in a position at CCC provides greater supervision because supervisors are on the grounds and available during all shifts. It contends the Department and institution’s operation is better served because at CCC appellant is not in a position where he is required to make independent judgments in potentially critical situations because he is the sole correctional officer on duty. Further, respondent contends appellant can receive better training at the institution than in a camp setting.
As evidence of its good faith motive for transferring appellant, respondent points out that appellant did not suffer any loss of salary, position, or other privilege as a result of the transfer. It also argues the transfer was not placed in the November 30, 2001 Preliminary Notice of Adverse Action or in the Notice of Adverse Action, which was served on February 1, 2002. Respondent argues this is significant because since January 2001, two of nine transfers from a camp to CCC have been for disciplinary reasons and have been included in the Preliminary Notice and Notice of Adverse action.
Appellant disputes the reasons given by respondent for transferring him. Appellant charges respondent transferred him, as discipline for the conduct cited in three Letters of Reprimand and he alleges the transfer notice itself was punitive. He bases his charges on the following: (1) the allegations of misconduct in the Letters of Reprimand were referenced in the performance appraisals and then referred to in the notice of transfer; (2) the Letters of Reprimand were themselves punitive because they each notify appellant that future similar conduct could trigger adverse action; (3) appellant received a preliminary notice of adverse action shortly after he received his transfer notice; and (4) respondent failed to demonstrate how appellant’s transfer resulted in a greater level of supervision; allowed him to enhanced his future job performance; or affected the operational needs or efficiency of the institution or department.
IV - EVIDENCE OF MOTIVE
Appellant received three Letters of Instruction. The first, dated January 12, 2000, documented appellant’s reporting late for duty, altering sign-in sheets, failing to follow instructions, and failing to enforce sanitation and food safety standards after being advised his performance was substandard. The second, dated November 27, 2000, documented appellant’s failure to “exercise good judgement” and appellant’s “failure to consider the safety and security of the camp, the community, and [the] safety of ... fellow officers” by not reporting an inmate’s admitted use of marijuana. The third, dated April 25, 2001, documented appellant’s being out of uniform and refusing a direct order. Each of these letters instructed appellant to read relevant department operating procedures and policies and to report to the Correctional Sergeant or Lieutenant his understanding of these policies and procedures. Each also advised appellant the letter was not adverse in nature, but adverse action could be taken against him based on the incident cited in the memorandum if he engaged in similar conduct in the future. In addition, appellant was advised the letter of instruction could be removed from his personnel file upon his request one-year after the date of issuance. No evidence was presented whether or not appellant requested these documents be removed from his file.
Appellant received two performance appraisals that rated his overall performance as “needs improvement.” A November 30, 2000, performance appraisal referenced conduct which was the basis for the three Letters of Instruction. It noted appellant’s “lack of good judgment” and that he needed additional training to elevate his performance. Although appellant did not agree with the ratings, he signed the performance appraisal.
The second overall “needs improvement” rating appeared in appellant’s November 12, 2001 performance appraisal. The evaluation indicated appellant’s overall performance had deteriorated since the previous performance appraisal.
Appellant continued to need improvement in the following areas: “Report Writing/Record Keeping/Communications,” “Supervising, Escorting & Transporting,” and “Work Habits That Influence Performance.” The rating in the “Report Writing/Record Keeping/Communications” area was based on appellant’s failure to follow procedures and instructions both during a staging assignment and during his operation of the camp canteen. The rating in the “Supervising/Escorting and Transporting” area was based on appellant’s statement that inmates did not follow his instructions and on an incident in the dining hall where appellant struggled with an inmate over a food tray. The rating in the “Work Habits that Influence Performance” area was based on appellant’s failure to wear his uniform shirt while supervising inmates at a staging area on August 26, 2001.
Appellant’s performance in the area “Custody and Control of Inmates” area deteriorated from “satisfactory” to “improvement needed.” This lower rating was based on appellant’s handling of the previously mentioned food tray incident in the dining hall. Appellant’s rating in the area “Handling Critical Situations” deteriorated from “improvement needed” to “unacceptable.” This lower rating was based on an August 24, 2001 incident where appellant allegedly abandoned his fellow staff members and inmates while assigned to a fire in the vicinity of a marijuana plantation and went to Wal-Mart.
The appraisal also noted the amount of training appellant had been given and it instructed appellant to learn to apply this written and verbal information. Appellant did not agree with the ratings on the performance appraisal and he refused to sign it.
In August 2001, Respondent began an investigation into the incidents of August 24 and 26, 2001.
On or about November 14, 2001, the Camp Commander of the Konocti Conservation Camp #27 sent a letter and a copy of the November 2001 appraisal to CCC’s Acting Chief Deputy Warden. The Camp Commander sent the letter to the Acting Chief Deputy Warden by way of the Acting Associate Warden of CCC’s Camp Division. In the letter, the Camp Commander noted appellant’s performance rating was down from the previous year. Citing the lack of improvement on the November 2001 performance appraisal, appellant’s Letters of Instruction and recommendations for adverse action, and appellant’s disagreement with his immediate supervisors, the Camp Commander advised the Acting Chief Deputy Warden and the Acting Associate Warden he believed the camp setting was “not the work environment that appellant will be successful in, i.e., working independently, making appropriate decisions in the absence of a supervisor.” The Camp Commander discussed this letter and appellant’s performance with the Acting Chief Deputy Warden and the Acting Associate Warden.
After receiving the letter and a copy of the November 2001 performance appraisal, the Acting Chief Deputy Warden gave CCC’s Employee Relations Officer (ERO) a copy of the Camp Commander’s letter and asked her to put together a packet of documents that reflected appellant’s job performance. This packet included performance documents dating back to 1997. It included the three Letters of Instruction appellant received since January 2000. It did not include information regarding the investigation of the August 2001 incidents or information regarding any potential adverse action. After assembling the information, the ERO gave it to the Acting Chief Deputy Warden. She believed the Acting Chief Deputy Warden and the Acting Associate Warden were going to discuss the Camp Commander’s letter and the information she provided to them with the Warden.
The Warden testified he discussed appellant’s performance and transfer with the Acting Chief Deputy Warden. The Warden knew the Acting Chief Deputy Warden had been in touch with the Camp Commander. The Warden testified he reviewed a packet of appellant’s performance documents he believed were assembled by the ERO. He testified his review included the 2000 and 2001 performance appraisals. He also considered the Letters of Instruction and the Camp Commander’s November 14, 2001, letter.
The Warden could not recall if he received the packet of documents directly from the ERO or from the Acting Chief Deputy Warden. He could not recall exactly when he reviewed the packet. Under cross-examination, he admitted performance appraisals were also usually included in adverse action packages.
The Warden testified he based his decision to transfer appellant on appellant’s overall performance as reflected on his performance appraisals, the Camp Commander’s recommendation, discussion with his Deputy Warden, and a “host of individual situations” that had called attention to appellant. The Warden stressed his decision to transfer appellant was based on appellant’s overall performance pattern rather than one or two separate incidents. He testified that neither the isolated incidents in the Letters of Instruction, nor appellant’s conduct on August 24 and 26, 2001, were in themselves enough to motivate appellant’s transfer. The Warden also testified he believed appellant would be ready to return to a camp assignment when he received all standard ratings on his performance appraisal. He testified he believed appellant’s transfer would accomplish this because unlike in a camp setting, a supervisor was present and available on all shifts at CCC.
The Warden relied on the ERO to prepare the letter notifying appellant he was being transferred. The ERO testified the Warden told her something to the effect that he was transferring appellant for “supervisory reasons based on the performance issues brought forward by the [Camp Commander], [Acting Chief Deputy Warden] and [Acting Associate Warden].” The ERO prepared the transfer notification letter and the warden signed it on or about November 19, 2001. The ERO testified she referenced the Letters of Instruction in the letter because as the ERO, she was familiar with appellant’s “behavior” since November 2000. She did not discuss the wording of the draft letter with the Warden before he signed it.
The ERO received the results of the investigation of the August 24 and 26, 2001 incidents on November 26, 2001. She testified she drafted the closure letter on this day and gave it to the Warden for his signature at that time. The Warden testified he did not see the written results of the investigation prior to this date. However, he also testified that he may have known the results of the investigation prior to seeing the report. He was unable to recall exactly when and how he received the verbal report of the investigation, but he admitted it may have been around the time he was considering appellant’s transfer.
Appellant received a preliminary notice of adverse action on or about November 30, 2001. The preliminary notice informed appellant that an adverse action was being taken based on the August 24 and 26, 2001 incidents.
On or about January 24, 2001, appellant was served with the adverse action consisting of a one-step pay reduction for 12 months. Appellant appealed and the State Personnel Board heard the case on May 29, 2002. The results of the appeal were pending as of the date of the hearing in this case.
Appellant offered no reason why his supervisors would want to transfer him from the camp, other than to discipline him for the incidents stated in the Letters of Instruction and the incidents that occurred on August 24 and 26, 2001. He testified he disagreed with the ratings on the performance appraisals and with the charges in the adverse action. He believes they do not paint an accurate picture of his job performance. Appellant testified he does not get closer supervision in the institution than he did at camp. He argued that while on third watch at the camp, he could contact a supervisor by telephone if necessary. He admitted he would get better training at CCC than in a camp setting because at camp there is a shortage of time and resources and the training is less formal. He also admitted the environment at CCC is more structured and restrictive than in a camp setting because you have to have an emergency to leave your post and you have to call a supervisor before leaving in order to get a relief person.
Appellant failed to present any evidence that his transfer had any impact on his salary or any other benefit or that it in any way affected his career in a negative manner. Indeed, there is nothing in the record to remotely suggest such impact.
PURSUANT TO THE FOREGOING FINDINGS OF FACT, THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:
Government Code section 19994.3 provides DPA with the authority to revoke a transfer and restore an employee to his original position if DPA finds the transfer was made “for the purpose of harassing or discipline the employee.” Black’s Law Dictionary defines the phrase “for purpose of” as meaning “with the intention of.” A transfer is disciplinary in nature only if it is imposed for the purpose of punishment. (White v. County of Sacramento (1982) 31 Cal. 3d 676, 683.) Whether a transfer is disciplinary in nature is a question of fact.
In the instant case, appellant’s transfer was not made with the intention of disciplining him. Instead, it was made with the intention of placing him in a position where his demonstrated lack of good judgment could be more closely supervised and compensated for should appellant ultimately be unable to improve his performance.
The Warden based his decision to transfer appellant on appellant’s pattern of deficient performance and poor judgment going back to at least January 2000. The Warden took no action to transfer appellant until he reviewed a copy of appellant’s November 2001 performance appraisal showing not only deficient but deteriorating performance and after he reviewed a copy of the Camp Commander’s letter recommending a transfer.
A State agency may transfer an employee if it has a legitimate business reason. In this case, respondent proved it transferred appellant to address its operational needs and efficiency and to enhance appellant’s job performance. Appellant demonstrated poor judgment and performance deficiencies that could seriously jeopardize the safety and security of the community, inmates, and other correctional officers in the camp setting. He told his supervisors that inmates would not take orders from him.
Although he availed himself of the training available at the camp and he received instructional guidance from camp supervisors, appellant’s judgment and performance did not improve. Appellant admitted training was more readily available at CCC than at the camp and that he would probably benefit from this.
Appellant also admitted CCC has a more structured working environment than that existing at the camp or on an emergency dispatch. Appellant is more closely supervised at CCC. Other officers are more readily available on all shifts at CCC to assist in handling critical situations. At least one supervisor is also on duty on all shifts. At CCC, appellant’s performance can be more closely observed and compensated for by either structured training or by immediate intervention by a supervisor or his fellow officers. Such training, observation, and potential intervention are consistent with the Department and the institution’s mission and the safety and security of the community, appellant’s fellow officers, and appellant, himself.
The fact the Warden considered the same incidents of deficient performance that were previously included in Letters of Instruction does not automatically make the transfer disciplinary. As in the case of Orange County Employees Association v. County of Orange (1988) 205 Cal. App. 3d 1289, appellant’s salary or benefits were unaffected by the transfer and other correctional officers had been transferred from the camp for performance deficiencies in the last year. In addition, like the appellants in the Orange County case, appellant had the opportunity to have the Letters of Instruction removed from his personnel file.
Although an adverse action was subsequently taken in this case based on some of the same conduct cited in a performance report and used as a partial basis for the transfer, that conduct was not the sole reason for the transfer. Other conduct, which was unrelated to either Letters of Instruction or to the adverse action was cited in the performance appraisals and considered by respondent. Such deficiencies included failing to maintain accurate records of canteen transactions and failing to complete an accurate end of the month canteen report; grabbing a food tray from an inmate’s hands in the dining hall; failing to follow his supervisor’s instructions to communicate procedures to inmates during a staging assignment; and appellant’s admission that inmates do not follow his instructions.
The reference to the Letters of Instruction and deficient performance also does not automatically make the notice of transfer punitive and, therefore, as appellant argues, the transfer disciplinary. The contents and nature of the memorandum is an issue of fact that must be resolved on a case by case basis. (Otto v. Los Angeles Unified School District (2001) 89 Cal. App. 4th 985, 995.) In this case, the Official Notification of Reassignment generally cites specific deficiencies found in the recent performance evaluations and more specifically cites the Letters of Instruction and related conduct to demonstrate appellant’s overall pattern of performance deficiency.
* * * * *
WHEREFORE IT IS DETERMINED
that the protest of involuntary transfer effective January 21, 2002, is denied.
