CALIFORNIA STATE PERSONNEL BOARD 801 Capitol Mall ...

CALIFORNIA STATE PERSONNEL BOARD 801 Capitol Mall ? Sacramento, CA 95814

March 28 2003

E R R A T A

In the Matter of the Appeal by

L

. G

From a 10 percent reduction in salary for nine pay periods in the position of Fire Captain with the Department of Forestry and Fire Protection at Quail Valley.

SPB Case No. 02-1166 BOARD DECISION (Precedential) NO. 03-01 March 4, 2003

The Board decision (Precedential) No. 03-01 in the above matter approved by the State Personnel Board on March 4, 2003, is corrected to read as follows: Page 10, lines 8-9

reduced to a five percent reduction in salary for six pay periods because the unproven allegations concerning misuse of state subsistence were dismissed.

BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA

In the Matter of the Appeal by

)

)

L

. G

)

)

From a 10 percent reduction in salary for )

nine pay periods in the position of Fire )

Captain with the Department of Forestry )

and Fire Protection at Quail Valley.

)

)

SPB Case No. 02-1166 BOARD DECISION (Precedential) NO. 03-01

March 4, 2003

APPEARANCES: L

. G , in pro per, on behalf of appellant, L

.G ;

Timothy G. Cronin and Bruce Crane, Staff Counsel, Department of Forestry and Fire

Protection, on behalf of respondent, Department of Forestry and Fire Protection.

BEFORE: William Elkins, President; Ron Alvarado, Vice President; and Sean Harrigan, Member.

DECISION This case is before the State Personnel Board (Board or SPB) after the Board rejected the SPB Administrative Law Judge's (ALJ's) proposed decision dismissing appellant's appeal for failure to establish good cause for filing a late appeal with the SPB. Appellant filed his appeal with the SPB after executing a written waiver of his right to appeal to the SPB and pursuing remedies set forth in the memorandum of understanding for State Bargaining Unit 8 for the adjudication of disciplinary actions. In this decision, the Board finds that appellant has established good cause for filing a late appeal with the SPB, and accepts the appeal. The Board further finds that an official reprimand is a just and proper penalty for the proven misconduct, and modifies the penalty accordingly.

Factual Summary Appellant has over thirteen years of service with the Department of Forestry and Fire Protection (Department); ten of those years have been in the position of Fire Captain. He has no history of disciplinary action. As cause for the ten percent reduction in salary for nine pay periods, the Department alleged that "From approximately July 1999 until September 2000, [appellant was] involved in an inappropriate relationship with" a volunteer firefighter, while on duty. The Department alleged that this relationship created "an uncomfortable working environment for the other employees." The Department also alleged that appellant submitted an inaccurate document concerning family members who consumed state food while at the fire station. The Department alleged that these acts constituted cause for discipline under Government Code section 19572, subdivisions (c) inefficiency, (d) inexcusable neglect of duty, (l) immorality, (m) discourteous treatment of the public or other employees, and (t) other failure of good behavior either during or outside of duty hours which is of such a nature that it causes discredit to the appointing authority or the person's employment.1

Motion to Dismiss The Department moved to dismiss the appeal on the ground that it was untimely and on the ground that appellant waived his right to appeal to the Board. Appellant was served with the notice of adverse action on July 17, 2001. Appellant's appeal was filed

1 The causes of inefficiency and immorality were stricken during the hearing.

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with the State Personnel Board on March 15, 2002. Appellant asserts that the late

appeal should be excused for good cause.

Appellant is covered by a Memorandum of Understanding (MOU) entered into

between the CDF Firefighters and the State of California with respect to employees in

State Bargaining Unit 8. Article 19 of that MOU sets forth a process for the review of

disciplinary actions by a "Board of Adjustment" (BOA) or arbitrator if the employee

waives the right to appeal to the SPB. On September 20, 2001, appellant signed a

"Bargaining Unit 8 Discipline Grievance Acknowledgement and Waiver." That

document states that appellant has elected to file a grievance concerning his adverse

action pursuant to the collective bargaining agreement between the CDF Firefighters

and the State of California. The agreement further states that appellant freely and

voluntarily agreed to be bound by the following terms:

1. I understand that my decision to file a grievance cannot be changed at any time or for any reason.

2. I understand that the State Personnel Board is empowered to review adverse (disciplinary) actions based on the constitution and laws of the State of California.

3. I understand that I have the right to appeal my adverse action directly to the State Personnel Board.

4. I hereby waive my right to appeal directly to the State Personnel Board.

I understand that by waiving this right I will not receive an evidentiary hearing by the State Personnel Board, or members of its staff, regardless of the outcome at any step of the grievance procedure. 5. I understand that Step 1 of the grievance procedure means my

adverse action grievance will be reviewed by a Board of Adjustment (BOA) comprised of two individuals selected by management and two individuals selected by the union.

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6. I further understand that the Board of Adjustment may not conduct an evidentiary hearing. Rather, the Board of Adjustment will use the procedures contained in the Unit 8 MOU (and such other procedures as it adopts by majority vote) for purposes of reviewing and deciding my adverse action grievance, which means, for example, that I might not be permitted to do such things as subpoena, examine or cross-examine witnesses.

7. I understand that the Board of Adjustment may, by majority vote, recommend settlement of my grievance. If I agree to enter into the recommended settlement, my grievance shall pursuant to Larson v. State Personnel Board (28 Cal.App.4th 265) be deemed withdrawn thereby ending any/all disputes regarding the disciplinary action. If I refuse to enter into the recommended settlement, then I understand that (a) the BOA's decision shall be of no effect; (b) the disciplinary action will remain in effect unless and until modified or rescinded by an arbitrator; (c) my union will not represent me at arbitration; and (d) I will be responsible for paying for one-half of the arbitrator's fees and expenses, and one-half of the cost for transcribing the proceedings.

8. I understand that my adverse action grievance will only proceed to arbitration at no cost to me if there is a tie vote by the Board of Adjustment and the union elects to proceed to arbitration. If the union elects not to request arbitration, I understand that (a) the BOA's decision shall be of no effect; (b) the disciplinary action will remain in effect unless and until modified or rescinded by an arbitrator; (c) my union will not represent me at arbitration; and (d) I will be responsible for paying for one-half of the arbitrator's fees and expenses, and one-half of the cost for transcribing the proceedings.

9. I understand that by grieving rather than appealing directly to the State Personnel Board, the State Personnel Board may only review my adverse [sic] if it is not settled following a decision by the Board of Adjustment. I further understand that any review conducted by the State Personnel Board shall only be for purposes of determining whether the adverse action taken against me is inimical to merit principles (e.g., for purposes of a spoils system or political patronage). Finally, I understand that the State Personnel Board's review will be limited to the record created in arbitration and will not include an evidentiary hearing.

10. I hereby certify that I have been given a copy of Article 19 of Bargaining Unit 8 MOU.

11. I hereby certify that I have read and understood Article 19.

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