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DPA Case Number 03-A-0061-Demotion In Lieu of Layoff

Final Non-Precedential Decision Adopted: September 10, 2003
By: Howard Schwartz, DPA Chief Counsel
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 15, 2003, at Riverside, California.
Appellant was present and was represented by Nellie D. Lynn, Labor Relations Representative, Association of California State Supervisors (ACSS).
David Zocchetti, Staff Counsel, represented the Governor's Office of Emergency Services (OES), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
I - JURISDICTION
Appellant received formal notice on June 10, 2003, that he could demote in lieu of layoff or be laid off effective July 11, 2003. Appellant chose to demote-in-lieu of layoff. The ACSS appealed the demotion in lieu of layoff on June 20, 2003.1 The appeal complies with the procedural requirements of Government Code section 19997.142 and DPA Rule 599.859.
II - CAUSE FOR APPEAL AND REQUESTED REMEDY
Appellant challenged the demotion in lieu of layoff on the grounds the required procedure had not been complied with and that it was not made in good faith. Appellant specifically alleged that respondent had not complied with the procedures in DPA's January California Civil Service Layoff Manual (CCSLM) by not providing appellant with notice of all open or vacant positions when he received the June 10 Notice of Layoff or Demotion in Lieu of Layoff. Appellant also alleged respondent acted in bad faith when it did not transfer appellant to a vacant Senior Emergency Services Coordinator (SESC) position in its Los Alamitos facility.
As a remedy, appellant asks that DPA order respondent to reestablish the Los Alamitos SESC position which was abolished on June 30 and transfer appellant to this position.
III - BACKGROUND FACTS
Based on budget reductions, respondent submitted a Layoff Plan and Request For Preliminary Seniority Scores to DPA on February 25. Respondent requested a geographic layoff in Los Angeles, San Luis Obispo, Alameda, and Sacramento counties. Two PM I positions in the Pasadena office were included in this layoff. Appellant's position was one of the PM I positions that was to be abolished. Appellant was notified he was being placed on the "Surplus Employee List" in February. DPA approved the layoff plan on March 10.
On or about April 1, DPA instructed departments to prepare a second layoff plan that reduced personal services budgets by at least an additional 10% beginning in the fiscal year 2003-2004. In response to this request, respondent submitted a Layoff Plan and Request for Preliminary Seniority Scores to DPA on April 29. It proposed elimination of OES vacancies and closure of the Disaster Field Office in Pasadena. It requested seniority scores for the personnel in the Pasadena Office. The anticipated effective date of this layoff at that time was October 1.
Prior to June 5, appellant learned from employees in Los Alamitos that there was a vacant SESC position in Los Alamitos. The Los Alamitos office was not in the approved areas for geographic layoff. Appellant also learned from these employees that respondent intended to hold the position vacant because of the April 29 pending layoff plan. Nevertheless, appellant notified ACSS that he was interested in the vacant SESC position in Los Alamitos.
On June 5, ACSS representatives met with DPA representatives and the OES Labor Relations Specialist. The purpose of the meeting was to discuss the February 5 and April 29 layoff plans. The vacant SESC position in Los Alamitos was discussed. The possibility of filling this position with one of the two PM I's who were to be laid off or demoted in the Pasadena office was discussed. Appellant's name was brought up as a potential employee to fill that position. The OES Labor Relations Specialist did not know the status of the Los Alamitos position. She believed it might have been identified as a position that was scheduled for elimination as part of the April 29 layoff plan. She told ACSS that she would check on its availability. The parties discussed that if it was available, it would be offered to only those employees who were impacted by the layoffs and it would be filled by seniority.
A second meeting to discuss the layoffs was to be scheduled in July. The second meeting never occurred.
Respondent issued its Notice of Layoff or Demotion in Lieu of Layoff to appellant on June 10. The notice advised appellant the layoff or demotion in lieu of layoff would be effective July 11. It gave him his seniority score and advised him his primary demotional path was to SESC and then to Emergency Services Coordinator (ESC). The notice also advised appellant that his personal demotional rights were to the position of Disaster Assistance Specialist II (DAPS II). Appellant was advised his seniority allowed him to demote to a DAPS II position in the Pasadena Office by "bumping" someone. Appellant was also advised he would be receiving Job Opportunity Bulletins for all vacancies within OES that were not within the geographic area of layoff and that he could apply for a voluntary transfer if he met the transfer eligibility.
Appellant notified respondent he was interested in demoting to the DAPS II position in Pasadena. Appellant was offered a DAPS II position in Pasadena.
Although respondent never advertised to fill the SESC position in Los Alamitos, appellant formally notified respondent of his interest in a voluntary demotion to the vacant SESC position in Los Alamitos on June 11. On June 12, appellant was formally notified this position was being held for the mandated additional 10% reduction and was therefore not being filled.
On June 19, respondent notified appellant there were two PM I vacancies available in Sacramento. On June 24, appellant notified respondent he was interested in these positions but that he retained a primary interest in the SECS position in Los Alamitos.
On July 1, appellant received notice of a vacant ESC position in Los Alamitos. On July 2, appellant notified respondent he was interested in this position and that he would prefer it over a PM I position in Sacramento. He reiterated he would accept the PM I position in Sacramento if he was ineligible for the ESC position in Los Alamitos. At some point, appellant was offered a PM I position in Sacramento.
On or about the beginning of July, respondents were notified that all positions that were vacant on June 30 were abolished by Executive Order. On July 10, the Department of Finance issued Budget Letter 03-19 which called for immediate review and revision of the 10% reduction and layoff plans if necessary and it provided criteria under which a department could address retaining abolished vacant positions. At the time of hearing respondent was developing a plan to retain some positions that were vacant on June 30.
Also at the time of hearing on July 15, appellant had two job offers pending with respondent. He had been offered a DAPS II position in the Pasadena office and a PM I position in Sacramento.
However, appellant preferred a SESC position in Los Alamitos because it was close to his current residence. It is on this basis that he brought his appeal.
IV - ISSUES

Required Procedures

Appellant contends his demotion in lieu of layoff was unlawful because respondent did not provide him with a list of all open and/or vacant positions for which he might be eligible on June 10 when it notified him of his layoff or demotion in lieu of layoff. Appellant's argument is rejected.
There is no statute, regulation, or guideline that requires this. Appellant was timely notified of his bumping rights and the available positions for which he was eligible within the approved geographic area of layoff. He was offered a DAPS II position within the geographic area of layoff. This is consistent with Section 19997.8.
Appellant also contends respondent did not follow required procedures because there was a vacant SECS position in Los Alamitos which was not offered to him although it was a position in his primary demotional path. Appellant contends this violates the Voluntary Methods of Reducing Staff Size, "Transfer or Demotion within the Appointing Power" section, in the CCSLM which states:
"If there are sufficient vacancies within the appointing power, but outside the area of layoff, in the class in which positions are to be reduced, the appointing power is not in a layoff situation. Employees may be encouraged to voluntarily transfer to positions in the same class." (CCSLM at p. 300.1.)
This CCSLM section references positions in the same class as those which are being reduced. In this case, respondent was reducing employees in the PM I class. The vacant position in Los Alamitos was a SESC and therefore not in the same class being reduced. Respondent's failure to offer the vacant SESC position in Los Alamitos is consistent with the CCSLM section cited above.
Respondent's decision to leave the SESC position in Los Alamitos vacant is also consistent with that section of the CCSLM that suggests appointing powers identify vacant positions that can be left vacant to accomplish the requisite savings instead of laying off or demoting employees in lieu of layoff. (CCSLM at p. 300.1.)
Although appellant correctly argues that this position was not specifically identified in respondent's April 29 layoff plan, this does not mean that the position was not included. Respondent's April 29 plan specifically requested seniority scores for filled positions in the Pasadena Disaster Offices and it also notified DPA that additional vacant positions would be included as well. Specific vacant positions were left unidentified because seniority scores were not required to abolish these positions. The OES Labor Relations Specialist credibly testified that the Los Alamitos SESC position was included in the layoff plan. Therefore, respondent's actions were consistent with, rather that contrary to, the voluntary methods of reducing staff size recommended in the CCSLM.
There is no statute or regulation which requires respondent to notify appellant of all existing vacant positions in all classifications in all of its locations at the time it noticed him of layoff or demotion in lieu of layoff. Respondent complied with the required layoff and demotion in lieu of layoff procedures.

Bad Faith

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]" (Placer County Employees Association v. Board of Supervisors (1965) 233 Cal.App.2d 555, 559.)
Appellant alleged his demotion in lieu of layoff was done in bad faith because an agreement was reached during the June 5 meeting that appellant would be offered the vacant SESC position in Los Alamitos if he applied and if his seniority made him eligible for the position.
Black's Law Dictionary (Fifth Edition) defines an "agreement" as a coming together of minds in accord on a given proposition. There was no agreement to unconditionally offer appellant the vacant Los Alamitos SESC position. The OES Labor Relations Specialist agreed to offer the position if it were "available." She interpreted the term "available" as meaning not being included in the April 29 layoff plan. ACSS assumed that since respondent did not specifically list the SESC position by name in the April 29 layoff plan, the position was available because it was vacant and this meant appellant would apply and be given the job because it believed he had the most seniority of any interested person who would apply for the position. There were many contingency factors and unanswered questions as a result of the June 5 meeting. There was obviously no meeting of the minds and no agreement that appellant would be unconditionally offered the position or given the position. There was not even a mutual understanding whether or not the position was going to be filled at all.
Because the position was not filled on June 30, it was abolished by Executive Order and it did not exist at the time of hearing.
There was no evidence respondent acted in bad faith by not offering appellant the vacant Los Alamitos SESC position.
 
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:
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 that it was otherwise improper.
Respondents properly complied with the procedures in this case by notifying appellant of classes in his demotional paths, his seniority and the positions available to him in the approved geographic area of layoff. (Section 19997.8.)
There was no evidence that respondent made attempts to subvert the civil service system or that they otherwise acted improperly or in bad faith.
 
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WHEREFORE IT IS DETERMINED
that the appeal for a Demotion in Lieu of Layoff effective July 11, 2003, is denied.
 
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FOOTNOTES
1. All dates are 2003 unless otherwise indicated.
2. All statutory references are to the Government Code unless otherwise indicated.
  Updated: 5/30/2012
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