On September 6, 2002,1 appellant submitted a written “Resignation from the Region III Fugitive Unit.” Appellant’s position on this unit was voluntary. He had an automatic right of reinstatement to a position as a Parole Agent I in a parole unit. Beginning September 11, appellant notified respondent multiple times that he wanted to rescind his resignation and thereby remain in the Fugitive Apprehension Unit.
Respondent did not accept appellant’s rescission. By memorandum dated September 13, respondent notified appellant it was accepting his resignation. Respondent also ordered appellant to identify three parole offices in Region III where he would prefer to be transferred.
On October 11 the CCPOA filed an appeal from involuntary transfer on appellant’s behalf.
Respondent transferred appellant to the El Monte Parole Unit 2 effective November 11.
It was undisputed appellant did not want to resign from the Fugitive Apprehension Unit as of September 11. Therefore, his transfer on November 11 was involuntary. It was also undisputed that the transfer was nongeographic and that notice requirements were met.
Thus, the appeal complies with the procedural requirements of Government Code section 19994.3 and with Johnson v. DPA (1987) 191 Cal.App.3d 1218.
The PAL program is part of CDC’s Law Enforcement and Investigations Unit (LEIU). The LEIU also has a Special Services Unit (SSU). SSU agents are required to have two years of exclusive investigation experience such as that which can be gained working on a PAL unit. During the relevant period of this appeal there was an Acting LEIU Assistant Director. The LEIU Administrator had the responsibility for overseeing all PAL units throughout the State. There was a Region III PAL unit supervisor who was appellant’s second level supervisor.
The Region III PAL unit supervisor was responsible for all aspects of the Region III operation. In approximately June 2002, the Region III PAL unit supervisor began instituting procedures requiring PAL agents to contact their supervisor for pre-approval of field operations that required assistance by other agents, work hours in excess of ten hours per day, and overtime. This affected the Parole Agent I’s ability to make independent field decisions.
Although the Region III PAL unit supervisor had begun talking about these policies and emphasizing them on a case-by-case basis, he did not commit them to writing or hold a meeting to formally institute them until September 6, 2002.
THE FUGITIVE CASE
In late August or early September 2002, the Region III PAL unit supervisor instructed the appellant, the lead agent on the fugitive case, and his assistant that they were not to continue working on the case for more than two additional hours or after 10:00 p.m. on that particular day.
Instead of ending the operation after two hours as directed, appellant decided to affect an arrest. The Region III PAL unit supervisor was not notified of this decision until around midnight after the agents had already called local law enforcement and PAL agents for assistance.
When the Region III PAL unit supervisor arrived on the scene, he observed that appellant was in an unsafe surveillance position and he believed the agents were ill prepared to handle the operation. He took charge. He recontacted local law enforcement and he ordered the PAL agents into a position to provide additional safety for the appellant. The apprehension operation continued and the fugitive was arrested.
On the night of the fugitive operation, the Region III PAL unit supervisor and the Parole Agent I discussed his dissatisfaction with the fact that he and appellant had not followed his orders and that the operation was unsafe.
The Region III PAL unit supervisor discussed this with appellant the next work day. Appellant was upset because the Region III PAL unit supervisor took control of the operation when he came to the scene. The PAL agents were also upset because they did not get paid overtime because it had not been pre-approved. The Region III PAL unit supervisor did not immediately report this incident to the LEIU Administrator and he did not initiate any written documentation or other disciplinary action.
On or about September 4, 2002, appellant was assisting a lead agent in the investigation and location of a fugitive wanted for rape and attempted murder. The Region III PAL unit supervisor told the lead agent he had been working too many hours and that he did not want the agents working on this case late that night. The lead agent was instructed to call the Region III PAL unit supervisor to let him know what was going on so that he could ensure there would be staff available to assist the next day.
The lead agent called the Region III PAL unit supervisor at approximately 8:00 p.m. and asked that PAL agents be sent to assist in the fugitive’s surveillance and arrest. When the Region III PAL unit supervisor learned no agents were available to assist, he ordered the operation to end at 9:30 p.m. The lead agent was unhappy with this decision and called the Region III PAL unit supervisor to protest. A heated discussion ensued.
After the heated discussion between the lead agent and the Region III PAL unit supervisor, appellant called the Region III PAL unit supervisor to attempt to convince him to allow the operation to continue. During the conversation, the Region III PAL unit supervisor repeated that the operation was to end at 9:30 p.m. He told appellant to call him back at that time so they could plan for the next day. Neither the lead agent nor the appellant called the Region III PAL unit supervisor back at 9:30 p.m. Neither the lead agent nor appellant answered their telephones until 11:00 p.m. The lead agent was still upset but he agreed to call off the operation.
Appellant called the Region III PAL unit supervisor again that night about midnight. He was noticeably upset and spoke in a raised voice. During that discussion, appellant told the Region III PAL unit supervisor that he didn’t have all the information necessary to make an appropriate decision to cut off an operation or to tell the field agents when they could or could not effectuate an arrest.
The Region III PAL unit supervisor spoke with the lead agent the following day about his inappropriate behavior and the handling of the fugitive case. Appellant was off work on that day.
The Region III PAL unit supervisor did not immediately report the incident to the LEIU Administrator. He did not discuss adverse action and he did not initiate any written documentation or other adverse action regarding this case.
EVENTS ON SEPTEMBER 6, 2002
The Region III PAL unit supervisor held a meeting with the Region III Parole Agents on September 6, 2002. He discussed and distributed written policies and procedures that addressed monitoring of daily and weekly work hours; a work day of no more than 10 hours; pre-approval for overtime; and requirements that increased the involvement of the Parole Agent II’s in the supervision of the Parole Agent I’s and their field activities.
Appellant attended this meeting and he, among others, voiced his disagreement with some of the policies. Appellant particularly disagreed with the policy that the Parole Agent II could make a decision regarding the handling of a case in the field.
Appellant met with the Region III PAL unit supervisor after the group meeting. The Region III PAL unit supervisor told appellant he was disappointed that appellant had not supported his decision to call off the operation in the fugitive case. They also discussed the other fugitive case. The Region III PAL unit supervisor explained the potential liability for agents working late and working many hours. Appellant and the Region III PAL unit supervisor also discussed morale in the unit, and the general supervision changes that were being made.
The discussion became heated. Appellant continued to voice his objection to a supervisor’s involvement in an agent’s field decisions and the handling of a case in the field. Appellant continued to assert that the agents on the scene should have the ultimate authority to determine how a case should be handled in the field. Appellant also repeated his belief that the Region III PAL unit supervisor’s decision to call off the fugitive operation on September 4 had no rational basis because he was not on site and did not have all the information necessary to make a competent decision.
During the discussion, the Region III PAL unit supervisor referred to appellant as “a person of interest” with “all eyes on him.” The Region III PAL unit supervisor also told appellant that he (the appellant) was not used to anyone telling him no, and that he liked to “stir things up.” Appellant testified the Region III PAL unit supervisor also told him that he (the appellant) was responsible for everything that went wrong on the fugitive case, and that his culture was the reason he was not used to being told no. The Region III PAL unit supervisor denied telling appellant he was responsible for the fugitive case and he also denied referring to appellant’s culture. It was undisputed that there was no mention of disciplinary action or transfer during this meeting.
As a result of this heated discussion, appellant felt his supervisor “had it out for him” and that it was not wise for him to stay in the PAL unit. He also felt the Region III PAL unit supervisor made a racial remark by referring to “his culture.”2
About an hour after the discussion ended, appellant presented the Region III PAL unit supervisor with his letter of resignation from the Region III Fugitive Unit. It was address to the LEIU Administrator and dated September 6, 2002. It read in pertinent part:
“.... I believe [name omitted] has irreconcilable differences with me and as a result feel it necessary to step down. I do not want to perpetuate any hard feelings to any other staff members towards [name omitted]. I think if I stay longer, it will be inevitable.”
The Region III PAL unit supervisor attempted to talk appellant out of resigning. He told appellant that resigning was not the right thing to do, and that he should not submit the resignation blaming him for his decision. The Region III PAL unit supervisor told appellant he had potential and cited positive examples of appellant’s performance. Appellant responded something to the effect that he could not work “under this type of supervision” and that “he couldn’t function.” The Region III PAL unit supervisor then told the appellant that he would hold onto the resignation until Monday (September 9), that appellant should think about it, and call him to discuss it.
EVENTS AFTER SEPTEMBER 6, 2002
Appellant and other PAL unit members went to Las Vegas the weekend after appellant submitted his resignation. Several agents called the Region III PAL unit supervisor over the weekend to discuss appellant’s resignation.
The Region III PAL unit supervisor informed the LEIU Administrator of appellant’s resignation at approximately 8:00 p.m. on Monday, September 9, 2002. During that conversation, the Region III PAL unit supervisor briefly outlined the circumstances of the two fugitive cases, his meetings and discussions with appellant, and the September 6, 2002 meeting. The Region III PAL unit supervisor shared with the LEIU Administrator his view that appellant did not want to accept supervision and that appellant was a safety concern. The Region III PAL unit supervisor told the LEIU Administrator that appellant felt the field agent should be the one making the decision about cases and field operations. The Region III PAL unit supervisor felt that appellant’s reluctance to accept supervision may result in an incident that would ultimately be his responsibility because he was responsible for everything that went on in the Region III PALS unit.
The LEIU Administrator told the Region III PAL unit supervisor that he wanted to accept appellant’s resignation. He told him to fax him a copy the next day, and he would review the resignation with the Acting LEIU Assistant Director. The LEIU Administrator discussed the situation with the PAL agent on Tuesday, September 10. The LEIU Administrator then called the Region III PAL unit supervisor back and told him that he and the PAL agent were in concert and that the resignation was accepted.
Appellant called the Region III PAL unit supervisor on his way back from Las Vegas on the evening of Tuesday, September 10. Appellant asked to meet with him the next day. Appellant did not indicate he wanted to rescind his resignation.
The Region III PAL unit supervisor and appellant met on Wednesday, September 11. The discussion again turned on the way the PAL unit was being run, his ability to manage, the morale of the unit, and the September 6 written procedures. At the end of the meeting, appellant told the Region III PAL unit supervisor he wanted to rescind his resignation. The Region III PAL unit supervisor told appellant his resignation had been accepted by both the LEIU Administrator and the PAL agent and appellant would have to deal with the LEIU Administrator.
The Region III PAL unit supervisor and appellant both called the LEIU Administrator on September 11 and told him appellant wanted to rescind his resignation from the PAL unit. The LEIU Administrator repeated that the resignation had been accepted and endorsed by the PAL agent. He also told appellant to put his rescission in writing.
On September 13, the LEIU Administrator sent appellant a memorandum accepting his resignation and appellant sent him his written rescission. The appellant also called the LEIU Administrator on September 13 and requested a meeting.
The LEIU Administrator, Region III PAL unit supervisor, and appellant met on September 25. The appellant was asked to identify the “irreconcilable differences” that led to his resignation. Appellant described the differences of opinion he had with the Region III PAL unit supervisor about the supervision of the unit, the way the fugitive cases were handled, and appellant’s recollection of his discussions with the Region III PAL unit supervisor.
As a result of the meeting, the LEIU Administrator believed there was a personality conflict between the Region III PAL unit supervisor and appellant that was impacting the unit. He also had concerns regarding appellant’s safety, his ability to follow directions, and his personal action in submitting a resignation based on irreconcilable differences with his supervisor.
The LEIU Administrator notified appellant by memorandum dated October 2, 2002, that his resignation from the PAL unit was accepted and he again asked him to identify his parole office transfer preferences. Appellant was transferred to an office of his choice, the El Monte Parole Office 2, effective November 11, 2002.
APPELLANT’S RESIGNATION AND REASON FOR TRANSFER
Appellant argued that his rescission of his resignation from his position on the PAL unit made his transfer to the El Monte Parole unit an involuntary transfer. He furthered argued that this involuntary transfer was disciplinary based on his involvement in the fugitive cases. He also argued the involuntary transfer was harassment because no other agents involved in these cases were transferred.
Respondent argued that appellant’s resignation constituted a request for transfer and thus bars appellant from appealing an action that was taken on his request. It further argues that respondent was under no obligation to accept appellant’s rescission because it accepted his resignation before he rescinded it.
Respondent also contends that appellant’s rescission was not accepted and he was transferred based on the “totality of the circumstances” including appellant’s behavior in the fugitive cases; his disagreement with the policies in place for running the Region III PAL unit; his personal and professional conflicts with his supervisor; and his decision to submit his resignation based on “irreconcilable differences.” Respondent contends such circumstances could impact the harmony of the unit and affect agent safety in critical situations.
Appellant’s assignment to the PAL unit was voluntary. He had an automatic right of reinstatement to a Parole Agent I position in a parole unit. Therefore, appellant’s “Resignation from the Region III Fugitive Apprehension Unit” had the affect of a request for transfer.
Appellant’s attempt to rescind his resignation and therefore, his request to transfer indicates his November 11 transfer was involuntary. Whether or not appellant rescinded his resignation in accordance with the standards set forth in Armistead v. State Personnel Board (1978) 22 Cal. 3d 198 is irrelevant to this proceeding. Armistead addresses resignation from State service whereas this case, involves resignation from a particular position.
Respondent involuntarily transferred appellant from his position in the PAL unit to the El Monte Parole Unit 2.
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Government Code section 19994.1 provides 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. Government Code section 19994.3 provides that the transferred employee may protest to DPA that the transfer was made for the purpose of harassing or disciplining the employee, rather than for a legitimate business reason. If DPA finds that the transfer was made for the purpose of disciplining the employee and not for a legitimate business reason, DPA has the authority to disapprove the transfer and return the employee to his or her former position. 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 is non-geographic and does not require him to change his residence.
Appellant was transferred pursuant to Government Code section 19994.1. His transfer was non-geographic in nature in that it did not require him to change his residence. Appellant’s transfer did not entail any financial loss. There was no reduction in salary or decrease in benefits. Although appellant argued his transfer precludes him from becoming an SSU investigator at some future time, there was no evidence to suggest that appellant’s transfer precludes him from applying for a future position in a PAL unit, or that appellant was otherwise guaranteed a position in the SSU.
Appellant’s transfer was originally initiated by the appellant himself. The Region III PAL unit supervisor did not discuss appellant’s behavior and judgment in the fugitive cases or appellant’s disagreement with his decisions, policies and supervision with the LEIU Administrator until appellant himself indicated he wanted him to know he could no longer function in the unit.
Respondent believed appellant when he stated there were “irreconcilable differences” between himself and the Region III PAL unit supervisor. It was undisputed that appellant disagreed with the Region III PAL unit supervisor’s orders in the fugitive cases. It was undisputed that appellant believed the parole agents in the field, rather than a supervisor, should be given the ultimate authority to make field decisions regarding how to pursue a case. It was undisputed that appellant’s actions were already affecting the unit in that two agents were upset they had not gotten paid overtime because appellant had not gotten pre-approval to affect an arrest and that agents called the Region III PAL unit supervisor when they learned appellant had resigned.
It was also undisputed that the PAL unit performs specialized work that requires special qualifications including good judgment and a high degree of concern for safety. Respondent questioned appellant’s ability to exercise good judgment in hostile circumstances. Based on the totality of the circumstances, such concern was reasonably supported by appellant’s disagreement with and lack of support for the rules and supervision procedures in the unit; his somewhat hasty decision to deal with his supervisor and disagreeable supervision changes by resigning; and his previously demonstrated unsafe conduct and decision-making ability in the fugitive case.
Employers may conduct a transfer in order to find the proper role for their employees. (Orange County Employees Association v. County of Orange, 205 Cal.App. 3d 1289, 1294.) In this case, respondent proved it transferred appellant based on its need to ensure the smooth operation of the Region III PAL unit, and its concern for the safety of others in the unit who rely on appellant’s judgments while routinely engaged in high risk situations.
A transfer is not punitive per se but must involve an agency motivation to punish the employee. (Baggett v. Gates, 32 Cal.3d 128, 141.) Appellant failed to prove that he was in any way harmed by the transfer or that respondent intended to punish him.
Appellant also failed to prove the transfer was intended to harass him. The fact that other agents involved in the fugitive cases were not transferred supports the fact that these incidents were not the predominate reason for appellant’s transfer. None of the other agents involved in these cases submitted a written resignation from the unit or informed management they had irreconcilable differences with supervision, policies and procedures, which would not allow them to continue to function in the PAL unit.