Final Non-Precedential Decision Adopted: March 7, 2010
By: Debbie Endsley, Director
DECISION
This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on January 21, 2010, in Riverside, California.
Appellant was present and represented by Ina A. Arnold, Senior Hearing Representative, California Correctional Peace Officers Association.
Geoffrey Maline, Staff Counsel, represented the California Department of Corrections and Rehabilitation, respondent.
I - JURISDICTION
On August 21, 2009, respondent, California Department of Corrections and Rehabilitation (CDCR) served appellant with a Memorandum titled: "Re-assignment to California Institution for Women." Respondent then transferred appellant from Camp Rainbow, near Temecula, California to the California Institution for Women (CIW) near Norco, California.
The California Correctional Peace Officers Association (CCPOA), filed an appeal from involuntary transfer on behalf of appellant on September 14, 2009. The appeal complies with the procedural requirements of Government Code section 19994.3.
II - ISSUES
Appellant contends respondent transferred him from Camp Rainbow to CIW in violation of Government Code section 19994. Respondent argues it was well within its rights to "re-assign" appellant to its main institution of CIW and appellant had no property interest in his position at Camp Rainbow.
The issues to be determined are:
III - FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence:
Appellant began work for respondent on June 1, 1996. He voluntarily transferred to Camp Rainbow on July 30, 2007. Appellant's work history reflects two (2) transfers: one on July 30, 2007 and another on August 31, 2009. At the time of appellant's transfer1 of August 31, 2009, appellant was employed as a Correctional Officer at respondent's Camp Rainbow near Temecula, California.
Appellant had an exemplary service record and received an outstanding performance report in November 2008. He came under investigation in August 2008, but was only made aware of the investigation on July 3, 2009. He was interviewed by respondent's investigative unit on July 8, 2009.
The Correctional Captain understood appellant was under investigation when he was told by the Warden to re-assign appellant to CIW. There was no change in pay or classification, just location. Appellant was not given per diem or travel costs to his new job assignment at CIW even though it was approximately 50 miles from Camp Rainbow. Appellant lives in Murietta, California and Camp Rainbow is about 15 miles from appellant's home.
The Lieutenant is the Camp Commander at Rainbow Conservation Camp. The Lieutenant has known appellant for 3 years and had nothing to do with the decision to "re-assign" appellant. At some point the Lieutenant learned appellant was being transferred to CIW.
On August 10, 2009, respondent sent appellant a letter by mail stating he may expect formal Adverse Action papers to be served upon him within thirty (30) days. The appellant was served with a Notice of Adverse Action (NOAA) with a penalty of a 5% salary reduction for 13 months. The respondent withdrew the NOAA and issued an Amended NOAA with a reduced penalty of Formal Letter of Reprimand. The parties settled the Amended NOAA prior to this hearing. The penalty of transfer was not part of either NOAA.
In addition, and simultaneous to the NOAA, respondent sent the following letter to appellant on August 21, 2009: "Effective Monday August 31, 2009, you are being re-assigned to the California Institution for Women (CIW). You are to report to the institution at 0600 hours in uniform. This re-assignment is consistent with management's right. You are currently assigned to an administrative position, and therefore, management retains the rights to the assignment of duties and schedule of work time and hours. Your notice is consistent with the provision outlined in the implemented Terms, Shift and/or Assignment Changes.2 I would like to thank you for your work while assigned to Conservation Camp #2 Rainbow." /s/ [by a supervisor, but not the direct supervisor to appellant.]
The supervisor who signed the letter was not appellant's direct supervisor and contacted the Labor Relations Officer who assisted in drafting the letter to appellant. The letter effectively transferred appellant within 10 days from Camp Rainbow to CIW. Appellant reported to CIW as instructed on August 31, 2009.
Camp Rainbow has approximately 100 inmates and CIW has approximately 2300 inmates. The facilities are at least 50 miles apart. Appellant lives about 15 minutes from Camp Rainbow. After the transfer, appellant was required to commute 1.5 hours to CIW. Employees of respondent perceive duties at Camp Rainbow as easier than the duties at CIW because there are fewer inmates and therefore less trouble supervising these low level offenders.
Respondent did not call any witnesses. A declaration of the Chief Deputy Warden at CIW dated January 20, 2010, was entered into evidence over the objection of appellant. The Chief Deputy Warden did not supervise appellant. His declaration stated in relevant part: "[I] do not trust appellant in light of his failure to report that his step-sons were incarcerated in CDCR. For public safety reasons, I want to assign appellant to an institution setting. There he will have a Correctional Sergeant and a Correctional Lieutenant who are able to supervise and observe his conduct."
IV - PRINCIPLES OF LAW
An appointing power may transfer any employee under its jurisdiction: (1) to another position in the same class; or (2) from one location to another whether in the same position, or in a different position as specified in (1) or in Section 19050.0. (Government Code section 19994.1(a).) Government Code section 19050.5 states: "notwithstanding Section 3517.6, an appointing power may transfer any employee under his or her jurisdiction to another position in a different class designated as appropriate by the board."
"When a transfer under this section or Section 19050.5 reasonably requires an employee to change his or her place of residence, the appointing power shall give the employee, unless the employee waives this right, a written notice of transfer 60 days in advance of the effective date of the transfer. Unless the employee waives this right, the appointing power shall provide to the employee 60 days prior to the effective date of the transfer a written notice setting forth in clear and concise language the reason why the employee is being transferred." [Emphasis added.] (Government Code section 19994.1(b).)
Government Code section 19994.3 prohibits transfers "made for the purpose of harassing or disciplining the employee." DPA has the authority to revoke a transfer and restore an employee to his original position if it finds the transfer was made for the purpose of harassing or disciplining the employee. 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 does not reasonably require the employee to change residence.
The Johnston court opined: "[t]he clear concern of section 19994.3 is discipline or harassment achieved through a transfer. It is equally apparent the Legislature sought to prevent such abuses." The Johnston court concluded: "the Legislature intended that transfers made for the purpose of harassing or disciplining an employee be subject to review." Discipline is defined as correction, chastisement, punishment, penalty. To bring order upon or bring under control. (Black's Law Dict. (6th ed. 1990) p. 464.)
Section 19994.3 of the Government Code allows the transferred employee to protest to DPA a transfer made for the purpose of harassment or discipline. If DPA finds the transfer was made for the purpose of disciplining or harassing the employee, DPA has the authority to disapprove the transfer and return the employee to his or her former position. A transfer is disciplinary in nature only if imposed for purposes of punishment. (White v. County of Sacramento (1982) 31 Cal.3d 676.)
V - ANALYSIS
Respondent was within its statutory right to transfer appellant; however, it failed to do so in accordance with the transfer statutory scheme. The statute providing for transfer of employees requires the appointing power to provide a 60-day written notice. Respondent advised appellant a mere 10 days before the transfer as evidenced by the memorandum signed by the Correctional Captain "re-assigning" appellant to CIW effective August 31, 2009. This 10-day notice does not comport with the transfer statutory scheme and is therefore not proper notice.
Moreover the statute requires respondent to set forth in clear language the reasons for the transfer. The only reason provided to appellant in the notice of August 21, 2009, was: "[t]his re-assignment is consistent with management's right." Despite the requirements of the statute governing transfers, respondent failed to provide a clear, concise reason for the transfer of appellant.
Additionally, respondent called no witnesses to explain the meaning of the statement: "[t]his re-assignment is consistent with management's right." The only evidence provided by respondent was the Chief Deputy Warden's declaration. The Chief Deputy Warden's declaration stated he could not trust appellant, even though he was not appellant's supervisor. The Chief Deputy Warden's declaration is a clear indication respondent was still punishing appellant for his alleged bad behavior by re-assigning him so he could be more closely supervised. Discipline at its empirical base is to bring under control, which is clearly reflected in respondent's intent to more closely supervise appellant.
Transfers for reasons of punishment or harassment are prohibited under the statutory scheme governing transfers. Respondent refers to its actions against appellant as a "re-assignment." However, respondent failed to present evidence of its right to "re-assign." Conversely, appellant presented evidence the transfer was filed contemporaneous with the filing of a NOAA. Even though later withdrawn and re-filed with a lesser penalty, the NOAA and simultaneous transfer of appellant are indicative of what the statutory scheme seeks to avoid - transferring appellant for the singular purpose of discipline.
VI - CONCLUSIONS OF LAW
Respondent failed to properly notice appellant of the transfer to CIW. Appellant proved by a preponderance of the evidence his transfer to CIW was made for the purpose of disciplining him.
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WHEREFORE IT IS DETERMINED the appeal of involuntary transfer by appellant is hereby granted and the transfer of appellant to CIW disapproved. Within two (2) weeks of the signed Order, respondent shall reinstate appellant to his position at Camp Rainbow effective August 31, 2009. In order to make appellant whole, appellant is entitled to the regular travel allowance for the period of time he was away from his original headquarters in accordance with Government Code section 19994.3.
1. Respondent characterizes appellant's transfer as a "re-assignment" within its facility. Camp Rainbow is near Temecula, California and approximately 50 miles from respondent's main campus at CIW, Norco.
2. Respondent did not present evidence of this provision. The only potentially relevant provision regarding transfers is found in Article 12, section 12.03. Paragraph D of that section states: "[e]mployees who are involuntarily assigned shall receive short-term per diem for the first thirty (30) days of their assignment and if required to work past the thirty (30) days assignment, short-term per diem will commence on the thirty-first (31st) day and continue for each day the employee is removed from his/her place of permanent residence.
